26 Friday Jul 2019
Posted in Uncategorized
By Frank Bowman
After my last post here, I developed some additional thoughts for Slate on the Mueller testimony, particularly the invariable pattern where the Democrats asked Mueller about the facts he found, while Republicans, to the last man and woman, asked nothing about facts and instead simply attacked the motives of the investigators.
The Slate article is here.
24 Wednesday Jul 2019
Posted in Uncategorized
Tags
Department of Justice, donald trump, House Judiciary Committee, Mueller hearing, Obstruction of Justice, Robert Mueller
By Frank Bowman
I may have more to say later, but Robert Mueller’s testimony this morning before the House Judiciary Committee generated a couple of off-the-cuff reactions.
First reactions
An hour or so in, I’d say this is going about as I expected. Mueller is rigidly insisting on not going one inch beyond the report. The Republicans are avoiding talking about what’s in the report, focusing instead on conspiracy theories about the origins of the investigation.
Two modest surprises for me:
1) Mueller himself is more halting and less commanding than I might have expected. Part of this, I think, is that he is so committed to sticking with the report that he’s not focusing on the substance of the questions and answering them on their merits — as would be true for ordinary witnesses or for Mueller himself in any other situation. Instead, he is measuring every question by only two metrics: first, can I answer simply by referring to the report, and second, can I decline to answer at all on the ground that the question asks about internal special counsel or DOJ deliberations. That’s an artificial and unnatural way of thinking about questions, and it makes him seem indecisive.
(I should say in passing that, on many points where Mueller refused to answer, it’s not at all clear that he had any legal right or privilege to do so. It’s hard to imagine any other witness being given this degree of deference on what questions he will or won’t answer. But neither party elected to spend the time or energy to press him. Hence, the Committee, and the rest of us, got no more or less than Mueller wanted to talk about.)
2) Although the media may not score the Democrats very well on their performance today, so far the Democratic members have displayed a pleasantly surprising degree of discipline in walking Mueller succinctly through the major factual components of the obstruction case against Trump. In another era – the era of Watergate for example – the facts they are highlighting would be devastating to a president. But because the facts are detailed and because the attitude of the committee Republicans is that there’s nothing to see here (an attitude that will be reinforced by Fox and other pro-Trump media), these crushingly incriminating facts are unlikely to perceived as such by anyone not already convinced going into the hearing.
Republicans attack Mueller’s team and with it, the Dept of Justice
Towards the end of the hearing Republican Cong. Armstrong raised questions about the apparent political affiliations of Mueller’s team — i.e., 14 of them seem to have donated to democratic political candidates — in an effort to argue that Mueller’s investigation was fatally biased.
Although this sounds like a plausible line of inquiry, it totally distorts the basic ethos of federal prosecutors, which is that DOJ does not inquire about prosecutors’ political affiliations. It judges them on their body of work, and it presumes, in the absence of affirmative contrary evidence, that regardless of political leaning or affiliation, prosecutors will pursue the facts and the law wherever they may lead. DOJ has a long history of impartiality that supports this operating assumption.
The Repub line of attack here implies an absurd rule going forward — that only Republicans or unaffiliated independents can investigate Republicans, and only Democrats or unaffiliated independents can investigate Democrats. Adoption of such a rule, or operational guideline, would shake the foundation of the Department’s professional code and internal esprit.
More importantly, the Republicans are actively contributing to the public’s already-growing distrust of government and the impartiality of justice itself. There is, in fact, no evidence that Mueller and his team shaded their efforts or their report against Trump & Co. To the contrary, they treated him with kid gloves relative to regular defendants. And in his report, Mueller bent himself into linguistic pretzels to avoid saying what the evidence proved – namely that Trump obstructed justice. By attacking Mueller (a lifelong Republican) and his team this way, the Republicans are actively eroding the confidence of the American public in their government — indeed in the very possibility of impartial administration of the law. Republican members may think this is to their advantage in the short term, but it’s corrosive, and we will all live to regret their short-sighted selfishness.
That said, I confess to thinking Mueller notably inept in his defense of his own people and of the traditions of the Justice Department. This line of questioning was easily foreseeable, and Mueller should have had a devastating response ready. That he didn’t suggests two things about him: First, he is still, stubbornly, living in the world he (and I) grew up in, one in which the honor, probity, and professional competence of long-serving federal law enforcement officers was accepted by both political parties. Second, he’s gotten old. He simply can’t respond quickly, either with spontaneous argument or even with pre-prepared speeches
29 Monday Apr 2019
Posted in Uncategorized
By Frank Bowman
This weekend brought a subtle, but important, bit of good news for those interested in effective congressional investigations of the Trump administration.
