Author Archives: David Rivkin

About David Rivkin

Appellate Attorney at Baker Hostetler LLP in Washington D.C. www.DavidbRivkin.com

Democrats Abandon the Constitution

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

October 16, 2018, in the Wall Street Journal

Brett Kavanaugh’s appointment to the Supreme Court has sparked a firestorm of outrage and recrimination on the left. Some attacks seem aimed at intimidating the justices into supporting progressive causes. “The Court must now prove—through its work—that it is worthy of the nation’s trust,” Eric Holder, President Obama’s attorney general, tweeted Oct. 6.

Yet the attacks go beyond ideology. Detractors of Justice Kavanaugh and President Trump are denouncing the Constitution itself and the core elements of America’s governmental structure:

• The Electoral College. Mr. Trump’s opponents claim he is an illegitimate president because Hillary Clinton “won the popular vote.” One commentator even asked “what kind of nation allows the loser of a national election to become president.” The complaint that the Electoral College is undemocratic is nothing new. The Framers designed it that way. They created a republican form of government, not a pure democracy, and adopted various antimajoritarian measures to keep the “demos” in check.

The Electoral College could be eliminated by amending the Constitution. But proposing an amendment requires two-thirds votes in both houses of Congress, and the legislatures of three-fourths, or 38, of the states would have to ratify it.

• The Senate. The complaint here is that the 50 senators who voted in Justice Kavanaugh’s favor “represent” fewer people than the 48 who voted against him. But senators represent states, not people.

Equal Senate representation for the states was a key part of the Connecticut Compromise, along with House seats apportioned by population. The compromise persuaded large and small states alike to accept the new Constitution. It was so fundamental that Article V of the Constitution—which spells out the amendment procedure—provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” That means an amendment changing the structure of the Senate would require ratification by all 50 states.

• Judicial independence. Commentators who disapprove of the Supreme Court’s composition have urged, as one law professor put it, “shrinking the power of the courts to overrun our citizens’ democratic decisions.” Some suggest limiting and staggering the justices’ terms so that a vacancy would come up every other year, ensuring that the court follows the election returns. That could be achieved via constitutional amendment, but it would go against the Framers’ wisdom. As Hamilton wrote in Federalist No. 78, life tenure for judges is “the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.”

Some of Justice Kavanaugh’s detractors have demanded that if Democrats take the House next month, they open an investigation into the sex-crime allegations Senate Democrats failed to substantiate. But although Congress has wide oversight powers with respect to the executive branch, it has no such oversight authority over the judiciary. The only way the House can legitimately investigate a sitting judge is in an impeachment proceeding.

And Justice Kavanaugh cannot be impeached for conduct before his promotion to the Supreme Court. Article III provides that judges “hold their Offices during good Behavior,” so that a judge can be removed only for “high Crimes and Misdemeanors” committed during his term in office.

That puts inquiry into allegations about Justice Kavanaugh’s conduct as a teenager and young adult well outside Congress’s investigative authority, along with any claims that he misled the Judiciary Committee. Such claims could be reviewed only as part of a criminal investigation by federal prosecutors based on a referral from the Senate, the only body that may decide whether his testimony contained “material” misrepresentations. For the House to inquire into this matter would impermissibly encroach on the Senate’s advice-and-consent power.

Michael Barone has observed that “all procedural arguments are insincere.” Those who now complain about the undemocratic nature of the Electoral College and the Senate were quite content when their party seemed to have a lock on the former and held a large majority in the latter. And it is the Supreme Court’s countermajoritarian character that made possible the decisions, such as Roe v. Wade and Obergefell v. Hodges, that progressives now fear are at risk of being overturned or pared back.

