Author Archives: David Rivkin

About David Rivkin

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

Demanding Trump’s tax returns is congressional overreach

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

17 May 2019 in The Hill

Democrats in Congress long have demanded that President Trump make his tax returns public. Many promised voters that, if given the House majority in the 2018 elections, they would force public disclosure of Trump’s returns. Indeed, they’ve demanded access to the president’s returns, but Treasury Secretary Steven Mnuchin has refused to give Congress that access. He was right to refuse. His action is firmly grounded in federal statute and the Constitution.

In April, House Ways and Means Committee Chairman Richard Neal (D-Mass.) demanded Trump’s tax returns from 2013 to 2018, invoking a federal statute (26 U.S.C. § 6103) that makes federal tax returns confidential. Other statutory sections, including 26 U.S.C. § 7213, make it a felony to disclose information in federal tax returns without proper authorization.

There are narrowly drawn exceptions to the general rule of confidentiality, including one that allows congressional tax committees to demand copies of individual tax returns. That information, however, cannot be made public without the taxpayer’s written consent. Secretary Mnuchin must have a well-grounded fear that one or more members of Congress would make the president’s returns public, hiding behind the Constitution’s speech or debate clause to escape prosecution. This factor alone can preclude the release of tax information.

There are, however, even more fundamental problems with the request. The committee’s stated purpose is to investigate how the IRS enforces tax laws against sitting presidents. That is an obvious pretext. Even if the Democrats’ posturing could be ignored, the fact that only Trump’s returns are sought — and not those of former presidents — makes the game clear.

Former presidents have disclosed some tax information, but their full returns and all supporting documents were not released. And since the ostensible oversight focus is how the IRS audits tax returns of sitting presidents, that type of information is not publicly available. In addition, even if Secretary Mnuchin were to ignore the politics involved, he would be justified in withholding the president’s tax returns on constitutional grounds.

Congressional demands for information must be grounded in proper constitutional powers. Congress does not have general investigative authority, let alone a mandate to enforce federal law, both of which are vested in the president. Nor does it have adjudicative power, which is reserved to the judiciary. Its proper investigative power is broad but limited to the purposes of legislation or oversight. And Congress’s oversight powers can be exerted only over matters that plausibly can be reached through the exercise of congressional legislative powers.

As the Supreme Court stated in Watkins v. United States (1957), with respect to a McCarthy-era demand by the House Un-American Activities Committee for information from a private citizen, “there is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress,” and “investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.”

With this in mind, the proper tailoring of tax information-related requests by Congress is essential. For example, it may well be that looking at how the IRS audits tax returns of sitting presidents is a worthwhile legislative pursuit; however, assembling all available tax returns of former presidents and arranging the information so that the congressional review does not include ascertaining the identity of the president to whom a given set of tax returns belongs and then ensuring that even this randomized information cannot be publicly disclosed would serve all legitimate legislative needs. Everything else is simple harassment.

To ascribe to Congress greater authority in this area would produce a situation where, under the guise of enacting tax laws, congressional committees could gain access to the tax information of individual Americans, including those regarded by specific members of Congress as political or ideological enemies. This would result in unprecedented abuses of the most sensitive personal information about U.S. citizens that would render Nixon-era IRS abuses tame by comparison.

And, even putting aside partisanship, enabling Congress to snoop on Americans at will is not to be countenanced. What seemingly has eluded Chairman Neal’s supporters is that due process requirements operate with equal vigor on all branches of government, including Congress. Basic due process requirements prevent the executive branch from obtaining private information on U.S. citizens merely because it wants this data.

Instead, when seeking access to financial and other information, law enforcement agencies must demonstrate, usually to a judge, why such information can be legitimately obtained. Improperly gained information is routinely suppressed, and executive branch officials who have obtained it often are reprimanded and even prosecuted. The congressional statute in issue has to be construed with these constitutional imperatives in mind.

There is an additional consideration: Although Congress has oversight authority over the executive branch generally, it has no such authority over the president himself — any more than the president has oversight authority over Congress or the judiciary. Each branch of the federal government is constitutionally equal; none is subordinate. Trump’s business activities before he entered office, and his refusal to make public his tax returns, are not proper subjects of congressional investigation. Although presidential candidates usually release their tax returns as a matter of campaign strategy, Congress could not compel such a release by statute. The Constitution sets qualifications for the presidency, and Congress cannot alter that list.

