Impeachment and presidential responsibility

My latest article, “Conviction, Nullification, and the Limits of Impeachment as Politics,” has now been published in the Case Western Reserve Law Review.  In it, I argue that although impeachment is often denominated as “political,” that description both overstates and misstates the nature of impeachment, which represents a sober constitutional moment that must rise above ordinary politics.  That is especially true when an impeachment reaches the Senate, which is transformed from a political body into a quasi-judicial body adjudicating guilt.

Although not strictly “criminal” in the conventional sense, and although an impeachable offense arguably need not be a defined part of the existing criminal law, much impeachment law and procedure is nonetheless informed by the law of crimes.  Note, in particular, that the Constitution requires that the Senate “convict” an impeached official, a term that the Constitution normally employs only in the context of criminal adjudications.  In light of this understanding, when the United States Senate sits as a court of impeachment, I argue, it is transformed into a body where the incidents of partisanship and political coalition-building that characterize ordinary legislative business must ultimately be subordinated to objective judgments about higher-order interests.  Those interests include fairness, the rule of law, the separation of powers, and — when the president is impeached — presidential responsibility.

Hamilton spoke of presidential responsibility in the impeachment context.  Arguing for energy in the executive in Federalist No. 70, Hamilton urged unity.  Unity is better for, among other things, holding presidents responsible (because plural executives will try to shift blame from one to the other).  Unity therefore allows the people the chance to discover “with facility and clearness the misdeeds of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.”  Hamilton then returns to responsibility in Federalist No. 77, where he reiterates impeachment as a safeguard for abuses of executive power.  Indeed, in No. 77, Hamilton is defending the Senate’s role as a check on presidential appointment power.  He is demonstrating that this check, along with impeachment, reflects the safety of a system in which the legislature has control over the executive when he abuses his office.

Impeachment has, of course, been much in the news of late, and a subject of multiple posts here.  Last week, for example, reporting concerned statements by former Senate Democratic Leader Harry Reid, who cautioned Democrats against aggressively pursuing impeachment of President Trump.  “Stop it,” he said of impeachment talk, noting the political risks to Democrats.  But Reid also went on to say that vital institutions — the legislative branch and judiciary — have been “decimated” and that constitutional checks and balances have been “sliding out the door” since Trump’s election.

This is worthy of reflection.  If — if — the President has deliberately violated the Constitution, or done serious damage to the separation of powers, and if those offenses are sufficiently serious, why not talk about the possibility of impeachment?

If you are among those who have demanded that congressional Republicans in the Trump Era set aside political calculations and place national interests above party interests — even if doing so presents political risks — then you must acknowledge that this wise advice should apply to Democrats, as well.  If the interests of preserving constitutional government and the rule of law demand an impeachment inquiry (and presidential accountability), why ignore that demand merely because impeachment brings political risks?

Of course, whether a president has committed impeachable offenses is a separate, and complicated, matter.  People of good faith can reasonably debate whether this President, or others, committed impeachable offenses.  Indeed, that debate may well be premature with respect to the current President (and I remain skeptical that pre-presidential private acts can be impeachable, even if they are criminal).  But even setting aside whether sufficient evidence exists to convict a president of a crime, if a president endeavored to thwart a criminal investigation or prosecution, to undermine the legitimacy of and public confidence in federal law enforcement officials or of the criminal law, or to exert undue influence upon an investigation or prosecution, this would raise serious questions about whether the president had abused his office and violated the sacred commands of Article II.  That part of the Constitution requires him to “take care that the laws be faithfully executed,” as well as to faithfully execute his office and to preserve, protect, and defend the Constitution.  Those questions rise to the level of gravely serious when the president engages in such actions for the purpose of protecting himself or his associates from being implicated in wrongdoing, or of endeavoring to assure that the laws are not enforced against him or his allies.

Congress must therefore ask, if those conditions ever existed, even short of prosecutable criminality, would they be worthy of an impeachment inquiry?  If so, would it matter that there was political risk, or would fidelity to constitutional government be more important, despite the risks?

Senator Reid is correct that impeachments are “unpleasant.”  Moreover, the super-majority requirement for conviction in the Senate makes it difficult to imagine any president being convicted when the Senate is closely divided along party lines.  Surely the Senate would be rightly concerned about taking up an impeachment where acquittal was a foregone conclusion.  Those are not inconsiderable factors.  And there is no question that Congress is a political beast.  But just as raw politics or partisanship should not be employed to instigate an impeachment or drive a conviction, neither should raw politics or partisanship be employed to scuttle a legitimate impeachment inquiry or sensible senatorial judgment about guilt.

