Author Archives: impeachableoffenses

Image

Obstruction of justice matters only in an impeachment inquiry

05 Friday Jan 2018

Tags

, , , , ,

For the past several days, the media has been ablaze with stories touting new details of Mr. Trump’s concern about the Russia investigation and his alleged efforts to quash it.  For example, Mr. Trump apparently believed that Attorney General Sessions could control the investigation and shield Mr. Trump, and therefore sought to prevent Sessions from recusing himself by sending White House counsel Donald McGahn to lobby Sessions against recusal.  Other bits and pieces are solidifying the proposition that Trump fired Comey in order to stop or impede the Russia investigation.

Unsurprisingly, many commentators have been declaring one or the other of these revelations definitive proof that Mr. Trump is guilty of obstruction of justice. The purpose of this post is not to assess the current state of the evidence.  Rather, I want to re-emphasize several points I made last summer:

1) While it is quite possible (contrary to the ill-considered declarations of folks like Alan Dershowitz) for a president to commit the crime of obstruction of justice, the official position of the Department of Justice is that a sitting president may not be criminally indicted.  Robert Mueller, whose appointment makes him subject to DOJ rules and regulations and subordinate to Deputy Attorney General Rod Rosenstein, has no authority to disregard that DOJ position.  Accordingly, no matter what evidence Mr. Mueller uncovers, it is vanishingly unlikely that he would even attempt to indict Mr. Trump for obstruction.

2) Even if Mr. Trump were indicted and convicted of obstruction, such a conviction would not result in his removal from office.  Only impeachment can accomplish that end.  Only Congress can impeach and remove a president.  And therefore the real question is what Congress will choose to do with whatever Mr. Mueller uncovers. But before it could do anything, it would have to have access to Mueller’s results.

3) Absent a formal indictment, the most Mueller could do in the criminal context is name Mr. Trump as an unindicted co-conspirator in an indictment charging others with obstruction.  This was the tack taken against Richard Nixon by Watergate Special Prosecutor Leon Jaworsky, but it was controversial at the time and is disfavored by DOJ policy.  We cannot predict with any certainty whether Mueller might try this approach, or whether Deputy A.G. Rosenstein would approve it.  Should Trump be named as an unindicted co-conspirator, that designation would formalize a legal conclusion by the Mueller prosecution team and give that conclusion a grand jury’s stamp of approval.  Critically, in the course of litigating the case against those formally indicted, the facts regarding Mr. Trump’s involvement would be revealed.

4)  If Mueller’s team assembles a convincing case that Mr. Trump did commit the crime of obstruction of justice, but is unwilling either to indict him or name him as an unindicted co-conspirator, there is some uncertainty about whether, and if so how, Mueller’s conclusions and supporting evidence would become available to anyone outside the Justice Department. Ordinarily, out of concern for the privacy interests of persons not charged, the Department does not disclose the facts of investigations that don’t result in charges.  James Comey’s choice to discuss publicly the details of the Clinton e-mail investigation was contrary to DOJ policy and would have been a perfectly sound reason to fire him — if it had been the real reason. Moreover, DOJ regulations on the appointment of special counsel make no provision for reports to congress or the public.

All that being said, there is little, if any, doubt that a committee of the House of Representatives engaging in an impeachment inquiry could request, and if necessary subpoena, Mueller’s materials and secure his testimony about his conclusions.  But, as I have observed before, no such inquiry is at all likely to occur so long as Republicans control the House.  Only if Democrats flip at least the House of Representatives will any of this chatter about presidential obstruction of justice have any practical consequence.

Frank Bowman

Posted by | Filed under Uncategorized

≈ Leave a comment

CREW Emoluments Case Dismissed: The Only Road Is Impeachment

27 Wednesday Dec 2017

Posted by in Uncategorized

≈ 1 Comment

Tags

, , , , , , ,

By Frank Bowman

Over the past year, three different lawsuits have been filed against Mr. Trump alleging that he is violating either the foreign or domestic emoluments clauses of the Constitution. One of these suits was brought in the Southern District of New York by an organization styling itself Citizens for Responsibility and Ethics in Washington (CREW). CREW is headed by Norman Eisen and Richard Painter, top ethics lawyers for the last two presidents, and aided by a roster of big-name constitutional law academics including Erwin Chemerinsky and Larry Tribe. Nonetheless, from the outset its emoluments case rested on a shaky procedural foundation.

