Tag Archives: david b rivkin jr

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

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Mueller’s Fruit of the Poisonous Tree

Trump has the Constitution on his side

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

June 12, 2018 in the Washington Post

The Constitution vests all executive power in the president. He has the authority to determine what matters will, and will not, be investigated and prosecuted by the U.S. government. This is also a core part of the president’s obligation to “take care that the laws be faithfully executed” — and it remains so even if done through an unorthodox channel such as Twitter.

So it is puzzling to see so much criticism of President Trump’s demand that the Justice Department investigate allegations about his presidential campaign being improperly subjected to an FBI counterintelligence probe. Same goes for his instruction to the Justice Department and the FBI that they should grant congressional requests for information about that matter.

Indeed, Trump would have been well within his authority, and well within precedent, to order an investigation entirely independent of the Justice Department and the FBI, as President Lyndon B. Johnson did when he created, by executive order, the Warren Commission to investigate the circumstances of President John F. Kennedy’s death.

When critics claim that a president cannot direct federal law-enforcement activities, they are implying that subordinate executive-branch officials can both judge and act upon their own assessment of a president’s motivations. There is no basis in the Constitution’s language, statute or Supreme Court precedent for such a notion. Those who object to a president’s instructions may resign, but they cannot usurp executive authority and defy him.

Imagine a world where this kind of insulation from presidential control existed. Such a system would create more opportunities for misconduct than the constitutionally enshrined system. Unlike appointed officials and employees, the president is accountable to the electorate. If he misuses his power, the voters can punish him. And if he abuses his authority, Congress can remove him from office through impeachment proceedings. By contrast, when FBI Director J. Edgar Hoover was, for all practical purposes, insulated from presidential control, his tenure lasted decades and encompassed law-enforcement abuses and civil rights violations.

Only in one post-Watergate statute did Congress limit the president’s ability to oversee criminal investigations by providing for appointment of an independent counsel who could be removed only for cause. The Supreme Court upheld this law in Morrison v. Olson, even though it trenched upon the president’s executive authority, concluding that the statute did not unduly limit the president’s power because the imposition was slight. Effectively treating all federal prosecutors as independent and placing the entire federal law-enforcement apparatus beyond the president’s supervision would fly in the face of Morrison.

Besides, with accountability being a paramount constitutional virtue, there is another fundamental constitutional problem with the kind of insulation that Trump’s critics propose. Congressionally mandated insulation of independent counsels at least left Congress politically accountable.

By contrast, bureaucratic self-­insulation is inherently imprecise and destroys accountability. And unlike the statutorily based insulation that the Supreme Court reviewed in Morrison, self-insulation evades judicial review. This is anathema to our constitutional architecture and the rule of law.

Similarly, the Justice Department’s assertion of executive privilege to shield from disclosure documents — such as those sought by Congress on federal surveillance of the Trump campaign — is also a core presidential function. This power is grounded in the president’s right — as the head of a co-equal branch of government — to maintain his independence and do his job. As the Supreme Court noted in United States v. Nixon, in which White House tape recordings of the president’s own conversations were at issue, the “privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

The court found, of course, that the privilege is not absolute. In Nixon and other cases, courts have required production of confidential executive materials. None has suggested, however, that a president’s voluntary decision to provide materials to Congress can be gainsaid, either by subordinate executive-branch officials or the courts. If the president determines to provide such materials to Congress, then the relevant agency officials must comply with his decision or resign. They have no legal authority to overrule such a presidential decision or to impose additional conditions on how Congress handles these materials.

This is true, though the documents being sought involve law-­enforcement materials. Indeed, as explained in a letter to Congress by Attorney General William French Smith in 1982, it has been Justice Department policy since at least President Franklin D. Roosevelt’s administration not to withhold such documents if they may “contain evidence of criminal or unethical conduct by agency officials.” Thus, to the extent Justice Department officials now object to Trump’s orders to provide the materials Congress seeks regarding surveillance of his presidential campaign, those objections cannot be sustained even under the department’s own policies.

Whatever one feels about the wisdom of Trump’s directives, fidelity to the Constitution best protects our democracy in the long run.

David B. Rivkin Jr. and Lee A. Casey, who practice appellate and constitutional law in the District, served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Rivkin also served in the White House counsel’s office in the George H.W. Bush administration.

