If Trump Is Planning a Pardon for the Arizona Sheriff, He Might Want to Think again.

It does appear to be good law that even Federal Court criminal contempts are pardonable by presidents.  (I had  thought there might be a separation of power claim.)

However, the Supreme Curt has hinted, back in 1925, that a pattern of abuse could lead to impeachment.  The language might also provide some tools to persuade the Court to look differently at the Sheriff’s behavior, and any Trump pardon.

Here is what the court said in In the Matter of Philip Grossman, 267 U.S. 87 (1925)

A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence.

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.
(Bold added.)

There just are not so many Supreme Court cases about impeachment, so every hint is meaningful.  This might stand for:

The proposition that use of pardons, in a pattern, could result in impeachment,

That acts that go to undermining the constitutional balance are appropriate for impeachment,

The idea hat the impeachment clause phrase “high crimes and misdemeanors,” is not necessarily limited to violations of the criminal code.

I would welcome additional suggestions.  Read and enjoy the full case.

More particularly, with respect to Arizona, the use of a pardon to undermine Federal authority is said to be particularly disturbing, for example in a “neighborhood.”   While the Sheriff is now out of power, such a pardon is far more threatening to Federal authority, than an individual violation of the law in the case the Supreme Court decided.

Indeed, a pardon for conviction for systematic abuses of governmental power in breach of the constitution would seem a classic exception requiring rethinking.

A sheriff’s county-wide pattern and practice of contempt for the constitution and the Federal Courts is far more damaging that an ongoing pattern of pardons for minor violations by individuals in a “neighborhood.”  Indeed, given that the case arose under the Prohibition Act, it is understandable that the Court felt the need to recognize that pardons might represent a threat to the enforcement of the law, and therefore hinted at remedies.

Time for second thoughts, Mr President.

Note:  This is a version of a very recent post on my access to justice blog.

 

 

Advertisements

Speculation and Manafort’s Change of Lawyers

I want to draw your attention to the some specific language in the Politico story on Paul Manafort’s change of lawyers, quoting a Manafort spokesman (see especially my bold language):

A spokesman confirmed the change. “Mr. Manafort is in the process of retaining his former counsel, Miller & Chevalier, to represent him in the office of special counsel investigation. As of today, WilmerHale no longer represents Mr. Manafort,” Jason Maloni said in a statement.

Now I have absolutely no factual knowledge of the situation.

However, I can not help but notice this.  Apparently, the process of moving back representation to prior counsel was not, at least at the time of the statement, complete.  But, “as of today,” WilmerHale is out of the picture, and apparently it has become important that this is made clear immediately.

Now all the media coverage has focused on the possibility that this change reflects realization of the newly serious situation Manafort faces.  But what strikes me is the apparent speed and finality of the change — so fast that the statement is issued before the retaining of new counsel is complete.  This is in direct contrast to changes made in representation of others caught up in this scandal.  Of course, in a fast moving case, in which the prosecutor has already  shown a willinness to push hard, going even an hour without a lawyer can be very risky.

As a totally general matter, it is an open secret among lawyers that “getting off a case,” is often triggered by disagreement about testimony, or representations made by counsel to legal bodies. Sometimes this can be related to prior testimony or such representations.  More specifically often the problem is the reluctance of counsel to become embroiled in knowing (emphasis added) that testimony is false.  (One might speculate that in such situations, timing can be of the essence.)

Regardless of whether any of my speculation is accurate, you can be sure that Mueller’s staff are already going through everything they have to try to figure out where any problem might be, and to then adjust their strategy.

Not good news for any of those potentially implicated.

Note:  This post appeared initially in my access to justice blog.

 

Future Needs For Federal Agency Outstations

Yesterday, we talked about the Secret Service’s lesser urgency for a close-in outpost in Trump Tower.

Today, much less humorously, it is beginning to look like the DOJ crackdown on the media will mean that Federal Bureau of Prisons will need outstations at the New York Times and the Washington Post.

If history is any guide, that need will decline quickly.  Rather there will soon be need for a huge Bureau of Prisons outstation at Trump Tower.  While the space vacated by the Secret Service will presumably be available, I doubt it will be large enough.

