Other views on the Logan Act


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Last week, I wrote here and in Slate about the Logan Act, the 1799 statute that criminalizes certain kinds of contacts between U.S. citizens and representatives of foreign governments.  I argued that the Act is of doubtful constitutionality and that the Mueller team would be extremely unwise to base any indictment on it.

For those interested in more on the Logan Act, I commend you to two recent articles.  The first, by history professor Stephen Mihm of the University of Georgia, details the occasions on which the Act has been used to threaten persons who have made foreign contacts, but notes that it has never been the basis for a successful prosecution.  He concludes, as I did, that Robert Mueller would be well advised to steer clear of the Logan Act.  See https://www.bloomberg.com/view/articles/2017-12-08/the-logan-act-never-used-often-abused.

The second article worth reading is by Professors Eric Posner and Dan Hemel.  Regular readers will recall that my piece from last week began as a response to Posner and Hemel’s claim in the New York Times that the Logan Act remains valid and is a plausible vehicle for a modern prosecution.  In this second piece on the blog LawFare, Posner and Hemel expand on their earlier argument by laying out what lawyers call a “limiting construction” of the Logan Act that they contend would insulate it against claims of constitutional overbreadth.  Because Posner and Hemel are first-rate legal scholars, their piece is carefully researched and elegantly written.  It repays reading.

That said, I fear that I am unconvinced by their argument.  Among other considerations, there are far too many aspects of the Logan Act’s language that would require judicial limitation in order to render the statute acceptably specific.  I hope to explain my disagreement with Posner and Hemel in detail in an upcoming post.


Manafort in the Ukraine


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Special Counsel Mueller is protesting against Paul Manafort’s, Trump’s former campaign manager’s, petition to have his house arrest lifted pending his trial. Manafort was indicted for assiting in the Russian interference of the 2016 Presidential election — his charges include money laundering and failing to register as a foreign agent. Judge Amy Berman Jackson had ordered Manafort not to discuss his case in the media. Mueller, however, alleges that Manafort violated said gag-order by collaborating on a piece about himself and his efforts in the Ukraine for a Ukranian newspaper.  His alleged coauthor is Konstantin Kilimnik, a Russian with, Muller claims, ties to Russian intelligence.

The article at issue addressed Manafort’s efforts in the Ukraine, describing them as “pro-western.” However, an account of Manafort’s efforts in the Ukraine seem to contradict that narrative (see this article decribing Manafort’s activities in the Ukraine). At best, Manafort’s work in the Ukraine could be described as merely political, and at worst it may be seen as pro-Russia.

15MANAFORT1-master675.jpgThe New York Times/Eric Thayer


Donald Trump, Jr. & the Attorney-Client Privilege


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Donald Trump, Jr. was questioned at length on December 6, 2017 by the House Intelligence Committee concerning, among other things, his June 2016 meeting at Trump Tower with Russians offering dirt on Hillary Clinton.  He was also questioned about his discussions thereafter with his father concerning that meeting.  Donald Jr. refused to answer, claiming attorney-client privilege.  Congressman Adam Schiff (D-Calif.) expressed incredulity at this claim inasmuch as neither Trump Sr. or Jr. is a lawyer.  Donald Jr. responded by claiming that the privilege arose because there was a lawyer present.

NOTE: I wrote the following earlier today (12/7/2017) based on the understanding that there was only one lawyer present.  I see that it is now reported that lawyers representing both Donald Sr. and Donald Jr. were present.  If so, that changes the analysis significantly, even though it remains unclear whether a valid claim of privilege exists.  A solid analysis by Andy Wright of the problems presented by the two-lawyer scenario appears today on Slate and Just Security.

The most famous definition of the attorney-client privilege was provided by Dean J.H. Wigmore:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser
in his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) except the protection be waived.

Broadly speaking, the privilege applies to communications from a client to a lawyer in a situation where the client is seeking legal advice from the lawyer.  In order to be privileged, a communication must be confidential – meaning that it cannot be made in the presence of a third party, that is, someone who is not a client or employed by the lawyer to assist in representing the client.

In the Trump situation, the only way the attorney-client privilege could apply is if the lawyer was, at the time of the conversation, retained by both Trump Sr. and Trump Jr. to represent them.  It is possible, though profoundly inadvisable, for lawyers to represent two clients.  This is particularly true when the interests of the two parties may diverge.  If, for example, Donald Jr. did some things in the Trump Tower meeting that would subject him, but not his father, to legal liability, no sensible lawyer would agree to represent or advise both.  It seems quite unlikely that whatever lawyer was present in the conversation or conversations at issue here represented both Trumps.