As I urge in this paper, there must be limits to the electoral calculations and partisan machinations that attend impeachments, particularly those that form of a part of ordinary Senate business, once impeachment has arrived at the chamber.  Otherwise, the constitutional mechanisms for presidential responsibility become substantially weakened, and Congress takes yet another step toward irrelevance.

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Investigations, privileges, and Bannon’s gamble on contempt

On Tuesday, former White House chief strategist Steve Bannon refused to answer questions from the House Intelligence Committee concerning his time in the Trump transition and on the President’s staff.  He was immediately subpoenaed, and required to appear again yesterday.  As Politico reports here, he communicated to the Committee that its demand was unreasonable.  He further indicated that he would be working with the White House to determine whether it would be asserting executive privilege to prevent him from testifying.  Chief of Staff John Kelly indicated on Wednesday, however, that the White House had not asserted executive privilege on Bannon’s behalf, contradicting some earlier understandings.  See The Hill report here.

If Kelly is right, then Bannon’s action fits a pattern of witnesses in the congressional Russia investigations simply choosing, on their own, when they will answer questions and when they will not, with no apparent consequences.

Several problems emerge from this saga.

1.  Bannon cannot assert executive privilege.  Only the President can.  Bannon’s apparent assertion Tuesday (if Kelly was right) and again yesterday, is based on what I call preemptive executive privilege.  This is when a witness hypothesizes that an answer might possibly implicate executive privilege, even though it has not been invoked, so the witness will preemptively refuse to answer based on the future possibility of a presidential invocation.  This is problematic, and Congress should put a stop to it.  Unless there is a clear basis for a legitimate assertion of the privilege—in which case there is an argument that Congress should be sensitive to the President’s constitutional prerogatives—Congress should demand that the witness answer or, if not already under subpoena, be subpoenaed and then held in contempt for any refusal to comply.  In most cases, Congress’s prerogatives will outweigh these preemptive assertions.

2.  Bannon was also issued a subpoena to testify before the grand jury in the Special Counsel’s criminal probe, though apparently he is now being allowed to meet with federal prosecutors outside of the grand jury environment.  Bannon is reportedly saying that he will tell the Special Counsel “everything,” (see Daily Beast coverage here) though he apparently believes he does not have to answer to Congress (yet).  Bannon may be relying on an oft-heard claim about executive privilege and its basis in the separation of powers—it can be invoked against Congress but not in a probe within the executive branch.

This view misapprehends the privilege as it applies (to the extent that it does) before Congress.  First, it is wrong to suggest that the mere invocation of the privilege in a congressional investigation is per se adequate to enforce it.  While it is true that executive privilege has its foundations in the separation of powers, it is not true that any invocation of it in the courts or before Congress is necessarily effective.  The Supreme Court has never held that a congressional investigation must yield to a claim of executive privilege, and there is precedent for the opposite conclusion.  See, e.g., House Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008).  Of course, usually these kinds of disputes are resolved through accommodation, and that may well happen here.  Perhaps it should. But Congress could seek enforcement of the Bannon subpoena even if there is an invocation of the privilege.

My guess is that Bannon is betting against that.  Bannon clearly knows that he cannot avoid the Special Counsel through a claim of executive privilege, see United States v. Nixon, and yet I would imagine that Bannon is counting on Congress not seeking enforcement of the subpoena.  He has ample reason to bet on that, given this Congress’s lax enforcement of its prerogatives with other witnesses.  Or perhaps he is ultimately counting on a process of accommodation.  So, assuming arguendo that there is an invocation of the privilege on which Bannon could theoretically rely, the question is whether Congress will have the institutional backbone to enforce it, and call Bannon’s bluff.  (On the other hand, if the White House refuses to assert the privilege, perhaps Bannon will comply; or perhaps he will continue to resist and simply gamble on non-enforcement).

3.  Bannon refused to answer Tuesday and was subpoenaed.  On the spot.  And yet other witnesses from the Trump campaign have refused to answer questions and were not subjected to a subpoena.

In particular, consider that Donald Trump Jr. recently appeared before the Committee and refused to answer questions about his discussions with his father, raising a bizarre claim of attorney-client privilege (which has been largely debunked, see here).  Even if the assertion was legitimate, the attorney-client privilege, unlike executive privilege, is not a constitutionally-based privilege, and Congress could simply rule that the privilege should yield to the need for disclosure of the information it seeks.  If that is the case, then why did Trump Jr. not receive a subpoena?  Why has the Committee not compelled him, and others who have balked at answering certain questions, to appear again before the Committee and give the requested information or be subject to a contempt prosecution (as, apparently, is now being contemplated for Bannon)?

