Resolved: The President’s Conduct with respect to the Special Counsel’s Investigation was Consistent with the Take Care Clause and his Constitutional Oath

Last year Professor Andy Wright published an article arguing that presidential interference with criminal investigations conducted by the Department of Justice may violate the president’s constitutional duties under Article II even if it does not constitute obstruction of justice or any other criminal offense established under federal statutory law. See Andrew M. Wright, The Take Care Clause, Justice Department Independence, and White House Control, 121 W. Va. L. Rev. 100 (2018). Specifically, he points to the president’s obligation to “take Care that the Laws be faithfully executed,” U.S. const. art. II, § 3, and his oath to “faithfully execute the Office of President of the United States, and [] to the best of my Ability, preserve, protect and defend the Constitution of the United States,” U.S. const. art. II, § 1, cl. 8. Wright contends that “if the President interferes with the investigative or prosecutorial function in bad faith, he can violate the Take Care Clause and his Oath of Office,” even if the president’s actions violate no criminal law.

At some level of generality, it is difficult to imagine anyone disagreeing with this proposition. That is to say, no one would argue the president satisfies his obligations under the Take Care and Oath Clauses simply by not committing a crime. At least I don’t think anyone would argue that.

More controversially, Professor Wright argues that the president’s constitutional obligations require prophylactic measures to separate the Justice Department from the White House and thereby “protect the integrity of . . . criminal investigation[s] from political interference, including interference by the President himself.” 121 W. Va. L. Rev. at 105. Specifically, he points to policies adopted by every administration since President Ford that limit contacts between the White House and the Justice Department by requiring most such contacts be channeled through the offices of White House counsel and the attorney general. 121 W. Va. L. Rev. at 141-50. These policies, and related practices such as the refusal of White Houses to comment on open investigations and pending cases, are not merely matters of etiquette and “norms,” Wright contends, but flow from the Take Care and Oath clauses.

Whether or not one embraces the specifics of Wright’s thesis, his article suggests an important line of questioning for current and former Trump administration officials, particularly from the White House counsel’s office and the top levels of the Justice Department. For example, as Wright points out, in the first week of the Trump administration White House Counsel Don McGahn issued a contacts policy memorandum designed “to ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political interference.” 121 W. Va. L. Rev. at 149. Did the president approve this policy? Was he aware of its contents? Was he ever advised that actions he proposed or directed would violate the policy? Was the president’s conduct as described in volume II of the Mueller report consistent with the letter or spirit of this policy?

Apart from Trump administration officials (and members of the president’s legal team), is there anyone with actual or purported constitutional law expertise who would defend the proposition in the title of this blog post? There are notable scholars, such Professors Jack Goldsmith and Josh Blackman, who have advanced strong arguments that the president’s conduct in connection with the Mueller investigation (at least insofar as it involved the exercise of presidential powers) did not violate the criminal obstruction laws. But neither contends this conduct was consistent with the president’s obligations under the Take Care and Oath clauses.

Here is a political stunt that might serve a useful and clarifying purpose. The chair of the House Judiciary committee and the ranking member of the Senate Judiciary committee should write their Republican counterparts to propose a hearing devoted to a panel of legal experts who would defend the proposition that the president’s conduct has been consistent with the Take Care and Oath clauses. Chairman Graham and Ranking Member Collins could be asked to propose a list of potential witnesses to appear at such a hearing.

We can’t have a debate unless someone is prepared to defend this proposition.

A Better Way to Enforce Congressional Subpoenas?

In the course of writing the piece on enforcement of congressional subpoenas that I mentioned yesterday, I was looking for a copy of the House GOP white paper “A Better Way: Our Vision for a Confident America (The Constitution),” which was issued on June 16, 2016. At this time, of course, the Republican controlled Congress had experienced years of frustration in attempting to get information from the Obama administration (and, one has to imagine, was anticipating more of the same in a Hillary Clinton administration). As it turns out, finding a copy of this document online is more difficult than one would expect. Fortunately, I have located a hard copy in my files and post a link here for anyone who is interested (you’re welcome).

