Impeachment in the States: Missouri Governor Edition, Part 8 (More on impeachment for pre-office conduct)

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By Frank Bowman

I’ve written before on this site expressing the view that a Missouri state official may constitutionally be impeached for conduct prior to taking office. Last week, former Chief Justice of the Missouri Supreme Court Michael Wolff expressed the contrary opinion in an op-ed in the St. Louis Post-Dispatch.  As much as I respect Judge Wolff for his legal acumen and his many contributions to this state, on this point at least, I have to respectfully disagree.

Consequently, I wrote a rebuttal explaining why impeachment for pre-office conduct is surely permissible which was published in the Post-Dispatch yesterday.  Here’s the link to the article.  And it is reproduced in full below.

Yes, the Governor Can Be Impeached Right Now

Michael Wolff, former Chief Judge of the Missouri Supreme Court, recently wrote that, Governor Eric Greitens cannot constitutionally be impeached for misconduct committed before he assumed office.   

 I admire Judge Wolff immensely. But I respectfully disagree.

First, the Missouri constitution places no time limit on impeachable conduct.  It defines impeachable behavior as “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.” 

Some items on this list — “willful neglect of duty, corruption in office … or oppression in office” — unmistakably refer to official misbehavior.  Several others are probably meant to have an official connection. “Incompetency” probably refers either to a debilitating mental breakdown or an evident inability to perform official functions.  Similarly, “habitual drunkenness” before, but not during, an officeholder’s term can’t possibly be a sound reason to impeach.

Likewise, the phrase “any offense involving moral turpitude or oppression in office” could be interpreted to require that the words “in office” modify both “moral turpitude” and “oppression.” Then the phrase could be read like this: “any offense involving moral turpitude [in office} and oppression in office.” That’s at least plausible.

But Jim Layton, former Solicitor General of Missouri, points out that, at the time this constitutional impeachment language was written in 1945, “oppression in office” was, and long had been, a specific statutory crime. Therefore, the phrase “oppression in office” was just the name of one offense for which an officeholder could be impeached. Thus, it is very unlikely that the words “in office” were intended to reach back up the sentence and limit the impeachability of an “offense of moral turpitude” to crimes committed during an officeholder’s term.

But even if we didn’t know this clarifying fact about old Missouri law, the real textual problem for Judge Wolff’s argument is that the constitutional list of impeachable conduct starts with the words “crimes [and] misconduct,” and those terms aren’t modified in any way that limits them to the period following assumption of official duties.

Most importantly, as a matter of good governance and common sense, the notion that a governor can’t be impeached for conduct that predates his inauguration can’t be right.  If it were to be discovered that a governor had bribed election officials to help secure election, no one would suppose that the governor couldn’t be impeached on that basis, even though the conduct occurred before he took office.

Governor Greitens’ defenders might concede that pre-inaugural misconduct can sometimes count, but insist that impeachment is limited to conduct directly related to the electoral or appointive process by which the person impeached gained office. 

But that’s not what the Missouri constitution says.  And such a rule would be irrational.  Suppose a sitting governor accepted bribes while he occupied a previous state position, or committed murder six months before his election.  Would anyone seriously suggest that such a governor could not be impeached and removed?  The necessity of impeachment is made clear by the multiple Missouri cases flatly holding that the only means of removing a constitutional officer (such as the governor) is impeachment, even if the officer has also been convicted of a crime. In short, if we can’t impeach a criminal governor, we’re stuck with him until his term expires, even if he’s sitting in jail as a convicted felon.  That can’t be right.  And the Missouri constitution does not require that result.

Finally, Judge Wolff notes that there have been no federal impeachments for pre-office conduct.  That’s true, but irrelevant.  Missouri chose not to adopt the “high crimes and misdemeanors” formula of the U.S. constitution. In Missouri, the words of the Missouri constitution govern. Moreover, almost all federal impeachments have been of judges, and grounds for their removal are arguably limited to misconduct in office by the constitutional guarantee that they will remain in office “during good behavior.” Finally, no serious student of federal impeachment law doubts that federal officials could be removed for pre-office behavior if sufficiently serious.

The question for the Missouri House is not when the governor may have committed offenses, but whether such offenses fit within the words of the Missouri constitution and are serious enough to merit impeachment.

The Tragedy of James Comey

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By Frank Bowman

Young lawyers become prosecutors because they want to be the good guys.  They want to become the only kind of lawyer whose obligation is not to promote the interests of sometimes morally compromised clients, but only to seek the truth and do justice.  They also quickly understand that with the mission to seek justice comes immense power — to expose evil, to root out corruption, to protect the weak, to vindicate the wronged.  Young prosecutors who make it a career begin to see themselves as members of a kind of warrior priesthood, paladins of light in an ethically murky and sometimes blackly malign world.

I know this because many years ago I was one of the young postulants of this priestly caste, and I spent fourteen of my seventeen years in practice as either a state or federal prosecutor before becoming a teacher.  As corny as it may sound, in some deep place I remain a member of my old order.  I honor its mission.  I cherish its traditions and unwritten codes.

But those who truly understand what it is to be a public prosecutor in the American democracy recognize that membership in the order comes at a price, and accompanied by a particular set of risks.

The price is two forms of self-denial.  First, a commitment to relative asceticism — career prosecutors can certainly live a comfortable middle-class life, but so long as they remain in government, they will never see the vast riches of elite private practice.  Second, but more importantly, prosecutors must abide by a set of professional norms that elevates the pursuit of justice, respect for individual rights, and protection of the justice system over personal fame.

