Tag Archives: Robert Mueller

The “Take Care Clause” Does Not Permit Trump to Fire Robert Mueller Directly

16 Monday Apr 2018

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By Frank Bowman

In last Friday’s New York Times, John Yoo and Sakrishna Prakash contend that President Trump has the power to fire special counsel Robert Mueller “directly,” meaning without complying with the Department of Justice regulation mandating that a special counsel can be fired “only by the personal action of the Attorney General” (or if the AG is recused, his designee) and then only for “good cause,” such as “misconduct, dereliction of duty, incapacity, [or] conflict of interest.”  In plain terms, they are saying that the president can simply ignore the Justice Department’s chain of command and its regulations and fire Mueller for any reason or, as they insist, “no reason at all.”

It is important to understand how radical this argument is. Most of the commentary about how Mr. Trump could fire Mr. Mueller accepts the premise that Justice Department regulations specifying how and by whom a special counsel can be removed are laws, binding both officers of the Justice Department and the president himself.  Hence, the endless discussions of whether Trump will embark on a “Saturday Night Massacre” round of firings in search of a senior Justice Department official willing to behead Mueller.

To non-lawyers, it might seem odd that an internal departmental rule called a “regulation” is treated as equivalent to a “law.”  But in our legal system, departmental regulations promulgated using procedures prescribed in the “Administrative Procedure Act” are “law.” And they every bit as binding on presidents or anyone else as a congressionally enacted statute or a decision of the Supreme Court.  The Justice Department’s regulations on the special counsel are precisely this kind of regulatory law.

Yoo and Prakash try to evade this elementary reality of modern American jurisprudence by referring to Article II, Section 3, of the Constitution, which requires a president to “take care that the laws be faithfully executed.”  They say this constitutional language means that the president has absolute control over the federal law enforcement function and thus can direct that legal actions be terminated and federal law enforcement officers fired whenever it suits him.  According to them, the “take care” clause means that a president cannot be bound by any regulation, or indeed any statute that Congress might pass, purporting to limit his power to dismiss subordinates in the executive branch.

They’re wrong.  Though they focus here on the narrow issue of the tenure of a special counsel, their position is merely a local manifestation of the “unitary executive” theory occasionally fashionable on the fringes of the intellectual far right.  It remains a fringe view because, if accepted, it would strike a crippling blow to the rule of law in this country.

Consider its effect in the law enforcement setting.  If the Take Care Clause effectively overrides Justice Department regulations on the special counsel, it also overrides all statutory and regulatory rules purporting to safeguard federal employees from arbitrary dismissal. In that case, the president may not only fire a prominent special appointee like Robert Mueller, without process and without cause, but also every career prosecutor, FBI agent, analyst, and secretary who worked on a case that displeased the president.

A criminal justice apparatus cowed by the chief executive and wielded only according to his unchecked whims is the first step on the road to autocracy.

Moreover, the extremist view propounded by Yoo and Prakash resonates far beyond criminal justice.  After all, the president’s obligation to ensure faithful execution of “the laws” is not limited to criminal statutes.  It extends to all of the myriad laws – constitutional, statutory, and regulatory – that govern all aspects of our national existence.  A president is every bit as obliged to ensure faithful execution of laws governing revenue collection, fair housing, collective bargaining, workplace safety, environmental protection, and the distribution of Medicare and Social Security benefits as he is to ensure proper administration of laws against fraud and official corruption.

Thus, if Yoo and Prakash are right, the president cannot constitutionally be prevented from firing any executive branch employee in any department whenever he feels that such an employee isn’t executing the law as the president would prefer it executed.  For them, legal protections against arbitrary or politically motivated dismissal can be of no effect so long as it is the president who orders a firing. In short, their reading of the constitution would effectively destroy the federal civil service system which, since 1883, has protected the country from the corruption endemic whenever a president or ruling party has unchecked power to dismiss federal employees who will not obey directions from political superiors.

No court will, or should, accept a reading of the constitution so contrary to long-settled legal norms and so destructive of the professionalism and political neutrality of federal civil servants.

It has been reported that the White House has sought advice on whether Robert Mueller might be directly dismissed, and that it has received some scholarly support for the idea.  One hopes that Mr. Trump has not relied on ideas like those of Professors Yoo and Prakash, which combine the defects of being constitutionally unsound, unlikely to find acceptance in the courts, and deeply subversive of the rule of law.

It’s Too Late for a New “Saturday Night Massacre”

13 Friday Apr 2018

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By Frank Bowman

In the hours following Mr. Trump’s infuriated reaction to the FBI’s search of his lawyer’s office, the media crackled with speculation that the president would fire either special counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, or Attorney General Jeff Sessions, or perhaps all three together.  It hasn’t happened yet. And while nothing is certain with our increasingly erratic chief executive, if he retains both a shred of rationality and advisors with some knowledge of the federal criminal system and the capacity to make their boss face reality, there will be no firings. And if there are, they won’t stop the hounds baying at Mr. Trump’s heels.

