Trump Is Right to Pardon Scooter Libby, an Innocent Man

President Trump has pardoned I. Lewis “Scooter” Libby, convicted in 2007 of perjury and obstruction of justice. The president was right to do so. Mr. Libby’s conviction was a travesty.

Mr. Libby, who served as Vice President Dick Cheney’s chief of staff, got caught up in a special counsel’s investigation about the disclosure to the press of a CIA agent’s identity. It appears Mr. Cheney was the investigation’s real target. Mr. Libby’s lawyers have said prosecutors offered to drop the charges against Mr. Libby if he would incriminate his boss. But, there was “no there, there.” Neither Mr. Libby nor Mr. Cheney had anything to do with the “leak” or with covering it up. No one was charged with a crime in the “outing” of the agent, Valerie Plame, and it’s not clear it was a crime.

The Intelligence Identities Protection Act of 1982 makes it a crime to reveal the identity of a “covert” intelligence agent. Ms. Plame was a midlevel employee stationed at Central Intelligence Agency headquarters. In early 2002, she urged her superiors to tap her husband, retired diplomat Joe Wilson, to investigate claims that Saddam Hussein had tried to buy processed uranium in Niger. The CIA interpreted Mr. Wilson’s report as supporting that claim, but a year later he publicly declared the evidence was dubious and became a vocal critic of President Bush’s Iraq policy.

The late Robert Novak wrote a column revealing that Mr. Wilson had gone to Niger at Ms. Plame’s urging. Mr. Wilson asserted that the revelation of his wife’s CIA employment was meant to punish him. But her identity was well-known around Washington, suggesting that she had not taken “affirmative measures” to conceal her “intelligence relationship to the United States,” a necessary element of the crime.

Special counsel Patrick Fitzgerald was appointed by his friend James Comey, then deputy attorney general. From the start, Mr. Fitzgerald knew that the critical “leak” to Novak had come from then-Deputy Secretary of State Richard Armitage. He nevertheless commenced an extensive investigation to “discover” what had happened.

The charges against Mr. Libby were based on his description of various conversations he had with journalists at the time, including the New York Times’s Judith Miller. Based on notes she had made containing the word “bureau” in association with Ms. Plame’s job, Ms. Miller became the only reporter to testify that Mr. Libby had discussed Ms. Plame’s CIA connection with her. Mr. Fitzgerald called her testimony “critical” in his closing argument to the jury, which found Mr. Libby guilty on four of five counts.

But Ms. Miller later realized her testimony had been mistaken. Ms. Plame published a memoir in late 2007, months after Libby’s trial. In Ms. Miller’s 2015 book, “A Reporter’s Story,” she writes that one particular point in Ms. Plame’s account immediately caught her eye: Ms. Plame’s CIA “cover” had been as an employee of a State Department bureau. Mr. Libby would have known the CIA has “divisions,” not “bureaus.” He could not, therefore, have been the person who revealed Ms. Plame’s CIA connection to Ms. Miller.

Ms. Miller did not recognize her mistake when preparing her trial testimony, because she did not know that Ms. Plame had a State Department cover. Had she known, she would not have claimed she and Mr. Libby had discussed Ms. Plame’s CIA status. But Mr. Fitzgerald knew, and Ms. Miller believes he deliberately led her away from the truth.

All this means that Mr. Libby was telling the truth about his conversations with Ms. Miller, and that he did not deliberately mislead Mr. Fitzgerald’s grand jury or the FBI. For her part, Ms. Miller had not lied at Mr. Libby’s trial; she had given false testimony in good faith. “With the information about Plame’s cover that Fitzgerald had withheld, it was hard not to conclude that my testimony had been wrong,” she writes. “Had I helped convict an innocent man?

She had. It is now established that Mr. Libby never told any reporter about Ms. Plame, never knew that she had any special status, and had no reason to lie about any of this—and that the “leak” had caused no harm to the CIA, its personnel or operations. But the time for Mr. Libby’s appeals has long passed.

One court partially righted the wrong Mr. Libby suffered. In 2016, the District of Columbia Court of Appeals, a local tribunal, restored Mr. Libby’s license to practice law in the nation’s capital. This action was based on a report by the D.C. Bar’s Office of Disciplinary Counsel, which specifically noted that Mr. Libby had consistently maintained his innocence, that he never denied the seriousness of the offenses of which he was convicted, and that Ms. Miller, as a “key prosecution witness . . . has changed her recollection of the events in question.”

