By David B. Rivkin Jr. and Lee A. Casey

24 February 2019 in the Wall Street Journal

Did law-enforcement officials plot to remove President Trump from office? Andrew McCabe, former deputy director of the Federal Bureau of Investigation, suggests they might have. In a recent interview, Mr. McCabe said that in May 2017 Deputy Attorney General Rod Rosenstein “raised the issue” of using the 25th Amendment to remove Mr. Trump from office “and discussed it with me in the context of thinking about how many other cabinet officials might support such an effort.” According to Mr. McCabe, Mr. Rosenstein was “counting votes or possible votes.”

Exactly what happened is unclear. A statement from Mr. Rosenstein’s office called Mr. McCabe’s account “inaccurate and factually incorrect” and asserted: “There is no basis to invoke the 25th Amendment, nor was the DAG in a position to consider invoking the 25th Amendment.” But this is a potentially serious matter, and should be fully investigated.

The 25th Amendment was ratified in 1967, primarily to provide for the appointment of a new vice president when that office becomes vacant, as it did when Lyndon B. Johnson acceded after John F. Kennedy’s 1963 assassination. It also contains a section creating a process whereby a president who is “unable to discharge the powers and duties of his office” can temporarily cede authority to the vice president, and one through which the vice president and a majority of “principal officers”—cabinet members—can sideline a president who is disabled but won’t acknowledge it.

It is that last provision that supposedly excited Mr. Rosenstein’s interest. Mr. McCabe said the idea came in a discussion of “why the president had insisted on firing the director [Mr. Comey] and whether or not he was thinking about the Russia investigation.” To prevent interference with that probe, Mr. McCabe said, he opened new counterintelligence and criminal investigations of the president in May 2017, both of which were shortly subsumed into the probe led by special counsel Robert Mueller, whom Mr. Rosenstein appointed.  Read more »

By David B. Rivkin Jr. and Lee A. Casey

7 February 2018 in the Wall Street Journal

Democrats have attacked Attorney General-designate William Barr for a memo in which he argued against a legal theory some claim could support prosecuting President Trump for obstruction of justice. Mr. Barr argued that an exercise of the president’s constitutional authority—for instance, firing James Comey as director of the Federal Bureau of Investigation—cannot be construed as obstruction even if prosecutors believe he did so for improper reasons.

At his confirmation hearings, Mr. Barr rightly stood his ground. Critics should consider the implications of the motive-driven obstruction theory with respect not only to the president but also to the other branches of government. It has the potential to impair Congress, the judiciary and state governments as well.

The Constitution vests all executive power in the president, including decisions about high-level personnel, investigations, prosecutions and pardons. Human motives are rarely pure, and bad motives are often in the eye of the beholder. Presidents inevitably have self-interested objectives when exercising their authority—enhancing their political position, for example.

If the personal motivations behind every lawful official act could potentially be grounds for criminal charges, then presidents—and their subordinates, “from the Attorney General down to the most junior line prosecutor,” as Mr. Barr put it in his memo—might shirk supervisory authority over a wide variety of cases. Law enforcement would operate on an autopilot, with extreme harshness as the default approach. The result, as Hamilton put it in Federalist No. 70, would be “a feeble executive,” which “implies a feeble execution of the government” and produces “bad government.” Read more »

By David B. Rivkin Jr. and Lee A. Casey

October 16, 2018, in the Wall Street Journal

Brett Kavanaugh’s appointment to the Supreme Court has sparked a firestorm of outrage and recrimination on the left. Some attacks seem aimed at intimidating the justices into supporting progressive causes. “The Court must now prove—through its work—that it is worthy of the nation’s trust,” Eric Holder, President Obama’s attorney general, tweeted Oct. 6.

Yet the attacks go beyond ideology. Detractors of Justice Kavanaugh and President Trump are denouncing the Constitution itself and the core elements of America’s governmental structure:

The judicial “resistance” to President Trump suffered a well-deserved defeat in the Supreme Court’s “travel ban” ruling, Trump v. Hawaii. At issue was Mr. Trump’s order limiting entry to the U.S. of nationals from eight (now seven) countries that are unwilling or unable to cooperate sufficiently in U.S. antiterrorist screening efforts. The plaintiffs challenged the order on several grounds, arguing that it exceeded the president’s authority and was animated by anti-Muslim bias, violating the First Amendment. (Six of the eight covered countries are mostly Muslim.) The court upheld Mr. Trump’s order 5-4.

President Trump promised to nominate judges in the mold of Antonin Scalia, and that thought was no doubt foremost in his mind when he chose Neil Gorsuch to fill Scalia’s vacant seat. On Monday Justice Gorsuch and his colleagues will consider whether the hiring of adjudicators deciding cases within federal agencies will also be subject to the kind of accountability that making an appointment entails.

So-called administrative law judges are not “principal officers,” so they are not subject to Senate confirmation under the Constitution’s Appointments Clause. The question in Lucia v. Securities and Exchange Commission is whether they are “inferior officers.” In that case, the clause requires them to be appointed by principal officers, such as commissioners acting collectively or a cabinet secretary, themselves appointed by the president. The alternative is that they are mere employees, who can be hired by lower-level managers with no presidential responsibility.

The dividing line, the Supreme Court has explained, is whether the position entails the exercise of “significant authority.” There shouldn’t be much doubt on which side of that line the SEC’s judges fall.

In this case, the commission’s Enforcement Division decided to bring fraud charges against investment adviser Raymond Lucia in its own administrative court instead of a judicial court. The SEC alleged that Mr. Lucia misled participants in his “Buckets of Money” seminars when he used slides showing hypothetical returns based in part, rather than in whole, on historical data (as the slides themselves disclosed). The SEC assigned the case to an administrative law judge, Cameron Elliot. According to the record, Mr. Elliot sided with the SEC’s Enforcement Division in every one of his first 50 cases. Read more »