Giuliani backtracks … too late

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By Frank Bowman

Yesterday I discussed Rudolph Giuliani’s remarkable, and remarkably damaging, admissions to the New York Times that his client, Donald Trump, told him that the project to build a Trump Tower Moscow was a live possibility up through the November 16, 2016 election. Giuliani quoted Trump as saying of the Moscow project, “It was all going from the day I announced to the day I won.” As I noted, a lawyer’s public statements about what his client said are admissible against the client because the lawyer is, in that setting, the clients’s speaking agent. Federal Rule of Evidence 801(d)(2)(C).

It would appear that someone reminded Giuliani of this basic fact of evidence law, or perhaps just explained how damaging his new timeline is to Mr. Trump. Because today Giuliani effectively said, “Never mind.” He put out a statement saying:

Hypothetical, my foot. When a lawyer quotes his client speaking in the first person, that’s not hypothetical. It’s a quote, pure and simple. Of course, the lawyer can claim, as Giuliani basically does here, that he made up the quote without consulting his client. But neither the opposing party, nor the courts, nor Congress is obliged to accept that claim. They are instead entitled to take the lawyer’s original words at their face value and subpoena him to explore under oath what he represented as the client’s statement and circumstances of its making.

Of course, neither Mr. Mueller nor Congress may think Mr. Giuliani’s testimony worth the caterwauling brawl that a subpoena to him would produce. But at a minimum, this is yet another example of Giuliani’s extraordinary unfitness as an attorney.

There are really only three possibilities here:

(1) Giuliani talked to Trump in advance of the Times interview and Trump made the statement attributed to him, but did not give Giuliani permission to disclose a client confidence. In that case, Giuliani’s disclosure is a flagrant violation of professional ethics, specifically ABA Model Rule of Professional Conduct 1.6.

(2) Giuliani didn’t talk to Trump in advance of the Times interview or did, but Trump did not make the statement attributed to him. In that case Giuliani not only betrayed his client’s interests, but, by lying to the press, violated ABA Model Rules of Professional Conduct 4.1 and 8.4(c) prohibiting making false statements to third persons in connection with representation of a client and conduct involving dishonesty generally.

(3) Giuliani talked to Trump in advance of the Times interview, Trump made the statement attributed to him, and the two of them decided that revealing that statement would help get out ahead of facts that would come out later anyway. Afterwards, when the statement was reported as a potentially incriminating gaffe, Trump ordered Giuliani to cover by issuing a false denial to the press. That false denial would be a violation of ABA Model Rules of Professional Conduct 4.1 and 8.4(c).

When I was a young lawyer in the Department of Justice back in the early 1980s, Rudi Giuliani, then up in the S.D.N.Y., was known as a really sharp prosecutor — sharp-elbowed, to be sure, and transparently ambitious — but sharp. This creature fawning on Trump and spinning feeble falsehoods in his service is a pathetic remnant of that younger self. As a lawyer, I wouldn’t wish him on any client other than the one he’s now got.

Giuliani helps build the case that his client may be a Russian asset (and maybe helps restore Buzzfeed’s credibility)

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By Frank Bowman

Somewhat lost in the coverage of Mr. Trump’s apparently unsuccessful effort to end the government shutdown standoff comes the quite remarkable story of Rudy Giuliani’s interview with the New York Times in which Giuliani:

  • admitted that conversations about building a Trump Tower in Moscow continued throughout the 2016 campaign up until the November election;
  • quoted Mr. Trump as saying of the Moscow project, “It was all going from the day I announced to the day I won”;
  • claimed that the whole project was run by Cohen with little input by Trump, quoting Trump as saying, “We talked about it, I knew [Cohen] was running with it, I honestly didn’t pay much attention to it”;
  • “acknowledged that Mr. Trump might have talked to Mr. Cohen before his congressional testimony [in which Cohen falsely claimed that the Trump Tower Moscow negotiations ended in January 2016], but … said his client had never instructed Mr. Cohen to lie.”

From a lawyer’s perspective, perhaps the most amazing part of this interview is the fact that Giuliani just created evidence against his own client, admissible in any court and certainly in the more procedurally relaxed setting of a congressional investigative hearing or an impeachment proceeding.

Non-lawyers probably think that whatever Giuliani says to the press presents no risk to Trump because of the attorney-client privilege. But that’s quite wrong. Attorney-client privilege covers only statements made by the client to the lawyer in confidence for the purpose of obtaining legal advice. What a client said to his lawyer is privileged as long as both lawyer and client keep it secret. Once either of them discloses a client statement, it is no longer privileged. Indeed, even unauthorized or inadvertent lawyer disclosures of client statements sometimes waive the privilege.

Certainly once the lawyer assumes the role of public spokesman for the client and makes public assertions of fact in that role, the lawyer becomes a “speaking agent” of the client and the lawyer’s statements are admissible against the client. Federal Rules of Evidence 801(d)(2)C). This basic rule doesn’t change where the fact publicly asserted by the lawyer is the content of what his client said in an otherwise-private conversation.

Hence, Giuliani just became a witness to the duration of the Trump Tower Moscow project and to Trump’s knowledge of that duration. He may also have become a witness to what Trump told him about any conversation with Michael Cohen before Cohen’s congressional testimony.

