Tag Archives: Nixon impeachment

First Thoughts on the Articles of Impeachment

10 Tuesday Dec 2019

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By Frank Bowman

I read the newly announced articles of impeachment against President Donald Trump from two perspectives – as a student of impeachment and as an old prosecutor.  Several things stand out immediately.

First, the choice to frame these articles as abuse of power and obstruction of Congress’s impeachment investigation is sound. Abuse of power has been one of the impeachable “high Crimes and Misdemeanors” of Anglo-American constitutional practice since the 1300s, and it has recent powerful precedent in the case of Richard Nixon. Obstruction of an impeachment investigation was not only the basis of one of the articles voted out of the Judiciary Committee against Nixon, but such behavior may strike even more deeply at the heart of constitutional order than other presidential abuses. If, as is now the case under the Justice Department’s self-imposed rule, sitting presidents may not be indicted, the only check on egregious presidential misconduct is impeachment. And when, as is now the case under the Barr Justice Department, prosecutors decline either to investigate presidential misconduct or to assist in the enforcement of congressional subpoenas, a president who misbehaves and then brazenly stonewalls congressional inquiries becomes an elected king unless Congress can impeach him for his defiance of their authority.

Second, I am very pleased that the Judiciary Committee avoided the temptation to call Trump’s behavior in relation to Ukraine “bribery.”  For a period, the term was in vogue among House members, the thought being that it is a freestanding textual basis for impeachment – “treason, bribery, or other high crimes and misdemeanors – and that it would be easier to explain to the average person.  But the most obvious lesson of the testimony of the four law professors at last week’s Judiciary Committee hearing was that the definition of bribery for purposes of impeachment is uncertain, and an article on that ground would open an array of technical questions that merely confuse the issue.

Third, I understand the decision not to base any individual article expressly on Trump’s dalliance with Russian election interference in 2016 or the second volume of the Mueller Report relating to obstruction of the investigation into Russian meddling.  Although the substance of Mueller’s evidentiary presentation was very strong – the report contains overwhelming evidence of presidential obstruction – the report failed as a persuasive document and Mueller failed as a persuasive witness before the Judiciary Committee. For at least half the public, it’s old news and not sufficient for impeachment. 

Moreover, one of the few points on which Judiciary Committee Republicans were correct on Monday was that Democrats are constrained by the calendar.  Given that the Senate is deeply unlikely to convict Mr. Trump regardless of the charges brought against him, the task of the House must be to make the best case they can without dragging the trial into the late spring and summer when the country’s attention should properly be on the election.  Reviving aspects of the Mueller Report as the centerpiece of a separate article of impeachment would take time – more witnesses, more constitutional explanations – time the Democrats realistically don’t have.

Fourth, considering these articles as if they were charging documents in a criminal case, the Democrats have elected for “notice pleading,” a short, simple description of the charge and underlying conduct.  The Nixon articles, by contrast, were what a white collar prosecutor would call a “speaking indictment.”  That is, they laid out a story of misconduct replete with many details and many particular bad acts.  That was appropriate in Nixon because he was impeached, not for one bad incident, but for a long-running pattern and practice of misbehavior and cover-up. The narrow scope of the case against Trump favors the simpler form.

Finally, both articles nonetheless include language framing Trump’s Ukraine misconduct as part of two larger patterns – “previous invitations of foreign interference in United States elections” and “previous efforts to undermine United States government investigations into foreign interference in United States elections.”  These phrases permit House Managers presenting the case in the Senate to bring aspects of the Mueller investigation and related matters into the conversation.  On the optimistic assumption that at least some Republican (and wavering Democratic) senators remain persuadable, placing Ukraine in the larger frame of Trump’s persistent malfeasance advances the objective of demonstrating that the Ukraine extortion was not an one-time anomaly, but an exemplar of a pattern of conduct sufficiently serious to merit conviction and removal.

Is Trump trying to lure Democrats into “Impeachment Trap”?

10 Friday May 2019

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By Frank Bowman

There’s a good deal of talk about whether Mr. Trump is purposely trying to goad Democrats into a formal impeachment investigation, on the theory that doing so poses little risk of ultimate conviction in the Republican-dominated Senate and is politically advantageous insofar as it enables him to paint himself as a victim and simultaneously divert attention from his substantive policy failures.

I had a talk with Greg Walters of Vice News on this subject, and he was kind enough to include a quote or two in his story on the subject, link here.

I have two basic reactions to this hypothesis, one constitutional and the other political.

On the constitutional score, it is hard to see how Congress (by which, in practice, we mean the House of Representatives) can avoid serious consideration of impeachment if the Trump Administration persists in its current blanket denial of cooperation with all requests for information from the House, regardless of subject, regardless of the originating committee, and regardless of whether the House merely asks politely or serves a subpoena. This posture of total resistance is without historical precedent. All presidents wrangle with Congress over information disclosure, but none has ever simply refused all cooperation. Trump’s current absolutist position, if left unchallenged, would establish a precedent essentially neutering congressional oversight and, in consequence, badly fracturing constitutional order. A presidency and an executive branch immune to question is an executive dictatorship in all but name.

