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

12 Thursday Apr 2018

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by Frank Bowman

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

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

To this there are at least two possible responses:

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

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

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

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

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

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

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

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

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

12 Thursday Apr 2018

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By Frank Bowman

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

There are at least four notable things about the report:

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

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

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

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

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

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

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

The report explained her state of mind as follows:

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

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

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

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

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

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

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

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

10 Tuesday Apr 2018

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By Frank Bowman

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

More on Trump’s status in the Mueller investigation

08 Sunday Apr 2018

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By Frank Bowman

After my last post on the implications of the Washington Post report that Robert Mueller’s team had told Mr. Trump’s lawyers that he was not a “target,” the good folks at the Kansas City Star asked me to explain the situation a little further.  I was happy to oblige.  The result appeared in this morning’s paper (link here).  I reproduce it below:

Trump shouldn’t relax to hear he isn’t a ‘target’ in Mueller investigation (Kansas City Star, April 8, 2018)

The Washington Post reported this week that Special Counsel Robert Mueller’s team may have told Mr. Trump’s representatives that, although Trump remains under investigation, he is not a “target” of the investigation. The same sources said that Mueller wants to interview Trump as a last step before writing a “report” to Deputy Attorney General Rod Rosenstein. 

If either or both of these things are true, what do they mean?

First, if Trump is still under investigation, he is what the Department of Justice calls a “subject.” Mr. Trump was reportedly relieved by this status report.  He probably shouldn’t be.  If Trump is a “subject,” Mueller has not exonerated him from criminal liability. Indeed, the “subject” designation suggests Mueller has found enough evidence of Trump’s possible involvement in crime that he thinks it’s worthwhile to continue to investigate Trump.

Second, the “not-a-target” designation doesn’t convey much about Mueller’s current assessment of the evidence against Trump. DOJ rules define a “target” as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”  Trump’s reported relief probably stems from focus on the first half of the “target” definition.  Perhaps he thinks that not being a target means that Mueller doesn’t have “substantial evidence” of crime.

But that ain’t necessarily so. The Department of Justice has long taken the position that a federal prosecutor (like Mueller) may not indict a sitting president – even if there is plenty of evidence that the president committed a crime. There are many reasons to question the correctness of DOJ’s policy, but Mueller is bound by it.  Therefore, if Mueller really said Trump is not a “target,” all he may be saying is that, while there is substantial evidence linking Trump to crimes, the president cannot be a “putative defendant” because DOJ policy bars indicting him.  

Third, in any case, the real danger to Trump is not indictment, but impeachment (or at least the politically debilitating trench warfare of a formal impeachment investigation). That’s where a Mueller report comes in.

If Mueller were to write a report largely exonerating Trump, the administration would surely want to release it publicly.  On the other hand, if Mueller finds criminality, or simply a plethora of unindictable, but arguably impeachable, conduct, the Trump administration would be quite desperate to keep it secret.  For the rest of us, the big question is – regardless of what Mueller concludes, will Congress and the public see his conclusions?

The answer is surprisingly complicated and uncertain. The DOJ norm is that the reasons behind a decision not to charge someone are not made public, particularly if describing the reasons would make the subject of the investigation look bad.  Former FBI Director James Comey broke this DOJ norm with his report to Congress on the Hillary Clinton email investigation.  And that was the ostensible reason for his firing.

DOJ regulations governing Special Counsel Mueller require him to make certain reports to his departmental superiors, and in certain circumstances to Congress.  But a report finding that a president committed crimes for which DOJ won’t indict him doesn’t fit automatically into special counsel regulations requiring or permitting disclosure.

The decision about whether to release a report critical of Trump, and to whom, would probably rest with Deputy Attorney General Rosenstein.  And the rules give him little guidance about how to use his discretion.

That leaves the possibility that Congress, having gotten wind of a Mueller report, could subpoena it.  That would probably work, but might be vigorously resisted by Trump’s people.

At this point, the most that can be said is this: If Mueller’s report is favorable to Trump, it will be released immediately, regardless of the technicalities.  If Mueller’s report alleges criminal or impeachable conduct, release will depend on the judgment of Rod Rosenstein or the courts’ willingness to enforce a congressional subpoena.