Why it could matter

It has been reported that, right up to election night, Trump did not expect (or maybe even want) to win the election. He admits that he was keeping his options open. As he put it, “There was a good chance that I wouldn’t have won [the election], in which case I would have gone back into the business. And why should I lose lots of opportunities?” But both during and after the campaign he repeatedly insisted that he had no deals in Russia. In January 2017, after his election, he explicitly stated that, “I have no dealings with Russia, I have no deals in Russia, I have no deals that could happen in Russia because we stayed away.”

Of course, as we now know, he and the Trump Organization had not “stayed away” from Russia. Far from it. Nonetheless, once the existence of Moscow tower negotiations became public, Trump minimized his interest and the duration of negotiations. As recently as two months ago, in a statement on the South Lawn of the White House, he claimed that they did not continue past “the early part of ’16.” Placing that end date on the project allowed him to dismiss any connection between his financial self-interest in 2016 and his otherwise odd chummy attitude to Putin and promotion of pro-Russian policy throughout the election season. 

Michael Cohen tried to back Trump’s story by telling Congress that the Trump Tower Moscow project ended in January 2016. Cohen has admitted this was a lie and that the project was pursued  actively through at least June 2016. But Giuliani has now established that the project continued still longer. More importantly, he has provided independent proof that Trump knew about its duration and repeatedly lied about it. Proof of Trump’s knowledge no longer depends on Michael Cohen’s unsupported assertions or even on inferences from whatever Trump Organization documents Mueller may have. Instead, it can be established by Giuliani’s testimony about what Trump himself admitted.

Proof of the duration of the Moscow project and Trump’s knowledge of it matters because it solidifies at least one incentive for Trump’s peculiar affinity for Russia during the campaign. More importantly, it proves beyond any shadow of a doubt that, after the election, the Kremlin had leverage on Trump.

Once Trump won, the Kremlin knew that Trump had been actively trying to do a deal in Moscow, while simultaneously and repeatedly publicly denying it. That gave Putin leverage. He could expose the new president as a liar who had been trying to curry financial favor with a traditional enemy state. There are multiple other Russian pressure points that remain unproven – mostly the possibility of ongoing financial relations with Putin-backed Russian oligarchs – but here we have a concrete indisputable fact, corroborated by both Trump’s former and current attorney.

And this concrete indisputable fact lends credence to the still-astonishing possibility that the President of the United States is compromised by a hostile foreign power.

Giuliani’s Times interview does one other thing — it may help rehabilitate, at least somewhat, the BuzzFeed report that Trump told Cohen to lie before Congress. Giuliani denies that Trump told Cohen to lie, but concedes that Trump “might have” talked to Cohen before Cohen’s congressional testimony. That statement has two effects.

From a common sense perspective, Giuliani’s “might have” is as good as an admission that such a conversation occurred. Admission of its occurrence would help Cohen’s credibility immensely if he were to claim that Trump made damaging statements. After all, the mere occurrence of such a conversation — the President having a private talk with a potential witness against him –would be breathtakingly inappropriate. One obvious purpose of such a conversation would be to influence the upcoming testimony. Although speculation is dangerous, Giuliani’s de facto admission suggests that Robert Mueller’s repudiation of BuzzFeed‘s reporting may stem from the wording of the Buzzfeed story, rather than its essence. For example, Cohen may be prepared to say, not that Trump unequivocally told him to lie, but that Trump hinted at how he would prefer the testimony to run. Likewise, Mueller may have objected to the language of the BuzzFeed story insofar as it over-promised, suggesting that the special prosecutor had documentary corroboration of an express presidential direction to commit perjury.

From a legal point of view, Giuliani’s choice to discuss with the press what his client said about the occurrence of a Trump-Cohen conversation and its contents may constitute a waiver of attorney-client privilege on that topic. It certainly provides a legitimate basis upon which a grand jury or a congressional committee could subpoena Mr. Giuliani and seek to compel his testimony about what the President told him about any pre-testimony talk with Cohen.

Things grow curiouser and curiouser.

Mueller Denies BuzzFeed Report

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Special Counsel Robert Mueller’s office has issued a rare statement denying the veracity of the BuzzFeed article published yesterday. The article in question stated that Mueller’s office had a cache of documents which established that President Trump encouraged his former attorney, Michael Cohen, to lie about the extent of the Moscow Trump Tower negotiations. If that were true, the legal consequences would have been severe; Professor Frank Bowman provided an analysis which was published on Slate.com.

However, though BuzzFeed has dug in its heels, the rarity of such public statements from Mueller’s office and its direct nature seem to indicate that there is no truth to the story. That is to say, Mueller’s office does not have hard evidence of such directions exchanged between Trump and Cohen. There is some concern that this revelation will give the President new ammunition against the media; however, it should not be forgotten that the truth finder of most significance in this case is Robert Mueller. It should be heartening that he is staying the course.

