David Rivkin, Constitutional Attorney and Media Commentator

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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June 13, 2018
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Trump Is Right to Pardon Scooter Libby, an Innocent Man

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

April 13, 2018 in the Wall Street Journal

President Trump has pardoned I. Lewis “Scooter” Libby, convicted in 2007 of perjury and obstruction of justice. The president was right to do so. Mr. Libby’s conviction was a travesty.

Mr. Libby, who served as Vice President Dick Cheney’s chief of staff, got caught up in a special counsel’s investigation about the disclosure to the press of a CIA agent’s identity. It appears Mr. Cheney was the investigation’s real target. Mr. Libby’s lawyers have said prosecutors offered to drop the charges against Mr. Libby if he would incriminate his boss. But, there was “no there, there.” Neither Mr. Libby nor Mr. Cheney had anything to do with the “leak” or with covering it up. No one was charged with a crime in the “outing” of the agent, Valerie Plame, and it’s not clear it was a crime.

The Intelligence Identities Protection Act of 1982 makes it a crime to reveal the identity of a “covert” intelligence agent. Ms. Plame was a midlevel employee stationed at Central Intelligence Agency headquarters. In early 2002, she urged her superiors to tap her husband, retired diplomat Joe Wilson, to investigate claims that Saddam Hussein had tried to buy processed uranium in Niger. The CIA interpreted Mr. Wilson’s report as supporting that claim, but a year later he publicly declared the evidence was dubious and became a vocal critic of President Bush’s Iraq policy.

The late Robert Novak wrote a column revealing that Mr. Wilson had gone to Niger at Ms. Plame’s urging. Mr. Wilson asserted that the revelation of his wife’s CIA employment was meant to punish him. But her identity was well-known around Washington, suggesting that she had not taken “affirmative measures” to conceal her “intelligence relationship to the United States,” a necessary element of the crime.

Special counsel Patrick Fitzgerald was appointed by his friend James Comey, then deputy attorney general. From the start, Mr. Fitzgerald knew that the critical “leak” to Novak had come from then-Deputy Secretary of State Richard Armitage. He nevertheless commenced an extensive investigation to “discover” what had happened.

The charges against Mr. Libby were based on his description of various conversations he had with journalists at the time, including the New York Times’s Judith Miller. Based on notes she had made containing the word “bureau” in association with Ms. Plame’s job, Ms. Miller became the only reporter to testify that Mr. Libby had discussed Ms. Plame’s CIA connection with her. Mr. Fitzgerald called her testimony “critical” in his closing argument to the jury, which found Mr. Libby guilty on four of five counts.

But Ms. Miller later realized her testimony had been mistaken. Ms. Plame published a memoir in late 2007, months after Libby’s trial. In Ms. Miller’s 2015 book, “A Reporter’s Story,” she writes that one particular point in Ms. Plame’s account immediately caught her eye: Ms. Plame’s CIA “cover” had been as an employee of a State Department bureau. Mr. Libby would have known the CIA has “divisions,” not “bureaus.” He could not, therefore, have been the person who revealed Ms. Plame’s CIA connection to Ms. Miller.

Ms. Miller did not recognize her mistake when preparing her trial testimony, because she did not know that Ms. Plame had a State Department cover. Had she known, she would not have claimed she and Mr. Libby had discussed Ms. Plame’s CIA status. But Mr. Fitzgerald knew, and Ms. Miller believes he deliberately led her away from the truth.

All this means that Mr. Libby was telling the truth about his conversations with Ms. Miller, and that he did not deliberately mislead Mr. Fitzgerald’s grand jury or the FBI. For her part, Ms. Miller had not lied at Mr. Libby’s trial; she had given false testimony in good faith. “With the information about Plame’s cover that Fitzgerald had withheld, it was hard not to conclude that my testimony had been wrong,” she writes. “Had I helped convict an innocent man?

She had. It is now established that Mr. Libby never told any reporter about Ms. Plame, never knew that she had any special status, and had no reason to lie about any of this—and that the “leak” had caused no harm to the CIA, its personnel or operations. But the time for Mr. Libby’s appeals has long passed.

One court partially righted the wrong Mr. Libby suffered. In 2016, the District of Columbia Court of Appeals, a local tribunal, restored Mr. Libby’s license to practice law in the nation’s capital. This action was based on a report by the D.C. Bar’s Office of Disciplinary Counsel, which specifically noted that Mr. Libby had consistently maintained his innocence, that he never denied the seriousness of the offenses of which he was convicted, and that Ms. Miller, as a “key prosecution witness . . . has changed her recollection of the events in question.”

