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No, the Grand Jury Can’t Proceed Without Mueller (or at least some federal prosecutor)

15 Thursday Feb 2018

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By Frank Bowman

As regular readers of this site are well aware, I deeply disapprove of Mr. Trump, his shameless enablers, and all their works.  And I’m entirely in favor of employing the legitimate tools of both law and politics to oppose Mr. Trump and to expose his criminal or impeachable conduct, if any.

But, at least for me, that doesn’t mean anything goes. Indeed, because the fundamental sin of Trumpism,  from which all its other evils flow, is disregard of legal rules and norms, Trump critics have a special responsibility not to bend the law or misrepresent what it permits.  This being so, I have too regularly found myself in the role of starchy maiden aunt prudishly reproving fellow Trump critics when they trot out yet another implausible interpretation of the law or the mechanics of criminal practice.

Earlier this week, I got after Professor Larry Tribe and co-authors for suggesting that Congressman Devin Nunes committed obstruction of justice by releasing the infamous memo.  And sadly, I’m back at it today.

In the February 14 edition of Politico, law professors David Yassky and Bennett Gershman contended that, even if special counsel Robert Mueller and all his team were fired, somehow the grand jury empanelled to investigate the Trump-Russia connection could continue the investigation, and even produce an indictment. For a half-a-hundred reasons, some legal and some practical, this could not happen.  In my own piece on Politico today, linked here, I explain why.

I hope, in future, to spend more time on what Trump opponents can do, and less on what they can’t.

Larry Tribe & Company Jump the Shark: Whatever Devin Nunes may be doing, it’s not obstruction of justice

12 Monday Feb 2018

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By Frank Bowman

In this morning’s New York Times, eminent Harvard Law Professor Larry Tribe, joined by Norman Eisen, former ambassador and White House ethics adviser, and Caroline Fredrickson, president of the American Constitution Society, published an op-ed arguing that Congressman Devin Nunes may have committed the crime of obstruction of justice by coordinating with the White House to release the infamous MEMO that attacked the credibility of the infamous DOSSIER compiled by former British spy Christopher Steele.

I yield to no one in my contempt for Congressman Nunes’s ridiculous memo, which I characterized as “a tragicomic face-plant. Likewise, I am heartsick at the coordinated efforts by Republican congressmen to undercut the Russia investigation and undermine the Justice Department. Nonetheless, while the behavior of Nunes and his unsavory congressional cohorts is tragic and deeply un-American, it’s not the crime of obstruction of justice. And labeling it as such is a sad mistake.

As I have discussed at length elsewhere, obstruction can be prosecuted under a number of statutes, the most likely being  18 United States Code, Section 1503 and 18 United States Code, Section 1512. A violation of Section 1503 occurs if a defendant “corruptly … endeavors to influence, intimidate, or impede any … officer in or of any court of the United States, or … corruptly… influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” The last phrase is the so-called “omnibus clause” and has been construed quite broadly by federal courts. A violation of 18 United States Code, Section 1512(c) occurs if a defendant: “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so….”

The Tribe/Eisen/Fredrickson theory of obstruction runs thus: (1) “[T]he Nunes memo may be designed at least in part to provide the president an excuse for firing Deputy Attorney General Rod Rosenstein, the individual with supervisory authority over Mr. Mueller, the special counsel in charge of the [Trump-Russia] investigation.” (2)  The objective of this “scheme” is to “clear a path to install a Trump-friendly replacement who would either fire Mr. Mueller or otherwise defang the investigation.” (3) Therefore, Nunes has obstructed justice.

Note that, even as stated, the object of the purported “scheme” is completely speculative. Tribe and company write that the memo “may be designed at least in part” to provide Trump an excuse to fire Rosenstein and then Mueller. Maybe. But it’s equally plausible that the memo is designed, not to enable Mueller’s removal, but to pre-emptively discredit his findings in the mind of the public, thus providing a political benefit both to Trump and to the political party whose fortunes are increasingly tied to his. The latter objective is slimy in the last degree, but it’s not criminal.

Moreover, even if Nunes is “scheming” with the White House to clear the way for Mueller’s removal, that is not obstruction of justice unless Nunes has a “corrupt” purpose. Tribe and company acknowledge this point, but glide right past it, making no effort to explain what Nunes’ corrupt purpose was or with what evidence it might be proven.  For them, it seems to be enough that Nunes’ has acted “at least in part” with the aim of getting Mueller fired.