UT5EXCA3QYI6TCATZOO6Y5Q6OM.jpgRichard Drew/AP

 

The Case for Impeachment of Donald Trump, Part 3 (Foreign Policy)

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By Frank Bowman

Among the most persistent misconceptions about impeachment under the United States constitution is that indictable criminal conduct is a prerequisite for impeachment. The prevalence of this error is easy to understand inasmuch as the textual standard for impeachable conduct is “Treason, Bribery, or other other high Crimes and Misdemeanors” — a phrase that sounds like it refers to crime of the customary sort. However, as has been repeatedly discussed on this blog and as virtually all serious students of impeachment recognize, the phrase “high Crimes and Misdemeanors” was adopted by the Framers from British and early American impeachment practice and extended to a wide variety of non-criminal official ineptitude or misbehavior. There is powerful evidence that the Framers included conduct severely damaging to U.S. foreign policy interests in the category of impeachable behavior.

During the Constitutional Convention of 1787, the delegates decided that presidents and other federal officers could be impeached, but they wrestled over what conduct should be impeachable. Various formulations were advanced.  As the convention rounded into the home stretch, the phrase that had taken hold was “treason or bribery.”

George Mason objected because he thought “treason and bribery” far too narrow.  Mason was a student of British impeachment and had authored the post-revolutionary impeachment provisions of the Virginia state constitution.  He wanted a federal impeachment remedy analogous to British practice at least in the conduct it covered, even if not in the sorts of brutal personal punishments Parliament could impose.

“Treason,” Mason said, “will not reach many great and dangerous offences. Hastings is not guilty of treason.” He was referring to the impeachment trial of Warren Hastings, Governor General India, just about to start in England. Mason wanted American impeachments to reach beyond the two indictable crimes of treason and bribery to important breaches of public trust in both the domestic and foreign sphere, the kinds of offenses charged against Hastings.

Mason’s solution was to add the word “maladministration” after bribery. But James Madison rose to object, saying, “So vague a term will be equivalent to a tenure during pleasure of the Senate.”

Mason thought the matter over and came back with a compromise. Omit “maladministration” but add to treason and bribery “other high crimes and misdemeanors.”  The new language passed 8 states to 3.

Mason’s choice of “high crimes and misdemeanors” was not whimsical.  Rather, he lifted it from British practice where, beginning in the 1600s, Parliament increasingly (though not invariably) used this phrase to describe conduct it charged as impeachable.  My study of British and American impeachments convinces me that “high crimes and misdemeanors” does not limit Congressional impeachment power to the necessarily idiosyncratic and antique list of misdeeds Parliament had addressed by 1787.  Both Parliament and the Framers were acutely conscious that the sorts of dangerous public misconduct for which impeachment is a necessary remedy could not easily be described in advance. However, the Framers’ choice of “high crimes and misdemeanors” does set the baseline minimum for the scope of American impeachments. In other words, American officials are properly impeachable for at least the range of conduct covered by British practice.

A persistent theme in British impeachments was the charge that the impeached minister had pursued a policy at odds with the nation’s basic foreign policy interests.  Impeachments on this ground were a constant beginning with the charges against William de la Pole in 1450 for his role in arranging the marriage of Henry VI to Margaret of Anjou.  The Duke of Buckingham was impeached in 1626 in part for loaning English ships to the French to employ against the Protestant Huguenots at Rochelle.  In 1678, the Earl of Danby was impeached for assisting King Charles in negotiations with France for British neutrality in the Franco-Dutch War.  Lords Oxford, Bolingbroke, and Strafford were impeached in 1715 for their advocacy of the Treaty of Utrecht, which was widely despised as selling out Britain’s Dutch allies in favor of making accommodations with Britain’s traditional enemy France. And Warren Hastings’ 1787 impeachment, so central to George Mason’s thinking, centered on fundamental disagreements about the proper relationship of Great Britain to its Indian possessions and the states that abutted them.  

Over and over again, Parliament employed impeachment to assert an authority independent of the royal executive to define the nation’s true foreign policy interests. That Congress has believed itself to have similar authority is demonstrated by the first impeachment in American history, that of Senator William Blount, charged in 1797 with conspiring to assist the British in acquiring Spanish territory in Florida.  Blount was acquitted, but only because there were doubts that senators are “civil officers” subject to impeachment and because he had already resigned.

During the 1788 ratification debates on the federal constitution, James Madison insisted that a president who made a treaty that “violated the interest of the nation” and convinced the Senate to ratify it could be impeached. 3 Jonathan Elliot, The Debates in Several State Conventions of the Adoption of the Federal Constitution 500 (1827).  If, in the considered opinion of the architect of the American constitution, a president can be impeached for inveigling the Senate into one bad treaty, we surely can impeach a president for heedlessly shattering a basket of good treaties and the entire intricate web of foreign relationships they support without so much as a by-your-leave.

Consider Mr. Trump’s rolling destruction of American foreign policy.  (And assume that his actions flow merely from caprice or bad judgment, and are not, bizarre though it seems to say such a thing, the result of his having been compromised by Russia.)