Long ago, Hillary Clinton’s friend and law partner Vince Foster wrote that Washington was a place where “ruining people is considered sport.” He left those words in a note found after his 1993 suicide. Foster’s observation is undeniably true—but should not be. Mr. Trump promised to change the way Washington works, and has himself experienced the full force of this detestable Washington pastime since before he took office. By granting Scooter Libby a full pardon, he has taken a step toward changing Washington’s culture, and he has righted a grievous wrong.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department in the Reagan and George H.W. Bush administrations.

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FISA Abuses Are a Special Threat to Privacy and Due Process

By  David B. Rivkin Jr. and Lee A. Casey

Feb. 26, 2018, in the Wall Street Journal

The House Democratic surveillance memo is out, and it should worry Americans who care about privacy and due process. The memo defends the conduct of the Justice Department and Federal Bureau of Investigation in obtaining a series of warrants under the Foreign Intelligence Surveillance Act to wiretap former Trump campaign adviser Carter Page.

The Democrats argue that Christopher Steele, the British former spy who compiled the Trump “dossier” on which the government’s initial warrant application was grounded, was credible. They also claim the FISA court had the information it needed about the dossier’s provenance. And they do not dispute former FBI Deputy Director Andrew McCabe’s acknowledgment that the FBI would not have sought a FISA order without the Steele dossier.

The most troubling issue is that the surveillance orders were obtained by withholding critical information about Mr. Steele from the FISA court. The court was not informed that Mr. Steele was personally opposed to Mr. Trump’s election, that his efforts were funded by Hillary Clinton’s campaign, or that he was the source of media reports that the FBI said corroborated his dossier. These facts are essential to any judicial assessment of Mr. Steele’s veracity and the applications’ merits.

The FBI should have been especially wary of privately produced Russia-related dossiers. As the Washington Post and CNN reported in May 2017, Russian disinformation about Mrs. Clinton and Attorney General Loretta Lynch evidently prompted former FBI Director James Comey to announce publicly the close of the investigation of the Clinton email server, for fear that the disinformation might be released and undermine the bureau’s credibility.

In addition, even assuming the dossier was accurate regarding Mr. Page, its allegations are thin. Mr. Page was said to have met in Moscow with Russian officials, who raised the potential for cooperation if Trump was elected; Mr. Page was noncommittal. The most significant claim—that those officials offered Mr. Page a bribe in the form of Russian business opportunities—suggests he was not a Russian agent. Existing operatives don’t need to be bribed.

There was no good reason to withhold from the FISA court any information regarding Mr. Steele, his anti-Trump biases, or the dossier’s origin as opposition research. The court operates in secret, so there was no danger of revealing intelligence sources and methods. The inescapable conclusion is that the information was withheld because the court would have been unlikely to issue the order if it knew the whole truth.

That’s a problem because following the rules and being absolutely candid with the court is even more essential in the FISA context than in ordinary criminal investigations. Congress enacted FISA in 1978 to create a judicial process through which counterintelligence surveillance could take place within the U.S., even when directed at American citizens, consistent with “this Nation’s commitment to privacy and individual rights.”

Because the purpose of counterintelligence is to gather information, not necessarily to prosecute criminals, the standards required for issuance of a FISA order are less demanding than those governing warrant requests in criminal cases. In both contexts a finding of “probable cause” is required. But an application for a criminal warrant must show, among other things, that “there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense” under federal law. Under FISA, it’s enough to show probable cause that the targeted U.S. person’s “activities may involve a violation of the criminal statutes of the United States” (emphasis ours).

This difference is subtle but crucial. The FISA standard is far easier to meet; and in the past, the FISA court has criticized the government for taking advantage of the lower standard to obtain FISA warrants for use in criminal investigations. The lower standard makes it imperative that the responsible officials be extra careful when validating the information on which the order is based, in ensuring that the statutory standards are met, and in keeping the FISA court fully informed.

Slipshod and duplicitous FISA order applications also necessarily raise constitutional issues. FISA has been generally considered permissible under the Fourth Amendment, even though its probable-cause standard is “more flexible,” as one court noted, because of the statute’s procedural safeguards. But those protections mean very little if investigators withhold material information from the court. Moreover, in an ordinary criminal case, the target of surveillance has full due-process rights in a public trial. If a FISA order is obtained improperly, the target’s privacy is still invaded, but there is no opportunity for vindication. The perpetrators of the abuse, and even the abuse itself, will likely never be exposed.