As much as Trump opponents may want to think otherwise, opposition to Mueller and his investigation is not, in itself, immoral or illegal.  It is perfectly possible to conclude that no such investigation should be occurring, or that, if it must occur, someone else ought to be running it.  I disagree on both points, and I think that people who entertain these views are either cynical partisans or gravely, if honestly, mistaken.  But I don’t imagine that disapproving of Bob Mueller’s work is “corrupt.”

To prove that Nunes acted “corruptly” one would have to show that he believed that a “natural and probable effect” of his memo would be the firing of Robert Mueller, and that he believed firing Mueller would stop or impede the investigation Mueller heads, and that he believed Mueller’s investigation is not a “witch hunt,” but a legitimate inquiry into matters deserving of federal law enforcement attention. Some might argue that, as a matter of law, it doesn’t matter what Nunes believes about the legitimacy of the Mueller inquiry.  Technically that might be so.  But pragmatically, it makes all the difference in the world.

Imagine that a rogue U.S. Attorney began investigating the ACLU and the NAACP based on specious claims that they were treasonous communist front organizations in league with North Korea. One would hardly think of charging a congressman with obstruction of justice if the committee he chaired were to provide the White House and the public with information undercutting the credibility of the overzealous U.S. Attorney in hopes of getting him fired.

Finally, as Tribe and company concede, congressmen are protected by the speech or debate clause of Article I, Section 6, from prosecution for activity integral to legislative or oversight responsibilities.  The authors strive mightily to distinguish Nunes’ activities from those covered by the constitution, but their efforts are ultimately strained and unconvincing. After all, the memo was issued, not by the White House or by Devin Nunes in his personal capacity, but by the Republican members of a congressional committee chaired by Congressman Nunes.

But the big point here is that, regardless of the technicalities, no sane federal prosecutor would seriously consider indicting a United States congressman on these facts. It just would not happen.  And one has to assume that, as intelligent and sophisticated lawyers, Professor Tribe, Mr. Eisen, and Ms. Fredrickson know that.

That being so, it is hard to see what is accomplished by publishing such stuff. Sure, it feeds the hopeful fantasies of the many Americans who understandably despise Mr. Trump and his enablers.  But it’s not real.  It’s sloppy result-driven legal analysis untethered to any appreciation of real-world behavior in the criminal justice system.  It lends undeserved credence to Alan Dershowitz’s constant refrain that Trump opponents want to criminalize ordinary politics. It feeds into the broader right-wing narrative that liberal lawyers are mere anti-Trump propagandists incapable of dispassionate analysis.

And so, to Professor Tribe and friends I would say this: Lord knows I sympathize with your distaste for Mr. Trump.  And I, too, would like nothing more than to see the man out of the office he daily disgraces. But please stop trying to shoehorn every deplorable act of this concededly deplorable crew into a criminal statute.  It diminishes not only your credibility, but that of other legal critics of Mr. Trump and his minions.

More importantly, the problem with Nunes’s clumsy machinations is not that they constitute a technical violation of a federal criminal statute, but that they amount to an open and notorious assault on the integrity of the entire legal and national security apparatus of the United States.  That’s a “political” problem, in the broad sense of the term employed by Alexander Hamilton when he spoke in Federalist 65 about the political character of impeachable offenses. It is a cardinal error to jam Trumpist assaults on the norms of republican government into ill-fitting technical legal categories.  To do so both diminishes the seriousness of the mortal challenge Trumpism presents to American democracy and affords Trumpists a cheap defense — if their outrageous behavior proves not technically criminal, they can proclaim it entirely acceptable.

In the end, the criminal justice system may play a supporting role in solving the Trump problem, but that problem will only finally be solved by political means — convincing a sufficiently abundant majority of the American people to repudiate Mr. Trump and his allies at the ballot box. Only in that way will Mr. Trump be denied a second term, and only in that way will a congress be elected in 2018 that takes impeachment seriously.

 

 

Impeachment in the States: Missouri Governor Edition – Part 3 (The Picture)

10 Saturday Feb 2018

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This site has previously discussed the Missouri law applicable to impeachment of governors and its application to the sex scandal swirling around Gov. Eric Greitens. We have previously noted that state officials are impeachable for virtually any misconduct violative of state law, including criminal misdemeanors.  We have observed that the offense Mr. Greitens seems most likely to have committed (if the publicly reported information proves accurate) is invasion of privacy, RSMo 565.252.

Mr. Greitens would be guilty of this crime if he took a picture, without the consent of the woman with whom he was having a sexual interlude, while she was fully or partially unclothed.  Mr. Greitens would be guilty of the more serious felony offense of tampering with physical evidence, RSMo 575.100, if he took such a picture and later, “Alter[ed], destroy[ed], suppresse[d] or conceal[ed the photo] with purpose to impair its verity, legibility or availability in any official proceeding or investigation.”

