Tag Archives: David B Rivkin

Lawsuits Needn’t Block Recovery

By J. Michael Luttig and David B. Rivkin, Jr.

20 May 2020 in the Wall Street Journal

As Congress considers another Covid-19 rescue bill, the usual partisan divide has opened over limiting pandemic-related tort liabilities. Republicans and business owners argue that litigation will hamstring recovery. Trial lawyers, unions and Democrats counter that liability limits would encourage businesses to endanger employees and consumers. The Senate Republican leadership proposes immunity for all businesses that comply with public-health guidelines except in cases of “gross negligence” and willful misconduct.

Republicans’ approach is appealing in theory, but in practice it can’t be implemented without detailed regulatory standards—which in the case of Covid-19 won’t be written for some time. Rather than permanently change liability standards based on incomplete information about the virus, it would be wiser to enact an immediate but temporary immunity. That would permit the economy to begin reopening while allowing time for federal regulators to promulgate standards on which long-term immunity could be conditioned.

The existing tort liability system, which rests mostly on state statutory and common law, has few virtues and many flaws. It is inefficient and often arbitrarily imposes liability. Tort litigation, unlike regulatory standards and enforcement, is largely unconstrained by due process and other constitutional limits. The results can be crippling for small businesses, which can’t afford protracted litigation, and even large companies have to settle meritless or frivolous lawsuits. The system is driven by jackpot-justice incentives.

This system is particularly ill-equipped for dealing with Covid-19, which affects the whole economy. Yet hundreds of lawsuits are already pending against universities, processing plants, manufacturing, mass-transportation companies and other businesses. Plaintiff lawyers are petitioning legislatures to rewrite or courts to reinterpret insurance policies, which specifically exclude pandemic-related liabilities, in an effort to obtain large recoveries. While such efforts are constitutionally suspect, these lawsuits won’t die easily.

The notion that businesses will act recklessly if Congress affords liability relief ignores the good-faith compliance culture of American enterprises and the regulatory environment in which they operate. Businesses have strong incentives against even negligent behavior, which would cause bad publicity and customer distrust. We’ve seen many announcements in recent weeks about what businesses are doing to keep customers and employees safe. Bad actors can and will be held to account by states and municipalities using police and regulatory powers to fine, close or even prosecute those that operate dangerously. An elaborate system of federal and state workmen’s compensation provides additional protection.

Tort law is primarily a state matter, but it’s well-established that Congress can intervene via its power to regulate interstate commerce. Federal law has provided tort liability protections to firearms makers and for nuclear power. Congress also enacted laws to limit liabilities arising out of Y2K—like Covid-19, a specific event that was thought to have potentially calamitous economic consequences.

The Supreme Court has sustained congressional authority to sweep aside state policies, statutes and procedures that impair interstate commerce, beginning with Gibbons v. Ogden (1824), which affirmed federal pre-eminence in regulating interstate navigation. In New York v. Beretta (2008), which upheld the limitations on liability for firearms makers, the Second U.S. Circuit Court of Appeals held that Congress’s authority includes the power to ban state tort lawsuits that “are a direct threat” to specific industries.

While there are legitimate doubts—which we share—that the Commerce Clause’s original meaning encompasses intrastate economic activities, the high court has embraced this view since 1942, when it held in Wickard v. Filburn that the federal government could ban growing wheat for personal consumption because it impaired a wheat-production scheme created by federal statute. The justices also asserted in Gonzales v. Raich (2005) that the Commerce Clause allows Congress to regulate intrastate activities that “substantially affect interstate commerce.” Those precedents are enough to allow Congress to protect businesses with local footprints, such as beauty salons or restaurants, that buy products or supplies in interstate commerce.

Senate Republicans should also propose to make protection against tort liability a precondition for states and localities to receive nearly $1 trillion in the new Covid-19 rescue bill. In National Federation of Independent Business v. Sebelius (2012), the ObamaCare case, the Supreme Court limited Congress’s ability to coerce states into adopting new policies by threatening to withdraw money for existing programs. Since this money is new, that won’t pose an obstacle. Using its spending and Commerce Clause powers, Congress can promulgate a variety of regulatory schemes that would replace current federal and state statutory and common-law liabilities for Covid-19 and that would survive litigation challenges.