Attorney General Bill Barr is threatening to refuse the request of the House Judiciary Committee that he testify later this week. Reportedly, Barr is balking because the Committee will deviate from the pattern of recent congressional hearings in which members do all the questioning and every member gets a paltry 3-5 minutes to ask questions of the witness, with no opportunity for follow-up. Instead, House Judiciary Chair Jerrold Nadler is delegating some of the questioning to committee lawyers who will have 30 minutes to pursue lines of questioning to their logical conclusions. There may also be a private session about any classified materials in the Mueller report.
The “get every Member on camera for 5-minutes” mode of proceeding has long had those of us who are trial lawyers tearing our hair and screaming at our TV sets (or computer screens). It is guaranteed to be ineffectual for three reasons: First, cross-examination, particularly of reluctant or hostile witnesses, is the single most difficult trial skill. To do it well takes training and years of practice. Perishingly few members of either the House or Senate have the professional background to have mastered it. For most of those few, the experience was years in the past and they’ve lost their edge.
Second, the best cross-examiner in the world can do little if confined to an arbitrary 5-minute limit. Thus, even the rare talented congressional interrogator can be filibustered for five minutes by any reasonably self-possessed witness.
Third, sequential questioning by members could be made fractionally more effective if all the members (or at least all the members of one party) carefully coordinated the topics and lines of questioning to be pursued. But there is little indication that this is ever done, and it would require a degree of diligence, focus, and cooperative spirit improbable in a group comprised of office-seekers eager to get individual, and distinctive, facetime.
If you want an eye-opening contrast to the aimlessness and patent grandstanding of most modern congressional hearings, go watch the proceedings of the Senate and House committees investigating Nixon and Watergate. Three key differences jump out: first, the committee’s professional counsel did much of the questioning; second, they were unconstrained by artificial time limits; and third, the senators and congressmen of both parties were prepared for their turns at questioning and were obviously interested in learning the truth. Moreover, in order to promote candor and avoid concerns about unfairly besmirching reputations, a number of the key hearings were held in private.
The result was that, in Watergate, both the Senate and House hearings were genuine factual inquiries in which witnesses were compelled to answer questions comprehensively and explain inconsistencies in their stories. Both sets of hearings maintained coherent narratives and exposed important facts that would not otherwise have come to light.
It is extraordinarily heartening to see that Chairman Nadler seems to have learned a lesson from history. Mr. Barr’s anguished cries at the prospect of a modest move back toward earlier and more productive modes of procedure should be seen as what they are — the vain protestations of a lawyer who knows the power of competent cross-examination and desperately wants to avoid having it directed at him.
That said, Nadler’s proposal is only a modest step in the right direction. The staff questioning will still be broken up into 5-minute alternating chunks between majority and minority counsel, which is sadly reminiscent of the clumsy experiment by the Senate Judiciary Committee’s Republican majority in the Kavanaugh Supreme Court confirmation hearings.
Chairman Nadler should do two things. He should stick to his guns in this confrontation with Barr. And in future, he should move even more firmly in the direction of procedural rules that, in living memory, facilitated the discovery of truth. Committees of both the House and Senate who want facts should follow and build on his example.
19 Tuesday Mar 2019
Posted in Articles, Uncategorized
Tags
campaign, Collusion, documents, donald trump, House Judiciary Committee, impeach, Impeachment, investigation, nader, nancy pelosi, not worth it, Obstruction of Justice, subpoena, trump organization
A large number of the 81 individuals subject to the House Judiciary Committee’s “friendly subpoenas,” requests for documents sent to President Trump’s organization, campaign team, transition team, inaugural committee, and his personal associates for documents having to do with the committee’s probe into the allegations of Trump’s obstruction of justice, have already complied and sent documents. These documents could be used to lay the foundation for impeachment proceedings in the House; however, recent remarks by Speaker of the House Nancy Pelosi, seem to indicate that said impeachment proceedings my never occur.
Mark Wilson/Getty Images
17 Friday Nov 2017
Posted in Uncategorized
Tags
Department of Justice, House Judiciary Committee, Jeff Sessions, Justice Department, sessions, Uranium One
In the fall of 1979, I took my first legal job. By astounding good fortune, I was hired fresh out of law school as a Trial Attorney in the Criminal Division of the U.S. Department of Justice in Washington, D.C. From the moment I first walked into the monumental neoclassical Main Justice Building on Pennsylvania Avenue, I knew that I’d come to a unique place. The marble, the statuary, the New Deal-era murals, the glorious main library’s vaulted ceilings, gleaming oak, and book-laden shelves, and the pervasive air of deliberative rectitude and high seriousness enthralled me.