The question of whether such a picture was ever taken, and if so what happened to it, has become a running theme in Mr. Greitens’ interactions with his critics and with members of the press. Several days ago, for example, a reporter for the St. Louis Post Dispatch asked Mr. Greitens directly whether he had taken a photo of his former mistress.  Mr. Greitens declined to answer, claiming that he had answered questions about the matter before. However, Mr. Greitens has never denied taking such a picture, despite having had multiple opportunities to do so.  In his most extensive previous statement, Mr. Greitens said:

“This was a consensual relationship. There was no blackmail, there was no violence, there was no threat of violence, there was no threat of blackmail, there was no threat of using a photograph for blackmail. All of those things are false.”

Note that he denies “using a photograph for blackmail,” not taking a photograph in the first place.  It’s a curious circumlocution.  If no photograph was taken, why not say so plainly, and as Ephesians 6:14 puts it: “Stand firm then, with the belt of truth buckled around your waist, with the breastplate of righteousness in place”?

Indeed, even if one’s belt of truth had of late come unbuckled, it would make sense to deny that a photograph was ever taken … unless, of course, there really was a photograph and one feared that evidence of its existence might surface.

It may prove that Mr. Greitens was simply inartful in his original statements about this matter, and is now simply being unwisely stubborn in his refusal to amplify on an undoubtedly painful subject.  Still, if Mr. Greitens neither took nor destroyed an incriminating photograph, he ought to say so in plain terms and put the matter to rest.  So long as he evades these questions, a cloud of suspicion rather larger than a man’s hand will hang over his office and unnecessarily complicate the state’s affairs.

Frank Bowman

AAG Rachel Brand Quits: Who’s Next?

10 Saturday Feb 2018

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By Frank Bowman

Associate Attorney General Rachel Brand, the number 3 official in the Justice Department, resigned today after barely nine months in office to take a position with Walmart. This matters because Ms. Brand would have been the next person in line if: (a) Mr. Trump ordered Deputy Attorney General Rod Rosenstein to fire Special Counsel Robert Mueller, and (b) Rosenstein either refused and resigned or refused and was fired.  With Rosenstein gone, Ms. Brand would face the same unpalatable choice.  It would seem she does not want to be this generation’s Robert Bork.

For those not up on their Watergate history, Mr. Bork was the Solicitor General at the time President Nixon ordered the firing of Watergate special prosecutor Archibald Cox.  Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned in protest. Nixon then gave the same order to Deputy Attorney General William Ruckelshaus, who also refused and resigned. Whereupon Nixon turned to Robert Bork, who fired Cox.

Although Bork was a brilliant lawyer and one of the leading intellectual lights of the budding conservative movement, he forever bore a Mark of Cain for the firing, particularly after it became clear that Nixon had indeed committed both crimes and impeachable offenses. When he was nominated for the Supreme Court by President Reagan, the nomination failed, partly because of fierce opposition to his criticism of many of the civil rights and criminal procedure precedents set by the Warren and Burger courts, but certainly also because of his role in the “Saturday Night Massacre.”

Ms. Brand’s departure raises several interesting questions:

First, who takes her place in the DOJ hierarchy?  Presumably someone will be named acting Associate Attorney General fairly quickly.  The AAG plays too large a role in administration of the Department for the job to remain vacant indefinitely.  One move the White House might try would be to appoint as acting AAG a Trump loyalist willing to do the dirty deed of immediately firing Mueller. Such a person would have to know that doing so would surely prevent confirmation into the job on a permanent basis, and if rational, would also realize that acting as Trump’s henchman would permanently ostracize him or her from the federal law enforcement community. I doubt there are many such creatures in the middle and upper reaches of the Justice Department.

There is also the possibility that Mr. Trump could insert a political hitman from the outside into the acting AAG position. That is highly unlikely, but not impossible.  Under the Federal Vacancies Reform Act of 1998, an acting replacement for a position requiring senate confirmation (which Associate Attorney General does) must either (1) already occupy an advice and consent position (i.e., a position for which he or she was nominated by the president and confirmed by the Senate), or (2) be an employee of the same agency for at least 90 days prior to appointment and have a salary equal to a GS-15 (the highest grade of ordinary civil service rank).  This means that an acting replacement for Ms. Brand from outside DOJ would already have to occupy a Senate-confirmed position in some other agency, or be inserted into the Department as a regular employee with the appropriate pay grade 90 days before becoming Acting AAG.

The first option expands the pool of possible acting replacements for Brand from Main Justice political appointees and confirmed U.S. Attorneys to anyone holding an advice and consent position anywhere in the government.  The second move would be awkward and transparently obvious, and would take three months to arrange.

