Category: Impeachment

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Inherent Contempt and Impeachment

Recently the Good Government Now organization (with which I am loosely affiliated) has been advocating the revival of inherent contempt as a means of compelling executive branch officials to provide information demanded by Congress. As you probably know (if you read this blog), inherent contempt allows either house of Congress to arrest individuals who defy its orders and imprison them until they comply. Under a proposal by my friend and former colleague Mort Rosenberg, the House would adopt a new inherent contempt procedure in which fines, rather than imprisonment, would be the principal sanction to compel executive branch officials to comply with subpoenas and other demands for information.

While I do not object to the use of inherent contempt in the proper circumstances, I have long been skeptical of using it as a means of resolving legislative-executive disputes over information. This is so both for constitutional and practical reasons. The constitutional issues we will get into in more detail in future posts. For now, the important point is that those issues arise primarily in the context of ordinary congressional oversight. The calculus is different in the context of a judicial proceeding such as impeachment. The argument for employing inherent contempt against recalcitrant witnesses, including executive branch officials, in an impeachment proceeding is constitutionally much stronger for reasons I will endeavor to explain in upcoming posts.

The practical problems, on the other hand, are another matter. See Andrew McCanse Wright, Congressional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881, 933 (2104) (“To say the least, it would be impractical and unwise for congressional security forces to attempt to detain executive branch officials and haul them off to the congressional brig, although commentators occasionally call for it.”).  For one thing, there is not actually any “congressional brig,” at least not one suitable for holding anyone for a significant period of time. For another, there is the “specter of interbranch violence,” particularly for detainees that have their own security details. See id. These problems are not ameliorated by the fact that the proceeding involves impeachment rather than oversight.

Arguably, the use of fines could help to address the practical problem. As a general rule, I doubt that Congress has the authority to impose fines as a form of punishment, but I think there may be a way to use them in the context of an impeachment proceeding that would stand up in court. Therefore, if the House is considering formally authorizing an impeachment proceeding, it should seriously consider a provision to authorize the use of inherent contempt, including monetary fines, against those who withhold information from the inquiry. Importantly, however, this authority should be limited to impeachment.

I will lay out the reasons for my position in a series of posts, beginning with some historical background on legislative privilege and contempt.

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Impeachment and Constitutional Deliberation

The House Judiciary Committee has filed its long awaited lawsuit against Don McGahn, seeking declaratory and injunctive relief from the court with respect to McGahn’s refusal to appear before the committee to testify regarding his knowledge of matters described in the report of Special Counsel Robert S. Mueller III. Specifically, the committee is interested in matters such as “how President Trump used his official power to oust Special Counsel Mueller and end his investigation; to force then-Attorney General Jeff Sessions to transgress Department of Justice (DOJ) ethics rules to limit the scope of Mueller’s investigation; to demand that White House staff generate false accounts of the President’s conduct; and to influence witnesses not to cooperate with the investigation.” Complaint ¶ 2. The complaint repeatedly emphasizes that it needs this information in order to decide whether to recommend articles of impeachment against the president. See Complaint ¶¶ 1, 4, 10, 17, 19, 57, 61-62, 64, 95, 97, 100 & 105.

All of this is well and good. As we have discussed, McGahn is an important witness and there is no merit to DOJ’s claim that he is “absolutely immune” from testifying before Congress. The committee’s express invocation of the impeachment power further strengthens its claim for judicial relief and undermines what little persuasive value the OLC opinions on absolute immunity might otherwise have had.

It is important, however, not to conflate the committee’s litigation position and its constitutional responsibility regarding impeachment. The McGahn lawsuit is focused on substantiating specific allegations raised in the Mueller report, namely the obstruction of justice matters discussed in volume 2. See Complaint ¶ 1 (committee “is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel.”).

While the president’s conduct as described in volume 2 of the Mueller report clearly should be an element of any impeachment inquiry, it is questionable whether obstruction of justice alone can carry the weight of impeachment in this case. This is particularly true if one views obstruction as a specific statutory crime, rather than as a more colloquial term for President Trump’s implacable opposition to the Mueller investigation (or, for that matter, any other investigation he associates with the “deep state” or his political opponents).

