Author Archives: impeachableoffenses

A bit more on emoluments: Fun with old dictionaries

17 Monday Jul 2017

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Some readers may be aware that an organization called Citizens for Responsibility and Ethics in Washington (CREW) has filed a lawsuit claiming that Mr. Trump has violated the foreign emoluments clause of the constitution by accepting, through his various businesses, payments from foreign governments.  The Justice Department has sought to have the CREW suit dismissed.

One of DOJ’s arguments is that, at the time the Constitution was written and ratified, the word “emoluments” would have been understood as a term of art meaning “profit arising from office or employ.”  The implication of this definition is that the foreign emoluments prohibited by the Constitution would not include payments made to a president or other office holder as part of private business transactions formally separate from the conduct of the recipient’s government office.

DOJ’s endorsement of this narrow definition of emolument rests heavily on two particular dictionaries in circulation during the founding period –  A Complete and Universal English Dictionary on a New Plan by James Barclay and The Difference between Words, Esteemed Synonymous, in the English Language by John Trusler.

In a new article, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523-1806, Professor John Mikhail of Georgetown Law School,  pretty thoroughly shreds DOJ’s dictionary-based argument.  He shows that almost every dictionary extant in the founding era contained far broader definitions of “emolument,” definitions that easily embrace payments to an office-holder’s private businesses.  Not only does it appear that DOJ cherry-picked its dictionaries, but Professor Mikhail makes a convincing case that the two dictionaries in question were probably not either possessed or relied upon by the founders.  (The best part of the Mikhail article for true legal history nerds is that it includes pdf images of the relevant pages from all the old dictionaries.}

Professor Mikhail’s work by no means proves that the Foreign Emoluments Clause does cover Mr. Trump’s business transactions, but it does cut away one prop of the DOJ argument to the contrary.

Emoluments: A teaser

14 Friday Jul 2017

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Should impeachment of Mr. Trump ever become a serious prospect, the Foreign Emoluments Clause of the constitution may be part of the conversation.  Article I, Section 9, Clause 8, in which the clause resides, 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.

The question in Mr. Trump’s case, of course, is whether payments by foreign governments to any of Mr. Trump’s businesses constitute prohibited emoluments.  Some observers take the position that payments, however large and lucrative, that are part of commercial transactions are not “emoluments.”  Others, emphasizing the anti-corruption purpose of the clause and recognizing the likelihood that foreign governments will try to curry favor with Mr. Trump by enriching him, disagree.

Another strand of the argument relates to the even more fundamental question of whether a president is covered by the Clause at all.  The most vocal exponent of the view that presidents aren’t covered has been a fellow named Seth Barrett Tillman, a lecturer in law from, of all places, the National University of Ireland in Maynooth.  He and co-author Josh Blackman had an op-ed in the New York Times yesterday espousing this view.

I haven’t yet studied the emoluments question, so I do not want to be unduly dismissive of Professor Tillman’s position.  Still, at first blush, his argument seems thin for at least two reasons.

First, his position rests heavily on the fact that several early presidents accepted and kept single ceremonial gifts like the key to the Bastille the Marquis de Lafayette gave George Washington, or the bust of Czar Alexander I sent to Thomas Jefferson by the Russian government.  Tillman discounts the fact that later presidents either treated such gifts as property of the nation or, if they wanted to keep them personally, asked congressional permission.  Tillman’s argument that events in the founding era have more interpretive value than later practice is a common trope in constitutional debate.  But it is never a dispositive argument, and, to me, carries even less weight than usual when it relates to events as obscure as the receipt of single ceremonial diplomatic presents.

After all, the point of the clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

Second, when interpreting constitutional language, considerable weight ought to be given to its apparent purpose. Again, the foreign emoluments clause was enacted because the Framers were realists who recognized that men are not angels and that the judgment even of persons of moderate virtue can be distorted by sufficiently generous rewards.  While those Framers would not, I submit, have had the least concern on this score about one-off ceremonial gifts of a key or a bust, they would quite certainly have thought that payments of hundreds of thousands or even millions of readily spendable dollars could have the corrupting effect they feared.

These considerations hardly settle the question.  Professor Tillman also makes the textual argument that the phrase “person holding an office of profit or trust under [the United States” doesn’t include any elected official.  And there remains the, to me, more substantial question of whether payments, however large, to a president’s businesses can be prohibited emoluments.  I’ll return to those another time.

Until then, if you are interested in reading more, I commend you to this page of the Constitution Center website, which explains the issue in some detail and features the differing perspectives of Professor Tillman and Professor Zephyr Teachout.

The Russian lawyer meeting and election law crimes: The experts weigh in

13 Thursday Jul 2017

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By Frank Bowman

In yesterday’s post, I expressed grave doubt about the widely discussed suggestion that the June 16, 2016 meeting between Donald Trump, Jr., Jared Kushner, and Paul Manafort and a Russian lawyer constituted a criminal violation of federal election law. To check myself, I turned to the experts on CrimProf, a listserve that includes a high percentage of the country’s criminal law professors.  I put my analysis before them and asked for feedback.