The fact that Trump’s tax returns are being sought pursuant to a statute that ordinarily would require the Treasury secretary to provide the returns, does not alter the constitutional balance involved. Indeed, the use of Congress’s oversight powers and legislative powers are cabined by the same constitutional principles. The request is based upon an unconstitutional application of a statute — unconstitutional as applied to the situation.

Even if Congress were acting within its constitutional authority, an effort to use its legitimate powers to force disclosure of the president’s tax returns — with the clear goal of debilitating the presidency — would have to be balanced by the courts against the stated congressional need. In balancing otherwise legitimate, but conflicting, assertions of power by the two political branches, courts have looked at their respective needs and the harm that would be inflicted on their respective institutional authorities if one branch were to give way. If Congress does need President Trump’s tax returns for some legitimate legislative purpose, that need will be equally served by providing his returns after he leaves office.

Congress has many powers that can thwart a president’s policy or personnel choices, but only impeachment can personally hold a president responsible for his actions. Even here, it is not clear what relevance a president’s pre-inauguration personal tax returns could have to the question whether he has committed high crimes and misdemeanors while in office.

What Chairman Neal seeks cannot be granted. What is really at stake are not President Trump’s political fortunes but the preservation of the constitutionally required balance of powers between two political branches. Secretary Mnuchin is defending the ability of presidents to function without fear of congressionally driven debilitation. There is every reason to believe that he will prevail in the courts of law as well as in the court of public opinion.

David B. Rivkin Jr. and Lee A. Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and the Department of Justice under former Presidents Reagan and George H.W. Bush.

Source: https://thehill.com/opinion/white-house/444231-demanding-trumps-tax-returns-is-congressional-overreach

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Should Noncitizens Be Represented in Congress?

by David B. Rivkin, Jr., and Richard Raile

24 April 2019 in the Wall Street Journal

The Supreme Court Tuesday will hear oral arguments in the Trump administration’s appeal of lower-court orders forbidding it to ask a citizenship question in the 2020 census. The justices’ task in Department of Commerce v. New York won’t be difficult: The law and facts overwhelmingly support the administration. But the case is a proxy for future battles over redistricting and reapportionment, vital components of American democracy that determine the balance of political power within and among states.

The Census Act grants the commerce secretary discretion to conduct the census “in such form and content as he may determine.” In rejecting the citizenship question, the lower courts usurped that authority and frustrated Congress’s intent. The question about citizenship is far from unprecedented: It was asked in every census but one from 1820 to 1950. Most advanced democracies ask for citizenship information in censuses, a United Nations-recommended best practice.

The administration argues that the citizenship data would help in enforcement of the Voting Rights Act, and that is manifestly true. By law, “majority minority” districts must be drawn so at least 50% of eligible voters—i.e., citizens over 18—are members of the minority in question. If too many minority residents are ineligible to vote, that defeats the purpose of avoiding the dilution of minority voting strength. Voting-rights litigation and compliance are hampered by the lack of citizenship data in the decennial census.

The plaintiffs in this case, which include 18 states and the District of Columbia, are using the litigation as a means of stifling the legal and policy debate over whether and how citizenship information should be used in redistricting and reapportionment.

One question is whether states and localities may equalize the populations of their legislative districts according to the number of citizens rather than the total number of persons in the district, including aliens. The one-person, one-vote principle requires that district populations be substantially equal. But in states with large alien populations, equalizing all persons results in voter inequality, giving voters in districts with high numbers of aliens an unfair electoral advantage. This also tends to increase the political clout of urban over rural areas.

The Supreme Court held 8-0 in Evenwel v. Abbott (2016) that states and localities are not required to equalize citizens, but it did not forbid them from doing so. One purpose of the census-question litigation is to deprive states of the data to exercise that option.