If that was the case, then the whole conversation is outside the attorney-client privilege.  If the lawyer represented Trump Sr. only, anything Trump Sr. said would not have been said in confidence.  So no privilege would apply to Trump Sr.’s statements, or for that matter to anything said by anyone else present.  If the lawyer represented Trump Jr. only, the same would be true.  Anything Trump Jr. said would not have been said in confidence, so no privilege would apply to his statements or those of anyone else present.

The remarkable thing about the exchange between Rep. Schiff and Donald Jr. (at least as reported) is that  no one, including Schiff, seems to have had the legal knowledge or the fortitude to press the point.  It’s not surprising that a congressman in the midst of interrogating a witness, even one like Schiff who is a lawyer, would fail to recall all the details of the attorney-client privilege.  But Schiff was not the only lawyer-congressman in the room.  And congressmen have staff whose job it is to prepare for obvious turns of events like a witness claim of privilege.

Before he was allowed to leave the hearing, Donald Jr. should have been asked about the identity of the lawyer and the nature of the relationship between that lawyer and the Trumps.  The existence of an attorney-client relationship and its subject matter is not itself privileged.

If, as I strongly suspect, the facts would not support the existence of attorney-client privilege, the committee chair should have insisted that the question be answered.  A refusal should have produced a move for immediate sanctions against Donald Jr. It is possible, of course, that follow-up inquiries along these lines have been initiated by Schiff or someone else.

If not, letting this lie will be a clear signal of lack of seriousness by Republicans and Democrats alike.

The Logan Act: A Derelict Statute Robert Mueller Should Shun


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The following post first appeared today as an article on Slate.

The Logan Act is a 1799 statute that makes it a crime for a U.S. citizen to contact agents of a foreign government for the purpose either of influencing that government’s policies in disputes with the United States or of defeating U.S. policies. In a New York Times op-ed piece on Monday, Professors Daniel Hemel and Eric Posner argue that the Logan Act remains good law, despite the fact that no one has ever been successfully prosecuted under it. They contend that former national security advisor Michael Flynn violated it during the transition period by secretly contacting the Russian ambassador and asking that the Russian government not respond sharply to Obama administration sanctions against Russia for meddling in the 2016 election. They suggest that Trump son-in-law and senior advisor Jared Kushner is at risk of being indicted and imprisoned under the Logan Act. And they contend that, if Trump violated the Act, he would be impeachable on that ground.

I agree with the first two points. The Logan Act remains on the books and long disuse does not automatically invalidate it. Likewise, General Flynn did violate the statute. He and the other transition team officials mentioned in Flynn’s plea documents plainly sought to influence the policies of foreign governments or to defeat U.S. policies.

That said, much as I admire Hemel and Posner, they are wrong to think that Special Counsel Robert Mueller should consider indicting anyone under the Logan Act, and equally wrong to think that a Logan Act violation would be a tenable ground for impeaching a president. More importantly, their focus on a statutory obscurity like the Logan Act exemplifies an error a good many Trump opponents are making—fixating on the technical violation of a criminal statute as a basis for impeachment.

As for Mueller, he and his team have two intertwined objectives. The first is to investigate and prosecute crimes connected with Russian interference in the 2016 election. The second objective, unstated in his mandate but equally significant, is to ensure that the results of the investigation will withstand—at least in the eyes of rational observers—the inevitable allegations of political bias. Employing the Logan Act would defeat this crucial second objective.

There are good reasons why the Logan Act has not been successfully invoked in more than 200 years. The primary one is that it is violated routinely and enforcing it would contravene well-established norms of political behavior.

Consider, as but one example, the plethora of private persons and organizations interested in U.S.-Israeli relations. Lobbying groups like the American Israel Public Affairs Committee and J Street are routinely involved in disagreements between Israel and the United States. Sometimes they align with the policies of the administration of the day in Washington. Sometimes they oppose those policies as inimical to the well-being of Israel.  Regardless of the issue or the prevailing degree of comity between the U.S. and Israeli governments of any given moment, American Jewish groups are constantly in “correspondence or intercourse” with official representatives of Israel.

The same could be said of any number of other associations. Many Latino groups oppose current U.S. immigration policy. Does anyone seriously suppose that representatives of such groups should be criminally prosecuted if they met with, say, the Mexican ambassador, and urged the Mexican government to continue opposing Trump’s infamous wall? Amnesty International and Human Rights Watch vigorously opposed the U.S. practice of torture and so-called “extraordinary rendition” during the Iraq War and its aftermath. Should American members of these organizations be prosecuted if they met with representatives of foreign governments urging them, in the words of the Logan Act, to “defeat the measures of the United States.”