Mr. Trump wants to fire those he perceives to be his tormenters in order to make the torment – the investigations they supervise – stop. But the simple truth is that Justice Department investigations involving Mr. Trump, his campaign, his family, and his businesses have now proceeded so far that, while they could be hindered or delayed, they cannot be stopped.  That Mr. Trump seems to think that a few firings would achieve that end only shows how little he understands about the federal criminal justice system and the professionals who serve it.

Trump’s most well-known problem, of course, is that, despite his press secretary’s confident assertions to the contrary, he cannot fire Mueller directly.  Under Justice Department regulations, a special counsel can be “removed from office only by the personal action of the Attorney General,” or where the Attorney General is recused, by his deputy, Rod Rosenstein. So to get to Mueller, Trump would have to fire Rosenstein and then put someone in his place willing to axe Mueller.

But the Senate would not confirm an obvious hatchetman as permanent replacement to Rosenstein. So Trump would have to begin working his way down the DOJ line of succession, ordering Mueller’s removal, and then firing anyone who refused, until he found someone willing to be this generation’s Robert Bork (who as Solicitor General complied with President Nixon’s order to fire Watergate Special Prosecutor Archibald Cox).  It’s possible that he could find someone pliable enough to at least consider firing Mueller.

But Trump’s problem is that firing Mueller cannot, by itself, stop the investigations run by Mueller’s office. Mueller has already filed multiple cases. Some of them, like Paul Manafort’s, remain to be tried.  Mueller’s office also employs or supervises dozens of prosecutors and investigators who are actively investigating other crimes and defendants.  He has collected thousands of documents and hundreds of witness interviews and presented reams of grand jury testimony. To stop all that — and to bury the results so they no longer threaten Mr. Trump – would require Trump’s chosen executioner not merely to fire Mueller, but to order the immediate cessation of all the investigative activity being carried on by Mueller’s office and the immediate destruction or sealing of all the information they had gathered.

That won’t happen.  For two reasons.

First, it is extremely doubtful that Mueller’s prosecutors and agents would obey an order shutting and sealing their investigations, particularly if given for no better reason than that the President (who is a subject of their inquiry) said so.  There is no legal basis for such an order.  More to the point, an order to both close and suppress the results of Mueller’s investigations would itself be a plain case of obstruction of justice under either 18 U.S.C. 1503 or 1512.

Second, no rational Rosenstein replacement, no matter how deeply in thrall to Mr. Trump, would order Mueller’s work both stopped and sealed.  Any person who gave such an order would, at one stroke, commit career suicide and become a criminal target himself.

From Trump’s perspective, the rosiest scenario after Mueller’s firing would be: (a) appointment of a replacement for Mueller somewhat more tractable to the president’s wishes, or (b) a dispersal of Mueller’s staff and a transfer of their cases and investigations to regular U.S. Attorney’s Offices who would carry on the work.  Either might slow things down, but the investigations would still be run by career prosecutors and agents who would not simply walk away.

Moreover, the part of the investigation that Trump now apparently most fears – the result of the search through his lawyer’s office – is already outside the special counsel’s bailiwick and being pursued by the U.S. Attorney’s Office for the Southern District of New York.   Neither the New York prosecutors nor the FBI itself, which has a large measure of independent investigative authority, will stop so long as there are grounds to believe federal crimes may have been committed.

In short, while a DOJ firing spree might provide Mr. Trump a moment of satisfying catharsis, it will not resolve his legal problems.

At this critical juncture in his life, Donald Trump confronts a phenomenon with which he has never before had to reckon – the principled dedication of the men and women of the Department of Justice.  The “deep state,” if you like. Though individually subject to all the flaws of any professional assemblage, their institutional allegiance is to no man and no party, but to the vigorous and impartial enforcement of the law. If Mr. Trump has, as he says, done nothing wrong, he has nothing to fear.  But it’s now too late to prevent the Justice Department from following the evidence wherever it may lead.

 

The FBI Raid on Trump’s Lawyer: Not a “Witchhunt”

10 Tuesday Apr 2018

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By Frank Bowman

The New York Times reported this afternoon that FBI agents executed a search warrant on the Manhattan office of Michael Cohen, who has long served as Donald Trump’s lawyer and has often been referred to as his “fixer.”  Mr. Cohen has assumed particular prominence lately because he apparently arranged the pre-election $130,000 payment to adult film actress Stormy Daniels designed to keep her quiet about an alleged affair with Mr. Trump.

Mr. Trump immediately labeled the raid a “disgrace” and a “witch hunt.”  