Congress must consider carefully the actions of the FBI and Justice Department, with a determination to hold the responsible parties to account and to ask whether these abuses, which nearly went undetected, demand significant changes to the FISA process itself to protect the privacy and due-process rights of Americans.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/fisa-abuses-are-a-special-threat-to-privacy-and-due-process-1519689446

Mark Janus Was With Hillary, Whether or Not He Wanted to Be

Flash back to the Las Vegas Convention Center, July 19, 2016. The floor overflows with people chanting, “We’re with her!” A speaker proclaims, to cheers and applause, that we “will stand with her in every corner of this nation.” Then Hillary Clinton takes the stage as the crowd rises in a standing ovation. She thanks them for supporting her campaign and rallies them to knock on doors and get out the vote.

The event wasn’t organized by the campaign. It was the 2016 convention of the nation’s largest union representing public-sector workers, the American Federation of State, County and Municipal Employees. The state of Illinois forced Mark Janus —an Illinois employee who refused to join the union—to pay for a portion that pro-Hillary rally.

Across the U.S., more than 500,000 state and local workers have objected to funding union advocacy but are nonetheless required by law to pay “fair share” fees to labor unions they have refused to join. The Supreme Court upheld the practice in a 1977 case, Abood v. Detroit Board of Education, reasoning that otherwise workers could “free ride” on the union’s collective bargaining. Prohibiting unions from charging nonmembers directly for political speech, it believed, would protect their First Amendment rights.

On Monday the justices will hear oral arguments in a challenge to that 1977 decision brought by Mr. Janus. They should heed Justice Felix Frankfurter’s observation, in an earlier case on mandatory union fees, that it is “rather naive” to assume “that economic and political concerns are separable.” As Mr. Janus argues, bargaining over wages, pensions and benefits in the public sector involves issues of intense public concern and thus core First Amendment-protected speech. A state law that forces public employees to fund that speech violates their rights, no less than compelling them to speak. ( Janus v. Afscme doesn’t consider these questions for unions in the private sector.)

Other unions that held pro-Clinton rallies include the American Federation of Teachers, the National Education Association and the Service Employees International Union, which represents about one million public workers. The SEIU convention passed a resolution that the union will “elect Hillary Clinton” as president “by mobilizing millions of voters.” Unions and state governments maintain that nonmembers can be charged for these conventions because they are where the unions adopt bargaining strategies and representational policies.

Afscme used its convention to weigh in on practically every major political issue. One resolution condemned Senate Republicans and demanded hearings and a vote on Judge Merrick Garland’s nomination to the Supreme Court. Others addressed funding for public infrastructure, educational spending, paid family and sick leave, private contracting of government services, the minimum wage, and “right to work” laws, with each resolution taking the expected union position.

More surprising were resolutions with no obvious connection to union interests—demanding gun-control laws, statehood for the District of Columbia, marijuana legalization, “comprehensive immigration reform with a pathway to citizenship,” “racial justice” and an end to state laws that protect religious freedom. Whatever Mr. Janus’s positions on these issues, he was forced to fund Afscme’s advocacy on them.

The American Federation of Teachers has charged nonmembers for advocacy supporting public funding for Planned Parenthood, the “climate justice movement” and a constitutional amendment to restrict political speech by overturning Citizens United v. Federal Election Commission—which, ironically, protects union as well as corporate speech.

But the National Education Association takes the cake. Its current resolutions stake out positions on topics from the adoption of constitutional amendments through the convention process of the Constitution’s Article V (NEA is opposed), to American participation in the International Court of Justice and International Criminal Court (thumbs up), to “covert operations and counterintelligence activities,” along with the “self-determination of indigenous people.” The NEA has spent objectors’ money on advocacy in favor of racial preferences, comprehensive sex education, restoration of voting rights for felons, and adoption of the metric system by the U.S.

Yes, the metric system.

