Criminality and impeachment after the Comey firing

James Comey is, by all objective accounts, a man of integrity, intelligence, and honor.  Like all of us, he is imperfect.  And like anyone serving the public at a high level, he has perhaps made judgments — in difficult and complicated, even untenable, situations — that are subject to legitimate criticism.  No one questions the President’s power to remove him from his position as FBI Director.  The question, rather, is whether it was appropriate under the circumstances to do so.

If the President’s removal of Director Comey was based on the President’s desire to influence or impede an investigation that he disfavors, and in which he could conceivably be implicated, that raises very serious, but also very complicated, legal questions. (Do not be distracted by the President’s claim that he is not under investigation; though he may not be the target of the investigation, one who is not the target can still become ensnared or implicated in an investigation.  It is difficult to believe that investigators are not also looking — or will not eventually look — into the President’s role, what he knew, and when he knew it.)

Four questions arise: 1) does the criminal law apply to the President when he commits an act that might otherwise be criminal but that is done in the exercise of a constitutional function?; 2) assuming the criminal law would apply, can a sitting President be prosecuted while in office?; 3) assuming the President can be prosecuted while in office, would the Justice Department do so?; and 4) criminality and criminal process notwithstanding, could the president be impeached for his conduct?

I will leave specific responses to the first three questions for a subsequent post, though it is worth noting here that, as some may recall from the legal discussion surrounding the (Bill) Clinton scandals, there is some question as to whether a sitting President can be criminally prosecuted.  Some respected constitutional scholars say no, criminal prosecution must wait until the President formally leaves office (and there is substantial support in constitutional history for this view).  See, for example, Akhil Amar’s work here.  Others say doing so is constitutionally permissible.  But the question I want to next explore is this: if the President does something that is an abuse of his power, or a substantial violation of his presidential duties, or even violates the Constitution, but does not actually violate the criminal law, is impeachment available?

Lots of recent commentary has focused on 18 U.S.C. 1505, one of the federal obstruction of justice statutes.  On its face, it looks like it applies to the President’s conduct.  Problem is, federal prosecutors are instructed, based on decided cases, that an FBI investigation does not constitute a “proceeding” for purposes of this statute.  See USAM CRM 1727. If the President is to be subject to an obstruction statute, it will have to be a different one, say, 18 U.S.C. 1512(c)(3) (but courts are split as to whether an FBI investigation is an “official proceeding” under this statute, and the statute requires that the person act “corruptly” — can the President be acting “corruptly” if he believes in good faith that his action was a legitimate exercise of constitutional power?).  So, proof of criminality in these circumstances is tricky.

This leads to a discussion of impeachment.  Does impeachment require the commission of a crime?

The President, according to Article II, section 4 of the Constitution, “shall be removed from office on impeachment for, and and conviction of, treason, bribery, or other high crimes and misdemeanors.”  Treason and bribery are familiar as crimes (each has a well-established definition in criminal law).  But “other high crimes and misdemeanors” remains vague.  There is a fair amount of scholarship on impeachable offenses and I won’t endeavor to summarize it all here.  But a couple of sources are noteworthy.

Raoul Berger’s terrific book, Impeachment: The Constitutional Problems, concludes that this phrase — “high crimes and misdemeanors” — was drawn not from the English criminal law but from the impeachment of the Earl of Suffolk in 1386.  He explains that use of this standard was necessary because “the objects of impeachment were beyond ordinary criminal redress.”  Whereas “misdemeanors” were private wrongs punishable by the state, “high crimes and misdemeanors” were political offenses, against the state.  Consequently, according to Berger, high crimes and misdemeanors are not derived from ordinary criminal law, but are unique to the impeachment context.

Charles Black’s excellent Impeachment: A Handbook, attempts to clarify the standard a bit by further considering the relationship between criminal law and impeachable offenses.  Black relies upon the ejusdem generis canon to evaluate how “high crimes and misdemeanors” could be like treason and bribery, but ultimately Black appears skeptical of a definition of “high crimes and misdemeanors” that would require actual criminality (though he concedes that most actual presidential misdeeds would also be crimes).  He gives the following examples: a President announces that he will not appoint any Roman Catholic to any office.  This violates the clear command of Article VI of the Constitution, but is it criminal?  Or, suppose a President legally travels to a foreign country and conducts all business from there.  He wouldn’t be committing a crime, but surely his “gross and wanton neglect of duty,” as Black describes it, would be impeachable.  By the same token, merely committing a crime should not subject the President to impeachment, and Black gives a few examples on that ground, too.  In short, the President need not commit a defined crime to be impeached, but even if he does, mere criminality is not necessarily impeachable.