An even more fundamental question is how accurate citizenship data might affect the apportionment of House seats (and therefore electoral votes) by state and the drawing of House districts. The conventional wisdom—which the justices assumed in Evenwel, although the case did not directly address the question—has been that the Constitution requires apportionment based on all persons physically present in a state, since the relevant language of Article I and the 14th Amendment refers to “the whole number of persons in each State.” But there is more here than meets the eye.

The draft Constitution required that seats be apportioned according to the number of “inhabitants” per State. That was the word used in the text, and framing debates, until the Convention’s Committee of Style and Arrangement substituted “persons.” But the high court made clear in Powell v. McCormack (1969) that any changes made by that committee were stylistic and not substantive. Further, the term “inhabitant” means more than mere physical presence. Webster’s 1828 dictionary defines it as someone with “a fixed residence” or who “resides permanently in a place.” In law, “inhabitant” was someone “who has a legal settlement in a town, city or parish” such that the person, “if a pauper,” was entitled to financial assistance there.

That mattered in the late 18th and early 19th centuries because the contemporary welfare system was administered at the local level and tied individuals to a political subdivision under a doctrine called “inhabitancy,” discussed in Blackstone’s commentaries on English law, which informed the Constitution’s drafters. The 1662 English statute Blackstone discussed required persons to return for assistance to the parish where they were declared “inhabitants.” As a result, the Constitution’s original public meaning tied apportionment to persons with a fixed abode and far more permanent place in the political community than simple physical presence.

True, inhabitancy and citizenship were not originally synonymous. Until the late 19th century, no federal law regulated immigration, and aliens could arrive and remain at will. Subsequently, however, Congress exercised its power over immigration and naturalization to define the nation’s political community, as well as entitlement to government benefits. Today, anyone who enters the U.S. unlawfully is subject to involuntary removal and thus cannot be considered an inhabitant in the constitutional sense.

Evenwel’s assumptions notwithstanding, these issues have yet to be directly explored, let alone resolved, in the political and judicial arenas. The plaintiffs in today’s cases want them to stay that way. They include states whose overt policies of attracting illegal aliens to so-called sanctuary cities advance their political self-interest in obtaining additional House seats and electoral votes.

Factoring such aliens into reapportionment and redistricting does nothing for them, as it does not change immigration status. Rather, it rewards state policies designed to subvert the Immigration and Nationality Act and to achieve enhanced representation at the expense of more law-abiding states. Today’s case marks only the beginning of a larger debate over these questions.

Messrs. Rivkin and Raile practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Raile has represented clients in redistricting litigation in Arizona, Georgia, North Carolina, Ohio, Pennsylvania and Virginia.

Source: https://www.wsj.com/articles/should-noncitizens-be-represented-in-congress-11555972120

Gerrymandering Disputes Don’t Belong in Court

By David B. Rivkin Jr and Richard Raile

26 March 2019 in the Wall Street Journal

Not every day does the Supreme Court have a chance to advance democracy and reverse a major mistake while also lightening its future workload. But it can do all those things in two cases it hears Tuesday dealing with gerrymandering of congressional districts.

In Davis v. Bandemer (1986), six justices agreed that courts can resolve complaints about so-called partisan gerrymandering, the drawing of district lines to favor the party that controls the process. In legal parlance, the justices held that such complaints are “justiciable.” But no five justices were able to agree on what legal principles courts should apply in deciding such cases. That question has been litigated ever since, including this week’s cases, Rucho v. Common Cause and Lamone v. Benisek. The court should put an end to this futile experiment by ruling that such claims are nonjusticiable political questions.

Electoral maneuvering, of which gerrymandering is one example, is as old as democracy itself. One of the more colorful examples is the English rotten boroughs system, which allowed the Crown and its supporters to control a substantial number of seats in the House of Commons until the passage of the Reform Act of 1832. Partisan gerrymandering strikes many observers as unfair, but it’s not clear what constitutional provision it might violate. The Constitution itself doesn’t even anticipate the existence of political parties.

The Constitution does address the question of who has the power to draw district lines. Article I, Section 4 provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” But the framers understood that what Alexander Hamilton called the “discretionary power over elections” entailed the danger, noted by James Madison, that legislatures might “mould their regulations as to favor the candidates they wish to succeed.” Hamilton went even further, saying unlimited state legislative authority over congressional elections would entail the power to “annihilate” the federal government.