These unions also charge nonmembers for training programs embodying the same political outlook. A recent AFT conference in Detroit featured sessions on participating in “the Resistance,” “fighting against Trump and [Education Secretary Betsy ] DeVos, ” and “organizing a sanctuary campus” to block participation in the enforcement of federal immigration laws. The NEA, meanwhile, uses nonmembers’ fees to produce materials for teachers addressing “social justice” issues, such as “diversity,” “privilege,” and “hierarchies of oppression.”

These details reflect the basic truth that labor unions are political organizations. Everything they do, from massive political expenditures to bargaining activities, is shot through with political purpose and consideration. Under the First Amendment, they have the right to politic in all these ways—just as Mr. Janus has the right not to pay for it.

Messrs. Rivkin and Grossman practice constitutional and appellate law in Washington. Mr. Grossman filed a brief on behalf of the Competitive Enterprise Institute supporting Mr. Janus.

Source: https://www.wsj.com/articles/mark-janus-was-with-hillary-whether-or-not-he-wanted-to-be-1519341922

The Judicial ‘Resistance’ Is Futile

The U.S. Supreme Court does not act in haste, so the justices raised some eyebrows last month when they took only two weeks to agree to hear the government’s appeal of an immigration case. Normally it would have taken several months, and a ruling might not have come until 2019. Instead the court is expected to issue a decision in Trump v. Hawaii by the end of the current term, in June.

Why the rush? Because lower-court judges have been playing an extraordinary cat-and-mouse game with the Supreme Court over President Trump’s three executive orders limiting immigration from several terror-prone countries. Over the past year, numerous trial and appellate courts have enjoined those orders, only to have the high court stay their decisions.

The lower-court judges have defied precedent by holding that the president has neither constitutional nor statutory authority to issue these orders. They have improperly questioned Mr. Trump’s motives, even analyzing his campaign statements for evidence of bad intent. And they have responded to each reversal from the high court by spinning new theories to strike down the orders. The judges appear to have joined the “resistance,” and it wouldn’t be surprising if the justices concluded enough is enough.

The case the court will now review is the handiwork of the Ninth U.S. Circuit Court of Appeals, which engaged in an analysis that ignored key precedents and misapplied accepted canons of statutory interpretation.

Any legal analysis of the travel orders must begin with the core constitutional propositions, articulated by the Supreme Court in Knauff v. Shaughnessy (1950), that “an alien who seeks admission to this country may not do so under any claim of right” and that the authority to exclude aliens “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Congress has the leading role in determining who may immigrate, stay and become a citizen. But the president has independent plenary authority to exclude aliens for foreign-policy or national-security reasons.

The Ninth Circuit brushed aside Knauff and held that Mr. Trump “lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.” Then it went a step beyond that.

In 1952 Congress enacted a statute authorizing the president to “suspend the entry of all aliens or any class of aliens” whenever he finds their entry to be “detrimental” to the national interest and to establish restrictions on entry. The Ninth Circuit declared that the law as written amounts to an unconstitutional delegation of legislative power—never mind that in Knauff the high court dismissed such a challenge to a similar statute, holding that Congress had merely reaffirmed the president’s own constitutional authority.

The Ninth Circuit further argued that even if the statutory language was constitutional, it was outweighed by a provision in the 1965 Immigration and Nationality Act barring discrimination on the basis of nationality. But that provision applies to the issuance of immigrant visas, not the entry of aliens. Holding that a statute dealing with one issue vitiates a statute dealing with another matter is not, to put it mildly, an accepted statutory interpretation method.

The circuit judges still weren’t done. They held that even if the 1952 statute applied, Mr. Trump failed to comply with it. The judges characterized his proclamation as reflecting “general immigration concerns” not grounded in critical foreign-policy or national-security findings. In fact, the order clearly stated the action or inaction of the eight designated governments made it impossible to assess adequately whether admission of their nationals creates an unacceptable risk to the U.S.

That was an especially egregious error. The Constitution and Supreme Court cases going back to the seminal Marbury v. Madison (1803) grant the courts no authority to review the discretionary policy choices made by the political branches. When it comes to immigration, the judiciary’s role is limited to determining whether any procedural requirements Congress had enacted have been satisfied. That is what the Supreme Court did in Knauff and what the Ninth Circuit should have done here.