Long ago, Hillary Clinton’s friend and law partner Vince Foster wrote that Washington was a place where “ruining people is considered sport.” He left those words in a note found after his 1993 suicide. Foster’s observation is undeniably true—but should not be. Mr. Trump promised to change the way Washington works, and has himself experienced the full force of this detestable Washington pastime since before he took office. By granting Scooter Libby a full pardon, he has taken a step toward changing Washington’s culture, and he has righted a grievous wrong.

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

Source: https://www.wsj.com/articles/trump-is-right-to-pardon-scooter-libby-an-innocent-man-1523658362

April 14, 2018
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FISA Abuses Are a Special Threat to Privacy and Due Process

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

Feb. 26, 2018, in the Wall Street Journal

The House Democratic surveillance memo is out, and it should worry Americans who care about privacy and due process. The memo defends the conduct of the Justice Department and Federal Bureau of Investigation in obtaining a series of warrants under the Foreign Intelligence Surveillance Act to wiretap former Trump campaign adviser Carter Page.

The Democrats argue that Christopher Steele, the British former spy who compiled the Trump “dossier” on which the government’s initial warrant application was grounded, was credible. They also claim the FISA court had the information it needed about the dossier’s provenance. And they do not dispute former FBI Deputy Director Andrew McCabe’s acknowledgment that the FBI would not have sought a FISA order without the Steele dossier.

The most troubling issue is that the surveillance orders were obtained by withholding critical information about Mr. Steele from the FISA court. The court was not informed that Mr. Steele was personally opposed to Mr. Trump’s election, that his efforts were funded by Hillary Clinton’s campaign, or that he was the source of media reports that the FBI said corroborated his dossier. These facts are essential to any judicial assessment of Mr. Steele’s veracity and the applications’ merits.

The FBI should have been especially wary of privately produced Russia-related dossiers. As the Washington Post and CNN reported in May 2017, Russian disinformation about Mrs. Clinton and Attorney General Loretta Lynch evidently prompted former FBI Director James Comey to announce publicly the close of the investigation of the Clinton email server, for fear that the disinformation might be released and undermine the bureau’s credibility. Read more »

February 27, 2018
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Can a President Obstruct Justice?

Yes, but not by doing any of the things we know Trump to have done.

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

Dec. 10, 2017, in the Wall Street Journal

Speculation about Special Counsel Robert Mueller’s investigation has turned toward obstruction of justice—specifically, whether President Trump can be criminally prosecuted for firing James Comey as director of the Federal Bureau of Investigation or for earlier asking Mr. Comey to go easy on onetime national security adviser Mike Flynn. The answer is no. The Constitution forbids Congress to criminalize such conduct by a president, and applying existing statutes in such a manner would violate the separation of powers.

The Constitution creates three coequal branches of government, and no branch may exercise its authority in a manner that would negate or fundamentally undercut the power of another. The power to appoint and remove high-level executive-branch officers, such as the FBI director, is a core aspect of the president’s executive authority. It is the principal means by which a president disciplines the exercise of the executive power the Constitution vests in him.

The same is true of Mr. Trump’s request, as purported by Mr. Comey: “I hope you can see your way clear . . . to letting Flynn go.” The FBI director wields core presidential powers when conducting an investigation, and the president is entirely within his rights to inquire about, and to direct, such investigations. The director is free to ignore the president’s inquiries or directions and risk dismissal, or to resign if he believes the president is wrong. Such officials serve at the president’s pleasure and have no right to be free of such dilemmas.

A law criminalizing the president’s removal of an officer for a nefarious motive, or the application of a general law in that way, would be unconstitutional even if the president’s action interferes with a criminal investigation. Such a constraint would subject every exercise of presidential discretion to congressional sanction and judicial review. That would vitiate the executive branch’s coequal status and, when combined with Congress’s impeachment power, establish legislative supremacy—a result the Framers particularly feared.

Mr. Trump’s critics claim that subjecting the president’s actions to scrutiny as potential obstructions of justice is simply a matter of asking judges to do what they do every day in other contexts—determine the purpose or intent behind an action. That is also wrong. The president is not only an individual, but head of the executive branch. Separating his motives between public interests and personal ones—partisan, financial or otherwise—would require the courts to delve into matters that are inherently political. Under Supreme Court precedent stretching back to Marbury v. Madison (1803), the judiciary has no power to do so. And lawmakers enjoy an analogous immunity under the Speech and Debate Clause.