Thus the same section also provides that “Congress may at any time by law make or alter such regulations.” That this delegation of power to Congress was the response to the possibility of abuse is powerful evidence that the Framers addressed the problem through the structural balance-of-power provisions and that a judicial check on legislatures’ politics is unavailable. Because the Framers agreed that a national election code was unworkable and that a benefit inhered in state legislatures’ ability to address local needs and traditions, they chose not to codify standards in the constitution.

With no standards to apply, judges are left to invent them—or to dismiss challenges as nonjusticiable. That’s where political-question doctrine comes in. Under the Constitution, some problems have no judicial resolution and are instead left to the other, democratically elected branches. Recent Supreme Court precedent establishes two principal hallmarks of a nonjusticiable political question—constitutional text committing a choice to the other branches and the absence of judicially manageable standards. Both apply here.

Another problem is that it is impossible to decide a partisan-gerrymandering case without making an initial determination of what a “fair” redistricting scheme would look like. That’s a question of policy, not law. A principle of partisan fairness is not like the one-person, one-vote rule, which stems from the individual right to representation and identifies equality by a clear, judicially manageable ratio of persons to districts. Nor is a gerrymander like a restraint on speech, which can be cured by allowing all sides to voice their views; or like discrimination, which can be cured by a mandate not to take account of race or another suspect characteristic.

Under the Constitution, the right to political representation belongs to individual human beings, not groups. Even if it is possible to draw maps in which Republicans and Democrats have equal electoral opportunities, a “right” to translate a party’s percentage of votes into seats is not one that all Americans can share. What about independents, members of the Green or Libertarian parties, or even partisans who disagree with platform planks of the two major parties, such as pro-choice Republicans or antitax Democrats?

How to define representational units is a choice that confronts every republican government, and that choice is inherently political. The Constitution itself was made possible by the Great Compromise, which accorded all states, regardless of population, two Senate seats. That affected the electoral opportunity of all citizens and groups. So did the choices to create the Electoral College and to make judges appointed for life rather than elected or term-limited. These were all deliberate choices to define representation according to policy and political compromise. They are not fundamentally different from the choices legislatures confront with every decade’s redistricting.

None of this is to suggest that each legislature’s redistricting choices are good ones; many are not. The questions are nonjusticiable not because they are easy, but because judges cannot distinguish good from bad answers without becoming politicians. If the calls for partisan “fairness” in redistricting represent a meaningful political desire, that desire will percolate through the system and translate into democratic change—like the change from appointment to election of senators. It wouldn’t even take a constitutional amendment for Congress to enact redistricting criteria limiting state legislatures’ political discretion. Proponents of fairness by lawsuit show remarkably little patience for the democratic process they claim to defend.

Messrs. Rivkin and Raile practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Raile has represented clients in redistricting litigation in Arizona, Georgia, North Carolina, Ohio, Pennsylvania and Virginia.

Source: https://www.wsj.com/articles/gerrymandering-disputes-dont-belong-in-court-11553555381

Investigate McCabe’s 25th Amendment Tale

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

24 February 2019 in the Wall Street Journal

Did law-enforcement officials plot to remove President Trump from office? Andrew McCabe, former deputy director of the Federal Bureau of Investigation, suggests they might have. In a recent interview, Mr. McCabe said that in May 2017 Deputy Attorney General Rod Rosenstein “raised the issue” of using the 25th Amendment to remove Mr. Trump from office “and discussed it with me in the context of thinking about how many other cabinet officials might support such an effort.” According to Mr. McCabe, Mr. Rosenstein was “counting votes or possible votes.”

Exactly what happened is unclear. A statement from Mr. Rosenstein’s office called Mr. McCabe’s account “inaccurate and factually incorrect” and asserted: “There is no basis to invoke the 25th Amendment, nor was the DAG in a position to consider invoking the 25th Amendment.” But this is a potentially serious matter, and should be fully investigated.

