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Impeachable Offenses?

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

Impeachable Offenses?

Tag Archives: nixon

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

01 Thursday Feb 2018

Posted by impeachableoffenses in Uncategorized

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Leon Jaworski, Mueller, nixon, Nixon impeachment, Robert Mueller, unindicted co-conspirator

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.

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Obstruction of justice matters only in an impeachment inquiry

05 Friday Jan 2018

Tags

nixon, obstruction, Obstruction of Justice, Robert Mueller, rosenstein, unindicted co-conspirator

For the past several days, the media has been ablaze with stories touting new details of Mr. Trump’s concern about the Russia investigation and his alleged efforts to quash it.  For example, Mr. Trump apparently believed that Attorney General Sessions could control the investigation and shield Mr. Trump, and therefore sought to prevent Sessions from recusing himself by sending White House counsel Donald McGahn to lobby Sessions against recusal.  Other bits and pieces are solidifying the proposition that Trump fired Comey in order to stop or impede the Russia investigation.

Unsurprisingly, many commentators have been declaring one or the other of these revelations definitive proof that Mr. Trump is guilty of obstruction of justice. The purpose of this post is not to assess the current state of the evidence.  Rather, I want to re-emphasize several points I made last summer:

1) While it is quite possible (contrary to the ill-considered declarations of folks like Alan Dershowitz) for a president to commit the crime of obstruction of justice, the official position of the Department of Justice is that a sitting president may not be criminally indicted.  Robert Mueller, whose appointment makes him subject to DOJ rules and regulations and subordinate to Deputy Attorney General Rod Rosenstein, has no authority to disregard that DOJ position.  Accordingly, no matter what evidence Mr. Mueller uncovers, it is vanishingly unlikely that he would even attempt to indict Mr. Trump for obstruction.

2) Even if Mr. Trump were indicted and convicted of obstruction, such a conviction would not result in his removal from office.  Only impeachment can accomplish that end.  Only Congress can impeach and remove a president.  And therefore the real question is what Congress will choose to do with whatever Mr. Mueller uncovers. But before it could do anything, it would have to have access to Mueller’s results.

3) Absent a formal indictment, the most Mueller could do in the criminal context is name Mr. Trump as an unindicted co-conspirator in an indictment charging others with obstruction.  This was the tack taken against Richard Nixon by Watergate Special Prosecutor Leon Jaworsky, but it was controversial at the time and is disfavored by DOJ policy.  We cannot predict with any certainty whether Mueller might try this approach, or whether Deputy A.G. Rosenstein would approve it.  Should Trump be named as an unindicted co-conspirator, that designation would formalize a legal conclusion by the Mueller prosecution team and give that conclusion a grand jury’s stamp of approval.  Critically, in the course of litigating the case against those formally indicted, the facts regarding Mr. Trump’s involvement would be revealed.

4)  If Mueller’s team assembles a convincing case that Mr. Trump did commit the crime of obstruction of justice, but is unwilling either to indict him or name him as an unindicted co-conspirator, there is some uncertainty about whether, and if so how, Mueller’s conclusions and supporting evidence would become available to anyone outside the Justice Department. Ordinarily, out of concern for the privacy interests of persons not charged, the Department does not disclose the facts of investigations that don’t result in charges.  James Comey’s choice to discuss publicly the details of the Clinton e-mail investigation was contrary to DOJ policy and would have been a perfectly sound reason to fire him — if it had been the real reason. Moreover, DOJ regulations on the appointment of special counsel make no provision for reports to congress or the public.

All that being said, there is little, if any, doubt that a committee of the House of Representatives engaging in an impeachment inquiry could request, and if necessary subpoena, Mueller’s materials and secure his testimony about his conclusions.  But, as I have observed before, no such inquiry is at all likely to occur so long as Republicans control the House.  Only if Democrats flip at least the House of Representatives will any of this chatter about presidential obstruction of justice have any practical consequence.

Frank Bowman

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Lying as an impeachable offense – Part II: Unindictable official falsehoods

18 Friday Aug 2017

Posted by impeachableoffenses in Uncategorized

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Gulf of Tonkin, impeachment for lying, Iredell, lies, lying, nixon, Tonkin resolution, unindictable official falsehoods, unindictable official lies

In my last post, I noted that Mr. Trump has an historically unique propensity for falsehood and I began considering the question of whether a president can properly be impeached for lying.  In that post, I addressed the impeachability of criminally indictable forms of lying.  Here, I consider whether lies that are part of official communications with Congress, but are not indictable, can be impeachable offenses.

James Iredell, one of the first Supreme Court justices, speaking of the impeachment clauses during the North Carolina debates about ratifying the constitution, said that “The President must certainly be punishable for giving false information to the Senate.”  Although he was speaking of the particular situation in which a president was seeking senatorial approval of treaties or other foreign projects, the general principle he espoused was that the legislature as a coordinate branch of government is entitled to rely on a president’s honesty — and can impeach him if he willfully misinforms them on important matters.

There is at least one historical example of an attempt to impeach a president for lying to congress.

Article V of the proposed articles of impeachment of Richard Nixon charged concealment of the bombing of Cambodia through the creation of false military documents.  The House Judiciary Committee did not approve this article, although as I wrote some years ago, its decision not to do so:

probably resulted from a disinclination to inject the explosive politics of the Vietnam War into a case where ample ground for impeachment already existed, rather than a rejection of the principle that the Chief Executive may not intentionally deceive Congress in matters that relate to the legislature’s own constitutional duties.