To be honest, I wasn’t a particularly good prosecutor to start with. I was too young, too immature, too undisciplined. But if I didn’t give the Justice Department all it deserved at the beginning of my career, it placed an indelible stamp on me. During two tours with the Department, in which I served under Presidents Carter, Reagan, Bush Sr., and Clinton, I shed most of my initial gauzily romantic infatuation. But in its place grew a deep appreciation of the central role the Justice Department plays in maintaining the rule of law in a democratic state and a hardnosed set of convictions about the values that must inform the Department’s work if republican government is to survive in America.
Mr. Trump and the congressional Republican Party are on the brink of grievously wounding the Department of Justice. If they succeed, they will have weakened, perhaps permanently, a pillar of American constitutionalism and one of its most important bulwarks against creeping autocracy. Let me explain:
The U.S. Department of Justice is immensely powerful. Neither its reach nor its resources are infinite. But as to any individual, group, or corporation it elects to pursue, it can bring to bear nearly unlimited money, dedicated staff, and first-rank legal talent. Those lawyers are empowered to direct the immense resources of multiple federal law enforcement agencies — FBI, DEA, ATF, Secret Service, Customs, ICE, postal inspectors, and more. In appropriate cases, they can deploy investigators and experts from federal regulatory agencies like the SEC, the EPA, OSHA, and the FDA, and even in certain circumstances, military and intelligence assets. Only Justice Department prosecutors can command the unmatched coercive powers of a federal grand jury. Only federal prosecutors have the luxury of selecting criminal charges from the sprawling federal code, a body of law so all-encompassing that it is only slightly facetious to suggest that it criminalizes some aspect of virtually every human activity. And the Department’s long arm can reach into every state and across oceans.
Some observers are understandably leery of DOJ’s immense power. But in the modern world, this power is essential. Without it, there would be no authority capable of combating organized crime, international criminal cartels, domestic terrorism, entrenched federal, state, and local political corruption, or complex financial fraud. Without the Department of Justice, there would be no effective public counterweight to the staggering wealth and sometimes pernicious influence of modern multinational corporations. The private centers of power Teddy Roosevelt labeled “malefactors of great wealth” have in our day metastasized to a degree T.R. could not have imagined. Without DOJ, they would be unchecked.
With the power to combat great evil necessarily comes the power to inflict great harm. Conviction of a federal crime can mean imprisonment, impoverishment, even death. Its collateral consequences can include public stigma, loss of livelihood, and destruction of family. Even the wealthiest corporations – Enron and Arthur Andersen, to name but two – can be destroyed. Just being investigated by DOJ can inflict a steep price in time, money, and sullied reputation.
Power this crushing is only tolerable in a free society if it is exercised — and generally believed to be exercised — impartially, humanely, and in the interests of justice in the broadest and best sense. My youthful infatuation with the Department, and my lifelong affection for it, rests on the conviction that, with occasional exceptions inevitable in any human institution, the men and women of the Department, both career public servants and political appointees, are conscious of their grave responsibility and strive to wield their power impartially and with honor. Critically, the Department’s people have fiercely resisted pressure to ignore the crimes of officeholders and their friends, or to transform the sword of criminal justice into a weapon against the political opponents of the sitting president. Because of this tradition long upheld, the Department’s prosecutors enjoy a reputation for professional probity every bit as central to their success as the raw institutional power at their disposal.
It is by now obvious that Mr. Trump cares nothing about the institutional integrity of the Justice Department, and has actively tried to corrupt it. He tried to convince FBI Director James Comey not to investigate presidential adviser Michael Flynn, and then fired Comey when the Director wouldn’t take the hint. He fulminates nearly daily about Robert Mueller’s investigation of Russian election interference and flirts publicly with obstructive maneuvers like firing Mueller, firing Attorney General Sessions, or pardoning everyone involved in the case. And recently he has tried to pressure the Department into investigating a series of long-resolved or self-evidently bogus allegations against his former opponent Hillary Clinton and other Democrats.
Trump’s effort to strong-arm the Department into abandoning its most basic values by initiating baseless, politically motivated investigations is distressing enough. I have argued previously that it constitutes an impeachable offense. But one could (almost) dismiss Trump’s tweets and barks on this subject as yet another instance of his singular misunderstanding of American government. And one could be comforted by the likelihood that his outbursts would be rendered ineffectual by the resistance they would surely encounter from others in government with a better sense of constitutional norms.