On December 21, 2017, District Judge George B. Daniels dismissed the CREW lawsuit on two grounds — first, lack of standing and, second, an amalgam of the political question and ripeness doctrines.  The standing problem with the CREW lawsuit has always been its obvious weakness.  The emoluments suit brought by the Maryland and D.C. attorneys general may be the best positioned to surmount that hurdle.  But Judge Daniels’ political question / ripeness rationale represents a more fundamental obstacle to any emoluments lawsuit against Mr. Trump.

Standing

I addressed the standing issue in the emoluments context a few weeks ago.  Briefly, federal courts only hear cases in which there is an actual “case or controversy” — a concrete real world dispute in a matter over which the particular court has “subject matter jurisdiction” and that can be resolved by an order from the court, whether it be a finding of guilt in a criminal case or liability in a civil case, followed by a court order imposing a penalty or commanding compensation or perhaps injunctive relief compelling somebody to do something.  Federal courts do not render “advisory opinions” — legal opinions about a disagreement that has not actually manifested itself in a concrete real world dispute.  And even in cases where there may be a real dispute between identifiable parties, courts will not intervene unless one of the affected parties brings an action.  To take a simple example, if I am walking down the street and see a police officer assaulting a citizen without cause, I cannot bring a lawsuit against the officer even though the assaulted citizen surely could.

Therefore, the first hurdle any plaintiff in federal court must overcome is to demonstrate that he, she, or it has an actual stake in a real world dispute.  A party with such a stake has “standing.”  A party without it does not. This is a problem in the emoluments clause suits against Mr. Trump. One might think that all U.S. citizens have an interest in ensuring that the president and all other federal officials adhere to the constitution. But the federal courts long ago decided that that sort of generalized interest in constitutional order is customarily not sufficient to grant standing. Some more direct impact on the plaintiff is required.

The plaintiffs in the CREW lawsuit were of two kinds — first, CREW itself, and second, individuals and groups involved in the hotel and hospitality business in markets where the Trump organization has holdings.

CREW argued that it had standing based purely on the fact that, once Mr. Trump took office and declined to fully divest or disassociate himself from businesses like the Trump Hotel in downtown Washington, D.C., CREW — as an organization devoted to promoting ethics in government — felt obliged to expend resources to investigate the conflicts of interest presented by Mr. Trump’s continued association with these businesses.  If this sounds thin, it is.  There is a line of cases, beginning with Havens Realty Corp. v. Coleman, in which public interest organizations gained standing on somewhat analogous grounds.   However, Judge Daniels concluded that those cases were directed at situations in which the government policy at issue adversely affected some program being conducted by the organization or some class of persons with protected interests the organization was designed to serve.  He found that expanding standing to the degree advocated by CREW would give any organization with a “mere interest in a problem” standing to sue, something not contemplated by standing doctrine.

The other plaintiffs in the CREW lawsuit, the individuals and groups engaged in the hospitality industry, were plainly recruited in order to circumvent the standing hurdle.  Their argument was that, if Mr. Trump is allowed to continue to operate — and profit personally from — hotels and restaurants during his term as president, many customers with an interest in currying favor with the Trump Administration will patronize Trump hotels and restaurants, rather than those operated by his competitors, to the financial detriment of those competitors.  Judge Daniels did not deny that such financial injury might occur, but he found the causal relation between Trump’s continued financial interest in his hotels and injury to the plaintiffs too speculative.  He observed that customers may prefer Trump properties for reasons of location, price, superior services, and the like, and believed it impossible to determine the reasons for their preferences with any exactitude.  Frankly, I find this argument rather weak inasmuch as some customers plainly will choose Trump properties to curry favor with the Trump family and CREW provided examples of customers who have publicly said as much.

