Can Virginia Lieutenant Governor Fairfax Be Impeached? It’s Complicated.

As I wrote a post recently regarding whether Virginia governor Ralph Northam could be impeached for a racist photo that appeared on his medical school yearbook page decades earlier (I said no), I temporized regarding a more difficult hypothetical. Suppose that after an individual has assumed office, it comes to light that he committed a serious crime, such as murder or rape, years before taking office and completely unrelated to his political life? Note that this question has implications for whether a president can be indicted because, if a president can neither be indicted nor impeached for some serious criminal offenses preceding his time in office, it means that he would be effectively immune from accountability for the remainder of his term.

Thanks to Virginia lieutenant governor Justin Fairfax (good job, Virginia), this hypothetical has come to life. Fairfax is accused of two separate sexual assaults, both of which long preceded his time in office. Fairfax denies the allegations. A member of the Virginia House of Delegates has announced that if Fairfax does not resign, he will introduce an impeachment resolution as early as Monday. This raises the question whether the allegations against Fairfax are grounds for impeachment.

This is not an easy question. In his recent book, Professor Michael Gerhardt, one of the leading scholars on impeachment, discusses the hypothetical of a presidential candidate “who lied about committing a murder during the campaign but then later is discovered to have been responsible for that crime.” Michael J. Gerhardt, Impeachment: What Everyone Needs to Know 56 (Oxford U. Press 2018). Gerhardt notes the recent case of federal judge Thomas Porteous, who was impeached by the House and convicted by the Senate in part based upon lying during the confirmation process about corrupt behavior as a state judge. (We also discussed the Porteous case here).

Continue reading “Can Virginia Lieutenant Governor Fairfax Be Impeached? It’s Complicated.”

Can Governor Northam be Impeached?

No.

Perhaps I should elaborate. Article IV, section 17 of the Virginia Constitution (adopted in 1971) provides: “The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments.”

This language is identical to that contained in the Virginia Constitution of 1902, except that the latter referred to the “State” rather than the “Commonwealth.” The reference to “high crimes and misdemeanors,” language also contained in the U.S. Constitution, dates back to the Virginia Constitution of 1830, which provided: “The Governor, the Judges of the Court of Appeals and Superior Courts, and all others offending against the State, either by maladministration, corruption, neglect of duty, or any other high crime or misdemeanor, shall be impeachable by the House of Delegates; such impeachment to be prosecuted before the Senate, which shall have the sole power to try all impeachments.”

It is clear that Governor Northam has not committed “malfeasance in office, corruption or neglect of duty.” This leaves “other high crime or misdemeanor” as the only charge that conceivably could be brought against him for the offending conduct (which, in case you have been under a rock for the past 48 hours, consists of offensive and racist photos on his medical school yearbook page in 1984).

The term “high crime and misdemeanor” as used in the U.S. Constitution is broad and, as we have discussed before, not necessarily limited to conduct while in office. There is precedent for the proposition (again, at the federal level) that conduct predating the office in question may constitute a high crime or misdemeanor if the misconduct related to a different office and/or can be causally linked to the gaining of the current office. Thus, for example, if an officeholder were to attain office by corruptly rigging an election, there is a strong argument that this could provide the basis for impeachment and removal.

In Northam’s case, one would have to argue that his failure to reveal his prior misbehavior, decades prior to his election as governor, constituted a fraud on the electorate that resulted in his attaining the governorship. Not only would that mean that every untruth told during a political campaign would be potentially impeachable, but that an officeholder could be impeached simply for failing to volunteer damaging information.

To be sure, impeachment has both legal/judicial and political attributes, and the latter is reflected in the “awful discretion which a court of impeachments must necessarily have” such that it “can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favour of personal security.” The Federalist No. 65 (Hamilton). But to extend that discretion so far as to encompass any distasteful behavior at any point in an officeholder’s life would be to disregard entirely the judicial aspects of the proceeding and to make impeachment little more than a measure of political popularity.

It is difficult to draw a precise line as to when conduct preceding an officeholder’s tenure should be considered potentially impeachable. But non-criminal conduct that occurred decades before taking office cannot be close to that line.

 

Impeachment and the Cohen Allegations

Things are moving ahead at a rapid pace, and I am therefore going to interrupt my discussion of impeachment and indictment to discuss some breaking news. As you may have heard, it is being reported that “President Donald Trump directed his longtime attorney Michael Cohen to lie to Congress about negotiations to build a Trump Tower in Moscow, according to two law enforcement officials involved in an investigation of the matter.”

Because the House Permanent Select Committee on Intelligence (HPSCI) issued its Russia report in the spring of last year, we have a pretty good idea of what Cohen told the committee and how his testimony may have influenced its conclusions. First, let’s review the relevant sections of the report, as summarized in an earlier blog post:

[T]he report discusses the business relationship between Trump and Russia. For example, while Trump was in Moscow in 2013 for the Miss Universe pageant (which he owned at the time), he discussed with his business partners, the Agalarovs, the possibility of constructing a Trump Tower Moscow. Subsequently, during the presidential campaign, Trump’s personal lawyer, Michael Cohen, worked on a potential Trump Tower Moscow deal with Felix Sater, a colorful and shady Russian-American businessman who had pleaded guilty in the 1990s to participation in a stock fraud scheme allegedly orchestrated by the Russian mafia.