Making liability protection work will require regulation to evolve along with scientific understanding of Covid-19. Current federal, state and local guidelines, including those published by the Centers for Disease Control and Prevention, are informed exclusively by medical considerations and do not reflect traditional regulatory criteria such as cost and feasibility of implementation, and are too ambiguous and inconclusive to be a proper basis for imposing or limiting Covid-19-related liabilities. New, industry-specific guidelines will have to be developed by agencies such as the Occupational Safety and Health Administration.

OSHA and other federal agencies have the expertise to evaluate scientific, practical and cost-effective standards governing operations of a wide range of businesses. What they need is new statutory authority to issue safe-harbor guidelines for businesses that pre-empt tort liability under state law. Companies and trade associations would work with OSHA and propose industry- or business-specific guidelines to the agency, such as for meat packing plants or package sorting facilities. OSHA would promptly review each proposal, make necessary modifications, and then issue it as an immediately effective regulation with the legal force to override lawsuit liability. Businesses that comply with these regulations can rest assured that they’ve met their legal obligations.

Such considered Covid-19 liability reform—temporary immunity while businesses reopen, followed by promulgation of comprehensive federal regulatory guidelines—would be constitutional and consistent with federalist values. It would protect public health while enabling a prompt and full economic recovery.

Mr. Luttig is a former general counsel of the Boeing Co. He served as a judge on the Fourth U.S. Circuit Court of Appeals, 1991-2006. Mr. Rivkin practices appellate and constitutional law in Washington. He 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/lawsuits-neednt-block-recovery-11589993211

Bailing out states violates the Constitution’s ‘general welfare’ clause

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

6 May 2020 in The Hill

Republican senators, led by Majority Leader Mitch McConnell (R-Ky.), are right to oppose legislation that would provide a broad federal bailout of highly indebted states. Gov. Andrew Cuomo of New York calls this legislative stance “toxic and poison,” but it is constitutionally required.  

As senators, including Florida’s Rick Scott and Texas’s Ted Cruz, made clear in a recent letter to President Trump, no one doubts that the federal government can and should assist states in meeting the coronavirus emergency. Nor can there be any reasonable objection that this aid will benefit certain states — especially New York, which has the majority of coronavirus cases — more than others. There is, however, a profound objection to any plan that would use federal resources to ensure that heavily indebted states need not reassess their policy priorities. These states find themselves in dire fiscal straits primarily because of underfunded pension plans for their public employees. Virtually all of these states are Democrat-run and three of them — Illinois, New Jersey and Connecticut — are facing a particularly calamitous fiscal situation.

Politics aside, bailing out unfunded state pension plans with federal dollars would violate the Constitution’s often ignored, but nevertheless binding, “general welfare” clause. Congress does not, in fact, have unfettered power to spend money as it sees fit. The Constitution permits it to tax, and by implication spend, “to pay the Debts and provide for the common Defense and general Welfare of the United States.” (Art. I, § 8, cl. 1) This language was neither puffery nor surplusage, but was added by the Constitution’s Framers for a compelling purpose.

The Framers were determined to vest the federal government with sufficient authority to carry out its national purpose, but also to limit that power. These principles are reflected in numerous constitutional provisions and that document’s overall architecture. Thus, all congressional powers have some limit, some cabining principle. Just as the commerce clause is limited to the regulation of economic activities and does not permit Congress to exercise a general “police power” regulating people simply because they are here, so Congress’s ability to tax and spend is limited by the requirement that this must be for the general welfare.

