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.

 

 

 

 

 

This May All Be Over Much Quicker Than Anyone Expects

There are several reasons why the received wisdom about the speed of the Trump removal process may be completely wrong.  Not surprisingly, most of the reasons relate as much to the political as to the legal context.

One:  Perhaps most importantly, unlike in prior impeachment situations, even this early, almost everyone in Washington really wants Trump gone.  There are literally only about 50 people for whom this is not true.  The difference between the parties this year is that the Democrats are not upset when people figure it out, but the Republicans are terrified about their base doing so.  (When the Republicans say they want to get all the facts out about malfeasance on their side, you know the subject of the investigation is in deep trouble.)

Two:  A prima facie case of obstruction of justice by President Trump has already been made out, most of it from his own statements and admissions.  This comes from his firing of Comey, his statement that he performed the firing because of his feelings about the Russia investigation, his statement to the Russians that he (and they) have gained from what he believed to be the successful firing.  While that alone is probably enough, there will be plenty more.  This could go to a grand jury very quickly.

Three:  This time round, no one seems to be suggesting any barriers, such as Executive Privilege or National Security, to getting the information quickly.  This is in very marked contrast to 1972 – 1974, when it took well over a year to resolve the barriers.  I think the main reason is listed in number one  above, that no one wants to protect Trump, it is just that one party does not want that fact to be too obvious.  It is also partly that Trump has waived many of the legal issues by his tweeting and statements.  I think it is less the reason for the absence of such privilege claims that the legal issues have already been resolved — US v. Nixon gave Nixon no outs, but clever lawyers have since then, with a sympathetic audience been able to find new arguments — it’s just that there is no such sympathetic audience outside the immediate Trump family and their hangers on.

Four:  It really does not matter whether a President can be indicted or not.  You just charge a conspiracy to obstruct justice, name the President as an un-indicted co-conspirator, and get all the information to Congress.  This is what happened with Nixon, in that case with the permission of the judge overseeing the grand jury (the now largely forgotten hero John Sirica.)

Five:  In today’s digital environment, not only is there additional evidence everywhere, but the process of finding and putting it in the right order will move much quicker.  In the Watergate investigation it look months to get all the interlocking evidence hand typed onto sorted color-coded index cards.  The timeline can be ready for grand jury presentation soon.

Six:  If they can get rid of Trump, the Republicans want it done as fast as possible.  This is because the other prong of the investigation, the one dealing with the underlying Russia collusion, is going to take much longer, but if successful, it is potentially much much more damaging to the legitimacy of Republican power.  If by the time we get a new President it is clear that the Democrats should or might have won without the collusion, the pressure on Pence to offer the Vice Presidency to Tim Kaine will be immense, and we will be in a period of coalition government.  If the Republicans do not accept something like this, they will be killed at the next election, whether midterms or the presidential.  Even if they do accept it, much of their radical agenda is gone.

So, almost all the rational incentives align in the same direction.

The only questions are whether the Republicans can figure this out, and if the Democrats want and are able to, can figure out how to take advantage of the alignment.

Actually, the main reason I now think that impeachment is the more likely route is that Republicans do not have to be the ones obviously triggering the process, at least until very near the end of the game.  In contrast, if they used the 25th Amendment, it would basically Republicans starting and managing the process.

But, that choice of remedy analysis assumes that new bombshell inherently destructive of Trump’s relationship with his core base comes out — and that might happen tomorrow at 5 PM.  Tax returns, anyone.

 

 

 

A Strong Inference that the WH Counsel Talked to Trump About How to Respond to Yates’ Concerns

The day after Sally Yates talked to White house Counsel (or is it Council?) he came back with questions, somewhat reminiscent of those John Dean might have asked, but much less intelligent or knowledgeable.  Washington post, Dana Milibank:

He called the DOJ officials back to the White House the next day and asked them a perplexing question, Yates recounted to a Senate Judiciary subcommittee Monday afternoon: Why does it matter to DOJ if one White House official lies to another White House official?

