And this is why we have the Speech or Debate Clause

Americans have had to endure many insults to the Constitution in recent months and years.  This week brought yet another, in the aftermath of the impeachment inquiry that recently began in the House: that is, the idea of the executive branch investigating members of Congress, hauling them into court, and criminally punishing them for things they say in legislative debate.  The Constitution explicitly forbids this, and for very good reason.

Yesterday, in front of the world, the President made the following public claim about Representative Adam Schiff, chair of the House Permanent Select Committee on Intelligence (HPSCI): “they should look at him for treason.”  When pressed on this bizarre claim at a subsequent press conference, the President did not disavow his earlier treason language, and stated that this was because Schiff “lied” when describing the President’s controversial July 25 phone call with Ukrainian President Volodymyr Zelenskyy.  At a HPSCI hearing following release of a memo that summarized the contents of the call, Schiff attempted to paraphrase the relevant portions by stating what he believed was the real meaning behind the President’s conversation with Zelenskyy.

At no point did Schiff represent that this interpretation of the call was a literal description of it; indeed, Schiff stated explicitly that he was interpreting the “essence” of the President’s remarks, which were “in not so many words” (video of Schiff’s opening statement is available here, from PBS). Moreover, everyone already had access to the call memo at the time of Schiff’s summary interpretation, so it should have been obvious to anyone paying attention that he was not literally quoting the President.  Nonetheless, the President said it should be “illegal” and “treasonous,” and earlier in the week, had Tweeted about Schiff’s speech, ending the Tweet: “Arrest for Treason?”

As is his habit, the President has completely and unapologetically misunderstood even the very basics of treason law.  Every so often, I am compelled to post about this phenomenon (see, e.g., here and here).  In fact, I have a new article forthcoming in the Hastings Constitutional Law Quarterly that addresses the problem of modern treason rhetoric (I don’t focus my criticism solely on President Trump — others are also offenders — but he plays a starring role nonetheles, because as President he oversees federal law enforcement, making his rhetoric uniquely problematic). However clumsy or inartful Schiff’s tactic may have been, Schiff did not levy war against the United States, nor did he “adhere” to any “enemy” of the United States by giving them “aid and comfort.”  That ends the treason inquiry.

The Framers crafted a very narrow definition of treason and explicitly rejected things like compassing and lese majeste.  Although President Trump’s behavior often seems to suggest that he views himself as the embodiment of the Nation, such that disloyalty to him is by definition disloyalty to the Nation, American treason law has never taken this view of the presidential office.  And I am confident that no one in the Justice Department — not even the President’s most obsequious sycophants — would pursue this.

But set aside, for the moment, the President’s ignorance of treason law. The President was actually suggesting criminal investigation and potential prosecution of a member of Congress for speech that occurred in the course of legislative debate over a matter unquestionably within the House’s jurisdiction.  But the Speech or Debate Clause of Article I, section 6 says that “for any Speech or Debate in either house, [Senators and Representatives] shall not be questioned in any other place.”

The Clause offers multiple protections for Members of Congress, and one of them is that Members cannot be sued or criminally prosecuted for actions that form “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings,” as well as acts “with respect to the consideration and passage or rejection of proposed legislation or with respect to matters which the Constitution places within the jurisdiction of either House.”  Gravel v. United States, 408 U.S. 606, 625 (1972).  Although the Supreme Court has placed some limits on the scope of the Clause, see, e.g., Hutchinson v. Proxmire, 443 U.S. 111 (1979), there is no question that Schiff’s statements in the hearing were plainly within the Clause’s protections.  So while the Clause does not cover everything that a Member of Congress does, where it applies its protection is absolute.

The Clause has its origins in English practice, to prevent the monarch from using threats of official punishment as a way to intimidate Parliament and coerce compliance with royal preferences or demands. Josh Chafetz’s excellent Congress’s Constitution ably describes the history of the Clause and explains why it is significant: if members of Congress could be subjected to lawsuits or criminal prosecution for their legislative acts, their ability to have meaningful debate about important matters would be “seriously hampered” and their ability to confront the executive and judicial branches would be compromised.  Imagine, for example, if President Trump could facilitate criminal prosecution of, or sue in tort, a Senator or Representative who did not accede to his wishes or who publicly criticized him.  Real debate would be stifled, and the President would have effective control over the legislature.  The Speech or Debate Clause safeguards the Congress against such intimidation and coercion, and thereby helps to ensure that Congress can perform its constitutional functions, including investigation and oversight of the other branches, without fearing official retribution from overzealous prosecutors or unfriendly judges.

What the President suggested this week — in addition to demonstrating a profound and dangerous misunderstanding of treason — is emphatically what the Constitution’s Framers sought to forbid.  We should add to the President’s reading list not only the Treason Clause of Article III, but Article I, section 6, as well.  Or, perhaps, the impeachment inquiry could also consider this new presidential offense against the Constitution.

 

Treason as “a legal matter”

In recent weeks, President Trump has continued his troubling practice of accusing folks of treason, clearly not having read the Constitution’s careful definition of treason nor any other authorities that would provide him with even an elementary understanding of American treason law.

In responding to a question last week, the President named several folks from the FBI who were involved in the initial investigation into his campaign, and said their conduct was “treason.”  (WaPo story here). Two weeks ago, he Tweeted that his campaign was “conclusively spied on . . . TREASON means long jail sentences, and this was TREASON.” (see here).  Add these to a long list of treason accusations from this President (see this earlier piece), who seems to conflate disloyalty to him personally with the forms of national disloyalty that are actually treasonous.

Of course, none of these situations that were the subject of the President’s ire actually implicate the law of American treason.  Those who conducted the investigation into the Trump campaign, for example, did not “levy war” against the United States, as that phrase has been long understood, nor did they “adhere” to an American enemy, giving that enemy aid and comfort.  Indeed, if the President believes that this was a species of Adherence Treason, then who, exactly, was the enemy that these public servants were aiding?  Alternatively, if he believes that their attempted “coup” (it was not that, of course) was tantamount to levying war (it wasn’t that, either), how could they possibly have been levying war against the United States?  Trump was, after all, a private citizen at the time.  And a presidential candidate’s campaign is not “the United States.”