There’s one thing the left could do to make the Supreme Court more liberal without amending the Constitution. Some have suggested a return to Franklin D. Roosevelt’s “court packing” plan, which sought to expand the court to as many as 15 justices. Nothing in the Constitution prevents Congress from expanding the Supreme Court’s membership. Article III merely establishes a Supreme Court; it does not say how many justices it should have. Congress has altered the number of justices by statute several times, most recently in the Circuit Judges Act of 1869, which expanded the court from seven members to nine. But this would require a president and House and Senate majorities willing to go down this path, likely at considerable political cost. In other words, progressives would have to win elections. And if they did that, they’d be able to change the court without making it bigger.

The anger and disappointment of Justice Kavanaugh’s opponents is understandable, as would be that of his supporters if the vote had gone the other way. They are perfectly entitled to pursue political remedies, including using his appointment as a campaign issue. They also are entitled to pursue amendments to the Constitution that would make our system of government more responsive to the popular will. What they cannot do is overturn the Connecticut Compromise guaranteeing each state equal representation in the Senate, or launch unconstitutional investigations or impeachment of a sitting Supreme Court justice. The Constitution protects all of us, even Supreme Court justices.

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

Source: https://www.wsj.com/articles/democrats-abandon-the-constitution-1539645364

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Kavanaugh’s Foes Politicize the FBI

By David B. Rivkin Jr. and Kristi Remington

October 1st, 2018, in the Wall Street Journal

The bipartisan bonhomie occasioned by the reopening of Judge Brett Kavanaugh’s background investigation dissipated quickly. By the weekend, Senate Democrats—who had demanded the investigation by the Federal Bureau of Investigation—were challenging its credibility, objecting to its scope and focus, and lamenting that the White House had any involvement in shaping the process.

The reopened investigation, according to Sen. Lindsey Graham—reflecting the White House’s view—potentially entailed interviewing Deborah Ramirez, who claims that Judge Kavanaugh committed lewd conduct while a freshmen at Yale, and the three purported witnesses named by first accuser Christine Blasey Ford—Mark Judge, P.J. Smyth and Leland Keyser—all of whom have attested they have no memory that would corroborate her accusation. Julie Swetnick’s sordid and implausible claims were to be left out, and if any new allegations against Judge Kavanaugh were to emerge, these also wouldn’t be investigated.

President Trump told reporters Monday: “The FBI should interview anybody that they want within reason, but you have to say within reason.” That qualification is crucial. It is clear that Judge Kavanaugh’s opponents are clamoring for an open-ended fishing expedition that, probably by design, would go on much longer than a week. They are insisting that the FBI investigate Judge Kavanaugh’s drinking while in high school and college and interview anyone who might know about it. Two such people have already come forward, and there are no disincentives for new claimants, possibly driven by partisan or personal animus, to emerge.

Sen. Patrick Leahy (D., Vt.) tried to justify his demand to broaden the FBI investigation by claiming that heavy drinking was “directly relevant” to the sexual-assault allegations. If this approach were adopted, the FBI would have to interview a very large pool of witnesses about Judge Kavanaugh’s alcohol intake, and possibly many other personal traits, over many years. Never mind that alcohol use is a standard FBI question, certainly asked in the course of Judge Kavanaugh’s previous six background investigations.

Kavanaugh foes also want the FBI to interview people who might challenge the credibility of pro-Kavanaugh witnesses. Mr. Judge is a prominent target here. His former girlfriend Elizabeth Rasor has stated publicly that he has disclosed to her facts relating to his past sexual activities that have nothing to do with Judge Kavanaugh, but cast Mr. Judge in a negative light. This approach could also open up a never-ending investigation, in which the FBI inquires into the credibility of all witnesses, whether pro- or anti-Kavanaugh, including witnesses interviewed to test other witnesses’ credibility.

The demands get even more absurd. “For its investigation to be comprehensive, the FBI must also get to the bottom of what ‘boofing’ means,” wrote Brian Fallon, who worked as press secretary for Hillary Clinton’s 2016 campaign, in Politico on Monday. That’s a reference to a joke in Mr. Kavanaugh’s high-school yearbook entry. As Mr. Fallon notes, “Kavanaugh said it referred to ‘flatulence.’ ”

The entire debate is complicated by confusion about what the FBI does in a background investigation. Even former Director James Comey is mixed up. He penned a vastly misleading New York Times op-ed Sunday, in which he seemed to conflate background checks with criminal probes. “It is one thing to have your lawyer submit a statement on your behalf,” Mr. Comey wrote. “It is a very different thing to sit across from two F.B.I. special agents and answer their relentless questions.”