More convincingly, at least to my mind, Judge Daniels held that the sort of competitive injuries allegedly suffered by the hospitality industry plaintiffs were not within what he called the “zone of interests” protected by the foreign and domestic emoluments clauses.  Judge Daniels concluded that the domestic emoluments clause was intended to prevent states from giving financial benefits to federal officers that might induce favoritism by the federal government, and the foreign emoluments clause was designed to protect against the corruption of high federal officials by foreign governments.  Thus, he said, neither clause was intended to protect commercial competitors of a president’s businesses against any competitive advantage accruing to those businesses by virtue of his office.

Political question / ripeness

The final portion of Judge Daniels’ opinion rests on the text of the foreign emoluments clause and two policies developed by federal courts to avoid involvement in cases that are either outside their institutional competence or unready for resolution: the political question and ripeness doctrines.

Put very simply, the political question doctrine is a rule of abstention –  the federal courts should generally decline to rule on “constitutional issues that are better left to other departments of government, mainly the national political branches.”  The ripeness doctrine is a component of the “case or controversy” requirement — since federal courts are only supposed to rule on cases where there is a concrete legal dispute capable of resolution by court order, they should hesitate to intervene if a threatened injury has not yet occurred and its occurrence is contingent on unpredictable future events.  Sometimes ripeness questions turn on whether a party seeking redress has exhausted all its other avenues of relief.

The foreign emoluments clause reads as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Judge Daniels makes the critical observation that the Clause does not absolutely prohibit federal officers from accepting presents or emoluments from foreign governments. Rather, it says that federal officers cannot do so “without the Consent of Congress.”  Judge Daniels notes that Congress has so far taken no action regarding Mr. Trump’s alleged violations of the foreign emoluments clause.  It has neither announced its opinion about whether Mr. Trump’s commercial ventures generate emoluments covered by the clause, nor, assuming that they do, either given or denied consent to Mr. Trump keep such emoluments. Judge Daniels seems to be of the view that the question of what constitutes an emolument is, at least in the first instance, a question for Congress.  Moreover, he strongly suggests that any dispute over emoluments cannot be “ripe” for adjudication by courts unless and until: (a) Congress has found the president to have received improper emoluments and refused its consent to that receipt, and (b) the president has refused to surrender the emoluments.

I am of two minds on this point.  On the one hand, I entirely understand the reluctance of a district judge, and indeed of the judiciary generally, to intervene prematurely in a matter that the constitutional text arguably frames as an issue between the executive and congress. On the other hand, in this case, it seems plain that congress has refrained from acting, not only for the political reason that it is controlled by members of the president’s party, but also because there is no authoritative definition of the constitutional term “emolument.”  If judges refuse to assume jurisdiction over any emoluments case because congress has not acted, and congress refuses to act because there is no judicial definition of “emolument,” then the foreign emoluments clause becomes a dead letter. It cannot be right that a major constitutional protection against executive branch corruption can be emasculated by the silence of a president’s political allies.

Several months ago, Professor Jed Shugerman considered this question on his blog and argued convincingly that the foreign emoluments clause is similar in structure — a general prohibition followed by a provision for congressional exceptions — to other constitutional clauses that courts have traditionally considered justiciable.

The only useful remedy is impeachment

The problem that remains for me, however, is remedy.  The CREW complaint seeks declaratory relief (for non-lawyers, a statement by the court of what the law is and that Mr. Trump is violating it), a court order directing Mr. Trump to formulate a plan for ordering his affairs in a way that does not violate the emoluments clauses, and an injunction ordering Mr. Trump to adhere to whatever plan is approved by the court. I suppose it is not beyond the bounds of possibility that some court might be willing to enter such orders.  But the project seems so fraught with difficulty that it strikes me as most improbable.  What district judge, after all, is going to feel comfortable ordering this notoriously bellicose President of the United States to rearrange his world-wide business empire, and then — as would inevitably be required — monitoring his adherence to the court-approved plan for the remainder of his tenure in office.

