The special prosecutor focuses on then-President Trump’s motives—a critical legal error.

By David B. Rivkin, Jr., and Elizabeth Price Foley

October 14, 2024, in the Wall Street Journal

Jack Smith made no concessions in his response to the Supreme Court’s July ruling in Trump v. U.S., which rejected the special counsel’s contention that he had unlimited authority to prosecute Donald Trump for alleged crimes that involved official presidential acts. Chief Justice John Roberts provided a framework for distinguishing official acts from private ones and for determining which official acts could be prosecuted.

In a 165-page brief filed with Judge Tanya Chutkan, who is presiding over the election-fraud case, Mr. Smith acknowledges only that Mr. Trump’s communications with Justice Department officials were official acts and can’t be prosecuted—as the justices expressly said. But Mr. Smith characterizes then-President Trump’s official conversations with the vice president as outside the zone of immunity and his communications with state officials and the public not as official acts of the president but private acts of a candidate. In so doing he gives short shrift to the separation-of-powers justification for immunity.

Trump v. U.S. extended presidential immunity, which the court recognized in Nixon v. Fitzgerald (1982), from civil lawsuits to criminal prosecutions. Like the immunity enjoyed by prosecutors, judges and members of Congress, the president’s immunity for official acts is predicated on separation of powers. Fitzgerald held that immunity is especially important for the president, who “occupies a unique position in the constitutional scheme” as head of a branch of government—an “easily identifiable target” for legal attacks that could thwart the effective functioning of the office.

A president’s immunity from criminal prosecution is absolute when he exercises his core constitutional powers, such as recognizing foreign governments, nominating and firing executive officers, commanding the military, issuing pardons, faithfully executing the laws—and, as in this case, directing an executive-branch department.

Other acts within the “outer perimeter” of the president’s responsibility, the court explained, have “at least” a presumptive immunity. The presumption is rebuttable only if the prosecutor can prove that the acts are “manifestly or palpably beyond” the president’s authority, such that, as Fitzgerald put it, imposing liability would “pose no dangers of intrusion on the authority and functions of the Executive Branch.”

Mr. Smith’s brief falls short of making that case. His primary argument is that the “throughline” of Mr. Trump’s postelection efforts “was deceit,” because the president made “knowingly false claims of election fraud.”

The prosecutor’s focus on Mr. Trump’s motive is a critical legal error. The Trump decision reiterated Fitzgerald’s holding that in distinguishing between official and private acts, “courts may not inquire into the President’s motives.” Allowing such an inquiry would vitiate the president’s immunity, since virtually every presidential decision is based in part on political considerations, and suits against a president would always allege improper motives.

The only relevant questions, therefore, are whether a president’s acts, objectively viewed, are official or unofficial, and if they are official, whether they can be prosecuted without intruding on the president’s legitimate authority. Mr. Smith asserts that when a president seeks “to influence his Vice President” about electoral certification, it is outside the zone of immunity because the vice president exercises this power as president of the Senate, and the “Executive Branch plays no role.” He deems Mr. Trump’s interactions with state officials private because the president has “no official role” in the Electoral College process or enforcing state election law. And he asserts that Mr. Trump made various public statements in his capacity as a candidate, not as president.

The court has rejected Mr. Smith’s cramped view of presidential authority on several occasions. In his concurrence in Youngstown Sheet & Tube v. Sawyer (1952), Justice Felix Frankfurter observed that executive power extends beyond statutes and express constitutional provisions to include the “gloss” of longstanding presidential practice. In Dames & Moore v. Regan (1981), a majority embraced Frankfurter’s view.

The Trump decision also accepted Frankfurter’s view, observing that “some Presidential conduct—for example, speaking to and on behalf of the American people—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision.” The president is “expected to comment on those matters of public concern” and in so doing so, he may pressure others—outside the executive branch—to behave in certain ways. In McDonnell v. U.S. (2016), the court held that an “official act” under the federal bribery statute includes using one’s office “to exert pressure on another official to perform an official act.”