We don’t know precisely what the FBI was looking for and what it might have found.  No doubt that will become clearer with time. What is clear is that federal searches of lawyer’s offices are extremely unusual and, under Justice Department rules, require extraordinary justification and multiple layers of internal approvals. And then the warrant application must be approved by a federal judge.

Moreover, the Cohen warrant was sought, not by Robert Mueller’s office, but by the U.S. Attorney for the Southern District of New York, acting on a referral from Mueller.  In short, before the application even reached the judge who signed it, it garnered the approval of Special Counsel Mueller and U.S. Attorney Geoffrey Berman (appointed by Mr. Trump).  Moreover, as I explain below, DOJ procedures for approving such a warrant would require the concurrence of Acting Assistant Attorney General for the Criminal Division John Cronan.  Any suggestion that this search was a frivolous fishing expedition by an uncontrolled special counsel — or, in Mr. Trump’s tirelessly repeated phrase, “a witch hunt” — simply won’t wash.

The Department of Justice is acutely conscious that communications between attorneys and their clients enjoy special status under the Sixth Amendment and the common law attorney-client privilege.  Except in rare circumstances, attorney-client communications may not be seized for use in investigations or introduced in court to prove a crime.  There are exceptions, such as when an attorney gives a client advice about how to commit a future crime, but judges are exceptionally protective of the attorney-client relationship and tend to construe such exceptions very narrowly.

Therefore, any law enforcement search of an attorney’s office will always be a ticklish business.  Even when a search is authorized by warrant, merely locating the material covered by the warrant will almost inevitably involve inspecting documents that contain attorney-client communications for clients other than the one who is the subject of the warrant.  And once the batch of material related to the client at issue is found, there are very likely to be some communications covered by the privilege commingled with material that has no attorney-client communications or communications that are unprivileged.

The likelihood of encountering commingled privileged and unprivileged material creates a special problem — if the searching agents see privileged matter and accidentally or purposely convey such material to the agents and prosecutors who ultimately charge and prosecute the case, the privileged matter may “taint” the rest of the evidence and could require suppression of some evidence or even dismissal of the entire prosecution.

For all these reasons and more, the Justice Department has special detailed procedures for authorizing and conducting attorney searches.  Before a warrant can even be presented to a federal judge for approval, the following internal steps must be taken:

  1. The prosecutor contemplating an attorney warrant must consider whether the material sought can be obtained by any less intrusive means, such as a subpoena. U.S. Attorneys Manual 9-13.420(A).
  2. Any attorney search warrant must be approved by the U.S. Attorney in the district where the warrant is sought. U.S. Attorneys Manual 9-13.420(B).
  3. A prosecutor seeking an attorney warrant for material concerning representation of a client must also obtain prior approval of the Assistant Attorney General in charge of the Criminal Division in Washington, D.C., using a specific and highly detailed application form. U.S. Attorneys Manual 9-13.420(C).
  4. Because of the risk of taint, DOJ rules require that an attorney warrant application specify procedures for guarding against it.  DOJ rules state: “Procedures should be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search. … [I]n all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.”  U.S. Attorneys Manual 9-13.420(D).
  5. The anti-taint procedures will customarily involve a separate team of agents and lawyers charged with executing the search and reviewing the materials found in order to limit the material seized to matters that (a) are covered by the warrant, and (b) are not privileged.  Those agents and lawyers will be strictly barred from communicating to the main prosecutorial team any documents or information deemed privileged or outside the scope of the warrant.
  6. Often, the final privilege determination will be made by submitting material about which there is question to a judge or special master.

The procedural and logistical difficulties in seeking and executing a warrant for an attorney’s office have the practical effect of making such searches extraordinarily rare.  When permission to seek judicial approval of such a warrant is sought, you can be assured that the highest levels of the Justice Department have been satisfied on two critical points: First, the information sought is of very high importance to a case of genuine significance, and second, the evidence supporting issuance of the warrant is very solid.

Moreover, judges review an application to search a lawyer’s office with infinitely more care than a warrant for virtually any other location.

These general observations are triply valid in the case of Mr. Cohen, the president’s personal lawyer.

We can’t yet know what the FBI was searching for or what they found.  But we can be absolutely sure the Department of Justice had darn good reasons to look for it.

 

 

More on Trump’s status in the Mueller investigation

08 Sunday Apr 2018

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By Frank Bowman

After my last post on the implications of the Washington Post report that Robert Mueller’s team had told Mr. Trump’s lawyers that he was not a “target,” the good folks at the Kansas City Star asked me to explain the situation a little further.  I was happy to oblige.  The result appeared in this morning’s paper (link here).  I reproduce it below:

Trump shouldn’t relax to hear he isn’t a ‘target’ in Mueller investigation (Kansas City Star, April 8, 2018)

The Washington Post reported this week that Special Counsel Robert Mueller’s team may have told Mr. Trump’s representatives that, although Trump remains under investigation, he is not a “target” of the investigation. The same sources said that Mueller wants to interview Trump as a last step before writing a “report” to Deputy Attorney General Rod Rosenstein. 