As a federal prosecutor, you are empowered to hunt those suspected of crime, but you are obligated to wield the immense resources at your disposal with restraint and in strict accordance with the rules.  You are granted many tools to unearth evidence, but you must analyze what you find dispassionately.  While an investigation is ongoing, you may not speak about its details publicly, no matter how high-profile the target and how intense the interest of the public, the press, or elected politicians.

You are commissioned to prosecute the guilty, but may not ethically subject anyone, however dodgy you personally may think them, to the risk of criminal conviction unless you believe the evidence proves guilt beyond a reasonable doubt. Therefore, if at the close of an investigation you indict, you announce the fact and thereafter do your talking in court, not on the courthouse steps or in private leaks to reporters.

If the evidence you collect does not merit indictment, you don’t proceed.  Then, whatever your personal feelings about that may be, you say nothing, or at most make an unadorned announcement of the fact.  Your job is to prosecute crime, not to make public assessments of personal character.

In short, the job is about justice.  It’s not about you.

Prosecutors can be heroes.  But it is the self-abnegating heroism of the warrior-monk, not the self-promoting heroism of the solo knight errant who rescues maidens and slays dragons in the hope of having bards compose ballads extolling his fame.  Unsurprisingly, however, people drawn to prosecution by the promise of action in the service of virtue can be seduced into seeing themselves as the second kind of hero.

A peculiar feature of a prosecutor’s life is that, although he is formally only a cog in a notably rule-bound machine, his day to day experience is of immense personal authority.  This is particularly true in court.  When you rise in the well of a courtroom to represent the United States, you are very much on your own.  The questions you ask, the words you choose, the arguments you craft are yours and no one else’s.  Even in making the decisions to bring or dismiss or plea bargain a charge, in all but the rarest cases, the individual prosecutor’s judgment will be dispositive.

One of the risks of becoming a career prosecutor is that, because you are so often in the right and so often confront people who obviously did wrong, in time you can begin to mistake the perpetual obligation to be right with inevitably being right. And as one rises in rank, filling offices in which one commands the resources and speaks with the voice of the United States Department of Justice, the deference that comes with such roles is immense.

It requires great discipline, deep self-awareness, and a strong measure of humility to keep remembering that the job is about justice and not about you.  And that doing the job means following the rules, formal and informal, of the prosecutor’s code, even if doing so may seem unwise to you personally in the heat of the moment.

Jim Comey is an honest man, whatever the prevaricator in the White House may say.  But he has not always been a wise one. And since the second half of 2016, he has repeatedly made grievous errors that very probably changed the history of America and the world, errors he might have avoided if he had adhered to the rules and longstanding norms of the United States Department of Justice.

Comey’s first error, now somewhat obscured by later ones, was the choice to hold a press conference in July 2016 to announce and explain in detail the conclusions of the FBI about the investigation of Hillary Clinton’s email practices while Secretary of State, including its decision not to recommend an indictment.  Note what I just said — “conclusions of the FBI.”

Comey candidly admitted at the beginning of his press conference that he had not consulted the Attorney General about the recommendations he was about to discuss or the opinions he was about render.  And he knew perfectly well how aberrational this behavior was.  He said:

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

The FBI is an investigative agency subordinate to the Attorney General.  It has no independent authority to bring or not bring indictments. Deliberations about whether to bring an indictment sometimes include FBI representatives, but the final decision rests exclusively with the prosecutors of the Justice Department and ultimately with the Attorney General.  And those deliberations are conducted in private, before the final decision is made, not in the public square.

To anyone with experience in the American criminal justice system, Comey’s arrogance was simply flabbergasting. By announcing publicly what he had decided the outcome of the Clinton case should be before discussing his opinion with the Attorney General or her authorized designates he blithely assumed for himself a power no FBI Director has.

Worse, Comey’s expansive statement at the press conference flagrantly violated the Justice Department norm against discussing the details of investigations that do not result in indictment.  That kind of exposition is disfavored because it always risks besmirching the character of the uncharged target of the investigation, while providing no forum in which to rebut the inevitable stain of having drawn prosecutorial scrutiny in the first place.

When the Department breaks with that norm, the decision to do so is made by the Department’s senior leadership, not by the FBI, which is, I repeat, merely a subordinate investigative arm of the Department.  And careful thought goes into what should and should not be said.

Therefore, when Comey chose to march up to the microphones and provide a dog-and-pony show about the Clinton investigation, complete with his personal opinions about her “extreme carelessness” and the like, he committed two cardinal sins: First, he ignored the fact that, as FBI head, he was a cop, and no longer a prosecutor — that the Attorney General, not the FBI decides who gets indicted. Second, he ignored the norm that the Justice Department doesn’t “explain” decisions not to indict when the effect of the explanation will be to smear the person not indicted.

His excuse — that the “American people deserve .. details [of the FBI’s investigation and conclusions] in a case of intense public interest” — was both arrogant and in some measure disingenuous. By announcing the FBI recommendation not to indict, he effectively preempted Justice Department prosecutors.  Once the FBI Director declared that there was no prosecutable case, prosecutors could hardly have decided otherwise.

But that, of course, was not the real objective of the Comey statement.  The senior leadership of the Justice Department would surely have concurred in the recommendation not to prosecute, but would probably have issued a much more conventionally terse explanation of the decision. Instead, Comey got out front with a statement that simultaneously took credit for what, given the evidence, was the only sensible prosecutorial choice, while at the same time including enough tut-tutting disapproval of Secretary Clinton’s behavior to deflect the ire of Clinton critics on Capitol Hill and beyond from the FBI and James Comey, Esq.