To summarize, in the seventy-odd years since the Second World War, generations of American presidents, legislators, soldiers, and diplomats have labored to create a world order of multilateral institutions and agreements with the United States at its center.  That order has averted nuclear annihilation, prevented conventional war between the major powers, secured a stable, democratic Europe and an increasingly prosperous and stable East Asia, managed the fall of Soviet communism, and overseen a fairly universal rise in human material welfare, all while maintaining the United States as the single indispensable world power.  All has not been wine and roses for everybody, of course.  Humanity is on the verge of destroying the world’s ecosystem through climate change, pollution, and habitat destruction.  And global overpopulation and income inequality pose continuing threats to individual well-being and regional peace.  However, the looming existential crises of the age can only be addressed (if they can be at all) through increased collaboration and cooperation across borders. Most importantly for present purposes, whatever else one may think about the post-World War II world order, it has been hugely advantageous for the United States, placing this country at the center of all important decisions about international trade, finance, technology, and security.

Since his election, Mr. Trump has moved steadily in the direction of unilaterally dismantling the United States’ foreign policy, trade, and security architecture by formally abandoning or denigrating every form of multilateral engagement from the Paris Climate Accords, to the Trans-Pacific Partnership, to the Iran Nuclear Accord,to the World Trade Organization,[ to a nuclear weapons treaty with Russia, to the United Nations, not to speak of our most fundamental military alliance, NATO.[ He has consistently quarreled with our oldest democratic allies, while cozying up to autocracies across the globe: Duterte’s Philippines, Crown Prince Mohammed bin Salman’s Saudi Arabia, Viktor Orban’s Hungary, Recep Erdogan’s Turkey, and, of course, Vladimir Putin’s Russia.  The result is that, if allowed to continue, Trump will, singlehandedly, transform America’s position among the nations, from being the leader (however imperfect) of the free world and indispensable fulcrum in every realm of hard and soft power to a diminished, cranky, ungenerous, avowedly self-absorbed friend of tyrants and oligarchs. 

It is of particular moment that Trump is taking the country down this path singlehandedly.  The policies he is pursuing are not the policies of the party under whose banner he ran.  They are not the policies recommended to him by the vast bulk of civilian and military leaders and experts in his administration.  Indeed, as recently demonstrated by the resignation of Secretary of Defense Mattis following Trump’s sudden decision to withdraw entirely from Syria and partially from Afghanistan, they are often undertaken against the explicit opposition of those persons.  They do not emerge from any process of study or consultation. They proceed from his personal whims (or, though I shudder to to contemplate it, perhaps from directions or suggestions provided by Vladimir Putin), abetted by a very small coterie of courtiers. In the case of the Syrian withdrawal, the decision apparently occurred literally in the middle of a phone conversation between Trump and Turkish President Erdogan.  Trump’s position on foreign policy is “l’état c’est moi.” That is not the design of the United States Constitution.

President Trump can do these things in part because Congress has, quite unwisely, acquiesced in the doubtful doctrine that, while two-thirds of the Senate must vote to ratify a treaty, a president may withdraw from it without consent of Congress or anyone else. As pernicious as this legislative timidity has been in principle, one could excuse it on the ground that Congress has assumed with some justice that presidents would be cautious, judicious, and consultative before taking so drastic a step.  While that confidence has not always been justified, it generally has. 

However, in Mr. Trump, the country has for the first time a president who combines a near-complete lack of understanding of history, finance, trade, military affairs, or diplomacy with supreme confidence that he, and no one else, knows exactly how to arrange matters in all these arenas.  In short, the electoral system has placed in the White House the ignorant demagogue that the Framers feared at a time when the system of institutional checks they installed to deal with such an eventuality has atrophied so far as to be nearly useless.  Catastrophe looms unless Congress recognizes the danger and reasserts the powers the Constitution gave it. 

Some of the foreign policy damage Trump is doing could be prevented or at least ameliorated if Congress woke up and employed the tools short of impeachment at its disposal.  That said, there is little question that the constitutional impeachment power includes a situation in which a president is inflicting irreparable harm on the nation’s position in the world and will not be dissuaded. 

If When he Denies he Lies…

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President Trump today denied that he has worked for Russia in what has been described as his “most direct response” to the accusations of collusion. This denial came in the wake of a report that after a meeting he had with Russian President Vladmir Putin last summer in Finland, Trump took their interpreter’s notes and instructed him not to discuss the meeting with any other officials.

One theory is of course that Trump did work for, or at least with, Russia, which if true means that what he said today was a lie. Which begs the question, what consequences may come to a President for lying to the public? Professor Bowman has written at length on this subject, and his writings can be found here. However, in the way of summary, Prof. Bowman noted three kinds of lies which he believes could warrant impeachment: criminally indictable falsehoods,  unindictable official falsehoods, and chronic or pervasive falsehoods. The lie at hand is neither indictable or official, as it was not given under oath and is not a communication with Congress. However, the lie could fit in the third category if added to the pool of President Trump’s many other falsehoods, which, in aggregate, Bowman has suggested, are potentially impeachable. He wrote: “chronic presidential lies do not merely render the president himself ineffectual, but also damage every other branch and function of American government.” In essence, Trump’s constant lies are one of the things which make him unfit. For an in-depth analysis of this novel idea, the reader should check out Bowman’s article, which can be found here.

ap_19014539944750_wide-234bee0b5652fad844256e61c76821ab6b04c988-s1600-c85.jpgEvan Vucci/AP

 

Prof. Bowman debates Hans von Spakovsky on the Mueller investigation and impeachment

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Professor Bowman appeared today on the podcast “Lawyer2Lawyer” hosted by J. Craig Williams to discuss the Mueller investigation and its relation to the impeachment process. His fellow guest was Hans von Spakovsky of the Heritage Foundation, a former member of the Federal Election Commission and, as the Washington Post put it, “a polarizing figure in voting rights circles.”