Investigative power is meaningless unless Congress is willing to compel testimony and punish non-compliance; otherwise, witnesses have no incentive to play ball with Congress.  The contempt power is one of the most important tools available to Congress.  And recent history shows that congressional Republicans know how to use it (ask Lois Lerner and Eric Holder).

If a Republican Congress can hold Lois Lerner in contempt for refusing to give testimony after a bungled assertion of the Fifth Amendment privilege (a constitutional privilege, and one that was later validated by the DOJ), then surely it can demand answers after an absurd assertion of the attorney-client privilege or a wholly preemptive assertion of executive privilege that probably doesn’t apply anyway.  If, like me, you think that it is critical that Congress investigate Russian active measures and take legislative steps to thwart further Russian influence, then it seems clear that Congress needs full information about Russia’s activities in 2016.  These witnesses may have important and useful information, and they should be required to give it, in aid of the legislative function.

The failure to insist upon important information from witnesses during a critical investigation offers yet another example of the damage that can be done to constitutional government when legislators become slaves to party loyalty and/or the president of their party.  Republicans in Congress must have a fuller appreciation for their role in the separation of powers and their institutional prerogatives (Democrats had the same problem during the last Administration).  They seem to have finally awoken to this notion when dealing with Steve Bannon.  But will they hold his feet to the fire?  And if so, what about the others who have simply taken a pass on cooperating?

 

“Vacationland for lawyers in love”

Last night I watched the news from Washington (the capital),

The Russians escaped while we weren’t watching them (like Russians will).

Now we’ve got all this room,

We’ve even got the moon.

And I hear the USSR will be open soon

As Vacationland for

Lawyers in love.

— Jackson Browne, “Lawyers in Love (from Lawyers in Love, Asylum Records, 1983).

Perhaps today’s news doesn’t precisely parallel all of the political and cultural phenomena that fueled Jackson Browne’s early 80s Cold War commentary, but, if you’re a lawyer (and you remember the Cold War), today was a fascinating day (“Among the human beings/ in their designer jeans/ am I the only one who hears the screams/ and the strangled cries of lawyers in love?”).

The indictments of Paul Manafort and Richard Gates were unsealed, alleging conspiracy, money laundering, and violations of the Foreign Agents Registration Act, among others.  The indictment is here.  Just after the President tweeted that the indictment shows there was “NO COLLUSION,” the news broke that Trump campaign national security adviser George Papadopolous pleaded guilty to making false statements to the FBI when interviewed in connection with the Russian meddling investigation.  That guilty plea statement is here (via NYT).  It is riddled with references to Papadopolous’s email exchanges with individuals connected to the Russian government, as well as references to other officials (some high-ranking) in the Trump campaign who apparently knew about Papadopolous’s efforts — and who did absolutely nothing to put a stop to the apparent contacts with Russian connections.

Politico has this entry with reaction from notable legal figures.  What appears clear from the views of many experts is this: the Manafort indictment is not nearly as significant as the Papadopolous guilty plea.

Much of the difficulty with this entire episode is the hyper-focus on the word “collusion.”  Somehow, somewhere, this became a term that has defined the nature of the scandal.  But why?  It has been said before but is worth reiterating: collusion is not per se a crime.

“Collusion” is a legally-neutral term; it can refer to criminal cooperation or simply to cooperation covertly or by deception.  So although collusion is typically a term used to describe a state of affairs that is bad (that is, it is not morally neutral), its use in the present context does not, without more, connote violation of some specific criminal law.  For lawyers, what we ought to mean by “collusion” in this particular context is that someone in the Trump orbit, and more specifically in the campaign, formed an agreement to cooperate with, or to develop a relationship with, the Russian government or individuals connected to high-ranking Russian government officials for the purpose of assisting Trump in defeating Hillary Clinton.  That may nor may not be a crime, but it would seem to fit a proper understanding of “collusion.”

The extent to which that kind of agreement or relationship is a crime will vary based on the law applicable to the facts.  Still, when one examines the Papadopolous document — and then adds the now-infamous Trump Tower meeting in June 2016 — it is hard not to conclude that at least some in the campaign were, in fact, trying to forge such an alliance.  Again, whether that is criminal is a separate question, as is the question of whether candidate Trump himself knew anything about the activities of these lower-level actors.  But to state that there is “no evidence of collusion” is to simply turn a blind eye to the obvious, once “collusion” in this context is properly understood.

So, when you hear the President or someone in the Trump orbit say “there was no collusion,” ask whether they mean there was no criminality, or whether they mean there was no intent or effort to develop a cooperative agreement with the Russians to help Trump win and to damage Clinton.

