Presidential Obstruction of Justice


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This article from the California Law Review, written by Daniel J. Hemel and Eric A. Posner and entitled Presidential Obstruction of Justice, examines the standard for charging a United States president with obstruction of justice in light of his role as head of the executive branch and federal law enforcement. The authors assert that a president does violate the law when he obstructs justice with an improper purpose and explore what that improper purpose might be. They ultimately claim that when a president acts/obstructs justice to “take care that the laws be faithfully executed,” his purpose is proper, but that otherwise it is not.

This analysis is of course significant in light of President Trump’s firing of Former FBI James Comey which some believe was an act obstructing justice. The friction between Comey and Trump was brought to the forefront again on Monday when the President ordered that Comey’s communications be released to the public along with ” 20 pages of a 2016 surveillance application targeting former Trump campaign adviser Carter Page and Justice Department official Bruce Ohr’s notes related to the Russia probe.” Comey believes that Trump is trying to root out a procedural mistake made by the FBI, but is confident he will not find one.

comey.jpgCarsten Koall/Getty Images

Losing a Two-Front War


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This week has proven to be a difficult one for President Trump. As both civil and criminal investigations draw near and his tight spot becomes tighter, one can only begin to imagine his discomfort.

The world of Special Counsel Robert Mueller’s investigation has gotten a little brighter with the cooperation of Paul Manafort. Trump’s former Campaign chairman finally struck a plea deal last Friday and pleaded guilty to conspiracy to defraud the United States and obstruction of justice. Though Trump’s press secretary, Sarah Sanders, argues that the charges against Manafort have nothing to do with the President and could not incriminate him, Manafort apparently possesses information valuable enough for Mueller to agree to waive 5 of his 7 charges and argue leniency in his sentencing. Especially valuable is Manafort’s participation in the Russian lawyer meeting and any insight he may be able to give as to what happened there. Some theorize that Manafort’s cooperation promises the end of Mueller’s investigation.

On top of Mueller’s progress, Trump faces discovery requests pursuant to a civil suit in the U.S. District Court of Maryland. The suit alleges that Trump violated the Domestic and Foreign Emoluments Clauses of the United States Constitution through operation of the Trump International Hotel near the White House. Pursuant to those allegations, the plaintiffs, D.C. Attorney General Karl Racine and Maryland Attorney General Peter Frosh, are seeking communications between Trump and foreign and U.S. state government officials related to use of the hotel, records of the hotel’s business with foreign officials, records of cash transferred from the trust which collects the hotel’s funds to Trump, and documents from the General Services Administration and the U.S. Treasury Department which lease the hotel building to Trump.

The likely result of these two investigations is that allegations of impeachable offenses committed by Trump, conspiracy to defraud the American people, obstruction of justice, and violation of the emoluments clauses, will soon either be substantiated or refutable. And with midterm elections looming, this information could not have come at a better time. Soon there will be a Congress that can transform all of this discovery into articles of impeachment.

GettyImages-578331186-trump-manafort-2016-1120.jpgBill Clark, CQ Roll Call, Getty Images

Getting to Know Jane Raskin


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Readers might be interested in an article published by Bloomberg today entitled “Trump’s Little-Known Lawyer on the Front Lines Against Mueller.” It details the background of Jane Raskin, a white-collar defense lawyer from Florida. Though she is less talked about than Giuliani, Raskin has been working as President Trump’s lawyer since April, shortly after John Dowd left the position. She has gone head-to-head with Special Counsel Mueller’s deputy, Jim Quarles, over permissible communications with President Trump, conducted much of the research behind Trump defense, and is the lead writer of a report meant to counter Mueller’s eventual findings. Interestingly the lawyer has personal ties to Mueller: “both lawyers were prosecutors in Boston early in their careers — Raskin tried organized crime and racketeering cases for the Justice Department while Mueller investigated financial fraud, terrorism and money laundering for the U.S. attorney’s office.”


The Anonymous Letter


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The nation is abuzz with talk of the anonymous op-ed piece published by the New York Times. The writer is apparently a senior official in the Trump Administration and names him-or-herself  as part of the “quiet resistance.” The piece describes efforts taken by its author and others to walk-back, avoid, and otherwise subvert the President’s more rash decisions. In essence, it paints Trump as an out-of-control child. Some readers will wonder how this is news; however the piece is significant for several reasons. 1) It corroborates other, similar accounts of the Trump administration, such as those leaked by aides and those written in “Fear,” Bob Woodward’s book; 2)  it simultaneously bolsters and rebuffs the 25th amendment theory of removal. The author of the piece wrote that Trump’s cabinet considered removing the President for incompetence, but ultimately decided against it because “no one wanted to precipitate a constitutional crisis.” This confirms both that at some point use of the 25th amendment was a real possibility and also that it will likely never happen. That being said, confirmation of the President’s incompetence could add strength to other removal proceedings, such as through impeachment in the House; 3) perhaps most importantly, it helps to resolve the mixed relationship the Trump Administration has with Russia. The author wrote that though Trump has complained about Russian sanctions, the ‘resistance’ has worked to ensure it sanctioned and otherwise punished the nation for stepping out of line. Trump has boasted in the past that “there’s never been a president as tough on Russia as I have been.” Now we know that the punitive steps that the Trump Administration has taken towards Russia may very well have had nothing to do with Trump or have been done in spite of him. Though it may seem a small thing in light of evidence mounting elsewhere, this strengthens the case for collusion and could perhaps help to usher in impeachment.