But you don’t get to ignore chains of command or defining norms of prosecutorial behavior because you think it will make the FBI, or you personally, look better.  The job is about justice, not about you.

Comey’s later decision to send his infamous letter to Congress mere days before the election saying that some unexamined Clinton emails had been found on Anthony Weiner’s laptop, and that the Clinton investigation might be reopened depending on what was in them, was even less excusable.  In that case, he violated yet another important Justice Department norm, which is not to comment on the status of pending investigations immediately prior to elections.  Why does the norm exist?  Precisely in order to prevent what happened in this case: breaking news about uncharged crimes has the potential to sway elections, even if, as proved true here, the charges have no merit.

Comey’s explanations of this decision are wholly inadequate.  He poses his choice as between disclosure and “concealment,” as if there is some obligation on the part of federal law enforcement to update the public or congress on every unsubstantiated lead in an investigation.  But the norm is precisely the reverse.  The Department and subordinate law enforcement agencies like the FBI don’t comment on the status of investigations until they are complete and they don’t comment on unsubstantiated leads at all.  Particularly not less than two weeks before an election in which the subject of an investigation is a candidate.

Comey claims that he had some special obligation to inform Congress about this lead because he had previously told them that the investigation was closed and that he’d advise them if that status changed.  In the first place, the general norm against non-disclosure of investigative details doesn’t change because of loose wording in a letter from the FBI Director.  More to the point, there was absolutely nothing in Comey’s congressional letter that compelled him to disclose an unchecked lead days before the election.

Comey’s real reason was the worry that, if he had not disclosed before the election and something important was found on the laptop, then he would have been criticized by Republicans for hiding important information.  To which the only possible response is — tough!  Either disclosure or non-disclosure of uncorroborated allegations about a candidate can affect an election.  The Justice Department policy against disclosure was created with full understanding of that dilemma. But it enjoins disclosure because only nondisclosure protects a candidate — like Hillary Clinton — whose electoral prospects will definitely be damaged by the release of information that may in the end prove baseless.

The mission of the Department of Justice is to convict the guilty, yes, but also to protect the innocent.  Another part of its mission is to ensure that the process of winkling out truth does not warp the democratic process.  If you work in the Department of Justice, or for its subordinate agencies, then no matter how high you climb, the job is still about justice.  It’s not about you.

Rod Rosenstein has been sharply criticized, and not without reason given the timing, for writing the memo about Comey’s errors that Trump used to justify firing Comey.  But everything in the Rosenstein memo — the facts and the judgments — was correct.   Comey should have been fired.  The only thing that makes his firing remotely controversial is that Mr. Trump sacked him for an unwillingness to do wrong in the future, rather than for the wrongs he’d done in the past.

Jim Comey is an honest man.  Or at least as honest as any inevitably flawed human can be.  But his basic honesty comes with two intertwined flaws. First, he knows he is honest, and on balance probably more honest than many people in public life.  And that leads to a level of sanctimony dangerous in a man granted great public authority.  Because if deep down you believe that you are morally superior, then you will be tempted to break rules and norms you see as having been created to cabin the base impulses of the less pure. But the prosecutorial norms Comey violated arose over long years to protect against both corruption and misguided virtue.

Second, although Comey is honest, he also has an irrepressible need to be seen as honest, indeed as more honest, and more forthrightly, courageously honest than anybody else.  He thirsts, it would seem, to be publicly acclaimed as the the spotless hero of his own saga.  And that is an especially dangerous trait in a law enforcement official. For such officials, it is not enough to be honest. One must also possess the virtue of self-restraint in the face of public criticism and a capacity for silence unless and until the law requires speech.

By choosing to publish a book and embark on an endless round of self-promoting interviews while the Mueller investigation is ongoing, Comey, tragically, confirms that his need for self-affirmation is stronger than his loyalty to the rules and norms of the justice system he purports to be defending.  He knows that he is a central witness in a potential obstruction of justice case against the president, whether that case is made in the courts or in an impeachment inquiry.  And surely he remembers that the very last thing any prosecutor wants is for his star witness to be parading around the country giving interviews and creating all the little inconsistencies and toeholds for cross-examination that can undercut the credibility of any witness.  And yet he seemingly cannot help himself.

For those of us who love the American justice system and would defend it against the daily assaults of the man in the White House, the claim to “A Higher Loyalty” in the title of the Comey memoir is bitterly ironic.

Trump and Comey are polar opposites in virtue.  But they are doppelgangers of ego.  Neither can bear that the world might see him other than as he sees himself.  As loathsome as Trump may seem to him, Jim Comey needs to understand that he, too, is hurting the Republic.

Adam Schiff’s legislative warning shot on pardons … and more from “Impeachable Offenses?” on SLATE

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Today, Slate senior editor Jeremy Stahl wrote an informative piece about Congressman Adam Schiff’s effort to dissuade Mr. Trump from using pardons to derail investigations.  Mr. Schiff introduced a bill that would require disclosure to Congress of all files “obtained by a United States Attorney, another Federal prosecutor, or an investigative authority of the Federal Government” about any case involving a pardon recipient in which the president or any of his relatives are implicated as a subject, target, or witness.

Though Schiff’s bill seems unlikely to pass, its obvious objective is to signal to Mr. Trump that abuse of the pardon power will not go unexamined by congress, and indeed can be impeachable.  Mr. Stahl was kind enough to quote Professor Bowman at several points.

