Friday, March 29, 2019

Mueller And His Investigation

On Friday, March 23, 2019, Robert Mueller finished what he was charged to do, which was a portion – not everything – of a vast, far-reaching series of investigations. He turned over a report recapping what he did, and (perhaps explicitly or implicitly) what he did not do, and what conclusions he formed from that investigation. With the submission of that report, the investigation moved out of his hands.

This report was always destined to be a letdown for its political and mass audiences. Some portion of that audience was hoping to get a secret spy story competing with Hollywood’s best. Others wanted a roll call of lawbreakers – national and international – to be brought to justice at the public docks. Still others were waiting for vindication of their political hero, at long last defeating his antagonists with a vindictive “I told you so.” In the end, none of these scripts worked out as anticipated. So what do we truly know?

1. Only a few DOJ officials have actually seen “The Mueller Report.” The rest of us have seen the “Attorney General Barr” report – Barr’s four-page personal summary of Mueller’s findings. We know what Barr says did/did not happen; we have no substantiated idea what Mueller actually found. Beyond Barr’s four pages, all else is factually unknown. Given that Mueller’s report is reputed to be greater than 300 pages long, it is perhaps a concern that Barr could properly summarize it in just 36 hours after receiving it.

2. The official narrow charge to Robert Mueller was a) to investigate whether Russia operatives interfered with our 2016 election, and if so, b) whether members of the Trump campaign conspired with them to effect that interference. If other areas of wrong-doing were discovered in the course of his investigation, he was free to follow that trail and to refer such matters over to regular DOJ offices for follow-up (as apparently happened with Michael Cohen), but such avenues were not his focus. The exception to this scope was the added question of c) did Donald Trump commit “obstruction of justice” by seeking to undermine, impede, or block Mueller’s pursuit of his investigation.

3. According to the Barr report, Mueller concluded that: a) yes, Russia did interfere. Almost three dozen indictments of Russians confirmed that conclusion; b) no definitive evidence was found that Trump campaign officials criminally conspired with the Russians to commit that interference; c) whether Trump committed “obstruction of justice” was left unanswered – with both yes/no evidence being found, the question was deferred to the Attorney General to decide to answer. Barr  has said no; whether that answer is based on the evidence, or the DOJ’s 1974 internal opinion (now policy, not law) against indicting a sitting president, is not clear. (See previous essay, “Indicting A Sitting President,” March 9, 2019, on this blogsite.)

4. Trump seized upon the Barr report as definitive, and as usual, immediately lied about the findings. Trump correctly noted that Barr’s report exonerated him with about Russian collusion, but he also claimed that it cleared him of obstruction – which it most certainly did not. Barr has said he will not prosecute Trump on that charge, but has not clarified the basis of that decision. (Always playing the victim, Trump went one step further and lied that the entire investigation was illegal, which it most certainly was not.)

5. All of this ambiguity reinforces the need to release Mueller’s full report and supportive evidence, consistent with legitimate concerns of national security and grand jury secrecy. Given Barr’s views of the laws and power applicable to the presidency, as well as his written advance judgement about the investigation, he should have recused himself from its oversight. Coming into the investigation after the fact, appointed by the President being investigated – a President who has consistently demonstrated minimal respect for the law or DOJ/FBI agencies – makes Barr a non-credible interpreter of the Mueller investigation.

6. Congress has requested a copy of the original Muller report and supporting investigative materials, stating that Barr’s summary is inadequate for proper information, assessment, and potential Congressional follow-up. In his confirmation hearing, Barr committed to sharing the full report for “transparency,” consistent with “confidentiality requirements and applicable law.” This release needs to happen. It is reasonable that a review of the extensive background materials will take some time, but “all deliberate speed” should be the priority given the degree of unhelpful speculation that arises out of the silence.

7. The troubling concern from this “conclusion” of the Mueller investigation is the seeming many loose ends and unanswered questions that remain from this process, and therefore what may come next – or need to come next.
- It has been publicly acknowledged that several Trump campaign and/or transition officials (e.g. Flynn, Don Jr., Kushner, Stone) had conversations with Russian officials. If these conversations were so innocuous and non-conspiratorial, then why did so many lie so frequently about them?
- There are several investigations and indictments over Russian interference that are in process or not yet concluded by Mueller (e.g. Flynn, Stone, Butina). What will happen to these, and who will complete these actions? Barr has provided no guidance regarding these outstanding processes.
- Clearly some investigations have been handed off to, or initiated by, various DOJ offices. These cases cover a wide range of issues beyond Mueller’s original narrow charge. It is assumed that these cases will continue, including those with “sitting president” complications. Again, the guidance or decisions will Barr make regarding these legal processes is unknown.
- There are also federal and state investigations and lawsuits regarding the defunct Trump Foundation, Trump Company real estate dealings (tax, insurance and bank fraud), Emolument Clause violations, and campaign finance violations against Trump and others. These also need to run their course. The to-do list remains long.
- What ongoing, or new, investigations are occurring within the various field offices, out of the public view, that we do not even know about?