For one thing, the special counsel declined to reach a conclusion as to whether Trump committed the crime of obstruction. Many believe he would have reached this conclusion had it not been for the OLC opinion prohibiting the indictment of a sitting president, but Mueller himself declined to substantiate this theory and it seems inadvisable to place much reliance on an unprovable hypothetical.

In addition, there are serious legal questions regarding whether the president’s exercise of his Article II powers, such as firing the FBI director or seeking to fire the special counsel, can constitute criminal obstruction. Professor Jack Goldsmith argues that “many of the 10 events outlined in Volume II of the Mueller report could not even theoretically be crimes under the obstruction statutes as they are currently written.” This is a controversial position, but it is not a frivolous one. It is also not an issue likely to be settled in the course of an impeachment proceeding.

Finally, focusing on questions of criminal obstruction requires the committee to evaluate Trump’s state of mind. See Complaint ¶ 66 (“McGahn’s testimony would provide significant evidence of the President’s motivations for his actions.”). I am skeptical, however, that McGahn is going to be able to shed much light on the president’s motives. Other presidents (Nixon and Clinton) have attempted to obstruct legal investigations or proceedings, but they did so only when they felt they had no other choice. Trump’s words and actions in general, and specifically in connection with the Russia probe, appear to be visceral in nature and to have little connection to a rational calculation of the consequences. Perhaps this is a clever strategy on Trump’s part, but I expect McGahn is as perplexed as the rest of us.

This is by no means to suggest that Trump’s conduct is unimpeachable, so to speak. The constitutional standard of high crimes and misdemeanors is quite different than the criminal standard for obstruction of justice. Thus, Goldsmith observes that “[i]n combination with Trump’s other abuses of power over the past two and a half years, I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option.” The point here is that Congress’s task is more complicated than simply evaluating a handful of presidential actions to determine whether they satisfy the elements of criminal obstruction of justice. It must decide how to interpret and apply the constitutional standard of “high crimes and misdemeanors,” which is by design a more discretionary and less determinate function than that performed by a criminal court. See Neal Katyal, Impeachment as Congressional Constitutional Interpretation, 63 Law & Contemp. Problems 169, 175-79 (2000). And it must do so in the context of Trump’s highly unusual behavior in office. Continue reading “Impeachment and Constitutional Deliberation”

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I’ll Take My Grand Jury Materials with a Hint of Impeachment

Last Friday, July 26, the House Judiciary Committee filed an application with the U.S. District Court for the District of Columbia seeking release of certain grand jury materials related to the report and investigation of former Special Counsel Robert S. Mueller III. The committee contends that the Mueller report “provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation.” Application at 1. Accordingly, “the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity– approval of articles of impeachment.” Id. 

Some may view this, from a political perspective, as “impeachment lite” (Twitter wags had a variety of other terms like “impeachment-tinged” and “impeachment-infused”). From a legal perspective, however, I think this is probably good enough, at least for this particular controversy. Here’s why.

The committee’s primary argument is that the court should authorize the release of the grand jury information pursuant to Fed. R. Crim. P. 6(e)(3)(E), which provides “[t]he court may authorize disclosure of a grand jury matter . . . (i) preliminarily to or in connection with a judicial proceeding.” This provision is applicable here, the committee contends, because it is conducting an investigation to determine whether to recommend articles of impeachment with respect to the president. Application at 30-31. It bears emphasis that the committee does not contend this provision applies to congressional investigations outside the context of impeachment, nor would there be any basis for it to do so.

As we have discussed, controlling authority in the D.C. Circuit establishes that an impeachment proceeding qualifies as a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e)(3)(E)(i). Specifically, a Senate impeachment trial is judicial in character and a House impeachment inquiry is therefor preliminary to or in connection with a judicial proceeding for these purposes. Application at 28-29.