Also, on Monday, Slate syndicated a revised version of this website’s post arguing that “It’s Too Late for a New ‘Saturday Night Massacre.'”

We’re grateful for the exposure.

 

 

Impeachment in the States: Missouri Governor Edition, Part 7 (The “eminent jurists”)

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By Frank Bowman

An inquisitive reader, and former excellent student of mine, wrote in inquiring with a question about precisely who would try any impeachment charges against Governor Greitens approved by the Missouri House of Representatives.  He correctly noted that Article VII, Section 2 of the Missouri constitution provides that, if the governor or a member of the state supreme court is impeached, the trial of the articles of impeachment is to held before a “special commission of seven eminent jurists to be elected by the senate.”  But he wanted to know who counts as an “eminent jurist.”

Before I could respond, my industrious correspondent found and sent me the answer in a statute, RSMo 106.080, which states:

If the governor or a judge of the supreme court shall be impeached, the house of representatives shall immediately transmit such articles of impeachment to the senate who shall, without delay, proceed to the election of a special commission to try the cause, which commission shall be composed of seven eminent jurists, who at the time of their election are judges of the circuit or appellate courts of this state; provided, however, that judges of the supreme court shall not be eligible to serve on such special commission. The commission shall meet in the City of Jefferson within thirty days after their election on a day designated by the senate.

In short, by statute, only sitting circuit and appeals judges can be on the special commission.

ADDENDUM: After I first posted this analysis, my eminent friend Jim Layton, former Solicitor General of Missouri, pointed out that “eminent jurists” is a vague term that could be read to include retired judges, federal or state, and that it’s doubtful the legislature can, by statute, modify the meaning of a constitutional term.  I take his point, but since the constitution requires that the “eminent jurists” be “elected by the Senate,” my bet is that they follow the rule they plainly thought they had the power to enact.

Sean Hannity!

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By Frank Bowman

Just when you thought the Trump saga couldn’t get weirder, Michael Cohen, Trump’s longtime consigliere, was forced to reveal that his entire list of human clients consists of Donald Trump, Elliott Broidy (a rich Republican fundraiser for whom Cohen arranged a $1.6 million payoff to a former mistress), and … tah-dah … Sean Hannity.

This revelation has occasioned tut-tutting from media watchdogs who note that Hannity has been screaming daily on his TV and radio shows about the illegitimacy of the Cohen search, while conspicuously omitting to mention that he was among Cohen’s clients.  Fair and balanced indeed! And of course, Hannity’s discomfiture has drawn howls of laughter and hoots of derision from pretty much everyone, left and right, who has not yet been submerged into the Borg of Fox News Land.

Along with the outrage and hilarity, there has also been speculation about what sort of thing Hannity could possibly have wanted the legal advice of Michael Cohen, a guy who isn’t so much a lawyer as muscle with a law degree. The obvious salacious speculation has centered on the fact that Cohen’s only two other human clients are guys for whom he arranged payoffs to inconvenient ex-girlfriends.  Does Hannity have his own #MeToo problem?

Hannity has hastened to deny that he might need such services, insisting that the matters as to which he consulted Cohen did not involve any “third party.”  Moreover, says Hannity, Cohen was, perhaps, kind of his lawyer, but not really (“we just chatted, he never sent me a bill, I never paid fees… well, ok, maybe I slipped him a ten-spot once”).  And, insists Hannity, he only talked to Cohen about real estate matters.  Probably.  Mostly.

It’s been a perverse pleasure to watch Hannity try to walk the tightrope between denying any real connection with Cohen, while at the same time trying to claim just enough of a connection to be able to invoke attorney-client privilege.  There has been plenty of skepticism about Hannity’s story, particularly the claim that anyone, especially a gazillionaire like Hannity with the means to hire the best specialists in America, would go to Michael Cohen to get legal advice about real estate matters.

But so far, the delighted commentariat has missed one other telling point: If Hannity is telling the truth and the only time he used Michael Cohen as a lawyer was for occasional verbal chats about real estate, then there would be nothing for FBI searchers to find in Cohen’s office or the other spots subject to the warrant that would reveal either the Hannity-Cohen attorney-client relationship or its subject matter.  Yet Cohen apparently believes there is such material because otherwise he would not have listed Hannity among his clients.  And Hannity apparently agrees, because otherwise he would not have requested Cohen’s lawyers (as he apparently did) to keep his identity secret.

In short, if there’s nothing — no document, no e-mail, no tape, no phone message, no nothing — anywhere in Cohen’s domain that would identify and cause difficulties for Sean Hannity, then neither Cohen nor Hannity would have tried to protect it by identifying Hannity as Cohen’s client.

Unless I miss my guess, Mr. Hannity is sweating with reason.

The “Take Care Clause” Does Not Permit Trump to Fire Robert Mueller Directly

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By Frank Bowman

In last Friday’s New York Times, John Yoo and Sakrishna Prakash contend that President Trump has the power to fire special counsel Robert Mueller “directly,” meaning without complying with the Department of Justice regulation mandating that a special counsel can be fired “only by the personal action of the Attorney General” (or if the AG is recused, his designee) and then only for “good cause,” such as “misconduct, dereliction of duty, incapacity, [or] conflict of interest.”  In plain terms, they are saying that the president can simply ignore the Justice Department’s chain of command and its regulations and fire Mueller for any reason or, as they insist, “no reason at all.”