Modest fireworks ensued. You can listen here.

Predictions on the Mueller Report

National Emergencies and Impeachment

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By Frank Bowman

The looming question in the ongoing government shutdown is whether Mr. Trump will, as he repeatedly threatens, declare a “national emergency” to get funding for his border wall if Congress will not pass budgetary authorization for the edifice. Multiple excellent analyses of a president’s legal authority to declare such emergencies have appeared. The upshot of all of them is that the administration could make superficially plausible arguments for such authority, but that all such arguments would trigger compelling legal challenges. Moreover, a use of “emergency” powers to circumvent congressional unwillingness to fund a long-wished-for presidential pet project would be both unprecedented and a serious challenge to constitutional separation of powers norms.

What has not been fully addressed is the claim, floated by several commentators, that declaration of a national emergency under these circumstances would constitute an impeachable offense. As a constitutional matter, I believe such a declaration could constitute part of a larger pattern of impeachable conduct. However, three factors would make the political path to impeachment on that ground very tricky. The first is the promiscuity with which Congress has ceded emergency authority to the president. The second is the Supreme Court’s overzealous limitations on the so-called “congressional veto” — a mechanism for constraining presidential misuse of Congress’s grants of discretion. The third is the distressing likelihood that Republican legislators, blinded by tribalism and cowed by Trump’s enduring popularity with the Republican base, would not defend their own constitutional authority.

Let’s walk through the problem.

First, as all but a few outliers concede, impeachable offenses need not be crimes. As George Mason, who introduced the phrase “high Crimes and Misdemeanors” into the constitutional text, observed, the primary objective of the impeachment mechanism is to forestall “[a]ttempts to subvert the Constitution.” Multiple British parliaments, from whose precedents Mason drew the phrase “high Crimes and Misdemeanors,” employed impeachment, not for punishment of statutory crime, but to remove executive officials who “subvert[ed] the ancient and well-established form of government” of Great Britain.

One of the most fundamental precepts of American constitutional government is that Congress makes the laws and, in particular, maintains the power of the purse. Article I, Section 9 of the Constitution is unequivocal: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The wall dispute is nothing more than an appropriations fight. The president wants Congress to appropriate money for a special purpose — building a border wall — and Congress declines to do so. A president who claims the power to spend $5.7 billion dollars on a project Congress has expressly refused to authorize is therefore in undoubted violation of the most basic separation of powers principle … unless he can claim that Congress has somehow already authorized him to act.

That’s where the threatened declaration of national emergency comes in. One potentially salutary effect of Trump’s threat is that it has awakened the public to the striking variety of laws permitting a president to claim emergency powers. On the one hand, the existence of such laws is unsurprising. In the modern interconnected world, real threats to the public welfare — war, terrorism, disease, or natural disaster — can arise quickly. Sometimes the federal government is the only entity with the resources for adequate response and sometimes action will be required before congress can authorize it. On the other hand, Congress’s choice to delegate emergency power rests on the assumption, the norm if you will, that presidents will not misuse that power to circumvent ordinary constitutional arrangements. Mr. Trump is casting a bright and disconcerting light on that happy assumption.

Sources of emergency authority

The most likely legal sources of emergency authority for wall-building lie in statutes relating to military matters such as 10 U.S.C. 2808(a). That act provides that, upon presidential declaration of “a national emergency … that requires use of the armed forces,” the government may “undertake military construction projects … that are necessary to support such use of the armed forces.”

Of course, whatever one’s view of the current situation at at the border, there is no serious case that it “requires the use of the armed forces.” Regulating commerce, immigration, and crime at the border are all traditional civilian functions and there has been no recent change, no “crisis,” remotely justifying military intervention. Moreover, even if one believed that the Army had a useful role to play in border security, it cannot be plausibly argued that building several hundred miles of wall would be “necessary to support” military operations. Indeed, Trump’s approach to the issue would turn the statute on its head. He has not claimed that there are required military operations for which a wall would be necessary support. Rather, he claims that the wall is necessary and thus, in the absence of congressional authorization to build it, military funds should be diverted for its construction.

Counteracting an emergency declaration

But assume that whether under Section 2808(a) or some other statute Trump claims emergency power to build his wall. Opponents would have two possible avenues of response.

First, subject to rules about standing, a variety of folks might sue (Congress itself, individual congressmen, border landowners, conservation groups, etc.). Three lines of argument seem likely: (a) there is no “emergency” justifying a presidential declaration in the first place; (b) emergency or not, building a border wall doesn’t fit within the parameters of whatever emergency statute Trump chose to rely on (e.g., building a wall is not necessary to support military operations); or (c) the broader contention that this particular declaration of emergency powers is a transparent nullification of the constitution’s allocation of powers among the branches of the federal government.