The President’s suggestions on this matter are so inane that they cannot, and should not, be taken seriously.  Fortunately, many commentators have reached this very conclusion and said so publicly (see, e.g., here, and here and here), though I suspect the President will not hear any of us.

In a current research project, I amplify the concerns of some of these commentators and tackle the loose rhetoric of treason (by many, across the political spectrum, over recent years — I have covered this ground here before).  But I give particular attention to the dangers of such rhetoric when it comes from a President.  The President sits atop the American military command structure, oversees the work of federal law enforcement agents and prosecutors, and “takes care” that the laws are “faithfully executed.”  When a sitting President publicly accuses someone of a crime — particularly when that crime is of the most serious variety, defined by the Constitution, and punishable by death — the use of this language takes on special meaning and force.  And it can be especially dangerous and irresponsible.

Now, Attorney General Bill Barr has given an interview to Jan Crawford of CBS News, in which he is asked about the President’s suggestions that investigators on the Russian interference probe committed treason.  Somewhat remarkably, the Attorney General’s response was, “not as a legal matter.”

Okay.  But also: yikes.  Of course, he is right that none of this was treason “as a legal matter.”  But, what other kind of “matter” is there when it comes to treason?  Is there some other way of understanding treason that would justify the President’s statements?  Attorney General Barr seems to be implying that there is some extra-legal, political, or cultural construct for treason that one might plausibly use, though it be divorced from the law of treason.  Of course, it is comforting that he did not share the President’s view of treason.  But I fear that his suggestion here has, even if unintentionally, left open a justification for lobbing treason accusations unbounded by law.

Treason is, by definition, a legal matter.  So critical was a proper — and narrow — understanding of treason that the Framers refused to leave it to mere legislation; they constitutionalized it.  They rejected the broader definitions of treason that marked English law under the Statute of 25 Edward III.  They took great care to craft a sufficiently restrictive law of treason, one that could not be used to suppress mere political dissent or to oppress one’s political opponents. Moreover, when we state affirmatively that someone committed murder, or rape, or bank robbery, we necessarily use those terms as a legal matter, in the sense that we are alleging conduct that is previously defined by law and carries some legal consequence.  I suspect that if the President accused a specific person of rape or murder, we would expect a good faith basis for that assertion, one in which underlying facts are specifically applied to the elements of the offense.  We should expect no less when it comes to treason.

I worry, then, that the President’s rhetoric has further contributed to a popular belief that labeling someone as guilty of treason is an acceptable political epithet, one that can be used casually — and for political advantage — without any reference to its legal understanding, history, or background. This rhetoric has invaded national security politics, and has the potential to undermine the seriousness with which Americans should take treason. For this reason, Barr should simply have said to Crawford, “no, there was not treason,” and left it at that.  Saying there was not treason “as a legal matter” is accurate, but also sounds just equivocal enough to invite confusion, and mischief.

 

The McGahn subpoena, executive privilege, and congressional needs

In my last post, I suggested that the publication in the Mueller Report of former White House Counsel Don McGahn’s statements to investigators probably waives the presidential communications privilege as to those statements.  It might not, however, waive the privilege as to matters unreported or not revealed in the investigation.  This raises an interesting question: if Congress could only ask McGahn about information it already has (in the form of the Mueller Report), why call him at all?  Wouldn’t his testimony be simply cumulative of the Report?

First, the President’s tweets come back to haunt him once again.  If he says McGahn is lying, or that the Report falsely states the facts about his communications with McGahn, then Congress is entitled to explore the discrepancy between the President’s assertions and the evidence described in the Report.  Remember also that Attorney General Barr’s determination that there was no obstruction crime only binds the Justice Department, not Congress.  The House has independent constitutional authority to determine whether high crimes and misdemeanors were committed, and could very well adopt the theory of obstruction that the Mueller Report sets forth (but that Barr rejected).  Compare, for example, Josh Blackman’s skeptical analyses at Lawfare (here, here, here) with this letter from former federal prosecutors, arguing that the President would have been charged with obstruction if he were not insulated by internal DOJ policy.  Given the already simmering debate about the underlying criminal law, then, any dispute about underlying facts would justify even more congressional investigation, not less.

Second, even if McGahn ultimately testifies only as to what is contained in the Mueller Report, the House can argue that there is value in hearing this story told live, before a worldwide television audience, and subject to questioning.  In that context, his credibility can be evaluated and the public can determine whether he is telling a believable story about the President’s conduct.

Finally, and more fundamentally, the biggest issue is whether the House can compel testimony that is otherwise covered by the executive privilege (assuming it, or at least some of it, is).  The answer is yes, though it would likely result in a major fight, and one that the House could very easily lose. (Jonathan Shaub has this excellent analysis over at Lawfare, covering important ground on the McGahn matter).

Much has been written on the subject of congressional demands for information versus presidential assertions of privilege, so I will refrain from covering the case law and literature as a whole.  It suffices to say that the executive privilege generally — and the presidential communications privilege, in particular — is qualified, not absolute.  Just as the Supreme Court held in Nixon that it must yield to the demands of justice in a criminal case, so, too, have courts recognized that the privilege is qualified as against congressional process.  See House Committee on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008).  If Congress can show both substantial need and that the information it seeks is otherwise unavailable, then it could potentially overcome the privilege.

The question then is how Congress could enforce the subpoena.  The DOJ has taken the position that an executive branch official cannot be prosecuted for criminal contempt where he or she lawfully relies on a presidential claim of executive privilege.  See 8 Op. OLC at 140.  (The same DOJ document argued that Congress’s inherent contempt power also does not extend to such situations, see id. at n.42, but it is hard to see how Congress is bound by this determination, and it is not clear that the memo is even correct about this).  Barring unlikely use of inherent contempt in this situation, the practical result would be a protracted civil enforcement proceeding — which the OLC memo specifically acknowledges to be a viable method of vindicating congressional interests.  Id. at 137.