It is important to understand how radical this argument is. Most of the commentary about how Mr. Trump could fire Mr. Mueller accepts the premise that Justice Department regulations specifying how and by whom a special counsel can be removed are laws, binding both officers of the Justice Department and the president himself.  Hence, the endless discussions of whether Trump will embark on a “Saturday Night Massacre” round of firings in search of a senior Justice Department official willing to behead Mueller.

To non-lawyers, it might seem odd that an internal departmental rule called a “regulation” is treated as equivalent to a “law.”  But in our legal system, departmental regulations promulgated using procedures prescribed in the “Administrative Procedure Act” are “law.” And they every bit as binding on presidents or anyone else as a congressionally enacted statute or a decision of the Supreme Court.  The Justice Department’s regulations on the special counsel are precisely this kind of regulatory law.

Yoo and Prakash try to evade this elementary reality of modern American jurisprudence by referring to Article II, Section 3, of the Constitution, which requires a president to “take care that the laws be faithfully executed.”  They say this constitutional language means that the president has absolute control over the federal law enforcement function and thus can direct that legal actions be terminated and federal law enforcement officers fired whenever it suits him.  According to them, the “take care” clause means that a president cannot be bound by any regulation, or indeed any statute that Congress might pass, purporting to limit his power to dismiss subordinates in the executive branch.

They’re wrong.  Though they focus here on the narrow issue of the tenure of a special counsel, their position is merely a local manifestation of the “unitary executive” theory occasionally fashionable on the fringes of the intellectual far right.  It remains a fringe view because, if accepted, it would strike a crippling blow to the rule of law in this country.

Consider its effect in the law enforcement setting.  If the Take Care Clause effectively overrides Justice Department regulations on the special counsel, it also overrides all statutory and regulatory rules purporting to safeguard federal employees from arbitrary dismissal. In that case, the president may not only fire a prominent special appointee like Robert Mueller, without process and without cause, but also every career prosecutor, FBI agent, analyst, and secretary who worked on a case that displeased the president.

A criminal justice apparatus cowed by the chief executive and wielded only according to his unchecked whims is the first step on the road to autocracy.

Moreover, the extremist view propounded by Yoo and Prakash resonates far beyond criminal justice.  After all, the president’s obligation to ensure faithful execution of “the laws” is not limited to criminal statutes.  It extends to all of the myriad laws – constitutional, statutory, and regulatory – that govern all aspects of our national existence.  A president is every bit as obliged to ensure faithful execution of laws governing revenue collection, fair housing, collective bargaining, workplace safety, environmental protection, and the distribution of Medicare and Social Security benefits as he is to ensure proper administration of laws against fraud and official corruption.

Thus, if Yoo and Prakash are right, the president cannot constitutionally be prevented from firing any executive branch employee in any department whenever he feels that such an employee isn’t executing the law as the president would prefer it executed.  For them, legal protections against arbitrary or politically motivated dismissal can be of no effect so long as it is the president who orders a firing. In short, their reading of the constitution would effectively destroy the federal civil service system which, since 1883, has protected the country from the corruption endemic whenever a president or ruling party has unchecked power to dismiss federal employees who will not obey directions from political superiors.

No court will, or should, accept a reading of the constitution so contrary to long-settled legal norms and so destructive of the professionalism and political neutrality of federal civil servants.

It has been reported that the White House has sought advice on whether Robert Mueller might be directly dismissed, and that it has received some scholarly support for the idea.  One hopes that Mr. Trump has not relied on ideas like those of Professors Yoo and Prakash, which combine the defects of being constitutionally unsound, unlikely to find acceptance in the courts, and deeply subversive of the rule of law.

It’s Too Late for a New “Saturday Night Massacre”

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By Frank Bowman

In the hours following Mr. Trump’s infuriated reaction to the FBI’s search of his lawyer’s office, the media crackled with speculation that the president would fire either special counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, or Attorney General Jeff Sessions, or perhaps all three together.  It hasn’t happened yet. And while nothing is certain with our increasingly erratic chief executive, if he retains both a shred of rationality and advisors with some knowledge of the federal criminal system and the capacity to make their boss face reality, there will be no firings. And if there are, they won’t stop the hounds baying at Mr. Trump’s heels.

Mr. Trump wants to fire those he perceives to be his tormenters in order to make the torment – the investigations they supervise – stop. But the simple truth is that Justice Department investigations involving Mr. Trump, his campaign, his family, and his businesses have now proceeded so far that, while they could be hindered or delayed, they cannot be stopped.  That Mr. Trump seems to think that a few firings would achieve that end only shows how little he understands about the federal criminal justice system and the professionals who serve it.

Trump’s most well-known problem, of course, is that, despite his press secretary’s confident assertions to the contrary, he cannot fire Mueller directly.  Under Justice Department regulations, a special counsel can be “removed from office only by the personal action of the Attorney General,” or where the Attorney General is recused, by his deputy, Rod Rosenstein. So to get to Mueller, Trump would have to fire Rosenstein and then put someone in his place willing to axe Mueller.

But the Senate would not confirm an obvious hatchetman as permanent replacement to Rosenstein. So Trump would have to begin working his way down the DOJ line of succession, ordering Mueller’s removal, and then firing anyone who refused, until he found someone willing to be this generation’s Robert Bork (who as Solicitor General complied with President Nixon’s order to fire Watergate Special Prosecutor Archibald Cox).  It’s possible that he could find someone pliable enough to at least consider firing Mueller.