The FBI is primarily a law-enforcement agency. Its criminal investigations are often wide-ranging, can be potentially expanded into new areas, and have no preset time limits. Although the president has authority under the Constitution to direct the exercise of all federal law-enforcement activities, in practice the FBI enjoys great autonomy when conducting criminal investigations. Agents seek both to uncover the facts and to assess the credibility of everybody they interview. Their questioning is often aggressive and repetitive. Interviewees are warned they will face criminal penalties if they lie to the FBI.

FBI background investigations are a fundamentally different affair. They are not based on any explicit statutory authorization but are founded on regulations authorizing investigations of persons who seek federal government employment. The bureau’s authority to conduct investigations of nominees dates to at least President Eisenhower’s Executive Order 10450 of 1953, though some scholars credit the beginning of the process to President Hoover and his request of Attorney General William Mitchell to investigate the qualification of applicants for judicial positions.

FBI background investigations are carried out by a special team within the bureau called Special Inquiry and General Background Investigations Unit. SIGBIU functions as a gatherer of facts. It doesn’t cajole or challenge witnesses and routinely offers them anonymity. It never proffers any credibility assessments or speculates about the motives of witnesses.

SIGBIU operates on tight deadlines and usually moves faster with Supreme Court nominations. The process begins and is completed well before the nominee’s Senate Judiciary Committee hearing takes place. Occasionally, SIGBIU is directed to conduct further interviews. Throughout the whole process, it operates under instructions from both the Justice Department and the White House Counsel’s Office.

Significantly, there is a firewall between SIGBIU and FBI’s criminal-investigative divisions. SIGBIU’s goal is to have witnesses be open and forthcoming. Agents routinely assure witnesses that nothing that they say during the interview will be referred for criminal investigation. Even more fundamental, the FBI’s velvet-glove approach to background investigations reflects its recognition that people they interview are not suspected of any crimes and cannot be coerced into cooperating or threatened with a grand jury subpoena.

Running a background investigation as if it were a criminal one would destroy the FBI’s ability to conduct the former. It would cause many Americans to refuse to cooperate. It would cause the bureau to exceed its constitutionally proper remit. And having the FBI proffer credibility determinations in the context of a judicial appointment would politicize the bureau—and, as then-Sen. Joe Biden correctly asserted during Justice Clarence Thomas’s 1991 confirmation hearings, it would usurp a function that properly belongs to the president and the Senate.

The demands by anti-Kavanaugh Democrats are blatantly partisan and unfair. What they seek has never been done with any judicial nominee in American history. They also run afoul of important legal and practical realities of FBI-conducted background investigations. If countenanced, they would politicize the FBI and destroy the judicial confirmation process.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations. Ms. Remington served in the Justice Department during George W. Bush administration. She was responsible for overseeing the judicial nomination and confirmation process, including for Chief Justice John Roberts and Justice Samuel Alito.

Source: https://www.wsj.com/articles/kavanaughs-foes-politicize-the-fbi-1538433332

Kavanaugh hearing antics showed Dems’ contempt of Congress

By David B. Rivkin Jr.

Sept. 9, 2018, in The Hill

Democrats like to pillory President Trump for destroying American institutions and breaking the norms of conduct. Yet, during the Supreme Court confirmation hearing for Judge Brett Kavanaugh, Democrats blatantly and flippantly violated Senate norms, rules and traditions — and inflicted in the process considerable damage on the institution.