As to McGahn (and other potential witnesses), in my view, the House has an even greater chance of prevailing in a subpoena fight regarding executive privilege if the information it seeks is necessary to an impeachment inquiry.  This is not essential, and the House could theoretically prevail without it.  For example, thanks to the President’s tweets denying the evidence regarding McGahn, Congress could argue a need to resolve the factual question, and that evidence is otherwise unavailable except through direct testimony from McGahn.  But beyond this, absent some specific legislation for which McGahn’s testimony would be critical, impeachment would dramatically sharpen the House’s showing of need, and perhaps earn greater deference from the judiciary in a civil enforcement proceeding.

Of course, some House Democrats are reluctant to start that process formally (though for reasons that seem to have more to do with electoral politics and their fears about 2020 than the legal and constitutional merits of an impeachment inquiry).  But their hand would likely be strengthened in any ensuing litigation if their inquiries are part of the impeachment process.  And based on the Mueller Report, McGahn would almost surely be critical to any impeachment inquiry.

The McGahn subpoena and waiver of executive privilege

At yesterday’s hearing before the Senate Judiciary Committee, Attorney General Bill Barr was asked about whether former White House Counsel Don McGahn would be permitted to testify before Congress.  McGahn is mentioned prominently and repeatedly throughout the Mueller Report, most notably with respect to the Special Counsel’s analysis of whether the President criminally obstructed justice by allegedly ordering McGahn to see to the firing of the Special Counsel and then by allegedly telling McGahn to fabricate a record about whether the President had done so.  See Mueller Report, Vol. II, at 81, 85-90, 113-20.  McGahn spoke voluntarily to Special Counsel investigators, and the White House never asserted executive privilege as to his testimony.

Now, McGahn is the lucky recipient of a House Judiciary Committee subpoena.  Did the President waive the privilege, such that it could not be invoked to forbid McGahn’s testimony before House Judiciary?

General Barr was emphatic yesterday in stating that the privilege had not been waived (though this is a separate issue from whether McGahn would be permitted to testify in any event).  We also now know that White House Counsel Emmett Flood has argued that there was no waiver.  The conventional wisdom here, however, is that the President waived the privilege because the information was revealed to a third-party, without objection from the President.  For this reason, waiver may well be the right outcome.  But the issue may be more complicated than it first seems.

Let’s assume that the presidential communications privilege applies here.  Of course, there could be some question about that.  For example, after the Report was released, the President issued a tweet in which he questioned the accuracy of McGahn’s reported statements: “I never told [] McGahn to fire [] Mueller,” he said, claiming this was more “fake news.”  So what, exactly, is the material for which confidentiality is sought?  That’s important, because the privilege only extends to matters that are “quintessential and non-delegable” presidential powers.  See In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997).  Although appointment and removal usually fit that category — e.g., removing a cabinet officer — the Special Counsel is removable only by the Attorney General.  See 28 C.F.R. 600.7(d).  This raises some question as to whether the discussion about firing Mueller relates to a “quintessential and non-delegable” presidential power that cannot be exercised by another officer.

But, assuming arguendo that the communications are otherwise privileged, two questions arise: 1) was the presidential communications privilege waived?  And 2) even if not, could McGahn still be compelled to testify?  I’ll try a quick analysis of the first question here, with reference to just a couple of relevant cases.

In In re Sealed Case, the court of appeals considered whether the Clinton White House had waived the privilege with respect to documents created in the investigation of former Secretary of Agriculture Mike Espy.  The White House Counsel’s Office conducted its own investigation of Espy and issued a report that was publicly released.  A grand jury then issued a subpoena for the documents related to the report, and the White House asserted privilege.  The Office of Independent Counsel argued waiver and moved to compel production to the grand jury.  The D.C. Circuit agreed that waiver applied to “specific documents that [the White House] voluntarily revealed to third parties outside the White House.”  Id. at 237.  This included the report and a document sent to Espy’s lawyer.

But consider also the district court’s opinion in Citizens for Responsibility and Ethics in Washington (CREW) v. U.S. Dep’t of Justice, 658 F. Supp.2d 217 (D.D.C. 2009).  There, CREW brought a FOIA action to obtain records of Vice President Cheney’s interviews with the FBI, as part of the Special Counsel investigation into exposure of Valerie Plame’s identity as a covert CIA operative.  The House Oversight & Government Reform Committee also sought the records via subpoena, so the CREW request was co-extensive with the congressional request.  But President Bush asserted executive privilege, and the succeeding Obama DOJ fought disclosure.

CREW argued that the White House waived the privilege once Cheney voluntarily disclosed the information to the Special Counsel investigators — a third-party outside of the White House.  But, after discussing Sealed Case, Judge Sullivan concluded that not every disclosure to a third-party amounts to waiver.  In this case, although Vice President Cheney had revealed the information to a third-party outside the White House, that party was a federal law enforcement officer, who works in the executive branch (though is also to some extent independent) and exercises executive functions.  Therefore, Judge Sullivan determined, Cheney’s voluntary disclosure was a protected inter-agency disclosure and the privilege had not been waived, even though the White House never formally invoked the privilege.

Because McGahn’s disclosures were made to investigators working within the executive branch, it is tempting to conclude that, pursuant to CREW, there is no waiver.  Moreover, as in both CREW and Sealed Case, the White House could argue here that although it never formally invoked the privilege, both courts held that no formal invocation is necessary to sustain the privilege later.  And although the claim in CREW arose under FOIA, which contains an exemption for inter-agency documents, the court’s discussion of the presidential communications privilege does not appear to be unique to the FOIA context.