A lively online discussion ensued, from which I learned a great deal.  I promised the group that I’d try to summarize the main points they raised and share them here, along with my own conclusions.  So here goes:

The law in question – it really is criminal

Title 52, United States Code, Section 30121, makes it unlawful for a “foreign national” to make “a contribution or donation of money or other thing of value … in connection with a Federal, State, or local election.” The statute also makes it unlawful for an American to “solicit, accept, or receive” such a contribution from a foreign national.

A few folks in the national media have raised the question of whether a violation of this statute could be criminal, or whether violations were solely within the province of the Federal Election Commission.  On CrimProf, Professor Peter Henning pointed out that the operative criminal statute is 52 USC Sec. 30109(d), which provides:

(1)(A) Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure–

(i) aggregating $25,000 or more during a calendar year shall be fined under Title 18, or imprisoned for not more than 5 years, or both; or

(ii) aggregating $2,000 or more (but less than $25,000) during a calendar year shall be fined under such title, or imprisoned for not more than 1 year, or both.

In other words, an American who “knowingly and willfully” violates the Section 30121 prohibition on contributions from foreign nationals commits a crime.  It was suggested that since Section 30109(d)(1)(A) refers to “any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure” and doesn’t specifically mention “soliciting” a foreign contribution, that it wouldn’t apply to Trump Jr. and friends if, as they claim, they didn’t actually get anything from the Russian lawyer.  That’s a possible reading, but I think the better interpretation is that the quoted language is simply a cross-reference to those sections of federal election law which generally relate to contributions, donations, or expenditures.

“Willfully”

Professor Miriam Baer emphasized that the word “willfully” in the criminal statute is sometimes interpreted by federal courts to require that the defendant was consciously aware that he was committing a crime.  Professor Henning noted that sometimes “willfully” requires only a general knowledge of wrongfulness, citing United States v. Danielczyk.  Particularly, if “willfully” in Section 30109 has the strong meaning, then Trump Jr. and friends could raise two defenses.

First, Trump Jr. and Jared Kushner could argue that, as total political neophytes, they had no knowledge of federal election law and thus couldn’t have acted “willfully.”  Of course, Paul Manafort, a career political operative most of whose business in recent years has been with foreigners, could not plausibly make the same claim.  And the three of them attended the meeting together and presumably discussed its purpose in advance.

Second, as will become clearer below, it would be a real stretch to apply Section 30121 to the Russian lawyer meeting (at least given what we now know).  The best criminal law minds in the country disagree on the point.  The more doubtful it is that going to meet the Russian lawyer was a violation of election law, the harder it is to prove that Trump Jr. and friends acted “willfully” in the sense of being consciously aware that they were doing something illegal.

The big problem – “thing of value”

The doubt I expressed yesterday about the applicability of  Section 30121 to the Russian lawyer meeting was based on the phrase “thing of value.” The Russian lawyer was a foreign national, so it would be illegal for an American to solicit “a contribution or donation of money or any other thing of value” in connection with a federal election. The question is whether what Trump Jr. and company thought they were going to get –derogatory information about Hillary Clinton — would constitute a “thing of value” under this statute.

I argued two things:

First, although in many federal criminal statutes “thing of value” includes intangibles, this election statute seems best understood to refer to things that have readily quantifiable economic value.  Negative information about one’s political opponent seemed too intangible to fit that template.

Second, and more importantly, I argued that applying the law this way would be absurd and probably violative of the First Amendment. If Trump Jr. violated Section 30121 just by asking the Russian lawyer if she knew anything bad about Hillary Clinton, then the same would be true of any candidate for federal office or representative thereof who ever asked a non-American for unflattering information about an opponent.  And that can’t be right.

I heard several responses to these arguments:

The contention that information counts because it has economic value

Some very reputable scholars, including election law experts, have pointed out that federal courts have construed “thing of value” as used in campaign finance statutes to refer to intangibles, including various forms of information.  However, I am unconvinced that any of the cases cited treat pure information, in the sense of negative facts about an opponent, as a thing of value.  All of them appear to deal with services of one kind or another that have an economic value on the open market, such as contributor lists, polling services, campaign literature, and the like.

Nonetheless, on CrimProf, Professor Richard McAdams perceptively observed that, even though it seems absurd to suggest that asking a for information useful to a campaign could be soliciting a thing of value under election law:

There is an absurdity on the other side. If information cannot be a thing of value because it is intangible, then polling firms or research firms could provide mass quantities of information with a serious market value and it wouldn’t matter if the supplier were foreign (or had already maxed out in dollar contributions). So there needs to be some murky distinction between soliciting information by asking a simple question the isolated answer to which requires no great research and therefore has no market value, and asking for a volume of information that would fetch a high price from a research firm.

Professor McAdams went on to suggest that, because the information Trump Jr. expected to get from the Russian lawyer was said to emanate from the Russian government, it might be akin to the product of a commercial research firm and thus constitute a thing of value under the statute.  A lively discussion ensued amongst the criminal law cognoscenti.