But Trump’s problem is that firing Mueller cannot, by itself, stop the investigations run by Mueller’s office. Mueller has already filed multiple cases. Some of them, like Paul Manafort’s, remain to be tried.  Mueller’s office also employs or supervises dozens of prosecutors and investigators who are actively investigating other crimes and defendants.  He has collected thousands of documents and hundreds of witness interviews and presented reams of grand jury testimony. To stop all that — and to bury the results so they no longer threaten Mr. Trump – would require Trump’s chosen executioner not merely to fire Mueller, but to order the immediate cessation of all the investigative activity being carried on by Mueller’s office and the immediate destruction or sealing of all the information they had gathered.

That won’t happen.  For two reasons.

First, it is extremely doubtful that Mueller’s prosecutors and agents would obey an order shutting and sealing their investigations, particularly if given for no better reason than that the President (who is a subject of their inquiry) said so.  There is no legal basis for such an order.  More to the point, an order to both close and suppress the results of Mueller’s investigations would itself be a plain case of obstruction of justice under either 18 U.S.C. 1503 or 1512.

Second, no rational Rosenstein replacement, no matter how deeply in thrall to Mr. Trump, would order Mueller’s work both stopped and sealed.  Any person who gave such an order would, at one stroke, commit career suicide and become a criminal target himself.

From Trump’s perspective, the rosiest scenario after Mueller’s firing would be: (a) appointment of a replacement for Mueller somewhat more tractable to the president’s wishes, or (b) a dispersal of Mueller’s staff and a transfer of their cases and investigations to regular U.S. Attorney’s Offices who would carry on the work.  Either might slow things down, but the investigations would still be run by career prosecutors and agents who would not simply walk away.

Moreover, the part of the investigation that Trump now apparently most fears – the result of the search through his lawyer’s office – is already outside the special counsel’s bailiwick and being pursued by the U.S. Attorney’s Office for the Southern District of New York.   Neither the New York prosecutors nor the FBI itself, which has a large measure of independent investigative authority, will stop so long as there are grounds to believe federal crimes may have been committed.

In short, while a DOJ firing spree might provide Mr. Trump a moment of satisfying catharsis, it will not resolve his legal problems.

At this critical juncture in his life, Donald Trump confronts a phenomenon with which he has never before had to reckon – the principled dedication of the men and women of the Department of Justice.  The “deep state,” if you like. Though individually subject to all the flaws of any professional assemblage, their institutional allegiance is to no man and no party, but to the vigorous and impartial enforcement of the law. If Mr. Trump has, as he says, done nothing wrong, he has nothing to fear.  But it’s now too late to prevent the Justice Department from following the evidence wherever it may lead.

 

Impeachment in the States: Missouri Governor Edition (Part 6 – Pre-inaugural crime)

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by Frank Bowman

Missouri has been agog for the past 36 hours over the publication of a report by a special committee of the Missouri House of Representatives detailing allegations of sexual infidelity and, perhaps, sexual crime by Governor Eric Greitens.  Yesterday, I discussed the particulars of the report and and concluded that the story of the woman at the center of the affair, if believed, arguably describes both criminal violations and impeachable offenses.

I return today to amplify on the question of impeachability.  Were I one of Mr. Greitens’ lawyers, I might argue that, even if everything his former stylist said is true and thus that he technically committed criminal sexual offenses, the conduct occurred long before he was elected and thus cannot be the subject of impeachment.

To this there are at least two possible responses:

First, the Missouri constitution places no temporal limit on impeachable conduct.  Article I, Section 7, lists as impeachable conduct “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”  Of course, about half of the items on this list unmistakably refer to official misbehavior — “willful neglect of duty, corruption in office … or oppression in office.”

And the phrasing of the passage strongly implies that several of the other listed items are meant to have an official nexus, as well. For example, were I the governor’s lawyer, I’d argue that impeaching a state official for “incompetency” only makes sense if he or she is “incompetent” at performing the functions of state office.  One wouldn’t impeach a judge or a governor for inability to play the saxaphone or grill a steak.  Similarly, I’d suggest that “habitual drunkenness” before, but not during, an officeholder’s term can’t possibly be a sound reason to impeach.

Likewise, the governor’s lawyer’s might contend that the most plausible reading of “any offense involving moral turpitude or oppression in office” is that offenses involving moral turpitude also have to occur at least while the official is “in office,” and better still, in connection with official duties.  Personally, I don’t find the last part of that construction very compelling; it seems more likely to me that the drafters meant that any offense involving “moral turpitude,” regardless of its direct connection to official duties, could trigger impeachment.  The question of whether the morally turpitudinous behavior has to happen during the officeholder’s term seems to me more uncertain.

But the textual problem for Mr. Greitens’ defenders is that the constitutional list of impeachable conduct contains several items that are neither logically or gramatically restricted to the officeholder’s term.  The list starts with the words “crimes [and] misconduct,” and those terms aren’t obviously modified in any way that limits them to the period following assumption of official duties.

My second objection to an argument that a governor can’t be impeached for conduct that predates his inauguration is that, as a matter of sound policy, that can’t be right.  If it were to be discovered that a governor had bribed election officials to help secure election, or that a judge had bribed the governor to secure appointment to the bench, no one would suppose that the governor or the judge couldn’t be impeached on that basis, even though the conduct occurred before he or she took office.

The governor’s defenders might respond by conceding that pre-inaugural misconduct can count, but only if it was directly related to the electoral or appointive process by which office was attained.  But that, too, is plainly an unduly restrictive rule.