Sen. Kamala Harris (D-Calif.) interrupted the very first sentence of Senate Judiciary Committee Chairman Chuck Grassley’s (R-Iowa) opening statement. Protesters constantly interrupted questions asked by senators of both parties, as well as Kavanaugh’s answers; they were challenged only by Republican senators. But even in this chaotic atmosphere, Sen. Cory Booker’s (D-N.J.) decision to violate the committee’s confidentiality agreement with the executive branch, pursuant to which the committee received documents that otherwise would have been withheld, was particularly egregious.

On Wednesday night, Booker asked Kavanaugh about an email exchange dating to the aftermath of the 9/11 terror attacks. He quoted a committee confidential document — that is, a document that no senator had the authority to make public, and which Kavanaugh did not have in front of him.

Early Thursday, to ensure that  Kavanaugh and the American public would be able to see the emails for themselves, Grassley worked with the Department of Justice and former President George W. Bush’s attorney to release several committee confidential documents, including the one Booker had quoted. They were taken off the “committee confidential” roster at 4 a.m.

Despite the accommodation extended to him by Grassley and the Trump administration, Booker proceeded to engage in a display of remarkable grandstanding. On Thursday morning, he announced he would release the documents marked committee confidential. “This is about the closest I’ll ever have in my life to an ‘I am Spartacus’ moment,” he said — even though the documents had already been released.

Booker’s performance is stunning, in large part because he could have had the emails released well in advance of the hearing. As Grassley often made clear, senators were given the opportunity to request the public release of documents that were initially marked committee confidential, but only Sen. Amy Klobuchar (D-Minn.) did so. It seems that Booker decided to put his presidential ambitions ahead of Senate protocol and transparency.

Booker’s flouting of committee confidential protocol is more than a violation of the Senate rules. What he did is also truly destructive for the legitimacy of the Senate itself, given the fact that the documents at issue were provided to the Senate Judiciary Committee based on an assurance to the executive that they would be treated in accordance with certain procedures. Given this precedent, this administration and its successors will be much more reluctant to provide documents to the Senate based upon assurances that they will remain confidential, thereby impairing the Senate’s oversight and legislative functions.

All of this underscores the low esteem in which the Senate Democrats hold their own institution. This conclusion is reinforced by the fact that the email string that precipitated all of this sound and fury does not contain anything particularly dramatic or support what Booker implied: rather than seeming like someone who approved of racial profiling, even in the tense post-9/11 days, Kavanaugh makes clear that he “favor[s] effective security measures that are race-neutral.”

In marked contrast to the poor behavior of some senators, the nominee behaved with remarkable patience and thoughtfulness. Kavanaugh answered questions fully, effectively and fairly, while showing himself to be a fair and impartial judge. He declined to answer questions about cases that might come before the court and he avoided being brought into current political debates; doing either of those things would have undermined his appearance of impartiality. In so doing, he followed what is known as the Ginsburg Standard.

As Andrew Grossman and I recently argued in The Wall Street Journal, all judicial nominees must follow the rule, invoked by Justice Ruth Bader Ginsburg during her confirmation hearing in 1993: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case — it would display disdain for the entire judicial process.” Sen. Charles Schumer (D-N.Y.) once called this approach a “grand tradition,” and Kavanaugh upheld it by declining to answer questions about issues that might come before him, including abortion.

Meanwhile, Harris sought to pull Kavanagh into a political discussion of last year’s Charlottesville, Va., riots, and attempted to probe his view of how President Trump handled the situation. Kavanaugh responded, “I am not here to assess comments made in the political arena, because the risk is I’ll be drawn into the political arena.” With this answer, he again echoed Ginsburg, who refrained from answering political questions that were “not relevant to the job for which you are considering me, which is the job of a judge.”

Booker’s action has injured the Senate as an institution and merits an appropriate institutional response. Indeed, only the Senate has the constitutional authority to deal with this matter and, with this power, comes responsibility. Under Supreme Court precedent, Gravel v. United States (1972), Booker’s actions were clearly covered by the Constitution’s Speech or Debate Clause. Gravel, which involved the senator who made public during a committee hearing the top secret “Pentagon Papers,” teaches that senators are not subject to executive branch investigative or prosecutorial action in these circumstances, leaving the Senate as the only entity that is empowered to take any disciplinary action.