Mr. Smith asserts that Mr. Trump’s legal efforts in his “capacity as a candidate” to challenge certain state elections prove that his conversations with officials and statements to the public were private actions. But that gets it backward. Under Trump, the burden is on the prosecutor to show that his allegations don’t infringe on the president’s official duties, not on the president to show that his exercise of those duties is untainted by private considerations.

Chief Justice Roberts writes in Trump that immunity is a “farsighted” constitutional doctrine designed to prevent constant legal harassment from enfeebling the presidency. Without immunity, the threat of civil and criminal liability would create, as George Washington put it in his Farewell Address, the “alternate domination of one faction over another, sharpened by the spirit of revenge” with every new administration.

Democrats profess to be worried that Mr. Trump, if returned to office, will use the justice system to seek retribution against his political opponents. They should stop and consider that presidential immunity also restrains that “spirit of revenge” if Mr. Trump wins in November.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/opinion/what-jack-smith-gets-wrong-about-immunity-law-election-presidential-power-f4f57ead

It rests on an intent to violate a state law that is pre-empted by the Federal Election Campaign Act.

By David B. Rivkin, Jr., and Elizabeth Price Foley

September 8, 2024, in the Wall Street Journal

Donald Trump runs no risk of going to prison in the middle of his campaign, thanks to Judge Juan Merchan’s decision Friday to postpone sentencing until Nov. 26. The delay gives his lawyers more time to prepare an appeal. Fortunately for Mr. Trump, his trial was overwhelmingly flawed, and a well-constructed appeal would ensure its ultimate reversal.

A central problem for the prosecution and Judge Merchan lies in Article VI of the U.S. Constitution, which makes federal law the “supreme law of the land.” That pre-empts state law when it conflicts with federal law, including by asserting jurisdiction over areas in which the federal government has exclusive authority.

Mr. Trump’s conviction violates this principle because it hinges on alleged violations of state election law governing campaign spending and contributions. The Federal Election Campaign Act pre-empts these laws as applied to federal campaigns. If it didn’t, there would be chaos. Partisan state and local prosecutors could interfere in federal elections by entangling candidates in litigation, devouring precious time and resources.

That hasn’t happened except in the Trump case, because the Justice Department has always guarded its exclusive jurisdiction even when states have pushed back, as has happened in recent decades over immigration enforcement.

The normal approach would have been for the Justice Department to inform District Attorney Alvin Bragg, who was contemplating charges against Mr. Trump, of the FECA pre-emption issue. If Mr. Bragg didn’t follow the department’s guidance, it would have intervened at the start of the case to have it dismissed. Instead the department allowed a state prosecutor to interfere with the electoral prospects of the chief political rival of President Biden, the attorney general’s boss.

Mr. Trump was indicted under New York’s law prohibiting falsification of business records, which is a felony only if the accused intended “to commit another crime” via the false record. Judge Merchan instructed the jury that the other crime was Section 17-152 of New York election law, which makes it a misdemeanor to “conspire to promote or prevent the election of any person to a public office by unlawful means.” Prosecutors alleged that Mr. Trump violated this law by conspiring with his lawyer, Michael Cohen, and Trump-related businesses to “promote” his presidential election by coding hush-money payments as “legal expenses” when they should have been disclosed publicly as campaign expenses or contributions—matters that are governed by FECA.

FECA declares that its provisions “supersede and preempt any provision of state law with respect to election to Federal office.” The 1974 congressional conference committee report accompanying enactment of FECA’s pre-emption language states: “It is clear that the Federal law occupies the field with respect to reporting and disclosure of political contributions and expenditures by Federal candidates.” Federal Election Commission regulations likewise declare that FECA “supersedes State law” concerning the “disclosure of receipts and expenditures by Federal candidates” and “limitation on contributions and expenditures regarding Federal candidates.”

The New York State Board of Elections agreed in a 2018 formal opinion that issues relating to disclosure of federal campaign contributions and expenditures are pre-empted because “Congress expressly articulated ‘field preemption’ of federal law over state law in this area” to avoid federal candidates’ “facing a patchwork of state and local filing requirements.”