There is, then, substantial historical and scholarly authority for the proposition that a President can be impeached for abuses of office that do not formally constitute criminal offenses.

The problem for this President’s critics, of course, is that — for now, at least — neither criminal prosecution nor impeachment seems likely.

As to prosecution, again, there is the threshold problem of whether any crime has been committed under an applicable statute; the constitutional questions of whether he was simply exercising a constitutional function, and whether it is even permissible to indict or criminally try a sitting President; and even if so, the question of whether Trump’s own Justice Department would do so (which is precisely why the claims for a special counsel have been increasing).

That leaves impeachment, and only the House of Representatives can impeach the President.  Most Republicans in Congress have not exactly been profiles in courage when it comes to asserting their own prerogatives, defending the separation of powers, and resisting the charms of this President.  Efforts to distance themselves from the President have been tepid and ambiguous.  For now, congressional Republicans (generally) appear to be calculating one or both of the following: they need the President politically, and do not want to damage him; and/or, they fear the damage the President could do to them, with his Twitter account or otherwise.  The President, I suspect, knows this, which might explain his brazen, middle-finger-held-high recounting of his interactions with, and firing of, Comey.  He, too, calculates.

I do not contend here that President Trump has committed any offense, criminal or impeachable.  But that is clearly where the public conversation over Comey’s firing is, and where it will continue to go.  I thought some legal context might be helpful as we head — hopefully prudently — down each of those paths.  And I will hope to have more to say on each.  For now, I think much of how this conversation will proceed depends upon who the President selects to head the Bureau.

Can you evade federal prosecution if your heroin distribution is a religious exercise?

From the United States Court of Appeals for the Eighth Circuit, an interesting case on the limits of religious freedom in America, particularly at a time when we are debating the scope of statutes designed to enhance protections for religious exercise.  According to the court’s recent opinion in United States v. Anderson, the defendant (Timothy Anderson) was indicted for violating the Controlled Substances Act and admitted to distributing heroin.  But,  Anderson said, he is “‘a student of Esoteric and Mysticism studies’ who created a ‘religious non-[p]rofit’ to distribute heroin to ‘the sick, lost, blind, lame, deaf, and dead members of Gods’ [sic] Kingdom.'”  Relying upon the protections of the Religious Freedom Restoration Act (RFRA), Anderson argued that his heroin distribution amounted to exercising a “sincerely held religious belief.”  He also said he had no intention of stopping such distribution because to do so would compromise his religious faith.

The Eighth Circuit (correctly) rejected the claim and affirmed the conviction.  That seems unremarkable.  What is remarkable about the case, though, is that the court still required the Government to prove a compelling interest, and the use of the least restrictive means, under RFRA.  It is important, then, to remember the difference between the constitutional standard for religious exercise and the statutory standard that RFRA established.  The First Amendment standard remains governed by Employment Division v. Smith, which says that the Government need not satisfy strict scrutiny as long as it is applying a neutral and generally applicable law, even where the application of that law burdens religious exercise.  Under Smith, there is no question that application of the CSA to drug traffickers would be generally permissible, as having a rational basis.  RFRA, however, added a new layer to religious freedom law, increasing the Government’s burden.

Still, in Anderson, the Eighth Circuit said it had no difficulty finding a compelling interest, holding that “prosecuting Anderson under the CSA would further a compelling governmental interest in mitigating the risk that heroin will be diverted to recreational users.”  The chief ground for the court’s decision, then, was that Anderson distributed the heroin to those who were not sacramental users.  So note that even if Anderson has a sincere religious belief about the distribution of heroin, that belief is not enough to protect him once he distributes the drug to others for recreational use — the compelling interest relates to the end users, not Anderson himself.