Second, so long as the AAG slot remains empty, or the acting AAG refuses to fire Mueller, the next person in line is, once again, the Solicitor General, currently Noel Francisco. I know nothing whatever about Mr. Francisco, other than that he has a distinguished resume as an appellate practitioner.  It seems hard to imagine that he would relish becoming this generation’s Robert Bork.  The lessons of Watergate for a man in his position are pretty stark. But one never knows.

For a more detailed look at the line of succession after Solicitor General Francisco, see Professor Jed Shugerman’s blog.

The larger message of the Brand departure, and for that matter of the ongoing turmoil at the White House caused by the resignation of staff secretary Rob Porter (and a few hours ago speechwriter David Sorensen) over domestic abuse allegations, is that few quality people are willing to accept high office in the Trump Administration, and those of any integrity, or merely a sense of professional self-preservation, tend to leave fast.  One senses that both the reluctance to join the Trump parade and the disposition to leave it are increasing.

The problem for the country is that the federal government is increasingly either unstaffed at senior levels or in the hands of sycophants and second-raters. Sadly, many, perhaps most, of Mr. Trump’s loyal base either don’t know this or have been so indoctrinated by years of right-wing anti-government propaganda that they believe the accelerating deconstruction of the national government is a positive good.

In many ways, the denouement of the Mueller probe is the least of our worries….

 

 

 

 

Bombastic Words about “Bombshell” Texts

08 Thursday Feb 2018

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President Trump has claimed that the text messages which were exchanged between FBI Agent Strzok and FBI Lawyer Lisa Page are “bombshells.” The text messages were likely related to the investigation of the Clinton Email Scandal. While others have expressed concern over what the text messages indicate about the way the FBI handles cases, President Trump did not specify what he meant when he called the texts “bombshells.” Though one might argue that the text messages indicate that there is an “Anti-Trump bias” in the FBI, they are a clearer indication of a lack of professionalism than they are of anything else.

Trump’s calling the texts “bombshells” is a part of his pattern of using any discrepancy within the FBI to characterize the investigation of his obstruction of justice and attempt to defraud the United States as misguided. He made similar claims after the release of Nune’s memo, stating that it “totally vidicates” him, despite the fact that memo did little more than allege possible partisan bias in a dossier used to obtain a warrant. It seems Trump will take what distractions he can get. Meanwhile, I am eagerly awaiting the results of Mueller’s investigation — for the truth covered by all these pointed fingers.

download (2).jpegSusan Walsh/AP Photo

Is Another Shutdown Coming?

07 Wednesday Feb 2018

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The Government passed a stop-gap bill to prevent another government shutdown today; however during bipartisan negotiations Trump said that he would “love to see a shutdown,” if the parties could not come to an agreement over immigration. The comment took place during talks about the MS-13, an international gang. Trump complained that “Democrats don’t want safety.”

It’s a possibility that President Trump was bluffing to achieve greater bargaining strength in the immigration debate. However, if the parties are unable to come to an agreement over immigration, and a government shutdown resulted, it seems likely that Trump would get the brunt of the blame. The majority of people blamed President Trump and Republican Senators for the last shutdown. If another shutdown occured, it could mean a windfall for Democrats in the 2018 midterm elections.

donaldtrump.jpgEric Thayer/Reuters

Mueller’s cheerleaders: The peculiar certitude of two lawyers for his targets

04 Sunday Feb 2018

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By Frank Bowman

Last week, I had an enjoyable conversation with Politico journalist (and outstanding Mizzou Journalism School alum) Darren Samuelsohn.  Darren was kind enough to quote me in an ensuing article about the likely result of Robert Mueller’s investigation. The piece is well worth a read, but the oddest bits to my mind are the quotes from several lawyers representing “clients swept up in the Russia probe.”

These lawyers are said to believe that Robert Mueller is likely to seek an indictment against Mr. Trump, despite the internal Department of Justice prohibition against doing so (that I’ve discussed at length here and here).  At least one of them bases his view on what he perceives as the growing “level of confidence” of Mueller’s staff.

I had two contrary reactions to the lawyers’ remarks. On the one hand, they may be the candid intuitive assessments of a couple of people who have the advantage of dealing directly with the Mueller team over time.  If so, they’re interesting, though probably not probative of very much.  After all, one can be confident about the course of an investigation without having any intention to conclude it with an attempt to do something DOJ policy now bars. On the other hand, these attorneys could be trying to use the media to inflame the already-sensitive Mr. Trump into firing Rosenstein and then Mueller, thus removing pressure from the lawyers’ clients.  But that’s way too Machiavellian.