All that said, and regardless of where one stands on the merits of the ongoing investigations, there is much to be sad about today.  I very much doubt that we would be discussing any of this, or spending enormous public time and resources on this matter, were it not for the pathological need of political campaigns to absolutely destroy their opponents in the effort to win. What we see, particularly in the Papadopolous news, is the disturbing length to which political campaigns will go in America to smear, to discredit, to ruin an opponent.  It is not new, nor is it unique to the Trump campaign.  Both parties do it.  And they spend obscene amounts of time and money on it.

True, sometimes revelations about a candidate can serve a valuable purpose, where they bear on a candidate’s competence, or ability to do the job, or reveal truly bad acts about which the public ought to be informed.  But dirt-digging ventures have routinely become a substitute for substantive debate between, and about, candidates.  The danger is that national campaigns will focus not so much on the election of those who can best govern safely and effectively under the Constitution, but simply on which candidate is able to survive total annihilation.

When these are the wages of entry into electoral politics — not just defeating your opponent, but ruining them, and spending millions and millions of dollars to do so — is it any wonder that people who are good, smart, capable, and patriotic, but imperfect, do not want to run for office?  Is it any wonder that so many good people who are currently serving no longer want to be part of the system?

Perhaps the need to annihilate our opponents proceeds directly from two additional pathologies in our contemporary politics: extreme polarization and hero worship.  I shall have more to say about that soon.  For now, fortunately, we have baseball.

 

 

Revitalizing Congress

Congress does not work for the President.  Congressional staff do not work for the President (let’s set aside the detail problem for now).  Just as Congress should not endeavor to destroy the President, neither should it seek to protect him.  It is not Congress’s duty to clear a path for the President or to help him deliver on presidential campaign promises.  It is, rather, the responsibility of Congress to check the President and to assert its own institutional prerogatives, using the limited tools that the Constitution has afforded it.  Unfortunately, loyalty to the president or to a political Party has usurped what should be the Senator or Representative’s ultimately loyalties: the legislative branch they serve, and, chiefly, the Constitution.

The entire enterprise of congressional oversight and investigation of the executive branch depends upon accepting the premise of institutional defense.  Senators and Representatives must accept that Congress must gather facts and evidence from the President and his subordinates in order for Congress to fulfill its constitutional role in the separation of powers.  That is, congressional oversight and investigation of the executive depend upon a recognition that the institutional interests of Congress are paramount to any loyalties owed to the President or to the Member’s political Party.

When congressional oversight and investigation are viewed merely as extensions of Party politics and political campaigning, however, oversight and investigation become meaningless as legislative prerogatives.  Congress consequently becomes weakened institutionally.  While there are certainly important bipartisan exceptions, Members of both Parties, over time, have too often either abused or ignored their responsibilities to conduct effective and meaningful oversight and investigation in aid of Congress’s constitutional functions, instead serving as blockers for the president during the opposition’s pass-rush.

Madison, in Federalist 51, described legislative power as the predominant authority in a republic.  He explained that this requires dividing legislative authority (into distinct bodies) and fortifying the executive (as with a veto). Hamilton, too, acknowledged in Federalist 73 the “superior weight and influence of the legislative body in a free government.”  (Hamilton, in fact, spent considerable time in The Federalist defending the veto, worrying about the accumulation of legislative power, and explaining how the executive could defend itself against the legislature, even noting the “hazard to the executive in a trial of strength with that body.”  How quaint.)  And the Supreme Court has consistently recognized that the power to investigate is a function of Congress’s power to legislate.  But modern politics have changed the way the institution operates, the way it is perceived, and the way the executive relates to it.

The over-sized modern presidency has far greater national stature than even the most high-profile Senator or Representative, and exerts tremendous influence over individual Members, influence that enables the President to dictate the content of national legislation and, often, the path of legislative oversight.  For its part, the modern Congress has contributed to the weakening of its place in the constitutional system.  The “dysfunction” of Congress is a subject well-covered in the literature, and although it is likely the case that many Democrats and Republicans privately enjoy cordial relationships, that privately held goodwill rarely manifests itself in the day-to-day public work of the institution.   The end result is that the venerable institution of Congress appears to be a mere wing of each Party’s national political infrastructure.  And when the majority in either chamber shares the President’s Party, that chamber’s majority appears to be transformed into a mere clerk of the executive.  This persistent quiescence with the executive further weakens the institution and minimizes its public stature.