Source: www.washingtonpost.com/opinions/yes-trump-has-the-power-to-investigate-the-fbis-probe-of-his-campaign/2018/06/12/dfaf7f84-6e5a-11e8-afd5-778aca903bbe_story.html

 

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

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

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

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

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

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

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

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

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

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

Yes, the metric system.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mulvaney Can Undo Cordray’s Legacy

When Richard Cordray attempted to install his chief of staff as acting director of the Consumer Financial Protection Bureau, his evident aim was to buy enough time to cement his legacy—particularly a just-finalized rule that the agency expects will wipe out half or more of the short-term lending industry. On Tuesday a federal judge thwarted Mr. Cordray, holding that President Trump acted within his authority by appointing Mick Mulvaney to moonlight as acting CFPB director while continuing to lead the Office of Management and Budget.

On his first day at the bureau, Mr. Mulvaney put a freeze on new rules and guidance. But that doesn’t solve the problem of the payday-lender rule. Mr. Mulvaney acknowledged that he cannot simply recall rules that have already gone out the door. Repealing a final rule typically requires restarting the rule-making process, which can take years to complete.

But Mr. Mulvaney can stop the payday-lender rule by putting on his OMB hat and invoking the Paperwork Reduction Act of 1980. That law is generally thought of as—actually, strike that. Nobody ever thinks about the Paperwork Reduction Act. It has about as much currency in Washington as the Filled Cheese Act of 1896.

The PRA, which was purportedly strengthened in 1995, was an effort to address a real problem. Federal agencies are eager to impose paperwork burdens on citizens and businesses. It costs an agency almost nothing to impose a new record-keeping requirement or reporting mandate. The expense falls on those required to carry it out.

The obvious solution was to put agencies on a paperwork budget and force them to internalize the costs they foist on the public. To ensure that agencies don’t evade that responsibility, the PRA established robust centralized oversight in the Office of Management and Budget, which is part of the White House. Every “information collection request” issued or imposed by a federal agency must be approved by OMB. That includes government forms as well as requirements that private parties collect information. If OMB disapproves a request, the agency cannot enforce it.

In practice, however, the PRA doesn’t have much effect. Disapprovals from OMB are exceedingly rare. In part, that’s because most agencies are subject to presidential control, rendering the act superfluous—if the White House opposes a regulatory proposal, it can simply instruct the agency to drop or amend it. By the time PRA review rolls around, the White House has already had its say.

Then there are the independent agencies insulated from presidential control, such as the Federal Communications Commission, the Securities and Exchange Commission and most other financial regulators. The PRA empowers them to overrule a disapproval by majority vote. The CFPB was designed to be an independent agency, but unlike the others it has a single director. The PRA limits the ability to overrule to “an independent regulatory agency which is administered by two or more members.” So OMB can disapprove any action by the bureau that imposes unnecessary or excessive paperwork burdens, without fear of being overruled.

Mr. Mulvaney should exercise that power. Every single provision of the short-term lending rule is structured around information collection requests subject to the PRA. The rule’s central requirement is that lenders determine a borrower’s ability to repay by demanding financial information from the borrower, verifying it, and then recording the result of various calculations. Each step is its own paperwork burden.

Whether or not the agency can ultimately justify its regulatory approach—and we have our doubts—it has to do its homework under the PRA. That includes accurately assessing costs, considering the need for and utility of each individual paperwork requirement, balancing the costs and benefits, and minimizing collection burdens. The bureau’s final rule differs substantially from its initial proposal, but the agency made little attempt to account for changes in paperwork burden, as the PRA requires it to do. Nor did it engage with the detailed criticisms of its analysis of the proposal’s costs. The three-page analysis published with the final rule can only be described as Mr. Cordray—perhaps unaware of the bureau’s unique status under the PRA—thumbing his nose at OMB and the White House.

That is reason enough to disapprove the rule and send the CFPB back to the drawing board. It would also signal that the Trump administration actually intends to enforce the PRA—to the point that it will halt a major regulation to ensure compliance. That should prompt other agencies to pay attention to paperwork burdens.

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/mulvaney-can-unravel-cordrays-legacy-1512086936

Begging Your Pardon, Mr. President

The Trump presidency has been consumed by Special Counsel Robert Mueller’s efforts to uncover collusion between the Trump campaign and Moscow. Mr. Mueller reportedly has secured one or more indictments that he will announce Monday. Some Republicans now seek a new special counsel to investigate if the Clinton Campaign “colluded” with Russians to smear Candidate Trump, along with other aspects of the Clintons’ relationship with Russia and Russian nationals. But one special counsel already is one too many.