Yates explained what should have been self-evident: Not only were Pence and the American public entitled to know the truth, but the Russians also knew that Flynn had lied to the vice president — so the Russians had the goods on him. “To state the obvious, you don’t want your national security adviser compromised with the Russians,” Yates testified. “Logic would tell you that you don’t want the national security adviser to be in a position where the Russians have leverage over him.”

But Trump didn’t move to fire Flynn. He fired Yates instead.

 At the White House counsel’s request, Yates had arranged for him to see the evidence against Flynn on Monday, Jan. 30. But he didn’t come that day, and that night Yates was sacked for refusing to implement Trump’s order banning travelers from several majority-Muslim nations.
Well, where on earth did counsel Don McGahn come up with that question?  I would have think the answer would have been obvious to the cleaning staff.
But the Donald, not so clear.
Now, as we learned from Watergate, White House calls, meetings, etc., may not have tapes and transcripts, but they are all logged.  So the circumstantial case for Presidential involvement in the Flynn cover-up, for cover up is what it certainly appears to have been, grows, and the lurking question of motive gets larger.  That Obama had previously at least generally warned Trump off Flynn, to no avail, and that Spicer now says that the warning was ignored as sour grapes from a loser, does not help Trump’s case at all.
P.S. Is it not tragically and deliciously ironic that the Trump White House had to ask why it would be a problem if someone lied?  Did they have to look up the meaning of the word?

 

 

An Additional Example of The Breakdown of Nation State Autonomy– White House staff and Trudeau

At one level, this is astonishing. From The Hill.

White House officials enlisted Canadian Prime Minister Justin Trudeau to help convince President Trump not to unilaterally withdraw from the North American Free Trade Agreement (NAFTA), according to a Monday report.

The unique and potentially embarrassing approach, which was first reported by Canada’s National Post, apparently worked. Following phone calls with Trudeau and Mexican President Peña Nieto, Trump backed off of reported plans to pull out of NAFTA last month.

Instead, Trump announced that he would renegotiate the 23-year-old deal agreement among the U.S., Canada and Mexico.

I am sure this will draw attention mainly as yet another example of the dysfunction of the White House and its nominal occupant.

But the idea that the staff of a nation’s chief executive would find it appropriate to bring in as an ally the chief executive of another country to change their own bosses mind is in fact merely symptomatic of the fact that today the real disputes are between loose alliances of elites whose loyalties and communications now cross national boundaries.

It is related to the interest of foreign countries in state by state politics in the US, is reflected in part by Flynn, and whoever else is ultimately implicated in “Russiagate,” (what did the President know, and when did he know it?) not thinking through what they did.  It is surely also reflected in the myriad state department staff who have tried to reassure elites among our allies that we are not yet as unpredictable as monitoring twitter might suggest.  Think about the conversations between Brussels officials and the British Civil Service right now.  Or between Bannon and LePenn.

At least arguably, the problem for Flynn, and whoever, is not that they had conversations, but that they made no distinctions between our friends and our allies, or rather that their actions reflected a lack of understanding that there is a distinction.

The fact is that as national interests become more and more interconnected, this is an almost inevitable process.  The questions are how to manage it so that the interests of the excluded are not even more abandoned, and how to see this as part of the process of creating trans-national institutions and governments.  Would the United States ever have been established if the leaders of the thirteen states had not already somewhat  known each other, and known whom they could trust.

We need very new ways of thinking about this.

Why Did Sessions Not Report His Russian Contact to the FBI?

According to the Washington Post:

One of the meetings was a private conversation between Sessions and Russian Ambassador Sergey Kislyak that took place in September in the senator’s office, at the height of what U.S. intelligence officials say was a Russian cyber campaign to upend the U.S. presidential race.

Given the context, I find it hard to believe that Sessions would not have told State, FBI, CIA or NSA about that contact.  Moreover, surely any sane politician would have written a “memo to file” as a future potential defensive tool.  I would have assumed that they one or more of the above would have known anyway.

I regard the apparent absence of both (or even just a failure to report them by now), as something close of consciousness of guilt — although I have no personal knowledge of such general procedures, or what he did.

This story is just not going to go away.