If Mueller Goes Down, State Attorneys General Won’t Save Us

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Several recent articles have suggested that, should Special Counsel Robert Mueller be fired and his investigation discontinued, state attorneys general could, in effect, step into his shoes.  While state officials can play some role in what might broadly be termed the anti-Trump resistance, I do not believe they can function effectively as stand-in special prosecutors.

I lay out my reasons for this view in an article published today in Slate.  You can read the article at this link.

I’ll be writing a bit more on this subject, and reader reactions to the Slate piece, in coming days.

Wall Street Journal Considers Presidential Self-Pardons … with a little help from “Impeachable Offenses”

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The following article examining the president’s power of self-pardon and other tactics Mr. Trump might employ to stymie the Mueller investigation appeared yesterday in the Wall Street Journal.  We are pleased to note that it quotes Professor Bowman at length and gives a shout-out to this blog.  The WSJ article can also be found at this link.

Presidential Self-Pardon Remains a Murky Issue: 
Constitutional scholars say matter is unresolved
Special counsel Robert Mueller departing after briefing members of the Senate last month on his investigation into potential collusion between Russia and the Trump campaign.
Special counsel Robert Mueller departing after briefing members of the Senate last month on his investigation into potential collusion between Russia and the Trump campaign. PHOTO: JOSHUA ROBERTS/REUTERS

WASHINGTON—In 1974, some of President Richard Nixon’s lawyers advised the president that he could pardon himself. In 1992, the Iran-Contra special prosecutor reached the opposite conclusion regarding President George H.W. Bush.

Neither president took that step, and constitutional scholars say the question of the presidential self-pardon remains unresolved.

But the U.S. Constitution, unlike many state governments, centralizes prosecutorial authority under the president. That means he could forbid the Justice Department from investigating or pursuing criminal charges against anyone, including himself, so he may never reach the point of having to pardon himself.

The subject has come to the fore in recent days after reports emerged that President Donald Trump had asked his advisers about his ability to pardon various people, including himself.

Trump officials say the issue won’t come up because there was no wrongdoing.

“I’m not sure if he has the right to [pardon] himself or not,” White House communications director Anthony Scaramucci said Sunday on CNN. “But it doesn’t matter, anyway, because that is another one of those stupid hypotheticals. He’s not going to have to pardon himself, because he’s done absolutely nothing wrong.”

The president himself tweeted Saturday, “While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.FAKE NEWS.”

The Justice Department has taken the position that a president can’t be prosecuted. Past special prosecutors have disagreed.

“It is very likely that a president is subject to federal indictment. No one is above the law in this country,” says Ronald Rotunda, a law professor at Chapman University in Orange, Calif., who worked both for the Senate Watergate Committee and later Kenneth Starr, the independent counsel whose investigation of President Bill Clinton led to impeachment and acquittal.

Last week, the New York Times reported on a memo obtained under the Freedom of Information Act in which Mr. Rotunda advised Mr. Starr that the president was subject to indictment.

“I have thought about these issues for years, beginning with my work on the Watergate Committee,” Mr. Rotunda said. “Starr’s request for a legal opinion forced me to think about it more carefully and see what is most likely the law.”

But past special prosecutors such as Mr. Starr operated under broad statutory authority that since has expired. Under current law, special counsel Robert Mueller, who is investigating alleged Russian interference in the U.S. presidential election, only has the authority to recommend to higher-ups that indictments be sought, says Frank Bowman, a law professor at the University of Missouri who publishes the ImpeachableOffenses.net blog.

Even if Justice Department attorneys obtained an indictment before the president issued an order canceling the investigation—or defied such an order—Mr. Trump could replace hostile officials with those willing to follow his orders. And if a “runaway” federal grand jury voted for an indictment on its own, a prosecution couldn’t proceed without a signature from a Justice Department lawyer, Mr. Bowman says.

“The judge has no independent power to create a prosecutorial authority,” he says.