More to the point, even if a judge were willing to undertake such a task (and get his or her orders sustained in the inevitable appeals), what good would it really do?  If the objective is to place Mr. Trump beyond the reach of the temptation to monetize his office, or to insulate him from efforts by foreign governments to curry favor, that horse has already left the barn. He and his family have been monetizing furiously since the day he announced his candidacy, and foreign governments have already curried favor left and right with hotel bookings and trademark grants and what you will.  Turning off the spigot in the last year or two of Mr. Trump’s term — even if such a thing could be accomplished — seems a fairly pointless exercise. The damage is already done.

If one believes that Mr. Trump has been violating at least the spirit and possibly the letter of the constitution’s anti-corruption protections since the day he took office, then what one wants is not a weak-sauce declaration that he should stop being corrupt, but his removal from the office he besmirches. And the problem with any emoluments lawsuit is that no court can order the president removed from office, even if he is in open defiance of a court order.

Of course — and this is surely the real point of all three of the emoluments suits — if a court finds as a matter of law that Mr. Trump has violated one or the other of the emoluments clauses, that finding could trigger a congressional response in the form of impeachment.  But such a ruling is neither necessary nor sufficient for congress to move.

As Judge Daniels implicitly holds, congress, too, has constitutional authority to determine what is and is not an improper emolument.  Founder Edmund Randolph asserted that a president could be impeached for receiving unpermitted emoluments from a foreign power.  But only congress can decide whether a particular emoluments clause violation amounts to an impeachable offense.

And so, regardless of whether CREW or any of the other emoluments case plaintiffs manage to get a hearing on the merits of their complaints, it all comes back to impeachment.

Frank Bowman

Other views on the Logan Act

11 Monday Dec 2017

Posted by in Uncategorized

≈ Leave a comment

Tags

, , , ,

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.

 

Donald Trump, Jr. & the Attorney-Client Privilege

07 Thursday Dec 2017

Posted by in Uncategorized

≈ Leave a comment

Tags

, , ,

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

06 Wednesday Dec 2017

Posted by in Uncategorized

≈ 6 Comments

Tags

, , , , , , , , , ,

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

05 Tuesday Dec 2017

Posted by in Uncategorized

≈ Leave a comment

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

01 Friday Dec 2017

Posted by in Uncategorized

≈ 2 Comments

Tags

, , ,

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

30 Thursday Nov 2017

Posted by in Uncategorized

≈ Leave a comment

Tags

, , , , , , , ,

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.

A Pillar of the Temple Trembles: The Trumpist Assault on the Department of Justice

17 Friday Nov 2017

Posted by in Uncategorized

≈ 4 Comments

Tags

, , , , ,

In the fall of 1979, I took my first legal job. By astounding good fortune, I was hired fresh out of law school as a Trial Attorney in the Criminal Division of the U.S. Department of Justice in Washington, D.C. From the moment I first walked into the monumental neoclassical Main Justice Building on Pennsylvania Avenue, I knew that I’d come to a unique place.  The marble, the statuary, the New Deal-era murals, the glorious main library’s vaulted ceilings, gleaming oak, and book-laden shelves, and the pervasive air of deliberative rectitude and high seriousness enthralled me.

To be honest, I wasn’t a particularly good prosecutor to start with.  I was too young, too immature, too undisciplined.  But if I didn’t give the Justice Department all it deserved at the beginning of my career, it placed an indelible stamp on me.  During two tours with the Department, in which I served under Presidents Carter, Reagan, Bush Sr., and Clinton, I shed most of my initial gauzily romantic infatuation.  But in its place grew a deep appreciation of the central role the Justice Department plays in maintaining the rule of law in a democratic state and a hardnosed set of convictions about the values that must inform the Department’s work if republican government is to survive in America.

