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Impeachable Offenses?

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

Impeachable Offenses?

Tag Archives: Saturday Night Massacre

The Mueller Report

19 Friday Apr 2019

Posted by impeachableoffenses in Uncategorized

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don mcgahn, James Comey, Michael Flynn, Mueller report, Obstruction of Justice, Robert Bork, Robert Mueller, Russia investigation, Saturday Night Massacre, William Barr

By Frank Bowman

This is how it’s done. In the endless, degrading cacophony of the Trump era, in which the “tweet storm,” the “flame war,” the sneering insult, and the facile certainty of cable punditry have become the customary form of legal and political discourse, I had almost forgotten what the language of the law sounds like. But there it is in the 448 pages of the Mueller report
— logical, cautious, painstaking, measured, dry, yet inexorably compelling. One may quibble about details, but taken as a whole, Mueller’s product is an exemplar of the prosecutor’s craft and a powerful reminder of why a Justice Department imbued with norms of independence and professionalism is an essential counterweight to both presidential overreach and partisan hysteria.

The legal craftsmanship of the report is also an unanswerable refutation of the endlessly repeated canard that the Mueller investigation was a baseless partisan “witch hunt” by a hostile “deep state.”

In one sense, of course, the report is the work of the “deep state,” if by that foolish term one means the career professionals of American law and government. If some of those professionals are hostile to Trump and Trumpism, it is only because their lives are based on values — the dogged pursuit of truth, a commitment to fairness and due process, respect for the law, support of constitutional government — that Trump openly flouts.

Nonetheless, Trump should thank his lucky stars that Mueller’s team was composed of such old-fashioned folks. Had they indeed been the “thirteen angry Democrats” of Trump’s splenetic imagination, persons of the disposition and caliber of, say, Devin Nunes or Lindsey Graham, but of the opposite political valence, the resultant report would surely have been very different. As it is, the professional values and institutional norms by which good prosecutors live produced a report exonerating Trump of actual crime in relation to Russian election interference and withholding judgment on the legal question of obstruction.

Trump and his enablers are, of course, claiming vindication. But the caution and restraint of Mueller’s style cannot obscure the facts he meticulously reports. And those amount to a devastating portrait of a man by conduct, character, and temperament unfit for the office of president.

The section of the report on Russian election interference does clear Trump and his campaign of conspiring with the Russian government to interfere in the 2016 election. It nonetheless unequivocally affirms that the Russians did interfere. And it depicts Trump campaign operatives, including members of the Trump family, who were aware of the possibility that Russia was trying to intervene to help Trump by hacking and leaking material damaging Clinton, but saw no problem with such Russian meddling and would happily have conspired in it given the chance.

The reality of Russian intervention and the dangerous, if perhaps not quite provably illegal, proximity of Trump intimates to it frames the question of Trump’s obstruction quite differently than his defenders would like. Despite Trump’s endless denials, the Russians did meddle. As a matter of national security, that required investigation. Likewise, Trump associates and family did have troubling contacts with Russian emissaries. That, too, required investigation. Given the facts, both those long publicly known and others now laid out in Mueller’s report, investigation of neither point could, except in the mind of a willfully blind partisan, amount to a “witch hunt.”

Moreover, a truly independent inquiry into Russian electoral interference represented a political threat, or at least grave embarrassment, to Trump, because it raised the possibility that his victory was tainted by the assistance of a hostile foreign power. In addition, by no later than early 2017, Trump knew that his family and associates had, at the very least, come dangerously close to illegal entanglements with Russian representatives. Thus, Trump had powerful motives to quash the Russia investigation.

The crime of obstruction of justice depends on proof of two basic points — first, actions that obstruct or impede an investigation, and second, corrupt motive. Although a president may lawfully limit or even halt investigations for reasons genuinely related to the national interest, doing so to advance one’s partisan political prospects or to protect oneself or one’s family or friends from criminal exposure or personal embarrassment is to act corruptly.

The second volume of Mueller’s report lays out eleven different incidents or sequences of events that might amount to obstruction — from Trump’s efforts to convince FBI Director James Comey to lay off the investigation of Gen. Michael Flynn, to his repeated attempts to stop or limit the Mueller investigation, to his public and private efforts to induce witnesses Flynn, Manafort, and Cohen not to testify or to hew to Trump’s preferred view of reality.