Whatever the nature of Booker’s action or his justification for it might be, the Senate is entitled to censure him, and that censure itself is immune from judicial review, as the D.C. Circuit made clear in Rangel v. Boehner(2015). There, a House member challenged his censure, and the court ruled that the judiciary had no power to inquire into congressional disciplinary actions because of the immunity conferred by the Speech and Debate Clause.

Kavanaugh showed respect for the Senate, the judiciary and the hearing itself. The same cannot be said for many of the senators asking him questions.

David B. Rivkin Jr. practices appellate and constitutional law in Washington, D.C. He served at the Justice Department and the White House Counsel’s office during the Reagan and George H.W. Bush administrations.

Source: http://thehill.com/opinion/judiciary/405506-kavanaugh-hearing-antics-showed-dems-contempt-of-congress

Kavanaugh and the Ginsburgh Standard

Don’t blame Brett Kavanaugh when he demurs at his confirmation hearing from answering questions on legal issues that might come before the Supreme Court. It’s the senators who will be in the wrong, for demanding commitments that no judicious nominee could provide. To answer “direct questions on stare decisis on many other matters, including Roe and health care”—as Minority Leader Chuck Schumer has called for—would itself be disqualifying.

That principle has come to be called the Ginsburg Standard, after Justice Ruth Bader Ginsburg. As she explained in the opening statement of her 1993 confirmation hearing: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case—it would display disdain for the entire judicial process.” Or, as she later responded to a question about constitutional protections against discrimination based on sexual orientation: “No hints, no forecasts, no previews.”

It would be a mistake to associate the rule too closely with Justice Ginsburg, who honored it inconsistently at her hearing, or to view it as driven only by policy considerations. In fact, the standard has deep roots in the law and history.

Begin with the Constitution. The Appointments Clause provides that judges, including Supreme Court justices, are appointed by the president “with the Advice and Consent of the Senate.” From the nomination of John Jay as the first chief justice in 1789 through the mid-1950s, public confirmation hearings were rare. Few nominees attended them when they did occur, and only a handful testified. Senators had no occasion to grandstand by demanding that a nominee declare his stance on legal controversies.

Since hearings became the norm, the number of questions asked of nominees has exploded, with recent nominees facing more than 700 apiece. Yet two aspects of the process haven’t changed. The first is the refusal of nominees to opine on actual or hypothetical cases that may come before the high court. The second is senators’ griping in response. At a 1968 hearing, Sen. Sam Ervin (D., N.C.) bemoaned that the nominee, Judge Homer Thornberry, had “virtually created a new right not found in the Constitution, which might well be designated as the judicial appointee’s right to refrain from self-incrimination.”

Ervin was wrong. Judges are appointed to exercise the “judicial power.” As per the Constitution, this involves deciding specific “cases” or “controversies”—that is, concrete disputes involving real facts, as opposed to abstract questions of law. Judging, in turn, entails the application of law to the facts of a particular case. The facts matter greatly: The way in which the circumstances of a given case can be distinguished from one in the past or one in the future is often what creates the basis for a legal rule, because it is that distinction that becomes legally material.

Judges don’t decide cases in a vacuum or through divine inspiration. They do it in the crucible of adversarial testing. Appellate judges read the parties’ briefs. They hear the lawyers’ arguments. They review the precedents and the factual record. Then they piece it all together, rendering a decision that, in Justice Ginsburg’s formulation, “should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present.” Opining on a legal question divorced from the context of a particular case is not judging at all. It is speculation, a guess as to what the right rule might be.

In that sense, a senatorial demand that a nominee take one side or the other on a given “issue” is futile. Who is to say which of any number of possible factual circumstances might be relevant when, because there is no case, there are no facts? How can anyone judge the correctness of an argument when, because there are no parties, no one has argued for or against it? Answering at all would be deceptive.