Mueller and Starr Compared

06 Friday Apr 2018

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This article, from TIME, compares the methods of Special Counsel Robert Mueller to those of former Independent Counsel Ken Starr. Starr was charged with investigating the Clinton-Whitewater real estate scandal, and released a report which eventually lead to President Clinton’s impeachment. Notably, however, the report was not centered around Whitewater, but rather the lie Clinton told to cover up his affair with Monica Lewinsky. Unlike Starr, TIME notes, Mueller is remaining focused on his task — the investigation of Russian collusion.

It would be easy for Mueller to become distracted with all the stories of Trump’s sordid acts floating around; such as those surrounding Stormy Daniels. But those of us in the audience should be glad that Mueller has remained focused. Though nailing Trump with some ignoble deed may be enough to lower his public esteem and get him impeached, we should want more. We should want the whole truth.

1-mueller-2.w1200.h630.jpgAlex Wong/Getty Images

Mueller (supposedly) said Trump is not a “target” of his investigation — what does that mean?

04 Wednesday Apr 2018

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By Frank Bowman

The Washington Post reports that Robert Mueller’s team has told Trump representatives that Mr. Trump continues to be under investigation, but is not now a “target” of the Mueller grand jury probe.  The Post article contains a good deal of commentary about what this means, most of which is broadly correct.  However, I think the Post misses several important nuances.

If Mueller’s people said Mr. Trump continues to be investigated (which in DOJ terminology makes him a “subject”), but that he’s not now a “target,” that allows two conclusions, one positive, one negative:

First, if Trump is still under investigation — is still a “subject” — Mueller has not exonerated Trump from criminal liability. Or putting it another way, the “subject” designation suggests Mueller has found enough evidence of Trump’s possible involvement in crime that he thinks it’s worthwhile to continue to investigate Trump.

Second, the “not a target” designation doesn’t convey much of real substance concerning Mueller’s assessment of the current evidence against Trump. The Washington Post summary of the meaning of “target” is incomplete. The article says, “A target is a person for which there is substantial evidence linking him or her to a crime.” But that’s not the whole definition in the United States Attorneys Manual (9-11.151), which reads: “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Mueller really said Trump is not a “target,” all he may be saying is that, while there is substantial evidence linking him to a crime, DOJ policy precludes making him an actual indicted “defendant.” For an explanation of this policy, see this earlier post. What’s more, as several commenters in the WP article note, a subject can change to a target in the blink of an eye.

Were I one of Trump’s lawyers, I would be more alarmed than comforted by what Mueller supposedly said.

UPDATE: Jeremy Stahl over at Slate was kind enough to quote me about this point in a longer story on the Washington Post report.

 

The Strange Case of Jefferson Beauregard Sessions

30 Friday Mar 2018

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By Frank Bowman

The endless fever dream of the Trump era has no stranger aspect than our for-now-at-least Attorney General Jefferson Beauregard Sessions.  On the one hand, from the point of criminal justice policy, he is in the running as objectively the worst Attorney General of the last half-century.  It’s not merely that he is conservative on criminal justice issues.  Any Republican Attorney General in a post-Obama Republican presidency would surely have retrenched somewhat on some of Obama’s liberalizing initiatives.

The truly distressing aspect of Sessions’ tenure is that he combines two mutually reinforcing tendencies.  The first is Sessions’ own attitudes to crime.  His views on crime and punishment were, it seems, formed in the 1980s when a core tenet of social conservatism was that the only answer to crime in general, and drug crime in particular, was punishment in the form of ever longer terms of imprisonment.  The result — mass incarceration at levels unparalleled in what used to be called the free world — has been so unpalatable, and its human and financial costs so obviously disproportionate to its benefits, that even most conservatives have recoiled and actively begun searching for more humane and cost-effective means of addressing crime. Organizations like “Right on Crime” have been proposing conservative alternatives to mass incarceration, and have had some success implementing them in the states.  Such efforts are even endorsed by liberal boogiemen like Newt Gingrich and the Koch brothers.