Among the proposals suggested by House Republicans in this paper was “expedited access to federal courts to enforce subpoenas” through legislation “requiring the executive branch to comply with deadlines in congressional subpoenas” and “providing a process for expedited court review when the House or Senate decides to bring litigation to enforce a committee subpoena, including expedited review by a three-judge panel at the district court level with immediate appeal to the Supreme Court.” These ideas would be incorporated into H.R. 4010, introduced by Rep. Darrell Issa, which passed the House in 2017 during the first session of the 115th congress but never received a vote in the Senate.

The white paper made two additional legislative proposals that did not make it into Issa’s legislation (at least in its final form). The first was to “clarify[] the nondiscretionary duty of a U.S. attorney to present a certified order for criminal contempt to a grand jury.” The second was to “statutorily eliminat[e] any privileges asserted by the executive branch when used against a congressional request for information.” Both of these would have been vigorously opposed by OLC and the executive branch on constitutional as well as policy grounds.

 

Just Security Piece on Enforcement of Congressional Subpoenas

As I have mentioned before, I have proposed a reform to House rules that would facilitate enforcement of committee subpoenas to the executive branch. Just Security has now published this piece in which I explain the justification for the rule and how it would work using the example of the House Judiciary committee’s efforts to obtain the Mueller report and underlying documents.

Can BLAG Authorize a Subpoena Enforcement Action?

According to this CNN report, the House Ways & Means committee, which had previously requested President Trump’s tax returns pursuant to 26 U.S.C. § 6103(f), has now issued subpoenas to the Treasury Department and IRS for the same information. Although the committee believes that it can sue to enforce the statutory duty to provide information under § 6103(f), it was advised by House counsel that issuing subpoenas would bolster its case in court.

There are interesting questions about the scope of the committee’s authority under § 6103(f), which we have previously discussed, and whether the issuance of subpoenas will help or hurt the committee’s chances in court. However, what I want to highlight now is an issue that may be more consequential than these. According to CNN, the speaker is considering whether to authorize a civil action to enforce the subpoenas (and, presumably, the committee’s statutory right of access) through the Bipartisan Legal Advisory Group, rather than a vote of the House. Back in February, I raised the possibility that language added to House Rule II(8)(B) in the 114th congress could be used in this fashion.

The new language in question provides that “[u]nless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.” There are two potential problems with using this language to allow BLAG to authorize a lawsuit by the Ways & Means committee. The first is that the language does not explicitly authorize BLAG to initiate litigation on the House’s behalf. The purpose of the rule change was “to conform to current practice.” As explained in my February post, this referred to the practice of BLAG intervening in existing litigation to defend the constitutionality of statutes (in particular, the Defense of Marriage Act) the Justice Department refused to defend. There was not, and as far as I know has never been, a practice of BLAG initiating litigation.

There is a second problem with respect to litigation to enforce subpoenas. House Rule XI(2)(m)(3)(C) provides “[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House.” This provision seems to override Rule II(8)(B), which only applies “[u]nless otherwise provided by the House.” One would have to argue, somewhat circularly, that Rule II(8)(B) allows BLAG to authorize or direct subpoena enforcement on behalf of the House, in order to prevent Rule XI(2)(m)(3)(C) from overriding Rule II(8)(B). I am somewhat skeptical that the parliamentarians would agree with this argument, but . . . (this is where I would insert the shruggie emoji if we were on Twitter).

In any event, if BLAG claims the authority to authorize subpoena enforcement actions, this could improve the efficiency of the “subpoena cannon” considerably. On the other hand, it will almost certainly lead the minority to challenge both BLAG’s interpretation of the rules and its decisions to authorize particular actions on the House floor.

Trump v. Deutsche Bank and the Financial Right to Privacy Act

In Trump v. Deutsche Bank et al. (filed in the Southern District of New York), President Trump, in his personal capacity, and various of his companies have again filed to suit to block congressional subpoenas. This time the subpoenas in question were issued by two House committees (Intelligence and Financial Services) to two banks (Deutsche Bank and Capital One) seeking a wide range of financial records relating to Trump and his businesses. The case is similar to the one Trump brought against his accounting firm, except this time he has not named any members of Congress or committees as defendants. The reason for is likely tactical; by having only the banks (which are disinterested stakeholders) as defendants it may be easier to get preliminary relief from the court.