Therefore, Anderson’s case is distinct from cases like Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, in which the Supreme Court affirmed a preliminary injunction granted to a Brazilian-based Christian sect that uses a sacramental tea (hoasca) during communion.  One of the ingredients in the tea is dimethyltryptamine (DMT), which is a Schedule I controlled substance.  Customs officials intercepted the tea on its way to New Mexico, and threatened the church with prosecution.  But the Supreme Court affirmed an injunction on enforcement against the church, holding that the Government had failed to meet its burden under RFRA.  Consequently, rather than distinguish O Centro based on the comparative dangers of heroin as compared to hoasca (or peyote), the Eighth Circuit in Anderson instead distinguished O Centro on the ground that the heroin was not being distributed for sacramental usage.

What if, though, the end users claimed they were using the heroin for some sacramental purpose?  What if dealers, or co-conspirators in the trafficking, claimed that it was their understanding that the heroin would go only to those who would use it for sacramental purposes?

That, of course, is a very different case, but not one that is entirely unforeseeable. Indeed, the Eighth Circuit cited United States v. Christie, a Ninth Circuit case in which the operators of the “Hawaii Cannabis Ministry” distributed cannabis to its members (apparently, membership was not difficult to achieve).  But in that case, the ministry did not tell members that the cannabis was only for religious use, as opposed to recreational use.  What if it had?  If the Government has a compelling interest in preventing the use of cannabis for recreational, as opposed to religious, purposes, then doesn’t this require a fairly searching inquiry into the nature of the use and the sincerity of the user’s beliefs?  Otherwise, the Government could always simply say that there is a risk that even ostensible religious use would become recreational, and therefore carry its burden under RFRA, in light of Christie’s theory.  Indeed, the Anderson court noted that the district court in St. Louis did not evaluate the sincerity of Anderson’s religious beliefs, but rather assumed the sincerity of those beliefs and applied RFRA.

Is there a meaningful risk that drug traffickers and users will often, or increasingly, employ a religious-based defense to drug prosecutions, based on RFRA?  Probably not.  And even in cases in which RFRA is used as a tool for drug defendants, like Anderson, the Government’s interests in combating drug abuse are likely to carry the day.  Still, it is notable that statutory religious freedom law places the Government in such a defensive posture in serious drug cases.

Hat tip to IJ’s “Short Circuit” for spotting this one.

Helpful commentary on the constitutionality of Syrian airstrikes

Despite the relative popularity of the President’s use of airstrikes last week in Syria, the argument continues as to whether the President’s action was constitutionally problematic.  The Congress has not debated, much less approved, a new authorization for force in Syria, whether against the Syrian government or ISIL (and it is notable that we have now taken hostile action against both sides of the conflict there).  And there is no question that the President could not rely upon the existing AUMFs for last week’s airstrikes.  Therefore, his only reservoir of power for this action is Article II of the Constitution.  The President’s report to the Congress pursuant to the War Powers Act is here.

The folks at Lawfare have typically excellent commentary on the matter.

John Bellinger’s piece on the War Powers Report is here.

Andrew Kent’s piece is here (with a good discussion of originalist views on war powers allocation).

Jack Goldsmith’s piece is here.

If the President has a longer-term military strategy in Syria, his ability to engage there without approval from Congress is, legally, probably substantially limited.  But because a federal court is unlikely to police the allocation of constitutional war powers, it is for Congress to defend its own prerogatives.  Even without seeing a plan from the President, Congress should long ago have been debating the American military role in the Syrian conflict, or, at a minimum, the scope of presidential powers to attack ISIL.  As long as Congress remains silent, however, it will continue to send a signal to this and other Presidents that it acquiesces in any military action.  It is possible that members of Congress are reluctant to take a position on the use of force abroad, fearing being stuck with their vote if the mission goes poorly.  But the use of American military force — and the blood and treasure of the American people — is not a matter on which the legislative branch should be perpetually silent.

 

Lexi Thompson, finality, and fairness

The United States Golf Association is currently engaged in an ongoing conversation about “modernizing” the Rules of Golf, with several important changes being proposed.  That project is not set to take full effect until 2019.  But those changes cannot come soon enough.  And what happened Sunday in Rancho Mirage proves why.