It also would run up against another constitutional guidepost, the Fifth Amendment’s guarantee of due process of law. Litigants are entitled to a “fair trial in a fair tribunal,” including a judge who is impartial and whose mind is not implacably closed to persuasion. A nominee’s advance commitment to decide a question a certain way is incompatible with the appearance of fairness and impartiality that gives the law its legitimacy. It also compromises the independence of the judicial branch, a crucial check on overreaching by the political branches. Even a judge who has a decided an issue in an earlier case remains open to the prospect of going the other way in a later case, on different facts or different arguments. A judge who exchanges a commitment for a confirmation vote—or merely appears to do so—will forever be tainted.

All this holds true for issues already decided by the court, given that what constitutes “settled law” on the Supreme Court is in the eyes of the beholder. Nearly any issue may arise again, and the justices, unlike their counterparts on lower courts, are free to reconsider high-court precedent.

This week senators would do well to stick to more illuminating lines of inquiry: the more than 300 written opinions Judge Kavanaugh issued over his 12 years on the bench, his speeches and articles, his judicial philosophy, his character. There is no legitimate reason to demand hints, forecasts and previews that Judge Kavanaugh is duty-bound to deny.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar at the Cato Institute.

Source: https://www.wsj.com/articles/kavanaugh-and-the-ginsburg-standard-1536010512

Why Mueller can’t subpoena Trump

Donald Trump’s lawyers have signaled he won’t agree to a voluntary interview with special counsel Robert Mueller. If Mr. Mueller insists, he will have to subpoena the president. To enforce a subpoena, the special counsel would have to go to court and meet a highly exacting standard, showing what he wants and why he needs it. He would be unlikely to succeed, given that Mr. Trump already has cooperated extensively with the investigation, producing 1.4 million documents and making dozens of White House staffers available for interviews.

The leading precedent is a 1997 opinion, In re Sealed Case, by the U.S. Circuit Court of Appeals for the District of Columbia. The case involved the independent counsel investigation of former Agriculture Secretary Mike Espy, who was accused of receiving unlawful gifts. The independent counsel sought to obtain sensitive documents produced in the course of an internal White House inquiry. These materials involved the preparation of a report to then-President Clinton himself. Although Mr. Clinton had directed that most of the materials be provided, he asserted executive privilege to withhold some items.

At issue in particular was information regarding whether Mr. Clinton should discipline or fire Mr. Espy, who did resign. To justify producing such sensitive materials involving “the exercise of [the president’s] appointment and removal power, a quintessential and non-delegable presidential power,” the court required the independent counsel to demonstrate with “specificity” why he needed the materials and why he could not get them, or equivalent evidence, from another source. (Mr. Espy was acquitted in 1998.)

Mr. Mueller’s initial charge was to investigate Russian interference in the 2016 presidential election and possible collusion between the Trump campaign and the Russian government. But his investigation has expanded to cover whether Mr. Trump has obstructed justice. The president’s critics say his obstructive acts include urging then-FBI Director James Comey to “go easy” on former national security adviser Mike Flynn, subsequently firing Mr. Comey, and his public criticism of Mr. Mueller, Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein.

There are significant factual disputes about these episodes, but all involve the president’s exercise of his core constitutional powers as chief executive, including the power to appoint and remove high-level executive-branch officials, to supervise the performance of their duties (as in the Espy case), and to determine law-enforcement priorities. We have argued in these pages that the president cannot obstruct justice by exercising the discretionary powers of his office, especially in determining whether and why to fire high-level presidential appointees like Mr. Comey. According to the two leaked letters from Mr. Trump’s lawyers to Mr. Mueller, they take essentially the same view.

Any prosecution based on Mr. Trump’s exercise of his core constitutional authority would dramatically impair the executive’s status as a coequal branch of government, considering that Congress enjoys immunity under the Speech and Debate Clause while exercising its legislative powers. It would also inject the judiciary into the president’s decision-making process, requiring judges to delve into matters that are inherently political.