Having considered all the arguments carefully, I concluded:

  1. Information services would probably fall under the statute.  If a campaign were to approach a foreign-owned polling firm or data analysis company and say, “We’d like you to perform polling or data analysis and give us the results, free of charge,” that would surely count as soliciting something of value.  The same might also be true if the foreign company had already performed the work and was offering the results for sale, or was keeping it secret as proprietary information.
  2. But the dividing line can’t be that the information sought happens to be available from a foreign governmental entity that has already expended economically valuable resources to obtain it.  Consider the example in my blog post of yesterday of a campaign seeking information about the rumor that an opponent was a regular visitor to juvenile sex traffickers in Thailand.  Assume that the best source of information about this possibility was the Thai national police.  They would certainly have employed a large, costly investigative apparatus to secure the information in question.  Would we really say that it’s a crime to ask the Thai government about this?

 

Professor McAdams, while conceding the force of this point, remained troubled by the fact that, in this case, Trump Jr. and company were consciously seeking the aid of a foreign government, one traditionally hostile to the United States, that they were told was trying to influence the outcome of the American election.  To put it as mildly as possible, I share that concern.  Indeed, it is this precisely this aspect of the meeting that ought to appall any patriotic American and that makes it so genuinely earth-shaking.

That said, merely because this meeting was self-evidently wrong does not make it a violation of 52 U.S.C. Sections 30121 and 30109(d).  I cannot see how one could sensibly interpret these statutes to prohibit the Trump Jr. – Russian lawyer meeting while permitting the nearly infinite range of informational inquiries by American campaigns to foreign persons and governments that plainly ought to be permissible if the American electorate is to have all the information it ought to have when making democratic choices.

As but one example among many of the complications such a distinction would involve, consider the suggestion of several CrimProf colleagues that it matters that Russia is traditionally hostile to the interests of the United States and was consciously trying to influence the election.  How, for purposes of Section 30121, would one distinguish between hostile and friendly foreign powers? Is China, our largest trading partner, but a geopolitical rival, hostile?  If Russia is hostile now, was it hostile during the Yeltsin era and before Putin?  Does the foreign power have to be both hostile and trying to influence the election?  Or is a desire to influence the election sufficient? A good many of our NATO allies were horrified at the prospect of Mr. Trump as president.  Suppose that an agency or official of one of them possessed damaging, but true, information on Mr. Trump.  Would we seriously propose to make it criminal for a supporter of Secretary Clinton to ask that agency or official for the information?

The First Amendment arguments

I am not a First Amendment expert.  However, in yesterday’s post, I surmised that applying Section 30121 to the Russian lawyer would violate the First Amendment.  After listening to the arguments of those better informed on this point, I am convinced that my original concern is valid.  Rather than trying to summarize the arguments here, I commend my readers to the published debate between Professor Richard Hasen who ridicules the First Amendment in argument in Slate, and Professor Eugene Volokh, who articulates the First Amendment argument for the Washington Post.  Suffice it to say that I think Professor Volokh has by far the better of this argument.

Bottom Line

I remain unconvinced that, based on the known facts, the election law statutes cover what Trump Jr. and company are said to have done.  I am convinced that even if the language of the statutes could be stretched that far, such an interpretation would run afoul of the First Amendment.  Finally, I am absolutely convinced that – absent significant new information – no sensible prosecutor, and certainly no sensible prosecutor with a honest claim to political neutrality, would seek an indictment under the referenced election law statutes.

This by no means changes my view that the Russian lawyer meeting is a huge deal.  It may be relevant, even central, to whether other criminal laws may have been violated. More importantly, it confirms that the Russian collusion investigation is not a wishful figment of the liberal imagination, but is instead a serious business and a serious threat to Mr. Trump’s presidency.

I would nonetheless close on this cautionary note.  As conservative Andrew McCarthy eloquently contends in National Review,  the critical point is not whether the Russian lawyer meeting in particular or the Trump campaign’s contacts with Russia generally were crime, but whether they constitute impeachable matter.  I yield to no one in my disapproval of Mr. Trump, but McCarthy is right that anti-Trump lawyers and scholars err when they strain to shoehorn every Trumpian malfeasance into a criminal statute. At its most extreme, this behavior is both unseemly and hypocritical.  We must be careful to apply the same standards of professional judgement to Mr. Trump and his subordinates that we would apply to political figures we like better.  Otherwise, we risk depleting the credibility of the professoriate, which will be sorely needed in the event criminal charges against Trump administration officials or impeachment of Mr. Trump himself ever become live possibilities.

 

Criminal election law violations by Trump Jr. and company? I don’t think so

12 Wednesday Jul 2017

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At the end of yesterday’s post about the meeting between Donald Trump, Jr., Jared Kushner, Paul Manafort and the Russian lawyer, I alluded to the suggestion flying around the internet that the meeting might have violated criminal provisions of federal election law.  I deferred commenting on this suggestion until I had a chance to read up on it a bit.

Having done my reading, I incline to two conclusions:

(1) The Russian lawyer meeting was genuinely scandalous and gives real impetus to the general concern that the Trump campaign colluded with Russian interests to affect the 2016 election, or at the least tried to, and (2) While that meeting might form some part of the evidence that Trump Jr. and others violated the federal conspiracy statute, 18 USC 371, or that Trump Sr. obstructed justice in relation the Comey firing, just asking someone who happens to be a foreign national if they have negative information about one’s political adversary can’t possibly be a federal felony.