But Congress can, at long last, fight back.  Oversight and investigation offer a good place to start, because this is an area in which Members from different parties can coalesce in defense of institutional interests.  Congress can also staff up, and increase the budget for congressional staff, so that Congress can compete with the other branches (especially the executive branch) in securing and keeping highly-qualified professionals.  Via our friends at Leg Branch, this recent piece in the Washington Post explains some of the difficulties.

The current controversies have given the Congress the opportunity to revitalize itself, to assert its institutional independence from the President and the dominant Parties.   If it does not (and there are signs that many individual Members are not interested in doing so), it will remain feckless and weak.  Madison and Hamilton were right to worry about the legislature’s ability to absorb the powers of the other departments.  The President, as Hamilton argued, should have tools for his defense.  But the accumulation of power into the executive is no better than accumulation in the Congress.  And Hamilton properly explained in No. 73 that the partitioning of power among the branches also teaches us that the branches should be independent.  Congress does not work for the President — and its Members should not be satisfied with perpetuating the appearance that it does.

 

On prosecuting political opponents

I have endeavored to avoid jumping into the fray regarding the Trump tape that surfaced last Friday.  Others have adequately said everything there is to say.  And there can be no debate among intelligent people that Trump’s comments there are worthy of condemnation in the strongest possible terms (of course, I have been doing that for over a year now, and have openly wondered why so many others are so late to the party).  And then there are the allegations that emerged last night (see Politico’s piece here).  Governor Pence has attempted to rationalize his continued place on the ticket by emphasizing the nature of Christian forgiveness and grace.   That is surely a ground for forgiving Trump’s sins; it is not, though, a ground for establishing his character and fitness for the Presidency.  That a person has done something for which they should be forgiven is not to say that the person should be elected to high office.  Moreover, someone should ask Governor Pence: wouldn’t the idea of Christian forgiveness, and of God’s grace, extend to Bill and Hillary Clinton, too?  Or are those gifts available only to Republicans?

Additionally, the “Bill Clinton Is Also A Bad Guy” strategy is both illogical and self-defeating.  I am not sure how it benefits Trump to get into a morality contest with Bill Clinton.  Moreover, those who are firmly in the Trump camp already despise the Clintons.  Trump’s goal should be not to preach to the converted, but to expand his support by reaching educated, suburban Republicans (chiefly women, but men, too) who do not yet support him but who generally are not fans of the Clintons, either.  Most likely, the people in that category voted for George H.W. Bush and Bob Dole.  So saying to these folks, “but what about Bill Clinton?!?  Don’t be a hypocrite!” gets Trump nowhere.  The response from this cohort is readily apparent: “I didn’t vote for Bill Clinton, either.”  In other words, these folks cannot be accused of hypocrisy in refusing to support Trump on the grounds that he lacks the character and decency to be President.  And they do not regard Hillary Clinton and her husband as equally culpable in this regard.

But, of course, there are many, many other reasons not to vote for Donald Trump.  Throughout the past year, I have identified two chief reasons why Trump is categorically unacceptable, especially for conservative Republicans: (1) he does not appear to know, or care, anything about the nature and scope of constitutional government in America; and (2) he does not appreciate the importance of limits, of restraint, of boundaries.  These shortcomings have been amply displayed throughout Trump’s campaign.  And the second one is clearly implicated by the Access Hollywood tape and the allegations against him that he has kissed or groped women without their consent, and invaded the dressing room of pageant contestants in a state of undress.  But both flaws were revealed on Sunday night in St. Louis, and that is where I wish to focus, because this race is not over.

In particular, Trump said that he would have his Attorney General appoint a special prosecutor to consider whether to prosecute Hillary Clinton.  It was not clear to me the grounds on which such a prosecution would be undertaken.  Trump meandered between accusations regarding the Clinton emails, the Clinton Foundation, and her interview with the FBI.  Of course, her FBI interview occurred this past July, well after her service in the federal government had ended.  So it was not clear whether he wanted to prosecute her for actions while Secretary of State, or after.  Perhaps he meant all of the above.

In any event, the major problem is one that others (see, e.g., here and here) have now readily identified.  In this country, we generally do not condone a president’s use of prosecutorial power to imprison his political opponents.   It is especially problematic when the president has used prosecuting his opponent as a line of attack during a campaign.  While it is true that federal prosecutors work for the President, and that the President has power to “take care that the laws be faithfully executed,” there is a notable tradition of keeping Presidents distant from the exercise of day-to-day prosecutorial power, particularly when the President’s political interests or personal animosities would create the appearance of using such power improperly.  To say nothing of the fact that Trump seems to be ignoring the existing federal law on how special prosecutors get selected.  There is a legal framework for doing this kind of thing, and that framework does not include presidential whim.