CREW, though, should not be overstated. Perhaps the most important distinction between Cheney’s disclosures and the McGahn disclosures is that McGahn’s statements were released to the entire world in the Mueller Report.  By contrast, Special Counsel Fitzgerald never issued a similar public report (and was emphatic about not doing so, see here).  Therefore, McGahn’s statements are more like those that would have been contained in the Clinton White House’s Espy Report, where the privilege was considered waived.  That is, the disclosures were not merely to another executive branch official, but — ultimately — to the public. That proverbial cat, then, is out of the bag.  See also Center for Effective Government v. U.S. Dep’t of State, 7 F. Supp.3d 16 (D.D.C. 2013) (distinguishing CREW and finding privilege did not extend to presidential directive that was widely distributed throughout executive branch).

Moreover, the waiver analysis should not turn on the fact that the request is coming from Congress rather than a grand jury.  Flood’s letter to Barr makes this argument, that the privilege has special force in the context of congressional requests because of the separation of powers.  He also says that there is a difference between wanting aides to voluntarily cooperate with a criminal investigation, on the one hand, and giving information to Congress, on the other.  But nothing in CREW or other cases suggests that the inference of waiver is stronger in one instance as compared to the other.  And, though Flood’s position is worth serious attention, the separation of powers argument could actually cut the other way: Congress has constitutional powers that require it to receive certain information, even when (sometimes, especially when) the information comes from a coordinate branch.  See this post.  A mere assertion of the privilege does not categorically mean the President prevails.

That said, if Congress seeks information from McGahn that is not covered by the Mueller Report, then there is a legitimate argument that the privilege as to such information — assuming it otherwise meets the criteria for invoking the presidential communications privilege — is not waived merely because it is waived as to other statements (those that were disclosed in the Report).  And that would arguably be true even if the unreported information was disclosed to third-party law enforcement agents during the Mueller investigation.

If this is the right analysis, and Congress can only have access to those statements by McGahn that are already in the public record via the Mueller Report, why bother subpoenaing him at all?  I’ll address that in the next post.

“The necessity of auxiliary precautions”

Madison reminds us in Federalist #47 that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”  Later, in Federalist #51, he explains the safeguards against a “gradual concentration” of power into one department: giving each department the “constitutional means and personal motives” to resist encroachments.  There is considerable, and legitimate, debate about the wisdom, legality, and efficacy of the current House investigations into the President’s conduct and whether he has abused his office and powers.  But perhaps the chief virtue of a robust investigative posture is this: to ensure that Congress does not yield permanently to a presidential leviathan and descend further into constitutional obscurity.

The President’s responses to the Mueller Report and to the House’s effort to learn more about his conduct, and those of his congressional defenders, give sufficient reason for concern about both the aggrandizement of executive power and the diminution of Congress.  A President in our system usually cannot accumulate power unilaterally — it requires the complicity of those serving in another branch of government.  Consider: the insistence of presidential defenders, including those in the legislative branch, that he has not engaged in any conduct worthy of further investigation; the President’s contumacious opposition to congressional investigations and compulsory process, and the obsequious adherence to the President’s interests — rather than institutional interests of the Congress — by congressional Republicans; and his suggestion (see here) that he would take any impeachment case “first” to the Supreme Court (setting aside, apparently, any concerns about the Court’s Article III jurisdiction, but clearly assuming that the judiciary will defend him and not Congress).  The concern that this may be a President grasping for omnipotence is especially troubling when one considers that, according to this Politico report, some of his supporters view him as literally being sent by god.  Consequently, all members of Congress, of both parties, should fear the grave consequences of allowing the President to steamroll the legislative branch time and again — all while presidential loyalists in the legislature either stand idly by or, worse still, root for the steamroller.

Consider also that the current House investigations exist alongside two other notable factors: the Justice Department’s position that a sitting President cannot be indicted, and a presidential election next year.  If a President cannot be indicted and prosecuted while in office, perhaps this increases the pressure on Congress to investigate and, potentially, impeach.  Yet one argument I hear repeatedly is that ordinary voters do not talk, or really care, about the Mueller investigation, Russian election interference, or possible presidential criminality.  They care, it is said, about their financial condition, taxes, health care, and drug prices.  Therefore, the argument goes, rather than wasting time and resources on investigations that make Congress look vindictive, we should simply allow the voters to decide whether the President’s conduct and performance in office justify re-election.

For multiple reasons, there is fault in that formula.

First, Congress does — and should — spend considerable time and resources on a range of matters that average voters are not discussing night after night at the kitchen table.  It is unlikely that most voters are grappling with who should serve on the Federal Reserve Board or sit on a United States District Court in some distant state, or which research on deadly diseases gets the most funding, or how much should be spent on a particular military aircraft,  or what the punishment should be for some new federal crime.  But these are matters of significance to legislators.  Congress should not forego its consideration of such matters merely because voters do not ask about those matters at town halls or campaign stops.  I suspect most voters understand this, and appreciate the import of those matters even if they do not drive dinner-table conversation.

Members of Congress take an oath to “support and defend” the Constitution.  Determining whether the President has abused his office, violated his oath, or failed to take care that the laws are faithfully executed might not make the kitchen table or campaign conversation.  But presidential accountability is essential to ensuring a safe government and a meaningful separation of powers.  I suspect most voters, deep down, do care about the integrity of their constitutional government and the American rule of law.

Second, information gathering is key to Congress’s constitutional functions.  If the President or others in the administration can persist in preventing Congress from acquiring the information it seeks, then Congress cannot effectively craft remedial legislation or hold public actors accountable.  The President and others may not only escape responsibility, but in so doing, they can also inhibit the functioning, and diminish the role, of the Congress in the constitutional system — to the ultimate aggrandizement of the executive.  This is yet another reason why congressional impotence can have the effect of producing that “gradual concentration” in a single branch, of which Madison warned.

This is not to say that President Trump is somehow unique in resisting congressional investigative authority.  Presidents of all parties battle with Congress, often over access to information.  Conflict between the political branches is ordinarily a good thing, where each branch is asserting its own constitutional prerogatives.  And usually, the conflict is resolved through the processes of negotiation and accommodation.  President Trump, however, appears to be taking an absolute position against the House’s investigative power — and does not appear to be doing so based on any legitimate Article II claim.  The current episode therefore potentially poses a far greater threat to constitutional equilibrium than many of the typical access-to-information disputes of the past.

