David Rivkin, Constitutional Attorney and Media Commentator

Schiff’s ‘Obstruction’ Theory

By David B. Rivkin and Lee A. Casey

Nov. 14, 2019, in the Wall Street Journal

Is it an impeachable offense for a president to resist impeachment? House Intelligence Chairman Adam Schiff told CNN last week that White House officials’ refusal to testify in his committee’s impeachment probe could lead to “obstruction of Congress” charges against President Trump. At a press conference last month, he warned the White House against trying to “stonewall our investigation” and said: “Any action like that, that forces us to litigate or have to consider litigation, will be considered further evidence of obstruction of justice.”

He’s wrong. In the absence of a definitive judicial ruling to the contrary, the president has a well-established constitutional right—even a duty—to resist such demands. The Constitution authorized the House to impeach the president if it has evidence of “high crimes and misdemeanors,” but it does not require the president, who heads an equal branch of government, to cooperate in gathering such evidence. Accordingly, the Trump administration has refused to honor various document-production requests, and has instructed some current and former officials to ignore committee subpoenas.

Not all officials have complied with this instruction, but those who have—including former national security adviser John Bolton, former deputy national security adviser Charles Kupperman, chief of staff Mick Mulvaney and deputy White House counsel John Eisenberg—are acting lawfully and appropriately.

It has long been established that the president, and by extension his advisers, have two types of immunity from making disclosures to Congress. One applies to national-security information, the other to communications with immediate advisers, whether related to national security or not. Both immunities, when applicable, are absolute, which means they can’t be trumped by competing congressional needs.

The national-security privilege was most definitively explained in a 1989 memorandum from the Justice Department’s Office of Legal Counsel (OLC). It noted that the privilege is anchored in the longstanding right “not to disclose state secrets,” first asserted by President Thomas Jefferson and affirmed by the courts in 1807. Although the Supreme Court unanimously rejected an assertion of executive privilege for all presidential communications in U.S. v. Nixon (1974), it “unmistakably implied,” according to the OLC memo, “that the President does enjoy an absolute state secrets privilege.”

The privilege for communications with the small group of senior White House staff who are the president’s immediate advisers is equally well-grounded. The OLC first fully articulated it in 1971 under future Chief Justice William Rehnquist. The office has reaffirmed it many times under presidents of both parties in response to all manner of congressional requests.

The privilege is premised on the Constitution’s separation of powers: “The President is a separate branch of government,” a 1982 OLC memo put it. “He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it.” The president’s immediate advisers are effectively his alter egos. Compelling them to appear is the equivalent of compelling him.

This point bears emphasis. Congress also has absolute privileges from interference with its operations, including the Constitution’s Speech and Debate Clause. Under that protection, lawmakers may defy the executive branch—for example, by publicly reading classified information into the congressional record—and they have done so.

Both privileges apply to the situation at hand, in which Congress seeks information from Mr. Trump’s most senior advisers about sensitive issues of national security. Ultimately, the courts must determine whether the president may invoke these privileges and whether his advisers must comply with the Intelligence Committee’s demands. Mr. Kupperman has brought a lawsuit challenging the subpoena, which is now pending before Judge Richard Leon of the U.S. District Court for the District of Columbia. Mr. Schiff appears to have little confidence in his legal position, because he attempted to make the case moot by withdrawing the Kupperman subpoena. House lawyers asked the court to dismiss the action on that ground. Judge Leon refused.

The House claims it doesn’t want judicial review because of another pending lawsuit involving a subpoena. But that case is materially different. It was brought before the impeachment inquiry began and involves efforts to force former White House counsel Don McGahn to testify about the firing of James Comey as director of the Federal Bureau of Investigation and matters related to special counsel Robert Mueller’s investigation. It raises no question of national-security immunity, so it cannot resolve the question with respect to Mr. Kupperman—at least not in Mr. Schiff’s favor.

The House majority’s effort to avoid adjudication of its demands for testimony presents another key problem. Under Mr. Schiff’s legal theory of what constitutes an impeachable offense, the House must demonstrate that the president has engaged in quid pro quo conduct vis-à-vis Ukraine, where U.S. military aid was allegedly withheld to secure cooperation in investigating Hunter Biden’s association with Burisma Holdings, a Ukrainian energy company. Mr. Trump vigorously denies that he intended to withhold U.S. aid.

His state of mind is of utmost importance to the House’s case. Yet, the only witnesses who have provided testimony on the question had little if any direct contact with the president. Advisers like Messrs. Bolton, Kupperman and Mulvaney, by contrast, would have been in daily contact with him. If House Democrats are serious about impeaching Mr. Trump for his dealings with the Ukrainian president, obtaining a judicial ruling that they are entitled to this critical testimony should be their top priority.