The 25th Amendment was ratified in 1967, primarily to provide for the appointment of a new vice president when that office becomes vacant, as it did when Lyndon B. Johnson acceded after John F. Kennedy’s 1963 assassination. It also contains a section creating a process whereby a president who is “unable to discharge the powers and duties of his office” can temporarily cede authority to the vice president, and one through which the vice president and a majority of “principal officers”—cabinet members—can sideline a president who is disabled but won’t acknowledge it.

It is that last provision that supposedly excited Mr. Rosenstein’s interest. Mr. McCabe said the idea came in a discussion of “why the president had insisted on firing the director [Mr. Comey] and whether or not he was thinking about the Russia investigation.” To prevent interference with that probe, Mr. McCabe said, he opened new counterintelligence and criminal investigations of the president in May 2017, both of which were shortly subsumed into the probe led by special counsel Robert Mueller, whom Mr. Rosenstein appointed. 

Almost two years later, there’s no evidence Mr. Trump colluded with the Russians. Yet even if he had, it could not justify his removal under the 25th Amendment. The amendment can be lawfully invoked only if the president, by reason of some physical or mental disorder, literally cannot do his job. The examples its framers offered were the disability of President James A. Garfield during the 80 days he lingered in feverish agony after the gunshot wound that finally killed him; the period during which President Woodrow Wilson was unable to perform his duties after suffering a stroke; and President Dwight D. Eisenhower’s similar (although shorter) disabilities after suffering a heart attack and a stroke while in office.

Neither Mr. Trump’s unorthodox political style (of which the electorate was very much aware when it chose him in 2016), the disorder and divisions within his administration, nor even any criminal offense he might have committed could justify invoking the 25th Amendment. If a president is corrupt or criminal, or even a Russian spy, the Constitution prescribes a remedy: impeachment by Congress, not his ouster by unelected officials. Messrs. Rosenstein and McCabe surely knew this, and that is what makes the conversations Mr. McCabe describes serious enough to merit the attention of law enforcement.

Under federal law, it is a crime when “two or more persons conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose.” In Haas v. Henkel (1910), the Supreme Court construed this language to include “any conspiracy to impair, obstruct or defeat the lawful function of any department of the government” using means that are not necessarily illegal themselves but involve trickery, deceit or dishonesty. That surely includes the purposeful impairment of a duly elected president through a pretextual resort to the 25th Amendment.

This law has been vigorously enforced. Mr. Mueller—presumably with the approval of Mr. Rosenstein, who is overseeing his work—last year obtained indictments against various Russian entities and persons for defrauding the U.S. by interfering in the 2016 presidential election using dishonest means.

An investigation wouldn’t necessarily lead to a prosecution. For one thing, investigators might conclude that Messrs. McCabe and Rosenstein were merely engaged in idle chatter. In this context, conspiracy requires both an agreement to defeat lawful government functions by dishonest means and an overt act in furtherance of that end. Canvassing cabinet members about their willingness to vote for the president’s removal—if that is what happened—would likely qualify. (Mr. McCabe has said Mr. Rosenstein believed two cabinet members would support the move, although he described this as “simply Rod thinking off the top of his head” and doesn’t think Mr. Rosenstein “actually sought support or talked to those people about it.”) Planning to record conversations with the president through an FBI wire, if substantiated, would also clear the bar for conspiracy.

Another challenge is that the chief witness would be Mr. McCabe, who has a credibility problem. He was fired from the FBI after the Justice Department inspector general concluded that he “lacked candor” in statements to investigators about his role in the bureau’s probe of Hillary Clinton. Still, now that his allegations have been publicly aired, they merit a prompt and vigorous investigation by the Justice Department. It would be bad enough if a conspiracy by government officials against American democracy went undiscovered, vastly worse if such a conspiracy is revealed and goes uninvestigated and unpunished.

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/investigate-mccabes-25th-amendment-tale-11551045250

Stop the Impeachment Fishing Expedition

By David B. Rivkin Jr. and Elizabeth Price Foley

Feb. 14, 2019, in the Wall Street Journal

As William Barr begins his term as attorney general, House Democrats are aiming a “subpoena cannon” at President Trump, hoping to disable his presidency with investigations and possibly gather evidence to impeach him. Mr. Trump fired back in his State of the Union address: “If there is going to be peace and legislation, there cannot be war and investigation.” To protect the presidency and separation of powers, Mr. Barr should be prepared to seek a stay of all congressional investigations of Mr. Trump’s prepresidential conduct.