Suppose a sitting governor were found to have accepted bribes while he occupied a previous state position, or that he had committed murder six months before his election.  Would anyone seriously suggest that such a governor could not be impeached and removed?  The necessity of impeachment in such a case is made manifest by the multiple Missouri cases that have held that the only means of removing a constitutional officer is impeachment, regardless of whether such officer has also been convicted of a crime. In short, if we can’t impeach a criminal governor, we’re stuck with him until his term expires.  And that can’t be right.

My bottom line on all this is that the language of the Missouri constitution does not prohibit impeachment for pre-inaugural conduct.  Rather, the issue remains whether the House of Representatives considers the officeholder’s conduct violative of law and sufficiently egregious to merit removal.

Impeachment in the States: Missouri Governor Edition (Part 5 – The House Report)

By Frank Bowman

Today a special committee of the Missouri House of Representatives issued a report about Governor Eric Greitens’ interactions with his former hair stylist.  You can read it here.

There are at least four notable things about the report:

First, contrary to rumors flying around the state before the report’s release, it focuses purely on Mr. Greitens’ behavior with his former stylist, and does not delve into other questions about the governor’s fund raising before or after his election.  It’s been suggested that the House committee may issue a subsequent report on those issues.

Second, the current report recounts the claims of the stylist about her encounters with Greitens in lurid and excruciating detail, and adds corroborating testimony of three other persons who know her.  Moreover, the committee was obviously at pains to contrast the cooperation it received from the stylist and those who back her story with the resolute non-cooperation by the governor, who both refused to testify and refused to provide certain requested documents.

Third, with the important caveat that, due to Mr. Greitens’ silence (perhaps understandable in view of his upcoming criminal trial), we don’t have his side, the narrative laid out by the committee presents a pretty darn convincing account of a young woman lured by the charisma of a handsome and powerful man into what she thought of as a romance, but turned quickly into a tawdry, exploitative, and at times violent, series of sexual liaisons.  And regardless of whether the woman’s story is true or not, it’s plain that the committee believes her.

Fourth, if, and I emphasize if, the woman is to be believed, the details of her story transform the legal posture of any impeachment effort.  Hitherto, the publicly accepted narrative of the worst case against the governor was that Greitens and his stylist entered into a consensual sexual affair, as one incident of which he tied her, consensually, to a piece of exercise equipment and then, non-consensually, took a photograph of her in a state of complete or partial undress, a photograph which he allegedly threatened to release if she revealed the affair.  In this version of the matter, the only crime Greitens might have committed was some version of invasion of privacy, RSMo 565.252, based on his having taken a picture of a person in “a state of full or partial nudity” without that person’s consent.

But, if the woman’s story is true,  one would be justified in concluding that Greitens committed several serious sexual offenses.  To begin, she says that, when Greitens taped her to a set of rings in his basement, she was fully clothed (albeit in clothes he had given her to change into) and that she had not consented to any sexual contact.  She goes on to say that, while she was taped to the rings, Greitens ripped the front of her shirt, exposing her, and then began kissing her “chest” and stomach, and then pulled her pants down to her ankles. (Committee Report, paras. 25, 27)  She denies consenting either to the ripping of the shirt or the lowering of the pants. (Comm. Rep., paras. 26, 28).

It was at this point, and during a period in which she was supposedly blindfolded, that the alleged picture was taken and the threat of exposure made. (Comm. Rep., para. 29-35)

According to the woman, she was “freaking out” after the photo and trying to tear away from her bonds. (Comm. Rep,. para. 37)  She specifically claims to have said, “I don’t want to do this,” at which point Greitens helped release her. (Comm. Rep., para 39)  She then tried to leave, but Greitens grabbed her and placed her on the floor, where she began crying.  While she was there, she claims that Greitens fondled her and exposed his penis next to her face. (Comm. Rep. para 41)  The report states that she performed oral sex on him because “she felt that she had no other choice if she were going to get out of the basement.” (Comm. Rep., para. 42)

The report explained her state of mind as follows:

As to whether she consented to oral sex at that point, Witness 1 testified, “It’s a hard question because I did it – it felt like consent, but, no, I didn’t want to do it.” She further explained, “Coerced, maybe. I felt as though that would allow me to leave.” 

If, and again I emphasize if, all of this is true, Mr. Greitens would arguably have committed the Class C felony of sexual abuse in the first degree, RSMO 566.100.1, because he subjected the woman to “sexual contact” either while she was “incapacitated” by being tied up or, as the statute says, by “forcible compulsion.”

Likewise, inducing a woman to perform oral sex knowing she does not consent is the Class C felony of Second Degree Sodomy, RSMO 566.061.1.  The consent issue is contestable, as is Greitens’ knowledge of the woman’s professed lack of consent.  But if one accepts the account of physical restraint of a weeping woman trying to leave the basement, the picture does not favor the governor.

Of course, Mr. Greitens and his defenders will doubtless emphasize quite another portion of the woman’s testimony, namely that after the basement episode she entered into a consensual sexual relationship with him that involved a number of intimate encounters. (Comm. Rep, para 53-65)  His alleged behavior in this period included slapping her on one occasion, but otherwise consisted of perhaps distasteful, but noncriminal, conduct.  And he would argue that her acquiescence in a consensual relationship casts doubt on her account of the initial basement encounter.