Criminal prosecutions for this ordinary form of American political behavior would excite clamorous public objections, invite comparison to efforts by authoritarian regimes like Russia to suppress domestic contact with Western open society groups, and draw immediate constitutional challenge on either First Amendment or overbreadth grounds. The fact that in Flynn’s case the American contacting foreign agents had quasi-official status as a member of a presidential transition team made it rather more likely that the meddling would have some practical effect. But transition contacts with foreign governments, complete with signals of varying degrees of directness about impending policy changes, are hardly unprecedented, even if they are poor form. And it’s hard to see why a member of a transition team should be prosecuted when others never have been.

This is not to say that contacts between members of the Trump team and Russia during the transition period were necessarily innocent. They may end up as components of some criminal charge. But Mueller and his people are not likely to complicate any case they bring by basing it on a controversial and constitutionally doubtful relic like the Logan Act. Doing so would be a gift to those who seek to question the legitimacy of their work. And these guys seem unlikely to score that kind of own goal.

For similar reasons, a Logan Act violation is not a plausible impeachable offense. It is a crime, yes, but, as the Clinton affair taught us, not all crimes are “high crimes and misdemeanors.” Conversely, not all “high crimes and misdemeanors” are violations of the criminal code. For example, James Madison maintained that abuse of the pardon power was impeachable. Edmund Randolph thought the same of receiving foreign emoluments. George Mason, who proposed the phrase “high crimes and misdemeanors,” was most concerned with what he termed “attempts to subvert the constitution.” Speaking generally, an impeachable offense is conduct that is both grave and involves genuine danger to the constitutional order. The danger can arise either if the conduct itself endangers constitutional order—as for example Nixon’s efforts to use intelligence and law enforcement against political enemies—or if the conduct indicates that the president is personally unfit to continue service. A violation of the Logan Act—which has been virtually ignored without consequence for two centuries—just doesn’t cut it.

Of course, if Trump were shown to have “colluded” with the Russians to rig the election and if, in gratitude for the help, he made policy concessions of some sort, either during the transition or later, the concessions could be part of an argument that Trump’s pre-election behavior constituted an impeachable offense.  Founder George Mason observed that corrupting the “electors” – by which he meant members of the Electoral College — would be impeachable.  In the social media age, one could fairly argue that some kinds of cooperation with a foreign power to affect voter decisions is a modern equivalent.  But in such a case, the impeachable offense would be the election meddling in collusion with a hostile power and the giving of the quid pro quo.  Adding the Logan Act into the equation would merely confuse the issue and weaken the case.

The fact that brilliant legal scholars like Hemel and Posner are arguing for reanimation of a legal derelict like the Logan Act seems likely to reinforce two themes regularly advanced by Trump’s defenders—first, that Trump opponents are mining the federal criminal code for nitpicky crimes that can be stretched to cover normal political behavior, and second, the popular misconception that impeachable “high crimes and misdemeanors” must be indictable crimes.

The reality is that, however thorough and professional Mueller’s team may be, they have a limited brief—to investigate the Trump campaign’s involvement with Russian interference in the 2016 election. They are turning up a lot of dodgy behavior, but it is entirely possible, indeed likely, they will never produce indisputable evidence that Trump himself committed the kind of plain, unambiguous crime that people across the political spectrum will accept as an impeachable offense.

Sure, it’s possible that Mueller will find that Vladimir Putin has had leverage over Trump for years, or that the efforts of Trump’s bumbling crew of children, in-laws, and campaign sycophants to cadge Clinton dirt from the Russians rendered Trump subject to Russian blackmail. But face it—that kind of dramatic, unambiguous outcome is improbable. The current wishful obsession with Mueller’s work merely invites crushing disappointment among Trump’s opponents and cries of “I told you so” from his defenders. What’s more, a narrow focus on pre-election conduct in a way that relies on dubious laws like the Logan Act diverts attention away from what ought to be a primary focus of any effort to impeach Trump—his near-daily post-election assaults on the norms of American constitutional order. It is that behavior that makes Trump a constant danger to the Republic. And it was to defend against precisely that kind of danger that the Founders gave us the power to impeach a president.

Frank Bowman

“Impeachable Offenses?” on Canadian TV

Over the past month, I’ve had a number of opportunities to appear on the Canadian network CTV News commenting on developments in the Mueller investigation.  It’s an interesting experience, starting with the fact that the interviews are conducted through the FaceTime app on my I-Phone.  For any blog readers interested in how that looks, here are links to the most recent appearances.