Trump’s primary objection to the subpoenas is the same as in the prior case. He contends that the subpoenas lack a legitimate legislative purpose. In addition, however, he asserts that the committees’ attempts to obtain these “account records violate the statutory requirements that apply to the federal government under the Right to Financial Privacy Act.” These are procedural requirements that apply to efforts by “any government authority” to obtain access to financial records. 12 U.S.C. § 3402. 

This is not the first time someone has raised RFPA objections to a congressional subpoena. In 2001, counsel for Staten Island Bank and Trust raised such objections to a subpoena from the House Committee on Government Reform. In a letter dated October 15, 2001, committee counsel explained that congressional investigations were not implicated by the statute because it was clearly designed to apply only to law enforcement investigations:

Enforcing laws is the province of the executive branch, at which the statute is plainly directed. Congress does, however, have a Constitutional obligation to conduct oversight and legislative fact-finding investigations.  Its power to compel document production in such investigations is a well-established necessity in order to carry out its Constitutional function.  For one to accept your construction of the statute, he would have to believe that by enacting the Financial Right to Privacy Act, Congress intended to strip itself of the power to compel the production of bank records in the conduct of a fact-finding investigation because it is not relevant to a law enforcement inquiry.  Such an interpretation would be an absurdity, and nothing in the legislative history of the Act supports it.

Justice Undone: Clemency Decisions in the Clinton White House, Second Report of the H. Comm. on Gov. Reform, H.R. Rep. 107-454, vol. 3, at 2536 (May 14, 2002). The counsel for the bank accepted the committee’s position and provided all of the responsive records. Id. at 2560.

So we will see if the president’s lawyers fare any better.

 

Mort Rosenberg on The Road to Effective Enforcement of House Committee Subpoenas

Mort Rosenberg notes that his proposal for reviving the House’s inherent contempt power goes beyond just substituting monetary fines for incarceration as the primary means of coercing compliance with congressional subpoenas. He also recommends that the House consider appointing outside counsel to prosecute contemnors. He argues as follows:

There is . . . sound support for direct appointment by the Speaker of a private attorney to conduct such prosecutions in law, history and practice. As I have indicated, the Supreme Court in Anderson v.Dunn (1821) upheld the constitutionality of the use of inherent contempt by the House and based that ruling on the analogy to its recognition of the inherent power of judges to protect their judicial integrity and authority from attack by means of contempt citations. It particularly noted that no statutory authorization was necessary because such self-protective actions were critical to the maintenance of the judiciary’s institutional independence. However, the Anderson Court’s  qualification that any imposition of jail time could not exceed the session in which the contempt occurred ultimately led to the legislative decision in 1857 to provide the alternative possibility of a criminal contempt prosecution for failures to comply with committee subpoenas. The legislative history of that enactment makes it clear that it was to apply to executive branch officials. Prosecutions under that law were to be conducted by United States Attorneys. What has been currently and conveniently overlooked by DOJ is that at that time United States Attorneys were independent contract employees; there was no Justice Department until 1870.  It must be presumed that Congress was aware of this and was simply authorizing the Speaker to  utilize those non-governmental contract attorneys in the same manner that the Andersoncourt recognized that judges could appoint private prosecutors to vindicate the integrity of their judicial responsibilities, an understanding that the Supreme Court clearly articulated in its 1987 ruling in Young v. U.S. ex re Louis Vuitton upholding court appointment of a private sector attorney to prosecute its contempt citation, which was reiterated the next year in its ruling in Morrison v. Olson. The most recent recognition of this inherent institutional authority was in the 9th Circuit’s October 2018 en banc ruling in U.S. v. Arpaio. These consistent judicial rulings note that this inherent institutional self-protective authority needs no statutory basis and is so constitutionally indispensable that it may not be obstructed by either Congress or the Executive or abandoned by the Judiciary. The indisputable legal analogy to each House’s recognized self-protective authority is evident.

Finally, the appointment of two private prosecutors to assist in the Senate’s Teapot Dome investigation arguably provides further corroboration. The Senate’s inquiry had stalled and after Harding died and was succeeded by Coolidge, Attorney General Daugherty remained in office despite being suspected of deep complicity in the oil lease scandal. The Senate Committee, with the concurrence of Coolidge, agreed to a joint resolution for the appointment of two private counsels to assist in the Senate’s investigation of the lawfulness of the oil eases and to recapture the lost assets. The joint resolution specifically prohibited any DOJ role in their investigation or litigation actions. When Daugherty was forced to resign and a new Attorney General was confirmed a Senate resolution was passed directing a Senate committee investigation of corruption in DOJ during Daugherty’s leadership. The new AG retained the two private counsel as special assistants who brought the inherent contempt citation against Daugherty’s brother that resulted in the Supreme Court’s landmark ruling in McGrain v Daugherty (1927), which established Congress’s current broad investigatory powers, and U.S. v. Sinclair (1929) allowing a criminal citation for refusing to answer committee questions on the ground that he was the subject of a pending civil action regarding the oil leases.