Mr. Trump and the congressional Republican Party are on the brink of grievously wounding the Department of Justice. If they succeed, they will have weakened, perhaps permanently, a pillar of American constitutionalism and one of its most important bulwarks against creeping autocracy.  Let me explain:

The U.S. Department of Justice is immensely powerful.  Neither its reach nor its resources are infinite.  But as to any individual, group, or corporation it elects to pursue, it can bring to bear nearly unlimited money, dedicated staff, and first-rank legal talent. Those lawyers are empowered to direct the immense resources of multiple federal law enforcement agencies — FBI, DEA, ATF, Secret Service, Customs, ICE, postal inspectors, and more. In appropriate cases, they can deploy investigators and experts from federal regulatory agencies like the SEC, the EPA, OSHA, and the FDA, and even in certain circumstances, military and intelligence assets.  Only Justice Department prosecutors can command the unmatched coercive powers of a federal grand jury.  Only federal prosecutors have the luxury of selecting criminal charges from the sprawling federal code, a body of law so all-encompassing that it is only slightly facetious to suggest that it criminalizes some aspect of virtually every human activity.  And the Department’s long arm can reach into every state and across oceans.

Some observers are understandably leery of DOJ’s immense power. But in the modern world, this power is essential. Without it, there would be no authority capable of combating organized crime, international criminal cartels, domestic terrorism, entrenched federal, state, and local political corruption, or complex financial fraud.  Without the Department of Justice, there would be no effective public counterweight to the staggering wealth and sometimes pernicious influence of modern multinational corporations.  The private centers of power Teddy Roosevelt labeled “malefactors of great wealth” have in our day metastasized to a degree T.R. could not have imagined.  Without DOJ, they would be unchecked.

With the power to combat great evil necessarily comes the power to inflict great harm. Conviction of a federal crime can mean imprisonment, impoverishment, even death.  Its collateral consequences can include public stigma, loss of livelihood, and destruction of family.  Even the wealthiest corporations – Enron and Arthur Andersen, to name but two – can be destroyed.  Just being investigated by DOJ can inflict a steep price in time, money, and sullied reputation.

Power this crushing is only tolerable in a free society if it is exercised — and generally believed to be exercised — impartially, humanely, and in the interests of justice in the broadest and best sense. My youthful infatuation with the Department, and my lifelong affection for it, rests on the conviction that, with occasional exceptions inevitable in any human institution, the men and women of the Department, both career public servants and political appointees, are conscious of their grave responsibility and strive to wield their power impartially and with honor.  Critically, the Department’s people have fiercely resisted pressure to ignore the crimes of officeholders and their friends, or to transform the sword of criminal justice into a weapon against the political opponents of the sitting president.  Because of this tradition long upheld, the Department’s prosecutors enjoy a reputation for professional probity every bit as central to their success as the raw institutional power at their disposal.

It is by now obvious that Mr. Trump cares nothing about the institutional integrity of the Justice Department, and has actively tried to corrupt it.  He tried to convince FBI Director James Comey not to investigate presidential adviser Michael Flynn, and then fired Comey when the Director wouldn’t take the hint. He fulminates nearly daily about Robert Mueller’s investigation of Russian election interference and flirts publicly with obstructive maneuvers like firing Mueller, firing Attorney General Sessions, or pardoning everyone involved in the case. And recently he has tried to pressure the Department into investigating a series of long-resolved or self-evidently bogus allegations against his former opponent Hillary Clinton and other Democrats.

Trump’s effort to strong-arm the Department into abandoning its most basic values by initiating baseless, politically motivated investigations is distressing enough.  I have argued previously that it constitutes an impeachable offense. But one could (almost) dismiss Trump’s tweets and barks on this subject as yet another instance of his singular misunderstanding of American government.  And one could be comforted by the likelihood that his outbursts would be rendered ineffectual by the resistance they would surely encounter from others in government with a better sense of constitutional norms.