The president is not one among many, as are legislators and judges. Crippling his ability to function upsets the constitutional balance of power. For this reason, the Justice Department’s Office of Legal Counsel has repeatedly concluded that a sitting president may not be indicted or prosecuted. The same logic should apply to congressional investigations.

Congress is targeting Mr. Trump’s actions before becoming president because there are well-established constitutional limits, grounded in separation-of-powers doctrine, on its ability to investigate his official conduct. In U.S. v. Nixon (1974), the Supreme Court recognized a constitutionally based, although not unlimited, privilege of confidentiality to ensure “effective discharge of a President’s powers.” In Nixon v. Fitzgerald (1982), the justices held that presidents and ex-presidents have absolute immunity against civil liability for official presidential acts.

Executive immunity for prepresidential activity is less clear. In Clinton v. Jones (1997), which arose out of Paula Jones’s accusation that Bill Clinton sexually harassed her while he was governor of Arkansas, the justices reasoned that Ms. Jones’s lawsuit could proceed because the burden on the presidency objectively appeared light. Specifically, because only three sitting presidents had been sued for prepresidential acts, the justices thought it “unlikely that a deluge of such litigation will ever engulf the presidency.”

The court did, however, consider the question of whether civil litigation “could conceivably hamper the President in conducting the duties of his office.” It answered: “If and when that should occur, the court’s discretion would permit it to manage those actions in such fashion (including deferral of trial) that interference with the President’s duties would not occur.”

Unfortunately, the scenario the court called “unlikely” in 1997 now exists. Like Mr. Clinton, Mr. Trump faces an investigation by a zealous prosecutor with unlimited resources inquiring, among other things, into prepresidential activities. In addition, Mr. Trump is subject to a deluge of lawsuits and investigations, including by state attorneys general, involving his conduct before entering politics. The House Intelligence Committee has announced a wide-ranging investigation of two decades’ worth of Mr. Trump’s business dealings. The Ways and Means Committee plans to probe many years of Mr. Trump’s tax returns. By contrast, the 1995 resolution establishing the Senate Whitewater Committee targeted specific areas of possible improper conduct by the White House and federal banking regulators.

Congress has no authority to investigate or prosecute crimes; these responsibilities belong to the executive branch. It has no power to conduct fishing expeditions, and its investigatory authority is supposed to be in the service of legislation. As the Supreme Court warned in Watkins v. U.S. (1954), investigations unrelated to legislative business are an abuse of power that “can lead to ruthless exposure of private lives.” When congressional investigations seek ruthless exposure of a sitting president’s private life, the harm is not only to persons but to institutions.

Nor is investigating Mr. Trump’s prepresidential activities a legitimate exercise of the House’s impeachment power. The Framers viewed impeachment as a remedy for serious violations of public trust committed while in office. As Gouverneur Morris told the constitutional convention, impeachment would punish the president “not as a man, but as an officer, and punished only by degradation from his office.” Alexander Hamilton likewise observed in Federalist No. 65 that impeachment involves “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

The House Judiciary Committee has embraced this interpretation several times. In 1872, it refused to impeach Vice President Schuyler Colfax for taking—while he was in Congress—discounted shares of the Union Pacific Railroad as part of the Credit Mobilier scandal. The Judiciary Committee concluded in a report that impeachment “should only be applied to high crimes and misdemeanors committed while in office.” The committee’s Democrats took a similar tack in 1998, objecting to the committee’s resolution to impeach Mr. Clinton on the ground that perjury and obstruction of justice arising from the Jones case did not “amount to the abuse of official power which is an historically rooted prerequisite for impeaching a President.”

While the full House impeached Mr. Clinton for perjury before a grand jury, it voted down an article of impeachment for perjury in Ms. Jones’s civil case. Earlier efforts to impeach presidents clearly involved official acts: Andrew Johnson was impeached after violating the Tenure of Office Act. The effort to impeach Nixon began only after tapes implicating him in the Watergate burglary were obtained.