To be sure, there is no Supreme Court authority on point, and it is possible that the Court would conclude that the term “judicial proceeding” refers to a proceeding conducted by the judiciary, not merely a proceeding that is judicial in character. (Of course, a Senate impeachment trial of the president is presided over by the chief justice, somewhat blurring this distinction.). However, if the Court were to reject the committee’s position in this respect, I strongly suspect that it would accept its alternative argument (currently foreclosed in the D.C. Circuit) that a federal court retains inherent authority to disclose grand jury materials under these circumstances. See Application at 40-41. I do not believe the Supreme Court would hold that there is no legal mechanism by which grand jury material relevant to impeachment can be transmitted to the House (or Senate), a conclusion that would be in considerable tension with the Constitution’s preference (at least) for impeachment rather than indictment of a sitting president. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2158 (1998) (citing with approval President Nixon’s argument that “[w]hatever the grand jury may claim about a President, its only possible proper recourse is to refer such facts, with the consent of the court, to the House and leave the conclusions of criminality to the body which is constitutionally empowered to make them”); see also id. at 2156 (“any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress”).

The more difficult issue for the committee is establishing that disclosure of grand jury materials in these circumstances would be for purposes of impeachment, rather than simply for general oversight. As I have written elsewhere, the committee would clearly be in a stronger position if the House had formally initiated an impeachment inquiry. That being said, nothing in the language of Rule 6(e)(3)(E)(i) expressly requires the formal initiation of any particular proceeding and to the contrary the rule suggests that the disclosure may occur before (“preliminarily to”) such initiation.

Here it is worth noting that while it is the Senate impeachment trial that has been held to be a “judicial proceeding” for these purposes, there is also a strong argument that the House’s exercise of its power of impeachment likewise constitutes a judicial proceeding. Certainly the House’s power is judicial, rather than legislative, in nature. It is possible, however, to argue that the House’s proceeding are less judicial than the Senate’s because the latter performs the adjudicative function of a criminal court while the former performs the investigative function of a grand jury. In any event, it probably makes little difference to the outcome of the committee’s application because in either case the committee must persuade the court that its current investigation is sufficiently tied to the impeachment process.

To meet this burden, the committee points to the following: (1) impeachment falls within the committee’s jurisdiction and articles of impeachment (including in the current congress H. Res. 13, a resolution calling for the impeachment of President Trump) are invariably referred to the committee; (2) the committee has repeatedly indicated in various ways, such as statements by the chairman and a contempt report adopted by vote fo the committee, that it is assessing whether to recommend articles of impeachment with respect to the president; (3) the House Rules Committee, in its report accompanying H. Res. 430, similarly explained that the committee was considering whether to recommend such articles of impeachment; and (4) the full House voted to adopt H. Res. 430, which confirms the committee’s investigatory authority with regard to the Mueller report and related matters and expressly authorizes it to continue its efforts to obtain information, including by filing an application for grand jury material pursuant to Fed. R. Crim. P. 6(e)(3)(E). This authorization by the House implicitly recognizes that the committee is seeking grand jury information for impeachment purposes since, as mentioned previously, there is no other basis upon which the committee could avail itself of this provision.

While there are no guarantees in litigation, in my view this is a pretty strong case. Given the language of the rule and the past flexible practice in the context of impeachment, the committee should prevail in its application. Whatever the outcome, though, it will be interesting to see how the Justice Department responds.

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The Time Has Come: A Proposed Article of Impeachment Against Donald John Trump

The following was drafted in February and therefore does not reflect any information obtained from the Mueller report (which I have to admit I have not yet read in its entirety). There may well be additions and modifications that suggest themselves from that report (one area in particular would be to add specifics regarding pardon discussions with potential witnesses), but at the moment I am unaware of anything that convinces me the thrust of any impeachment effort should be fundamentally reoriented from what is proposed below.

It should be noted that this is a single article of impeachment. Perhaps needless to say, this is not because the scope of the president’s misconduct has been so narrow that only one article could be substantiated. To the contrary, as Professor Keith Whittington has aptly observed, the range of the president’s faults and misbehavior is so breathtakingly wide that it is a challenge to present them as part of a larger picture (or to choose among the many unflattering pictures that might be drawn).