Still, this matter is more complicated than it has been made out to be.  Indeed, some (see., e.g., here at NR) have argued that Trump’s statement at the debate was different.  This is not, they say, a case of Clinton being prosecuted because of her status as a political opponent.  Rather, they argue, there is credible, objective evidence that she committed federal crimes that generally would warrant prosecution.  Categorically refusing to prosecute her merely because she was the Democratic nominee for President would, the argument goes, effectively place her above the law.  Trump’s suggestion does not, then, have the same “banana republic” feel that it would have if there was no evidence of Clinton’s criminality.

That is not an unreasonable line of argument.  But it has several flaws when viewed in light of Trump’s own public comments.

First, Trump complicated that argument at the debate.  When Clinton said it was good that someone with Trump’s temperament was not responsible for law enforcement, Trump interjected, “That’s because you’d be in jail.”  Trump’s childish retort therefore makes it difficult for him to argue that the whole purpose of a special prosecutor is to carefully and objectively investigate the facts and weigh the evidence, regardless of where it may lead.  His statement effectively functions as a categorical determination of her guilt.  It therefore undermines any sense of objectivity, even with a special prosecutor at the helm (federal regulations require special prosecutors to be objective and to have no conflicts of interest).  Indeed, Trump’s rallies have repeatedly been characterized by the chant “lock her up,” and that is something to which Trump explicitly agreed recently.  Passing it off as an non-serious quip (a dubious explanation) still doesn’t help.

To make matters even more complicated, Trump spoke openly about his own administration – with no mention of a special prosecutor – prosecuting Clinton well before the FBI Director publicly discussed the nature of the evidence and its own findings.  I posted about this many months ago, discussing even then the complex constitutional and legal questions that such a presidential action would involve.  The fact that Trump was pressing this matter – not just her potential criminality, but his intention to personally use the powers of the presidency against her – months before she had even been interviewed by the FBI, and before the FBI released its own decision, suggests that Trump had already formed a conclusion about her guilt.  Now, he was not the only one.  Many (far more thoughtful and intelligent) people had expressed views about her alleged criminality prior to the FBI’s recommendation and the DOJ’s decision.  But the difference is clear: there is no evidence whatsoever that Trump’s earlier statements about prosecuting her were based in any way on a careful analysis of the facts and the law.

In other words, Trump may have had a more credible basis for seeking prosecution of Clinton if he had only kept his big mouth shut.  But by constantly making public statements about his view of her guilt and condign incarceration, without any meaningful legal analysis, he has created the appearance that any subsequent investigation would be a sham, even if done by a special counsel.

I am not among those who believe that it is easy to separate politics entirely from the criminal law.  The creation and definition of crimes often involve political calculations; the chief law enforcement officer and her subordinates are political appointees, who serve at the pleasure of an elected official.  Presidents and their politically-appointed subordinates make decisions about enforcement priorities, budgets, etc.  But I would distinguish these kinds of political considerations from the exercise of prosecutorial discretion on partisan or electoral grounds.  The exercise of federal prosecutorial discretion must be objective, apolitical, and non-partisan; it must be based solely on the facts, evidence, and law; and it must carefully consider the federal and public interests in bringing a prosecution, including whether the interests of justice can be served in other ways.  I have said before that “politicization of the Justice Department” is an overused charge.  But where it is true, it is gravely dangerous to the rule of law and to constitutional government.

So Trump’s threat to investigate and prosecute Clinton may arguably be defensible on some abstract theory, but it is surely ill-advised.  The fervor of his public comments – “lock her up,” Crooked Hillary,” etc. – including those he had made earlier in the campaign, have created the appearance that any investigation and subsequent prosecution would be based in substantial part on personal animus against Clinton.  Even if there remained a good faith legal basis for a criminal prosecution, the hostility that Trump has personally shown toward Clinton, and his repeated incantations about her imprisonment, would have the effect of transforming an otherwise legitimate inquiry into an attack on the rule of law.  And it would represent yet another instance in which Trump’s pettiness, petulance, and self-absorption led him to ignore appropriate boundaries.

 

The first debate, and the vices of low expectations

Imagine the following exchanges on Monday night:

LESTER HOLT:  Secretary Clinton.  Please tell us ten specific things you would do to combat international terrorism, linking those specific proposals to a comprehensive plan for addressing the Syrian refugee crisis, which you should also link to a specific plan for addressing undocumented immigrants in America, and explain why the American people should trust you with these responsibilities given the fact that you were nearly indicted for transmitting classified national security information through a private email server and that people generally find you dishonest and unlikable.  And I will need that response in the form of a question.