The long standing judicial recognition of the analogous self-protective authorities of the Houses of Congress and judges should give rise to consideration of such a prosecutorial appointment by House authorization upon a vote of a criminal contempt citation by the House. There are plausible grounds for success and the Supreme Court’s recognition of the legitimacy of concurrent or seriatum inherent and criminal contempt citations provides additional constitutional support. The availability of both inherent and criminal processes would revive the historic leverage that made the threat of congressional subpoena enforcement so formidable and successful.

Mort’s full piece may be read here.

 

Recalibrating the “Subpoena Cannon”

(I know some artillery expert from Quora is going to correct my title but you get the idea).

To continue the martial metaphors, the House’s investigatory offensive against the Trump administration is meeting stiff resistance on all fronts or, one might say, running into a stone wall. The administration is refusing to cooperate with any oversight or investigation it considers to be hostile or partisan (so, basically all of them). This noncooperation can take the form of refusing to comply with document requests or subpoenas outright, simply ignoring them, delaying a final response (as in the case of the Ways & Means committee request to the treasury secretary for the Trump tax returns), placing conditions on compliance (as where the White House is refusing to allow witnesses to testify at congressional depositions unless a representative from the counsel’s office is also allowed to attend), instructing or encouraging former executive officials or others not to comply with congressional demands (as the administration apparently plans to do with respect to the Judiciary committee subpoena to former White House counsel Don McGahn), and even bringing legal action to prevent third parties from providing information to Congress (as discussed in my last post).

The situation has given rise to much handwringing in Congress, where House Democrats are predictably characterizing the administration’s actions as “massive, unprecedented obstruction.” The frustration is entirely understandable, but I agree with Andy Wright that it is a bit overwrought to describe the situation as a “constitutional crisis,” particularly at this early stage. The basic problems are ones faced by Congress in every administration, even though the scope of the investigations and sheer number of information disputes is unusual. Moreover, while it may be accurate to describe the administration as engaged in unprecedented stonewalling, it should also be remembered that the Mueller report provides Congress with an exceptional degree of visibility into the areas of the administration about which it is most concerned.

It will come as no surprise to readers of this blog that the House faces a difficult set of challenges in responding to the administration’s recalcitrance because there is no clearly established mechanism for enforcing congressional subpoenas against the executive branch. If an executive branch official refuses to testify or produce documents based on the assertion of executive privilege at the direction of the president, the Justice Department has long maintained that it will not (and constitutionally may not) prosecute the official for contempt of Congress. See, e.g.,  Response to Congressional Requests for Information Regarding Decisions made Under the Independent Counsel Act, 10 OLC 68, 85 (Apr. 28, 1986). Thus, while a House committee may vote to hold this official in contempt and report the contempt to the full House, which in turn may adopt a resolution referring the matter to the U.S. attorney pursuant to 2 U.S.C. § 194, the U.S. attorney will not present the matter to a grand jury and thus the House’s action will be largely symbolic.

It should be noted, however, that this calculus is arguably somewhat different in the case of a former executive branch official. While it is clear that the executive branch would contend that a former official should obey the president’s instructions as to the assertion of executive privilege, and it is highly likely that it would employ similar reasoning to avoid presenting any contempt citation to a grand jury, there is at least some possibility that a future administration might reach a different conclusion, placing the former official in legal jeopardy. At the very least, the former official might worry that having a formal citation of contempt by the House on the record might generate legal expenses or other collateral consequences down the road.

With criminal contempt largely useless, then, the House is considering other options, including inherent contempt. Again, as readers well know, this is the process by which the House (or Senate) can send the Sergeant at Arms to take a recalcitrant witness into custody, bring him before the bar of the house to explain his refusal to testify, and remand him to custody until he changes his mind. Although members of Congress are starting to make noises about reviving this process (something that happens periodically whenever there is divided government), these threats are not very credible in light of the fact that the House has not used it in about a century.