Third, the President has a constitutional obligation to preserve, protect, and defend the Constitution, as well as a mandate pursuant to the Take Care Clause.  In my view, unless the President is acting to protect a constitutional right or his own constitutional powers under Article II, he must respect and safeguard the Congress, including Congress’s information-gathering authority in aid of its legislative powers.  If he fails to do so — again, without reliance on a conflicting constitutional power or right — then his failure amounts to an abuse of his office that is subject to the institutional check  of impeachment.  That the President does not like the subject matter of the investigation, or believes that the investigation is motivated by partisanship or electoral politics, or that it will reveal damaging information, is not a sufficient ground for undermining legitimate exercises of legislative authority.

Of course, Congress is capable of overreaching, of engaging in oversight and investigation that is hyperpartisan, ill-conceived, or unwarranted.  A gradual concentration of power in Congress is no better than a gradual concentration of power in the executive.  Congressional investigation is almost always better for the constitutional system, and the place of Congress in it, when it is bipartisan.  But that is unlikely at the moment.  Nonetheless, the current investigative efforts by the House are not petty exercises.  They are central to the preservation of Congress’s place in the constitutional separation of powers, and to ensuring that the presidential leviathan does not swallow all rival interests.

Though it may seem appealing to rely on the next election as the manner by which the President is judged, supplanting congressional power with a presidential election will do nothing to guard against presidential accumulations of power.  And if the President wins, the problem will only worsen, Congress having once again ceded its role when it had the chance to do otherwise.  As Madison reminds us in Number 51: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

 

 

 

Why Congress is entitled to all of the Mueller Report (maybe, if it really wants it)

Early 2019 brought two historic developments in American law and politics: the Democratic Party’s takeover of control in the House of Representatives, and, now, the conclusion of Special Counsel Robert Mueller’s investigation into Russian election interference and related matters.  Today, these two developments are overlapping in ways that are critical to our understanding of American constitutional government and the separation of powers.

The Attorney General recently identified Mueller’s “principal conclusions” in this letter to the House and Senate Judiciary Committees.  He said that Mueller could not establish a criminal conspiracy or coordination between the Trump Campaign and the Russian Government, but that Mueller also could not exonerate the President on the question of whether he obstructed justice (Attorney General Barr then took the liberty of concluding that there was insufficient evidence of obstruction).  Notably, because of the possible inclusion of grand jury information in the Report, Attorney General Barr’s letter also suggested the potential need to redact some of the Report before its public release.  Given the change in House control, however, it was inevitable that the Democratic chairs of the relevant House committees, including House Judiciary, would — as they now have (see here) — seek the full and unredacted Report.

They should get it.  Probably.

It is true that the Federal Rules of Criminal Procedure, as enforced through federal criminal law, provide for the secrecy of grand jury information (see Rule 6 here).  It is also true that federal criminal law protects classified information from unauthorized disclosures.  There are good reasons for both of those prohibitions and they should generally be strictly observed.  There are, of course, exceptions to those disclosure prohibitions.  But more importantly, those prohibitions are the subject simply of rules and statutes — non-constitutional justifications for nondisclosure of information.  When Congress seeks information through its investigative authority, however, it is exercising a constitutional power.

As long as Congress is seeking the information in aid of its legislative powers, it (though not the general public, necessarily) should typically have access to whatever information it deems appropriate for the exercise of those powers.  That standard would not be difficult to satisfy in this instance.  The information in the Mueller Report — including information otherwise subject to redaction — could be useful to the Congress in either crafting legislation (such as, for example, a new election security law, or new anti-corruption laws for federal officials) or in carrying out its constitutional power to impeach for treason, bribery, or other high crimes and misdemeanors.

Indeed, notwithstanding Attorney General Barr’s conclusion on obstruction, as well as the political difficulty (if not impossibility) of President Trump’s conviction and removal by the Senate, the House is not bound by the Attorney General’s determination that the evidence of obstruction is insufficient.  That conclusion has dispositive force in the Executive Branch, to the extent that it takes a criminal prosecution off the table.  But Congress could independently examine and weigh the evidence, and reach a different conclusion.  The House, of course, cannot prosecute the President for a crime or order his prosecution by the Justice Department, but it can conclude that there is evidence of a high crime and misdemeanor sufficient to warrant impeachment proceedings.

Consequently, the heirarchy of authority here suggests that Congress’s constitutional power to investigate in aid of Article I supersedes a rule or statute on nondisclosure, even a sensible one.  This would justify both a subpoena as well as a request for a court order commanding disclosure (again, to Congress, though not necessarily to the public).

The best rejoinder to this from the Executive would rely not merely on rule or statute, but rather on a claim that nondisclosure of grand jury or classified material would be necessary to the fulfillment of the President’s constitutional powers.  If that is the case, then we have a bona fide constitutional showdown, with the President’s Article II authority being used to counter Congress’s Article I authority.  These types of showdowns have happened with some frequency in congressional history, where Presidents have asserted executive privilege to resist disclosures to Congress.  Though those impasses are typically resolved with mutual accommodations, they have produced a few temporary constitutional confrontations of note.  The competing constitutional claims are not easy to resolve.

Here, however, we potentially have a different kind of constitutional confrontation.  The President has said publicly, on multiple occasions (see, e.g., here and here), that he does not object to public disclosure of the Report.  Of course, he has also said that the scope of disclosure is “up to the Attorney General,” but the Attorney General cannot unilaterally claim executive privilege.  Barring such an assertion from the President, then, the Attorney General would have to argue that disclosure of otherwise protected material would, for example, interfere with the President’s duty to take care that the laws be faithfully executed.  That argument may have particular force where the material at issue relates to ongoing investigations or prosecutions (investigations or prosecutions with which Congress may not want to interfere anyway), or internal deliberations at Justice.  Given General Barr’s generous view of presidential powers, it is not difficult to imagine him making such a case with respect to some material.  Indeed, the Justice Department is generally loathe to disclose information, even to Congress, about internal prosecutorial decision-making, so as to protect its Article II prerogatives.  It is therefore notable that General Barr has expressed willingness to disclose even significant portions of the Report.

