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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What’s at Stake in the Attack on Haspel

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

Gina Haspel reportedly offered last week to withdraw her nomination as director of the Central Intelligence Agency. The White House declined and now must stand behind her as she faces an unjustified assault involving the Bush administration’s enhanced-interrogation program.

Shortly after 9/11, the administration concluded that it needed to obtain as much actionable intelligence as possible to avert future attacks. It decided to explore, and ultimately adopted, the use of interrogation methods against some al Qaeda operatives far more rigorous than would have been permissible against lawful prisoners of war.

The administration was properly mindful of U.S. statutes and obligations under the United Nations Convention Against Torture. Even unlawful enemy combatants may not be subjected to torture or to cruel, inhumane or degrading treatment. Where to draw the line? It was not for the CIA, much less Ms. Haspel, to answer that question, but for the Justice Department’s Office of Legal Counsel, which advises federal agencies on the law.

OLC’s guidance, in the form of several memos issued in 2002 and 2003, was communicated through the CIA’s general counsel to agents in the field and was the basis on which the enhanced-interrogation program was carried out. The guidance was precise and unambiguous. It listed all the legally permissible interrogation techniques, backed up by appropriate safeguards. The details of this program were fully and repeatedly briefed to the so-called congressional Gang of Eight—the House and Senate majority and minority leaders and chairmen and ranking members of the intelligence committees. None raised a word of objection.

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May 10, 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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The Judicial ‘Resistance’ Is Futile

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

The U.S. Supreme Court does not act in haste, so the justices raised some eyebrows last month when they took only two weeks to agree to hear the government’s appeal of an immigration case. Normally it would have taken several months, and a ruling might not have come until 2019. Instead the court is expected to issue a decision in Trump v. Hawaii by the end of the current term, in June.

Why the rush? Because lower-court judges have been playing an extraordinary cat-and-mouse game with the Supreme Court over President Trump’s three executive orders limiting immigration from several terror-prone countries. Over the past year, numerous trial and appellate courts have enjoined those orders, only to have the high court stay their decisions.

The lower-court judges have defied precedent by holding that the president has neither constitutional nor statutory authority to issue these orders. They have improperly questioned Mr. Trump’s motives, even analyzing his campaign statements for evidence of bad intent. And they have responded to each reversal from the high court by spinning new theories to strike down the orders. The judges appear to have joined the “resistance,” and it wouldn’t be surprising if the justices concluded enough is enough.

The case the court will now review is the handiwork of the Ninth U.S. Circuit Court of Appeals, which engaged in an analysis that ignored key precedents and misapplied accepted canons of statutory interpretation. Read more »

February 7, 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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