The president’s independence from the other branches does not merely support “energy” in the chief executive, as the Framers intended. It also ensures that he, and he alone, is politically accountable for his subordinates’ conduct. If officials as critical to the executive branch’s core functions as the FBI director could determine whom and how to investigate free from presidential supervision, they would wield the most awesome powers of government with no political accountability. History has demonstrated that even when subject to presidential authority, the FBI director can become a power unto himself—as J. Edgar Hoover was for decades, severely damaging civil liberties.

There are limits to presidential power. The Constitution requires the Senate’s consent for appointment of the highest-level executive-branch officers—a critical check on presidential power. The Supreme Court has upheld statutory limits—although never involving criminal sanction—on the removal of certain kinds of officials. But the decision to fire principal executive-branch officers like the FBI director remains within the president’s discretion. A sitting president can also be subjected to civil lawsuits—but only in a carefully circumscribed fashion, to avoid impeding his ability to discharge the powers of his office.

The ultimate check on presidential power is impeachment. Even though Mr. Trump cannot have violated criminal law in dismissing Mr. Comey, if a majority of representatives believe he acted improperly or corruptly, they are free to impeach him. If two-thirds of senators agree, they can remove him from office. Congress would then be politically accountable for its action. Such is the genius of our Constitution’s checks and balances.

None of this is to suggest the president has absolute immunity from criminal obstruction-of-justice laws. He simply cannot be prosecuted for an otherwise lawful exercise of his constitutional powers. The cases of Richard Nixon and Bill Clinton —the latter impeached, and the former nearly so, for obstruction of justice—have contributed to today’s confusion. These were not criminal charges but articulations of “high crimes and misdemeanors,” the constitutional standard for impeachment.

And in neither case was the accusation based on the president’s exercise of his lawful constitutional powers. If a president authorizes the bribery of a witness to suppress truthful testimony, as Nixon was accused of doing, he can be said to have obstructed justice. Likewise if a president asks a potential witness to commit perjury in a judicial action having nothing to do with the exercise of his office, as Mr. Clinton was accused of doing.

Although neither man could have been prosecuted while in office without his consent, either could have been after leaving office. That’s why President Ford pardoned Nixon—to avoid the spectacle and poisonous political atmosphere of a criminal trial. In Mr. Trump’s case, by contrast, the president exercised the power to fire an executive-branch official whom he may dismiss for any reason, good or bad, or for no reason at all. To construe that as a crime would unravel America’s entire constitutional structure.

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

Source: https://www.wsj.com/articles/can-a-president-obstruct-justice-1512938781

December 11, 2017
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Apple, the FBI and free speech

A court order that compels the iPhone-maker to write and then sign new code may violate the First Amendment.

by David B. Rivkin, Jr., and Andrew M. Grossman, in USA Today

February 19, 2016

It would be one thing if Apple could carry out a court order that it unlock an iPhone used by the San Bernardino terrorists simply by waving a magic wand. But encryption isn’t magic; the order requires Apple to write and digitally sign a security-degraded version of its iOS operating system. That raises serious First Amendment concerns because the order amounts to a government-compelled speech.

The FBI picked this fight to set a precedent. For years, it’s been locked in a “crypto war” with Silicon Valley over how to provide law enforcement access to users’ data. So far, Apple, Google, and other companies have rebuffed demands to implement government back doors that defeat encryption and other security measures, arguing that such bypasses weaken security and facilitate abuses by criminals, corporate spies and foreign governments.

Apparently unable to identify a true ticking-time-bomb scenario to bring to court, the FBI settled for the next best thing: obtaining encrypted data off the workplace phone of shooter Syed Farook. The phone’s encryption is keyed to a passcode, and Apple’s software erases data after ten incorrect passcode attempts. So the government, relying on an aggressive reading of the 1789 All Writs Act, obtained an order directing Apple to “bypass or disable the auto-erase function” and make it possible to cycle through all possible passcodes.

While the FBI has previously obtained warrants requiring Apple to extract unencrypted data from devices running older software, this appears to be the first time that it has sought to conscript a company to write new software to circumvent security features. If it prevails, such a precedent will govern future cases. Read more »

February 19, 2016
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