The constitutional challenge presented by Trump’s maximalist intransigence leads toward impeachment in two ways.

First, the longer Trump persists in stonewalling all congressional requests, the more ominous — and obvious — the threat to basic separation of powers principles becomes. Thus, a total refusal of cooperation with congressional investigative authority can itself become impeachable conduct. At a certain point, although we may not yet be there, a formal impeachment inquiry becomes (or should become) an imperative for any Member of Congress committed to maintaining both the prerogatives of his or her own branch and a constitutional order centered on an independent and powerful legislature.

Second, as I wrote in Slate not long ago, congressional investigative power is at its strongest when that power is expressly asserted in aid of the impeachment power. Investigative authority in aid of Congress’s general oversight power is derivative of legislative power and is therefore conditional on legitimate legislative objectives. By contrast, the power to impeach is expressly and exclusively granted to Congress and necessarily implies the power to ascertain, from whatever source, the facts necessary to judge whether impeachable conduct has occurred. Both logic and the precedent of the Nixon era compel the conclusion that not even classified matters or the most intimate details of presidential consultation with his advisers are immune from disclosure in an impeachment inquiry. Thus, Congress strengthens its legal case for judicial compulsion of testimony and material withheld by the executive the moment it announces an impeachment investigation. A blanket presidential refusal to comply with all informational requests premised on oversight power almost compels Congress to invoke its impeachment authority.

The agonizingly tricky bit for constitutional patriots who also happen to be Democrats is that Trump may be right if he calculates that an impeachment contest is a political winner. The uncomfortable fact is that the general populace neither knows nor cares very much about constitutional balance. The electorate may even reward Trump in 2020 for being “tough” against a congress that nobody is very fond of.

And public disdain for and disinterest in an impeachment fight is likely to be particularly acute if Russia and the Mueller Report remain the focus of the contest. The Mueller Report did “exonerate” Trump on Russia to the extent that it found insufficient evidence of pre-election conspiracy. The public knows this and no careful explanation of why Trump’s behavior vis-a-vis Russia in 2016 remains profoundly troubling is going to dislodge that impression among either Trump supporters or the bulk of casual followers of political news.

As for the obstruction portion of Mueller’s report, it paints a shocking picture of presidential misconduct. Nonetheless, Mueller’s decision to end his report with a no-call, Barr’s choice to make his own call exonerating the president, and the resulting narrative that this was, at worst, a president blocking an investigation into what proved to be a non-crime are likely to deprive a long impeachment fight focused on obstruction of justice of much of its public bite. Just as the general public doesn’t know or care much about the constitutional niceties of checks and balances, it tends not to know or care very much about abstractions like prosecutorial independence, the rule of law, unitary executive theories of presidential power, and so forth.

Accordingly, if Democrats, whether for reasons of constitutional principle or partisan politics, feel compelled to proceed with a formal impeachment investigation, they would do well to broaden its scope beyond Mueller. Only if matters like emoluments violations, misuse of office or influence for private gain by the Trump family, connections with Russia not directly involving the 2016 election, destruction of the nation’s foreign policy and alliance structures, and pervasive dishonesty are added to the mix does an impeachment battle seem likely to prove politically advantageous.

AG Barr cowers at prospect of proper cross-examination

29 Monday Apr 2019

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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.

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

01 Thursday Feb 2018

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By Frank Bowman

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

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

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

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

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

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

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

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

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

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

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

Trump commits another impeachable offense: Siccing federal criminal investigators on his enemies

03 Friday Nov 2017

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On July 27, 1974, the House Judiciary Committee approved three articles of impeachment against Richard M. Nixon. The second article charged that President Nixon abused the powers of the presidency either by using or trying to use federal investigative agencies against his political enemies or by interfering or trying to interfere with lawful investigations by those agencies into his own wrongdoing or that of his subordinates.  He tried to get dirt on his opponents through the IRS. He ordered the FBI to conduct investigations of actual or suspected enemies in and outside of government. He sought to suppress investigations into the growing Watergate scandal. As the fifth specification of the article of impeachment put it:

In disregard of the rule of law, he knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

In short, the House Judiciary Committee voted to impeach Richard Nixon because he sought to turn the immense power of the Justice Department and federal criminal investigative agencies against his political adversaries. Although this article of impeachment was never approved by the full House of Representatives because Nixon resigned before a vote could be taken, it received more votes in committee than any other proposed article. No respectable scholar of the constitution doubts that directing the criminal justice and intelligence systems of the United States against political opponents for purposes unrelated to the impartial enforcement of the law or preservation of legitimate national security interests is among the impeachable “high Crimes & Misdemeanors” of Article II, Section 4.