In late 2015 and early 2016, Cohen and Sater had a number of communications related to the Trump Tower Moscow project. Many of these conversations involved the need to get Russian government backing for the project, including “an attempt to broker a meeting or other ties between candidate Trump and President Putin.” Sater claimed, perhaps falsely or with exaggeration, to have connections to Putin and other Russian government officials who would support the project. He also suggested that cementing a business deal between Putin and Trump would benefit the latter politically. In a November 3, 2015 email to Cohen, Sater wrote: “Buddy our boy can become President of the USA and we can engineer it. . . . [If] Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . . . Donald owns the republican nomination.”

Much or all of this may have been grandiose puffery on Sater’s part, but Cohen was not merely pretending to represent Trump and the Trump Organization. Whether his clients were specifically aware of his communications with Sater, there does not seem to be any doubt they approved his efforts to move the Trump Tower Moscow forward in the midst of the presidential campaign or that they understood this would require the approval and support of the Russian government.

The Trump Tower evidence laid out by the committee would seem to establish, at the very least, (1) a conflict of interest that might reasonably be thought to explain Trump’s pro-Russia views and (2) corroboration of other evidence discussed in the report suggesting that Trump and/or his associates expected and welcomed Russian assistance in the campaign.

Since the issuance of the HPSCI report, additional facts have come to light regarding this project. For example, Cohen admitted that he lied to Congress when he claimed that the discussions regarding Trump Tower Moscow ended in January 2016; it appears that they continued until June of that year. It also transpired that Trump himself signed a letter of intent for the project in October 2015.

Note that even if everything Cohen had told HPSCI was the truth, the whole truth and nothing but the truth, his testimony should have been extremely troubling, to say the least. A candidate (1) with unusually pro-Russian policy positions, a campaign manager with a history of corrupt Russian dealings, and a number of campaign advisors with questionable Russian connections; (2) whose campaign engaged in inappropriate and ill-advised contacts with Russia, such as the June 2016 meeting in Trump Tower New York (which HPSCI said evinced “poor judgment”); (3) whose praise for and campaign’s communications with Wikileaks, a hostile foreign intelligence service linked to Russia, HPSCI found “to be highly objectionable and inconsistent with U.S. national security interests”; and (4) who encouraged and benefitted from election interference by Russia and Wikileaks, also had business dealings with Russia during the campaign (i.e. for at least seven months after Trump announced his candidacy), in which the approval of high-ranking Russian officials would have bestowed a major financial benefit on the candidate.

Standing alone, these facts strongly suggest that Trump’s Russia policies may have been influenced by his financial interests and that Russia had a motive to help Trump win the election because it believed these financial interests would cause him to favor Russia. Trump’s “defense” of this conduct was as follows: “There was a good chance I wouldn’t have won, in which case I would have gotten back into the business, and why should I lose lots of opportunities?” This is hardly reassuring, particularly given that Trump still owns a large business organization which, as far as we know, continues to look for opportunities in Russia and other hostile foreign countries.

Be that as it may, the HPSCI report states: “The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.” The committee made this determination based on evidence which included Cohen’s false statement that the Trump Tower Moscow project petered out in January 2016, around the time the first Republican primaries began.

In fact, according to Cohen’s subsequent guilty plea, the negotiations went on until approximately June 2016, during which time Cohen had undisclosed communications with Russian officials as well as Trump and members of the Trump family regarding the project. In addition, during this period Cohen agreed to travel to Russia in connection with the project and also took steps to arrange a trip to Russia for Trump himself. Although it is not clear exactly how seriously the latter was considered, Cohen apparently discussed the idea with Trump and others, and contemplated the possibility of Trump traveling to Russia either immediately before or after accepting the Republican nomination. The possibility of Trump meeting with Russian President Putin during this trip was also discussed.

Interestingly, Cohen pleaded guilty to making a false statement only to the Senate Select Committee on Intelligence (SSCI), perhaps because HPSCI would not provide the evidence needed to establish that his misrepresentation was “material” to its investigation. Nevertheless, it seems likely that a disinterested factfinder would find that his misrepresentation was material to both the HPSCI and SSCI investigations because materiality requires merely that the false statement have a “natural tendency to influence, or be capable of influencing, the decisionmaking body to which it is addressed,” not that it actually influenced the decisionmaker.

For purposes of discussion, I assume that if Trump directed Cohen to make these false statements to HPSCI and SSCI, he is guilty of obstruction of Congress. Whether or not the special counsel has the evidence to prove this crime beyond a reasonable doubt, however, it remains the position of the Department of Justice that a sitting president cannot be indicted. Indeed, as recently as a few days ago, Bill Barr, the nominee for attorney general (and someone I know well and think highly of), told the Senate Judiciary Committee he sees no reason to revisit the Justice Department’s longstanding position on this issue.

Thus, as I suggested in my last post (and will continue to discuss), impeachment, not indictment, is the only practical option for addressing presidential misconduct at the present time. If congressional Democrats are demanding an investigation of the latest revelations (as well they should), they have only themselves to petition for redress of grievances.

It is true that the House (or Senate, for that matter) can investigate this issue without instituting a formal impeachment inquiry. However, instituting such an inquiry sooner rather than later provides at least one advantage. Ordinarily it is extremely difficult for Congress to get evidence from an ongoing criminal investigation (it isn’t that easy to get it from a closed investigation for that matter, as discussed here pages 14-18). But since the president is subject only to impeachment, not indictment, the rationale for allowing an impeachment inquiry immediate access to this information is much stronger.