This requirement stems from the Framers’ concern that large, powerful states would dominate the federal government and would use federal institutions to benefit their own interests, rather than the Union as a whole. Indeed, the question of how to ensure that a cabal of large states would not run roughshod over small states dominated much of the Constitutional Convention. It shaped many key constitutional provisions, including the bicameral federal legislature, with all states having equal representation in the Senate, the apportionment requirement for direct federal taxes, and the language mandating that “all Duties, Imposts and Excises shall be uniform throughout the United States.”  

Even such an ardent proponent of a strong federal government as Alexander Hamilton was sufficiently concerned about states acting selfishly that he argued initially for abolishing the states as independent sovereigns altogether because “states will prefer their particular concerns to the general welfare.” Eventually, this concern resulted in the constitutional language that required the federal government to operate for the general welfare of the entire nation. Notably, this language is found both in the Constitution’s preamble and Article I, Section 8, which enumerates Congress’s powers. And, as is made clear in an early draft of the general welfare clause, the Framers understood the phrase to mean that “which may concern the common interests of the Union.”

This understanding of the clause is similarly revealed in a debate that took place in September 1787, near the Convention’s end, after the general welfare language had taken its final form.  This debate concerned whether an additional provision should be included in the Constitution specifically vesting the federal government with the power to build canals, which would benefit some states more than others. Some thought yes; others argued that tasks such as canal-building should be the responsibility of the states that would directly benefit. Regardless of this disagreement, they all appeared to have shared the same view that such authority — which today we would take for granted as being well within Congress’s spending power — was not already present.

As in other areas, after the Constitution’s ratification, the Framers took different views of how far the spending power could go. Hamilton, always the preeminent Federalist, took the position that the power to tax and spend constituted a separate grant of authority to Congress, while James Madison believed it was merely a support for Congress’s otherwise enumerated powers.  Hamilton’s view prevailed and was endorsed by the Supreme Court in the 1936 case of United States v. Butler. The court did not, however, determine the meaning of “general welfare” in Butler, except to note that Hamilton understood it to mean “the purpose must be ‘general, and not local.’”

To be sure, the definition of what types of expenditures advance general welfare has been much debated throughout U.S. history. Prior to the Civil War, a stringent definition prevailed, with Congress vigorously debating expenditures for various types of infrastructure projects and presidents vetoing spending bills that they believed served local needs and did not sufficiently advance general welfare. Post-Civil War, and particularly following the New Deal, a far broader federal spending pattern emerged. This reflected the view that, using federal dollars to pay the costs of natural disasters and similar emergencies, or various infrastructure projects, while benefiting some states more than others at any given point in time, would benefit the nation as a whole in the long run. This practice broadened the understanding of what expenditures served the national interest, but it did not and could not abolish the general welfare requirement altogether.

Thus, however broad Congress’s power to tax and spend may be, this remains the fundamental limitation — expenditures must promote national, rather than local, interests. And it is difficult to imagine a more locally-oriented program than one designed to prop up the fiscal choices of a group of states — to benefit state and municipal government employees by establishing generous, underfunded pension systems — at the expense of other states. Significantly, numerous states repeatedly have rejected similar pension arrangements for themselves, vividly manifesting their view that this was not in their best interests or conducive to general welfare.  Indeed, by subsidizing a particular vision of what constitutes a proper state government, one of the basic justifications for our federalist system — that states can make their own choices as laboratories — would be discarded. True federalism requires that the federal government neither coerces states nor imposes on states’ fiscal burdens that properly belong to individual states that have incurred them.

Senate Republicans have every right, and all senators have an equal obligation, to ensure that any funding legislation meets the general welfare requirement, so that federal dollars cannot be used to pay, either directly or indirectly, for the repair of long-term fiscal liabilities of any recipient state.  

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 Justice Department under Presidents Reagan and George H.W. Bush and have litigated separation-of-powers cases, representing states in challenges to ObamaCare and the federal Clean Power Plan.

Source: https://thehill.com/opinion/judiciary/495961-bailing-out-states-violates-the-constitutions-general-welfare-clause

Congress Declares War, but Only the President Can Make It

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

15 January 2020 in the Wall Street Journal

House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.

Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.