This morning, Friday, November 3, Mr. Trump sent out a series of Tweets in which he explicitly urged the Justice Department and the FBI to investigate Hillary Clinton and the Democratic Party for a grab bag of supposed offenses — e-mails deleted from Secretary Clinton’s private server, the Russia-uranium kerfluffle, activities by Tony Podesta (lobbyist and brother of Secretary Clinton’s campaign manager), and the allegation that officials at the Democratic National Committee worked with Secretary Clinton’s campaign to give it a boost over that of Senator Bernie Sanders.

The Trump Tweet-string included these classics:

Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems..

….People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!

Mr. Trump followed up these Tweets with statements to the press in which he said he is “disappointed” with the Justice Department and would not rule out firing Attorney General Sessions if Sessions won’t investigate Democrats.

In my view, Mr. Trump’s tweets tiptoed right up to the line of an impeachable offense.  His subsequent statements to the press stepped firmly over it.

Using the Nixon precedent as a template, in order to show that Mr. Trump’s behavior is impeachable, several requirements must be met:

First, he must be seeking to employ the criminal investigative powers of the federal government against his political opponents.  That is unquestionably the case.

Second, he must be acting, in the words of the Nixon impeachment article, “for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office.”  Although his most devoted adherents may claim otherwise, it is impossible to divine any legitimate, non-political, purpose in his call for action by the Justice Department.

  • Although it is doubtless a matter of intense interest for members of Democratic Party, whether the DNC did or didn’t favor Secretary Clinton can by no stretch be translated into a violation of law, and still less a fit subject for a criminal investigation by a Justice Department controlled by the opposing party.
  • The Clinton e-mail matter has already been investigated by the Justice Department, even if extreme Republican partisans may not have liked the outcome.
  • Tony Podesta’s activities are already the subject of inquiries by Special Counsel Robert Mueller, which is why Podesta just resigned from his own lobbying firm.  So Trump’s inclusion of Podesta in his broadside manifested either a scarcely credible ignorance of the state of play of an investigation with which Mr. Trump is plainly obsessed or a willful attempt to deflect attention from Mueller’s focus on Trump campaign affiliates.
  • And, as multiple credible observers have explained, the Russia-uranium-Clinton connection is an invented non-story. Jeffrey Lewis, a nuclear materials and non-proliferation expert, observed in Newsweek, “I have to say that this is one of those things where reasonable people cannot disagree: There just aren’t two sides.”

In short, every item on the laundry list of things for which Mr. Trump wants the Justice Department to investigate his political opponents is either not a crime, has already been or is being investigated, or, in the case of the Clinton-uranium “scandal,” is an invented storyline promoted by Mr. Trump and his supporters to divert attention from the Mueller investigation.

Third, it is not necessary to establish impeachable misconduct that a president succeed in bending law enforcement agencies to his corrupting purpose. While some of the law enforcement and intelligence officials Nixon tried to enlist in his illegal schemes cooperated, many refused or ignored his orders, the IRS, the CIA, and important elements of the FBI among them. His failed attempts to misuse federal agencies were nonetheless integral components of the impeachment case against him.

This is a key point in the present case. If pressed, Mr. Trump will no doubt claim that he didn’t order anybody to do anything and that his Tweets are, at worst, expressions of dismay at the established norm that bars presidents from direct involvement in Justice Department decisions. This is, of course, transparent eyewash.  When a President of the United States publicly proclaims that he wants an executive branch agency to do something and will be deeply displeased if it doesn’t, that’s tantamount to an order.

Even if it were not, Mr. Trump took the next and fateful step this morning when he expressed disappointment in the Justice Department for its inaction and held open the option of firing the Attorney General if his wishes were not honored.  That is as close to a direct order as a president can give without putting it in writing.  Any way you slice it, Mr. Trump is telling the Justice Department and the FBI that he wants them to engage in legally baseless, politically motivated criminal investigations.

Finally, it is not, cannot be, an excuse if Mr. Trump were to say, “Well, even though the uranium story and all the rest prove to be baseless, I didn’t know that. As I so often do, I was just responding to what ‘people are saying.'” As the Nixon articles of impeachment observed, a president has the solemn constitutional obligation to “take care that the laws shall be faithfully executed.”  If this duty means anything in the criminal justice setting, it means that presidents shoulder an obligation even more binding than that assumed by their subordinates not to unleash on any citizen the intrusive, life-altering power of federal investigative agencies absent credible evidence that a real crime may have been committed.

Let us be absolutely clear here. No matter how far Mr. Trump has warped our collective sense of what is normal or even minimally acceptable in an American president, it is not acceptable for a president either to employ, or threaten to employ, the agents and ministers of the criminal law of the United States against his enemies for political gain.  A president who does so engages in precisely the class of misconduct perilous to the maintenance of republican government for which the founders designed the remedy of impeachment.

When and if the political season is ever ripe for enumerating Mr. Trump’s “high Crimes & Misdemeanors” in articles of impeachment, his attempts to corrupt the American justice system should be among those articles.

Frank Bowman