Indeed, criminal justice reform is one of the few tough policy areas on which there is a large degree of agreement between thoughtful conservatives, moderates, and liberals.  And yet we have in Jeff Sessions one of the last diehard paleoconservative tough-on-crime guys.  He and a handful of like-minded cavemen – a pejorative term I do not use lightly — notably including Sen. Tom Cotton, seem impervious to either moral or evidence-based arguments against thoughtless “toughness.”  By sticking together and relying on Sen. McConnell’s refusal to allow consideration of any measure without near-universal Republican support, they prevented the passage of even a modest sentencing reform bill in the last congress.  In doing so, they thwarted the wishes of the majority of their Republican colleagues, not to speak of Democrats.  Sessions’ opposition to a new effort at such legislation is again proving an impediment and has stirred the wrath even of so reliable a pillar of the Republican right as Judiciary Committee chairman Charles Grassley.

Worse, Sessions’ personal rigidity is meshing with the near-official Trump Administration policy of voiding any Obama policy initiative, regardless of merit.  Sessions is reversing all the Obama-era ameliorations of prosecution policy on drug and other cases, and threatening to upend the federal-state ceasefire regarding differing treatment of marijuana.  It also appears that the Sessions Justice Department has effectively gutted Obama-era federal prison education initiatives.  And the beat goes on.

And yet, as dreadful as Sessions is on substance, he remains, perversely, the single flimsy barrier against removal of Robert Mueller and the shutdown of the investigation Mueller heads.  Sessions’ one possible redeeming feature is his respect for the Justice Department as an institution.  He has compromised the Department on more than one occasion, most recently in his firing of former FBI Deputy Director McCabe.  But he seems to be clinging to some shreds of personal and institutional self-respect.  Just his week, Sessions appears to have done another good thing, in deflecting the call by House Republicans for a second special prosecutor to look into Hillary Clinton, the dossier, and who knows what else by instead referring the investigation of all such matters to the DOJ Inspector General and to a general review by, John W. Huber, the U.S. Attorney for the District of Utah.

The assignment of Huber to be something more than a regular U.S. Attorney and something less than a “special counsel” is an interesting move.  Presumably, Sessions hopes that Huber’s work will check the cacaphony from House Republicans without unleashing a new special counsel operating at cross-purposes with Mueller.  Likewise, it may be that Sessions hopes that, if Huber finds no reason for more extensive investigation, that will carry weight with Orin Hatch, who himself carries considerable heft in paleoconservative circles.

I have had hard things to say of Mr. Sessions before, and doubtless will again.  But at least as regards Mueller and related matters, he is — tenuously — clinging to his reputation as a Justice Department institutionalist.    Whether that will be enough in the end to redeem him, and the rest of us, remains to be seen.

Executive Lies and How to Handle Them

29 Thursday Mar 2018

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National Security Lies, written by Tung Yin, and published in the Spring 2018 edition of the Houston Law Review, is  an article which reviews the types of lies which have been told by officials of the Executive Branch, and explores what remedies are available in light of such lies. This article is especially relevant in light of what our current President views as ‘alternative facts.’ Below is the article’s abstract:

What legal consequences, if any, exist (or ought to exist) when the President or other Executive Branch officials mislead, dissemble, or outright lie and then, when exposed, justify the deceit in the name of national security? This is a complicated question to answer, because some lies (such as those by the Carter Administration to deny the existence of a rescue mission on the eve of the ill-fated Operation Eagle Claw) are so naturally understandable, while others (such as the false stories surrounding the capture of Private Jessica Lynch in Iraq and the killing of Sgt. Pat Tillman in Afghanistan) seem to have been issued for less defensible reasons.

This article categorizes a number of notable national security lies in American history, examines the seductive appeal of national security lies for executive branch officials to explain why such lies may seem like better options than saying nothing, explains the harms caused by national security lies, and analyzes the likely reasons that national security lies generally incur no sanctions (criminal or otherwise). Finally, the article proposes a model for regulating national security lies that draws from the statutes governing the related areas of covert actions, classification of information, and invocation of state secrets to block litigation.

Trump-SOTU-2018-rtr-img.jpgReuters / Win McNamee / Pool

Is Trump Capable of Receiving Legal Help?