December 5, 2017 – on the Trump tweet about why he fired General Michael Flynn – link

December 1, 2017 – on General Michael Flynn’s guilty plea

November 14, 2017 – on the appearance of Attorney General Jeff Sessions before the House Judiciary Committee –  https://www.facebook.com/CTVNewsChannel/videos/1601076419953683/

November 7, 2017 – on the testimony of former Trump campaign aide Carter Page before a congressional committee – https://www.facebook.com/CTVNewsChannel/videos/1594356617292330/




The Flynn guilty plea — don’t break out the champagne just yet


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When news broke this morning that Michael Flynn, former National Security Adviser, had pled guilty to lying to the FBI, was cooperating with the Mueller probe, and was prepared to testify that Trump ordered him to “contact the Russians,” the stock market dropped 350 points. Presumably  traders feared that Flynn’s cooperation would lead directly to impeachment proceedings and all the attendant governmental disruption and economic uncertainty.

After an hour or two, Wall Street’s pulse steadied and the market went back up. There is a lesson for the rest of us in this financial spasm.

First, Flynn’s decision to flip – to plead guilty to a felony violation of 18 U.S.C. 1001 and to enter a cooperation agreement with the government – is potentially a very big deal and potentially very bad news for Mr. Trump and those close to him.  Flynn was an early supporter of Mr. Trump, was a campaign insider, and was one of the first people to whom Trump publicly offered a position after the election. Flynn had extensive contacts with Russian officials, including Vladimir Putin, before he joined the Trump camp. We know, and Flynn has now officially admitted, that he had contact with high Russian officials such as Ambassador Sergey Kislyak after the election.

Therefore, if the Trump campaign was actively colluding with Russia to affect the 2016 election, it’s a fair bet that Flynn might know about such things. And that would be a big deal.

But this is the Trump campaign we’re talking about here.

In an ordinary presidential campaign, overtures to a traditionally hostile foreign power would be inconceivable. If such a thing  were to occur, it would only be after careful consultation by the candidate with his or her senior foreign policy advisers — which, for Trump, would have included Michael Flynn. But if we know anything about the “Trump campaign,” it is that it had none of the attributes of a normal campaign apparatus.  Little organization, no meaningful subject matter expertise, and no clear lines of authority. It was, at its core, just the Trump family and a ragtag of opportunistic second-raters, many of whom — notably Donald Trump, Jr., George Papadopoulos, and Carter Page — were prone to thoughtless freelancing in foreign policy matters far beyond their competence.

Therefore, even if some Trumpists were colluding with both hands, it’s entirely possible that Flynn would know nothing at all about it.

Indeed, among the many notable features of Flynn’s plea agreement and the accompanying statement of offense is the complete absence of any reference to any event prior to the November 2016 election. Flynn pleads guilty only to lying about contacts with the Russian ambassador in December 2016.  Additionally, in the statement of offense he admits to lying about December 2016 contacts with foreign officials (including Russians) concerning an Egyptian effort to secure UN Security Council condemnation of Israeli settlements, and about his lobbying work for the Turkish government.

Moreover, the report that spooked Wall Street — that Flynn will testify that Trump directed him to “contact the Russians”  — doubtless seemed earthshaking because people read it to mean that Trump directed Flynn to contact the Russians about influencing the election.  But that reading is not supported by the plea documents. Flynn admits that “a very senior member of the Presidential Transition Team” (later reported to have been Jared Kushner) directed Flynn to meddle in diplomacy on the Egypt-Israel Security Counsel resolution, after the election and before Trump took office.  If true, and even if Trump himself passed the instruction on to Flynn through Kushner (which seems quite probable), that’s extremely poor form in a president-elect, but without more I can’t see how it is either criminal (except under the never-enforced Logan Act) or impeachable.

So, if Flynn’s plea is to matter to anyone other than himself, it will be because he has tales to tell Robert Mueller that none of us yet know about.  Despite all the feverish speculation, no one other than Mueller’s people and Flynn himself has any real idea what those tales may be. Moreover, the fact that, even though Flynn’s plea had been foreshadowed for weeks, Mr. Trump took no dramatic step like firing Mueller or pardoning Flynn speaks volumes.