920x920.jpgSusan Walsh, AP

Trump’s Escalating Assault on the Rule of Law: The True Ground for Impeachment


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By Frank Bowman

As many others have observed, the longer the Trump era continues, the more we become desensitized to almost-daily assaults on basic norms of republican government and the rule of law.

Today, the person in the White House issued a Tweet that, in any previous era, indeed even a year ago, would have summoned an avalanche of condemnation from every corner of the civic and political world.  He said:

Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff……

In short, Mr. Trump is saying — openly, plainly, overtly, with no tinge of embarrassment or shame — that the United States Department of Justice should not indict crooked politicians if they are of the same party as the president.

The fact that the two congressmen in question are, without serious question, as guilty as it is possible to be — Duncan Hunter stole at least $250,000 in campaign funds and spent it on himself and his wife, and in 2017 Chris Collins was photographed committing insider trading while on the White House lawn — cuts no ice with Trump.  The idea that the job of the Department of Justice is to prosecute the guilty regardless of party is as far beyond Trump’s comprehension as the particulars of Einstein’s theory of relativity.  Every component of the federal government exists only to serve him. The Justice Department exists to punish his enemies and sweep the sins of his sycophants under the rug.  And he no longer bothers even to pretend otherwise.

Let us be absolutely clear on one point — No other president in the history of these United States has ever publicly said anything remotely approximating Trump’s outburst today.  So far as we know, only one other president has privately entertained such views … and when they became public knowledge in the Watergate scandal, he was forced to resign to avoid impeachment.

But as sure as eggs is eggs, the response from Republicans to this historic repudiation of a bedrock principle of American governance will be … silence.

And even among Trump’s opponents, outrage will be muted.  Because one can sustain fury, even when fury is merited, only so long.  And the outrage will be fleeting.  Because, since Trump knows nothing he says or does will evoke even a muted whimper of protest from the organization formerly known as the Grand Old Party that now cringes at his feet, tomorrow will bring a new abomination that will supplant memory of today’s. He is slowly — no, not slowly, but with frightening speed — warping our collective sense of tolerable behavior in public office, indeed of right and wrong itself.

Should Democrats win control of Congress in November, and should they be disposed to consider impeachment, this is where their attention should focus.  Not, for heaven’s sake, on whether he paid off two women of doubtful virtue (and even more doubtful discrimination in their choice of personal companions) to keep them quiet.  Not on whether Trump did or didn’t know in advance about the dodgy Trump Tower meeting with the Russian envoys.  The central impeachable offense here is not personal immorality, or incidental violations of this or that statute, or even an obvious willingness to accept electoral assistance from a longstanding national foe.  All of these are evidence of Trump’s primary impeachable offense, but are not the offense itself. The core of any impeachment effort must rest on Trump’s daily destruction of the norms of behavior that make constitutional government possible.

Since 1640, when Parliament impeached the Earl of Strafford for his efforts to elevate royal prerogative over the common law and substitute the will of the monarch for the judgment of Parliament, it has been an impeachable offense “to subvert the ancient and well established form of government … and instead thereof to introduce an arbitrary and tyrannical way of government.”  That’s what we face in the United States in 2018.  And we need to be bold and honest enough to do something about it.

NOTE: Since I first posted this yesterday, the Republican response (with the single exception of Sen. Ben Sasse R-Neb., who is not running for reelection) has, as predicted, been … silence.

Suing Trump over Free Speech Violations


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It was reported today that Donald Trump unblocked several more Twitter accounts pursuant to a ruling from May 23rd. U.S. District Judge Naomi Reice Buchwald in Manhattan held that government official’s twitter accounts were public forums and that blocking users based on their political beliefs was a violation of their first amendment rights. Sonja R. West, of the University of Georgia School of Law, offers a more in depth analysis of the intricacies of bringing a first amendment lawsuit against the President in her article entitled Suing the President for First Amendment ViolationsThough she expresses some doubt about the capacity of one to sue the President for first amendment violations, West concludes: “courts should take into account the potential damage to our public debate if the President cannot be held accountable for violating the expressive rights of the people.” It would seem that Judge Buchwald agreed.