During the 1980s and ’90s, American politics was repeatedly distorted, and lives devastated, through the appointment of independent counsels under the post-Watergate Ethics in Government Act. These constitutionally anomalous prosecutors were given unlimited time and resources to investigate officials, including President Clinton, and scandals, such as Iran-Contra. Once appointed, almost all independent counsels built little Justice Departments of their own and set out to find something—anything—to prosecute. Hardly anyone lamented the expiration of this pernicious law in 1999.
But special counsels, appointed by the attorney general and in theory subject to Justice Department oversight, haven’t proved any better in practice. Mr. Mueller’s investigation has already morphed into an open-ended inquiry. It is examining issues—like Donald Trump’s private business transactions—that are far removed from the Russian question. It also has expanded its focus beyond the original question of collusion with the Russians to whether anyone involved in the Russia investigation has committed some related offense. That is evident from investigators’ efforts to interview White House aides who were not involved in the 2016 campaign, and from leaks suggesting that Mr. Trump’s firing of FBI Director James Comey might have “obstructed” justice.

That claim is frivolous, and it damages America’s constitutional fabric even to consider it. A president cannot obstruct justice through the exercise of his constitutional and discretionary authority over executive-branch officials like Mr. Comey. If a president can be held to account for “obstruction of justice” by ending an investigation or firing a prosecutor or law-enforcement official—an authority the constitution vests in him as chief executive—then one of the presidency’s most formidable powers is transferred from an elected, accountable official to unelected, unaccountable bureaucrats and judges.

Mr. Mueller’s investigation has been widely interpreted as partisan from the start. Mr. Trump’s opponents instantaneously started talking of impeachment—never mind that a special counsel, unlike an independent counsel, has no authority to release a report to Congress or the public. Mr. Trump’s supporters count the number of Democratic donors on the special-counsel staff. The Mueller investigation is fostering tremendous bitterness among Trump voters, who see it as an effort by Washington mandarins to nullify their votes.

Mr. Trump can end this madness by immediately issuing a blanket presidential pardon to anyone involved in supposed collusion with Russia or Russians during the 2016 presidential campaign, to anyone involved with Russian acquisition of an American uranium company during the Obama administration, and to anyone for any offense that has been investigated by Mr. Mueller’s office. Political weaponization of criminal law should give way to a politically accountable democratic process. Nefarious Russian activities, including possible interference in U.S. elections, can and should be investigated by Congress.

Partisan bitterness will not evaporate if lawmakers take up the investigation. But at least those conducting the inquiry will be legitimate and politically accountable. And the question of whether Russia intervened in the 2016 election, and of whether it made efforts to influence U.S. policy makers in previous administrations, is first and foremost one of policy and national security, not criminal law.

The president himself would be covered by the blanket pardon we recommend, but the pardon power does not extend to impeachment. If Congress finds evidence that he was somehow involved in collusion with Russia, the House can determine whether to begin impeachment proceedings. Congress also is better equipped, as part of its oversight role, to determine whether and how the FBI, Justice Department and intelligence agencies might have been involved in the whole affair, including possible misuse of surveillance and mishandling of criminal investigations.

There is ample precedent for using the presidential pardon authority to address matters of political importance. Certainly it is what the framers expected. As Alexander Hamilton explained in Federalist 69, the pardon power was to “resemble . . . that of the king of Great Britain.” In Federalist 74, he observed that “there are often critical moments, when a well-timed offer of pardon to . . . insurgents or rebels may restore the tranquility of the commonwealth.”

Securing harmony in the body politic was President Washington’s motivation when he offered amnesty to participants in the Whiskey Rebellion in the 1790s, and it was President Lincoln’s motivation when he issued an amnesty during the Civil War for Confederates who would return their allegiance to the Union. Similar reasons motivated President Ford to pardon Richard Nixon, and President Carter when he offered amnesty to Vietnam-era draft evaders.

Lincoln’s proclamation of Dec. 8, 1863, is an excellent model of a broadly drafted and complete amnesty: “I . . . do proclaim, declare and make known to all persons who have directly or by implication participated in the existing rebellion, except as hereinafter excepted, that a full pardon is granted to them . . . upon condition that every such person shall take and subscribe an oath” of loyalty to the U.S. A similar pardon can be issued with respect to the Russian affair, ending the criminal investigations and leaving the business to Congress.

Permitting the criminal law again to become a regular weapon in politics is more destructive of democratic government than ham-handed efforts by a foreign power to embarrass one or more presidential candidates. It is true that Washington’s Augean stables need periodic cleaning, but it is Congress that should wield the shovels.

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

Source: https://www.wsj.com/articles/begging-your-pardon-mr-president-1509302308