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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: attorney general

Barr Releases Summary of Mueller’s Report

24 Sunday Mar 2019

Posted by crosbysamuel in Articles, Uncategorized

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attorney general, Collusion, evidence, Federal Rules of Criminal Procedure 6(e), House of Representatives, impeach, Impeachment, indictment, insufficient, Obstruction of Justice, release, report, Robert Mueller, Rod Rosenstein, russia, Special Counsel, Summary, William Barr

Attorney General William Barr has released a four-page summary of Special Counsel Robert Mueller’s report. In it he announced that Mueller did not find sufficient evidence to establish the President Trump’s campaign conspired with Russian groups to manipulate the results of the 2016 election. Additionally, he writes that Mueller did not make a recommendation as to whether the President should be charged with obstruction of justice, but rather presented evidence on both sides of the issue and deferred to the Attorney General. Bar and Deputy Attorney General Rod Rosenstein have decided not to pursue indictment of the President on that charge. Barr notes that he intends to release as much of the report as will not violate Federal Rule of Criminal Procedure 6(e), governing the release of grand jury information. After the release of Mueller’s findings, the House of Representatives will have to decide whether they believe the evidence is sufficient for impeachment.

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Is Mueller Almost Finished?

21 Thursday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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28 CFR 600, attorney general, Bill Barr, Collusion, confidential, Congress, discretion, donald trump, impeach, impeachable, Impeachment, investigation, Obstruction of Justice, president, privelege, report, Robert Mueller, russia, Special Counsel, subpoena, trump, William Barr

CNN Reported today that Special Counsel Robert Mueller may conclude his investigation as early as next week. Their information apparently came from sources familiar with Attorney General Bill Barr’s plan to announce the completion. But! Don’t get too excited. Though Mueller’s report may be finished soon, that doesn’t mean the public or Congress will get to see it.

The regulations which govern Special Counsels are contained in part 600 of title 28 of the Code of Federal Regulations. 28 CFR 600.8 says that when Mueller gets done, he needs to send his final product off to the Attorney General, Bill Barr. 28 CFR 600.9 says that Barr only has to tell Congress 1) that Mueller is done; and 2) if he disagreed with any of Mueller’s suggested actions because they were “inappropriate and unwarranted,” and an explanation of that conclusion. So what we’ll find out is, for the most part, at Barr’s discretion. However, Barr told Congress during his confirmation hearing that he intends to release his own summary of the report, and will be as transparent as possible within the confines of the law (for a thorough analysis of Barr’s statements, click here). If Barr releases less than what Congress would like, their remedy is a subpoena.

william-barr-nomination-hearing.jpgKevin Lamarque/Reuters

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Will the Investigative Torch Pass to the House?

13 Tuesday Nov 2018

Posted by crosbysamuel in Articles, Uncategorized

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acting attorney general, Adam Schiff, attorney general, Collusion, Committees, donald trump, House appropriations committee, house intelligence committee, House of Representatives, investigation, Jeff Sessions, matt whitaker, midterms, Mueller, nancy pelosi, nita lowey, president, russia, zoe lofgren

With Jeff Sessions gone as Attorney General and Matt Whitaker positioned as acting AG, one has to wonder how much longer Mueller will be able to carry on his investigation unhindered. It may be the Special Counsel will have to pass his baton over to the House. But will  House Democrats vigorously investigate?

This article from Vox, written by Ezra Klien, correctly points out that because Democrats took the House but not the Senate, they will have trouble passing legislation into law. Much of what power is left to them is in the  investigation of President Trump. With their new found majority, Democrats are taking over vital investigative committees in the House. New York Democrat Nita Lowey, will chair the Appropriations Committee, and has “a laundry list of potential areas for inquiry. . . . [including the] family separation policy and hurricane relief in Puerto Rico.” California Rep. Adam Schiff will lead the House Intelligence Committee, which has already been engaged in the Trump investigation.

However, Democrats may be reluctant to shift their focus to investigation. Nancy Pelosi, House Democratic Leader, has said that any investigations will be “strategic” aimed at “seek[ing] the truth.” And Rep. Zoe Lofgren, a Democrat from California, expressed a similar sentiment, stating: “if Mueller sends us an exploding bomb, we may have an obligation to deal with that. But absent that, I don’t think the country will be on board with impeachment, and nor should we.” She feels that focusing on the investigation will distract from what “really matters to people.” It may be Democrats are unwilling to focus their energy of uncovering a truth that, even if it leads to impeachment in the House, will fail to cause removal by the Senate.

pelosi.jpgJ. Scott Applewhite

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Terribly Charitable Trump

15 Friday Jun 2018

Posted by crosbysamuel in Articles, Uncategorized

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attorney general, banned, campaign finance law, charity, coordination, Donald J. Trump Foundation, illegal, Impeachment, jr., new york, selfdealing, sues, trump

The New York State attorney general’s office is suing the Donald J. Trump Foundation for “violating campaign finance laws, self-dealing, and illegal coordination with the presidential campaign.” The suit alleges that the charity used its funds to help Trump curry political favor, and seeks to dissolves the charity, to ban Trump and his three children from serving on non-profit organizations, and to collect $2.8 million in restitution (“the amount raised for the foundation at a 2016 Iowa political fund-raiser.”). Interested readers can find the petition here.