“Impeachment is like a wall around the fort of the separation of powers,” the Judiciary Committee Democrats wrote in 1998. “The crack we put in the wall today becomes the fissure tomorrow, which ultimately destroys the wall entirely.” If Congress can use its investigatory power to fish for evidence of impeachable acts, presidents will become politically accountable to Congress, not the people. Impeachment proceedings must be designated as such from the get-go, not obfuscated as amorphous “investigations.”

To protect the separation of powers, the president should defy all demands for information about his prepresidential activities. If Congress or private litigants seek to enforce these demands, the Justice Department should move to stay these proceedings while Mr. Trump is in office. If Democrats want to remove Mr. Trump from office, there are two legitimate ways to do so: By defeating him at the polls in 2020 or through properly conducted impeachment proceedings based on evidence of “high Crimes and Misdemeanors” committed while in office.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: www.wsj.com/articles/stop-the-impeachment-fishing-expedition-11550188732

Obstruction of justice? Careful what you wish for, lawmakers

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

7 February 2018 in the Wall Street Journal

Democrats have attacked Attorney General-designate William Barr for a memo in which he argued against a legal theory some claim could support prosecuting President Trump for obstruction of justice. Mr. Barr argued that an exercise of the president’s constitutional authority—for instance, firing James Comey as director of the Federal Bureau of Investigation—cannot be construed as obstruction even if prosecutors believe he did so for improper reasons.

At his confirmation hearings, Mr. Barr rightly stood his ground. Critics should consider the implications of the motive-driven obstruction theory with respect not only to the president but also to the other branches of government. It has the potential to impair Congress, the judiciary and state governments as well.

If the personal motivations behind every lawful official act could potentially be grounds for criminal charges, then presidents—and their subordinates, “from the Attorney General down to the most junior line prosecutor,” as Mr. Barr put it in his memo—might shirk supervisory authority over a wide variety of cases. Law enforcement would operate on an autopilot, with extreme harshness as the default approach. The result, as Hamilton put it in Federalist No. 70, would be “a feeble executive,” which “implies a feeble execution of the government” and produces “bad government.”

Nothing would stop prosecutors from applying such a theory to lawmakers and judges. Suppose a congressional committee investigates a matter also under investigation by the FBI. If prosecutors think the motive is political—and politics is Congress’s lifeblood—that could be considered obstruction.

Mr. Trump’s critics claim any presidential action to eliminate special counsel Robert Mueller’s funding would be obstruction, even if otherwise consistent with federal appropriations law. It would follow that congressional decisions to reduce or eliminate appropriations for public corruption investigations, which frequently target members of Congress, could also be prosecuted.

Federal judges would likewise be vulnerable to prosecution based on their personal motivations in reaching decisions. The proper method of interpreting the Constitution is a matter of fierce legal and political debates, waged largely in judicial confirmation proceedings. Under the motive-based obstruction theory, a judge might face criminal charges because a prosecutor thinks his rulings were influenced by his political, ideological or religious beliefs. If an official’s motives can transform lawful actions into crimes, then presidents—or junior prosecutors—would be able to investigate judges whose decisions they dislike. The mere possibility would destroy judicial independence.

Nor is there any reason to limit the motive-based obstruction theory to the federal government. State governors, lawmakers and judges also have wide-ranging constitutional authority. Discerning their motivations would become a fair game for prosecutors.

Historical practice does not support obstruction charges based on an exercise of lawful constitutional powers. As the Supreme Court has said for centuries, and reaffirmed in National Labor Relations Board v. Noel Canning (2014), “the longstanding ‘practice of the government’ can inform our determination of ‘what the law is.’ ” Novel assertions of governmental power must be viewed with considerable skepticism.

Preventing corruption doesn’t require the motive-driven obstruction theory. Prosecutors and other officials have plenty of existing tools to deal with corruption, including laws against bribery and nepotism as well as statutes governing conflicts of interest and recusal. These legal strictures are vigorously enforced at both federal and state levels.