Lexi Thompson led by two strokes in the final round of the ANA Inspiration (for folks like me, this will always be the Dinah Shore event), a major tournament on the LPGA Tour, played at beautiful Mission Hills.  Playing her back nine, she is approached by LPGA rules officials who inform her that she is being assessed a 4-stroke penalty for playing her ball from the wrong position and for signing an incorrect scorecard . . . the previous day.  An intrepid viewer sent an email to the tournament committee claiming that Thompson, during Saturday’s round, failed to place her ball back on the green in the exact location that she had marked it.  That is a rules violation, as every golfer knows. And it cost her two strokes.  She was then assessed another two-stroke penalty for signing an incorrect scorecard (because her score for that hole did not include the two-stroke penalty for playing from the wrong position).  Consequently, a two-stroke lead on Sunday became a two-stroke deficit.  To her credit, she handled to matter with grace (and some obvious disbelief), battling back to tie for the lead.  She later missed an eagle putt on 18, sending the tournament into extra holes.  She lost in the playoff by one shot.  Golfweek story here.

The question is not whether Thompson violated the rule.  The video evidence shows rather clearly that she did, albeit unintentionally.  The question is whether the rules officials should have enforced this violation on Sunday, during the final round.

The obviously correct answer, from an official perspective, is yes, they should have.  The argument is this: the tournament was still ongoing, and once the officials learned of the violation — not inconclusive by any means — they had an obligation, in fairness to all competitors, to enforce the penalty.  See Rule 33-1.b.  Now here’s why that obviously correct answer is subject to question.

Consider the law’s principle of collateral estoppel, roughly, the idea that once an issue is decided in litigation, a party is precluded from raising it again.  A similar, or analogous, principle seems to apply in Thompson’s case. While it is tempting to say that matters of this kind are reviewable until a tournament is closed — consistent with existing Rule 33-1.b. — this ignores the structure of golf tournaments, which are divided into distinct rounds.  Each round, particularly the third and final rounds, has implications for the next.  A player does not submit a scorecard for the entire 72-hole event at once. Rather, she submits a scorecard at the close of each round.  Just as a tournament is closed after 72 holes and a winner is crowned, so, too, does each round close after all players have completed those 18 holes, submitted their cards, and had their scores posted.

A tournament committee should be precluded (estopped, even) from altering or modifying the scores once all play has been completed in a given round.  Once a player’s card has been submitted by his scorekeeper, attested by the player, accepted by the tournament committee, and then posted, this constitutes a final determination — and an implicit agreement between the tournament committee and the player — that the player’s score is accurate.  If there is any question about the accuracy of a player’s score, the tournament officials need not post the player’s score, and the player certainly should not sign and submit her card if questions about her score remain.  But once the card is accepted and the score is posted, the tournament committee is now precluded from essentially relitigating the issue of the correctness of a player’s score.  The player, by this point, has a right to rely on the acceptance of the card and the posting of her score, which ought to be treated as a final determination.

The rationale for this?  Finality and fairness.  First, finality.  As in law, golf tournaments, and each round thereof, benefit from finality.  The finality of scores in a given round (say, the third round of a 72-hole tournament) determines the pairings for the next round; determines which players hold which positions on the leaderboard; and determines a player’s strategy for the final round.  By upsetting scores in the way that the LPGA did yesterday, the rules officials upset the finality of scoring from the previous round and create both strategic and psychological consequences for many other competitors, not just the player who is assessed the penalty.  That would not happen if players could rely on the finality interest created by acceptance of their cards and posting of their scores.

This leads to, and overlaps with, the fairness rationale.  While it seems that fairness might dictate imposing the penalty, arguably, under these circumstances, fairness might actually cut the other way.  It is arguably unfair to tell a player on Saturday evening that her card has been accepted as correct and that her score has been posted, only to tell her on Sunday that, it turns out, that determination was wrong after all.  Otherwise, players must be forced to go into each new round not certain that their score from the previous round will hold up.  Why, then, submit a scorecard to the tournament committee at the close of each round?  Why post Saturday’s scores?  Fairness to all competitors requires not just an abiding conviction that the rules are being followed, but also an abiding conviction that they can rely upon representations made to them by the folks who run the tournament.

