Why Mueller can’t subpoena Trump

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.

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The Rule of Law Prevails in the Travel-Ban Case

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.

Whatever one thinks of the travel ban as policy, the ruling is an important victory for the rule of law. Federal trial and appellate courts have persistently enjoined Mr. Trump’s orders, defying clear Supreme Court precedent supporting his power to limit the entry of aliens. The decision has removed all doubt that the president’s orders are lawful under both the Immigration and Nationality Act and the Constitution.

The justices made short work of the plaintiffs’ statutory claims, affirming that the Immigration and Nationality Act’s plain language gives the president the power to deny “any aliens or any class of aliens” entry to the U.S. whenever he finds that letting them in “would be detrimental” to U.S. interests. This provision, Chief Justice John Roberts wrote, “exudes deference to the President in every clause.” Mr. Trump’s proclamation, the justices concluded, was “well within this comprehensive delegation.” The court also concluded that a “searching inquiry” into the president’s justifications for the order, such as the lower courts in this case conducted, is inconsistent with both the statute and “the deference traditionally accorded the President in this sphere”—namely “international affairs and national security.”

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A Champion of Constitutional Safeguards

Days before President Trump announced his choice of Judge Brett Kavanaugh for the Supreme Court, Senate Democrats had vowed to oppose any nominee. Backed by an activist-fueled propaganda machine, they now will unleash relentless personal attacks—on Judge Kavanaugh’s Catholic faith, his “elitist” Yale degrees, his service in the George W. Bush administration.

As with the attacks last year on Justice Neil Gorsuch, they should be unavailing. Over Judge Kavanaugh’s 12 years on the U.S. Circuit Court of Appeals for the District of Columbia, he has developed an impressive record as a legal thinker and a champion of the Constitution’s structural safeguards against overweening government.

Typical is a 2008 dissent in which Judge Kavanaugh concluded that the Public Company Accounting Oversight Board was unconstitutionally structured because it improperly insulated the agency from political accountability. The opinion was a tour de force of historical exposition and originalist methodology—that is, interpreting the Constitution’s text as it was originally understood. The Supreme Court ultimately agreed, adopting the reasoning of Judge Kavanaugh’s dissent.

Yet he is equally wary of unbridled executive authority, as a 2013 case shows. When the Nuclear Regulatory Commission declined to proceed with licensing the proposed waste repository at Yucca Mountain, Nev., which the agency appeared to oppose on policy grounds, he wrote: “The President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”

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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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Unappointed ‘Judges’ Shouldn’t Be Trying Cases

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 »

Mark Janus Was With Hillary, Whether or Not He Wanted to Be

By David B. Rivkin Jr. and Andrew M. Grossman

Feb. 22, 2018, in the Wall Street Journal

Flash back to the Las Vegas Convention Center, July 19, 2016. The floor overflows with people chanting, “We’re with her!” A speaker proclaims, to cheers and applause, that we “will stand with her in every corner of this nation.” Then Hillary Clinton takes the stage as the crowd rises in a standing ovation. She thanks them for supporting her campaign and rallies them to knock on doors and get out the vote.

The event wasn’t organized by the campaign. It was the 2016 convention of the nation’s largest union representing public-sector workers, the American Federation of State, County and Municipal Employees. The state of Illinois forced Mark Janus —an Illinois employee who refused to join the union—to pay for a portion that pro-Hillary rally.

Across the U.S., more than 500,000 state and local workers have objected to funding union advocacy but are nonetheless required by law to pay “fair share” fees to labor unions they have refused to join. The Supreme Court upheld the practice in a 1977 case, Abood v. Detroit Board of Education, reasoning that otherwise workers could “free ride” on the union’s collective bargaining. Prohibiting unions from charging nonmembers directly for political speech, it believed, would protect their First Amendment rights.

On Monday the justices will hear oral arguments in a challenge to that 1977 decision brought by Mr. Janus. They should heed Justice Felix Frankfurter’s observation, in an earlier case on mandatory union fees, that it is “rather naive” to assume “that economic and political concerns are separable.” As Mr. Janus argues, bargaining over wages, pensions and benefits in the public sector involves issues of intense public concern and thus core First Amendment-protected speech. A state law that forces public employees to fund that speech violates their rights, no less than compelling them to speak. ( Janus v. Afscme doesn’t consider these questions for unions in the private sector.) Read more »