In using New York’s election law to brand Mr. Trump a felon based on his actions with respect to a federal election, Mr. Bragg subverts FECA’s goal of providing predictable, uniform national rules regarding disclosure of federal campaign contributions and expenses, including penalties for noncompliance. Congress made its goals of uniformity and predictability clear not only in FECA’s sweeping pre-emption language but also in its grant of exclusive enforcement authority to the FEC for civil penalties and the Justice Department for criminal penalties. Both the FEC and Justice Department conducted yearslong investigations to ascertain whether Mr. Trump’s hush-money payments violated FECA, and both declined to seek any penalties.

Prior to Mr. Trump’s New York prosecution, it would have been unthinkable for a local or state prosecutor to prosecute a federal candidate predicated on whether or how his campaign reported—or failed to report—contributions or expenditures. In 2019 the FEC investigated whether Hillary Clinton’s 2016 presidential campaign failed to disclose millions in contributions from an outside political action committee. The agency deadlocked, and no penalties were imposed. In 2022 the FEC levied $113,000 in civil penalties against Mrs. Clinton’s campaign for violating FECA because it improperly coded as “legal services,” rather than campaign expenditures, money paid to Christopher Steele for production of the “dossier” that fueled the Russia-collusion hoax. In neither instance did any state or local prosecutor indict Mrs. Clinton under state election law based on failure to disclose these contributions or expenditures properly. If New York’s Trump precedent stands, Mrs. Clinton could still be vulnerable to prosecution, depending on various states’ statutes of limitation and the Justice Department’s potential involvement.

Mr. Bragg’s prosecution of Mr. Trump is plagued by many reversible legal errors, of which the failure to accord pre-emptive force to FECA is the strongest grounds for its reversal on appeal. The prosecutor’s interference in the 2024 presidential election process has created legal and political problems. The Justice Department’s failure to intervene before the trial is a dereliction of duty.

The department aggressively prosecuted Mr. Cohen based on the same hush-money payments, so it was well aware that New York’s prosecution invaded its exclusive FECA jurisdiction. This is another stark example of the Biden administration’s incompetence—or, worse, the distortion of justice through a partisan lens. It is left to the appellate courts, and ultimately the Supreme Court, to clean up the mess Mr. Bragg and the Justice Department have made.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/opinion/why-trumps-hush-money-conviction-cant-stand-appeal-federal-law-pre-empts-11ae9dc3

He was denied notice of the charges, meaningful opportunity to respond, and proof of all elements.

By David B. Rivkin, Jr., and Elizabeth Price Foley

June 4, 2024, in the Wall Street Journal

Whether you love, hate or merely tolerate Donald Trump, you should care about due process, which is fundamental to the rule of law. New York’s trial of Mr. Trump violated basic due-process principles.

“No principle of procedural due process is more clearly established than that notice of the specific charge,” the Supreme Court stated in Cole v. Arkansas (1948), “and a chance to be heard in a trial of the issues raised by that charge, if desired, [is] among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” In in re Winship (1970), the justices affirmed that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” These three due-process precepts—notice, meaningful opportunity to defend, and proof of all elements—were absent in Mr. Trump’s trial.

The state offense with which Mr. Trump was indicted, “falsifying business records,” requires proof of an “intent to defraud.” To elevate this misdemeanor to a felony, the statute requires proof of “intent to commit another crime.” In People v. Bloomfield (2006), the state’s highest court observed that “intent to commit another crime” is an indispensable element of the felony offense.

New York courts have concluded that the accused need not be convicted of the other crime since an “intent to commit” it is sufficient to satisfy the statute. But because that intent is, in the words of Winship, “a fact necessary to constitute the crime,” it is an element of felony falsification. Due process requires that the defendant receive timely notice of the other crime he allegedly intended to commit. It also requires that he have opportunity to defend against that accusation and that prosecutors prove beyond a reasonable doubt his intent to commit it.