Traditionally, courts try very hard to avoid second-guessing presidential decisions in areas where either the constitution or statutes grant him wide discretionary authority. That said, using emergency powers to authorize a long-debated civilian construction project in the face of congressional refusal to appropriate seems such a flagrant abuse that I suspect the courts would ultimately rule against Trump. Nonetheless, he would have a fig leaf of legal justification and resolving the matter would take months or years.

Alternatively, Trump’s congressional opponents could invoke the provisions of the National Emergencies Act. That law, passed in 1976, created a mechanism for congressional termination of presidentially-declared emergencies. As originally written, such emergencies ended once the president said so or congress passed a “concurrent resolution” (a resolution by both the House and Senate). In its original form, the law did not involve the president in the congressional termination process; once the concurrent resolution passed both houses, the emergency was over, regardless of what the president had to say about it.

However, in a 1983 case called INS v. Chadha, the U.S. Supreme Court seemingly voided all so-called legislative vetoes. Chadha involved a statute that allowed a vote by one house of congress to reverse certain executive branch decisions about immigration cases. The Court decided that this procedure violated the constitutional requirement that lawmaking be bicameral, i.e., involve votes by both the House and Senate, and the so-called presentment clauses that require presidential signature before a bill can become law. The primary focus of Chadha was the unicameral nature of the immigration procedure at issue, but Chadha at the least casts grave doubt on the validity of even bicameral congressional veto procedures.

Therefore, in 1985, Congress amended the National Emergencies Act to specify that presidential emergencies terminate when “there is enacted into law a joint resolution terminating the emergency.” This language implies that, to become “law,” the joint resolution would have to be presented to the president for signature. Thus, the president could veto the resolution, leaving the emergency in place unless Congress could summon 2/3 majorities in both houses for an override.

In any previous era of American history, securing a majority or a even super-majority of both House and Senate to void a president’s blatant nullification of the constitutional appropriations authority of Congress would, I think, have been a cinch. Any rational legislator, even one of the same party as the president, would recognize that acquiescence would badly dilute his or her own institutional power. Not to speak of creating a precedent that would be employed by succeeding presidents of the opposite party.

However, the standards and institutional self-respect of this Congress (particularly, if I may say, its Republican members) are so degraded that it seems entirely possible that all but a handful of Republicans would vote to uphold the emergency declaration — the Constitution and separation of powers be damned.

Impeachment

Which brings us to impeachment. I have no doubt that the Founders would have considered presidential abuse of emergency powers to nullify congressional appropriations authority to be impeachable conduct. Invocation of emergency authority in the wall dispute would be unprecedented. It would amount to presidential rule by decree and subversion of a bedrock of American constitutional design.

That said, I suspect even the most doctrinaire constitutionalists might hesitate to impeach a president for a single instance of such abuse. One can fairly argue that Harry Truman’s effort to seize the steel industry for national security reasons in the face of a nationwide strike was a more egregious overstep, and the remedy there was not impeachment, but a judicial smackdown by the Supreme Court in the Steel Seizure Case. However, an unwarranted emergency declaration by Trump would not be an isolated misstep, but merely a single item in the bill of particulars supporting impeachment for a pattern of conduct destructive of the constitutional order.

The likelihood of a Trump wall emergency becoming part of articles of impeachment would be enhanced if one or both of two things occurred:

First, before Congress could seriously contemplate impeaching Trump for abusing his emergency powers, it would have to have exerted its own authority by voting to terminate Trump’s emergency declaration under the National Emergencies Act. If Congress made no effort to use this tool or failed to secure majority votes in both houses, it would be poorly placed to argue that Trump had committed a major constitutional sin against congressional prerogatives. Congressional termination of the emergency by majority votes including significant numbers of Republicans in both houses would be an especially persuasive indicator that this was a constitutional, and not a partisan, disagreement. Still better (though implausible) would be termination votes by veto-proof 2/3 majorities. Sadly, the events of the past two years give one little confidence that many Republican legislators retain sufficient awareness of constitutional principles or indeed sufficient institutional self-respect to resist their raging leader.

Second, if the Supreme Court definitively rejected Trump’s move as an unconstitutional breach of the separation of powers, the case for impeachment would be significantly strengthened. A ruling against Trump on the ground that he violated the terms of a particular emergency powers statute would also be helpful, though not as compelling. Mere misapplication of statutory language — even if the misapplication is willful and flagrant — has less resonance as a ground for removal than a constitutional infraction. In either case, Trump would surely bluster and denigrate the judges, but a well-reasoned judicial repudiation of Trump’s overreach could stiffen the spines and harden the resolves of Republican legislators now too timorous to do what most know is right.

Manafort Lied about Dealings with Kilimnik

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Special Counsel Robert Mueller believes that Paul Manafort, former Trump campaign chairmen, shared polling data with Konstantin Kilimnik, a Ukranian translator and campaign adviser believed to have ties with Russian intelligence, and that he later lied about it. Apparently, Manafort’s lawyers have conceded that Manafort neglected certain details of his Ukrainian dealings, as they wrote in a court filing that “[i]t is not surprising at all that Mr. Manafort was unable to recall specific details prior to having his recollection refreshed.” The filing also notes that Manafort forgot  and later recalled that he had met with Kilimnik in Madrid in January or February of 2017, which was after Trump became President-elect, but also after Manafort’s tenure as campaign chairmen. Manafort and Kilimnik have previously been accused of witness tampering, for allegedly reaching out to members of the Hapsburg group, and asking them to lie about secret, pro-Ukrainian lobbying done at Manafort’s behest.