To solve that problem, the estimable Mort Rosenberg has proposed a House rule that would use fines, rather than arrest and detention, as the primary means of forcing executive branch officials to comply with congressional subpoenas. Judiciary committee chairman Nadler has apparently raised this as a way “to put teeth in his party’s numerous investigative inquiries, many of which Trump officials are stonewalling or simply ignoring.”

Not surprisingly, the Justice Department has suggested that it would be unconstitutional to employ inherent contempt against executive branch officials in situations where (it claims) separation of powers principles prohibit the use of criminal contempt. See 10 OLC at 86. There are also obvious practical problems that would be involved with attempting to detain an executive official. See id. (“it seems most unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege”). The House’s “cannon” is, after all, only metaphorical, and the executive branch has the Sergeant at Arms and the Capitol Police pretty well out-gunned. Imposing fines instead of imprisonment might mitigate, or at least postpone, this problem, but if the House wanted to have this option available it should have included it in the rules package that was adopted at the beginning of the congress.

Another suggestion is that the House could use political remedies, such as the appropriations process, to punish officials or agencies that refuse to comply with congressional demands for information. Professor Josh Chafetz is a big proponent of this technique. It seems to me that this can be effective when the resistance to congressional demands is coming from the agency level, but it is much harder to do when it is coming from the president (and harder still with this president). To the extent the House has leverage in the appropriations process vis a vis the Senate and the president, it is likely to use it for higher priority items than winning disputes over information access. Put another way, I don’t see the House shutting down the government to get an unredacted copy of the Mueller report.

This leaves what is most commonly thought of as the House’s best legal remedy, a civil action seeking declaratory or injunctive relief to enforce its right to obtain information. Most commonly, this would take the form of an action to enforce a subpoena, but other actions are also possible. For example, the Ways & Means committee could bring suit to enforce its statutory rights to obtain tax return information under 26 U.S.C. § 6103(f). Note that such an action would be analogous to an action to enforce congressional rights to information under 5 U.S.C. § 2954 (commonly known as the Rule of Seven), which is at issue in the case of Cummings v. Murphy currently pending in the D.C. Circuit (though likely presenting a stronger case for congressional standing than Cummings if the committee’s action were authorized by House resolution).

Civil enforcement of subpoenas presents its own set of challenges, namely (1) the absence of any clearly defined process for bringing such actions and unsettled legal issues of justiciability; (2) the fact that courts do not like to be in the middle of political disputes between the legislative and executive branches; and (3) the length of time that it would take to obtain a final enforceable court order, particularly because even if the House prevails at the district court level there will be inevitable appeals to the D.C. Circuit and the Supreme Court. Some of these problems could have been mitigated had the House adopted a brilliant proposed rule (still my blog) on civil enforcement of subpoenas, but alas it failed to do so. Nevertheless, civil enforcement remains the most promising avenue for legal vindication of the House’s constitutional rights. Continue reading “Recalibrating the “Subpoena Cannon””

Trump v. Cummings May Not Be a Slam Dunk for Congress

 

See update below:

On Monday Donald J. Trump (in his personal capacity) and several of his businesses sued Elijah Cummings (chair of the House Committee on Oversight and Reform), the committee’s chief counsel, and Mazars, an accounting firm that had provided services to Trump and his companies. The suit aims to prevent Mazars from complying with a committee subpoena seeking financial statements and similar records related to Trump and his business activities.

Many immediately dismissed this as a nuisance suit designed solely to delay the committee’s investigation. To be honest, this was my first reaction as well. Upon closer inspection, while I still think Trump will lose, the case is somewhat stronger than expected.

While there may well be issues I have not considered, I see the case unfolding in three stages. First, there is the question whether the suit is barred by the Speech or Debate Clause. The answer is yes as to the congressional defendants, but no as to the third party accounting firm. Although the court cannot grant relief against the congressional defendants, it can enjoin Mazars from complying with the congressional subpoena without offending the Speech or Debate Clause. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 n. 14 (1975) (suggesting a court may inquire into the validity of a subpoena directed to a third party even though a subpoena recipient cannot bring a challenge directly against Congress itself); id. at 516 (“The Speech or Debate Clause cannot be used to avoid meaningful review of constitutional objections to a subpoena simply because the subpoena is served on a third party.”) (Marshall, J., concurring); United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977) (relying on Justice Marshall’s concurrence in Eastland for the proposition that “the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party.”). Nor should it matter if the court dismisses the congressional defendants form the case; indeed, Chairman Cummings may want to remain a party so that he can defend the validity of the subpoena.