Mr. Trump’s indictment didn’t specify the other crime he allegedly intended to commit. Prosecutors didn’t do so during the trial either. Only after the evidentiary phase of the trial did Judge Juan Merchan reveal that the other crime was Section 17-152 of New York’s election law, which makes it a misdemeanor to engage in a conspiracy “to promote or prevent the election of any person to a public office by unlawful means.”

To recap, the prosecution involved (1) a misdemeanor elevated to a felony based on an “intent to commit another crime,” (2) an indictment and trial that failed to specify, or present evidence establishing, another crime the defendant intended to commit, and (3) a jury instruction that the other crime was one that necessitated further proof of “unlawful means.” It’s a Russian-nesting-doll theory of criminality: The charged crime hinged on the intent to commit another, unspecified crime, which in turn hinged on the actual commission of yet another unspecified offense.

To make matters worse, Judge Merchan instructed the jury: “Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”

Due process demands that felony verdicts be unanimous, but in Schad v. Arizona (1991), a murder case, the high court indicated that there need not be unanimity regarding the means by which a crime is committed. But a plurality opinion by Justice David Souter cautioned that if the available means of committing a crime are so capacious that the accused is not “in a position to understand with some specificity the legal basis of the charge against him,” due process will be violated. “Nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction,” Justice Souter wrote.

Justice Antonin Scalia concurred, observing that “one can conceive of novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.” Four dissenting justices argued that the In re Winship precedent requires unanimity regarding all elements of a crime, including the means by which it’s committed.

All nine justices in Schad, then, believed unanimity is required to convict when the means by which a crime can be committed are so broad that the accused doesn’t receive fair notice of the basis of the charge. New York’s election law requires that the violation occur “by unlawful means,” so any “unlawful” act—including, in Scalia’s example, either robbery of failure to file a tax return—can qualify. That’s clearly overbroad. Thus, Judge Merchan’s instruction that the jury “need not be unanimous as to what those unlawful means were” was unconstitutional.

That isn’t all. Judge Merchan hand-selected three laws—federal election law, falsification of “other” business records and “violation of tax laws”—as the “unlawful means” by which state election law was violated. Mr. Trump received no notice of any of these offenses, and the prosecutor briefly alluded only to federal election law, during the trial. Mr. Trump tried to call former Federal Election Commission Chairman Brad Smith to explain why this law wasn’t violated, but Judge Merchan ruled Mr. Smith couldn’t testify on whether Mr. Trump’s conduct “does or does not constitute a violation” of federal election law, denying him a meaningful opportunity to be heard.

Judge Merchan’s second “unlawful” means, falsification of other business records, is circular: A misdemeanor becomes a felony if one falsifies business records by falsifying business records. Further, the prosecution never alleged or provided evidence that Mr. Trump falsified “other” business records. The prosecutors likewise neither alleged nor offered evidence that Mr. Trump had violated tax laws, Judge Merchan’s third predicate.

Mr. Trump, like all criminal defendants, was entitled to due process. The Constitution demands that higher courts throw out the verdict against him. That takes time, however, and is unlikely to occur before the election. That unfortunate reality will widen America’s political divide and fuel the suspicion that Mr. Trump’s prosecution wasn’t about enforcing the law but wounding a presidential candidate for the benefit of his opponent.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/trumps-trial-violated-due-process-76fae047

By David B. Rivkin, Jr., and Elizabeth Price Foley

February 29, 2024, in the Wall Street Journal

Many observers thought the Supreme Court would decline to consider Donald Trump’s claim that presidential immunity shields him from prosecution for his conduct on Jan. 6, 2021. But on Wednesday the justices announced that they will hear the former president’s case in April. Mr. Trump could eventually face a trial on those charges, but the justices had little choice but to take up this question because the lower court’s ruling was so sweeping and dangerous.