The resolution purports to restrict the president’s power to an even greater extent than the 1973 War Powers Resolution. The latter was enacted over President Richard Nixon’s veto, and every president since has regarded it as unconstitutional. It demands that the White House notify Congress anytime U.S. forces are introduced into hostilities abroad, then either obtain congressional authorization or withdraw troops within 90 days. The new resolution applies to all forms of military power, including drones and missiles, and claims to prohibit them effective immediately.

It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.

The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.

True, the Framers didn’t grant the president power to initiate hostilities at his pleasure. They gave Congress, not the president, the authority to raise and support armies, to create a navy, and to make rules and regulations for their governance. It’s also up to the legislative branch to define the legal framework for armed conflict: offenses against international and military law, the procedures for their prosecution, the treatment of captured enemy property and prisoners and so forth.

Congress also has the power “to provide for organizing, arming, and disciplining, the militia.” Military officers are subject to Senate confirmation. Congress can use its exclusive appropriation powers to limit or eliminate funding for a particular conflict—if lawmakers are prepared to take the resulting political risks. Inaction or nonbinding resolutions have no constitutional import.

Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. Like any American, Speaker Nancy Pelosi is free to speak her mind. But her claim that the attack on Soleimani was “provocative and disproportionate” is preposterous.

Iran has been engaged in on-and-off armed conflict with the U.S. since “students” seized the embassy in Tehran in 1979. Soleimani was a uniformed member of the Iranian armed forces, and a critical player in Iran’s worldwide terror campaign. All that made him a legitimate target. The notion that Soleimani was too senior to be killed finds no support in the laws of armed conflict. Even the most senior military leaders can be targeted, as the U.S. did in 1943 when it shot down Adm. Isoroku Yamamoto’s plane in New Guinea.

Nor is it legally relevant, as some congressional Democrats have claimed, that killing such a high-ranking officer could heighten the danger of a wider war. Any military action has the potential to escalate hostilities, as do other exercises of presidential authority. President Franklin D. Roosevelt’s imposition of an oil embargo against Japan in August 1941 arguably prompted the attack on Pearl Harbor four months later.

Under Mrs. Pelosi’s logic, virtually every major foreign-policy decision would require congressional authorization. Imagine if President John F. Kennedy had to ask lawmakers for approval during the Cuban Missile Crisis of 1962 before subjecting Cuba to a “naval quarantine,” an act of war against Havana. The threat of Soviet missiles in Cuba was real, but it wasn’t “imminent” in the sense that Mr. Trump’s critics use that word today.

Kennedy acted to prevent a long-term, highly dangerous change in the nuclear balance of power that would have put Moscow in a position to launch a nuclear attack on the U.S. with virtually no warning. But there was no reason to think an attack was planned for the immediate future.

Kennedy decided that action, while risky, would enhance deterrence, as President Trump did when he ordered the killing of Soleimani. The president deserves credit for a decision that would, at any time until recently, have been considered a triumph by Democrats and Republicans alike.

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/congress-declares-war-but-only-the-president-can-make-it-11579133486

Barr’s loyalty is to the Constitution, not a party

By David B. Rivkin and Andrew M. Grossman

 

December 24, 2019, in the Wall Street Journal

 

Washington’s knives are out for Attorney General William Barr, and the stabbing has intensified since he delivered a November address at the Federalist Society. Predecessor Eric Holder —who while serving in the Obama administration described himself as “the president’s wingman”—accused Mr. Barr of championing “essentially unbridled executive power.” In the same Washington Post op-ed, Mr. Holder added that Mr. Barr’s “nakedly partisan” remarks rendered him a pawn of President Trump and “unfit to lead the Justice Department”—an utterly unhinged claim.

 

In the New York Times, William Webster, who directed both the Federal Bureau of Investigation and the Central Intelligence Agency, chastised Mr. Barr for criticizing FBI bias. Meanwhile, the Never Trump group Checks and Balances accused Mr. Barr of advancing an “autocratic vision of executive power” that is “unchecked” by Congress and the courts.