The statute at issue is 52 U.S.C. 30121, which states:

It shall be unlawful for—

(1) a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election …

(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) … from a foreign national.

 

The Russian lawyer was a foreign national (whether or not she was an official or quasi-official emissary of the Russian government), so it would be illegal for Trump Jr. and company to solicit “a contribution or donation of money or any other thing of value.”  The question is whether derogatory information about Hillary Clinton would constitute a “thing of value” under this statute.

For a pretty comprehensive  review of the arguments about this, see Dahlia Lithwick’s piece yesterday in Slate. The line-up of legal heavyweights willing to entertain the idea that what political pros call “opposition research” could count as a thing of value under Section 30121 is impressive, but I can’t buy it.

First, on the technical question, I’d side with the last expert Dahlia quotes, Professor Bob Weisberg of Stanford.  Under many federal criminal statutes, the phrase “thing of value” includes intangibles, but I think Professor Weisberg is right that, in this context, the law is better understood to refer to things that have readily quantifiable economic value.  Negative information about one’s political opponent seems a bit too intangible to me.

But the larger point that all those who think a Section 30121 violation occurred here seem to be missing is the sheer absurdity of their position.  If Trump Jr. violated Section 30121 just by asking the Russian lawyer if she knew anything bad about Hillary Clinton, then the same would necessarily be true of any candidate for federal office or representative thereof who ever asked any person who was not a US citizen for unflattering information about an opponent.

Suppose a congressional candidate heard rumors that her opponent was making regular sex tourism trips to Thailand to engage in sex with minors.  Can anyone seriously believe that it would be a federal crime to ask a Thai national for proof that this was true?

Or suppose that a presidential candidate heard rumors that one of his primary opponents was falsely claiming to have graduated from Oxford University in England.  Would we really suggest that the candidate’s representatives could not legally call up the English citizen registrar of Oxford University to find out the truth?

The proposed reading of Section 30121 is not only absurd, but is probably in fatal tension with the First Amendment.  How could the federal criminal law possibly be read to bar candidates in federal elections from seeking information necessary for informed democratic choice from the 7 billion people who don’t happen to be US nationals?

As Mr. Bumble said, the law is sometimes “a ass, a idiot.”  But it is not this idiotic.

I repeat that the Russian lawyer meeting is a very big deal.  But a prosecutable violation of Section 30121 it was not.

 

 

The Russian lawyer meeting and obstruction of justice

11 Tuesday Jul 2017

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I have been having an ongoing debate with Professor Sam Buell, Professor Alan Dershowitz, and others about whether, based on currently available information, Mr. Trump may have violated federal obstruction of justice statutes in connection with the Russia collusion investigation and the firing of FBI Director James Comey.  The technical point in contention has been the circumstances under which a president who delays or halts a federal investigation can be said to have acted with the required mental state of “corruptly.”

I have maintained that, given the president’s unique position at the apex of the executive branch, corrupt intent could only be proven if it were shown that, in acting to slow or stop an investigation, the president was not acting in good faith to promote the public interest, but was instead protecting his private interests. Such proof could include evidence that he  knew or suspected that the investigation might implicate himself, his family, or close aides in wrongdoing.  I expressed skepticism that the then-publicly-available facts were sufficient to establish that state of mind for Mr. Trump.

The recent revelations about the June 16, 2016, meeting between Donald Trump, Jr., Jared Kushner, Paul Manafort, and a Russian lawyer they were told was representing the Russian government and was offering dirt on Hillary Clinton may change the calculus. As I discussed in my last post, that meeting  might indeed prove to be technically criminal.  It surely came close enough to a variety of legal red lines that, assuming Trump either knew of it in advance or came to know of it before he began to meddle with Mr. Comey and the Russian investigation, he would certainly have been worried that the Russian investigation would reveal the meeting and produce legal exposure for his family, his campaign staff, and possibly himself.  That sort of thing would bridge the gap that has, so far, separated my view of the state of the evidence on obstruction from that of Professor Buell.

 

The Russian lawyer meeting, 371 conspiracies, and election law

11 Tuesday Jul 2017

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In recent days, the media has been full of reports about a meeting on June 16, 2016, shortly after Mr. Trump clinched the Republican presidential nomination, between Donald Trump, Jr., Jared Kushner, Paul Manafort (Trump’s then-campaign manager) and a Russian lawyer who was allegedly offering dirt on Hillary Clinton.  New details emerged today in a New York Times story exposing emails that seem to show that Trump Jr. was told that the meeting would be with a “Russian government attorney,” and that “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”

As with many of the revelations about Trump campaign connections with Russia, the story is disturbing, at a minimum, as yet another illustration of the combination of naivete and B-movie skulduggery to which Mr. Trump’s family and retainers are so distressingly prone.  But the newly disclosed email text threatens to take the matter to another level insofar as it seems to prove both that Trump’s children and campaign manager were told, expressly, that the Russian government was trying to help Trump and that they were willing to personally involve themselves in those efforts.

