Probe the effort to sink Kavanaugh

By David B. Rivkin and Lee A. Casey

Sept. 29, 2019, in the Wall Street Journal

The effort to sink Justice Brett Kavanaugh’s confirmation cries out for investigation. The Senate Judiciary Committee has already made a criminal referral to the Justice Department regarding alleged material misstatements by lawyer Michael Avenatti and his client Julie Swetnick. And a new book by two New York Times reporters contains a potentially explosive revelation.

In “The Education of Brett Kavanaugh,” Robin Pogrebin and Kate Kelly report that Leland Keyser —who was unable to corroborate high-school friend Christine Blasey Ford’s allegation of youthful sexual misconduct—says she felt pressured by a group of common acquaintances to vouch for it anyway. The book quotes an unnamed male member of the group suggesting in a text message: “Perhaps it makes sense to let everyone in the public know what her condition is”—a remark the reporters describe as reading “like a veiled reference” to Ms. Keyser’s “addictive tendencies.” (The authors quote her as saying she told investigators “my whole history of using.”)

A concerted effort to mislead the Federal Bureau of Investigation and the Senate, especially if it involved threats to potential witnesses, could violate several federal criminal statutes, including 18 U.S.C. 1001 (lying to federal officials), 18 U.S.C. 1505 (obstruction of official proceedings) and 18 U.S.C. 1622 (subornation of perjury). Investigating and, if the evidence is sufficient, prosecuting such offenses would deter similar misconduct in the future.

It’s bad for the country when nominees are subjected to what Bill Clinton calls “the politics of personal destruction.” It intensifies political polarization and bitterness, traduces due process, dissuades good people from government service, and injures the reputation of the judiciary and other institutions.

The Senate and FBI could also consider changing the background-check process for nominees. Justice Kavanaugh’s opponents seem to have expected a full-fledged criminal-style inquiry into Ms. Ford’s allegations, although Senate Democrats had sat on them for months. But that’s not how background investigations work. They’re carried out by a special unit whose job is to verify information the nominee has provided and gather additional information that may reflect on his character and reputation. This process does not involve the same sort of searching questions that are characteristic of a criminal investigation. Nor do FBI background investigators routinely assess individual witness credibility. They reach no conclusions but collect information and then forward it to the White House and Senate. It is then up to the elected officials to decide who and what to believe. It is a political, not a criminal, process.

This is a matter of practice and tradition, not law. The FBI could be asked to conduct background investigations in a manner more comparable to its criminal and intelligence work, where agents will assess witness credibility and use those assessments to guide the focus and course of the inquiry. It should be especially vigilant to the possibilities of collusion and witness tampering, which are uniquely troubling in high profile confirmation battles.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/probe-the-effort-to-sink-kavanaugh-11569786380

Investigate McCabe’s 25th Amendment Tale

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 »

Kavanaugh’s Foes Politicize the FBI

By David B. Rivkin Jr and Kristi Remington

October 1st, 2018, in the Wall Street Journal

The bipartisan bonhomie occasioned by the reopening of Judge Brett Kavanaugh’s background investigation dissipated quickly. By the weekend, Senate Democrats—who had demanded the investigation by the Federal Bureau of Investigation—were challenging its credibility, objecting to its scope and focus, and lamenting that the White House had any involvement in shaping the process.

The reopened investigation, according to Sen. Lindsey Graham—reflecting the White House’s view—potentially entailed interviewing Deborah Ramirez, who claims that Judge Kavanaugh committed lewd conduct while a freshmen at Yale, and the three purported witnesses named by first accuser Christine Blasey Ford—Mark Judge, P.J. Smyth and Leland Keyser—all of whom have attested they have no memory that would corroborate her accusation. Julie Swetnick’s sordid and implausible claims were to be left out, and if any new allegations against Judge Kavanaugh were to emerge, these also wouldn’t be investigated.

President Trump told reporters Monday: “The FBI should interview anybody that they want within reason, but you have to say within reason.” That qualification is crucial. It is clear that Judge Kavanaugh’s opponents are clamoring for an open-ended fishing expedition that, probably by design, would go on much longer than a week. They are insisting that the FBI investigate Judge Kavanaugh’s drinking while in high school and college and interview anyone who might know about it. Two such people have already come forward, and there are no disincentives for new claimants, possibly driven by partisan or personal animus, to emerge.

Sen. Patrick Leahy (D., Vt.) tried to justify his demand to broaden the FBI investigation by claiming that heavy drinking was “directly relevant” to the sexual-assault allegations. If this approach were adopted, the FBI would have to interview a very large pool of witnesses about Judge Kavanaugh’s alcohol intake, and possibly many other personal traits, over many years. Never mind that alcohol use is a standard FBI question, certainly asked in the course of Judge Kavanaugh’s previous six background investigations.

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Mueller’s Fruit of the Poisonous Tree

Special counsel Robert Mueller’s investigation may face a serious legal obstacle: It is tainted by antecedent political bias. The June 14 report from Michael Horowitz, the Justice Department’s inspector general, unearthed a pattern of anti-Trump bias by high-ranking officials at the Federal Bureau of Investigation. Some of their communications, the report says, were “not only indicative of a biased state of mind but imply a willingness to take action to impact a presidential candidate’s electoral prospects.” Although Mr. Horowitz could not definitively ascertain whether this bias “directly affected” specific FBI actions in the Hillary Clinton email investigation, it nonetheless affects the legality of the Trump-Russia collusion inquiry, code-named Crossfire Hurricane.

Crossfire was launched only months before the 2016 election. Its FBI progenitors—the same ones who had investigated Mrs. Clinton—deployed at least one informant to probe Trump campaign advisers, obtained Foreign Intelligence Surveillance Court wiretap warrants, issued national security letters to gather records, and unmasked the identities of campaign officials who were surveilled. They also repeatedly leaked investigative information.

Mr. Horowitz is separately scrutinizing Crossfire and isn’t expected to finish for months. But the current report reveals that FBI officials displayed not merely an appearance of bias against Donald Trump, but animus bordering on hatred. Peter Strzok, who led both the Clinton and Trump investigations, confidently assuaged a colleague’s fear that Mr. Trump would become president: “No he won’t. We’ll stop it.” An unnamed FBI lawyer assigned to Crossfire told a colleague he was “devastated” and “numb” after Mr. Trump won, while declaring to another FBI attorney: “Viva le resistance.”

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Trump has the Constitution on his side

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

June 12, 2018 in the Washington Post

The Constitution vests all executive power in the president. He has the authority to determine what matters will, and will not, be investigated and prosecuted by the U.S. government. This is also a core part of the president’s obligation to “take care that the laws be faithfully executed” — and it remains so even if done through an unorthodox channel such as Twitter.

So it is puzzling to see so much criticism of President Trump’s demand that the Justice Department investigate allegations about his presidential campaign being improperly subjected to an FBI counterintelligence probe. Same goes for his instruction to the Justice Department and the FBI that they should grant congressional requests for information about that matter.

Indeed, Trump would have been well within his authority, and well within precedent, to order an investigation entirely independent of the Justice Department and the FBI, as President Lyndon B. Johnson did when he created, by executive order, the Warren Commission to investigate the circumstances of President John F. Kennedy’s death.

When critics claim that a president cannot direct federal law-enforcement activities, they are implying that subordinate executive-branch officials can both judge and act upon their own assessment of a president’s motivations. There is no basis in the Constitution’s language, statute or Supreme Court precedent for such a notion. Those who object to a president’s instructions may resign, but they cannot usurp executive authority and defy him.

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Trump Is Right to Pardon Scooter Libby, an Innocent Man