As former acting solicitor general Neal Katyal writes, “[t]o say that a prosecutor cannot indict a sitting president is, by definition, to say that the prosecutor’s evidence must be given to Congress so it may decide whether the president should remain in office.” While I don’t agree with everything Katyal says in this piece, I totally agree with that. And almost as importantly, so does Brett Kavanaugh. See Brett Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2161 (1998) (“When nonfrivolous allegations or evidence of wrongdoing by the President is received by a prosecutor, that evidence should be forwarded to the House of Representatives.”)

 

 

 

 

Impeachment or Indictment?

This was the question addressed by a Senate subcommittee about two decades ago (on September 9, 1998, to be precise). See Impeachment or Indictment: Is a Sitting President Subject to Compulsory Criminal Process?,  Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate. Comm. on the Judiciary, 105thCong., 2d Sess. (1998) (hereinafter the “1998 Hearing”). Specifically, with the independent counsel report on misconduct by President Clinton about to be submitted to Congress (it came two days later), the subcommittee asked whether it was constitutionally permissible to pursue criminal charges against a sitting president, or whether such charges had to be deferred until after impeachment proceedings resulted in the president’s removal (or the president otherwise left office).

At the outset, the subcommittee chair, Senator John Ashcroft, posited two distinct questions. The first was whether “as a constitutional matter, can the President be indicted?” 1998 Hearing at 3. This was a “close and difficult” question, one about which legal scholars had “sharply different views.” Id. While Ashcroft leaned toward an affirmative answer to the question, he acknowledged substantial uncertainty on the point and stressed that it was only a “preliminary view” on which he remained “open to persuasion.” Id. at 1.

The second question was “even assuming a sitting President can be indicted, whether a sitting President should be indicted as long as impeachment remains an option.” 1998 Hearing at 4 (emphasis added). This question, Ashcroft explained, was one “of prudence, rather than of constitutional law,” and a matter “of judgment, not of law or whether or not there is authority.” Id.

In contrast to the uncertainty surrounding the first question, Ashcroft argued that the answer to the second was “crystal clear”: “As long as impeachment remains a viable option, impeachment should be the preferred course.” 1998 Hearing at 4. He noted that “[t]he act of disciplining a popularly-elected President is such an awesome task that it ought to be carried out by the most popularly-responsive mechanism possible.” Id. He cautioned, however, that “just as prudence dictates that a prosecutor should defer to Congress when impeachment is an option, prudence also demands that Congress not shrink from its responsibilities.” Id.

Interestingly, despite the intensely partisan context of the hearing, there was a great deal of agreement between Senator Ashcroft and his two Democratic colleagues on these points. Senator Robert Torricelli noted that “offenses by a President of the United States are to the body politic in its entirety, and therefore need to be judged not as narrow abuses against the criminal law.” 1998 Hearing at 6. The framers entrusted the Senate alone to sit in judgment of such offenses, and it was the Senate’s obligation “to actually live up to those responsibilities.” Id. at 5. Torricelli concluded that impeachment was a “condition precedent” to any criminal action against a president; “any indictment would have to follow impeachment and an action by the U.S. Senate to remove a person from the Presidency.” Id. at 6.

Senator Russell Feingold, like Ashcroft, expressed substantial uncertainty on the question whether a sitting president could constitutionally be indicted. While Feingold was uncomfortable with the idea of a president being “above the law,” even temporarily, “a strong argument can be made that the interest in protecting the proper functioning of the Executive Branch outweighs the interest in allowing indictment.” 1998 Hearing at 22. Regardless, Feingold agreed entirely with Ashcroft on the second question: “I think we can all agree . . . that even if indictment prior to impeachment is constitutionally permissible, impeachment first is by far the more prudent approach.” Id. at 21.

Torricelli suggested that the hearing might be important “in an unforeseen administration in undefined events at another time,” 1998 Hearing at 5, and I think it provides a good starting point for discussing the issues that consume much of official Washington in 2019. Legal experts are once again debating whether the Constitution permits the indictment of a sitting president, an issue that remains as open and unsettled today as it was in 1998.

Truth be told, however, no one is really interested in this abstract constitutional question. What people actually want to know is whether indictment is a prudent and practical alternative to impeachment. More specifically, they want to know if it is realistic to believe that President Trump could be indicted and prosecuted in such a way as to end his presidency. The answer to these questions is even more “crystal clear” today than it was in 1998. The answer is no.

As in 1998, considerations of constitutional legitimacy strongly militate in favor of impeachment rather than indictment. Even more clearly, though, indictment is simply not a viable option at all. Brett Kavanaugh wrote in 1998 that indictment of a sitting president would be “virtually untenable as a matter of practice and unwise as a matter of policy.” Brett Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2159 (1998). Developments since then (Kavanaugh’s elevation to the Supreme Court being one, but far from the most important) make indictment of a president virtually impossible and all but guarantee that a hypothetical indictment of the current president would not lead to his removal.

Indeed, the effect (perhaps intended) of arguing the president can be indicted is to distract from the constitutional remedy of impeachment, thereby making it more likely that Congress will shrink from its constitutional responsibilities.

I will elaborate on these points in future posts.

Of Special Counsels and Congressional Investigations: Questions for Judge Kavanaugh

Note: click here to access full piece.

As you may have heard, President Trump has nominated Brett Kavanaugh, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy on the Supreme Court. There has been a good deal of discussion about how a Justice Kavanaugh might approach issues of executive power, and in particular how he might rule on certain (at this point hypothetical) questions arising from the investigation by special counsel Robert Mueller into Russian interference in the 2016 presidential election.