Developments over the past year reinforce our view that it would unconstitutionally debilitate the presidency to base an obstruction charge on gainsaying the president’s motives in exercising his core responsibilities. Mr. Trump’s critics have also accused him of obstructing justice by using his pardon power. They claim his pardons of Joe Arpaio, Scooter Libby and Dinesh D’Souza —whom he considers victims of previous political prosecutions—were meant to reassure targets of Mr. Mueller’s probe that they too might be pardoned. Under such logic, a president under investigation could not discharge his constitutional duties at all, including the use of military force overseas—which can always be cast as a “wag the dog” strategy.

These considerations distinguish Mr. Trump’s situation from that of Mr. Clinton, who in August 1998 became the only sitting president to appear before a grand jury. That independent-counsel investigation did not concern the exercise of presidential authority. They concerned allegations of perjury and obstruction from Mr. Clinton’s personal relationship with a White House intern. Independent counsel Kenneth Starr subpoenaed the president but withdrew the subpoena when Mr. Clinton agreed to appear voluntarily by video. Because constitutional considerations were not in play, the In re Sealed Case analysis would not have favored the president. (The same might apply if New York-based federal prosecutors attempt to subpoena Mr. Trump in connection with Michael Cohen’s guilty plea on charges unrelated to presidential power, although there are other reasons why such a subpoena would neither be issued nor enforced.)

We also now know that Mr. Trump authorized White House counsel Don McGahn to answer all of Mr. Mueller’s questions regarding every alleged obstructive action. According to press reports, Mr. McGahn spent nearly 30 hours describing the substance of his conversations with Mr. Trump and offering his assessment that the president’s actions were lawful.

With access to the relevant documents and everyone around the president, the special counsel has no material facts left to find. Interviewing or interrogating the president could shed additional light only on his own thoughts and motives—exactly what executive privilege is designed to protect. They relate entirely to a constitutionally proscribed obstruction inquiry that would violate the separation of powers.

Applying the In re Sealed Case standard, Mr. Mueller cannot show that any need for Mr. Trump’s testimony outweighs the president’s interest in keeping his thoughts private. The president hasn’t asserted executive privilege vis-à-vis the special-counsel investigation. But if Mr. Mueller seeks his testimony directly, he can and should. Mr. Mueller knows that losing a subpoena court fight would prolong and delegitimize his investigation. He is unlikely to press the point.

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

Source: https://www.wsj.com/articles/why-mueller-cant-subpoena-trump-1534973736

The Rule of Law Prevails in the Travel Ban Case

Trump is right on Nord Stream 2

President Trump was right to criticize Chancellor Angela Merkel’s plan for a new pipeline carrying Russian natural gas to Germany. This project threatens European independence and the North Atlantic Treaty Organization, and it was opposed by the Obama administration and many Senate Democrats, although not much was done to stop the pipeline’s construction. Numerous European countries have also been sharply critical of Mrs. Merkel’s energy plans. Mr. Trump has correctly sought to diminish Moscow’s European energy footprint, belying claims he is a stooge of Vladimir Putin.

In 2015 the European Commission cited Russia’s politically motivated disruptions of energy exports as one of the main causes of Europe’s energy insecurity. Moscow is the largest energy exporter to Europe; Gazprom alone supplied almost 40% of Europe’s natural gas in 2017. According to World Bank data, Gazprom’s European gas prices last year were more than double the U.S. domestic price. Russia has also repeatedly used its gas to blackmail Europe, cutting off the supply in 2006, 2009 and 2014, and causing severe shortages in Eastern Europe.

Germany has sought for years to maintain a special energy relationship with Moscow as a means of securing its own energy-supply predominance in Europe. Once the Nord Steam expansion is completed, it will account for 80% of Russian gas imported to Europe, making Germany the Continent’s major gas-distribution hub.

The Nord Stream 2 project has received particularly strong support from the center-left Social Democratic Party, a key member of Mrs. Merkel’s shaky governing coalition. Gerhard Schröder, a former SPD chancellor, has served as chairman of Nord Stream 2 AG, a Gazprom-owned consortium.