Isn’t it?

Hmmm…

P.S. — I used the word “targets” in the title of this post for the sake of brevity. In DOJ parlance, a “target” is someone against whom prosecutors have substantial evidence and are likely to charge; actually, we don’t know whether these clients are “targets,” “subjects” (persons of interest against whom less evidence has been developed) or merely witnesses.

THE MEMO!!!! A tragicomic face-plant by Congressman Nunes

02 Friday Feb 2018

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By Frank Bowman

Well, after much angst, the Republican members of the House Judiciary Committee were able to get THE MEMO released.  Here it is, if you haven’t already seen it.

This document was supposed to reveal a scandal bigger than Watergate!  It was supposed to prove that officials in the Justice Department and the FBI criminally abused surveillance laws to undermine the Trump Administration!  It was supposed to expose a deep, nefarious conspiracy against the rule of law itself!

Instead, what we have is a whimpering anticlimax.  A document so devoid of substance and so transparently doctored for partisan effect that, in any other era, it would be instantly and universally branded as a cynical farce and its authors driven out of public life as embarrassments to the republic.

Stripped of the folderol, this is what the memo says:

It asserts that the Justice Department applied for and obtained a FISA surveillance warrant allowing interception of communications with Russians by Carter Page, a former affiliate of the Trump campaign, and that DOJ based its application for the warrant in some (unspecified) part on information derived from a “dossier” of material compiled by former British intelligence agent Christopher Steele.

The GOP letter does not identify which information derived from the dossier was used in the warrant application. Critically, the letter does not describe the rest of the information in the warrant application or describe how information from the dossier relates to the application as a whole.  The letter does not reveal whether, and if so to what extent, information derived from the dossier and included in the warrant was corroborated by other sources. In fact, the letter does not even claim that the information from the dossier used in the warrant application was inaccurate.  Indeed — and incredibly — the letter does not claim that any information in the dossier was inaccurate.

The sole argument of the letter is that the Justice Department should have revealed to the FISA court which issued and renewed the warrant information suggesting political bias on the part of Mr. Steele.  In particular, the letter argues that the application should have disclosed that Mr. Steele’s research effort was — at one point during his work — funded by attorneys working with the Democratic National Committee. (Of course, the GOP letter rather comically omits the fact that Steele’s firm was first engaged by Trump’s Republican opponents.) Similarly, the letter reports that, by the fall of 2016, Mr. Steele had become “passionate” about Mr. Trump not becoming president and implies that this should have been told to the court.  That’s it.  That’s the whole bowl of bananas.  That’s all Nunes and friends have got.

To be as fair as possible to Mr. Nunes, it’s generally a good idea to include in warrant applications some information about the possible biases of one’s sources.  It helps a reviewing court assess the strength of the evidence in support of the application. In a case where the warrant application turns entirely on the credibility of a single witness, that’s especially crucial.  But in Mr. Steele’s case, it’s essential to note that (so far as I know) he is not himself a witness and indeed is not an actual source for any of the information in the dossier.  He is merely the owner of a firm that collected information from other sources. In such a case, far more important than the possible bias of the collector of information is independent corroboration of the facts he collected.  Of course, in that capacity, he could, in theory, falsify or misreport information.  But the GOP letter never claims that he did.

Critically, the GOP letter conspicuously omits any discussion of the degree to which the FBI independently verified the dossier’s information, either in general or as it related to this warrant application. And Mr. Nunes and his GOP fellow travelers have blocked the release of all the information that would be necessary to determine if their reading of this affair is correct,

The bottom line of the GOP letter is this transparently faulty syllogism:

  • Some information derived from the Steele dossier was used in a FISA surveillance warrant for Trump campaign operative Carter Page.
  • The warrant application didn’t specify that Steele’s firm was paid by Democrats (and Republicans) who did not want Donald Trump to be president, or that, after investigating Trump for some months, Steele concluded that he did not want Trump to be president.
  • Therefore, no information originating in the dossier can be believed, the warrant should not have been issued, no one should remember to ask what the surveillance of Page actually uncovered, and we should all dismiss the entire investigation into Trump-Russia collusion as a political witch hunt by traitorous conspirators in the Deep State.

The whole business is yet another example of  the strange, logically inverted, world into which Mr. Trump and his abettors would lead us. In Trump World, the mere fact that one opposes Mr. Trump (or is simply insufficiently slavish in one’s devotion) is conclusive proof that one cannot be believed. Perhaps the most revealing line in the GOP’s letter is its breathless recitation of the fact that, in September 2016, Mr. Steele confessed his “passionate” opposition to a Trump presidency.  The letter’s authors apparently view this sentiment as proof of irrational bias, which if disclosed to the FISA court would have discredited all Mr. Steele’s work.