I would like to propose a different line of questioning for Kavanaugh’s confirmation hearing, one that is not designed to score points for the pro-confirmation or anti-confirmation teams, but instead to illuminate the legal/constitutional framework within which allegations of presidential misconduct must be addressed. The jumping-off point for this discussion is Kavanaugh’s repeatedly expressed preference for congressional, rather than criminal, investigation of presidential misconduct. As we will see, this preference is not (or at least should not be) controversial, but it is in some tension with Kavanaugh’s efforts to hinder congressional oversight during his time as associate White House counsel.

Some background on Kavanaugh’s career: after graduating from Yale Law School in 1990, he spent several years clerking, culminating in a clerkship for Justice Anthony Kennedy, whose seat he has been nominated to fill. Kavanaugh went on to work for Kenneth Starr, the independent counsel appointed to investigate the Whitewater and Lewinsky matters. After a brief stint at Kirkland & Ellis, he joined the new George W. Bush administration, spending the first couple of years in the White House counsel’s office and then becoming the president’s staff secretary. President Bush appointed Kavanaugh to the D.C. Circuit in 2006.

Along the way, Kavanaugh authored three works relevant to our discussion today (there may be more, but I haven’t read them). Two are law review articles that have garnered a lot of attention. The third is Kavanaugh’s 2013 opinion in In re Aiken County, which I have mentioned previously but which has escaped widespread notice until recently.

The full piece is too long for a blog post but it may be accessed here. To sum up briefly, these are the three most important points I would aim to establish during Kavanaugh’s confirmation hearing:

1.  According to Kavanaugh, Congress is or should be the sole entity to determine whether the conduct of a sitting president warrants a sanction. The special counsel should not (or perhaps constitutionally may not) indict or prosecute a sitting president. (I think Kavanaugh is right about this, but it is important that Congress and the general public understand this view).

2.  Congress must have investigatory powers as strong as (or stronger than) those of the special counsel, at least when it is investigating presidential misconduct. Kavanaugh has recognized that a special counsel has a right of broad access to executive branch information, and he should do the same for Congress. Whether or not Kavanaugh accepts this proposition (or will speak to it at all), it seems to me a logical corollary of the first point. Otherwise we would be in a “catch 22” situation where only Congress can judge the conduct of a president but only the special counsel has access to the information needed to make that judgment.

3.  During his time at the White House counsel’s office, Kavanaugh was a key architect/defender of legal positions allowing the Bush administration to withhold information from Congress, including with respect to several congressional investigations involving serious and credible allegations of executive branch wrongdoing (the campaign finance, Boston FBI and Clinton pardon investigations). Kavanaugh should be pressed to explain the apparent inconsistency between those positions and points 1 and 2 above by, for example, acknowledging that the Bush administration positions were ill-considered and/or distinguishing them on the grounds that they are inapplicable to an investigation of a sitting president.

Pardons, Self-Pardons and Impeachment (Part IV)

This post will conclude my series (see herehere and here) on the pardon power and impeachment. Today I will look at the pardon power in the context of the Russia investigation and explain why, in my judgment, the totality of the evidence warrants opening an impeachment inquiry focused on the president’s abuse and threatened abuse of the pardon power.

Pardons and the Russia Investigation 

On May 17, 2017, Robert Mueller was appointed as special counsel to “conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017” relating to the Russian government’s interference in the 2016 presidential election. The appointment expressly included “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

Mueller’s appointment occurred just days after Trump had fired Comey, an action which was widely believed to have been taken because of Trump’s unhappiness with Comey’s handling of the Russian investigation. Trump, in fact, seemed to confirm this suspicion in a television interview immediately after the firing. Comey’s own testimony suggested that he may have been fired because he failed to comply with Trump’s “direction” that he drop the investigation with regard to former national security advisor Michael Flynn. More recently, Trump’s current lawyer, Rudy Giuliani, said that Comey was fired in part because he refused to say publicly that Trump was not under investigation.

On June 23, 2017, less than a month after Mueller’s appointment, Trump’s then-counsel, Marc Kasowitz, wrote to the special counsel expressing concern that Mueller was investigating the Comey firing as a potential obstruction of justice. Kasowitz argued that there was “no [c]onstitutionally permissible . . . view under which the President’s removal of Director Comey could constitute obstruction” because the president “has exclusive authority to direct that a matter be investigated, or that an investigation be closed without prosecution,or that the subject of an investigation or conviction be pardoned.” (emphasis added). In support of this proposition, he quoted Judge Kavanaugh’s dictum that “[t]he President may decline to prosecute or may pardon because of the President’s own constitutional concerns or because of policy objections to the law, among other reasons.” See In re Aiken County, 725 F.3d 255, 262-66 (D.C. Cir. 2013).

Kasowitz also argued that as a factual matter, the evidence did not support the proposition that Trump had attempted to obstruct justice by speaking to Comey about the Flynn investigation. Even if Comey was correct that Trump had expressed the “hope” that Comey would “let [the Flynn investigation] go” (something the White House denied), Kasowitz maintained this could not reasonably be construed as an attempt to obstruct. Moreover, he added in a footnote: “While some have made much of the fact that the President spoke to Director Comey privately about General Flynn, the President has made essentially identical public statements (including the day after meeting with Director Comey) that he thought General Flynn was a good guy who was being treated unfairly, hardly indicia of a secret, corrupt attempt to obstruct an investigation.”

A subsequent letter to Mueller (sent on January 29, 2018 by Trump’s then counsel John Dowd and Jay Sekulow) reiterates and elaborates on these positions. The January 29 letter specifically notes that “[i]t remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.” (emphasis in original).