For purposes of this blog, the question is whether the meeting constitutes a criminal offense or any part of a case for impeachment of Mr. Trump.

Media reports on the meeting have spawned a swarm of commentary on its possible legal significance.  I will focus here on two points: (1) whether the meeting might constitute a freestanding violation of 18 USC 371, the federal conspiracy statute, and if so, whether Mr. Trump himself would be implicated in such a case;  and (2) whether the meeting might violate federal election law provisions barring soliciting something of value from a foreign entity.  In my next post I will address briefly how this meeting might impact the ongoing discussion I have been having with Professor Buell, Professor Dershowitz, and others about whether Mr. Trump could, on present evidence, be guilty of obstruction of justice.

Conspiracy – 18 USC 371

Section 371 of Title 18 of the US Code is the general federal conspiracy statute.  I say “general” because lots of other federal statutes have specific provisions making it a crime to conspire to violate them, but Section 371 is the omnibus federal conspiracy statute.  It reads:

“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

The statute has two basic parts.  The first, which prohibits conspiring “to commit any offense against the United States,” means that it is a felony to conspire to commit any other felony in the federal criminal code.  For this part of the statute to come into play, a prosecutor must specify some other crime defined in some other federal statute that the conspirators agreed to commit.

The second part of Section 371, which prohibits conspiring “to defraud the United States, or any agency thereof in any manner or for any purpose” is of immediate interest because it makes it a federal felony to conspire to “defraud” the United States in ways that might not be criminal if done by a single person.  “Neither the conspiracy’s goal, nor the means to achieve it needs to be independently illegal.”  United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir. 1993).

In a thorough and extremely informative post on his blog, Sidebars, Professor Randall Eliason explains the nuances of Section 371 and argues that:

“Running a free and fair Presidential election is a core lawful function of the federal government. Any agreement to secretly and dishonestly attempt to interfere with a federal election would fall squarely within section 371’s prohibition on conspiracies to defraud the United States.”

He has also argued in a recent Washington Post op-ed that the Trump Jr. – Russian lawyer meeting at the least lays critical groundwork for a charge that some subset of Trump campaign officials violated the “defraud the United States” clause of Section 371.

My primary reservation about proving a Section 371 conspiracy to defraud the United States in relation to the Russian lawyer meeting is that such a conspiracy generally requires proof of a traditional element of any fraud, which is false statement or dishonesty.  As the Supreme Court held in Hammerschmidt v. United States, 265 U.S. 182, 188 (1924)  :

“To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.”

I am not sure that a 371 “defraud the United States” offense would be committed if a political campaign openly sought unfavorable, but true, information about an opponent from a foreign government and, once the dirt was obtained, promulgated it without disguising its source.  But that is not what happened here.  Throughout the campaign, Mr. Trump and all his surrogates vigorously denied any contact or collusion with Russian representatives.  The existence of such contacts has been revealed by journalists and other outsiders.  If it could be shown that the Russian lawyer meeting was part of a pattern of conduct in which the Trump campaign solicited or encouraged the release by Russians or their surrogates of negative information about Secretary Clinton while keeping the campaign’s role secret, that in itself could satisfy the dishonesty element of a 371 “defraud the United States” conspiracy.

Moreover, if the activities of the Trump campaign, including but not limited to the Russian lawyer meeting, could be shown to violate another criminal statute, then the first clause of Section 371 comes back into play.

The newly revealed emails

The latest New York Times story certainly strengthens the case for a Section 371 conspiracy.  It is one thing for a political campaign to seek negative information on an opponent.  That sort of thing feels unseemly, but Trump Jr. is right that it is standard practice.  Nonetheless, not all sources and means of securing such information are either normal or legal.  For example, a political campaign could not burglarize the opposition’s headquarters to obtain such information (see, Nixon, Richard) nor extort it with threats. For an American presidential campaign to collaborate consciously and actively with a traditionally hostile foreign power to obtain negative information about an opponent is certainly a violation of every historical norm and could, without partisan exaggeration, be categorized as an attempt to subvert the American electoral process and thus to “defraud the United States.”

Donald Trump Jr. has claimed that the meeting produced nothing of substance and that it was terminated quickly.  But for purposes of proving a Section 371 conspiracy, that would not matter.  A conspiracy need not attain its illegal object to be prosecutable.  It is sufficient that the conspirators agreed to achieve an illegal end and commit one overt act in furtherance of that object.

That said, the subject of this blog is presidential impeachment, so the question for our purposes is whether the Russian lawyer meeting exposes President Donald Trump, Sr., to criminal liability, and thus makes the commission of an impeachable offense more likely.  The short answer is a cautious “maybe.”  Even if one accepts that the meeting was part of a Section 371 conspiracy prosecutable against Donald Trump, Jr., Jared Kushner, and Paul Manafort, the essence of a criminal conspiracy is agreement between the conspirators, meaning that there must be an express or implied agreement between them to achieve the conspiratorial object.