The most disturbing thing about this end-of-investigation phase, and the assessment thereof, is this: how can a top-level FBI investigation conclude that there was no Trump campaign/Russia collusion, or no obstruction of justice regarding that investigation, yet never have interviewed the key campaign players of Don, Jr., Eric, Ivanka, and Jerod? Or, for that matter, a live interview with Trump himself? Or, since supposedly agents/prosecutors usually interview only witnesses, not the “targets” of an investigation, is a different supposition warranted?

In the meantime, as this follow-up period unfolds, House Democrats should pursue legitimate investigations of potential wrongdoing. However, they need to focus their scope towards truly primary issues, not overreach and scattershot their energies. (The Senate should be doing the same thing, but this will not happen under the blind-eye rule of Mitch McConnell.) In the meantime, Congress should remember that there is a government to run, and a citizenry to serve – all of which has been done very badly the last several years. If Democrats – or much of the country – are looking to remove Trump from being the President, impeachment is not a feasible option (unless some far more damaging and convincing evidence surfaces). It must happen at the 2020 ballot box, and simply running an anti-Trump campaign will not be sufficient to win that election.

We need to deal with facts – both from the past and those still to come – not the speculation. The presidential storm may have paused, but it is far from done. Only one of many investigations has concluded; there are legitimate and necessary other investigations that need to continue. There is still far more to come, and it ain’t over ‘till it’s over. Stay tuned.

©   2019   Randy Bell   

Saturday, March 9, 2019

Indicting A Sitting President

“If the President does it, that means it is not illegal.”
—President Richard Nixon, interview with David Frost, 1977

INTRODUCTION: As criminal investigations continue to swirl around Donald Trump in increasing frequency and scope, the question that arises is whether a sitting president can be criminally indicted. This is not merely a theoretical, law-school discussion. Rather, it looms as the potential next upheaval following the last two years of presidential and governance turmoil.

CONSTITUTIONAL CONTEXT: When our country’s founders met in Philadelphia in the summer of 1787, they realized that an effective central government transcending the authority of the individual thirteen states was truly needed. However, they were only six years out from a costly Revolution to establish a new freedom in America, so a very different form of government was required. It was initially assumed that central power would be vested in a legislature – the Congress. It later emerged that a new and unique office – a “President” – was needed to lead the nation as a whole. To avoid replacing a king with yet another royal position came the idea of our Constitutional “checks and balances.” Three separate governmental branches, each with assigned powers, each serving as a check on each other. In the instance that one branch exceeded its power or failed in its duty, defined remedies would be available to correct the imbalance. If those remedies failed (as regarded the President or Congress), then citizens could make a correction through the ballot box.

EQUAL UNDER THE LAW: Our Founders firmly believed that no citizen should be above another, or receive special treatment or favors under the law. Our Declaration of Independence stated that “all men are created equal.” Over our history, fulfilling that intention of equality to all segments of our citizenry has been a major theme of politics, legislation, legal rulings – and a civil war. While not explicitly stated in the Constitution, it is reasonable to intuit that equality and fair treatment were implicit in the Founders’ view of government officeholders.

IMPEACHMENT – THE POLITICAL SOLUTION: If a President exceeds the designated authority of the office, or fails in performing his/her duties, or commits acts detrimental to the Presidency, then that person can be removed from their office by the process of Impeachment – e.g. a governmental trial.

Article I/Section 2 of the Constitution gives the House of Representatives the sole power to Impeach (make formal charges against) the President. Article II/Section 4 specifies the reasons for impeachment are committing Treason, Bribery, or other High Crimes and Misdemeanors (i.e. “Misconduct”). Specific definitions of these reasons are not provided, provoking one contemporary legal commentator to suggest that these terms mean “whatever Congress decides they mean” in a given impeachment proceeding. Also, these terms do not necessarily have the same standard as a criminal felony trial. A President can be impeached for actions not criminally indictable, and not impeached for indictable actions; these are two parallel but separate actions. Nowhere in the Constitution is “policy differences” given as a basis for impeachment.