Of course, Congress may not really want an entirely unredacted Report (for reasons I have identified, and which Michael Stern identifies here).  Also, much of the information in the Report may not even be subject to the grand jury secrecy rules (again, see Stern’s post here).  So this controversy may be overstated.  And if members of Congress do receive access to sensitive information, they should treat that information with great care and discretion, to protect the integrity of the grand jury system as well as national security (though it is also worth noting that if a member of Congress discloses information in the Report in the course of performing a legitimate legislative act, such as during a committee hearing, the Speech or Debate Clause protects the member against criminal prosecution, see, e.g., Gravel v. United States, 408 U.S. 606 (1972)).

Still, unless it encounters a credible Article II-based constitutional argument for nondisclosure, Congress should — if it really wants it — be entitled to the full Report as a consequence of its investigative and impeachment authority.

On a related note, I am grateful to the Wayne Law Review for publishing my recent piece, Congressional Law Enforcement. The article tackles some of the investigative tools that the new House majority possesses, and some of the legal issues that attend the use of those tools.  Although I wrote and published the paper before the midterm elections, the analysis has special force now that one-party rule has ended and there is a more robust exercise of congressional oversight and investigative authority in the House.  I am also grateful to LegBranch and the R Street Institute for inviting me to publish this blog post last Fall that summarizes my work in the article.

 

RIP, John McCain

Captain John McCain was a bona fide American hero.  Country First was not simply a campaign slogan to him.  It was, rather, a principle for which he constantly strove in his extraordinary life.  And it became a principle that, over time, too often separated him from many others in power.

One of my greatest fears is that current and future generations of political leaders in America will choose the wrong models on which to pursue public service.  They will, I fear, too often take their cues from ideologues, blind and unthinking partisans, charlatans, panderers, and seducers.  I hope I am wrong.  I hope, rather, that their model for public life will be one who is faithful to the Constitution; who is smart and independent, courageous and strong, good-humored and witty, but sensitive to the seriousness of political life and public service; who detests pettiness and tribalism and who subordinates partisanship to the national interest; who champions sound institutions and a robust rule of law; and who comprehends the fragility of democratic rule.

John McCain was such a model.  May his legacy live forever in the hearts and minds of the American people, whom he honorably served and for whom he fought and sacrificed.  Country First, indeed.

Requiescat in pace.

 

Complicity and willfulness in the Trump-Cohen saga

Michael Cohen’s guilty plea and colloquy in federal district court this week has fueled much commentary and speculation about the President’s own personal criminality.  I want to simultaneously amplify the concerns about President Trump’s potential criminality and also urge some caution.

Much of the commentary has focused on Trump’s liability as a co-conspirator (the phrase “unindicted co-conspirator” has now been used with some frequency).  If the President formed an agreement to commit a crime, and someone in the conspiracy took an overt act in furtherance of that agreement, then, yes, the President would be on the hook for conspiracy.

Overlooked in the commentary is Trump’s potential complicity liability, in addition to his potential conspiracy liability.  Under federal law, if a person aids and abets a federal crime, or counsels, commands, induces, or procures another to commit a crime, then that person is treated as a principal.  See 18 U.S.C. 2(a).  That is, the aider and abettor — the accomplice — is punished just as if he or she personally committed the crime.  If Trump even so much as encouraged Cohen and/or others to commit a federal crime, then he is also punishable for that crime as a principal.

Moreover, as I discussed in a previous post, once a person enters into a conspiracy, he or she is criminally responsible not just for the conspiracy but also for any substantive crime committed by any member of the conspiracy, as long as the crime was reasonably foreseeable and within the scope of the conspiracy.  See Pinkerton v. United States.

This all sounds very bad for the President (and we haven’t even covered accessory after the fact liability or conspiracy to defraud the United States).  Here, though, are reasons to be cautious.

First, the underlying campaign finance offenses to which Cohen pleaded guilty and implicated the President require that the defendant have acted “willfully.”  See 52 U.S.C. 30109(d).  In federal law, this generally means that the defendant voluntarily and intentionally violated a known legal duty — in other words, it requires knowledge that the conduct was unlawful.  See, e.g., Cheek v. United States.  We generally say that “ignorance of the law is no excuse,” but willfulness in federal criminal law is usually an exception to that general rule.

So it is possible, as long as it is done in good faith, to negate the mens rea element of these offenses by claiming lack of knowledge of illegality, whether that claim is reasonable or unreasonable.  Whether and how this extends to complicity liability, though, is tricky and depends upon whether Section 2(a) liability requires proof that the aider and abettor acted with the mens rea required by the underlying offense statute.  (The Second Circuit has consistently held that the mens rea required under Section 2(a) is the specific intent to advance or facilitate the commission of the underlying crime.  See, e.g., United States v. Lange, 834 F.3d 58, 69 (2nd Cir. 2016)).

Even where willfulness must be proven, though, claiming ignorance is no guarantee of security against conviction.  Yes, the burden is on the Government to prove the willfulness element beyond a reasonable doubt, but the Government clearly believed that it had sufficient evidence to charge Cohen and prove every element of the campaign finance offenses. The prosecution even alluded in court to the kinds of evidence that it possessed, which appeared to be substantial.  Though Trump and Cohen might not be similarly situated (Cohen is a licensed attorney), perhaps there is also evidence that would show that Trump knew that the payments were unlawful.  And given the changing stories about this matter from the President, if the President attempted to cover up the payments, that could strengthen a case for criminality by evincing consciousness of guilt.  The bottom line: don’t ignore the mens rea associated with these campaign finance offenses.

Second, I have discussed previously my belief that impeachment talk should not be avoided based simply on political calculations, where impeachment would be appropriate based on the facts and the law.  But I worry that any discussion of impeachment based on the Cohen admission alone is premature.