Space precludes a blow-by-blow analysis of each of these categories, but Mueller’s conclusions — though guardedly, even opaquely, phrased — are evident and damning. He concludes that on multiple occasions Trump engaged in behavior that either did, or was intended to, obstruct or impede criminal investigations. As to some of the enumerated categories, Mueller concludes that, even if obstructive conduct occurred, there was insufficient evidence of “corrupt” motive. But as to at least five sequences of events, Mueller unmistakably believes that there is persuasive evidence of both obstructive conduct and corrupt motive. These included repeated efforts to remove special counsel Mueller; an attempt through Cory Lewandowski to induce Attorney General Sessions to limit the scope of the Mueller probe to future Russian interference in elections; a brazen attempt to convince White House Counsel Don McGahn to lie about the fact that Trump had ordered him to arrange the firing of Mueller; Trump’s efforts to influence the cooperation and testimony of Michael Flynn and Paul Manafort; and Trump’s efforts to induce Michael Cohen not to cooperate or to shade his testimony in Trump’s favor.

Mueller’s conclusions are unmistakable despite his careful refusal to go the last step and say plainly that Trump obstructed justice. If there were any doubt on the point, it is removed by the report’s inclusion of a devastatingly thorough legal rebuttal of Attorney General Barr’s apparent view that a President cannot commit obstruction by stopping or limiting a criminal investigation. The only reason to include such an argument is if Mueller concluded that, on the facts, the president violated the law. Otherwise, the legal question is moot and a legal craftsman like Mueller would never have included such surplusage.

In the end, of course, whether a president can or cannot technically commit the crime of obstruction is itself a moot point. As I have argued many times, Bob Mueller was never going to defy DOJ policy and seek indictment of a sitting president. As to the president, therefore, Mueller’s job from the beginning was to determine the facts and present them to Congress and the public in order that a political judgment about the president’s fitness for office could be made — whether through the impeachment process or at the polls.

The picture of the current president painstakingly etched in the Mueller report is of a man with three dominant characteristics.

First, his narcissism overwhelms all other considerations. Even a more balanced and self-aware person would have found the Russia inquiry politically and personally troublesome. But one cannot escape the feeling (to which Mueller obliquely alludes) that a primary factor in Trump’s desperate efforts to squash the investigation was the fragility of his ego — a manic determination that the epic achievement of his election not be tarnished by even a hint that forces other than Trump played a role.

Second, Trump believes that, having been elected, the powers of government are to be wielded for his personal and political benefit and the law exists only as a tool to serve his ends. No institution, no law, no set of traditional norms, no professional standard, certainly no moral consideration deserves any deference if it stands in the way of his immediate wishes.

Third, the thread running through the entire report is Trump’s essential falsity. Mueller confirms that Trump not only lies constantly as part of his public act, but does so privately among his advisers and intimates and he expects others to lie for him on command. Among the most revealing vignettes is Trump’s effort to convince Don McGahn to lie about the fact that Trump ordered him to secure Mueller’s firing. McGahn, to his credit refused and showed Trump his notes documenting the order. Trump exploded in astonishment that, “Lawyers don’t take notes…. I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.” That a subordinate might have personal integrity and be unprepared to sacrifice it on Trump’s command had seemingly never occurred to him.

One other curious theme recurs throughout the report as a kind of counterpoint to Trump’s lawlessness. Even though Trump repeatedly ordered people to crush or divert or hobble the Russia investigation, over and over they refused to comply, either to his face or simply by failing to carry out his directives. Revealingly, those who resisted told Mueller that they did so because they didn’t want to be responsible for another “Saturday Night Massacre,” or they didn’t want to be another Robert Bork.

This is heartening in a sense. The example of Watergate seems to have restrained at least some Trump subordinates and helped buttress, at least for awhile, the tottering citadel of the rule of law. But the Mueller report is about yesterday’s White House. Those with historical memory, and perhaps more imbued with personal integrity and professional values, are largely gone. Quit in disillusionment. Or purged because they refused to bend to Trump’s lawless whims. In considering what to do about Donald Trump, Congress should ponder that they now confront a Trump unchanged in his essence but increasingly surrounded by aides who may prove unwilling to provide even the modest restraint on his worst impulses documented in Mueller’s report.

Whether Donald Trump violated a particular federal obstruction statute is in the end a peripheral matter. The fundamental lesson of the Mueller report is simply that he is fundamentally unfit for office and presents a persistent danger to the integrity of the American constitutional order. That is the question that Congress and the country must now address.

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

13 Friday Apr 2018

Posted by impeachableoffenses in Uncategorized

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Department of Justice, Mueller, Mueller investigation, Obstruction of Justice, Robert Mueller, Rod Rosenstein, rosenstein, Saturday Night Massacre

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.