Donald Jr. has claimed that his father “knew nothing of the meeting.”  Even if true, this statement could mean any of a number of things.  It could mean that Mr. Trump did not know of the Russian lawyer meeting in advance of its occurrence.  It could mean that, while he did not know of it in advance, he was told about it later in the campaign season.  It could mean that he never heard about it until after the election was over, or even that he first heard of it when it was disclosed in the media during the last week.

I confess to thinking it highly implausible that Mr. Trump did not know of this meeting either before or shortly after it occurred.  His fascination with scurrilous gossip about his perceived enemies has been a well-known feature of his character for decades.  And the idea that his son, his son-in-law, and his campaign manager would all take a meeting with a possible foreign source of dirt on Hillary Clinton and not tell him about it strains credulity.

That said, even knowledge of the meeting does not prove participation in a criminal conspiracy.  More will need to be known before concluding either that the actual participants committed any crime or that Mr. Trump was part of a conspiracy to commit that crime.  All we can say now is that the Russian lawyer meeting is likely to be of increasing interest as further revelations occur.

Federal Election Law Violations

A number of commentators have argued that the Russian lawyer meeting is a violation of federal election law.  I do not know enough about that field to have an immediate opinion on the question (though I will be reading up).  But if this view is correct, it would strengthen the case for a 371 conspiracy charge against the meeting’s participants and perhaps others by providing a separate crime that would constitute the “offense” necessary for prosecution under the first prong of Section 371.

 

Professor Buell responds on obstruction

10 Monday Jul 2017

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Several days ago, I commented on Professor Sam Buell’s excellent article in Slate on whether, on the publicly available evidence, Mr. Trump can be said to have committed the crime of obstruction of justice.  I suggested that Professor Buell was underappreciating the difficulties of proving the required mental state of “corruptly” when the defendant is the President of the United States.  Professor Buell was kind enough to respond briefly to my argument, saying:

Frank, I think we are in agreement about where the one issue of substance lies, as I concede in my Slate piece. That’s a good sign. (They cut my piece by 1500 words by the way, and I didn’t use the term “slam dunk,” they did in the headline.) But perhaps neither of us is quite on the mark still. First, it just isn’t legally relevant to obstruction liability whether the underlying crime is there or whether the violator knows that. Second, your quite deft argument still suffers from the proves too much problem of the Dershowitz argument, with regard to what it suggests a president could legally do. Anything could be rationalized as in the national interest and rationalization isn’t a way of making mens rea go away. Otherwise a CEO could get away with accounting fraud on the argument that it’s better for the shareholders in the long run if the truth is suppressed. Third, I think we just disagree about whether there are enough clear facts to reach a conclusion about mens rea here. I don’t see the space for the argument you are allowing in this case, even if in another, especially given all the behavior towards Comey including clearing the room. But that’s a jury issue, which is almost always a place for reasonable minds to differ.

Best,
Sam 

At the risk of beating a dead horse, I continue to think that Professor Buell’s view fails to account for the special role of a president.  He is right that, most of the time, the existence of an underlying crime or the violator’s knowledge of it won’t be relevant to proving that the violator acted corruptly in impeding an investigation into a suspected crime.  The evils against which the obstruction statutes are directed are the purposeful interruption or frustration of legal processes either (a) by unauthorized persons, i.e., persons not legally empowered to make decisions about the course of the legal process, or (b) less commonly, by persons with legal authority to affect the legal process who employ that power corruptly

Professor Buell seems to be focused almost exclusively on the first category  Indeed, his example of a CEO committing accounting fraud illustrates the point nicely.  A CEO has no legal power to authorize accounting fraud.  More importantly, he has no legal power to decide how a government investigation into possible accounting fraud will proceed. Hence, Professor Buell is entirely correct that the CEO’s judgment about whether suppressing the truth about the accounting fraud is “better for the shareholders” is irrelevant to his guilt of obstruction of justice.  But that is because the value protected by obstruction statutes is not the private value of the well being of shareholders, but the public value of the integrity of the law.   And the CEO has no authority to make judgments on behalf of the public.  Hence, if he decides to impede a government investigation of accounting fraud, he acts corruptly regardless of whether there really is a fraud, whether he’s aware of it, or whether he thinks it would be better for shareholders if no investigation happened.  His mental state is “corrupt” because he knows that he is frustrating the ordinary course of the work of the law.

But the calculus changes when the alleged violator has the undoubted power to affect the course of a legal investigation.  In that case, it is insufficient to say, “X did something that caused an investigation to stall or a prosecution not to go forward.” If a patrolman on the beat decides not to follow up a lead from an informant, or a prosecutor on intake duty decides not to file a case presented by the police, or a D.A. in Florida decides not to pursue the death penalty in her jurisdiction, or the Attorney General of the United States decides not to pursue marijuana prosecutions in states that have legalized marijuana, or the President of the United States decides that the Justice Department will not pursue criminal remedies against, say, mine safety violators or environmental polluters, in every such instance the course of a criminal case is affected or perhaps frustrated entirely.  It would seem quite bizarre to associate any of these choices with the crime of obstruction, but in truth, any of them might be obstruction if the official’s decision was driven by a “corrupt” motive.