An ordinary president, one who felt constrained by traditional norms of American political life, might refrain from doing such things even if he knew that Flynn could damage him severely.  Mr. Trump, one need scarcely say, is not an ordinary president.  He is rarely even aware of presidential norms and he violates those he is aware of with positive glee.  Moreover, he is a congenital risk-taker.  So fear of the sort of backlash that followed Nixon’s Saturday Night Massacre firing of Archibald Cox will worry him less than it would an ordinary man.  In the last two years, he has violated every rule of American political life and ignored every warning about the probable catastrophic consequences of such behavior.  And yet, here he is, President of the United States.

Consider for just a moment this question: If Flynn has a smoking gun that could plausibly bring down the Trump presidency or produce major criminal indictments against anyone Trump really cares about — a tiny circle, I agree, but one that surely includes himself and perhaps his natural children — do we really imagine that Mr. Trump would not long since have reacted spasmodically to news of Flynn’s impending cooperation?  Is it realistic to think that if Trump genuinely believed Flynn to present a deadly danger that he would not have gambled on a Mueller firing or a round of pardons?

General Flynn surely does have tales to tell, or Robert Mueller would not have made so favorable a plea agreement with him.  And what he will say will doubtless help unwind the Russia story and do no good to the reputation of Mr. Trump and his intimates. But Mr. Trump’s forbearance strongly suggests that Flynn’s revelations will not be of the explosive variety so many are confidently predicting.

If there is a road to Mr. Trump’s removal from office, it is going to be a long and tortuous one.  The Flynn plea is but one waystation, and will likely provide no shortcut to the ending many crave.  In short, until we know more about exactly what Mr. Flynn will say, people should moderate their expectations.

Frank Bowman

A Look Back at the Clinton Impeachment


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While rummaging around in some old files, I came across the item below, originally published in the December 22, 1998 edition of The Champion, the magazine of the National Association of Criminal Defense Lawyers.  In it, assuming the character of a congressman voting on articles of impeachment for President Bill Clinton, I laid out my views about the events of that turbulent period.  Readers, particularly those whose political memory doesn’t extend back that far, may find it of some interest. For me, it serves as a useful reminder that a credible case for the impeachment of Mr. Trump must steer clear of the politics of personal destruction that rendered the Clinton impeachment effort illegitimate.

Against Impeachment: An Imagined Argument in the House Judiciary Committee

Editor’s Note: On October 12, 1998, the faculty at Gonzaga University Law School staged a mock impeachment hearing before the House Judiciary Committee. Professors played the roles of Committee members arguing for and against forwarding the full House three proposed Articles of Impeachment [President Clinton] with perjury, obstruction of justice, and abuse of power. Professor Frank Bowman spoke in the character of a congressman opposed to impeachment. His remarks follow.

When I began thinking about what I would say here, I was angry. Angry mostly with two monumentally selfish men — one without honor, the other without judgment. Angry with a President, who with all his gifts — talent, intelligence, charm, and the ultimate gift of power given by the people of this country — could not restrain his sexual appetites, and then — when the day came that his failure was discovered, lied — and lied repeatedly — to cover it up.

Angry, equally, with the President’s pursuer, a man of nearly equal gifts, who has proven to be a smiling keyhole-peeping zealot, smugly convinced of his own righteousness, using the law’s tools, but refusing to be bound by its limits, fixated blindly on his quarry, determined to bring him down at last by whatever means.

Two men, locked together, clawing at one another, each so obsessed with personal vindication that neither has spared a thought for the damage they do, day by day, to the country they claim to serve. In the end, neither of them can win. Indeed both have already lost. Both crave the favorable judgment of history.

Neither will receive it. No matter what we do here, whether the President is removed or serves out his term, William Clinton and Kenneth Starr are already condemned to spend the remainder of their lives in a very public purgatory: the President disgraced, his adversary despised, both of them endlessly — and vainly — seeking to justify their actions of the past year. They are lost men, though they seem not to know it, and it is pointless to be angry with them.

The facts are that the Independent Counsel has made his referral, and the President will not resign. So the resolution of this great tragedy is no longer in their hands, but in ours. How this crisis in the life of the Republic should be resolved depends a good deal less on arguments about who they are, than on a choice we must make about who we are, as a nation and as a political community. Who did the Founders intend us to be? Who have we been throughout our history? What kind of public life together do we want to have for our lives and the lives of our children?

To begin at the beginning, we Americans are creatures of our written Constitution. If the ancient Israelites were the People of the Book, we are the People of the Constitution. The Constitution gave us a particular kind of government, with a unique and particular sort of chief executive — a President whose power does not rest on a parliamentary majority, but arises by direct grant from the popular vote of all the people. A President who serves, not at the pleasure of the legislature, but for fixed terms. A President who can be removed only one way, by impeachment for the commission of “treason, bribery, or other high crimes and misdemeanors.”