I suppose these rationales may have less force if there is evidence that a player has deliberately violated a rule to gain a competitive advantage.  But there is no such evidence in Thompson’s case.  The ball may have been misplaced, but by all indications, doing so was unintentional, and it gave her no advantage over her competitors. And, to be sure, the tournament committee was placed in an untenable position here — the committee had no reason to know of the violation when they posted the Saturday scores, and no one believes that informing Thompson of the penalty was enjoyable work.  And surely no one wants the winner of a tournament to do so with the benefit of a rules violation that would have affected her score.  But the rationale for modifying a score on Sunday is no different than the rationale for modifying a score on Monday, or Tuesday.  If we can create a rule for protecting the integrity of a player’s score after the tournament has closed, surely we can create a similar rule for protecting the integrity of a player’s score after each round. And doing so might also have the added advantage of discouraging armchair officiating from television viewers.

Perhaps the USGA’s modernization effort would not address this or many other controversies arising under the often complex, and not always sensible, Rules of Golf.  Still, golf’s governing body should consider ways to mitigate the problem created by yesterday’s events — a player being interrupted while leading a major championship to be informed of a penalty imposed for an unintentional mistake on the previous day, after her scorecard had been accepted and her score posted, and that could not possibly have given her an unfair advantage.  Perhaps the law, as it often does in sports, could offer some guidance.

Is Russia an “enemy”?

The NYT posted an intriguing opinion piece by Nicholas Kristof this week, comparing the Trump-Russia controversy with the controversy over revelations that President Nixon tried to sabotage diplomatic efforts to end the Vietnam War.  Kristof explores the Trump campaign’s Russia connections, conceding that no smoking gun yet exists but piling up the circumstantial evidence as he makes the case for a robust investigation.  He asks, straightforwardly: “Was there treason?”  He ends by quoting historian Douglas Brinkley, who recently said, “There’s a smell of treason in the air.”

Let’s concede that the matter is still wide open, and that no direct evidence of criminality or collusion has yet been made public, if it exists.  But let us take the theory in its current incarnation: operatives associated with the Trump campaign, the theory goes, may have colluded with Russian operatives to obtain and disseminate information about Hillary Clinton that would weaken her candidacy and strengthen Trump’s chances of winning (or, to be more precise, strengthen Clinton’s chances of losing, which is what Russia really wanted).  This may have been done on Trump’s own orders, or with his knowledge (or, at a minimum, his willful blindness).  It may have even involved complicity in broader Russian efforts to affect our political system.  In other words, this theory of the case goes, the Trump campaign may have colluded with agents of an adversarial foreign power to win an election and assist that foreign power in getting the result it desired.

If this theory — and it is as yet only conjecture — plays out as true, then Kristof’s question is a compelling one.  Is this treason?  I have written before that treason is an oft-used epithet, often describing conduct that is serious and compromises American security or values in some way, but is not — legally speaking — treasonous.  Recall that Article III of the Constitution tells us that American treason consists only of levying war against the United States, or adhering to its enemies, giving them aid and comfort.  Although one can argue about the ways in which modern warfare has changed, as a matter of original understanding of the Constitution, I think it unlikely that we would say this kind of collusion constitutes “levying war.”  The only other option then, is what I have called “Adherence Treason,” the giving of aid and comfort to the enemy, with the intent to betray the United States.

Let’s assume, purely hypothetically, that Trump, or someone from his team, provided assistance to the Russians in their efforts to influence the presidential campaign.  And let us assume that they did so with the intent to betray the United States, presumably by undermining the processes of American democracy to the benefit of a private individual (Trump) and of the Russian government, whose leadership despised Clinton and did not want Clinton to win the presidency.  This leaves a critical problem if “treason” is the right description of what occurred: is Russia an enemy of the United States?

Aiding a foreign power may violate some other law, but it is not “treason” unless the aid is given with an intent to betray the United States and the foreign power is an “enemy.”  My current research is exploring this problem, though I confess that when I began exploring it, I did so in the context of the Islamic State and al Qaeda, wondering whether the original understanding of “enemy” in the Treason Clause included non-state actors or those against whom no formal declaration of war has been issued.  We have not formally declared war against ISIL.  Indeed, we have not even debated (much less passed) a new authorization for the use of force to target ISIL (we should do that).  But we have engaged in hostile action against ISIL, and it has engaged in hostile action against us.  Perhaps that is enough to make ISIL an “enemy” and to prosecute for treason those with allegiance to us who give aid and comfort to ISIL.