The Value of Weisselberg


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This Bloomberg article, written by Justin Sink, accounts for each of the Trump associates which are now helping to build a case against the President. Interestingly, included among their numbers is Allen Weisselberg, the chief financial officer of the Trump Organization. Information from Weisselberg could prove especially threatening to Trump.  He has been the C.F.O of the Trump Organization for years,  has worked with the Trump family in some capacity since 1970, serves as treasurer to President Trump’s personal foundation, and is the only non-family member that serves as a trustee to the trust that owns the Trump Organizations business interests. This is significant, because investigators have been previously unable to access Trump’s financial records. Now they have the next best thing. Weisselberg, with his intimate knowledge of the President’s finances, could provide the information previously sought from the records, such as evidence of Russian dealings or violations of the foreign emoluments clause. Even if this information is not sufficient to build a case, it could very well be sufficient enough to get a subpoena for the President’s records.

im-23399.jpgThe Wall  Street Journal

Impeachment for Concealing the Mistresses? Not Now, Maybe Later


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By Frank Bowman

On August 21, 2018, Michael Cohen, Mr. Trump’s former lawyer, pled guilty to eight felony charges, including two campaign finance violations.  The last two impose criminal liability for Mr. Cohen’s role in paying two women involved in affairs with Mr. Trump to prevent their stories from becoming public before the election.  Critically, during his plea colloquy with the judge, Mr. Cohen stated under oath that, “I participated in this conduct … for the principal purpose of influencing the [2016 presidential] election,”  and acted “in coordination with and at the direction of a candidate for federal office” — Mr. Trump.

Cohen’s statement, if true, means that Mr. Trump is guilty of a conspiracy to violate election law under 18 U.S.C. Sec. 371, and of the election law violations themselves under a complicity theory, 18 U.S.C. Sec. 2.  Of course, as has been discussed ad infinitum over the past year, the Justice Department has a policy not to indict a sitting president and there is no indication that they intend to deviate from that policy now.

So lots of folks (including Chuck Todd of NBC, Bret Stephens of the NY Times, and my energetic student and blog co-author Sam Crosby) have jumped immediately to the suggestion that these campaign finance violations constitute proper grounds for impeachment.  I disagree, for both constitutional and political reasons.  At best, depending on how the Mueller investigation finally plays out, the payoffs could form part of a plausible impeachment argument.

First, some background.  The constitution defines impeachable conduct as “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are crimes, but “high crimes and misdemeanors” need not be.  The phrase is a term of art adopted from British parliamentary impeachments and was not limited to criminal conduct. Two centuries of American usage have confirmed this point. Commission of a crime is not a necessary precondition for impeachment.

Conversely, not every violation of the criminal code is impeachable. The constitution speaks of impeachment for ‘”misdemeanors” — or perhaps only “high misdemeanors” — but it is well nigh impossible to think of any modern crime classified as a misdemeanor that would justify removal of a president.  Jaywalking. Shoplifting stuff worth less than $300. Driving under revocation. Punching somebody in the nose in a fit of anger.  All misdemeanor crimes. But preposterous as grounds for impeachment.

Not even all felonies are proper grounds for impeachment. The basic rule that has evolved over the years is that “high crimes and misdemeanors” are serious offenses that either endanger the political order or demonstrate an official’s manifest unfitness to continue in office — which if the official is the president necessarily endangers the political order.

This is the lesson of the Clinton affair.  Did Bill Clinton commit the felony of perjury when he lied about sex with Monica Lewinsky? Surely.  He was impeached by the House of Representatives for doing so.  Yet he was acquitted by the Senate.  Not because he didn’t lie, but because many senators just didn’t think lying about sex was sufficiently important to merit removal of a president.

The parallel to Mr. Trump’s situation is plain.  Trump was engaged in extramarital sex.  He wanted to hide it. He arranged to pay off one of them and to reimburse the publisher of the National Enquirer for its payments to the other for the rights to her story.  Neither the sex nor even the payments were in themselves unlawful.  What made Michael Cohen a felon is that paying off the women to aid a candidate is a political contribution.  One of the payments was apparently made by the Trump Organization, and corporate contributions made directly to presidential candidates are illegal.  The other payment (to “Stormy Daniels”) was made by Cohen personally, but it far exceeded the legal limit of $2,700 per person per candidate.  Cohen made one payment and arranged the other.  Trump allegedly asked that he do it.  Hence, two crimes.

But the crimes were in the payments.  One from an illegal source, the other in an illegal amount.  What they bought — concealment of embarrassing sexual escapades — is completely irrelevant under election law.  Cohen (and Trump) would be equally guilty if the money was used to buy a shipload of red MAGA hats.