Those who favor the removal of this President are prone to abbreviate the constitutional language, to speak only of the rather mysterious phrase “high crimes and misdemeanors,” without mentioning the fact that the Constitution has given us two concrete examples — treason and bribery — of the type of offense the Framers intended to be proper grounds for impeachment. When the Constitution speaks of “treason, bribery, or other high crimes and misdemeanors” it is saying that a President may be removed if he commits treason, takes or gives bribes, or commits other acts similar both in type and seriousness to bribery and treason.

From this we can fairly infer two things:

First, a “high crime or misdemeanor” is an offense of the most serious kind. Treason is punishable by death. And bribery is everywhere thought of as among the gravest of non-violent offenses.

Second, impeachable offenses are public crimes, crimes that strike at the heart of the democratic order. As Alexander Hamilton said in Number 65 of The Federalist, they are “of a nature which may with peculiar propriety be denominated POLITICAL [and he capitalized the word “political”], as they relate chiefly to the injuries done to the society itself.”

In the present case, the President had an adulterous affair, and then he lied to cover it up. In my view, neither adultery nor lying to conceal it compares even remotely in seriousness to treason or bribery. Indeed, though adultery is often, and lying about it under oath always,criminal, and both occur routinely in every jurisdiction in the land, neither is ever prosecuted. People cheat on their spouses every day. And they lie about it, in divorce court, in child custody proceedings, in sexual harassment cases. And while they may lose their civil lawsuits, they are never prosecuted for perjury about their sex lives. In short, in every courthouse across America, adultery and its concealment rank below driving without a license and overtime parking in the amount of resources the nation’s prosecutors and judges are willing to devote to stamping them out.

Two Errors

But, I hear my learned Republican friends protesting that this is different. The President is the Chief Executive, sworn to support and defend both the Constitution and all the laws of the land. When he breaks the law, he violates a public trust. If the President breaks the law, and we do not impeach him, then, say my Republican friends, we “abandon the rule of law.” This argument rests on two fundamental errors.

First, the argument assumes that impeachment is the only remedy the law provides for a President who breaks it. Not so. As Alexander Hamilton said of those who actually are impeached, “After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.” The same is true of those who commit crimes, but are not removed from office on that account.

In other words, a refusal to impeach does not mean a refusal to punish. If the President did indeed commit perjury or obstruction of justice, nothing bars his prosecution for those offenses once he leaves office. It is remarkably telling that those who profess such deep concern about preserving the “rule of law” are so unwilling to let the law’s ordinary processes work. The truth is that the President’s opponents shun the ordinary process of law in favor of the uniquely political process of impeachment, because they rightly fear that no ordinary prosecutor would indict this President and no ordinary jury would convict him.

The second flaw in the contention that failure to impeach equals abandonment of the rule of law is that it ignores our most fundamental law: the Constitution itself. The Constitution does not say that any criminal violation, or even any felony, by the Chief Executive is grounds for impeachment. Had the Framers wanted to say that, they certainly knew how. Their numbers included some of the finest lawyers and legal draftsmen in our history. The Constitution says that impeachment follows only from the commission of especially serious, peculiarly public crimes — “treason, bribery, or other high crimes or misdemeanors.” My conservative friends — who are usually so insistent on giving the Constitution its plain meaning — want to bootstrap their way around this inconvenient language by contending that the President’s official obligation to enforce the law renders any significant violation of the law by the President himself a breach of trust grave enough to require impeachment. To agree with them is to say that, for a President, “high crimes and misdemeanors” means nothing more than any violation, or perhaps any felony violation, of the criminal code.

In sum, I cannot consent to the impeachment of this President on these charges because to do so would be, if not absolutely unconstitutional, at least anti-constitutional, in the sense that it would run contrary to what I think the Founders intended. The crimes alleged against the President are neither sufficiently grave, nor sufficiently “Political” — as Alexander Hamilton conceived the term — to merit impeachment. As one of our House colleagues recently said: “The President betrayed his wife. He did not betray the country. God help us if we cannot tell the difference.”

And yet, like my Republican friends, I am profoundly troubled by a President who lies under oath, however private the subject matter of the lie. I am profoundly troubled by a President who lets his subordinates lie for him. Who silently condones the conduct of his lawyers when they pass misleading information on to a court. If this is not impeachable behavior, it is certainly close. I am indeed sufficiently troubled, and feel sufficiently betrayed, by my President, that I might almost swallow my constitutional scruples and vote for impeachment, were it not for the fact that I believe to do so would compound the injury that Mr. Starr and Mr. Clinton have together inflicted on the country.