All this tawdry business potentially transforms the legal framework of an impeachment case.  As noted in an earlier post, the Missouri Supreme Court in the Moriarty case essentially held that impeachable offenses under the Missouri constitution must involve some violation of the law.  While there are reasons to doubt the soundness of their conclusion, the House of Representatives is likely to be guided by it.  Accordingly, the newly released details of the stylist’s initial encounter with Mr. Greitens would, if she is believed, offer the House new grounds for impeachment that do not require proof of the elusive photograph taken by a cell phone the woman admits she didn’t actually see from behind her blindfold.

The House might, though of course it need not, conclude that it believes the woman when she says Greitens committed what amounted to the offenses of first degree sexual abuse and second degree sodomy.  Such a conclusion could satisfy both the Moriarty holding and the requirement of Article VII, Section 1 of the Missouri constitution that an impeachable conduct consist of “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”

The Show-Me State is in for some interesting times.

The FBI Raid on Trump’s Lawyer: Not a “Witchhunt”

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By Frank Bowman

The New York Times reported this afternoon that FBI agents executed a search warrant on the Manhattan office of Michael Cohen, who has long served as Donald Trump’s lawyer and has often been referred to as his “fixer.”  Mr. Cohen has assumed particular prominence lately because he apparently arranged the pre-election $130,000 payment to adult film actress Stormy Daniels designed to keep her quiet about an alleged affair with Mr. Trump.

Mr. Trump immediately labeled the raid a “disgrace” and a “witch hunt.”  

We don’t know precisely what the FBI was looking for and what it might have found.  No doubt that will become clearer with time. What is clear is that federal searches of lawyer’s offices are extremely unusual and, under Justice Department rules, require extraordinary justification and multiple layers of internal approvals. And then the warrant application must be approved by a federal judge.

Moreover, the Cohen warrant was sought, not by Robert Mueller’s office, but by the U.S. Attorney for the Southern District of New York, acting on a referral from Mueller.  In short, before the application even reached the judge who signed it, it garnered the approval of Special Counsel Mueller and U.S. Attorney Geoffrey Berman (appointed by Mr. Trump).  Moreover, as I explain below, DOJ procedures for approving such a warrant would require the concurrence of Acting Assistant Attorney General for the Criminal Division John Cronan.  Any suggestion that this search was a frivolous fishing expedition by an uncontrolled special counsel — or, in Mr. Trump’s tirelessly repeated phrase, “a witch hunt” — simply won’t wash.

The Department of Justice is acutely conscious that communications between attorneys and their clients enjoy special status under the Sixth Amendment and the common law attorney-client privilege.  Except in rare circumstances, attorney-client communications may not be seized for use in investigations or introduced in court to prove a crime.  There are exceptions, such as when an attorney gives a client advice about how to commit a future crime, but judges are exceptionally protective of the attorney-client relationship and tend to construe such exceptions very narrowly.

Therefore, any law enforcement search of an attorney’s office will always be a ticklish business.  Even when a search is authorized by warrant, merely locating the material covered by the warrant will almost inevitably involve inspecting documents that contain attorney-client communications for clients other than the one who is the subject of the warrant.  And once the batch of material related to the client at issue is found, there are very likely to be some communications covered by the privilege commingled with material that has no attorney-client communications or communications that are unprivileged.

The likelihood of encountering commingled privileged and unprivileged material creates a special problem — if the searching agents see privileged matter and accidentally or purposely convey such material to the agents and prosecutors who ultimately charge and prosecute the case, the privileged matter may “taint” the rest of the evidence and could require suppression of some evidence or even dismissal of the entire prosecution.

For all these reasons and more, the Justice Department has special detailed procedures for authorizing and conducting attorney searches.  Before a warrant can even be presented to a federal judge for approval, the following internal steps must be taken:

  1. The prosecutor contemplating an attorney warrant must consider whether the material sought can be obtained by any less intrusive means, such as a subpoena. U.S. Attorneys Manual 9-13.420(A).
  2. Any attorney search warrant must be approved by the U.S. Attorney in the district where the warrant is sought. U.S. Attorneys Manual 9-13.420(B).
  3. A prosecutor seeking an attorney warrant for material concerning representation of a client must also obtain prior approval of the Assistant Attorney General in charge of the Criminal Division in Washington, D.C., using a specific and highly detailed application form. U.S. Attorneys Manual 9-13.420(C).
  4. Because of the risk of taint, DOJ rules require that an attorney warrant application specify procedures for guarding against it.  DOJ rules state: “Procedures should be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search. … [I]n all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.”  U.S. Attorneys Manual 9-13.420(D).
  5. The anti-taint procedures will customarily involve a separate team of agents and lawyers charged with executing the search and reviewing the materials found in order to limit the material seized to matters that (a) are covered by the warrant, and (b) are not privileged.  Those agents and lawyers will be strictly barred from communicating to the main prosecutorial team any documents or information deemed privileged or outside the scope of the warrant.
  6. Often, the final privilege determination will be made by submitting material about which there is question to a judge or special master.

The procedural and logistical difficulties in seeking and executing a warrant for an attorney’s office have the practical effect of making such searches extraordinarily rare.  When permission to seek judicial approval of such a warrant is sought, you can be assured that the highest levels of the Justice Department have been satisfied on two critical points: First, the information sought is of very high importance to a case of genuine significance, and second, the evidence supporting issuance of the warrant is very solid.

Moreover, judges review an application to search a lawyer’s office with infinitely more care than a warrant for virtually any other location.

These general observations are triply valid in the case of Mr. Cohen, the president’s personal lawyer.

We can’t yet know what the FBI was searching for or what they found.  But we can be absolutely sure the Department of Justice had darn good reasons to look for it.