While these letters do not state that Trump intends to pardon anyone in connection with the Russia investigation, neither do they disavow such intention or deny that the possibility is under consideration. They are reasonably read to suggest that it would be perfectly proper for Trump to grant such pardons “if he so desired.” More recently, Giuliani has publicly stated that Trump may issue pardons for those he decides were “treated unfairly” in the Russia investigation, and he expressed the view that “there is a lot of unfairness out there.” Giuliani, however, indicated that Trump would not issue such pardons until the investigation was complete.

Continue reading “Pardons, Self-Pardons and Impeachment (Part IV)”

Pardons, Self-Pardons and Impeachment (Part III)

The case against President Trump’s exercise of the pardon power to date may be summarized as follows. Trump’s statements and actions have demonstrated (1) a complete disinterest in the official pardon process; (2) a willingness to grant pardons based on a one-sided process in which no contrary information or view is solicited or considered; (3) the granting of pardons seemingly on the basis of partiality toward political allies and/or hostility toward prosecutors he deems to be adversaries; (4) repeated expressions of authority and/or inclination to grant pardons to individuals involved in investigations in which he is personally implicated, most particularly the inquiry by special counsel Robert Mueller into Russian activities in the 2016 election; and (5) open hostility toward the special counsel, DOJ and FBI with respect to such investigations, which further signals to witnesses and targets that he may use his pardon and other powers to stop inquiry and prevent detection of wrongdoing. In addition to the foregoing, which is largely based on the public record, there is evidence (albeit controverted) that Trump personally tried to shelter a former aide (General Michael Flynn) from investigation and that his legal team discussed possible pardons with lawyers for Flynn and former campaign manager Paul Manafort.

As I will explain in some detail, these facts are more than sufficient to justify the opening of an impeachment inquiry by the House of Representatives. Failure to do so is to invite further and more serious abuses of the pardon power in the future.

Today I will cover the president’s exercise of the pardon power to date.

The Perils of a One-Sided Process

The former pardon attorney, Margaret Colgate Love, has offered a qualified defense of President Trump’s pardons as a substantive matter, arguing that “[h]is grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.” However, she notes that Trump appears to be ignoring entirely the official process for receiving pardon applications and recommendations from the Office of the Pardon Attorney in DOJ. Instead, “Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.”

As noted in prior posts, there is no constitutional or legal obligation to follow the DOJ process, or any process at all. Moreover, some have argued that the official process has unwisely and inappropriately constricted the exercise of the pardon power. See Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology 593, 606 (2012) (“the advent of a pardon attorney has institutionalized the hostility of prosecutors to the exercise of the pardon power”).

Nevertheless, there are serious risks involved in circumventing the established process for considering clemency. It significantly increases the potential for favoritism and unfairness in the granting of pardons, as well as for public perception of the same. The last days of the Clinton administration, likened by one observer to a “Middle Eastern bazaar” of pardon lobbying by Clinton friends, family, and other well-connected individuals, are a good illustration of the problem. SeeAlbert W. Alschuler, Bill Clinton’s Parting Pardon Party, 100 J. Crim. L. & Criminology 1131, 1136 (2010). As former Clinton White House Counsel Beth Nolan testified, pardon requests “were coming from everywhere,” including from politicians and celebrities. See id. 

Viewed in the most charitable light, this deluge of pardon requests overwhelmed the system and prevented President Clinton from getting accurate information or objective advice about requests brought to him by various interested parties with access to the White House. See H.R. Rep. No. 107-454, vol. 3, at 3294-95 (2002) (Minority Views of Members of the House Comm. on Gov. Reform) (“Under these circumstances, and working against the clock, the White House and Justice Department officials responsible for assisting the President could not and did not conduct appropriate review of every petition.”). As a result, Clinton made a series of highly questionable grants of clemency in the final hours of his presidency, most notoriously the pardons of wealthy fugitives Marc Rich and Pincus Green. See id. at 3295 (“The Marc Rich pardon was .  . . the product of a rushed and one-sided process, and it reflected deeply flawed judgment by the President.”). Note that these are the views of Clinton’s political allies in Congress.

Viewed more skeptically, the one-sided nature of the Clinton pardon process was a feature, not a bug, designed to enable Clinton to grant clemency as favors to family members, political cronies and wealthy donors. See H.R. Rep. No. 107-454, vol. 1, at 28-29 (2002) (House Comm. on Gov. Reform) (“In his rush to grant pardons and commutations in the waning hours of his presidency, Bill Clinton ignored almost every applicable standard governing the exercise of the clemency power.”). This resulted in pardon grants that were at best motivated by blatant favoritism and at worst actually corrupt. See id. at 27 (noting that pardons of Rich and Green “raised substantial questions of direct corruption,” while other cases “involved indirect corruption, where close relatives of the President—namely Roger Clinton, Hugh Rodham, and Tony Rodham—apparently traded on their relationships with the President to lobby for pardons and commutations.”); see also Alschuler, 100 J. Crim. L & Criminology at 1137-60, 1168 (reviewing Clinton’s most controversial pardons).

In either event, the Clinton pardons illustrate the perils of granting clemency based on a one-sided process and/or without adequate (or any) deliberation. Trump’s reliance on “random, unofficial sources of information” (including celebrities like Kim Kardashian and Sylvester Stallone) poses similar risks.

These risks may be even greater because Trump has built his pardon “back door” so early in his presidency. Clinton and other presidents issued their most controversial pardons at the very end of their administrations. While this is bad from the standpoint of electoral accountability, it also limits the damage because, once out of office, the (former) president can issue no more pardons. If, on the other hand, potential pardon seekers believe the current president is willing to use his power to reward friends and allies, they have an incentive to seek his favor in the hope of receiving clemency. This is a particular issue for those who have reason to believe (as will be discussed later) the president may be willing to shelter them from justice.