The Republicans on the House Judiciary Committee have now stripped away that comfort. In late July, seventeen Republican committee members sent a letter to Jeff Sessions demanding that the Justice Department investigate a grab-bag of spurious charges against Secretary Clinton and others. During Attorney General Sessions’ appearance before the committee earlier this week, Republican members hammered ceaselessly on their demand for a new special prosecutor to investigate Secretary Clinton, with special emphasis on long-since debunked claims about the so-called “Uranium One” affair. Sessions has yielded at least so far as to assign “senior federal prosecutors” to assess the Republicans’ requests.
I am not sure people understand how shatteringly consequential this is. It is bad enough to have Mr. Trump – whom, sadly, no one now expects to understand democratic norms — seek to weaponize the Department of Justice. But what we have witnessed in the months leading up to the Sessions hearing is the utter moral degradation of House Republicans. Seventeen Republican congressmen, virtually all lawyers, many of them former prosecutors, specially selected by their party to sit on a Committee dedicated to ensuring the integrity of the American justice system, are demanding that the Justice Department investigate a list of allegations almost every one of which is obviously either legally or factually baseless. And the Republicans know it. No sentient lawyer could think otherwise.
The game here is obvious. The Mueller investigation into the real effort, attested to by every U.S. intelligence agency, of the Russians to rig an American presidential election is hurting Mr. Trump and the Republicans politically. It hurts so much precisely because it is being conducted by the Department of Justice under the direction of a Republican prosecutor of impeccable credentials. Republican members of the Judiciary Committee desperately want to create a diversion, a means of planting in the public mind the impression that, whatever Trump did, Democrats did something as bad or worse. It doesn’t matter if any real crime is uncovered, only that an investigation, with all the inevitable publicity, be commenced. Of course, the House could investigate all these matters itself. But the Republicans know that such investigations are easily dismissed as partisan. Thus, only an investigation that bears the trusted stamp of the Justice Department will serve their political ends.
In short, the congressional Republican Party is consciously attempting to use the Justice Department’s hard-won, carefully guarded reputation for fairness and integrity to create a diversion from the real issues being investigated by Robert Mueller and the political damage that investigation is causing Mr. Trump and his allies.
Whether Jeff Sessions will crumple under the mutually reinforcing pressures from Mr. Trump, congressional Republicans, and his own self-interest remains to be seen. If he does, the long-term damage to both American electoral democracy and the rule of law could be profound.
Several commentators, including Republican stalwarts like former Attorney General Michael Mukasey, have observed that launching criminal investigations of defeated presidential candidates is contrary to American norms and akin to the practices of “banana republics.” This is profoundly true, but I suspect many do not fully appreciate the reference.
An indispensable feature of successful democracies is the peaceful transfer of power from one elected administration to its popularly chosen successor. Such transfers reliably occur only if the loser of an election knows that the sole consequence of losing is a return to private life. But if the predictable consequence of losing is criminal prosecution by the winner, then losing becomes unthinkable and the contestants are tempted to ever more extreme measures to prevent it. Vicious propaganda, overt corruption, strong-arm tactics, ethnic incitement, all can be rationalized. All are soon normalized. And democracy dies. This is the all-too-common story in the developing world. But regression is perfectly possible among mature democracies like our own.
Even if nothing quite so dramatic occurs and the Republican push for a Potemkin special prosecutor produces only a long, distracting, but ultimately unsuccessful investigation of Mr. Trump’s opponents, the damage to the Justice Department and thus to the rule of law would be lasting. The best reading of the Department’s enigmatic Latin motto, Qui Pro Domina Justitia Sequitur, is that the Department’s lawyers are those “who prosecute on behalf of justice.” We trust the Justice Department with its immense powers because we trust it to wield those powers in pursuit of justice – to be honest, to be fair, to be apolitical. And the Justice Department owes its effectiveness before courts and juries to our confidence in its probity. If the public ever surrenders that confidence in favor of enduring suspicion that the Department is merely a tool of the party occupying the White House, then federal law enforcement will be irremediably crippled. Every corrupt politician, slimy fraudster, and predatory corporation will scream “Politics!” at the first hint of a federal indictment. Some will be believed. And all of us will be less secure.
Not too long after the last election, I was on Capitol Hill talking with an aide to a Republican senator. The probable appointment of Jeff Sessions as attorney general came up. When I wrinkled my nose a bit, my companion said, “At least with Jeff Sessions, you get a guy who knows the Justice Department and is committed to the rule of law.”
We will soon see if he was right. Or whether Mr. Sessions will set in motion a train of events that could fracture an institution central to American democracy.
