David Rivkin, Constitutional Attorney and Media Commentator

Congress Can’t Outsource Impeachment

By David B. Rivkin Jr. and Elizabeth Price Foley

31 May 2019 in the Wall Street Journal

It’s as if nothing happened. Special counsel Robert Mueller and the Justice Department found no wrongdoing by President Trump, so House Democrats stepped up their calls for impeachment. Judiciary Committee Chairman Jerry Nadler issued a subpoena for millions of pages of evidence gathered by Mr. Mueller, including grand-jury material, which is secret under the law. When the department didn’t comply, Democrats said there was a “constitutional crisis,” and the committee voted to hold Attorney General William Barr in contempt.

Yet if there is a constitutional crisis, its source is the Democrats. They are abusing the powers of investigation and impeachment in an illegitimate effort to unseat a president they despise.

Congressional Democrats claim they have the power to investigate the president to conduct “oversight” and hold him “accountable.” That elides an important constitutional distinction. As the Supreme Court said in Watkins v. U.S. (1957), Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Executive departments and agencies are created by Congress and therefore accountable to it. The president, by contrast, is not a creature of lawmakers. He is Congress’s coequal, accountable to Congress only via impeachment.

To commence impeachment, the House has a constitutional obligation to articulate clear evidence of “high crimes and misdemeanors.” A two-year Justice Department investigation did not find that Mr. Trump had committed crimes. On the Russian collusion issue, Mr. Mueller reported that his investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Regarding obstruction of justice, Mr. Mueller “did not draw ultimate conclusions about the President’s conduct,” so the duty to do so fell on his boss, Mr. Barr—who, with senior Justice Department officials, concluded that the evidence was “not sufficient to establish that the President committed an obstruction-of-justice offense.” Read more »

June 1, 2019
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Obstruction of justice? Careful what you wish for, lawmakers

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 »

February 8, 2019
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Why Mueller can’t subpoena Trump

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

 

Donald Trump’s lawyers have signaled he won’t agree to a voluntary interview with special counsel Robert Mueller. If Mr. Mueller insists, he will have to subpoena the president. To enforce a subpoena, the special counsel would have to go to court and meet a highly exacting standard, showing what he wants and why he needs it. He would be unlikely to succeed, given that Mr. Trump already has cooperated extensively with the investigation, producing 1.4 million documents and making dozens of White House staffers available for interviews.

The leading precedent is a 1997 opinion, In re Sealed Case, by the U.S. Circuit Court of Appeals for the District of Columbia. The case involved the independent counsel investigation of former Agriculture Secretary Mike Espy, who was accused of receiving unlawful gifts. The independent counsel sought to obtain sensitive documents produced in the course of an internal White House inquiry. These materials involved the preparation of a report to then-President Clinton himself. Although Mr. Clinton had directed that most of the materials be provided, he asserted executive privilege to withhold some items.

At issue in particular was information regarding whether Mr. Clinton should discipline or fire Mr. Espy, who did resign. To justify producing such sensitive materials involving “the exercise of [the president’s] appointment and removal power, a quintessential and non-delegable presidential power,” the court required the independent counsel to demonstrate with “specificity” why he needed the materials and why he could not get them, or equivalent evidence, from another source. (Mr. Espy was acquitted in 1998.)

Mr. Mueller’s initial charge was to investigate Russian interference in the 2016 presidential election and possible collusion between the Trump campaign and the Russian government. But his investigation has expanded to cover whether Mr. Trump has obstructed justice. The president’s critics say his obstructive acts include urging then-FBI Director James Comey to “go easy” on former national security adviser Mike Flynn, subsequently firing Mr. Comey, and his public criticism of Mr. Mueller, Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein.

Read more »

August 23, 2018
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Mueller’s Fruit of the Poisonous Tree

By David B. Rivkin Jr. and Elizabeth Price Foley

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.”

Read more »

June 24, 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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Begging Your Pardon, Mr. President

How Trump can shut down the special counsel probe and leave the Russia investigations to Congress

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

Oct. 29, 2017, in the Wall Street Journal

The Trump presidency has been consumed by Special Counsel Robert Mueller’s efforts to uncover collusion between the Trump campaign and Moscow. Mr. Mueller reportedly has secured one or more indictments that he will announce Monday. Some Republicans now seek a new special counsel to investigate if the Clinton Campaign “colluded” with Russians to smear Candidate Trump, along with other aspects of the Clintons’ relationship with Russia and Russian nationals. But one special counsel already is one too many.