[Clinton responds carefully and effectively to each point]

LESTER HOLT:  Mr. Trump, the next question is for you.  Please spell the word “dog.”

[Trump struggles at first, but ultimately spells the word correctly.  Trump is declared the winner.]

Though hyperbolic, this is the scenario that Clinton supporters, or at least those against Trump, fear: that so long as Trump can piece together a coherent sentence without using a racial epithet, he wins.  This is the low expectations game that has buoyed Trump throughout the election.  And the emerging conventional wisdom is that it benefits him enormously in the debates.  If that is true, Clinton must find a strategy that mitigates this advantage that Trump will have.

There is an interesting analogue to this.  In Season 4 of The West Wing, President Bartlet faces a re-election bid against the Republican Governor of Florida, Rob Ritchie.  Bartlet is seen as erudite, aloof, and pompous; Ritchie is viewed as unsophisticated and lacking in intellect but possessing a common touch with voters.  In “20 Hours in America,” Deputy Chief of Staff Josh Lyman and Deputy Communications Director Toby Ziegler clash over whether Bartlet’s smarts are a virtue or a vice against an opponent who, though not nearly as intelligent, appeals to the masses.  Critical of the Bartlet campaign’s efforts to make the election about their candidate’s ability to grasp the complexity of the issues, Lyman at one point says, “most people weren’t the smartest kid in the class.  Most people didn’t like the smartest kid in the class.”

In a later episode (“The Red Mass”), Press Secretary C.J. Cregg tells Toby Ziegler that she is convinced that the low expectations game heavily favors Ritchie.  She says, after being asked by others what would constitute a win for President Bartlet in the debates, “at this point, I feel like if, and only if, Ritchie accidentally lights his podium on fire does the President have a fighting chance.”  After Toby disagrees, she then elaborates:

C.J:  If the whole thing is that he can’t tie his shoelaces, and it turns out he can, then that is the ballgame.

TOBY:  And I believe he’ll have to do more than tie his shoelaces.

C.J.: Not much more.

Two episodes later (“Game On”), after the candidates have agreed to a single debate, and rather than take a softer and more collegial approach, the President demolishes Ritchie with a skilled performance that demonstrates his command of the issues and Ritchie’s lack of depth.  After the debate, in a bar up the road in California, Deputy Communications Director Sam Seaborn meets with a congressional campaign operative named Will Bailey.  Bailey says to Seaborn, referring to Bartlet, “I thought he was going to have to fall all over himself trying to be genial.”  Seaborn responds:

“So did we.  But then we were convinced by polling that he was going to be seen as arrogant no matter what performance he gave at the debate.  And then that morning at 3:10 my phone rings.  And it’s Toby Ziegler.  And he says ‘Don’t you get it?  It’s a gift, that they’re irreversibly convinced he’s arrogant, because now he can be.’  If you’re guy is seen that way, you might as well knock some bodies down with it.”

Bartlet cruises to a landslide victory in the election.

Clinton’s dilemma is not fictional and probably more complicated.  Trump is sui generis.  But there is a lesson for her in this series of episodes.  There exists a conventional wisdom that she must be careful not to come across as tutorial, or condescending; that no one really liked the smartest kid in the class.  Maybe.  But no one really liked the dumbest kid in the class, either.  They didn’t really like the class clown.  And they didn’t really like the class bully.  Clinton’s challenge is to show voters that when picking a President, it’s better to have the smartest kid in the class than the dumbest; better to have competence than clownishness; better to have an aloof cheerleader than a belligerent thug.   And she has to do it all while not coming off like Tracy Flick.

In other words, if people already see her that way, she might as well knock a few bodies down with it.

But it’s still a risk, especially at a time when facts and issues seem to matter so much less than ever before.  This has been the Attitude Election.  And for all of Trump’s shortcomings, attitude has been his asset.  It’s how he knocks down bodies.

So, there’s an irony here.  Trump wants to Make America Great Again, but his latest pitch is, “it can’t get any worse, so what do you have to lose?”  Hardly an inspiring message.  Hardly an appeal to American greatness.  But it is at least consistent with his broader message that we are a second-rate country.  He wants to Make America Great Again, but his easiest path to the presidency is to simply satisfy basement-level expectations of his abilities.  Greatness, by being mediocre.  That’s the Trump method.  And it’s working.  Will it on Monday?