They have it exactly backwards.  A far more plausible view is that, by September 2016, Mr. Steele had discovered so much about Trump’s Russia connections that the prospect of his occupancy of the White House evoked nothing but horror.  Certainly that’s the way I would have read the statement had I been on the FISA court.  As such, even though it would have been prudent to identify the funding sources for Mr. Steele’s intelligence efforts, the omission of Steele’s personal views about Trump from the FISA warrant application  was, if anything, a laudable exercise of professional restraint.

The bottom line here is that THE LETTER is, as the British say, a damp squib.  Its only consequence lies in the possibility that Mr. Trump will use it as an excuse to fire Deputy Attorney General Rod Rosenstein and thereafter Robert Mueller.  Were that to happen, we will cross into uncharted and dangerous ground.

 

More on Mueller’s Endgame: Unindicted Co-Conspirators & Other Stuff

01 Thursday Feb 2018

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By Frank Bowman

Under current Department of Justice policy, Special Counsel Robert Mueller is not empowered to seek an indictment against a sitting president. Yesterday, I discussed here and on Slate two ways Mueller could nonetheless ensure that Congress would be informed if he concluded that Mr. Trump had committed crimes.

Several colleagues and commenters on the blog have raised questions that may have occurred to others.  I try to answer them below:

Uninidicted co-conspirators: A colleague remembered that President Richard Nixon was named as an unindicted co-conspirator in a case brought by Watergate prosecutor Leon Jaworski He wondered whether that might provide an avenue for disclosing Mr. Mueller’s conclusions and the evidence supporting them. It could. Theoretically. But the reason I didn’t mention this option is that listing unindicted co-conspirators by name in an indictment has been sharply criticized by courts and is strongly discouraged by Department of Justice policy. Formally identifying someone as a criminal without formally charging him imposes a damaging public stigma without a mechanism for removing it. Therefore, the general rule is that, if prosecutors have sufficient evidence to charge someone with a crime, they should do so, which both triggers their obligation to prove the case beyond a reasonable doubt and gives the person named an opportunity to defend himself.

Accordingly, Section 9-11.130 of the U.S. Attorney’s Manual states: “In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments.”

Jaworski evidently felt that naming Nixon was justifiable, presumably for reasons that would appeal to Mr. Mueller, such as a desire to avoid the complications entailed by indicting a sitting president, while at the same time letting Congress and the public know about his legal judgment that Nixon had committed a crime.  Mueller might come to feel the same way. However, while Jaworski seems to have enjoyed a substantial amount of operational freedom due to the firestorm that resulted from the firing of his predecessor Archibald Cox in the infamous Saturday Night Massacre, it’s pretty plain that any decision by Mueller that directly touches on Mr. Trump is going to be carefully scrutinized by his DOJ superior.  That superior (whether it is Deputy Attorney General Rosenstein or someone thrust into that role by Mr. Trump’s evident desire to fire him) could easily justify refusing to allow Mueller to name Mr. Trump as an unindicted co-conspirator on the ground that it violated DOJ policy and was not supported by a “significant justification.”

To be clear, if Mr. Mueller concludes that Mr. Trump conspired with others to commit crimes, he can certainly draft indictments of those others, and structure his case against them, in a way that makes Mr. Trump’s wrongdoing fairly clear without naming him as a co-conspirator.  In the end, that is perhaps the easiest way for Mueller to proceed.  However, that approach necessarily saves Mr. Trump from two legally and politically important events — the formal and public judgment by Mr. Mueller, expressed in his signature on an indictment, that Mr. Trump committed a crime, and the formal and public conclusion by a grand jury of ordinary citizens, expressed by approving the indictment, that Mr. Trump probably committed that crime. Leon Jaworski named Richard Nixon precisely because he appreciated the significance of these solemn pronouncements.

Reader questions: Tye Simpson asks: “How do you square the special counsel’s congressional authority in section [609](c) to prosecute if there’s no authority to indict? In the event of conflict shouldn’t a general departmental policy or practice be subordinated to a specific congressional authority?”

The key is the reader’s characterization of Mueller’s authority to prosecute as “congressional authority.”  It’s not.  The regulation I referred to in yesterday’s post is an internal Department of Justice regulation, not a congressionally authorized statute.  And the regulation, 28 CFR 600.6, merely gives Mueller the same authority granted the U.S. Attorney in a federal judicial district.  Like all U.S. Attorneys, Mueller is subject to DOJ regulations and the DOJ chain of command.  The regulations give Mueller’s superiors the power to bar him from doing things that are contrary to DOJ policy.  Indicting a sitting president is against DOJ policy.  Therefore, Mueller’s superior, now Deputy AG Rod Rosenstein, can prevent Mueller from doing it.