 

How About “Frighteningly Unpatriotic” as a Label for the Trump Operation’s Newly Revealed Behavior

Obviously, the astonishing developments of the last few days remove from the Trumps any intent or mens rea defenses.  All that is left is that “nothing happened,” which in politics, or in adultery, does not really get you very far.

The developments have also caused the first upswing in  the use of the word “treason.”  There may well be a legal case, perhaps ultimately a compelling one, but for the target population of traditional low information Republicans, it may be a wall too far right now.

So let me suggest that the concept we should be pushing is “patriotism,” or rather the astonishing lack of it.  How can anyone truly patriotic, if and when approached by a foreign and hostile power offering partnership in interfering with our sacred democratic election process, do anything other than say “no,” and then call the FBI.  Nor, would we expect any patriot of another country to do anything other than that country’s equivalent.

Obviously, such an idea never occurred to anyone in the Trump operation.  But, I am sure that the vast majority of Trump voters, while happy to get hear of dirt on Hilary, would not want to be in partnership with Russia to get that dirt.  They are better and more patriotic people than that.

So I would experiment with phrases like “frighteningly unpatriotic to even consider participating with Russia to undermine our election system,” or “at best shockingly unpatriotic and maybe at worst treasonous behavior.”

The point is to use words that resonate with the Republican base.

 

 

Could the Provisions of the 25th Amendment Make It Possible to Indict Trump While Still In Office

It has been perceived as received wisdom that sitting presidents can not be indicted.  In fact, that was regarded as an open question in the early days of the Watergate.  My impressionistic recollection is that the strategic decision was made by investigators that there was no point in providing Nixon an additional area of defense and distraction.  Now we have a fascinating perspective from Obama’s legal counsel, undercutting the then used public rationale for that conclusion, reflected in 1973 and 2000 DOJ Office of Legal Counsel Opinions, and the conclusion itself.  Bob Bauer on Lawfare:

OLC has taken the position that while the Constitution does not explicitly provide for immunity from indictment or prosecution, and the record on the Founders’ views of the question is inconclusive, the constitutional role of the president requires that he or she be afforded temporary immunity. Indictment and prosecution would have a “dramatically destabilizing effect” on the president’s capacity to discharge his or her duties. The executive’s energies would be diverted into the “substantial preparation” needed for his legal defense. The mere stigma and opprobrium of indictment, and possibly conviction, would result in “undermining the president’s leadership and efficacy both home and abroad.”

However, Bauer argues persuasively, from both the Nixon record and current events that the Opinion, which viewed investigation as appropriate, but not indictment, simply ignores reality:

.  .  .  Mostly the opinion fell back on a comforting image of a grand jury operating silently and (somehow) mostly out of sight and out of the way.

But that is not how it goes with high-profile, high-stakes investigations. We have them or we don’t: there is no quiet, non-disruptive version. And if we have them, accepting the disruptions they entail, then it is difficult to argue that they cannot be brought to one possible conclusion, if justified by the evidence: indictment. If a president can be investigated, then, it seems, a president can be indicted; if not in the second case, then not in either case, because it cannot be said that the government in the throes of a major investigation is measurably or reliably safer from severe “disruption” and massive loss of presidential credibility. The better, more internally consistent view in line with democratic “rule of law” norms is that the president is subject to investigation and, if the evidence supports it, indictment.

Bauer then goes on to bring in the 25th Amendment, and its provisions allowing a president to temporarily withdraw from the presidency, or, more likely in the real world, be declared unable to fulfill the duties of his or her office.

A president who faced what the OLC termed the “substantial preparation” required for a criminal defense, and the “dramatically destabilizing effects” of criminal process on his capacity to govern, would have a clear choice under the 25th Amendment. The same choice is open to the vice president with the support of the Cabinet if they reach this conclusion but the president resists.

Simple bottom line.  Just because the possibility of indictment would be disruptive to a president and governance is not a sufficient argument for forbidding such indictment.  Investigation and impeachment are allowed and are disruptive enough, and remedies exist for the disruption.