The Supreme Court seems likely to correct this error. The justices voted 7-2 in December to stay any judicial order stopping implementation of the current immigration policy, even before the Ninth Circuit’s decision was issued. One hopes the justices will strongly affirm that the president has the power to exclude aliens from the U.S. for foreign-policy and national-security purposes, and that the judiciary has no role in reviewing his policy choices in this area. A unanimous ruling would send an especially strong message.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department in the Reagan and George H.W. Bush administrations.

Source: https://t.co/CTxCOOSJ8F

The Zero That Makes Mulvaney a Hero

By Democrats’ design, the CFPB director has vast power. He can use it to shrink the bureau.

Richard Cordray asked Federal Reserve Chair Janet Yellen for $217 million in October—his last such request as director of the Consumer Financial Protection Bureau. Last week Mr. Cordray’s acting successor, Mick Mulvaney, made his first quarterly funding request: “$0.” What a difference a few months make.

Established in the wake of the 2008 financial crisis according to now-Sen. Elizabeth Warren’s vision, the CFPB ran wild under Mr. Cordray’s leadership—issuing reams of punishing regulations and conducting endless fishing expeditions, sometimes into industries Congress had specifically excluded from its jurisdiction.

This was possible because the bureau was designed to be insulated from accountability. It is led by a single director, whom the president cannot fire except for cause, and funded by the Fed, so that it need not justify its actions and funding needs to Congress.

Whether this arrangement is constitutional is an open question, currently pending in the U.S. Circuit Court of Appeals for the District of Columbia. But for now, as that court’s Judge Brett Kavanaugh has observed, it renders the CFPB director “the single most powerful official in the entire United States Government” (with the possible exception of the president).

That power now belongs to Mr. Mulvaney—and if Mr. Cordray had no constraints in his overreach, his successor is equally free to rein it in. Mr. Mulvaney has already frozen new regulations as well as regulatory “guidance,” which agencies often treat as carrying the force of law. But with Mr. Cordray’s minions burrowed into the bureau’s 1,600-person workforce, tweaks to rules and enforcement policies will only go so far.

The linchpin for fast and effective deregulation is substantially defunding the agency and clearing out its ranks in the process. Mr. Mulvaney’s request of zip from Ms. Yellen is a good first step.

The statute creating the bureau sets its budget at “the amount determined by the Director to be reasonably necessary to carry out the authorities of the Bureau,” and no one is authorized to second-guess that determination. That supports Mr. Mulvaney’s decision to forgo additional funding this quarter and draw down the unauthorized $177 million “reserve fund” Mr. Cordray built up during his tenure.

The language that authorizes Mr. Mulvaney to slash funding applies equally to spending—after all, determining what is “reasonably necessary” to do the bureau’s business implies determining what that business is. When Congress has made a lump-sum appropriation to an agency without mandates for spending on particular items, the courts have viewed that as authorization for the agency to choose how to spend the funds. The CFPB’s funding mechanism confers even broader discretion on the director given that he controls revenue as well.

It is possible that a court would require funding for the CFPB’s statutory obligations. The statute requires, for example, that the bureau establish an office focused on “traditionally underserved consumers and communities.” That mandate suggests that the director cannot zero out the office’s budget. But it says nothing about how much funding is required or whether assistance to underserved communities is best organized at the state level, with a skeleton crew at the CFPB playing a coordinating role. There is no standard by which a court could review those decisions.

The bottom line is that all of the CFPB’s discretionary spending is at the pleasure of the director, and the bulk of its $630 million budget is discretionary. That gives Mr. Mulvaney the power to reshape the agency radically—and resize it—in short order. And by exerting his powers to their fullest, perhaps Mr. Mulvaney will be able to convince even congressional Democrats that those powers are excessive and ought to be restrained.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/the-zero-that-makes-mulvaney-a-hero-1516566319

Now is the time to hit the Iranian regime with lower oil prices

For the sake of the Iranian people and global stability, we need to lead the effort in suppressing oil prices beyond what Tehran can bear.

Mass protests are gripping Iran as its people express their discontent with crippling poverty, governmental corruption, and Tehran’s highly expensive sponsorship of terrorist proxies around the Middle East. The protests are geographically widespread, rural and urban, and challenge the very sinews of Iran’s mullahcracy. The United States can and should support Iranian freedom by pressuring the regime at its most vulnerable point, oil revenues. This strategy should have long- and short-term components, both designed to decrease global oil prices.