25 Sunday Mar 2018

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News surfaced today that Joseph diGenova and Victoria Toensing are leaving President Trump’s legal team only 5 days after being selected to join it. Apparently, diGenova and Toensing’s law firm represents two other people being investigated by Mueller, thereby creating a conflict of interest, which prevents them from representing Trump in the Mueller investigation. However, Trump may have created his own obstacles to representation: reports indicate that Trump did not feel “he had personal chemistry” with the lawyers. This news compounds with the recent resignation of John Dowd, the lawyer who headed Trump’s outside team addressing the Russian probe. A source reported that Dowd was frustrated that the President was not taking his advice. This resignation came soon after Trump attacked Mueller via twitter.

There has been speculation that lawyers are reluctant to work with Trump; allegations that Trump has denied. However, the question remains as to whether Trump is too stubborn to work with his lawyers. If Trump is ignoring his lawyer’s advice, that may lead to a number of ramifications, including the firing of Mueller. That can only make impeachment more likely.

Image result for toensing digenovaThe Washington Post, via Getty Images

 

Could Mueller be Fired?

21 Wednesday Mar 2018

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Recent attacks against Robert Mueller by President Trump via Twitter have left the public in nervous anticipation of the Special Counsel’s termination. Some fear that the loss of Robert Mueller would be devastating to his investigation. Ronald Weich, former federal prosecutor and dean of the University of Baltimore law school, has said that “Mueller is a towering figure . . . . he is irreplaceable.” However, others are skeptical that firing is even possible: Howard Goldsmith, Harvard Law professor, has pointed out that the Department of Justice regulations require for any dismissal “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” So the question becomes, does Trump have reason enough to fire Robert Mueller?

Trump’s recent tweets purport to provide what justification he may need to fire Mueller. Quoting Alan Dershowitz, former Harvard Law professor and political analyst, he tweeted “Special Council is told to find crimes, whether crimes exist or not.” In a subsequent tweet, Trump wrote “there was no probable cause for believing that there was any crime, collusion or otherwise, or obstruction of justice!” There is debate as to whether there was probable cause to fuel Mueller’s investigation (I think it’s fairly certain there was). However, there is a question as to whether the belief that there was no probable cause could justify firing Mueller.

The specific regulation Goldsmith referenced was Section 600.7 of Title 28 of the Code of Federal Regulations. Subsection (d) reads:

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

The listed offenses: misconduct, dereliction of duty, incapacity, conflict of interest, and other good cause seem to set a broad standard. The Department of Justice provides some administrative guidance of this subsection:

Violation of Departmental policies is specifically identified as a ground that may warrant removal. The willful violation of some policies might warrant removal or other disciplinary action, and a series of negligent or careless overlooking of important policies might similarly warrant removal or other disciplinary action. Such conduct also would be encompassed within the articulated standard of misconduct or dereliction of duty. There are, of course, other violations of Departmental policies and guidelines that would not ordinarily be grounds for removal or other disciplinary action.

What this tells us is that at least in some cases, the intentional violation of department policy or a series of negligent acts which violate department policy could warrant dismissal. Department of Justice policy is contained in 5 C.F.R sections 2635, 3801 and 28 C.F.R section 45. These policies are reflected by, and to a degree summarize by, Executive Order 12731, which says, among other things, that it would be a violation of ethics to:

. . . .

(e) Employees shall put forth honest effort in the performance of their duties . . . .

(h) Employees shall act impartially and not give preferential treatment to any private organization or individual . . . .

(i) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities . . . .

One could argue that Robert Mueller, by pursuing an investigation without probable cause, is not putting forth an honest effort into his duties, is acting with partiality against the President, and is misusing government resources. That being said, it would be a very poor argument. Even if one were to assume Mueller had no probable cause, it would be hard to argue that he did not believe he did. That is to say, it would be hard to show Mueller acted without an “honest effort,” or that he was “impartial[].” Additionally, because Mueller did receive approval by the courts, it is not apparent that his activities were “[un]authorized.” The lesson to be taken from the examination of these policies is this: Trump may try to get Mueller fired, but justification will indeed be hard to find.

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