Tye Simpson also asks: “For a non-lawyer: What about: 600.9 (c) “The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions…”? Currently, R. Rosenstein’s call?”

The reader refers to the DOJ regulation governing disclosure to Congress and the public of reports on instances when higher DOJ authority blocks a special counsel from pursuing some action he wants to pursue.  The short answer to the question is “yes.”  That is, if Mueller recommended indicting Mr. Trump and was ordered not to do it, the Justice Department would be obliged to report that event and the reasons for it to Congress.  That’s the provision I’ve suggested Mueller could use to force disclosure to Congress of a conclusion that Mr. Trump committed a crime.  Disclosure to Congress in those circumstances is not optional.

However, the section to which the reader alludes, 28 CFR 609(c), governs disclosure to the public.  And those disclosures are discretionary.  In this case, the discretion would presumably be exercised by Rod Rosenstein.

Mueller’s Endgame: How a Failure to Indict the President Could Lead to Impeachment

31 Wednesday Jan 2018

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By Frank Bowman

Over the past few weeks, the interwebs have been teeming with confident declarations that this or that new tidbit of information amounts to the final proof — or at least another link in the chain of proof — that will allow Special Counsel Robert Mueller to conclude that Mr. Trump has committed the felony of obstruction of justice.  The problem with all this barstool lawyering, a problem sometimes acknowledged but more often ignored or glossed over, is that Mr. Mueller has no independent authority to secure an indictment against a sitting president.

A still more fundamental problem, at least if one hopes for Mr. Trump’s removal from office, is that even a felony conviction would not eject him.  Only impeachment performs that trick.  Therefore, all the fevered speculation about Mr. Mueller’s progress is futile unless there is a way for a prosecutor who cannot indict his most prominent potential target to place the case for that target’s criminality before congress, the only body authorized to determine whether criminality should mean impeachability.

There are at least two ways it could be done, and done in full compliance with both Mr. Mueller’s limited mandate and the internal rules of the Department of Justice.  First, Mueller could prepare a report and recommendation that Mr. Trump be indicted after he leaves office and trust that congress would find means of obtaining the report. Alternatively, Mueller could recommend immediate indictment, fully expecting rejection of that recommendation, and rely on the technicalities of the Justice Department’s own rules to ensure transmission of his recommendation and reasons to congress.

Let’s begin with a quick refresher on the limitations of Mr. Mueller’s office:

  • Mueller is a “special counsel” appointed under Department of Justice regulations, not an “independent counsel” of the Kenneth Starr sort appointed under the now-lapsed post-Watergate Ethics in Government Act of 1978.
  • An “independent counsel” exercised virtually the full powers of the Department of Justice and was not subject to supervisory control by the Attorney General.  Mr. Mueller has only the authority granted any United States Attorney. He remains subject to the chain of command of the Justice Department. In ordinary circumstances, he would answer to the Attorney General. Because Jeff Sessions has recused himself from this matter, Mueller answers to Deputy Attorney General Rod Rosenstein.
  • As special counsel, Mr. Mueller is subject to the “rules, regulations, procedures, practices and policies of the Department of Justice.” And while the regulations accord him an unusual degree of autonomy, his superior, here Mr. Rosenstein, can overrule him if he proposes doing something contrary to DOJ policy.

The “policy” of the Department of Justice, expressed in several legal opinions issued by the Office of Legal Counsel, is that federal prosecutors may not indict a sitting president. An OLC opinion is not “law” in the sense of binding anyone outside of the DOJ itself. But it does bind DOJ employees.  Therefore, if Mr. Mueller were to propose indicting Mr. Trump, that proposal would be contrary to Department policy. Deputy Attorney General Rosenstein could, and almost certainly would, order Mueller not to present the indictment to a grand jury.  Mueller would have to follow that order. Failure to do so would be an entirely proper ground for removing him.

Given this internal restriction on Special Counsel Mueller’s authority, one might ask whether Mueller has the power even to investigate whether Mr. Trump has committed any crime. The answer is plainly yes.  The letter commissioning Mueller charges him with investigating coordination between Russia and the Trump campaign and any crimes, such as obstruction, committed in an attempt to interfere with that investigation. It does not bar him from investigating the activities of persons who may be legally or practically immune from criminal prosecution. In this regard, Mr. Trump is no more immune from Mueller’s inquiries than Russians who might assert diplomatic immunity.