Quite apart from needing more evidence, there is also the problem of whether an official can be impeached for conduct that occurred prior to his taking office.  If one adheres (as I do) to the notion that the Impeachment Clause of Article II, section 4 does not mandate a violation of the formal criminal law, but that “high crimes and misdemeanors” does require an abuse of power or of the public trust by a public official, then impeaching for conduct committed by a private citizen is problematic, though perhaps not insurmountable.

One way to avoid that problem might be to say that the conduct is impeachable if it relates to the processes by which the person who is now an official obtained his or her office (as would be the case here), and is otherwise a serious offense against the state.  Another way to avoid the problem might be to demonstrate that any conspiracy, other criminality, or cover-up (if any) extended into the President’s term of office.  Either way, though, this would almost surely be a contested issue in any impeachment debate arising out of the hush-money payments.

Finally, of course, there remains the Justice Department’s current general position against indicting a sitting president — a position that, quite naturally, makes impeachment talk all the more important.

But just because the alleged conduct, if true, might be neither criminally prosecutable nor impeachable does not mean that it should be ignored or tolerated, particularly by Republicans.  Neither should the President’s bizarre and typically ill-informed appearance on “Fox & Friends,” which aired yesterday.  The President praises convicted felon Paul Manafort as someone for whom he has “great respect,” while attacking and disparaging the men and women of law enforcement.  He criticizes the use of cooperators in criminal investigations and prosecutions, while misunderstanding the rigorous processes for vetting those witnesses and their importance in many cases (e.g., gang, drug trafficking, and terrorism investigations).

Lastly, and tellingly, the President says that the “only reason” he appointed Jeff Sessions as Attorney General was because he felt “loyalty” to Sessions as an “original supporter.”  Not because of Sessions’s commitment to the law or the Constitution or any other substantive qualification for the job.  Just loyalty to Trump. Republicans, in particular, should consider carefully whether that statement alone tells them everything they need to know about the leader of their Party and his attitude toward the rule of law.

Pinkerton liability in the Special Counsel’s probe

The Special Counsel’s recent indictment of 12 Russian military intelligence officers, combined with the news that Michael Cohen could inform federal prosecutors that President Trump knew of the infamous June 2016 Trump Tower meeting in advance, has created a flurry of media speculation about the President’s potential crimes in connection with the last presidential election.  Some of that speculation has focused on the possibility of a conspiracy between American persons (such as President Trump and/or his son, Donald Trump Jr.) and Russian regime operatives.  It is sensible to think that indictments of U.S. persons will be forthcoming, even if they do not name the President or those closest to him.

For those looking merely for “collusion,” one could do worse than look to the Trump Tower meeting.  But as I and others have said repeatedly, “collusion,” as such, is not a federal crime.  And its most relevant criminal analogue — conspiracy — could be difficult to prove.  However difficult to prove in this investigation, though, federal conspiracy law may offer the most comprehensive mechanism for both liability and leverage, depending upon the facts.  So in light of the recent revelations, I want to add some cautionary thoughts, both for the “Witch Hunt” crowd and for the Witch Hunters.  In doing so, I focus on a legal principle that has escaped attention in the mainstream media commentary on this subject: the role of Pinkerton liability in federal conspiracy law.

One unfamiliar with Pinkerton and its reach would be well-advised to learn it before engaging in a wide-ranging and complex conspiracy to violate federal laws.  It is a powerful, though not unlimited, tool for prosecutors. In the context of the Special Counsel’s investigation, it could potentially ensnare a number of high-profile Americans in crimes in which they may not have personally participated.  But its application here would depend upon a number of factual developments of which we simply are not yet aware, and that may never materialize.

Based on the Supreme Court’s 1946 holding in Pinkerton v. United States, the doctrine holds that a co-conspirator is criminally responsible not just for conspiracy but for any substantive crime committed by any member of the conspiracy, where that substantive crime is reasonably foreseeable and within the scope of, and in furtherance of, the conspiratorial agreement.  That is true even where the co-conspirator did not specifically agree to the subsequent crime, nor intend the subsequent crime, and knew nothing about its commission.  It is a principle of complicity (liability for the conduct of another person), though it is separate and distinct from aiding and abetting liability.  See 18 U.S.C. 2.

Suppose, for example, X, Y, and Z form an agreement to distribute and receive controlled substances.  The three will split proceeds of sales and any drugs they receive.  Now suppose a transaction in which Y and Z meet with A and B.  X is not present.  Y receives drugs from A in exchange for money, but then shoots and kills A, and takes the money back.  Z then, at gunpoint, steals B’s car, so that he and Y are separated during their getaway, and then as he is driving away shoots and kills B so as to eliminate B as a witness and prevent retaliation.  X knew nothing about any of this — he was not present and all he agreed to was the drug deal.  But upon proof that the subsequent crimes were reasonably foreseeable and within the scope of the conspiracy, X would be guilty not only of drug conspiracy but of the killing of A (perhaps under 18 U.S.C. section 924(c), a capital offense), and the carjacking and killing of B (section 924(c) plus 18 U.S.C. 2119, also a capital offense).

As you can see, Pinkerton liability can substantially increase X’s criminal exposure beyond what the relevant conspiracy statute provides.  Of course, whether X could be subjected to the death penalty is a separate, though interesting, constitutional question.  Still, the addition of Pinkerton liability might arguably serve as a greater incentive for someone like X to cooperate with prosecutors.

If the Special Counsel is able to amass evidence that implicates the President, Trump Jr., or anyone else in a conspiracy with the Russians — for example, conspiracy to violate federal campaign financing laws, to defraud the United States, or to violate federal anti-computer-hacking/abuse laws, or perhaps multiple conspiracies with different objects — then those U.S. persons would also be guilty of any substantive crime committed by anyone else in the conspiracy.  That would potentially include those crimes for which the Special Counsel has already obtained indictments.