The second question is whether Trump has asserted a facially valid objection to the subpoena. In my view, a third party challenge to a congressional subpoena must assert a constitutional privilege or some other constitutionally protected right. Here Trump has asserted neither a constitutional privilege nor a statutory/common law privilege (he cites the duty of accounting firms to maintain confidentiality but stops short of claiming, at least as I read the complaint, a legally cognizable privilege).

Instead, Trump claims that the subpoena is invalid because it lacks a legitimate legislative purpose. This is an objection that can be made by the subpoena recipient, but the absence of such purpose does not violate any constitutionally protected right of a third party who may be inconvenienced by or simply opposed to the congressional investigation. Trump relies on the aforementioned footnote 14 in Eastland for the proposition that a third party can challenge the legitimate legislative purpose of a subpoena, but the Court’s reference there was in the context of a First Amendment challenge to a subpoena. I would not read it as allowing a challenge to the legislative purpose by a third party where that purpose was not relevant to an asserted constitutional privilege. Nonetheless, the Eastland footnote is ambiguous on this point and one cannot rule out the possibility a court could agree with Trump’s interpretation.

If a court is willing to scrutinize the legislative purpose here, that would bring us to the third question in the case. Is there a legitimate legislative purpose for the subpoena at issue? The immediate purpose of the subpoena, of course, is to obtain evidence to support allegations by former Trump lawyer Michael Cohen that Trump engaged in dishonest business practices (such as overstating or understating his net worth) in violation of federal law. But what legislative purpose is served by such information?

There are two arguments I can think of in support of Congress’s interest in obtaining the information in question. One would be that the evidence is potentially relevant to impeachment. This, however, is a weak argument. Even if sleazy and illegal business conduct that precedes the president’s time in office is a basis for impeachment, there is no impeachment inquiry in the House and the oversight committee would not have jurisdiction over such an inquiry anyway.

The stronger argument would be that the information is potentially relevant to matters on which legislation may be had. Because Congress’s authority to legislate is broad, and the courts are deferential to congressional judgments about what information may be needed for legislative purposes, this is normally a fairly easy standard to meet. It would probably be enough if the committee had jurisdiction over the federal laws Trump is alleged to have violated. However, it likely does not.

The committee does have broad jurisdiction over matters relating to federal government personnel and agency management and operations generally. Presumably the committee will be able to identify some link between the matters it is investigating and that jurisdiction, but let’s say that it doesn’t jump off the page. And, as Trump’s lawyers can be expected to stress repeatedly, the Supreme Court  has said “[t]here is no congressional power to expose for the sake of exposure.” Watkins v. United States, 354 U.S. 178, 200 (1957).

In short, I think the committee probably wins this case at stage two. If it gets to stage three, the committee still probably has the edge, but it is not a slam dunk.

The good news is that even if the committee were to lose, it should not be on a ground that would compromise Congress’s ability to get information it truly needs. Moreover, by bringing this matter to court, Trump may have undercut arguments that his administration will want to make in the future against judicial involvement in enforcement of congressional subpoenas. This case therefore may inadvertently assist Congress’s forthcoming efforts to bring civil enforcement actions to secure compliance with its subpoenas and demands for information.

Update: Margaret Taylor (@MargLTaylor) points out that Chairman Cummings described the ostensible purpose of the Mazars subpoena in an April 12, 2019 memorandum to committee members. The memo states the committee “has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.”

The first claim, that the committee is looking into potential illegal conduct by the president, has the advantage of reflecting the actual purpose of the subpoena. On the other hand, it is not true (in my judgment) that the House or the committee has the authority to look into illegality by President Trump for its own sake, particularly with regard to his activities prior to taking office.