Mr. Trump claims that his allegedly criminal actions were “official acts” taken as president. The U.S. Circuit Court of Appeals for the District of Columbia held that it didn’t matter if they were—that no president is entitled to immunity from “generally applicable criminal laws.” That decision violates the separation of powers, threatens the independence and vigor of the presidency, and is inconsistent with Supreme Court precedent.

The justices are unlikely to decide whether Mr. Trump’s actions were in fact “official acts.” Instead, they will consider the key legal question, “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

That’s a novel question, but in Nixon v. Fitzgerald (1982), the high court held that a president enjoys absolute immunity from civil suits predicated on his “official acts,” even if they fall foul of “federal laws of general applicability.” Justice Lewis Powell wrote that such immunity is a “functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Such lawsuits “could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”

Mr. Trump maintains that he believed the 2020 presidential election was riddled with fraud and that his conduct on Jan. 6 was fully consistent with his constitutional obligations to “take care that the laws be faithfully executed.” Whatever the merits of that claim, it raises weighty questions of law and fact that the D.C. Circuit was wrong to brush aside—most centrally, that the president’s power is granted by the Constitution, which, as the supreme law of the land, overrides ordinary, “generally applicable” statutes.

The D.C. Circuit decision opened the door to all manner of constitutional crises. A former president could be prosecuted for ordering a military attack on an American affiliated with a foreign terrorist organization, even though such an order is clearly within his authority as commander in chief. Aggressive prosecutors motivated by ideology or partisanship could use capaciously worded criminal statutes—including those regarding mail or wire fraud, racketeering, false statements and misrepresentations—to challenge almost any presidential action, including those related to national security activities.

As with civil suits, it isn’t enough to say that the former president would have the opportunity to mount a defense in court. The mere possibility of personal prosecution for official actions would chill future presidential decisions. The D.C. Circuit casually disregards this danger, asserting simply that the “public interest” in prosecuting crimes is weightier than the risk of chilling impartial and fearless presidential action. It asserts that a president wouldn’t be “unduly cowed” by the prospect of criminal liability, “any more than a juror” or “executive aide” would be. That analogy is inapt because the president’s responsibilities are much weightier than those of jurors or aides. He alone is the singular head of a constitutional branch of government. As the justices recognized in Nixon v. Fitzgerald, the “greatest public interest” isn’t in enforcing ordinary statutes against the president. Immunity is necessary to ensure he has “the maximum ability to deal fearlessly and impartially with the duties of his office.”

The D.C. Circuit dismissed as “slight” the risk that former presidents will be politically targeted because prosecutors “have ethical obligations not to initiate unfounded prosecutions” and there are “additional safeguards in place,” including the requirement of seeking an indictment from a grand jury. These arguments border on frivolous. Not all prosecutors are ethical, and even those who are may be overzealous. Many cases have featured prosecutorial misconduct or abuse. And the justices have surely heard the saying that a prosecutor can indict a ham sandwich. Lawyers in civil cases are also bound by ethical obligations, but that didn’t vitiate the case for presidential immunity in 1982.

Jack Smith, the special counsel in the Trump cases, has asserted that federal prosecutors make decisions without regard to politics—but his conduct in this case belies that claim. His chief argument against Mr. Trump’s petition for a stay of the D.C. Circuit’s decision denying his immunity was that such a delay would cause “serious harm to the government—and to the public” because the case “presents a fundamental question at the heart of our democracy.” Many Supreme Court cases raise such questions, and Mr. Smith avoids saying what distinguishes this one. The obvious answer is the election timetable.