During the 1980s and ’90s, American politics was repeatedly distorted, and lives devastated, through the appointment of independent counsels under the post-Watergate Ethics in Government Act. These constitutionally anomalous prosecutors were given unlimited time and resources to investigate officials, including President Clinton, and scandals, such as Iran-Contra. Once appointed, almost all independent counsels built little Justice Departments of their own and set out to find something—anything—to prosecute. Hardly anyone lamented the expiration of this pernicious law in 1999.

But special counsels, appointed by the attorney general and in theory subject to Justice Department oversight, haven’t proved any better in practice. Mr. Mueller’s investigation has already morphed into an open-ended inquiry. It is examining issues—like Donald Trump’s private business transactions—that are far removed from the Russian question. It also has expanded its focus beyond the original question of collusion with the Russians to whether anyone involved in the Russia investigation has committed some related offense. That is evident from investigators’ efforts to interview White House aides who were not involved in the 2016 campaign, and from leaks suggesting that Mr. Trump’s firing of FBI Director James Comey might have “obstructed” justice.

That claim is frivolous, and it damages America’s constitutional fabric even to consider it. A president cannot obstruct justice through the exercise of his constitutional and discretionary authority over executive-branch officials like Mr. Comey. If a president can be held to account for “obstruction of justice” by ending an investigation or firing a prosecutor or law-enforcement official—an authority the constitution vests in him as chief executive—then one of the presidency’s most formidable powers is transferred from an elected, accountable official to unelected, unaccountable bureaucrats and judges.

Mr. Mueller’s investigation has been widely interpreted as partisan from the start. Mr. Trump’s opponents instantaneously started talking of impeachment—never mind that a special counsel, unlike an independent counsel, has no authority to release a report to Congress or the public. Mr. Trump’s supporters count the number of Democratic donors on the special-counsel staff. The Mueller investigation is fostering tremendous bitterness among Trump voters, who see it as an effort by Washington mandarins to nullify their votes.

Mr. Trump can end this madness by immediately issuing a blanket presidential pardon to anyone involved in supposed collusion with Russia or Russians during the 2016 presidential campaign, to anyone involved with Russian acquisition of an American uranium company during the Obama administration, and to anyone for any offense that has been investigated by Mr. Mueller’s office. Political weaponization of criminal law should give way to a politically accountable democratic process. Nefarious Russian activities, including possible interference in U.S. elections, can and should be investigated by Congress.

Partisan bitterness will not evaporate if lawmakers take up the investigation. But at least those conducting the inquiry will be legitimate and politically accountable. And the question of whether Russia intervened in the 2016 election, and of whether it made efforts to influence U.S. policy makers in previous administrations, is first and foremost one of policy and national security, not criminal law.

The president himself would be covered by the blanket pardon we recommend, but the pardon power does not extend to impeachment. If Congress finds evidence that he was somehow involved in collusion with Russia, the House can determine whether to begin impeachment proceedings. Congress also is better equipped, as part of its oversight role, to determine whether and how the FBI, Justice Department and intelligence agencies might have been involved in the whole affair, including possible misuse of surveillance and mishandling of criminal investigations.

There is ample precedent for using the presidential pardon authority to address matters of political importance. Certainly it is what the framers expected. As Alexander Hamilton explained in Federalist 69, the pardon power was to “resemble . . . that of the king of Great Britain.” In Federalist 74, he observed that “there are often critical moments, when a well-timed offer of pardon to . . . insurgents or rebels may restore the tranquility of the commonwealth.”

Securing harmony in the body politic was President Washington’s motivation when he offered amnesty to participants in the Whiskey Rebellion in the 1790s, and it was President Lincoln’s motivation when he issued an amnesty during the Civil War for Confederates who would return their allegiance to the Union. Similar reasons motivated President Ford to pardon Richard Nixon, and President Carter when he offered amnesty to Vietnam-era draft evaders.

Lincoln’s proclamation of Dec. 8, 1863, is an excellent model of a broadly drafted and complete amnesty: “I . . . do proclaim, declare and make known to all persons who have directly or by implication participated in the existing rebellion, except as hereinafter excepted, that a full pardon is granted to them . . . upon condition that every such person shall take and subscribe an oath” of loyalty to the U.S. A similar pardon can be issued with respect to the Russian affair, ending the criminal investigations and leaving the business to Congress.

Permitting the criminal law again to become a regular weapon in politics is more destructive of democratic government than ham-handed efforts by a foreign power to embarrass one or more presidential candidates. It is true that Washington’s Augean stables need periodic cleaning, but it is Congress that should wield the shovels.

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/begging-your-pardon-mr-president-1509302308

 

October 30, 2017
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