Trump’s Controversial Pardons

Notwithstanding Love’s benign take, several of Trump’s pardons have been controversial on the merits. Here we must be careful because there are no constitutional standards for granting pardons, and therefore no pardon is “wrong” or improper as a constitutional matter. Criticism, however well-founded, of the merits of a particular pardon is in itself simply a political or policy disagreement, not a legitimate basis for impeachment.

Nonetheless, the merits of a pardon decision may still be relevant to whether there has been an impeachable abuse of the pardon power. A dramatic departure from traditional norms and standards, including the Justice Department’s criteria for evaluating pardon decisions, may suggest that a pardon was motivated by something other than the president’s sincere view of the merits. See generally H.R. Rep. 107-454, vol. 1, at 29-31 (describing DOJ standards for pardons). A pattern of questionable pardons given to friends or allies may suggest favoritism, corruption or some other improper motive. The granting of pardons without serious consideration of countervailing factors, such as their potential to undermine the administration of justice, may suggest recklessness and a breach of the duty to take care the laws be faithfully executed. Cf. id. at 35-37 (criticizing Clinton’s pardons as establishing “two standards of justice” and undermining “efforts of law enforcement officers everywhere”).

Of the five pardons and two commutations granted by President Trump to date, three stand out as problematic. The very first pardon, that of Joe Arpaio, was particularly controversial. Arpaio, an Arizona sheriff and close Trump ally, had been found guilty of contempt for defying a court order that prohibited him from arresting aliens not suspected of criminal activity. Trump pardoned Arpaio before the court had even imposed a sentence.

We put aside here policy and political disagreements over immigration and Arpaio’s treatment of and attitude toward immigrants. The Arpaio pardon is still troublesome for several reasons. First, contempt of court is a serious offense that impacts the functioning of an independent branch of government. Indeed, there was once a conflict of authority on whether criminal contempt could be pardoned at all, and in Ex Parte Grossman, 267 U.S. 87, 119 (1925), it was “urged that criminal contempts should not be held within the pardoning power because it will tend to destroy the independence of the judiciary, and violate the primary constitutional principle of a separation of the legislative, executive and judicial powers.” The Court, in an opinion by Chief Justice Taft, rejected that argument but noted that the hypothetical abuse of the pardon power to interfere with a court’s authority “would suggest a resort to impeachment.” Id. at 121.

Second, the Arpaio pardon was clearly inconsistent with Justice Department guidelines on making pardon recommendations. Among other things, those guidelines place a strong emphasis on acceptance of responsibility, remorse and post-conviction conduct evidencing rehabilitation. See H.R. Rep. No. 107-454, vol. 1, at 29. None of these was applicable in Arpaio’s case.

The guidelines also emphasize that for very serious offenses, such as those involving breach of public trust, “a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction.” Id. Moreover, “[i]n the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account.” Id. All  of these factors counsel against the pardon, prior to sentencing, of a prominent public official who openly flouted court orders. As Andrew McCarthy, who is often sympathetic to the president, observed at the time, the pardon put “Trump in the position of endorsing Arpaio’s misconduct—a law officer’s arrogant defiance of lawful court orders, which themselves were issued as a result of judicial findings that Arpaio discriminated against Latinos in conducting unlawful arrests.”

Furthermore, the timing of the pardon was not only contrary to DOJ guidelines, it was unnecessary and imprudent because Arpaio had more than one avenue of judicial relief still available. Noting “[t]here was no sensible reason to pardon Arpaio at this time,” McCarthy criticized the “decidedly unpresidential impulsiveness of the pardon.”

Finally, it hardly seems controversial to note that Arpaio’s pardon was “for the benefit of a political crony” and was not even ostensibly based on an impartial consideration of the merits. If there is any evidence to suggest Trump considered arguments against the grant of the pardon, such as its effects on the administration of justice, I am not aware of it. There is every reason to believe that Trump’s process was as one-sided as Clinton’s, if not more so.

Of course, Trump is not the first president to pardon a political ally or supporter. It is instructive, however, to compare how President George W. Bush approached an analogous situation. Bush faced enormous pressure from his own vice president, Richard Cheney, to grant a pardon to Scooter Libby, Cheney’s former chief of staff. Libby (who ironically made a cameo appearance in the Clinton pardon saga as one of Marc Rich’s lawyers) had been convicted of perjury and obstruction of a special counsel’s investigation into alleged misconduct by the Bush administration in the aftermath of the 2003 invasion of Iraq.

Like Arpaio, Libby was convicted of an offense against the administration of justice in connection with an investigation that his defenders, who were also the president’s allies, viewed as politicized and unfair. Bush, however, declined to pardon Libby, accepting the advice of White House counsel that Libby “hadn’t met the criteria: accepting responsibility for the crime, doing time and demonstrating remorse.” As one participant in the process explained: “Pardons tend to be for the repentant, not for those who think the system was politicized or they were unfairly targeted.”

Bush did agree to commute Libby’s sentence, but the statement he issued carefully weighed both sides of the controversy. It did not excuse Libby’s conduct or endorse claims that he had been targeted for political reasons. Bush was careful to express respect for the special counsel, his investigation and the jury verdict in Libby’s trial.

Bush’s commutation decision contrasts not only with the Arpaio pardon, but with another controversial pardon granted by Trump: that of Libby himself. On April 13, 2018, Trump granted Libby a full pardon, saying in an official statement: “I don’t know Mr. Libby, but for years I have heard he has been treated unfairly.”