The other claims may strike the court as more pretextual, but they are probably close enough for government work. The House undoubtedly has the authority to investigate financial conflicts of interest and potential emoluments violations by the president. It is also plausible, if less than completely clear, that such an inquiry would fall within the committee’s general good government jurisdiction. Whether the committee is actually pursuing such an inquiry, and whether the subpoena to Mazars can reasonably be seen as a first step in pursuing that inquiry, may be more debatable, however.

To me the strongest claim of a legitimate legislative purpose is the last one. If Trump was falsifying his financial statements as a private businessman, it stands to reason that he might also have done so as public official. This seems like a legitimate reason to follow up on Michael Cohen’s allegations of falsified statements. It might not be the committee’s actual reason, but the courts are not suppose to probe the actual motives of members in evaluating legitimate legislative purpose.

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.

 

 

Local Rule 57.7 regarding Pretrial Publicity and the Release of the Mueller Report

The Justice Department has filed this “Government’s Notice Regarding Report of the Special Counsel” in the pending criminal case against Roger Stone.  The notice informs Judge Amy Berman Jackson that among the redactions to the Mueller report are “redactions made in consideration of Local Rule 57.7(c) and the Court’s order so that the public release of the Special Counsel’s report as redacted does not pose either a ‘substantial likelihood of material prejudice to this case’ . . . or a ‘reasonable likelihood ‘ of ‘interfer[ing] with a fair trial or otherwise prejudic[ing] the due administration of justice.'” Although information regarding the Stone prosecution will be redacted from the version of the Mueller report released to Congress and the public on April 18, however, the notice informs the court that the Justice Department “plans to make available for review by a limited number of Members of Congress and their staff a copy of the Special Counsel’s report without certain redactions,” including those related to the Stone case.

Local Criminal Rule 57.7 restricts public dissemination of information by attorneys involved in criminal cases where “there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the administration of justice.” It also authorizes the court “[i]n a widely publicized or sensational criminal case” to issue a special order governing extrajudicial statements and other matters designed to limit publicity that might interfere with the conduct of a fair trial (Judge Jackson issued such an order in the Stone case on February 15, 2019).

The Justice Department’s theory is that the public release of the Mueller report, to the extent it contains information relating to the Stone prosecution, could be considered a violation of the local rule and/or the court’s order. It further suggests that providing this information to Congress in a manner in which Congress could make the information publicly available also could be considered a violation.

DOJ advanced a similar theory in connection with the terrorism prosecution of Zacharias Moussaoui. The congressional joint inquiry into the 9-11 attacks intended to hold a hearing at which witnesses, including ironically then-FBI Director Robert Mueller, would be questioned about matters such as the process by which the FBI conducted its investigation of Moussaoui. DOJ contended that such questions in a public hearing would violate Rule 57.7 and sought to persuade Judge Brinkema that she should in essence prohibit any such questioning (by preventing Mueller or other government witnesses from answering) in a public hearing.

DOJ’s request was properly rejected by Judge Brinkema. As the joint inquiry pointed out, Rule 57.7 explicitly provides that nothing in it is intended “to preclude the holding of hearings or the lawful issuance of reports by legislative, administrative, or investigative bodies.” Moreover, any interpretation of the rule that allowed the court to interfere with congressional proceedings would raise serious separation of powers issues.

For similar reasons it is debatable whether either the rule or the court’s order pursuant to it would provide a lawful basis for restricting congressional access to the Mueller report (or perhaps the redaction of material from the report in the first place). Nevertheless, the Department’s proposal that members and staff first be given limited access to a less redacted version of the report is a common sense approach to the problem (and, of course, is similar to the Freeh/LaBella procedure we have previously discussed). If, following this initial review, Congress requests copies of a less redacted version of the report, DOJ will “seek guidance” from the court on this request.

It is important to note that the “less redacted” version of the Mueller report will “include,” but not be limited to, portions of the report related to the Stone case. One can infer that DOJ is prepared to negotiate with Congress about which redactions can be “unredacted” (that’s probably not an actual word) for purposes of review by designated members/staff. This suggests to me that the Department understands that eventually Congress will be given an opportunity to see a mostly if not entirely unredacted version of the report and to make its case to some judge (whether Judge Jackson in the Stone case, Chief Judge Howell as the supervising authority for the grand jury or Judge Walton who is hearing the FOIA case) as to why it needs that version of the report.

In other words, we are moving closer to a Freeh/LaBella solution to the redaction controversy.