But what about Russia?  We have had a diplomatic relationship with Russia (though that relationship has recently been a frosty one, it seems) and are not engaged in military violence or other hostilities against the Russians.  Yet senior American law enforcement, intelligence, and military leaders confirm that Russia is an “adversary” of the United States.  Defense Secretary James Mattis made such an observation earlier this year (see here), before he joined the cabinet.  Just this past week, at the House Intelligence Committee hearing during which FBI Director James Comey and NSA Director Admiral Mike Rogers testified, both men acknowledged that Russia is an adversary of the United States.  The critical question for purposes of the Treason Clause, though, is whether an “adversary” is the same thing as an “enemy.”

The modern dictionary makes these two words synonyms, as does Samuel Johnson’s Dictionary of 1755 (see here). But does the Constitution?  Are armed hostilities necessary to make a foreign power an “enemy”?  Does the Constitution account for the modern ways in which non-violent action by a foreign power can corrupt and harm American persons and institutions?  Perhaps this is an example of how the original public meaning of a word, as of 1787, can still apply to contemporary problems.

I sympathize with those wishing to further explore the Trump campaign’s relationships with the Russian government, or with private individuals working under the influence of the Russian government.  I also think such an investigation should fully explore the intelligence, military, diplomatic, and criminal law consequences of any such relationships that are uncovered.  Of course, maybe there is no there there.  But even if there is, whether such conduct would constitute treason depends upon satisfying the constitutionally-defined elements of that offense.  To make it treason, we must be prepared to identify Russia not just as an adversary, but as an “enemy,” as that term is understood not just in common parlance but in the Constitution.  I suspect that many Americans and American political leaders are prepared to say this.  But is the Trump Administration?

 

Would the Speech or Debate Clause protect a sitting Senator in confirmation hearings for a Cabinet post?

With the news that at least one poll shows a majority of Americans believe that Attorney General Jeff Sessions committed perjury and should resign, the question of General Sessions’s criminality has not yet entirely died, though it has weakened significantly since the President’s tweet about being “wiretapped” by President Obama.  As I explained previously here, I am confident that no prosecution will result.  Still, the lingering question about whether he lied to Congress and what his answers meant raises — as I mentioned last time — another interesting issue: because he was a United States Senator when he met with the Russian Ambassador, and when he testified at his confirmation hearings, would the Speech or Debate Clause of Article I, section 6 protect him from prosecution arising from his confirmation testimony?

To be clear, I think he is safe from prosecution, but for other reasons.  So here is my admittedly quick and ugly Speech or Debate Clause analysis.  Steven Calabresi has a very good piece here at The Hill, and Michael Stern has a characteristically thoughtful piece here at Point of Order.  I could be wrong about this particular constitutional problem, so, as always, I welcome other wisdom.

The Speech or Debate Clause says that for “any Speech or Debate in either House,” a Representative or Senator “shall not be questioned in any other place.”  It covers more than floor speeches, but it only protects “legitimate legislative activity,” according to the Supreme Court.  Activities beyond floor speeches, “must be an integral part of the deliberative and communicative processes” by which Senators and representatives fulfill their constitutional functions.  See Hutchinson v. Proxmire.  It is arguable that when then-Senator Sessions met with the Russian Ambassador in Cleveland, this was not a legislative act protected by the Clause.  That, of course, might depend upon what they discussed, which we do not know.  But a stronger argument exists that the meeting in Sessions’s Senate office was covered by the Speech or Debate Clause to the extent that it related to his work on the Armed Services Committee or otherwise to American foreign policy.  Of course, as the Court said in Gravel v. United States, not every act that is performed by a Senator or Representative, even in his official capacity, is a protected act.  See also United States v. Brewster.  But let us assume for the sake of this piece that each meeting was within the sphere of legitimate legislative activity covered by Article I, section 6.

Then there is the question of his testimony: would his testimony before the Judiciary Committee be protected?  I think not, because his testimony before the committee did not constitute an integral part of his legislative functions as a Senator.  So while his questioners would be protected because they were fulfilling their constitutional role of advice and consent, Sessions’s statements before committee were unrelated to his constitutional role as a Senator and therefore not “legitimate legislative acts.”