Frank Bowman
11 Monday Sep 2017
Posted in Articles, Uncategorized
Tags
abuse of pardon power, elizabeth holtzman, House Judiciary Committee, Mueller, pardon, state attorney general
This interview with Elizabeth Holtzman, former Congresswoman and member of the House Judiciary Committee during the Watergate Scandal, contemplates Robert Mueller’s work with New York Attorney General Eric Schneiderman in the investigation of Paul Manafort. Holtzman theorizes that in so doing, Mueller could avoid President Trump’s pardon power, and pressure Manafort to cooperate with his investigation.
Reuters / Joshua Roberts
03 Thursday Aug 2017
Posted in Uncategorized
Tags
Clinton e-mail investigation, Goodlatte, House Judiciary Committee, James Comey, Loretta Lynch, politics of impeachment
Last week, Bob Goodlatte (R-Va.), Chairman of the House Judiciary Committee, and nineteen of the other twenty-three Republican members of the House Judiciary Committee, sent a letter to Attorney General Jeff Sessions requesting that he appoint a second special counsel (in addition to Robert Mueller). The list of things the Republicans want investigated is long, running to fourteen items, including Hillary Clinton’s e-mails and the investigation thereof, former Attorney General Loretta Lynch, former FBI Director James Comey, Mr. Trump’s post-election claims “that he was wiretapped by the previous administration,” and – this one is particularly rich – “inappropriate collusion between the DNC and the Clinton campaign to undermine Senator Bernie Sanders’ presidential campaign.”
This is, of course, not a serious document written by or for serious people. It is instead a grab-bag compilation of pre- and post-election conspiracy theories and Trump Administration talking points aimed at deflecting attention from the Mueller investigation. The letter is unaccompanied by any evidence that the events listed actually happened, or any legal argument that, if they did, the alleged misconduct amounted to criminal offenses.
For example, the first two items on the list — that former AG Lynch encouraged then-FBI Director Comey to “mislead the American people” by insisting that he refer to the Clinton investigation as a “matter,” and the “shadow cast over our system of justice concerning Secretary Clinton and her involvement in mishandling classified information” — are ludicrous as action items in a letter seeking a criminal investigation. If Ms. Lynch did make this request to Mr. Comey, it would indicate that she was trying to minimize the political damage of the FBI probe to Secretary Clinton, but that is not a crime. And federal prosecutors, whether regular or special, do not investigate non-crimes. Nor does the Department of Justice investigate “shadows” over justice systems.
The letter is doubly frivolous in that few, if any, of the matters listed — even if they happened and were colorably criminal — would require a “special counsel.”
If Mr. Trump suspects he was “wiretapped” by the FBI, the NSA, the CIA, or any other federal agency, all he has to do is order the appointed heads of those agencies to inquire of their own subordinates. If former Department of Justice officials are alleged to have behaved improperly, that would be a matter for the Department’s own Inspector General. The need for a “special counsel” would arise only if politically appointed senior DOJ officials would have conflicts of interest in overseeing an investigation that could not be dealt with by individual recusal. The only items on the list that might arguably fall into this category are the two or three proposing investigation into the foreign connections of the Clinton Foundation. Such an investigation, though not presenting a conflict of interest under DOJ regulations, might call for a special counsel if the Attorney General concluded that investigating his boss’s former political adversary would present an appearance of impropriety.
But that, of course, is the most troublesome part of the Goodlatte letter. Because — absent the most compelling evidence of criminality — such an investigation would be improper. In the United States, successful candidates for political office do not use their newly-acquired powers to prosecute their defeated opponents. That is a key marker of incipient authoritarianism. The fact that twenty Republican lawmakers – virtually all of whom are lawyers – do not understand this most elemental of democratic political norms is profoundly disheartening.
It should also be a reality check for those hopeful that, given compelling evidence of impeachable conduct, Congress will act to remove Mr. Trump. The sad fact is that, at least on the House side, Congress is not performing the role assigned it by the Framers of providing an institutional check on presidential misbehavior. Indeed, particularly on the House side, congressmen are actively enabling Mr. Trump’s misbehavior and thus actively abetting the steady degradation of the constitutional norms that have made the country work. The Goodlatte letter represents a new low in this calamitous political degeneracy.
No president can be impeached unless a majority of the House of Representatives endorses that result. Sadly, I think it fair to conclude that no kind or degree of deviancy or outrageousness will move a Republican House to impeach him, at least so long as Mr. Trump retains the loyalty of his Republican base. And Mr. Trump continues to be supported by more than 80% of Republican voters.