It should also be noted that this article does not charge the president with committing any federal crimes. Consistent with my understanding of the nature of impeachment, the article focuses on conduct that is inherently wrongful or in the most charitable light reflects gross negligence that is for all intents and purposes indistinguishable from such wrongful conduct, but it does not attempt to demonstrate that this conduct satisfies the elements of any statutory offense.

Finally, the article has only the barest reference to pre-presidential conduct. This is not because pre-presidential conduct is necessarily irrelevant to an impeachment proceeding or even that an article of impeachment could not in some circumstances be wholly based on pre-presidential conduct. The proper relationship of impeachment to conduct that precedes the taking of the oath and the assumption of office, however, is controversial, particularly with regard to matters widely known by the voters at the time of the election. It is in my judgment unnecessary and distracting to focus on them here.

Any feedback of the constructive variety would be deeply appreciated.

IN THE HOUSE OF REPRESENTATIVES

February __, 2019

______________________________ submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION

 Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

Resolved, That Donald John Trump, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

ARTICLE OF IMPEACHMENT

In his conduct while President of the United States, Donald J. Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has engaged in conduct that resulted in misuse and abuse of his high office, and, for self-protection or other reasons of personal interest, has (1) impaired and impeded the due and proper administration of justice and the conduct of lawful inquiries; and (2) undermined confidence in and the authority of the legislative, executive and judicial branches of the United States, in that:

Donald J. Trump sought to hinder and impede lawful investigations by federal authorities into the conduct of individuals employed by or associated with his 2016 presidential campaign, including General Michael Flynn, by improperly seeking to influence and intimidate the then-Director of the Federal Bureau of Investigation, James Comey, with respect to such investigations.

Donald J. Trump, having concluded that James Comey lacked sufficient personal loyalty and could not be pressured to conduct the aforementioned investigations in a manner consistent with his personal interests and wishes, terminated James Comey as Director of the FBI.

In an effort to undermine the credibility of federal investigations involving his 2016 presidential campaign and/or his business or personal affairs, Donald J. Trump has engaged in a pattern of publicly disparaging, defaming and demeaning officials serving in the executive branch under his own administration, including Special Counsel Robert Mueller, Deputy Attorney General Rod Rosenstein and former Attorney General Jeff Sessions. He has publicly and routinely attacked the integrity of numerous officials at the Department of Justice, the Federal Bureau of Investigation and the Special Counsel’s office, including both career public servants and officers of the United States he himself appointed with the advice and consent of the United States Senate. He has publicly and repeatedly referred to Special Counsel Mueller’s investigation of Russian interference in the 2016 presidential election as a “hoax” and a “witch hunt,” even though this inquiry was lawfully commenced by the directive of the Deputy Attorney General, whom he appointed with the advice and consent of the United States Senate. These statements had the purpose and effect of undermining public confidence in law enforcement agencies and inquiries that might threaten his personal interests.

Donald J. Trump repeatedly and publicly criticized his own Attorney General, Jeff Sessions, for making decisions in accordance with the Attorney General’s constitutional oath and ethical obligations, rather than with the personal and political interests of Donald J. Trump. For example, he blamed Attorney General Sessions for recusing himself from the investigation into Russian interference in the 2016 presidential election, even though this recusal was in accordance with the advice of Department of Justice ethics officials. Thus, he tweeted on June 5, 2018: “The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was going to recuse himself . . . I would quickly have picked someone else.”

Donald J. Trump further has sought to undermine the credibility of federal law enforcement by openly politicizing the activities of the Department of Justice. He has complained about the Department’s failure to investigate his political adversaries by, for example, tweeting on July 25, 2017: “Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!” He has also complained about the Department’s prosecution of his political allies. Following federal indictments of two incumbent Members of Congress, he tweeted on September 3, 2018: “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff . . . . . .”