So here’s the problem: the Sessions controversy does not concern a prosecution for the meetings themselves; it concerns his testimony about those meetings.  Could it be, then, that as long as an activity is within the scope of the Speech or Debate Clause, a Representative or Senator does not have to truthfully answer questions about that activity under oath in a congressional committee?

It’s a complicated issue.  First, the Clause is essentially a separation of powers provision.  It protects the legislative branch against vindictive or abusive prosecutions by the executive branch.  See Gravel.  It also constitutionalizes a testimonial privilege, id., so that even the judiciary cannot compel a Senator or Representative to give over testimony or evidence arising from his or her legitimate legislative acts.  But in the Sessions case, the questioning was not done by the other branches.  It was done by the Senate itself.  Not only do the words “any other place” suggest that the Clause does not forbid questioning by the legislative branch, the separation of powers concerns underlying the Clause also suggest that the Clause should be read to limit only the executive and judicial branches from questioning members of Congress.

So one plausible reading of the Clause, based on both text and history, is that it does not forbid a Senator from questioning another Senator about his or her legislative acts and using those answers as a ground for decision-making.

This raises the next problem: while it is true that the initial questioning was done by the legislative branch, a perjury or false statements prosecution would be done by the executive, and would use his answers about a legislative act as evidence.  Is that forbidden?  This is much trickier.

The Court has said that the Clause would be undermined by admitting against a Senator or Representative evidence that references a past legislative act.  See United States v. Helstoski.  Still, if my premise above is correct, then one could argue that the evidence of Sessions’s alleged criminality derives from a proceeding in which he lacked the protection of the Speech or Debate Clause.  Again, using this line of argument, he had no testimonial privilege under the Clause when answering either Senator Franken’s question or Senator Leahy’s.  Therefore, on this line of argument, his answers to those questions — quite apart from the substance of his meetings with the Ambassador —  should be admissible against him.  I confess, though, this is a harder problem because it means using evidence (his testimony) concerning a presumptively (for these purposes) legislative act, which the Supreme Court has expressly forbidden.  If his meetings with the ambassador were legislative acts, then there is a good chance, as others have argued, that the Clause would forbid the Justice Department from using any evidence about those meetings, even derivative use.

A final question arises, though it is a different one than I have addressed above: can the Speech or Debate Clause protection be waived?  If his activities were protected, did Sessions waive the privilege by voluntarily testifying about those activities?  The Supreme Court assumed, without deciding, in Helstoski, that the Clause could be waived.  But the Court said even if a waiver is appropriate in this context, it requires “explicit and unequivocal renunciation” of the Clause’s protection.  See Helstoski (also describing the standard as “clear and unambiguous”).

In Attorney General Sessions’s case, if the above analysis is correct, it might be unnecessary to decide whether he waived the privilege because, at least in the Judiciary Committee, he did not have its protection in the first place (and thus there was nothing to waive).  But in an ordinary legal proceeding in which he was subject to questioning (under oath or not), or investigation, what would such a waiver look like?  Based on the language in Helstoski, it would seem not encompass implied waivers (such as in the Miranda context; in fact, the standard is more like invocation, rather than waiver, in the Miranda context).  So if, arguendo, Sessions had the protection of the Clause, merely agreeing to answer questions would not be adequate for a waiver of Speech or Debate protection.  He would have to offer a clear and unambiguous statement that he was not relying on the protections of Article I, section 6.

Still, the threshold question is the most important one: were Sessions’ meetings with the ambassador legitimate legislative acts?  To know that, in this context, we would have to have evidence of what was discussed.  Barring testimony from someone else, or some other evidence, it is almost as if, to establish protection under the Clause, Sessions would have to agree to reveal the substance of the meetings.  In other words, Sessions would have to agree to waive the Speech or Debate privilege in order to assert its protections.  To avoid this dilemma, it might be better to simply start with the presumption that the meetings were covered by the Clause — but nothing in the Supreme Court’s cases suggests that such a presumption applies to any and all acts by a sitting member of either house.

Again, this problem is of mostly academic interest, for now.  Still, given the frequency with which members of Congress are nominated for Administration posts, it is a problem worth considering in future confirmation hearings.