If the motive-based obstruction theory prevails, criminal investigations of alleged obstruction by government officials at all levels, and in all institutions, would eventually become routine. That would impair the government’s ability to function and destroy the separation of powers by shifting vast authority to federal investigators and prosecutors and shielding them from political accountability.

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/obstruction-of-justice-careful-what-you-wish-for-lawmakers-11549497555

Another IRS free-speech scandal

By David B. Rivkin and Randall John Meyer

November 23, 2018, in the Wall Street Journal

The Internal Revenue Service infamously targeted dissenters during President Obama’s re-election campaign. Now the IRS is at it again. Earlier this year it issued a rule suppressing huge swaths of First Amendment protected speech. The regulation appears designed to hamper the marijuana industry, which is still illegal under federal law although many states have enacted decriminalization measures. But it goes far beyond that.

The innocuously named Revenue Procedure 2018-5 contains a well-hidden provision enabling the Service to withhold tax-exempt status from organizations seeking to improve “business conditions . . . relating to an activity involving controlled substances (within the meaning of Schedule I and II of the Controlled Substances Act) which is prohibited by federal law.” That means that to obtain tax-exempt status under any provision of the Internal Revenue Code’s Section 501—whether as a charity, social-welfare advocacy group or other type of nonprofit—an organization may not advocate for altering the legal regime applicable to any Schedule I or II substance.

Marijuana is a Schedule I substance, meaning the Food and Drug Administration has found it has “no currently accepted medical use and a high potential for abuse.” Schedule II drugs include such widely prescribed medications as Adderall, Vyvanse, codeine and oxycodone. The IRS can deny tax-exempt status to any organization that seeks to improve the “business conditions” of a currently prohibited activity involving these medications. That could include simply advocating for a change in the law or regulation forbidding the possession, sale or use of marijuana or other Schedule I substances. It would also encompass advocacy for relaxing the regulatory regime currently governing the production, distribution or prescription of Schedule II medications.

The rule does not apply to all speech dealing with the listed substances, only that involving an “improvement” in “business conditions,” such as legalization or deregulation. Efforts to maintain restrictions or impose additional ones are fine by the IRS. This is constitutionally pernicious viewpoint discrimination. As the Supreme Court stated in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”

Defenders of the IRS may argue that tax-exempt status is a privilege, not a right. But the court has held that the government cannot require recipients of governmental largess to relinquish constitutional rights in return—particularly free-speech rights.

The IRS may point to Bob Jones University v. U.S. (1983), in which the high court upheld the denial of tax-exempt status to a private school with racially discriminatory practices that were “contrary to settled public policy.” But public policy on drugs, especially marijuana, is far from settled. A majority of states have enacted legalization measures contrary to federal law; Michigan, Missouri and Utah all did so this month. And Congress has already defunded Justice Department prosecutions of medical cannabis businesses that are legal under state law.

More important, Bob Jones involved not advocacy but action—discriminatory policies that constrained the university’s students. The case would likely have come out differently if the schools complied with public policy while arguing that it should change.

Although no constitutional right is absolute, governmental policies that burden First Amendment rights are strictly scrutinized by the courts and will be upheld only if based upon a compelling governmental interest.

The framers of the Bill of Rights had experienced the full brunt of British antisedition laws, which were used to punish political advocacy. They were determined that this never happen again. Banning or even burdening the freedom to advocate for changing governmental policies, no matter how unpopular or odious the message may be, violates not only the First Amendment but the idea of government by the people. Impeding such advocacy cannot have any legitimate governmental purpose, much less a compelling one.

Accordingly, while government has been able to justify limiting activities or conduct even when it has an expressive or religious component, the Supreme Court has sanctioned limits on the content of speech only in extreme circumstances. In Holder v. Humanitarian Law Project (2010), for instance, the justices upheld a ban on policy advocacy undertaken under the direction of, or in coordination with, certain terrorist groups. This narrow prohibition was constitutional only because the coordinated speech amounted to a “material support” to terrorist groups. The same speech, if conducted independently, would have been fully protected.

Here, by contrast, the IRS seeks to control independent policy advocacy. That’s something the federal government may not do. Yet it’s the second time this decade for the IRS.

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

Source: https://www.wsj.com/articles/another-irs-free-speech-scandal-1542918151