Tag Archives: Bill Clinton

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

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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

A failing grade for the Sestak report

(from The Washington Post, June 4, 2010)

By William A. Burck and David B. Rivkin Jr.

Without knowing all of the facts, and particularly whether firm promises of government jobs were made, it cannot be ascertained at the moment whether dealings among Obama White House officials, former president Bill Clinton and Pennsylvania Rep. Joe Sestak and Colorado House speaker Andrew Romanoff broke the law. What is clear, however, is that White House Counsel Robert Bauer has engaged in an unprecedented “investigation” of the Sestak affair, culminating in the issuance of his May 28 report.

This effort was, at best, misguided. At worst, it impeded any legitimate Justice Department investigation, harmed the cause of justice and further reinforced public disgust with Washington.

The White House counsel is the president’s principal legal adviser, but the role is not independent of the president or the White House. Unlike the attorney general, who is the nation’s top law enforcement officer, the White House counsel is not confirmed by the Senate and does not supervise career lawyers charged with impartially investigating and prosecuting possible crimes on behalf of the people of the United States. Executive privilege, which restricts public disclosure of certain communications between the president and his staff, is at its peak for advice given to the president by his counsel.

To be sure, the counsel sometimes has to handle allegations of wrongdoing by White House staff members. But when the allegations concern purportedly criminal misconduct — as was alleged by some in recent years in the Valerie Plame affair, the dismissal of U.S. attorneys and the destruction of CIA “interrogation tapes” — the procedures that the counsel must follow are quite strict and the scope of any investigation narrow. The counsel would be limited to conducting a preliminary inquiry to establish whether there is some factual basis for the allegations. The lawyers would follow standard procedure for preserving the integrity of the investigation, including instructing staff members to preserve all relevant documents, not to discuss the matter with each other and to take all other necessary steps to preserve evidence. If there is some basis to believe a crime was committed, even if the evidence may not be definitive or even particularly convincing, the Justice Department would step in for possible further investigation.

Given that the U.S. Code explicitly proscribes “promises [of] any employment, position, [or] appointment . . . to any person as consideration, favor or reward for,” among other things, staying out of any political primary, this standard has been amply met. Indeed, Bauer’s own conclusions establish that there is a factual basis to believe Sestak may have been offered a position as an illegal quid pro quo. Nonetheless, Bauer clearly does not believe that anyone violated the law. And he may well be right. Perhaps the position was offered unconditionally. Perhaps Sestak misunderstood. Perhaps even if it was a quid pro quo, the offer does not satisfy the statutory requirements for criminal liability. But in the face of doubt on these questions, it is not the counsel’s role to make such determinations, particularly when he is opining on the conduct of Chief of Staff Rahm Emanuel, to whom he reports, and a negative conclusion could damage the president for whom he works.

This conflict of interest makes Bauer’s numerous lapses in normal investigatory procedure all the more troubling. His report is silent concerning similar job-related discussions last year between Deputy White House Chief of Staff Jim Messina and Romanoff, who is mounting a primary challenge against Democratic Sen. Michael Bennet in Colorado. Any credible investigation would have inevitably focused on whether the alleged job-for-withdrawal scenario was exclusive to Sestak or part of a broader pattern of conduct.

Meanwhile, according to various press accounts, witnesses were permitted to consult with each other directly or through intermediaries. This is a major process error that would horrify any experienced Justice Department prosecutor, because it allows witnesses to influence each other’s recollections or even “get their stories straight.” Once this happens, it is very difficult to discern what actually happened. Even releasing Bauer’s report taints the investigation by telling witnesses the “official” narrative. E-mails or other documents, which cannot easily be altered to fit the story, may now be the only reliable way to uncover what everyone said and intended.

The claims that past administrations have done this, too, or that further inquiries would only distract us from tackling the nation’s pressing problems are risible. The whole matter is about, at the front end, senior White House officials engaging in unsavory political horse trading, and leveraging in the process, explicitly or implicitly, the awesome power of the federal government to reward or punish. Separating governance from politics is a key imperative in our body polity and a principle emphasized in ethics briefings given to all government employees, from the lowly GS-4 to the chief of staff to the president.

Even more important, at the back end, l’affaire Sestak is about the senior White House officials, who should be held to the highest ethical standard, acting irresponsibly. This is no minor matter, since nothing reveals more about the soul of any administration than how it deals with suspected legal lapses by its own. At a time when the public’s respect for all branches of the federal government is miserably low, Bauer’s report cannot be the end of the matter. The only credible way forward is to have the Justice Department investigate both the original Sestak-related White House discussions and the exchanges with Romanoff and any other similar dealings — as well as the way in which the White House has handled the matter since the story broke.

William A. Burck served in the Justice Department and was a deputy White House counsel under President George W. Bush. David B. Rivkin Jr. served in the Justice Department and the White House Counsel’s Office under presidents Ronald Reagan and George H.W. Bush.

Source: http://www.washingtonpost.com/wp-dyn/content/article/2010/06/03/AR2010060302261.html

Detainees barred from access to U.S. Courts

(from The New York Times, May 21, 2010)

By Charlie Savage

WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight.

The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees were entitled to the same rights, although he had found that others captured in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions, called the ruling a “big win” and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special Forces Association urging the court to side with the government, said the ruling would have broad significance by removing doubts over whether the United States could capture and interrogate terrorism suspects without worrying about having to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White House lawyer in the administration of the first President Bush. “It has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo in the future, writing, “We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’ chances for overturning the decision were dim because the three appeals judges spanned the ideological spectrum: Chief Judge Sentelle, appointed by President Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter; and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.

Source: http://www.nytimes.com/2010/05/22/world/asia/22detain.html