Berlin signed the original Nord Stream pipeline deal with Russia during Mr. Schröder’s chancellorship in 2005. In 2017 the Russian government nominated Mr. Schröder to the board of Rosneft, the Russian oil giant. German media report that Mr. Schröder was paid some €250,000 annually at Gazprom, and is expected to be paid €300,000 to €425,000 at Rosneft. But Germans have largely shrugged at the spectacle of a former chancellor on Russia’s payroll.

Many other European countries, however, have been critical of Germany’s Russian-energy romance. Thirteen EU states vehemently oppose the Nord Stream expansion. They are concerned about the loss of transit-fee revenue from existing pipelines that run mostly through Ukraine and the security risk of Russia’s growing dominance over Europe’s gas market. They have demanded the European Commission transfer negotiating power over the pipeline from Germany to the EU.

The new pipeline would enhance Russia’s blackmail capability by enabling Moscow to cut off gas supplies to Eastern Europe without subjecting Western Europe to the same treatment. Not surprisingly, Eastern European states have taken the lead in trying to develop alternatives. In 2016 Croatia and Poland led the formation of the Three Seas Initiative, or 3SI, which united 12 states from the Baltics to the Balkans.

At a 3SI summit in Warsaw in June 2017, Mr. Trump pledged that the U.S. would bolster exports of liquefied natural gas to Europe so the Continent “can never be held hostage to a single supplier.” That statement was anchored in the administration’s broader strategy of transforming the U.S. into a pre-eminent low-cost global energy supplier.

Russia’s gas stranglehold is a source of vulnerability as well as power. Europe accounts for more than 80% of Gazprom’s exports. Energy accounts for almost half of Russia’s exports and 40% of its national budget. The implementation of a 3SI energy plan would drain Russia’s pocketbook and frustrate its geopolitical ambitions.

Moscow has recognized the challenge and done its best to block efforts to diversify European energy supplies. Russian proxies have moved to delay or stop the 3SI project. According to the Croatian media, Gasfin, a Luxembourg company acting as Gazprom’s cat’s-paw in Europe, is supporting local environmentalists opposed to construction of a new LNG terminal on Croatia’s Krk Island. Gasfin has even purchased land on the island so that it can hobble the project via legal challenges—while at the same time suggesting that Gazprom might support the Krk project if it receives only Russian gas. During Croatian President Kolinda Grabar-Kitarovic’s visit to Russia last October, Mr. Putin publicly offered a partnership to gasify Croatia.

Mr. Trump’s leadership on this issue has had tangible results. Poland has committed to buying LNG from the U.S. and has already completed a new LNG terminal. It will not renew a contract with Gazprom set to expire in 2022, ending a 74-year exclusive partnership. U.S. LNG imports to Europe rose 22% last year, and will likely keep growing.

Yet the fate of 3SI is uncertain. The Trump administration should ramp up its energy strategy in two ways. First, promote U.S. investment in all facets of 3SI projects. Second, nudge European countries to accept a long-term package of sanctions on Russian energy, patterned after Carter- and Reagan-era sanctions, including restrictions on technology transfers and financing of Russian gas production and exports. If the Europeans balk, the U.S. should impose such sanctions unilaterally.

An all-out U.S. effort to stop Nord Stream 2 would help restore credibility in the aftermath of the Helsinki summit. Over time, this strategy would reduce Moscow’s European gas exports dramatically, freeing Europe from Moscow’s blackmail. American energy exports to Europe would be reliable and fairly priced. More Americans would have jobs, trans-Atlantic ties would be stronger, and it would be a major blow to the Putin regime.

Mr. Rivkin, a constitutional litigator, served in the Reagan and George H.W. Bush administrations at the White House Counsel’s Office and the Energy and Justice departments. Mr. Zuzul is a former Croatian foreign minister and ambassador to the U.S.

Source: https://www.wsj.com/articles/trump-is-right-on-nord-stream-2-1532289915