Mr. Schiff’s claim that Mr. Trump is guilty of an impeachable offense if he “forces us to litigate” is preposterous. It is the president’s right and obligation to protect the institution of the presidency from inappropriate congressional demands. If Mr. Schiff believes he is right on the law, he should welcome the opportunity to put his case to a judge. His refusal to do so exposes the entire exercise as a partisan sham.

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/schiffs-obstruction-theory-11573776120

November 15, 2019
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This Impeachment Subverts the Constitution

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 »

October 26, 2019
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End the Media’s Campaign Privilege

By David B. Rivkin and Lee A. Casey

The Trump era has seen an erosion of the distinction between journalism and partisan politics, with much of the mainstream media in open opposition to the president. “Balance has been on vacation since Mr. Trump stepped onto his golden Trump Tower escalator . . . to announce his candidacy,” New York Times columnist Jim Rutenberg wrote in August 2016.

Three years later, the holiday continues. Slate last month published a leaked transcript of a staff “town hall” at the Times. “We built our newsroom to cover one story,” executive editor Dean Baquet told employees, explaining that the paper’s narrative “went from being a story about whether the Trump campaign had colluded with Russia and obstruction of justice to being a more head-on story about the president’s character.” The new story, he said, “requires deep investigation into people who peddle hatred.”

Mr. Baquet makes the Times sound like an advocacy organization working against Mr. Trump’s re-election. Such organizations are regulated by campaign-finance statutes. So are other corporations, for-profit or nonprofit, that engage in electioneering speech. But those laws exempt media organizations, provided they are not owned by a political party, committee or candidate.

The justification for this favored treatment is the media’s “unique” role in public discourse and debate. But that has changed—and not only because the media have become more partisan. “With the advent of the Internet and the decline of print and broadcast media,” the Supreme Court observed in Citizens United v. Federal Election Commission (2010), “the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

Read more »

September 4, 2019
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How to put citizenship back in the census

By David B. Rivkin Jr. and Gilson B. Gray

5 July 2019 in the Wall Street Journal

The Trump administration said Wednesday it will attempt to add a citizenship question on the 2020 census while complying with the Supreme Court’s ruling in Department of Commerce v. New York. Five justices held that the Census Act allows the question, but a separate five-justice majority found the rulemaking that added the question was procedurally deficient. There is a way forward. The Constitution itself requires the collection of citizenship information.

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.

The 14th Amendment was adopted in 1868, and this provision meant to secure the voting rights of newly freed slaves. But it wasn’t limited to that purpose. An earlier version of Section 2, introduced in 1865, specifically referred to limits on suffrage based on “race or color,” but the Senate rejected that limitation. The amendment forbids state interference with the rights of all eligible voters (then limited to males over 21).

Section 2 also applies to every state, a point Rep. John Bingham, the amendment’s principal drafter, emphasized during the floor debate: “The second section . . . simply provides for the equalization of representation among all the States in the Union, North, South, East, and West. It makes no discrimination.”

Congress has dealt with suffrage-abridgement problems through other constitutional and statutory means, especially the Voting Rights Act. But that doesn’t change the constitutional obligation to obtain citizenship data. A future Congress could decide to rely on Section 2 to enforce voting rights, particularly as the VRA’s core provision, requiring Justice Department approval when certain states change voting procedures, becomes irrelevant because of changing attitudes and Supreme Court precedent.

Read more »

July 6, 2019
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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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Demanding Trump’s tax returns is congressional overreach

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

17 May 2019 in The Hill

Democrats in Congress long have demanded that President Trump make his tax returns public. Many promised voters that, if given the House majority in the 2018 elections, they would force public disclosure of Trump’s returns. Indeed, they’ve demanded access to the president’s returns, but Treasury Secretary Steven Mnuchin has refused to give Congress that access. He was right to refuse. His action is firmly grounded in federal statute and the Constitution.

In April, House Ways and Means Committee Chairman Richard Neal (D-Mass.) demanded Trump’s tax returns from 2013 to 2018, invoking a federal statute (26 U.S.C. § 6103) that makes federal tax returns confidential. Other statutory sections, including 26 U.S.C. § 7213, make it a felony to disclose information in federal tax returns without proper authorization.

There are narrowly drawn exceptions to the general rule of confidentiality, including one that allows congressional tax committees to demand copies of individual tax returns. That information, however, cannot be made public without the taxpayer’s written consent. Secretary Mnuchin must have a well-grounded fear that one or more members of Congress would make the president’s returns public, hiding behind the Constitution’s speech or debate clause to escape prosecution. This factor alone can preclude the release of tax information.

There are, however, even more fundamental problems with the request. The committee’s stated purpose is to investigate how the IRS enforces tax laws against sitting presidents. That is an obvious pretext. Even if the Democrats’ posturing could be ignored, the fact that only Trump’s returns are sought — and not those of former presidents — makes the game clear. Read more »

May 19, 2019
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