The dividing line between the ordinary exercise of lawful official discretion and criminal obstruction is whether the official exercised his or her lawful power over the course of legal processes in good faith – which essentially means using his or her best judgment to promote the public interest –or instead acted corruptly, meaning with an “improper purpose,” 18 USC 1505.   In the case of a public official, the calculation of whether there was improper purpose unavoidably involves a judgment about whether the official allowed calculations of private interest to distort or supplant entirely his obligation to employ in the public interest his lawful power over legal processes.

Thus, when a president – from whom all federal prosecutorial authority constitutionally flows – intervenes in the course of federal investigative processes, we cannot avoid inquiring into his private motives.  Only if he acts for illegitimate reasons, which prominently include protecting himself, his family, or close aides from well-founded investigative efforts, can he be found to have acted corruptly.  So, while Professor Buell is right that presidential knowledge or fear of the existence of an underlying crime is not an “element” of the crime of obstruction, in the case of a president, proof of such knowledge or fear would surely be a necessary component of proving the statutory element of corrupt intent.

As Professors Eric Posner and Daniel Hemel put it:

“We think a reasonable approach would be to say that a President commits obstruction of justice when he seeks to stop an investigation that he believes may bring to light evidence of criminal activity by himself, his family members, or his top aides, and possibly merely embarrassing information as well …. But it should be a defense if the President can show that he acted consistently with his constitutional role as the faithful executor of federal laws and as commander in chief. A President who stops an investigation because of urgent national security priorities would not be criminally liable.“

Which brings us to the facts.  Professor Buell is on record as thinking there are enough facts to prove corrupt intent.  I have been more cautious.  Which of us is right in the abstract is really beside the point because the facts are evolving and the question of whether Mr. Trump has obstructed justice will be resolved (if it ever is) many months from now based on far more information than is now available.

And as I will discuss in my next post, some facts have emerged in the last day or so that make the obstruction case stronger under either Professor Buell’s view or mine.

Sam Buell on Obstruction

08 Saturday Jul 2017

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Professor Sam Buell of Duke Law School, one of the real bright lights in American law – a former lead prosecutor in the Enron case and a truly brilliant scholar – has provided his take on the criminal obstruction of justice case against Mr. Trump in Slate. http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/the_obstruction_of_justice_case_against_trump_is_already_a_slam_dunk.html

As much as I respect Professor Buell’s judgment, I have to say I think that, quite uncharacteristically, he’s getting a bit ahead of the evidence and, perhaps,  underappreciating the complications presented by a prosecution of a president.

Professor Buell argues, quite correctly, that “the president’s authority over federal law enforcement does not include the freedom to prevent investigation and prosecution of himself and his close aides.”  But no serious person contends otherwise.  The question at hand – the one Professor Buell undertakes to answer in Slate – is not whether any president is free to block any criminal investigation regardless of circumstance, but whether, on the known facts, this President has violated several very particular statutes – 18 USC 1503 or 18 USC 1512.

And the premise I don’t think Professor Buell takes seriously enough – at least in Slate – is that a president has the constitutional power to stop a criminal investigation, even into his own close aides, unless he does so “corruptly.”  I don’t want to be unfair to Professor Buell’s argument, but at least in what he writes in Slate, he seems to assume that the mere closeness of the aide makes the act of stopping an investigation corrupt.  I think, for a president, the issue is much trickier than that.

As I’ve argued at greater length previously, two things seem clear, at least to me: First, I think a president can certainly order the Justice Department not to pursue an investigation he, in good faith, deems baseless. Second, I think a president can, constitutionally and without violating federal criminal law, even choose not to prosecute a provable criminal case against a close subordinate executive branch official if the president makes the good faith judgment that the declination would be in the best interests of justice or in the national interest.

Neither proposition means, as folks like Alan Dershowitz have implied, that any such action by a president is both constitutional and legal.    But they do mean that a prosecutor has to do more than show that there is some (undefined) degree of institutional or personal connection between the president and the investigative target.  For example, it may well be that the Department of Justice now has solid evidence that General Flynn violated 18 USC 1001, which prohibits lying to federal agents.  One can fairly argue that Trump could tell DOJ to drop that case, and do so without committing obstruction, if his motive in doing so was simply that he thought Flynn was a good public servant and that a criminal prosecution for lies would be overkill.  If that’s all the gov’t could show, Trump would look bad.  And maybe Congress would later decide that going too easy on your friends is impeachable.  But, on those facts, would this constitute the crime of obstruction?  I doubt it.

The result changes, at least for me, if Mr. Trump’s motive in trying to quash a Flynn investigation was to head off disclosures about himself or much more serious crimes involving hacking the election.  Professors Eric Posner and Dan Hemel take a similar nuanced view. http://ericposner.com/when-does-the-president-commit-obstruction-of-justice-iii/.

Does all this mean that defining “corruptly” (always a ridiculously vague term) is much tougher in the case of a president?  Yes.  But I don’t think the difficulties presented by the president’s unique constitutional status can be dispensed with quite as easily as Professor Buell intimates in Slate.

In any case, regardless of who is right about what, to a non-lawyer, may seem a pretty fine point, neither an indictment (assuming that’s possible for a president) nor an article of impeachment against Mr. Trump based on obstruction of justice will have any traction outside the realm of theory unless more facts emerge about what Mr. Trump might have been trying to conceal by pressuring and then firing Mr. Comey.