In the end, I cannot vote for impeachment because to do so would place the stamp of approval on the increasing viciousness of our politics. It would sanction the incestuous marriage of law and politics that has transformed all holders of high office into the automatic targets of a secular inquisition. I detest what President Clinton has done. I fear what the process that pursued him will do to what is left of our public life if it is not stopped.

The President’s opponents say, with every indication of sincerity, “It is not the President’s adultery that concerns us. It’s the lying. The lying in the deposition. The lying in the grand jury. The lying to the public.” Curiously, perhaps, I find the reverse to be true. What is to me incomprehensible and nearly unforgivable is the adultery itself. The betrayal of the man’s wife and daughter. The selfishness and sheer reckless stupidity of seeking physical gratification with this young woman in this place, not just once, but over and over again. But being a cad and a fool are not impeachable offenses. And so we hear about the perjury.

Original Sin

The problem is that while the adultery was the President’s failing alone, an original sin without which nothing that has happened since could have happened, the crimes for which his opponents would impeach him are the lies about the sin. And those crimes were largely manufactured for the express purpose of destroying the President. I know, and I hear some of my colleagues saying, it was Bill Clinton, not his opponents who chose to lie. That is true. These crimes of falsehood were “manufactured” not in the sense that the President did not commit them. They were manufactured because, once evidence of the original sin began to surface, it was the constant project of the President’s opponents to place him in situations where either a lie or the truth would destroy him.

Consider the Paula Jones lawsuit. Whatever its substantive merits, it was made possible by massive financial support from an ultra-conservative legal foundation, support one suspects did not arise because of a deep commitment to the rights of women or expansive interpretations of sexual harassment legislation. We now know that Linda Tripp met both with Starr’s prosecutors and Paula Jones’ lawyers before the President’s deposition in the Jones civil suit. The Jones lawyers sprung the Lewinsky questions on the President without warning in the midst of his deposition.

For its part, Starr’s office sprang into furious, but entirely secret, action: On January 12, 1998, Linda Tripp met with Starr’s people, who took her illegally recorded conversations with Lewinsky, and immediately wired her for more chats with her “friend.” On January 15, two days before the President’s scheduled deposition in the Jones case, Starr secretly obtained from Janet Reno permission to apply for expansion of his jurisdiction to investigate what he was already investigating. On the 16th Starr secretly secured expanded authority from the Court. On the same day, the day before the President’s deposition, Starr virtually abducted Monica Lewinsky, holding her incommunicado in a Washington area hotel, threatening her with decades of prison time if she did not cooperate and telling her that any cooperation deal was off if she called her lawyer. It was only after the President had testified, and told his first fatal lie, that Starr’s new focus was publicly disclosed. The implication is unmistakable. Starr’s office wanted, nay desperately hoped, that the President would lie. Because then they would have him — at long last. And so they scurried about in the dark, praying the President would fall into their trap.

It is easy to condemn the President for lying in the Jones case, and I certainly do not condone it. On the other hand, given that he had committed adultery with a woman half his age, what were his choices? He could tell the truth, and destroy his marriage, his relationship with his daughter, his Presidency, and not incidentally the life of Ms. Lewinsky. (For her life truly is destroyed. For the rest of her life, and for as long as this Republic lasts, she will be a dirty joke, an obscene footnote.) Or he could lie and hope for the best. He chose to lie, thus transforming a sin into a crime and giving his enemies the weapon they needed.

Since the initial lie, everything else has unfolded with miserable inevitability. Having lied once, the President had few options. To admit the lie was to confess perjury. To persist in denial was to court charges of obstruction. The dilemma came to a head when he was subpoenaed to the grand jury. Here was the second manufactured crime. It is against Justice Department policy to subpoena targets of an investigation to testify. The Department recognizes that it is unfair to force a target to assert his right against self-incrimination in front of the very same grand jury considering his indictment. However, Mr. Starr has never felt himself bound by the constraints that govern ordinary prosecutors. He knew that for political reasons, the President could not refuse to appear. He also knew that, to that point in his investigation, all he had was adultery and evasive answers to questions in a legally dubious civil lawsuit. So he set the perjury trap.

Once before the grand jury, the President could not possibly invoke his Fifth Amendment rights. Having agreed to testify, whatever he said would be used as evidence of perjury. If he denied the adultery, that would be perjury. If he admitted it, that would be confessing he committed perjury in the Jones case. So he danced, stuck to his silly definition of sexual relations, probably lied again, and colluded in the manufacture of yet another charge against him. And here we are.