The Sessions controversy, or, why mens rea is so important in the criminal law

What had the potential to be a corner-turning week for the President was marred late Wednesday, and for the last few days, by revelations that Attorney General Jeff Sessions, while a Senator, met on two occasions with the Russian Ambassador during the 2016 election.  This was newsworthy because first, there is concern that perhaps Sessions had conversations about the campaign, the election, or a future Trump foreign policy; and second, Attorney General Sessions had claimed during his Senate testimony, and in written responses to questions, that he did not have any contact with Russian officials during the campaign.  While General Sessions has now recused himself from certain Russia-related investigations, some Democrats are calling for his resignation.  Others are saying he may have committed a crime.  Before Democrats savor the opportunity to chant “Lock Him Up!,” consider the applicable criminal laws more closely.

Is it a crime to give false or misleading testimony to a congressional committee?  Yes, and no.  Two statutes are relevant.  One is the general perjury statute, 18 U.S.C. 1621, which prohibits “willfully” giving a statement under oath that the witness “does not believe to be true.”  It is punishable by up to five years in prison.  The other statute is the false statements statute, 18 U.S.C. 1001.  Section 1001 provides that whoever, “in any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal Government “knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation” or “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” commits an offense punishable by up to five years in prison.

So, to be precise, it is a crime to give a false statement to a congressional committee (whether or not under oath), but only where the statement is made knowingly and willfully.  Statements made with a faulty memory, or when the witness is confused about what is being asked, or that are simply mistaken, are not criminal.  See United States v. Dunnigan (with respect to perjury).  That is why the context and circumstances in which these statements are made matter a great deal, because they bear directly on Sessions’s state of mind and thus the mens rea elements of the statutes.

General Sessions appears now to be claiming that he believed that the questions he was asked referred only to whether he met with the Russian Ambassador about the campaign — that is, other than in his capacity as a Senator and a member of the Armed Services Committee.  General Sessions has claimed that he could not recall the substance of the conversations (strange, given the other details he seemed to remember; and if he cannot recall the substance of the conversation, how does he know he did not discuss the campaign or the election?).  Still, if his assertion now is made in good faith, that would likely be enough to negate the mens rea of the perjury and false statements statutes, meaning those provisions could not be proven beyond a reasonable doubt.

That is probably the likely result here.  It is not unusual for a witness to give statements before a congressional committee, or during a government investigation, that may be misleading or incomplete.  Giving the witness an opportunity to walk back, and explain, the statement more fully should usually be sufficient to satisfy the investigating entity in Congress, unless some intervening harm has been done by the earlier statement (and that does not appear to be the case here).    It is therefore exceedingly rare that someone will be prosecuted for lying to Congress.  That is typically less true when applying section 1001 in the context of a criminal investigation being conducted by a law enforcement agency, and section 1001 is often used as a basis for prosecution.  Moreover, as the Supreme Court held in Brogan v. United States, section 1001’s text does not leave room for an “exculpatory no.”  Still, federal prosecutors must consider the strength and plausibility of the defendant’s explanation of what he believed he was being asked, in light of all of the surrounding circumstances.  And in many cases — including this one — the explanation will not be an implausible one.

One may not accept General Sessions’ after-the-fact explanation as being truthful, but if it is, he is not guilty of a crime.  Of course, there are two very distinct possible explanations here: is it that, at the time, Senator Sessions did not remember his meetings with the Ambassador, or that he remembered but did not think those meetings were covered by the questions asked?  Either explanation could serve as a basis for avoiding criminal liability.  But note that those are very different explanations, and both cannot be true.

One other issue has arisen, though it would be relevant only if we are seriously talking about a federal prosecution here (which, again, I think is highly unlikely).  Would then-Senator Sessions be protected in committee by the Speech or Debate Clause of Article I, section 6 of the Constitution?  More on that in a subsequent post.

It seems unlikely that Sessions is at the heart of the Russia-contacts controversy.  Making him a target may be satisfying to those who did not want him to be AG in the first place, but it likely will not yield much.  A better rabbit hole to explore might be this: did anyone in the campaign or the Trump transition instruct, command, induce, or request that staff and officials deny contacts with the Russians if they are ever asked?  If so, the range of potential criminality with in the Administration could greatly expand.  Will an investigation pursue that question?