 

Prof. Eliason on Prof. Dershowitz

05 Wednesday Jul 2017

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Over the past week, I have written several times about Professor Alan Dershowitz’s arguments that Mr. Trump could not have committed the crime of obstruction of justice in relation to the Flynn-Russia investigation-Comey firing imbroglio, or the crime of extortion in connection with the Morning Joe – National Enquirer cat fight.  In each case, I concluded that Professor Dershowitz has been unduly dismissive of fair arguments from the applicable law, even though I concur with his underlying theme that there is great risk in yielding to the temptation to criminalize political disagreements for partisan ends.

Yesterday, Professor Randall Eliason of George Washington University Law School, author of the outstanding white collar crime blog, Sidebars,  was kind enough to point me to his own careful and erudite rebuttal of Professor Dershowitz’s argument against obstruction liability for Mr. Trump.  This is the link: https://sidebarsblog.com/trump-obstruction-justice-alan-dershowitz-wrong/

I commend his first rate discussion to interested readers.

 

The “Morning Joe” Cat Fight

04 Tuesday Jul 2017

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I’ve been spending a few hours this Fourth of July deep in the books pondering with appropriately furrowed brow the knotty constitutional question of whether a sitting president can be criminally indicted, or whether the only remedy for a sitting president’s crimes is impeachment.  With luck, the product of all this brow-furrowing should be posted in the next day or two.

By way of taking a break, I unfurrowed the forehead and diverted myself by considering the essentially frivolous question of whether Mr. Trump’s cat fight with MSNBC hosts Joe Scarborough and Mika Brzezinski might – technically – constitute a crime of some sort. Supposedly, Mr. Trump, through intermediaries, told the now-married Scarborough and Brzezinski that the National Enquirer would publish a negative story about them alleging that they were unfaithful to their previous spouses unless they apologized to Mr. Trump for their negative coverage of him.  According to Scarborough and Brzezinski, they were told that, if an apology were forthcoming, the Enquirer story could be stopped.

A few minutes noodling around on Westlaw produced the conclusion that, yes, in theory, this sequence of events might constitute a violation of one or more federal criminal statutes.  For example, 18 USC 875(d) states:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Scarborough and Brzezinski claim to have texts and phone records from Trump aides containing the threats that might satisfy the requirement of a communication in interstate commerce.  If S&B’s account of their contents is accurate, those texts and calls would appear to contain threats to injure the TV hosts’ reputation.  See United States v. Coss, 677 F.3d 278, 286 (6th Cir. ) (describing the “classic extortion scenario where individual X demands money from individual Y in exchange for individual X’s silence or agreement to destroy evidence of individual Y’s marital infidelity”).

The highest hurdle would lie in proving that Mr. Trump sought to use the threat to “extort … any … thing of value.” However, in federal criminal law, the term “thing of value” is not limited to money or tangible property.   It routinely embraces all sorts of intangibles, including “romantic pursuits and sex-related consideration,” United States v. Petrovic, 701 F.3d 849, 858 (8th Cir. 2012), or the release of prisoners, United States v. White, 654 Fed.Appx. 956 (11th Cir. 2016).  See also the list in United States v. Girard, 601 F.2d 69 (2d Cir. 1979).  Courts focus heavily on whether the defendant placed value on whatever was demanded.

So, yeah, maybe there could be some technical legal liability.  And given the current fevered environment, I was unsurprised to find that other great minds had beaten me to this notion.  These include Jason Le Miere at Newsweek, and Dan Friedman and David Corn at Mother Jones, who also consider possible liability under state law.

The Mother Jones piece even features Harvard professors Lawrence Tribe and Alan Dershowitz in their increasingly familiar posture of Trump scourge vs. Trump apologist, with Professor Tribe tweeting supportively and Dershowitz poo-pooing the idea that the Morning Joe kerfluffle might be criminal.

For my part, I think both of these eminent gentlemen are departing regrettably far from the ideal of searching, even-handed, meticulous, scholarly, legal analysis that is, or ought to be, the foundation of their authority in a national discussion of this sort.

The truth is that, considered in isolation, the Trump-Morning Joe catfight could, maybe, and depending on facts as yet undisclosed, just barely be shoe-horned into the confines of a federal extortion statute or perhaps some state analog.  But it would be a YUGE stretch. And no sensible prosecutor would touch it with a barge pole, even if the defendant weren’t the President of the United States.  In this respect, the race to categorize the business as criminal is a pretty good example of Professor Dershowitz’s expressed concern that Trump opponents are far too ready to encourage elastic interpretations of the criminal law to ensnare the object of their dislike.

That said, if one considers this celebrity cat fight, not in isolation, but as part of what even a fair-minded observer might conclude is a disturbingly unpresidential pattern of aggressive hostility to the press, then it might become one piece of an argument for impeachment, not on the ground of criminal misconduct, but of failure to perform a president’s foremost responsibility to support and defend the principles of American constitutionalism.

Consideration of that possibility will have to wait for another day.