All this having been said, my disappointment in this President is so great that, if I thought his downfall would end the story, allowing the country to move forward and heal its wounds, I would consent to his removal. But I cannot see that happy ending.

We, all of us, have created an engine for the destruction of public figures. It has grown slowly, its many components, often beneficial in themselves, falling together largely by accident. But it is upon us, it is devouring us, and it must be stopped.

We have passed an ever-more-comprehensive set of laws that make virtually every sort of unpleasant, unethical, or merely boorish behavior a legal cause of action. We have approved rules of civil discovery that allow intrusive questioning into the most collateral matters. We have laws against perjury and false statement that are seldom used, but always available. We have an independent counsel statute that confers on unelected and ungovernable proconsuls the power to pursue our highest public officers for any real or suspected transgression of the monstrous federal criminal code. We have well-funded advocacy groups at both extremes of the political spectrum who are beyond political control and who will use any available legal or public relations tool to demonize and destroy those they perceive as their enemies.

In combination, these many apparently unrelated developments permit the extremists of both parties to pull down their opponents, with a tacit nod from those of us who claim to be moderates. The strategy is plain. Find a mistake or personal weakness. If it is already criminal, call for an independent counsel. If not criminal yet, file a civil lawsuit or start a congressional investigation. If no direct evidence of criminality is unearthed, get the target under oath. Force the victim to admit indiscretions that will ruin him, or to lie and commit perjury.

The casualty list from this escalating cycle of political warfare is growing. As is the desire for tit-for-tat revenge. John Tower, Jim Wright, Clarence Thomas, Henry Cisneros, Newt Gingrich, and now the President himself. This old Republic has survived many things — world wars and civil wars, social upheaval and civil unrest. I am not sure it can withstand the prolonged criminalization of political life. From time to time truly bad people enter public office and must be removed. But the focus of public life cannot be on the private character of public people.

Ideas Not Personalities

The flaws in the private character of this President have been of the more obvious and titillating kind. But few lives could withstand the relentless scrutiny to which his life has been subjected. We, all of us, have to stop. We have to give up the notion that we profit by the personal devastation of our political opponents. We have to abandon the idea that political disagreements are the occasion for a moral jihad. We have to relearn one of the central tenets of representative democracy — that our long national conversation is about ideas, not personalities, that we can disagree with one another on the most fundamental points without hating each other, without seeking one another’s destruction.

In the end, this President should not be impeached, not because he deserves salvation, but because we do.

Postscript: At the conclusion of the mock hearing, the audience of students, faculty and members of the public, voted 109-90 against approving the articles of impeachment against the President.

Kushner Talks with Mueller


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Earlier this month Jared Kushner, President Donald Trump’s son-in-law and advisor, was questioned by special counsel Robert Mueller’s team of investigators.  This questioning was apparently related to the prosecution of former national security advisor Michael Flynn. Flynn’s lawyers recently stopped communicating with Trump’s, leading some commentators to believe that he is planning to inform on other members of the Trump campaign. It is unclear how Kushner’s interview impacts that theory; however, Kushner was present for the Russian lawyer meeting at Trump tower, and, if he cares to share, may have important information on collusion between Russia and the Trump campaign.

104740519-RTS1DWVH-kushner.530x298.jpgJonathan Ernst | Reuters


Trump Walks Away from SoHo Hotel


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The Trump Organization recently received a buyout deal to walk away from Trump SoHo — one of its hotels. President Trump’s lawyers say that in so doing, Plaintiffs who are suing Trump for violation of the Foreign Emoluments Clause, many of which are competitors of Trump SoHo, will lose standing for their lawsuit. The Foreign Emoluments clause is something which has been considered extensively on this blog. However, if the Plaintiffs lose their standing, confirmation of the violation will be substantially less likely.

trumpdonald_101717gn2_lead.jpgGreg Nash


How Moore Impacts Impeachment


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President Trump continues to support Roy Moore‘s Senate candidacy, despite continued allegations of his pedophilic behavior. This has the potential to impact impeachment in two ways. The first is through the public’s reaction. If Roy Moore causes enough voters to turn against the Republican party, then the Democratic party stands to gain a Congressional majority. Though a simple majority is not enough to impeach Trump, it certainly makes impeachment more likely. Which brings us to the second factor: the Republican Party’s reaction. Should Republicans, who have been distancing themselves from Moore, view Trump’s support as a political liability, they may begin to shift away from the President as well. The combined effects of loss of a congressional majority and shrinking Republican support, would make impeachment substantially more likely.

Roy-Moore-750x500.jpgJulie Bennett