Trump’s reference to unfairness contrasts with Bush’s approach and certainly can be construed as an aspersion on the special counsel investigation at issue. It may not be entirely coincidental that the special counsel who prosecuted Libby was appointed by then-deputy attorney general James Comey. And, as in Arpaio’s case, there is reason to question whether Trump gave consideration to both sides of the issue, or whether he listened only to those who thought Libby had been treated “unfairly.”

Trump’s third controversial pardon presents similar problems. On May 31, 2018, he pardoned Dinesh D’Souza, a well-known conservative commentator and author, who had pleaded guilty to straw donor campaign finance violations in 2014. According to a White House press release, the president believed D’Souza to be “a victim of selective prosecution,” and Trump himself tweeted that D’Souza “was treated very unfairly by our government!”

D’Souza’s defenders (who include McCarthy) argue that his offenses were minor and ordinarily would be treated as a civil matter; they ascribe his prosecution by the prior administration as retaliation for his strident criticism of President Obama. Perhaps this is true, but anyone seeking to make a fair evaluation of that claim would need to hear the perspective of the prosecution as well. Compare H.R. Rep. No. 107-454, vol. 1, at 32 (Rich and Green “maintained that they were ‘singled out’ and unfairly prosecuted”) with id. at 104 (“The White House never consulted with the prosecutors in the Southern District of New York regarding the Rich case.”). In the absence of evidence President Trump consulted prosecutors or anyone other than D’Souza’s supporters, there is at least a prima facie case that this pardon was also motivated by favoritism and/or hostility toward prosecutors in the Obama administration, particularly the then-U.S. attorney for the Southern District of New York, Preet Bharara, now an outspoken Trump critic.

Taken together, these three pardons (Arpaio, Libby and D’Souza) suggest a one-sided process, blatant favoritism, and an “unpresidential impulsiveness” inconsistent with the president’s duty of care. (There is no reason to believe that Trump intends to change his practices in this regard; to the contrary, he has publicly mused about additional clemency actions for Martha Stewart and former Illinois governor Rod Blagojevich.) Those concerns would serious enough, but they are dramatically heightened when one considers the president’s posture toward the investigation of Russia’s efforts to interfere in the 2016 presidential election. I will turn to that subject in my next post.

Pardons, Self-Pardons and Impeachment (Part II)

Following on my last post, we will now turn to the pardon power generally and what role Congress plays in checking abuses of that power.

The Pardon Power and Congressional Oversight

The power to pardon is, as Maddie McMahon and Jack Goldsmith note in a recent Lawfare post, “among the broadest of presidential powers.” The Supreme Court has stated:

The power thus conferred [by the Pardon Clause] is unlimited, with the exception stated [i.e., impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Ex parte Garland, 71 U.S. 333, 380 (1866); see also Schick v. Reed, 419 U.S. 256, 266 (1974) (pardon power “flows from the Constitution alone, not from any legislative enactments, and  . . . cannot be modified, abridged, or diminished by the Congress.”); United States v. Klein, 80 U.S. 128, 147 (1871) (“To the executive alone is intrusted the power of pardon; and it is granted without limit.”).

Not surprisingly, executive branch lawyers have been particularly forceful in applying this view to a number of issues surrounding the president’s exercise of the pardon power, resulting in what McMahon and Goldsmith term an “extraordinarily broad” interpretation of that power.

For example, the executive branch recognizes no congressional oversight authority with respect to pardons, either generally or in specific cases. Citing the line of Supreme Court authority noted above, the Office of Legal Counsel has opined that “the pardon power is different from many other presidential powers in that it is textually committed exclusively to the President.” Whether the President May Have Access to Grand Jury Material in the Course of Exercising His Authority to Grand Pardons, 24 Op. Off. Legal Counsel 366, 368 (Dec. 22, 2000). Thus, in finding that Congress was not entitled to information regarding President Clinton’s exercise of the pardon power, Attorney General Janet Reno advised that “Congress’ oversight authority does not extend to the process employed in connection with a particular clemency decision, to the materials generated or the discussions that took place as part of that process, or to the advice or views the President received in connection with a clemency decision.” Assertion of Executive Privilege With Respect to Clemency Decision, 23 Op. Off. Legal Counsel 1, 3-4 (Sept. 16, 1999).

This position might strike some as extreme (it so struck me, as I was advising the House committee seeking this information). While no one disputed the president’s unreviewable power to make the clemency decisions in question, one still might conclude the Congress may inquire as to whether congressionally funded resources, such as the Office of the Pardon Attorney, were being properly or effectively used.

The executive’s position, however, flows from its view that the pardon power is not merely unreviewable; it is subject to no objective standards whatsoever. See 24 Op. Off. Legal Counsel at 370 (“it is important to keep in mind that the factors bearing on the President’s decision to exercise his pardon power, as an act of mercy, are subjective and undefined.”). As the pardon attorney wrote to a senator in 1952: “In the exercise of his pardoning power, the President is amenable only to the dictates of his own conscience, unhampered and uncontrolled by any person or branch of Government.” See id. at 370-71. Under this view, the pardon power is truly an example of “l’etat c’est moi;” while a pardon may be criticized as unjust or ill-advised, it can never be illegal or unconstitutional.