The Republicans on the House Judiciary Committee have now stripped away that comfort.  In late July, seventeen Republican committee members sent a letter to Jeff Sessions demanding that the Justice Department investigate a grab-bag of spurious charges against Secretary Clinton and others.  During Attorney General Sessions’ appearance before the committee earlier this week, Republican members hammered ceaselessly on their demand for a new special prosecutor to investigate Secretary Clinton, with special emphasis on long-since debunked claims about the so-called “Uranium One” affair.  Sessions has yielded at least so far as to assign “senior federal prosecutors” to assess the Republicans’ requests.

I am not sure people understand how shatteringly consequential this is.  It is bad enough to have Mr. Trump – whom, sadly, no one now expects to understand democratic norms — seek to weaponize the Department of Justice.  But what we have witnessed in the months leading up to the Sessions hearing is the utter moral degradation of House Republicans. Seventeen Republican congressmen, virtually all lawyers, many of them former prosecutors, specially selected by their party to sit on a Committee dedicated to ensuring the integrity of the American justice system, are demanding that the Justice Department investigate a list of allegations almost every one of which is obviously either legally or factually baseless. And the Republicans know it.  No sentient lawyer could think otherwise.

The game here is obvious.  The Mueller investigation into the real effort, attested to by every U.S. intelligence agency, of the Russians to rig an American presidential election is hurting Mr. Trump and the Republicans politically. It hurts so much precisely because it is being conducted by the Department of Justice under the direction of a Republican prosecutor of impeccable credentials.  Republican members of the Judiciary Committee desperately want to create a diversion, a means of planting in the public mind the impression that, whatever Trump did, Democrats did something as bad or worse.  It doesn’t matter if any real crime is uncovered, only that an investigation, with all the inevitable publicity, be commenced.  Of course, the House could investigate all these matters itself.   But the Republicans know that such investigations are easily dismissed as partisan.  Thus, only an investigation that bears the trusted stamp of the Justice Department will serve their political ends.

In short, the congressional Republican Party is consciously attempting to use the Justice Department’s hard-won, carefully guarded reputation for fairness and integrity to create a diversion from the real issues being investigated by Robert Mueller and the political damage that investigation is causing Mr. Trump and his allies.

Whether Jeff Sessions will crumple under the mutually reinforcing pressures from Mr. Trump, congressional Republicans, and his own self-interest remains to be seen.  If he does, the long-term damage to both American electoral democracy and the rule of law could be profound.

Several commentators, including Republican stalwarts like former Attorney General Michael Mukasey, have observed that launching criminal investigations of defeated presidential candidates is contrary to American norms and akin to the practices of “banana republics.”  This is profoundly true, but I suspect many do not fully appreciate the reference.

An indispensable feature of successful democracies is the peaceful transfer of power from one elected administration to its popularly chosen successor. Such transfers reliably occur only if the loser of an election knows that the sole consequence of losing is a return to private life. But if the predictable consequence of losing is criminal prosecution by the winner, then losing becomes unthinkable and the contestants are tempted to ever more extreme measures to prevent it.  Vicious propaganda, overt corruption, strong-arm tactics, ethnic incitement, all can be rationalized. All are soon normalized.  And democracy dies.  This is the all-too-common story in the developing world.  But regression is perfectly possible among mature democracies like our own.

Even if nothing quite so dramatic occurs and the Republican push for a Potemkin special prosecutor produces only a long, distracting, but ultimately unsuccessful investigation of Mr. Trump’s opponents, the damage to the Justice Department and thus to the rule of law would be lasting.  The best reading of the Department’s enigmatic Latin motto, Qui Pro Domina Justitia Sequitur, is that the Department’s lawyers are those “who prosecute on behalf of justice.” We trust the Justice Department with its immense powers because we trust it to wield those powers in pursuit of justice – to be honest, to be fair, to be apolitical.  And the Justice Department owes its effectiveness before courts and juries to our confidence in its probity.  If the public ever surrenders that confidence in favor of enduring suspicion that the Department is merely a tool of the party occupying the White House, then federal law enforcement will be irremediably crippled.  Every corrupt politician, slimy fraudster, and predatory corporation will scream “Politics!” at the first hint of a federal indictment.  Some will be believed.  And all of us will be less secure.