Mr. Smith’s demand for fast-tracking the Supreme Court’s consideration thus contradicts the D.C. Circuit’s suppositions about prosecutorial ethical probity. Trying Mr. Trump, the all-but-certain Republican nominee for president, before the election is inconsistent with Section 9-27.260 of the Justice Department’s Justice Manual, which makes clear that prosecutors “may never make a decision regarding . . . prosecution or select the timing [thereof] . . . for the purpose or affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

The question of presidential immunity is an important one for our constitutional democracy of separated government powers, and the D.C. Circuit made a grievous error in disposing of it so casually. The justices were right to halt the proceedings until they can give the issue the careful consideration it deserves.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/why-the-justices-had-to-hear-trumps-case-presidential-immunity-125803c6

By David B. Rivkin, Jr., and Elizabeth Price Foley

5 January 2020 in the Wall Street Journal

Give Nancy Pelosi this: She has chutzpah. Senate Majority Leader Mitch McConnell responded Friday on the Senate floor to the House’s refusal to appoint managers and transmit its articles of impeachment against President Trump to the upper chamber. “For now,” Mr. McConnell said, “we are content to continue the ordinary business of the Senate while House Democrats continue to flounder. For now.”

Mrs. Pelosi’s response: “The GOP Senate must immediately proceed in a manner worthy of the Constitution.” Never mind that the hold-up is at her end.

Yet now that Mr. Trump has been impeached, the Senate is constitutionally obliged to address the matter. Neither Mrs. Pelosi’s intransigence nor Senate rules, dating from 1868, that peg the commencement of an impeachment trial to the House’s appointment of impeachment “managers” justify an indefinite delay.

As Mr. McConnell noted, the Constitution’s Framers emphasized the importance of a speedy trial in cases of impeachment. “The procrastinated determination of the charges,” Alexander Hamilton wrote in Federalist No. 65, would do “injury to the innocent,” work to “the advantage of the guilty,” and sometimes do “detriment to the state, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House.”

Mrs. Pelosi is holding the impeachment articles hostage, she says, to ensure that the Senate holds what she regards as a “fair” trial. Her central demand is that the Senate permit House managers to call witnesses the House didn’t hear from before impeaching the president. Putting aside the rank hypocrisy of this demand, the Constitution provides that “the Senate shall have the sole power to try all impeachments.” The House has no say in how the trial is conducted.

Mr. McConnell appears to believe it is to his advantage to let Mrs. Pelosi fumble about “for now.” But the Constitution obliges the Senate to act at some point. If the House does not relent, the Senate has two options. It could take the position that because the House bears the normal prosecutorial burden of production and persuasion, Mrs. Pelosi’s refusal to engage with the Senate requires the summary dismissal of the articles. Alternatively, the Senate could take a page from the judiciary’s handbook and appoint outside counsel as managers to make the House’s case against Mr. Trump.

If managers are appointed by either the House or the Senate, the Senate should not conduct a trial on the facts. Instead it should dismiss the articles as a matter of law. The House has alleged no impeachable offense, and therefore no evidence can convict Mr. Trump.

The first article charges the president with “abuse of power” in his dealings with Ukrainian President Volodymyr Zelensky. There are two ways a president can abuse power: by doing something that exceeds his constitutional authority (such as unilaterally imposing a tax) or by failing to carry out a constitutional obligation (refusing to enforce a law). Neither is applicable here.

Mr. Trump had ample constitutional authority to ask Mr. Zelensky to investigate Ukrainian involvement in the alleged Democratic National Committee server hack, the related genesis of the Russia collusion narrative, and Joe and Hunter Biden’s potentially corrupt dealings in Ukraine. The Supreme Court stated in U.S. v. Curtiss-Wright Export Corp. (1936) that the president is the “sole organ of the federal government in the field of international relations,” with exclusive authority to conduct diplomatic relations.

House Democrats don’t dispute this, or claim Mr. Trump’s actions were illegal in themselves. Rather, they allege that he had “corrupt motives” for doing them.

The “corrupt motives” theory is inherently corrosive of democracy. Motives are often mixed, difficult to discern and, like beauty, generally in the eyes of the beholder—which in this case sees through partisan lenses. To Democrats, the transcript of the Trump-Zelensky call demonstrate the desire to harm Democrats; to Republicans, a desire to root out corruption.

Any investigation involving governmental malfeasance can damage the president’s political rivals or benefit allies. But the president has a constitutional duty to “take care that the laws be faithfully executed,” even if his political opponents may be violating them. To bar investigations of the president’s political opponents would effectively hand them a get-out-of-jail-free card and traduce the rule of law. And virtually everything elected officials do serves political ends. If a president’s pursuit of his political interests is impeachable, every president is removable at Congress’s whim.