In Mr. Clinton’s case, his Republican opponents endlessly recited the mantra, “It’s not the sex. It’s the lying under oath.”  Here, Mr. Trump’s pursuers could (and some surely will) say, “It’s not the sex, it’s the concealment in violation of election law.”

One can argue that Trump’s violation of laws designed to protect the integrity of elections is more indicative of unfitness for office than Clinton’s perjury because Trump’s offense relates to the democratic process.  That is a key point, and I’ll return to it in a moment.  But the fact remains that the essence of Cohen’s payoffs of Trump’s former inamoratas is extramarital sex and a guy trying to cover it up.  The parallel to Clinton is just too strong for the Democratic Party to press for impeachment on this ground.  The cries of hypocrisy would be too loud … and they would in large measure be justified.

But what about the fact that Cohen says Trump helped him violate election law — statutes designed to protect the integrity of the democratic electoral process ?  The Founders were quite clear that efforts by a presidential candidate to corrupt the process by which he was selected would be impeachable.

At the Constitutional Convention, George Mason (who introduced the phrase “high crimes and misdemeanors” into the constitution) maintained that a president who “procured his appointment” by corrupting the “electors” must be impeachable. Gouverneur Morris made the same point. By “electors” they meant members of the Electoral College because that regrettable institution was envisioned by the Founders as a body of illustrious men selected by the states who would exercise their independent judgment in selecting a proper president for the nation.  As originally designed, the process of picking a president had no place for voting by the citizenry.  The “electors” made the choice.

To the Founders, the only obvious way of corrupting the presidential selection process was to corrupt the tiny circle of eligible voters – the electors.  Today, of course, electors exercise no independent judgment.  They merely transmit the preference of the voters of their state.  Presidential elections are now supposed to be essentially, if sometimes imperfectly, democratic exercises that reflect the will of the people. Therefore, practical modern electoral corruption must take the form of distorting the judgment of the electorate, rather than the electors.

That sort of corruption, if of sufficient magnitude, might be impeachable — with two large caveats.

First, the arts of voter persuasion inevitably have some aspects of flim-flam.   Political spinning, concealment of one’s own flaws, factually questionable slurs on an opponent’s record or character, appeals to emotion rather than logic — all could be said to distort reasoned voter choice.  But just being an ordinary politician can’t be an impeachable offense.  Even concealment of a disreputable fact about one’s past surely cannot alone be impeachable. Everybody has skeletons.  Impeachments on this ground would permit relitigation in Congress of every presidential election.

Second, therefore an impeachment on grounds of corrupting the electorate would have to be based on behavior so far outside the elastic norms of modern political conduct that it both demonstrated the successful candidate’s contempt for the democratic process and put the fair operation of democracy at risk.

Mistress-payoff election violations are too inconsequential (and too obvious a parallel to the Clinton debacle).  To figure at all in a serious impeachment case, those payoffs would have to be part of a larger pattern of  illegal or plainly illegitimate conduct designed to give the candidate an unfair advantage or to deceive the electorate.  Better yet, they should be part of a pattern of conduct that does not merely give advantage to a candidate, but places him under an obligation to some person or entity or foreign power whose interests are inimical to the United States.  In short, all the stuff that Robert Mueller is looking into.

The suspense continues….

The Consequences of Pardoning Manafort


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Today marked the second day of jury deliberations for the trial of Paul Manafort, the former Trump campaign manager. Manafort is being tried for 18 criminal charges for bank and tax fraud related to the time he spent working for a Ukrainian political party. Manafort refused to cooperate with the Mueller investigation, and it has been theorized that this decision was based on a belief that President Trump would pardon him if he were convicted.

Whether Trump will pardon Manafort is unknown; however he has used his pardon power politically in the past, and his former lawyer, John Down, apparently broached the subject of a possible pardon with Manafort’s lawyers. When asked whether he would consider pardoning Manafort, the President refused to say, but did comment that  “the whole . . .  trial is very sad.”

In an article written for the American Constitutional Society, entitled Why President Trump Can’t Pardon His Way Out of the Special Counsel and Cohen InvestigationsNoah Bookbinder, Norman Eisen, Caroline Fredrickson, and Conor Shaw write that “a prospective pardon of a witness in the Russia investigation might . . . constitute an obstruction of a criminal investigation . . . .” They are referring to section 1510 of title 18 of the the United States Code, which makes the “[willful endeavoring], by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator” a federal crime. If President Trump did, directly or indirectly, promise Manafort a pardon in exchange for his refusal to cooperate with Mueller, then he may not only be subject to criminal indictment but yet another article of impeachment as well.

5b3f9a219e2a102f008b47ed-750-375.jpgDrew Angerer/Getty Images