Not too long after the last election, I was on Capitol Hill talking with an aide to a Republican senator.  The probable appointment of Jeff Sessions as attorney general came up. When I wrinkled my nose a bit, my companion said, “At least with Jeff Sessions, you get a guy who knows the Justice Department and is committed to the rule of law.”

We will soon see if he was right.  Or whether Mr. Sessions will set in motion a train of events that could fracture an institution central to American democracy.

Frank Bowman

 

 

 

“Standing” in the Emoluments Lawsuits Against Mr. Trump: An Answer to a Reader’s Question

15 Wednesday Nov 2017

Posted by in Uncategorized

≈ 1 Comment

Tags

, , , ,

Reader Richard Weisfeld has asked a question that may puzzle others.  He writes:

I’d be thankful if you could offer some insight: I’ve read about “standing”, a concept I generally do understand, even as a layman, in regard to the foreign emoluments clause. Specifically, I read that Washington DC hotel owners needed to bring suit, because they had standing, having lost business to the Trump Hotel. Where does the idea come from that this clause was somehow in the constitution to protect businesses from the president and unfair competition, as opposed to being there to protect every American citizen, and the republic itself, from corrupt presidents, or presidents who would be swayed by foreign powers or entities, to take actions against the interests of the United States? How is that not the obvious primary purpose for the clause? How does every citizen not have standing? There must be some historic line of reasoning, but I have not heard one explained or reported.

This is a great question, and resolving it presents perhaps the largest challenge to the plaintiffs in the emoluments lawsuits.  The short answer runs like this —

Leaving the emoluments clauses to one side for a moment, federal courts only hear cases in which there is an actual “case or controversy” — a concrete real world dispute in a matter over which the particular court has “subject matter jurisdiction” and that can be resolved by an order from the court, whether it be a finding of guilt in a criminal case, liability in a civil case, or an order of injunctive relief compelling somebody to do something.  Federal courts do not render “advisory opinions” — legal opinions on a matter that has not actually manifested itself in a concrete real world dispute.

Therefore, the first hurdle any plaintiff in federal court must overcome is to demonstrate that he, she, or it has an actual stake in a real world dispute. This is a problem in the emoluments clause suits against Mr. Trump. As Mr. Weisfeld points out, in a general sense, all U.S. citizens have an interest in ensuring that the president and all other federal officials adhere to the constitution. But the federal courts long ago decided that that sort of generalized interest in constitutional order is customarily not sufficient to grant standing. Some more direct impact on the plaintiff is required. Hence, the hotel owners — the argument being that Mr. Trump is violating the foreign emoluments clause by drawing foreign government guests to his Washington hotel and thus causing a discrete injury to other hoteliers who would otherwise get the business.

I am not an expert on standing in federal civil actions, and thus have no intelligent opinion about this approach. I have to say, however, that it feels thin to me. Better informed observers than I have opined that this may prove to be the Achilles heel of the plaintiffs’ case.

Even if the courts grant standing to some of the emoluments plaintiffs, and if the courts conclude that the president is covered by the foreign emoluments clause, and if the courts conclude that some kinds of commercial transactions qualify as prohibited emoluments, there remains the question of remedy. Perhaps a court could order a president to disgorge payments received as prohibited foreign emoluments. Perhaps it could issue an injunction ordering him to cease engaging in activities that violated the clause. So, at best, the current private lawsuits annoy Mr. Trump, strip him of some cash, and prevent him from making some more in the future. But even if a court decides to go that far, it cannot order the president to vacate his office.

If that’s right, you may well ask, “Then what good is the foreign emoluments clause?” The answer, I think, is that the Framers plainly believed that a president could be impeached for a violation of the clause. Edmund Randolph, a member of the Virginia delegation to the Philadelphia convention, said in the later Virginia Ratifying Convention:

There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached.

Thus, it may well prove that there is no meaningful remedy available in courts for presidential violations of the emoluments clauses, and that the only meaningful remedy for such a violation is to impeach, convict, and remove the president under Article II, Section 4.

Frank Bowman