Donald J. Trump, having concluded that Jeff Sessions could not be pressured or intimidated to subordinate his constitutional oath and ethical obligations to Donald J. Trump’s personal and political interests, asked for and received his resignation immediately following the 2018 congressional elections. Even after Sessions’s departure from office, Donald J. Trump continued to blame him for the investigation into Russian election interference, tweeting on December 16, 2018 that “Jeff Sessions should be ashamed of himself for allowing this total HOAX to get started in the first place!”

Donald J. Trump has impaired and impeded the due and proper administration of justice by the reckless and impulsive use and threatened use of his constitutional power to grant reprieves and pardons for offenses against the United States. He has granted clemency based on personal and political favoritism, without consulting the Department of Justice or considering the effect of his actions on the administration of justice. He has boasted about the breadth of his pardon power, even tweeting on June 24, 2018: “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!” The purpose and effect of these actions and statements is to send the message that loyalty to Donald J. Trump will be rewarded, to undermine respect for lawful inquiries and judicial proceedings, and to encourage defiance of such inquiries and proceedings as Donald J. Trump regards as “witch hunts” or otherwise disfavors.

Donald J. Trump’s most egregious abuse of the pardon power occurred on August 25, 2017, when he granted a pardon to Joe Arpaio, who had been held in criminal contempt of a federal court order. The order of contempt had been issued less than one month earlier, on July 31, 2017, when a federal judge held that Arpaio had willfully violated a prior federal court order, issued by a different judge, requiring then-Maricopa to cease racially profiling Latinos and detaining them in violation of their constitutional rights. Donald J. Trump pardoned Arpaio without consulting the Department of Justice, without permitting the judicial process to run its normal course, and without considering the importance of the contempt power to protecting the integrity of the judicial system and the constitutional rights of Americans. In so doing Donald J. Trump favored a loyal political ally over the rule of law and the independence of the judicial branch.

Consistent with this disregard for the federal judiciary, Donald J. Trump has intemperately and improperly attacked federal judges. For example, on February 4, 2017, the day after U.S. District Court Judge James Robart issued a temporary injunction against the executive order known as the “travel ban,” Donald J. Trump tweeted: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” This statement was not an isolated incident, but is consistent with language Donald J. Trump has employed toward the judiciary on other occasions both during his presidential campaign and his presidency. By employing such rhetoric, unmindful of the high duties of his office and the dignity and proprieties thereof, Donald J. Trump has attempted to impair and destroy the regard and respect of the people of the United States for the federal judiciary and thereby to deprive its judgments of legitimacy to the extent they conflict with his personal and political interests.

Donald J. Trump has also repeatedly sought to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States and individual members thereof. He has particularly sought to excite public odium and resentment toward members of his own party who have criticized him or his conduct in office and who have thereby failed, in his mind, to show the proper loyalty. In so doing he has disregarded the status of Congress has a separate and independent branch of government, and he has sought to diminish and undermine the legislative power of inquiry and oversight.

Donald J. Trump has caused or permitted false, misleading or incomplete information to be provided to the Congress of the United States. During 2017 and 2018, congressional committees, including the House Permanent Select Committee on Intelligence, conducted investigations of Russian interference in the 2016 presidential election. Agents and associates of Donald J. Trump provided false, misleading or incomplete information in connection with these investigations. For example, on or about April 27, 2018, the House Permanent Select Committee on Intelligence released its report and findings regarding the election interference investigation. Although Donald J. Trump tweeted about the report and findings, he did not inform the committee that they were based in part on false, misleading or incomplete information, including testimony of Michael Cohen, Donald J. Trump’s personal lawyer, which testimony Donald J. Trump knew or should have known was false, misleading or incomplete. Donald J. Trump’s failure to take reasonable steps to ensure that congressional committee received accurate and complete information regarding the activities of his agents, associates and campaign impaired and impeded the conduct of lawful inquiries of the legislative branch.

In all of this, Donald John Trump has acted in a manner so as to bring disrepute on the Presidency and engaged in a pattern of conduct contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office.

 

 

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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.”

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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.

 

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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.”)

 

 

 

 

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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.

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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.