Iran’s dire economic situation is at the heart of this discontent. As President Rouhani acknowledged, the government cannot meet payroll and is seeking to increase revenue and decrease expenditures. Since 80% of Iran’s budget comes from petroleum exports, the quickest and surest way to bring about regime change in Tehran is a broad campaign to reduce current global oil prices.

In order for Tehran to balance its budget, oil prices need to be around $130 per barrel, over twice what they are today. Several factors — including government-promised subsidies to wheat farmers and debt payment obligations that are headed toward default — are pushing Iran to the financial breaking point. Add to this the rising costs of Tehran’s military establishment, and the mullahs’ expanding commitment to fomenting chaos around the Arab world, and you have a recipe for financial meltdown. The doomsday scenario could only be avoided by a major rise in oil prices that would allow Iran, with 10% of proven global reserves, to rescue itself.

For the sake of the Iranian people and global stability, this cannot be allowed to happen. Washington should lead the effort. Tehran is a major American foe and a successful anti-mullahcracy effort would both improve Middle East security and enhance US global credibility.

There are four ways to suppress further the current low global oil prices. First, the ad hoc understanding between Saudi Arabia and Russia, the world’s first and second largest oil exporters respectively, to curtail oil output would need to be suspended. This would enable the Saudis, who have the highest spare capacity of any nation, to increase exports, driving down prices. Moscow would hate losing its key Middle Eastern ally and wouldn’t countenance such a suspension, but it cannot stop the Saudis, for whom Iran is also a major adversary.

Second, the United States should continue with its long-term efforts to increase both the U.S. oil output — which it has already done by just announcing a major expansion of offshore oil drilling — and increasing U.S. capacity to export oil and petroleum products by building additional pipelines and terminal facilities. While these efforts would exert some downward pressure on prices, they would need to be supplemented by the short-term measures, that are capable of having an immediate pricing impact. The key such measure would be an agreement between the United States and a Saudi-led coalition (along with UAE and Kuwait) to increase output, bringing the price down by at least $10 per barrel. Further, because Tehran suffers from a lack of indigenous capital and technology to increase sustained production capacity and hence oil exports, this same coalition should convince the few oil companies willing to invest in Iran’s upstream industry to put their efforts on hold.

Finally, because Tehran lacks access to foreign financial markets and American banks view investing in Iran as too risky, its only hope is in European, and to a much lesser extent Asian, banks. The Trump administration should send a strong message to European and Asian banks that their access to U.S. capital markets will be endangered, if they float credits to Tehran in any form.

One might ask why Saudi Arabia, a nation that also depends heavily on oil revenues, would support a lower price. The answer is simple cost-benefit analysis. Blocking Iran’s drive for regional hegemony is the kingdom’s highest foreign policy priority. The Saudis are spending tens of billions of dollars attempting to stabilize nations such as LebanonBahrain and Palestine and fighting wars in Yemen and Syria against Iranian destabilization efforts. Not only are the Saudis eager to shrink these expenditures, but with about $500 billion in foreign reserves and one of the cheapest oil extraction costs in the world, they can withstand lower petroleum prices for years if necessary. In short, the regime change that low oil prices would bring in Iran represents a vital foreign policy boon and overall financial savings over the mid to long-term for the kingdom.

Tehran simply cannot survive a sustained $50 per barrel price. All those wishing to bring an end to the decades of widespread terror caused by this so-called Islamic Republic, and support the Iranian people in their own demands for change, should commit to the above-mentioned measures. Only the oil weapon can end this repressive regime.

David B. Rivkin Jr. served in the Departments of Justice and Energy and the White House Counsel’s Office during the Reagan and George H. W. Bush administrations.  Nawaf E. Obaid, a visiting fellow for intelligence & defence projects at Harvard’s Belfer Center, is a former advisor to the Saudi government.

Source: https://www.usatoday.com/story/opinion/2018/01/07/wielding-oil-weapon-against-iran-best-way-end-its-oppressive-regime-david-rivkin-nawaf-obaid-column/1005225001/

Can a President obstruct Justice?

Speculation about Special Counsel Robert Mueller’s investigation has turned toward obstruction of justice—specifically, whether President Trump can be criminally prosecuted for firing James Comey as director of the Federal Bureau of Investigation or for earlier asking Mr. Comey to go easy on onetime national security adviser Mike Flynn. The answer is no. The Constitution forbids Congress to criminalize such conduct by a president, and applying existing statutes in such a manner would violate the separation of powers.