 

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AAG Rachel Brand Quits: Who’s Next?

10 Saturday Feb 2018

Posted by impeachableoffenses in Uncategorized

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Associate Attorney General, Noel Francisco, Rachel Brand, Robert Bork, Saturday Night Massacre, Solicitor General

By Frank Bowman

Associate Attorney General Rachel Brand, the number 3 official in the Justice Department, resigned today after barely nine months in office to take a position with Walmart. This matters because Ms. Brand would have been the next person in line if: (a) Mr. Trump ordered Deputy Attorney General Rod Rosenstein to fire Special Counsel Robert Mueller, and (b) Rosenstein either refused and resigned or refused and was fired.  With Rosenstein gone, Ms. Brand would face the same unpalatable choice.  It would seem she does not want to be this generation’s Robert Bork.

For those not up on their Watergate history, Mr. Bork was the Solicitor General at the time President Nixon ordered the firing of Watergate special prosecutor Archibald Cox.  Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned in protest. Nixon then gave the same order to Deputy Attorney General William Ruckelshaus, who also refused and resigned. Whereupon Nixon turned to Robert Bork, who fired Cox.

Although Bork was a brilliant lawyer and one of the leading intellectual lights of the budding conservative movement, he forever bore a Mark of Cain for the firing, particularly after it became clear that Nixon had indeed committed both crimes and impeachable offenses. When he was nominated for the Supreme Court by President Reagan, the nomination failed, partly because of fierce opposition to his criticism of many of the civil rights and criminal procedure precedents set by the Warren and Burger courts, but certainly also because of his role in the “Saturday Night Massacre.”

Ms. Brand’s departure raises several interesting questions:

First, who takes her place in the DOJ hierarchy?  Presumably someone will be named acting Associate Attorney General fairly quickly.  The AAG plays too large a role in administration of the Department for the job to remain vacant indefinitely.  One move the White House might try would be to appoint as acting AAG a Trump loyalist willing to do the dirty deed of immediately firing Mueller. Such a person would have to know that doing so would surely prevent confirmation into the job on a permanent basis, and if rational, would also realize that acting as Trump’s henchman would permanently ostracize him or her from the federal law enforcement community. I doubt there are many such creatures in the middle and upper reaches of the Justice Department.

There is also the possibility that Mr. Trump could insert a political hitman from the outside into the acting AAG position. That is highly unlikely, but not impossible.  Under the Federal Vacancies Reform Act of 1998, an acting replacement for a position requiring senate confirmation (which Associate Attorney General does) must either (1) already occupy an advice and consent position (i.e., a position for which he or she was nominated by the president and confirmed by the Senate), or (2) be an employee of the same agency for at least 90 days prior to appointment and have a salary equal to a GS-15 (the highest grade of ordinary civil service rank).  This means that an acting replacement for Ms. Brand from outside DOJ would already have to occupy a Senate-confirmed position in some other agency, or be inserted into the Department as a regular employee with the appropriate pay grade 90 days before becoming Acting AAG.

The first option expands the pool of possible acting replacements for Brand from Main Justice political appointees and confirmed U.S. Attorneys to anyone holding an advice and consent position anywhere in the government.  The second move would be awkward and transparently obvious, and would take three months to arrange.

Second, so long as the AAG slot remains empty, or the acting AAG refuses to fire Mueller, the next person in line is, once again, the Solicitor General, currently Noel Francisco. I know nothing whatever about Mr. Francisco, other than that he has a distinguished resume as an appellate practitioner.  It seems hard to imagine that he would relish becoming this generation’s Robert Bork.  The lessons of Watergate for a man in his position are pretty stark. But one never knows.

For a more detailed look at the line of succession after Solicitor General Francisco, see Professor Jed Shugerman’s blog.

The larger message of the Brand departure, and for that matter of the ongoing turmoil at the White House caused by the resignation of staff secretary Rob Porter (and a few hours ago speechwriter David Sorensen) over domestic abuse allegations, is that few quality people are willing to accept high office in the Trump Administration, and those of any integrity, or merely a sense of professional self-preservation, tend to leave fast.  One senses that both the reluctance to join the Trump parade and the disposition to leave it are increasing.

The problem for the country is that the federal government is increasingly either unstaffed at senior levels or in the hands of sycophants and second-raters. Sadly, many, perhaps most, of Mr. Trump’s loyal base either don’t know this or have been so indoctrinated by years of right-wing anti-government propaganda that they believe the accelerating deconstruction of the national government is a positive good.

In many ways, the denouement of the Mueller probe is the least of our worries….

 

 

 

 

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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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