 

Some of the attacks are mere symptoms of Trump derangement syndrome, but others reflect by a deep-seated resistance to the Constitution’s separation of powers and the threat that its enforcement poses to the unaccountable administrative state. In either case, they’re wrong. Far from calling for executive supremacy, Mr. Barr has vigorously advocated the Framers’ vision of the Constitution’s separation-of-powers architecture, featuring the three governmental branches—Congress, the president and the judiciary—each exercising its distinctive authorities while checking the others. In his Federalist Society address, Mr. Barr, quoting Justice Antonin Scalia, explained that the Constitution gives the president and Congress “many ‘clubs with which to beat’ each other.”

 

Mr. Barr’s extolling of the “unitary executive” is hardly revolutionary—nor, as critics imagine, is it a call for dictatorship. It posits only that the president, being responsible for execution of the law, must be able to control his subordinates. This was the rule across the government until Humphrey’s Executor v. U.S. (1935), in which the Supreme Court carved out an exception for members of certain “independent” regulatory agencies, whom the president can fire only for “good cause.”

 

The Framers had good reason to favor a strong presidency. The early republic’s weak civilian executive leadership almost lost the Revolutionary War, shifting nearly the entire burden to Gen. George Washington. Postwar government under the Articles of Confederation was a ruinous shambles, unable to assert any sort of national leadership. To be sure, the Framers also feared legislative overreaching. They resolved all these problems by creating a coequal executive who could act, in Mr. Barr’s words, with “energy, consistency and decisiveness.”

 

Humphrey’s Executor was only the beginning of the attack on the constitutional design. Congress whittled away at executive power, depriving the president of the authority and duty to “take care that the laws be faithfully executed.” The courts not only approved those usurpations, but themselves meddled in disputes between the political branches and seized broad swaths of executive discretion.

 

Numerous lawmakers, most of the media and much of the political class now claim—at least during a Republican administration—that even core executive-branch activities, such as diplomacy and law enforcement, must be substantially free from presidential control. Hence the steady drumbeat of criticism directed at Mr. Trump for overseeing and making policy for the Justice Department, the FBI and the intelligence community as a whole.

 

The result isn’t a strong Congress but the supplantation of the Constitution’s checks and balances with a worst-of-all-worlds muddle. Leaders of independent agencies like the Consumer Financial Protection Bureau exercise executive power free from accountability to the president or voters and subject only to the partisan whims of Congress. The bureaucratic “resistance,” spurred on by its allies in Congress, openly defies presidential decisions, undermining the principle of democratic control even in core areas of presidential responsibility like foreign policy. For their part, the courts increasingly police ordinary separation-of-powers disputes between Congress and the executive, destroying the possibility of compromise through political means.

 

These deviations from the Framers’ blueprint explain much of the government’s current dysfunction. Congress avoids politically dangerous decisions by palming tough choices off on agencies and the courts. The legal and political limbo of the so-called Dreamers is a ready example. Ceaseless congressional investigations nearly incapacitate the White House and are designed to achieve precisely that result. Executive agencies find their every action—even those involving inherently discretionary matters—subject to judicial scrutiny and nationwide injunctions imposed by judges whose jurisdiction is supposed to be limited to a state or district. Whereas the separation of powers fostered practical compromise, today’s judicial supremacy reduces everything to winner-take-all litigation.

 

Mr. Barr warned in his address that we must “take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” Too often, previous attorneys general regarded the elements of separation of powers opportunistically, as cudgels to be employed in particular disputes. Mr. Barr’s vision and goals are broader. He’s concerned not only with the conflicts of the day but the structure necessary for the federal government to work. It’s a bold vision, but it’s the opposite of a partisan one.

 

If Mr. Barr achieves even a fraction of his agenda to restore the Framers’ vision of a strong, independent executive, he will go down as Mr. Trump’s most consequential executive appointment.

 

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 of the Cato Institute.