If either or both of these things are true, what do they mean?

First, if Trump is still under investigation, he is what the Department of Justice calls a “subject.” Mr. Trump was reportedly relieved by this status report.  He probably shouldn’t be.  If Trump is a “subject,” Mueller has not exonerated him from criminal liability. Indeed, the “subject” designation suggests Mueller has found enough evidence of Trump’s possible involvement in crime that he thinks it’s worthwhile to continue to investigate Trump.

Second, the “not-a-target” designation doesn’t convey much about Mueller’s current assessment of the evidence against Trump. DOJ rules define a “target” as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”  Trump’s reported relief probably stems from focus on the first half of the “target” definition.  Perhaps he thinks that not being a target means that Mueller doesn’t have “substantial evidence” of crime.

But that ain’t necessarily so. The Department of Justice has long taken the position that a federal prosecutor (like Mueller) may not indict a sitting president – even if there is plenty of evidence that the president committed a crime. There are many reasons to question the correctness of DOJ’s policy, but Mueller is bound by it.  Therefore, if Mueller really said Trump is not a “target,” all he may be saying is that, while there is substantial evidence linking Trump to crimes, the president cannot be a “putative defendant” because DOJ policy bars indicting him.  

Third, in any case, the real danger to Trump is not indictment, but impeachment (or at least the politically debilitating trench warfare of a formal impeachment investigation). That’s where a Mueller report comes in.

If Mueller were to write a report largely exonerating Trump, the administration would surely want to release it publicly.  On the other hand, if Mueller finds criminality, or simply a plethora of unindictable, but arguably impeachable, conduct, the Trump administration would be quite desperate to keep it secret.  For the rest of us, the big question is – regardless of what Mueller concludes, will Congress and the public see his conclusions?

The answer is surprisingly complicated and uncertain. The DOJ norm is that the reasons behind a decision not to charge someone are not made public, particularly if describing the reasons would make the subject of the investigation look bad.  Former FBI Director James Comey broke this DOJ norm with his report to Congress on the Hillary Clinton email investigation.  And that was the ostensible reason for his firing.

DOJ regulations governing Special Counsel Mueller require him to make certain reports to his departmental superiors, and in certain circumstances to Congress.  But a report finding that a president committed crimes for which DOJ won’t indict him doesn’t fit automatically into special counsel regulations requiring or permitting disclosure.

The decision about whether to release a report critical of Trump, and to whom, would probably rest with Deputy Attorney General Rosenstein.  And the rules give him little guidance about how to use his discretion.

That leaves the possibility that Congress, having gotten wind of a Mueller report, could subpoena it.  That would probably work, but might be vigorously resisted by Trump’s people.

At this point, the most that can be said is this: If Mueller’s report is favorable to Trump, it will be released immediately, regardless of the technicalities.  If Mueller’s report alleges criminal or impeachable conduct, release will depend on the judgment of Rod Rosenstein or the courts’ willingness to enforce a congressional subpoena.

Mueller (supposedly) said Trump is not a “target” of his investigation — what does that mean?

04 Wednesday Apr 2018

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By Frank Bowman

The Washington Post reports that Robert Mueller’s team has told Trump representatives that Mr. Trump continues to be under investigation, but is not now a “target” of the Mueller grand jury probe.  The Post article contains a good deal of commentary about what this means, most of which is broadly correct.  However, I think the Post misses several important nuances.

If Mueller’s people said Mr. Trump continues to be investigated (which in DOJ terminology makes him a “subject”), but that he’s not now a “target,” that allows two conclusions, one positive, one negative:

First, if Trump is still under investigation — is still a “subject” — Mueller has not exonerated Trump from criminal liability. Or putting it another way, the “subject” designation suggests Mueller has found enough evidence of Trump’s possible involvement in crime that he thinks it’s worthwhile to continue to investigate Trump.

Second, the “not a target” designation doesn’t convey much of real substance concerning Mueller’s assessment of the current evidence against Trump. The Washington Post summary of the meaning of “target” is incomplete. The article says, “A target is a person for which there is substantial evidence linking him or her to a crime.” But that’s not the whole definition in the United States Attorneys Manual (9-11.151), which reads: “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Mueller really said Trump is not a “target,” all he may be saying is that, while there is substantial evidence linking him to a crime, DOJ policy precludes making him an actual indicted “defendant.” For an explanation of this policy, see this earlier post. What’s more, as several commenters in the WP article note, a subject can change to a target in the blink of an eye.

Were I one of Trump’s lawyers, I would be more alarmed than comforted by what Mueller supposedly said.

UPDATE: Jeremy Stahl over at Slate was kind enough to quote me about this point in a longer story on the Washington Post report.

 

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.

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.

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.