In my judgment, it would be entirely consistent with the language and purpose of the impeachment clauses to impeach a president for telling congress material falsehoods on subjects that could affect legislative action.  Falsehoods of this sort could include both personal statements of the president or, as in the case of President Nixon, the submission to congress of agency testimony or reports the president knew to contain material untruths.

That said, precisely defining the types of presidential statements to the legislature that could plausibly be deemed impeachable is difficult.

Lies to congress by the president himself in a formal, official communication

The easiest case would arise if a president himself were to lie when speaking formally to congress or one of its committees in person or in writing in an effort to obtain a congressional decision on a matter where congressional action depended on the truth of the president’s statement.  This is the case Iredell and, two centuries later, the Nixon-era Judiciary Committee had in mind.

Another historical example of lies of this kind that might plausibly have been characterized as an impeachable offense would be the misstatements and omissions by President Johnson and Secretary of Defense Robert McNamara about encounters between U.S. and North Vietnamese naval vessels on August 2-4, 1964, that led to the passage of the Gulf of Tonkin Resolution and in turn to deepening U.S. involvement in the Vietnam War.

To make a long story short, in 1964, U.S. naval vessels were operating in the Gulf of Tonkin in support of South Vietnamese military operations against North Vietnamese military installations. On August 2, three North Vietnamese gunboats responded to one such South Vietnamese operation by attacking a supporting U.S. destroyer, the USS Maddox. The Maddox, in concert with U.S. aircraft, then sunk or damaged all three.  On the night of August 4, the Maddox thought it was attacked again, and responded by firing profusely at a variety of unidentified targets. There were strong indications even at the time that the August 4 “attack” was actually an overreaction to misinterpreted sonar data and that the US Navy was shooting at empty ocean.  In later years, this suspicion hardened to a virtual certainty.

Nonetheless, Secretary of Defense McNamara and President Johnson publicly characterized the events of August 2-4 as two unprovoked attacks on blameless U.S. naval vessels.  In addition to over-hyping the probably non-existent August 4 “attack,” they carefully concealed the fact that the U.S. ships came into the line of fire because they were supporting South Vietnamese assaults on the North.  President Johnson sought from Congress, and got, the famous “Tonkin Gulf resolution” which he used as legal justification for taking the U.S. ever deeper into what became the Vietnam War.

No less an authority than current National Security Advisor H.R. McMaster concluded that Johnson and McNamara “deceived the American people and Congress” about the Gulf of Tonkin incident.

This type of potentially impeachable presidential falsehood might occur in a formal written message from the president to Congress, such as the one LBJ sent on August 5, 1964.  Or it might occur in a personal address like the annual State of Union message.  There could be no doubt of the official character of either form of communication.  In the first, the president is expressly asking for congressional action.  In the second, the president’s obligation to provide a message to congress regarding the state of the union is written into Article II, Section 3 of the Constitution.

Of course, as the modern practice of “fact-checking” every presidential address has made plain, every president spins facts to his advantage at least somewhat on such occasions. It would be absurd to impeach a president for engaging in that well-understood political habit. Nonetheless, there must be some limit on presidential prevarication in official settings.  It is one thing for a president to place politically advantageous interpretations on ambiguous facts, or even to cherry-pick facts a bit to support a political argument.  It is quite another for a president to consciously misrepresent facts plainly germane to a congressional choice, or to consciously omit facts that, if revealed, might cause congress to act differently.

Lies to congress by administration agencies or officials with the president’s knowledge

A second type of potentially impeachable presidential lie to Congress occurred when the Nixon Administration submitted to Congress false reports about Cambodian bombing. There the president did not personally speak, but, at least so it was alleged, he caused or authorized his subordinates to deceive Congress on his behalf.  Again, every administration is going to try to bend the arc of truth a bit in the direction of its ideological or policy preferences, but even in this age of relativism there must be some boundary beyond which a president cannot go when authorizing official communications to a coordinate branch of the United States government.

This sort of executive branch misrepresentation could become relevant to the current administration.  For example, by law, the executive branch must, every four years, prepare and publish a “National Climate Assessment,” which is expressly designed to set out the best available science to guide congress, executive branch regulators, and state and local governments in making decisions about how to respond to the changing global climate.  Government scientists and career professionals were sufficiently concerned about whether the Trump Administration might either alter or suppress its findings that a draft was recently leaked to the press.  The availability of the draft may forestall any significant meddling with the report’s data or basic conclusions, but this is only one of many legally mandated reports and data compilations that might be subject to politically-motivated censorship.

The question – for which I confess I have no easy answer – is whether there is a type and degree of suppression or distortion of reports to Congress that would properly amount to an impeachable offense.  To constitute to an impeachable offense, such a report would certainly have to satisfy at least three requirements: (1) It would concern a matter of genuine national significance upon which Congress is required or reasonably expected to act; (2) it would contain a significant number and degree of provably false assertions of fact, and (3) the president could be proven to have known about the report and its contents and to have been aware of its essential falsity.

I will be watching the news over the coming months to see if a plausible example of this kind of presidential falsehood arises.  Suggestions from readers will be welcome.

***

In my next post, I will consider whether a president can constitutionally be impeached for unindictable, but pathological or pervasive, lying.

 

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The Pre-Watergate Impeachment Attempt

28 Friday Jul 2017

Posted by crosbysamuel in Articles, Uncategorized

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blue-collar, Impeachment, nixon, press

Click here to read an account of a pre-Watergate impeachment attempt on President Nixon. This story includes some interesting parallels to our modern controversy, including tension between the press and the blue-collar worker.

press.jpgWilliam E. Sauro/The New York Times

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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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