The Pardon Power Contrasted with Impeachment

It may be useful to contrast the pardon power with another power the Constitution vests exclusively in one branch of government: the impeachment power. It is generally accepted that Congress has the exclusive and nonreviewable power to impeach and remove the president, the vice president or any civil officer of the United States. See generally Nixon v. United States, 506 U.S. 224 (1993). Thus, for example, whether the Senate has conducted a constitutionally adequate trial within the meaning of the Impeachment Trial Clause is a nonjusticiable political question. Id. at 236-38.

The finality and non-justiciability of Congress’s impeachment determinations, along with the significant discretion it exercises in determining what constitutes “high crimes and misdemeanors,” occasioned then-Representative Gerald Ford’s famous and much-criticized remark that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. . . .” Some argue that this is an accurate description of how impeachment works. See Michael J. Gerhardt,The Federal Impeachment Process: A Constitutional and Historical Analysis 103 (1996) (“Ford’s observation captures the practical reality of impeachment . . . .”).

As a normative and legal matter, however, Ford was clearly wrong. The Constitution establishes a standard for impeachment and removal (“Treason, Bribery, or other high Crimes and Misdemeanors”), which is textually incompatible, as Professor Rob Natelson has recently observed, with unlimited discretion. The framers specifically rejected a broader formulation, which would have included “maladministration,” precisely on the ground that it would confer too much discretion on Congress and amount to the president holding office “during the pleasure of the Senate,” as James Madison put it. See Charles L. Black, Jr., Impeachment: A Handbook 27-33 (1974).

Thus, while Congress’s impeachment judgments are final, they are not necessarily correct or even defensible. Unlike pardons, specific impeachment decisions can be criticized as legally wrong and unconstitutional. Ford’s observation is therefore perhaps best understood as a parallel to Justice Robert Jackson’s remark about the Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.” In matters of impeachment, Congress is “infallible” only because it is final.

In addition to the constitutional standard, there are significant structural safeguards that limit Congress’s discretion in impeachment matters. First, the initial decision to impeach must be made by the House of Representatives. Even if one believes (reasonably enough) that members “care more” about politics than law, building a solid prima facie case that the constitutional standards have been met is a practical necessity for developing a political consensus in favor of impeachment. Members know they will be accountable to their constituents for a vote to impeach. If impeachment is successful, moreover, the case moves to the Senate, where House managers act as prosecutors in an adversarial proceeding before that body. This creates a strong incentive not to bring cases that are factually or legally weak with regard to whether the accused has committed high crimes or misdemeanors.

As Professor Gerhardt points out, the Constitution provides a number of safeguards “to ensure that Congress will deliberate carefully prior to making any judgments in an impeachment proceeding.” Gerhardt, The Federal Impeachment Process 110. In addition to the House’s role, already noted, in a bifurcated process, these include that the Senate must (1) sit as a court of impeachment “on Oath or Affirmation;” (2) reach a judgment only after conducting a trial; and (3) convict only on the concurrence of two-thirds. The judicial nature of the proceedings is emphasized further when the president is on trial because the chief justice presides. These safeguards help ensure that impeachments do no occur for mere maladministration or policy/political differences. Id. at 111.

In contrast, the pardon power is exercised by a single individual, subject to no constitutional standard, and not required to follow any process at all to ensure careful deliberation. It is not subject to ordinary congressional oversight. There is thus only one constitutional check on the abuse of the pardon power. That check is impeachment.  Continue reading “Pardons, Self-Pardons and Impeachment (Part II)”

More from Professor Tillman on Cruz and Clinton

Professor Tillman responds to separate comments by Professor Rick Hasen and me (for the latter see my prior post) regarding legal issues that might affect the candidacies of Senator Cruz and former Senator Clinton.

Tillman notes that there is a conflict between two principles here: “one, protecting the democratic process from wrongful manipulation by prosecutors and courts, and two, the rule of law, applying the criminal law without fear or favor to all, even against those who are politically connected.” (In Cruz’s case, the issue does not involve criminal law, but there is a similar tension. On the one hand, it might seem desirable to have an authoritative decision on his eligibility while, on the other, there is a significant risk that his candidacy could be unfairly disrupted by lawsuits, decisions of various courts and actions by boards of election.)

Tillman agrees with me that this conflict presents a problem to which there is no easy solution. He does not believe, however, that my somewhat casual suggestion that the voters be allowed to make the decision except in cases where there “is no reasonable dispute” represents an adequate solution to the problem. Given the limited effort I put into designing this “solution,” I am sure he is right.

 

 

 

 

Hey, Did You Hear Ted Cruz Was Born in Canada?

Or maybe he was born in New York, and faked his birth certificate to hide the shame. I’m just saying.

Anyway, Professor Seth Barrett Tillman has a new post which compares the amount of attention given to the question of whether Senator Cruz is a “natural born Citizen” within the meaning of Article II, section 2, cl. 5, of the Constitution (a lot) with that given to certain legal issues surrounding a potential indictment of former Senator/Secretary Hillary Clinton (not much). Personally, I can think of a number of reasons for this disparity, the most obvious of which is that the citizenship issue has been publicly and repeatedly raised by another presidential candidate (I forget his name). If Senator Sanders, for example, were to raise one of Tillman’s legal issues in a debate with Clinton, I bet the legal commentariat would be racing to the blogs to express their views.

Be that as it may, I think we should be leery of prosecutors or courts inserting themselves into a presidential election, whether it involves Cruz or Clinton. Unless the legal issue is one that is beyond any reasonable dispute, the risk of politically motivated actors using lawsuits or prosecutions to disqualify candidates seems too high. As Professor Tillman has remarked in a different blog post focusing on the citizenship issue, “ties should go to the runner,” i.e., close questions should be resolved by letting the voters decide.