More thoughts on the Comey announcement

I wanted to offer just a few additional thoughts on the FBI recommendation against prosecuting Hillary Clinton, now that the dust has settled after a surreal day in American politics.  There were already calls (see Politico here) for FBI Director James Comey to testify before Congress on this matter, and he has agreed to appear later this week. I think that could be a useful and revealing exercise if done properly, though I also think it could – as congressional hearings often do – devolve into a frustrating day of mindless finger-wagging and grandstanding that entirely misses the point and serves no ultimate purpose other than to waste the time of people with more important things to do.  I also think there is danger to the separation of powers in asking the DOJ to reveal its deliberative processes as to charging decisions (though that’s a more complicated claim in an exceptional case like this, where law enforcement makes such a comprehensive public announcement of its thinking).

First, Republicans have been – rightly, I believe – focused on the FBI Director’s failure to offer a more persuasive explanation as to his conclusion that no reasonable prosecutor would have charged Clinton, even under Section 793(f) (for gross negligence in mishandling classified information).   I, too, am troubled by the Director’s explanation, such as it was.  That is not to say that his ultimate conclusion – or that a federal prosecutor’s ultimate conclusion to that same effect – is not sensible or justifiable.  It is to say, however, that his conclusory statement about the “reasonable prosecutor” seems inconsistent with the facts that he enumerated about this investigation.  As I said yesterday, I would like to know more about this contention.  It may very well be that even a reasonable prosecutor would not seek an indictment under these circumstances – but that is very different from saying that no reasonable prosecutor would seek an indictment under these circumstances.

Second, there has been some attention given to other cases involving the mishandling of classified materials, most notably the Petraeus and Nishimura cases.  I’m not sure that it is enough to say that there have been other similar cases in which a person was prosecuted (Comey attempted to distinguish the Clinton case, though his attempt to do so seemed unpersuasive, at least as a reason for concluding that no reasonable prosecutor would seek an indictment here).  Rather, I would be interested in hearing about other similar cases that the DOJ investigated that did not result in a prosecution.  Of course, that information is likely harder to get.  But if Comey can show that similar kinds of cases have been investigated but not prosecuted, I think that would bolster his credibility on the Clinton case.  Examples that come to mind involve folks like Alberto Gonzales and John O’Neill and Martin Indyk (see Politico’s piece on previous cases here).

Third, yes, I think, the current DOJ will decline to prosecute.  But, so long as Clinton remains legally eligible for indictment, there is nothing to stop the DOJ from taking up her case later, Comey’s announcement yesterday notwithstanding.  Obviously, I am thinking of something very specific: the voters elect steak and water peddler Donald Trump as President; he installs a new Attorney General; and directs his DOJ to seek an indictment.  He has previously said that he would seek to prosecute her, and I have posted previously on whether this is something that he could do as President (it’s an interesting question of presidential power).  Trump has also said that he would base his selection of Supreme Court justices on whether they would investigate Clinton’s emails – once again demonstrating that Trump has absolutely no idea of how American government functions or of what the Supreme Court’s constitutional role is.  Of course, this all has the unseemly ring of prosecuting your political enemies for sport, simply because you can.  And whether there would be a revolt among line prosecutors on this matter is an open question.  But it is certainly possible to imagine a President Trump who would see a Clinton prosecution as an enforcement priority.

Finally, I  continue to think that Trump’s claim of the “rigged system” is dramatically overstated and self-contradictory.   Comey’s announcement yesterday was as devastating as it could have been in the absence of a recommendation to prosecute.  Clinton will have to spend week after week explaining away Comey’s findings.  Her prior statements on these issues will be played over and over again, and juxtaposed with video of Comey’s statements refuting her.  This hardly seems like the work of a law enforcement official rigging a system in her favor, determined to spare her any harm.  Comey, it appears, swept nothing under the rug.  No system rigged in favor of Clinton would produce such a scathing set of findings and announce them publicly for all the world to hear.  Moreover, Trump has already started using the Comey video and quotes in attacking Clinton (as always, refer to Twitter).  Surely Trump cannot claim that Comey is part of a rigged system while, at the same time, using Comey’s own words as evidence of Clinton’s unfitness for the presidency.  Trump is trying to have it both ways – hate the system, but use it to your advantage politically; the system is rigged, he says, but the very same system also publicly proved Clinton’s wrongdoing.

So Clinton will be damaged by this.  She has mostly been on defense against Trump, or simply waiting for the next Trump gaffe (which, let’s face it, seems inevitable).  But that strategy will only take her so far.  She needs to get on offense if she is to prevail.  That means the Trump oppo file will have to become more prominent than it has been so far in her campaign.  Trump versus Clinton is about to get much, much nastier.  Nice work, voters.  This is what you asked for.  (Wouldn’t it have been so much easier to just make John Kasich the Republican nominee, ditch the ugly circus, and start planning the Kasich Administration?)