A president attempting to derail an investigation could wreak havoc with traditional concepts of law and order, legal experts say. Because he has the power to pardon anyone for a federal crime, with the possible exception of himself, a president could in theory pardon individuals for obstructing an investigation if the offense took place under federal jurisdiction—as is all of Washington, D.C.

But there’s a far easier course if Mr. Trump acts on his assertion that the investigation against him is an illegitimate “witch hunt”: He could fire Mr. Mueller.

“If Trump takes Mueller off the board, he can pretty much stop the whole thing,” Mr. Bowman says. At that point, the inquiry’s only avenue “probably rests on the midterm elections of 2018”—and whether the Democrats can seize a chamber of Congress, and with it the ability to pursue their own investigations.

Does Trump University Constitute an Impeachable Offense?

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In a draft for the upcoming University of Oregon Law Review, Professor Christopher L. Peterson explores whether the fraud and racketeering behind Trump University constitutes an offense which would enable Congress to pursue impeachment. Click here to read the article.

la-me-ln-trump-university-lawsuit-donald-trump-20160226.jpgBebeto Matthews / Associated Press

Trump hints strongly at exercise of pardon power

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In a series of tweets, Mr. Trump asserted that he has “complete pardon power,” although he did not say he intended to exercise that power immediately.  These remarks, combined with earlier reports that he has been consulting legal counsel about the extent of his power to pardon, certainly raise the prospect that he may seek to block the progress of the Mueller investigation by prospectively pardoning those who are its subjects, possibly including himself.

Should he do so, several issues alluded to previously here and in my recent Slate article will jump to the forefront: (1) whether a president can issue prospective pardons, i.e., can he pardon people for crimes with which they have not yet been charged; (2) whether a president can pardon himself; and (3) whether the use of the pardon power to block an investigation into wrongdoing by the president or his close associates would itself constitute either the crime of obstruction of justice or an impeachable offense.

The answer to the first question is probably yes.  At a minimum, we have the historical example of President Gerald Ford who pardoned his predecessor, the recently-resigned Richard Nixon, for criminal offenses he might have committed in connection with the Watergate scandal.

Whether a president can pardon himself is hotly contested, but if he can, the constitution expressly provides that such a pardon cannot extend to impeachment.

Whether an exercise of the pardon power to block an investigation could itself constitute a crime is a fascinating, but unresolved, question.  My own instinct is that it could be.  Merely because a government officer has the legal power to perform an act does not mean that the act is not criminal.  For example, a member of Congress has the undoubted power to vote for or against legislation, but if the member votes a particular way because she received a bribe to do so, that would be a crime.  Presidents are no different.

Finally, I find it almost inarguable that a corrupt exercise of the pardon power would constitute grounds for impeachment.  On this blog, we have not yet discussed what kinds of conduct can constitute an impeachable offense.  However, the undisputed core of impeachable behavior is misuse of presidential power.  The fact that the power in question is that of issuing pardons does not change this fundamental conclusion.

All these questions will be discussed on this site in greater detail presently.  In the meantime, I strongly recommend a fine new law review article by Professors Daniel Hemel and Eric Posner on presidential obstruction that covers in detail or touches on all of them. It can be downloaded at this link.

Does Mueller Matter? A Citizen’s Guide to the Obstacles Confronting the Special Counsel

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Robert Mueller, appointed by the Department of Justice as special counsel to investigate the Trump campaign – Russia connection, is looking into whether any crimes have been committed by Mr. Trump, his family, or subordinates.  Many people may be hazy on what would happen if and when Mr. Mueller identifies one or more prosecutable offenses. I have put together an “informed citizen’s guide to the obstacles that stand between Mueller deciding that a crime was committed and either impeachment of President Trump or prosecution of any Trump-linked suspects.”  It was published in Slate yesterday at the link below.

Not So Fast Special Counsel: All the ways Robert Mueller’s investigation of Donald Trump might be tripped up before it reaches the finish line.

Readers might find it informative.