As I have argued before, given Trump’s utter self-absorption and unpredictability, the argument for a process that ultimately puts him under some form of restraint is compellingly in the national interest.  Otherwise, who knows what a Trump post-presidency would look like — “Take this plane to Moscow.”

 

“Rants From The Madman”

Famously, when Jimmy Carter was president, the Boston Globe “accidentally” ran a headline over an editorial that read: “Mush From the Wimp.”  There was no Internet to make it go viral, but today surely it would.

Today, to label Trump’s tweets as “rants from the madman” seems almost an understatement, and there is already plenty of obvious commentary.  So here are some addition questions:

When will be start seeing resignations from the national security team?

Is the legal team now obliged to formally withdraw representations that they have made to the Fourth, and Ninth Circuits, and to the Supreme Court.  Remember, lawyers can not make affirmative mis-representations to a court.

Will we see resignations from the Solicitor General’s Office, or just an inability to find staff to do the work?

Is there any chance that the Supreme Court will now grant review in the “travel Ban case.”  The risk of them being dissed during the process, such as after hearing, or after decision, is great.  If I were Roberts, I would take no action till the Ninth Circuit agrees with the Fourth (as it surely will), and then see if I have seven or more votes to put the President firmly in his place.  If not, I would do nothing, at least till there is a split from another Circuit.  I do not see how the Court can afford to be seen to be baling Trump out after today.  And, a 5-4 either way would be an absolute institutional disaster for the Court (US v. Nixon was 9-0).

Does the almost systematic dissing of one cabinet member after another mean that a 25th Amendment majority is starting to build up?  What is Pence thinking tonight.

Many previously loyal Republican commentators seem numb tonight.  Republican politicians have fallen largely quiet.  When will they start raising issues of Presidential inability to do the job? 

Finally, whatever else you can say, you can not argue with the fact that each week, things move faster an faster.   Things that would, the prior week, have seemed crazy to suggest, actually happen.

Our brains are lagging indicators.  Like any tipping point, when it comes, it will come quicker than we can possibly expect.

 

Thoughts On Intent in Government Enactments

It seems to me that most f the discussion about the role of intent in analyzing the legality of government actions has been pretty fuzzy.  So let me offer some thoughts. Of course, this issue has come up most dramatically in the context of the appropriately nicknamed “Muslim Ban,” but obviously it is highly relevant to many actions in a time such as this in which every branch of government (except maybe the Supreme Court) is dominated by one party, in this case one with a long history of “dog whistling.”

One way of structuring the inquiry is to focus on where  and when the greatest dangers occur from refusing to look beyond the face of an enactment to find illegal intent.

Probably the greatest danger of completely hidden intent occurs when the action is taken by one person or entity.  Had the “Muslim Ban” been enacted through a legislative or even a regulatory process, then the evidence of intent would have come out in the back and forth.  While that evidence might have been rejected in a challenge, because the court would have relied on the supposed facial neutrality of the enactment, none the less the evidence would have been there for all to see.   So Executive Orders are an area of particular risk.

Different kinds of evidence of intent are not only of different probative value, but their being ignored can cause different kinds of harm.  Thus, ignoring statistical evidence of harm means that harmful enactments go into force, but do not necessarily represent a public endorsement of the illegal result.  On the other hand, ignoring the clear evidence of the statements of Trump and his “gang” of their goals, sends a strong public message that those goals are in fact allowed and not forbidden.  That is a terrible message.

Moreover, while the general discussion of this topic has suggested that campaign statements are less worthy of consideration in looking at intent, it may be that the harm in ignoring them is even greater than the harm in ignoring post election statements.  The reason is that ignoring such campaign statements of a winner tells the protected minority and politicians that it is acceptable to use discriminatory appeals to win elections is OK — and that those promises can be kept.  Is there anything worse in the entwining of race with elections and government?

So my general conclusion would be that clear evidence of illegal intent should always be relevant, but that the weight of the evidence should depend on a) the nexus between the person making the statement and their role in the enactment, and b)the extent to which the statement of intent increases the harm of legitimizing the illegality of the action.