Article I/Section 3 gives the Senate the sole power to try an impeachment; a guilty finding requires the assent of 2/3 of the senators. The bar for a finding of guilty does not require the same standard as in a criminal trial. If convicted, the President loses the job to the Vice President. After removal, the ex-President is disqualified from holding any future federal office, and is not protected from subsequent legal procedures applicable to his/her crimes. Rather, the ex-President “shall nevertheless be liable and subject to Indictment, Judgment, and Punishment, according to Law.”

LACK OF STATUTE: The question rises of whether a sitting and unimpeached President is subject to criminal and/or civil proceedings due to his/her actions. The Constitution says nothing explicitly on this question. No single federal or state statute has addressed, nor has a court at any level ruled on, this direct question.

Courts have somewhat accepted the concept of “executive privilege” – the idea that some confidential or sensitive conversations and materials within the Executive branch are implicitly protected from disclosure. Executive Privilege is nowhere in the Constitution, although certain related decisions have been made by the court (e.g. Nixon ordered to turn over the White House tapes to the special prosecutor). However, this protection does not extend to conversations and materials involving criminal actions or deceit (similar to the rules governing attorney-client privilege). Applying this broad concept is difficult, and the Executive, Congress, and Courts often have differing opinions on specific items.

DOJ OPINION: In 1972, the Department of Justice’s Office of Legal Counsel issued an internal opinion that a sitting president cannot be indicted for criminal acts. Nevertheless, s/he could be named an “unindicted conspirator,” particularly when charging a group of conspirators. This Opinion has served as the DOJ’s bedrock operational policy ever since, although it has never been affirmed by Congress or the courts. The Opinion further allowed for indicting a president while in office, but postponing trial until after the president leaves office. This avoids issues of Constitutional separation of powers, as well as avoids Statute of Limitations issues.

DOING THE PRESIDENT’S WORK: The Presidency is a serious and highly demanding job, covering a wide range of responsibilities that affect national and world-wide outcomes. From that perspective, the President does require protection from legal harassment and “trivial” distractions that would hinder his/her performance – a protection that the courts have been willing to grant (up to a point) over the years. The 1972 DOJ Opinion stated, “The proper approach is to find the proper balance between the normal functions of the courts and the special responsibilities … of the Presidency … criminal proceedings against a President in office should not go beyond a point where they could result in so serious a  physical interference with the President’s performance of his official duties that it would amount to an incapacitation … The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”

In this age of knee-jerk lawsuits, subjecting the Presidency to only the most serious of concerns is warranted. But “most serious” is a judgment call. Over the last several decades, we, and our elected politicians, have not shown much capacity to make good, apolitical, subjective judgments about our government.

CONCLUSION: The question of whether a sitting President is immune from indictment for criminal activities committed before or after his/her election is subject to a wide range of unsettled legal opinion. 1) Impeaching a President removes that person from office, but demands no further follow-up political action. 2) “Treason, Bribery, or other High Crimes and Misdemeanors have meaning for Congress to consider in its deliberations, but they are independent of additional separate criminal actions, and may or may not overlap into justifiable criminal charges. 3) The Founders clearly presumed that a person serving as President is legally accountable at law for his/her actions, at some point in time and in some manner.

A President should be charged for crimes of a particularly serious nature. (“No man is above the law.”) Those charges can be prosecuted during the current term of office, or delayed until after, reflecting the seriousness of the crime. There should be no blanket DOJ policy of immunity, versus a policy adequate to meet differing times, needs and criticality.

Donald Trump said during his campaign that he could “walk down 5th Avenue and shoot someone and no one would care.” Presumably a number of people would most definitely care. The idea that a President could commit murder and be exempt from prosecution by virtue of simply holding that office is abhorrent on its face, akin to what we have seen with the dictator of North Korea and the Crown Prince of Saudi Arabia. There needs to be a scalable guide by which to measure and hold accountable a President’s wrong-doing, and new statutes of federal law are needed to clarify this ambiguity.

Yet a note of caution. Donald Trump has divided this country as no other President before him. The zeal to protect him by his supporters, and the zeal to prosecute him by his detractors, should not override carefully thought out legislative and legal decisions. It is the Presidency that is at stake here, not one individual President. The decisions made, and actions taken in this current legal quagmire, will affect not just Donald Trump, but also set precedence for all future Presidents. Given that seriousness, all of us – citizens, Congresspersons, and legal officials – need to set aside our political interests in favor of what is right for our current and future country.

“Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.”
—John Jay, first Chief Justice, writing for the Supreme Court, 1794

©   2019   Randy Bell