Of course, that liability would be subject to the Pinkerton limits: the subsequent crime would have to be reasonably foreseeable and within the scope of, and in furtherance of, the conspiracy (some courts have addressed these as due process-based limits, and I do not rule out the possibility of other constitutionally-based limits that the Court has not yet articulated).  But assuming that those components of Pinkerton liability are satisfied, then anyone implicated in a narrower conspiracy should be gravely concerned about his or her criminal exposure.

There is, as always in this investigation, much we do not yet know: facts that would establish states of mind, overt acts, number of individual conspiracies and their objects, etc.  And our cultural bias against not knowing everything, immediately, makes investigations like this one frustrating.  A more serious and thorough congressional investigation of Trump Jr. and others could perhaps have yielded helpful information.  But rest assured that the Special Counsel’s investigation will be nothing if not thorough, and he knows far more than we do.  Rest assured also that he and his team fully understand the importance, and legal consequences, of establishing a conspiracy.

Some reflections on the Kennedy retirement

My thanks to Craig Fahle of the Craig Fahle Show and to Devin Scillian, host of Flashpoint on NBC 4 in Detroit.  Both invited me to discuss Justice Kennedy’s retirement (Craig Fahle Show here; Flashpoint here)  Craig and Devin are both intelligent and skilled interviewers, and I enjoyed being on their programs this past week.

Now that we have had a few days to digest the news, here are a few initial thoughts on Kennedy’s retirement, some of which overlap with my media appearances and some of which go farther.

First, conservatives are rightly excited about this opportunity, and Liberals rightly concerned.  But whether this vacancy causes truly seismic shifts in constitutional law will depend upon several factors, some of which may be unforeseeable at this moment.

Justice Kennedy confounded labels, but he voted with conservatives in numerous cases that are important to the Legal Right (see, e.g., United States v. Lopez, the dissent in NFIB v. Sebelius, Citizens United v. FEC).  In cases where Kennedy stayed to the Right, it is unlikely that his departure will result in much change to those areas of constitutional law.  As others have duly noted, the more dramatic shifts will have to occur in areas of individual rights where Kennedy took positions at odds with the Court’s conservatives (e.g., abortion, LGBT rights, the Eighth Amendment, etc.).

But even here, Kennedy confounds. Compare and contrast, for example, his vote in Casey with his vote in Gonzales v. Carhart; or his votes in Atkins, Simmons, and Kennedy with his refusal to join the new movement against the death penalty’s constitutionality per se; or his votes in Gratz and Grutter with his vote in Fisher II.  He’s no darling of conservatives, but he also was no perpetual villain.

Moreover, cases do not magically appear at the Supreme Court for resolution.  These issues often take years to wind through, and percolate in, the lower court systems.  And even then, the Supreme Court may not be ready to address the issue, or it may come to the Court in a form that makes it undesirable as a vehicle for resolving a particular issue.

So, how strongly that the Earth quakes this Fall may depend very much upon the subject matter under consideration, whether and how the issue arrives at the Court, and whether the Court is prepared to take up an issue that may have enormous social and political consequences.

Second, whether the ground quakes in these areas of law may, as some of the public conversation is describing, also depend upon whether the need to placate Senators Collins and Murkowski (or others) will result in the nomination of someone who will commit to respecting the Court’s precedents on abortion rights or some other matter.  But it may also depend upon whether Chief Justice Roberts emerges as a Kennedy-esque swing vote, a matter that is often overlooked in the public debate over the next nomination.  The Chief may not be nearly so confounding as Justice Kennedy, but I question whether he is as predictable as, say, Justices Thomas or Gorsuch.

As I have suggested, I think that the Chief cares deeply about the Court’s integrity and institutional legitimacy.  In some cases, that may mean upending bad precedents (his opinion in Trump v. Hawaii, for example, expressly disavowed the notoriously wrong Korematsu decision).  But in other cases, it may mean looking at the broader political and social consequences of the Court’s decisions.  Recall that Chief Justice William Rehnquist repeatedly questioned the status of Miranda v. Arizona as a constitutional rule.  Then, when the question was put squarely before the Court in Dickerson v. United States, Rehnquist wrote the opinion for six other justices that said Miranda was a constitutional rule.

So while it is likely that Chief Justice Roberts remains a solid conservative vote, it is also likely that Roberts—who clerked for and then succeeded Rehnquist — has a sense of the political times in which we live, and the role of the Court in those times.  If Roberts carries the mantle of judicial statesmanship, it may be he — not the latest Trump appointee — who holds the Court’s future in his hands.

Third, Republicans may be celebrating, but they should view this moment with some trepidation.  In recent elections, voter energy with respect to the Supreme Court has generally favored Republicans.  All of that energy was leading to this moment, which should be gratifying to those who have voted Republican because of this issue (including those Republicans who despise Donald Trump but voted for him solely on the basis of potential Supreme Court picks).  But once the moment passes, what then?  If the President fills Kennedy’s seat with a reliable conservative, and that happens in, say, September, where does the energy on that issue go when the midterms arrive in November?

One plausible scenario is that Republican intensity on this issue will be diminished once conservatives have amassed five reliably conservative votes on the Court.  Voter intensity with respect to the Court, then, will naturally shift to the Left, so the argument runs.  And if the Left can mobilize voters on this issue in much the same way that the Right did for so many years, the political effect of the Kennedy retirement could be that it helps Democrats, at least in the short run.  Republicans could counter this with a narrative that continues to make the Court important to their voters — to say that, among the Court’s conservatives, one of these is not like the others, so future reinforcements are necessary. Problem is, that messaging would contradict the other messaging that says the Court is now firmly in reliable conservative hands.

So although this is a proud and important moment for legal conservatism in America, it could actually be a galvanizing moment for Liberalism and the Democratic Party, if the Left can follow the Right’s playbook effectively.

Finally, Justice Kennedy was known as a good and decent man who valued civility in public life.  In that sense, the contrast with the man who will appoint his successor could not be more stark.  As someone who worked on many cases at the Court — and who now teaches students about the Court and its role in American law and life — I join others in expressing my gratitude to Justice Kennedy for his distinguished service, and for his commitment to civil discourse about the Constitution and the rule of law.