Tag Archives: indictment

Kavanaugh, Kavanaugh, Kavanaugh

10 Tuesday Jul 2018

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Have you heard? A new Supreme Court Justice has been appointed. His name is Brett Kavanaugh, he hails from the U.S. Court of Appeals, D.C. Circuit, and he’s got Democrats a little bit nervous. Why? Because they think he may try to shield Trump from the Mueller investigation.

Kavanaugh argued in an article written for the Minnesota Law Review in 2009 that sitting presidents should be immune from civil suit and criminal indictment. He cited the investigation of Clinton as a reason for this view, and has implied “that the Starr investigation distracted Clinton from focusing on Osama bin Laden.” Some find this view alarming — however, take a deep breath. As Noah Feldman points out, in an article published by Bloomberg Law, what Kavanaugh actually suggests is that Congress should pass a law that would protect the President. Inherent in that suggestion is an admission that the Supreme Court does not have the power to immunize the President itself. So worries that the Justices may, for instance, enjoin Mueller’s invesitgation, are probably unfounded.

That being said,  that doesn’t mean Kavanaugh cannot be of use to the President in other ways. Kavanaugh may rule that the President can pardon himself, as Trump has suggested in the past. Alternatively, Congress may just take Kavanaugh up on his suggestion and pass a law immunizing Trump. Much remains to be seen.

1200x-1.jpgAl Drago/Bloomberg

Mueller indicts some Russians … and the noose tightens

17 Saturday Feb 2018

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By Frank Bowman

Yesterday, Deputy Attorney General Rod Rosenstein announced that Robert Mueller’s team had obtained an indictment against thirteen Russian persons and three Russian firms charging them with a variety of crimes committed in the course of an integrated scheme by the Russian government to swing the 2016 presidential election to Mr. Trump.  I’m not going to discuss the details of the indictment here; they are well-covered elsewhere, including in the New York Times and Slate, and anyone who reads this blog will surely  have devoured the particulars.  For now, I’ll make only a couple of points:

  • This is an important development. It puts into the public realm the particulars of the long-reported conclusions of every U.S. intelligence agency that Russia meddled in the 2016 election on Trump’s behalf, and stamps those conclusions with the imprimatur of a federal grand jury.  Mr. Trump, who rarely lets facts constrain his private musings or public utterances, may keep doubting Russian interference.  But except in the more fever-haunted corners of the right-wing media, the fact of Russian meddling on Trump’s behalf now becomes impossible to deny.
  • Ardent Trump opponents will doubtless be disappointed that the indictment does not charge any affiliates of the Trump campaign with knowingly aiding Russians in their nefarious activities.  It does say that Trump campaign affiliates cooperated with Russians in various ways, but is careful to describe such persons as “unwitting individuals affiliated with the Trump campaign.” The key point here, as numerous commentators have observed, is that the particular activities specified in the indictment are of a sort that required concealing Russian involvement.
  • However, this indictment does not address the events most likely to have included knowing collusion with Russians by Trumpists, most notably the multiple efforts by high-level Trump campaign operatives, including Donald Trump, Jr., to obtain “dirt” on Hillary Clinton from Russians; Donald Trump Sr.’s public encouragement of Russian theft of Clinton e-mails; possible contacts between Trump operatives and Wikileaks (which in turn probably got dirt on Secretary Clinton from the Russians); etc.  And this indictment has nothing to say about the possibility that Russia may have secured compromising information about Mr. Trump, thus giving them the sort of leverage over him that would help explain their enthusiasm for his candidacy.
  • Accordingly, the claim by Trump spokesmen that this indictment clears Mr. Trump of “collusion” is nonsense.  All one can say is that this indictment does not address that issue.  Whether subsequent indictments will do so is an entirely different question.

The more intelligent among Mr. Trump’s defenders should be very worried by this indictment.  For these reasons:

  • By laying out in surgical detail a calculated foreign assault on American democracy, it shreds the notion that the Mueller investigation is a partisan “witch hunt.”  In light of the facts laid out in the indictment, the Trumpist effort to blame the whole investigation on a convoluted conspiracy between Democrats and Russians to manufacture the Christopher Steele dossier becomes facially absurd.  That’s not to say Trump allies won’t keep flogging Mr. Steele.  They surely will. But to anyone with even a hint of objectivity, the idea that the Mueller investigation is all about a “dodgy dossier” is now untenable.
  • The indictment makes plain that the Russians were not merely intervening against Hillary Clinton, but were working for Mr. Trump, uniquely among Republican candidates. Among the indictment’s nice details is the fact that the Russians campaign  disparaged not only Secretary Clinton, but also Ted Cruz and Marco Rubio.  This fact gives rise to the obvious question — why Trump?  There are two possible answers, neither of them happy for Trump fans.  Either the Russians simply thought of Trump as the chaos candidate, a man whose ascendance would disrupt American democracy (a sadly prescient notion), or in a more sinister vein, they really do have something “on” Trump in the sense of possessing information about either his personal or business affairs that would render him amenable to Russian pressure.
  • This indictment makes it materially harder for Mr. Trump to fire Mueller and stop his investigation.  To fire Mueller now would halt an investigation into a demonstrated national security threat, something all but the most degraded congressional Republicans would find hard to swallow. Moreover, by choosing to personally announce the Mueller indictment, Deputy AG Rosenstein signaled that the Justice Department as an institution is standing behind Mueller’s work.  Rosenstein is saying, as plainly as if he put up a sign, “To get to Mueller, you have to take me out first.” What’s more, I read this as not merely a personal declaration, but as Rosenstein throwing down the gauntlet on behalf of career federal prosecutors unwilling to be cowed by the bluster of a president under suspicion.  This doesn’t mean Trump won’t go on a firing spree anyway.  But I think this indictment makes that less probable and makes the political cost of such a spasm much higher.
  • Which leads me to the last, and perhaps most critical point. Had Mr. Trump fired Mueller last week, he could (and would) have tried to excuse it as stepping in to stop a frivolous politically-motivated fraud. With this indictment, the Mueller investigation has irrefutably become a matter of protecting national security.  Should Mr. Trump shut the whole thing down now, that alone would, in my judgment constitute an impeachable offense and one that would resonate across party lines.  It would be bad enough for a president to fire a special counsel to protect his personal or political interests.  That would be impeachable behavior, to be sure, but Trump’s apologists could try to justify the firing as mere self-protection against the corrupt activities of evil Democrats and the nefarious “Deep State.”  But for Mr. Trump to shut Mueller down now would be to abrogate, openly and unapologetically, the president’s basic responsibility to protect the country and constitutional democracy itself from foreign enemies.  Even if the degraded specimens who now represent the Republican Party on the House Judiciary Committee were unwilling to move against Trump in such a case, a Democrat-controlled House would view the matter differently.  And I suspect, or at least hope, that a good number of honest Republicans would agree.

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

15 Thursday Feb 2018

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By Frank Bowman

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

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

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

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

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

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

04 Sunday Feb 2018

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By Frank Bowman

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

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

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

Isn’t it?

Hmmm…

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

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

31 Wednesday Jan 2018

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By Frank Bowman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We shall see.