If it is to be believed that Kilimnik does have ties to Russian intelligence, then this information establishes, at least, a Russian interest in President Trump’s candidacy. Of course, that is not new information. At most, it could go to establishing communication between Trump and Russia post-election. That being said, it is only circumstantial evidence. The fact that foreign powers are interested in Trump’s nomination and presidency, does not mean he cooperated with foreign powers, and the fact that Manafort cooperated with foreign powers, does not mean that Trump participated. Still, this another straw on the camel’s back.

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Crime is NOT a prerequisite for impeachment

By Frank Bowman

In a recent post, my blog co-author Sam Crosby noted a new article in the Harvard Law Review Forum by Professor Nikolas Bowie arguing that impeachable “high crimes & misdemeanors” must be criminal in character. Professor Bowie relies primarily on his exegesis of arguments made by former Justice Curtis at the impeachment trial of President Andrew Johnson.  While Prof. Bowie’s position has the virtue of being arrestingly contrarian, it is also dead wrong, inasmuch as he misreads the text and structure of the constitution, the entire sweep of Anglo-American legal history, and indeed the Johnson impeachment itself. 

Professor Bowie (not unlike Professors Tribe and Matz in their recent book) ignores copious evidence that the Framers and other members of the founding generation had a sophisticated understanding of British parliamentary impeachment practice and pre- and post-Revolutionary American impeachment practice that informed their adoption of the phrase “high crimes and misdemeanors.”  That phrase had been used for centuries, on both sides of the Atlantic, to embrace both criminal and non-criminal official misbehavior. As both Raoul Berger in his classic 1970s study and I in my upcoming book conclude, there is no evidence that any impeached official in either Great Britain or America prior to 1788 ever successfully defended against impeachment on the ground that his conduct was not criminal. The historical derivation of the phrase “high crimes and misdemeanors,” together with multiple statements at the Constitutional Convention and later by the founding generation make clear that, as a matter of original understanding, impeachable conduct was not limited to indictable crime. 

In addition, Prof. Bowie also (quite inexplicably) ignores the evidence of every other American impeachment post-1788 except that of President Johnson.  Those impeachments, whether of judges, legislators (one), or executive branch officials are chock full of charges of non-criminal impeachable conduct. Senator William Blount was impeached in 1797 for a non-criminal (though outrageous) scheme to give Great Britain control of Spanish holdings in Florida and Louisiana; he was acquitted, but only because the Senate seems to have concluded that senators are not “civil officers” subject to impeachment. Multiple federal judges have been impeached and some convicted and removed for non-criminal behavior. The articles of impeachment reported out of the Judiciary Committee against Richard Nixon contain numerous allegations of non-criminal behavior and the Committee concluded that crime was not a requirement for impeachment.

Prof. Bowie attempts to elide the overwhelming historical evidence two ways. First, he focuses on the procedures in American impeachments and some of the terminology used to describe them. In particular, he emphasizes the trial-like features of the House and Senate decisional process and the employment of terms like “convict” or “conviction” to describe the Senate’s verdict. But this is a remarkably elemental error. It is not the procedures of American impeachments (or any other legal proceeding), but their consequences that establish their fundamental character. What distinguishes crime from other delicts is not the procedures employed to determine liability, but the potential consequences attendant on a finding of liability.  Crimes can result in loss of life, freedom, or property, and are attended by public opprobrium that does not necessarily attach to any mere civil judgment.  It is because of the uniquely severe consequences that follow a criminal conviction that the law establishes uniquely protective procedures as a prerequisite to such a conviction. Criminal procedures attach to criminal consequences, not the other way round.

British impeachments were essentially criminal in character — an impeached official in Great Britain could be imprisoned, banished, fined, stripped of all his property, or even executed.  The Framers of the American constitution (and their forbearers who drafted early American state constitutions) consciously divested impeachment of all characteristically criminal punishments, leaving only removal from office and the potential disqualification from future office-holding. 

Article I, Section 3 states:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold any Office of honor, Trust, or Profit under the United States; but the party convicted shall nonetheless be liable and subject to Indictment, Judgment and Punishment, according to Law.

In short, the Framers not only stripped impeachment of its criminal consequences, but expressly stated that such consequences could be imposed on office holders who had committed statutory crimes only following separate proceedings in the ordinary courts. They did this in part because they found the sometimes bloody results of British impeachments unseemly, but more importantly, they were aware that British impeachments were subject to the criticism that they imposed criminal consequences for conduct not previously denominated illegal in violation of the common law maxim nulle poena sin lege.  By eliminating criminal punishment for impeachment, the Framers could protect the polity against overreaching officials by expanding the reach of impeachable conduct without offending common law principles regarding criminal liability.