Mueller’s appointment letter also empowers him to prosecute any crimes discovered in the course of his investigation. The only question is whether DOJ rules restrict this authority in the case of a president.

Internal DOJ policy precludes prosecuting a president while he is in office. It does not claim that presidents cannot be prosecuted.  Indeed, any such claim would be untenable inasmuch as Article 1, Section 3, of the Constitution specifically provides that persons impeached “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.” At a minimum, this means that a president may be indicted after he leaves office (subject to any problems created by statutes of limitation, a tricky legal problem for another day).

Mueller’s appointment letter granting him prosecution authority does not require that he prosecute the crimes he discovers immediately. Accordingly, if the Mueller investigation yielded evidence that Mr. Trump committed a crime, Mueller would be entirely within his mandate to prepare a report setting out his findings and recommending that Mr. Trump be indicted as soon as he left office.

The difficulty with this option from the perspective of those hoping to base an impeachment inquiry on Mueller’s work is that he has no independent authority to release such a report to Congress or the public.  And it seems quite likely that a Justice Department under increasing pressure from the White House would make every effort to keep the report secret.  On the other hand, there is nothing in the special counsel regulations or any applicable law that requires secrecy in such a case. If it were to become known that such a report existed, someone in congress would request it.  And if Democrats gained control of either house of Congress in 2018 — a precondition for impeachment in any case — they would also gain the power to subpoena the report.

Suppose, however, that Mr. Mueller were to decide that Mr. Trump has committed crimes and that Congress should know of that conclusion promptly. Suppose further that Mueller were not disposed to rely on the vagaries of midterm elections, and still less to wait for the expiration of the Trump presidency. In that case, there is another path.

DOJ’s special counsel regulations provide that, if a special counsel proposes an action that the Attorney General (here Deputy Attorney General) rejects because it would be “inappropriate or unwarranted under established Departmental practices,” then the Attorney General must notify both the chairs and ranking minority members of both the House and Senate Judiciary Committees of the special counsel’s proposed action and an “explanation” of the reason for rejecting that action.

Hence, Mr. Mueller would be operating entirely according to protocol if, while not actually presenting an indictment to a grand jury, he recommended to Mr. Rosenstein that Mr. Trump be indicted. He would, of course, realize that doing so would contravene an existing OLC opinion. However, there would be nothing untoward if he concluded, with the concurrence of the superb appellate lawyers on his staff, that the OLC opinion should be reconsidered.  OLC conclusions are subject to internal re-evaluation all the time.

Of course, we can fairly predict that Mueller’s arguments, however learned, for changing DOJ policy on this point would be rejected.  But rejection of Mr. Mueller’s recommendation for indictment on the ground that it contravened “established Departmental practices” would trigger the mandatory report to congress required by 28 C.F.R. 600.9. Et voila!  Member of Congress from both parties, and in due course, the public would know that Mueller believed Mr. Trump committed a crime.

As clean as this second approach seems, there are two potentially significant flies in the ointment. First, the mandatory reporting requirement of 28 C.F.R. 600.9 is triggered only “upon conclusion of the Special Counsel’s investigation.”  One reading of this language is that it applies only after the Special Counsel completely wraps up all his responsibilities.  Deploying that interpretation, a Trump-influenced Justice Department could justify withholding congressional notification until Mueller finished not only investigating, but trying, all pending cases. Given that at least Manafort and Gates remain untried, trials could delay things a long while. Alternatively, the reporting requirement could be read as arising once the purely investigative phase of Mueller’s work ends, without regard to the resultant litigation. But that interpretation would carry the day inside the Department only if the person making the call were principled, courageous, and more committed to institutional integrity and the rule of law than to protecting the president.

Regardless of how the reporting requirement were read, if Mr. Mueller thought it central to his mission that his conclusions about Mr. Trump be reported to Congress expeditiously, he could abandon or fast-track pursuit of smaller fry, close up shop, and insist that the Department’s own rules be followed.

The second potential obstacle to this gambit is one not of law, but personal psychology. Mr. Mueller, by reputation a man who operates strictly by the book, might not be willing to formally propose indicting Mr. Trump knowing that the proposal would be summarily rejected as violating existing DOJ policy.  On the other hand, as a lawyer of no mean talent, he might find considerable satisfaction in deftly employing the letter of the law in the service of the Republic.

I like to think that, as a both an undoubted patriot and a career public servant not unaccustomed to harnessing formalism to larger ends, Mr. Mueller would not be averse to engaging in a bit of bureaucratic Kabuki theater in the interests of revealing Mr. Trump’s conduct to congress while there is yet time to do something about it.

We shall see.