The Constitution creates three coequal branches of government, and no branch may exercise its authority in a manner that would negate or fundamentally undercut the power of another. The power to appoint and remove high-level executive-branch officers, such as the FBI director, is a core aspect of the president’s executive authority. It is the principal means by which a president disciplines the exercise of the executive power the Constitution vests in him.

The same is true of Mr. Trump’s request, as purported by Mr. Comey: “I hope you can see your way clear . . . to letting Flynn go.” The FBI director wields core presidential powers when conducting an investigation, and the president is entirely within his rights to inquire about, and to direct, such investigations. The director is free to ignore the president’s inquiries or directions and risk dismissal, or to resign if he believes the president is wrong. Such officials serve at the president’s pleasure and have no right to be free of such dilemmas.

A law criminalizing the president’s removal of an officer for a nefarious motive, or the application of a general law in that way, would be unconstitutional even if the president’s action interferes with a criminal investigation. Such a constraint would subject every exercise of presidential discretion to congressional sanction and judicial review. That would vitiate the executive branch’s coequal status and, when combined with Congress’s impeachment power, establish legislative supremacy—a result the Framers particularly feared.

Mr. Trump’s critics claim that subjecting the president’s actions to scrutiny as potential obstructions of justice is simply a matter of asking judges to do what they do every day in other contexts—determine the purpose or intent behind an action. That is also wrong. The president is not only an individual, but head of the executive branch. Separating his motives between public interests and personal ones—partisan, financial or otherwise—would require the courts to delve into matters that are inherently political. Under Supreme Court precedent stretching back to Marbury v. Madison (1803), the judiciary has no power to do so. And lawmakers enjoy an analogous immunity under the Speech and Debate Clause.

The president’s independence from the other branches does not merely support “energy” in the chief executive, as the Framers intended. It also ensures that he, and he alone, is politically accountable for his subordinates’ conduct. If officials as critical to the executive branch’s core functions as the FBI director could determine whom and how to investigate free from presidential supervision, they would wield the most awesome powers of government with no political accountability. History has demonstrated that even when subject to presidential authority, the FBI director can become a power unto himself—as J. Edgar Hoover was for decades, severely damaging civil liberties.

There are limits to presidential power. The Constitution requires the Senate’s consent for appointment of the highest-level executive-branch officers—a critical check on presidential power. The Supreme Court has upheld statutory limits—although never involving criminal sanction—on the removal of certain kinds of officials. But the decision to fire principal executive-branch officers like the FBI director remains within the president’s discretion. A sitting president can also be subjected to civil lawsuits—but only in a carefully circumscribed fashion, to avoid impeding his ability to discharge the powers of his office.

The ultimate check on presidential power is impeachment. Even though Mr. Trump cannot have violated criminal law in dismissing Mr. Comey, if a majority of representatives believe he acted improperly or corruptly, they are free to impeach him. If two-thirds of senators agree, they can remove him from office. Congress would then be politically accountable for its action. Such is the genius of our Constitution’s checks and balances.

None of this is to suggest the president has absolute immunity from criminal obstruction-of-justice laws. He simply cannot be prosecuted for an otherwise lawful exercise of his constitutional powers. The cases of Richard Nixon and Bill Clinton —the latter impeached, and the former nearly so, for obstruction of justice—have contributed to today’s confusion. These were not criminal charges but articulations of “high crimes and misdemeanors,” the constitutional standard for impeachment.

And in neither case was the accusation based on the president’s exercise of his lawful constitutional powers. If a president authorizes the bribery of a witness to suppress truthful testimony, as Nixon was accused of doing, he can be said to have obstructed justice. Likewise if a president asks a potential witness to commit perjury in a judicial action having nothing to do with the exercise of his office, as Mr. Clinton was accused of doing.

Although neither man could have been prosecuted while in office without his consent, either could have been after leaving office. That’s why President Ford pardoned Nixon—to avoid the spectacle and poisonous political atmosphere of a criminal trial. In Mr. Trump’s case, by contrast, the president exercised the power to fire an executive-branch official whom he may dismiss for any reason, good or bad, or for no reason at all. To construe that as a crime would unravel America’s entire constitutional structure.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s office and Justice Department in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/can-a-president-obstruct-justice-1512938781