These election law violations are just the latest on a laundry list of unfit behavior, including conspiracy to defraud the United States,  inappropriate pardons, obstruction of justice, and generally dishonest behavior; however, these charges seem especially important. It may be a local’s bias, a sort of impeachment ethnocentrism, but it feels significant that these charges are brought so soon after the resignation of  Missouri Governor Eric Greitens, who was alleged to have illegally used his charity to raise campaign finance funds. In a country where the removal of executive officials is so rare, it may be that Greitens’ resignation could act as a sort of precedent. Is using a charity to raise campaign funds the line one must not cross?

15trumpfoundation-01-jumbo-v2.jpgDamon Winter/The New York Times

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Could Mueller be Fired?

21 Wednesday Mar 2018

Posted by crosbysamuel in Articles, Uncategorized

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attorney general, Collusion, Dershowitz, fired, goldsmith, harvard, impeach, impeached, Mueller, russia, terminated, tiwtter, trump

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

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

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

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

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

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

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

. . . .

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

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

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

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

GettyImages-163554649-mueller-e1521487377282.jpgGetty Images

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Trump Claims Obama Acquiesced in Face of Russian Interference

21 Wednesday Feb 2018

Posted by crosbysamuel in Articles, Uncategorized

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attorney general, Conspiracy, Election, hackers, impeach, Impeachment, interference, Jeff Sessions, obama, Obstruction of Justice, Politics, president, russia, Russian, trump, twitter

In response to the indictment of a group of Russians for meddling with the 2016 presidential election, Trump seems to have asked why Attorney General Jeff Sessions has not investigated the crimes of President Obama, because the meddling happened during the Obama administration, and “. . . . [he] [didn’t] do something about [it].” The allegation came in the form of a tweet, which read:

Question: If all of the Russian meddling took place during the Obama Administration, right up to January 20th, why aren’t they the subject of the investigation? Why didn’t Obama do something about the meddling? Why aren’t Dem crimes under investigation? Ask Jeff Sessions!

Trump’s question as to why Jeff Sessions, the Attorney General, is not investigating the Obama Administration and the the crimes of the Democrats, reads as an allegation of criminal conduct. The fact that he sandwiched Obama’s lack of action in the middle of his question further suggests that President Obama, by virtue of his inaction, is guilty of a crime. If that analysis is correct, the President is suggesting that acquiescence in the face of a complete conspiracy is criminal conduct. There is some argument to made here (though a very poor one). Section 3 of Title 18 of the United States Code says that “whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” This crime, though arguably the most relevant to Trump’s allegation, is a very bad fit. One would have to believe that Obama, in not speaking out harshly enough against the Russian meddlers, relieved, comforted, or assisted them to prevent their prosecution. One might argue that if Obama were to impose no sanctions on Russia he may in some way be preventing its “punishment.” Still, that would be a very abstract argument, because if President Obama had decided not to sanction the Russians, there would be no punishment to prevent. This argument is still more outrageous, in light of the fact that Obama DID sanction Russia for election meddling in the last two years of his administration.

All that being said, I think it is far from accurate to suggest that a less-than-fierce reaction to Russian election interference could be considered criminal. However, if it could, Trump would have something far worse to fear than President Obama — President Trump himself has yet to impose the Russian sanctions passed by Congress last year. Despite all this analysis, I doubt Trump meant to make a serious accusation. Rather he continues to try and distract the American people by pointing fingers away from himself.

f63d3fa9e9b34571ca1b4b11f5a8598b.jpgJim Watson/AFP/Getty Images

 

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If Mueller Goes Down, State Attorneys General Won’t Save Us

25 Tuesday Jul 2017

Posted by impeachableoffenses in Uncategorized

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attorney general, immunity, Mueller, quo warranto, self-pardon, Shugerman, state attorneys general, supremacy, supremacy clause

Several recent articles have suggested that, should Special Counsel Robert Mueller be fired and his investigation discontinued, state attorneys general could, in effect, step into his shoes.  While state officials can play some role in what might broadly be termed the anti-Trump resistance, I do not believe they can function effectively as stand-in special prosecutors.

I lay out my reasons for this view in an article published today in Slate.  You can read the article at this link.

I’ll be writing a bit more on this subject, and reader reactions to the Slate piece, in coming days.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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