Professor Bowie blithely ignores the plain implications of the textual restrictions on the consequences of impeachment. He simply asserts, ipse dixit, that “it is undoubtedly a punishment to strip someone of their office and disqualify them from holding certain offices because of their commission of ‘high Crimes and Misdemeanors.'” With apologies to Prof. Bowie, this is a strikingly shallow assertion. Of course, removal and disqualification from office are unpleasant and undesirable events, and in that sense they are “punishment” in the most general colloquial sense. But the same is true of an award of monetary damages following an adverse judgment in a slip-and-fall civil tort suit or breach of contract action, or the loss of one’s law license in a bar disciplinary proceeding. Merely because the consequence of a legal proceeding is unpleasant does not make the consequence a criminal punishment or the proceeding a criminal trial. What is most notable about the constitutionally prescribed consequences of impeachment is precisely that they are not ordinary punishments for crime. 

Professor Bowie tries to circumvent unmistakable textual and structural evidence of the non-criminal character of impeachment by pointing to the ex post facto clause and the constitutional prohibition on bills of attainder. He argues that these provisions ban retrospective imposition of criminal punishment and therefore prevent Congress from impeaching an officeholder for conduct that was not statutorily criminal at the time of the impeachment. But, of course, this argument is completely circular. It only follows if impeachments are criminal proceedings. If they are not — and as we have seen the Framers wrote the impeachment clauses to strip impeachment of its criminal character — then the ex post facto and bill of attainder clauses impose no restrictions on the scope of impeachable conduct.

Indeed, Prof. Bowie completely misunderstands the import of the ex post facto clause and the constitutional prohibition on bills of attainder for the reach of impeachable offenses under the American constitution.  In fact, he has things exactly backwards. George Mason, who introduced the phrase “high crimes and misdemeanors” into the constitutional text did so in part because, in the absence of bills of attainder and the ability of the legislature to define crimes retrospectively, a broad definition of impeachable offenses was required.  Said Mason, “As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachments.” Otherwise, in the Framers’ view, the polity would be defenseless against a chief executive whose conduct subverted the constitution, but broke no existing penal law.  This same fear was what Alexander Hamilton referred to when he spoke in the Federalist of impeachable offenses as being in their essence “political.”

Finally, Prof. Bowie misunderstands the Johnson impeachment.  He focuses narrowly on the arguments of one of President Johnson’s attorneys, who quite naturally would argue that impeachment requires crime, and a few cherry-picked comments from senators regarding that argument.  But he completely ignores everyone else’s arguments and the statements of other senators that don’t support his thesis.  More importantly, he ignores the political context of Johnson’s acquittal. The Senate’s decision to acquit Johnson, by one vote shy of the required two-thirds majority, had far more to do with the tortured politics of Reconstruction, the electoral prospects of the Republican Party in 1868, and the fact that a great many people did not want to see Ben Wade (who was next in line of succession) become president even for a year, than it did with any supposed rule that impeachable conduct must be criminal.

The overwhelming consensus of serious students of impeachment is, and long has been, that impeachment does not require criminal conduct. Professor Bowie offers nothing to disturb that settled view.

Impeachment Scholars Butting Heads

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There is an interesting interplay between articles published by Harvard Law that readers might wish to explore. Michael Paulsen, of  the University of St. Thomas, wrote a response to the book written by Professor Laurence Tribe and attorney Joshua Matz entitled “To End a Presidency: The Power of Impeachment,” in an article published in the Harvard Law Review: “To End a (Republican) Presidency.”  Tribe and Matz’s book attempts to establish the proper standard for impeachment. In his article, Paulsen complains that Tribe and Matz set forth an overly restrictive standard, by introducing an elements which lack textual support: 1) that the President use formal powers of his office to further wrongdoing; 2) that he is not viable as a national leader; and 3) that he “pose[s] a prospective danger of grave harm for which there is no alternative short of removal.” Paulsen claimed, additionally, that Tribe and Matz’s analysis had an unacceptably partisan slant.

Tribe and Matz wrote a strong response to Paulsen published in the Harvard Law Review forum, in an article entitled “To (Pretend to) Review our Book.” It that response they refuted that their book was aimed at partisan ends. Rather, they sought to end the tendency to jump so readily to talk of impeachment by “[emphasizing] realism over fantasy.”  They wrote “impeachment is neither a magic wand nor a doomsday device. Instead, it is an imperfect and unwieldy constitutional power that exists to defend democracy from tyrannical presidents.” It is for this reason they offer a more restrictive definition, about which Paulsen’s complaints were unfounded.  First they deny that they asserted it was necessary for the President to use his office for an offense to be impeached, and though they admit to the second two requirements, refute that they lack textual support. Rather, they are borrowed from Professor Charles L. Black, Jr.’s canonical study, Impeachment: A Handbook, in which he writes:

Many common crimes–willful murder, for example–though not subversive of government or political order, might be so serious as to make a president simply unviable as a national leader; I cannot think that a president who had committed murder could not be removed by impeachment. But the underlying reason remains much the same; such crimes would so stain a president as to make his continuance in office dangerous to public order. Indeed, it may be this prospective tainting of the presidency that caused even treason and bribery to be made impeachable.

There is, of course, more substance contained in the articles themselves. For an interesting debate on the subjects of originalism and partisanship in the formation of an impeachment standard, readers should visit the links above.

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