The House Democrats’ theory will encourage impeachment whenever a President exercises his constitutional authority in a manner offensive to the party controlling the House. The Framers vehemently opposed impeachment for policy disagreements, as legal scholar Michael Gerhardt noted during President Clinton’s impeachment inquiry in 1998. He told the House Judiciary Committee that “one of the most often repeated pronouncements of the framers” was “that impeachment is not designed to address policy differences or opinion.” He referred the committee an “excellent study” by Peter Hoffer and N.E.H. Hull, which warned that “impeachable offenses are not simply political acts obnoxious to the government’s ruling faction.”

The second impeachment article charges Mr. Trump with “obstruction of Congress” for asserting executive privilege in response to subpoenas. But impeachment doesn’t abolish the separation of powers The president has ample constitutional basis to resist congressional demands of documentary and testimonial evidence, particularly when it involves his White House advisers and sensitive national-security issues. This article is not only legally baseless but outrageous, since the House didn’t bother asking a judge to compel White House aides to testify. Instead, Mrs. Pelosi insists Mr. McConnell make it happen.

The Senate must stop the madness. If the House chooses not to pursue its case, the Senate has the authority and the duty to move forward and acquit the president without hearing additional evidence. Both with respect to the timing of the impeachment trial and the actual trial procedures, the Senate must fulfill its constitutional duty as the ultimate check on the House majority’s partisan passions and abuse of its impeachment power.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: https://www.wsj.com/articles/the-senate-knows-enough-to-acquit-trump-11578262402

By David B. Rivkin, Jr., and Elizabeth Price Foley

October 25, 2019, in the Wall Street Journal

Speaker Nancy Pelosi has directed committees investigating President Trump to “proceed under that umbrella of impeachment inquiry,” but the House has never authorized such an inquiry. Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense. Lawmakers and commentators have suggested various possibilities, but none amount to an impeachable offense. The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.

The impeachment power is quasi-judicial and differs fundamentally from Congress’s legislative authority. The Constitution assigns “the sole power of impeachment” to the House—the full chamber, which acts by majority vote, not by a press conference called by the Speaker. Once the House begins an impeachment inquiry, it may refer the matter to a committee to gather evidence with the aid of subpoenas. Such a process ensures the House’s political accountability, which is the key check on the use of impeachment power.

The House has followed this process every time it has tried to impeach a president. Andrew Johnson’s 1868 impeachment was predicated on formal House authorization, which passed 126-47. In 1974 the Judiciary Committee determined it needed authorization from the full House to begin an inquiry into Richard Nixon’s impeachment, which came by a 410-4 vote. The House followed the same procedure with Bill Clinton in 1998, approving a resolution 258-176, after receiving independent counsel Kenneth Starr’s report.

Mrs. Pelosi discarded this process in favor of a Trump-specific procedure without precedent in Anglo-American law. Rep. Adam Schiff’s Intelligence Committee and several other panels are questioning witnesses in secret. Mr. Schiff has defended this process by likening it to a grand jury considering whether to hand up an indictment. But while grand-jury secrecy is mandatory, House Democrats are selectively leaking information to the media, and House Republicans, who are part of the jury, are being denied subpoena authority and full access to transcripts of testimony and even impeachment-related committee documents. No grand jury has a second class of jurors excluded from full participation.

Unlike other impeachable officials, such as federal judges and executive-branch officers, the president and vice president are elected by, and accountable to, the people. The executive is also a coequal branch of government. Thus any attempt to remove the president by impeachment creates unique risks to democracy not present in any other impeachment context. Adhering to constitutional text, tradition and basic procedural guarantees of fairness is critical. These processes are indispensable bulwarks against abuse of the impeachment power, designed to preserve the separation of powers by preventing Congress from improperly removing an elected president. Read more »