 

Source: https://www.wsj.com/articles/barrs-loyalty-is-to-the-constitution-not-a-party-11577229447

Schiff’s ‘Obstruction’ Theory

By David B. Rivkin and Lee A. Casey

 

Nov. 14, 2019, in the Wall Street Journal

 

Is it an impeachable offense for a president to resist impeachment? House Intelligence Chairman Adam Schiff told CNN last week that White House officials’ refusal to testify in his committee’s impeachment probe could lead to “obstruction of Congress” charges against President Trump. At a press conference last month, he warned the White House against trying to “stonewall our investigation” and said: “Any action like that, that forces us to litigate or have to consider litigation, will be considered further evidence of obstruction of justice.”

 

He’s wrong. In the absence of a definitive judicial ruling to the contrary, the president has a well-established constitutional right—even a duty—to resist such demands. The Constitution authorized the House to impeach the president if it has evidence of “high crimes and misdemeanors,” but it does not require the president, who heads an equal branch of government, to cooperate in gathering such evidence. Accordingly, the Trump administration has refused to honor various document-production requests, and has instructed some current and former officials to ignore committee subpoenas.

 

Not all officials have complied with this instruction, but those who have—including former national security adviser John Bolton, former deputy national security adviser Charles Kupperman, chief of staff Mick Mulvaney and deputy White House counsel John Eisenberg—are acting lawfully and appropriately.

 

It has long been established that the president, and by extension his advisers, have two types of immunity from making disclosures to Congress. One applies to national-security information, the other to communications with immediate advisers, whether related to national security or not. Both immunities, when applicable, are absolute, which means they can’t be trumped by competing congressional needs.

 

The national-security privilege was most definitively explained in a 1989 memorandum from the Justice Department’s Office of Legal Counsel (OLC). It noted that the privilege is anchored in the longstanding right “not to disclose state secrets,” first asserted by President Thomas Jefferson and affirmed by the courts in 1807. Although the Supreme Court unanimously rejected an assertion of executive privilege for all presidential communications in U.S. v. Nixon (1974), it “unmistakably implied,” according to the OLC memo, “that the President does enjoy an absolute state secrets privilege.”

 

The privilege for communications with the small group of senior White House staff who are the president’s immediate advisers is equally well-grounded. The OLC first fully articulated it in 1971 under future Chief Justice William Rehnquist. The office has reaffirmed it many times under presidents of both parties in response to all manner of congressional requests.

 

The privilege is premised on the Constitution’s separation of powers: “The President is a separate branch of government,” a 1982 OLC memo put it. “He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it.” The president’s immediate advisers are effectively his alter egos. Compelling them to appear is the equivalent of compelling him.

 

This point bears emphasis. Congress also has absolute privileges from interference with its operations, including the Constitution’s Speech and Debate Clause. Under that protection, lawmakers may defy the executive branch—for example, by publicly reading classified information into the congressional record—and they have done so.

 

Both privileges apply to the situation at hand, in which Congress seeks information from Mr. Trump’s most senior advisers about sensitive issues of national security. Ultimately, the courts must determine whether the president may invoke these privileges and whether his advisers must comply with the Intelligence Committee’s demands. Mr. Kupperman has brought a lawsuit challenging the subpoena, which is now pending before Judge Richard Leon of the U.S. District Court for the District of Columbia. Mr. Schiff appears to have little confidence in his legal position, because he attempted to make the case moot by withdrawing the Kupperman subpoena. House lawyers asked the court to dismiss the action on that ground. Judge Leon refused.

 

The House claims it doesn’t want judicial review because of another pending lawsuit involving a subpoena. But that case is materially different. It was brought before the impeachment inquiry began and involves efforts to force former White House counsel Don McGahn to testify about the firing of James Comey as director of the Federal Bureau of Investigation and matters related to special counsel Robert Mueller’s investigation. It raises no question of national-security immunity, so it cannot resolve the question with respect to Mr. Kupperman—at least not in Mr. Schiff’s favor.

 

The House majority’s effort to avoid adjudication of its demands for testimony presents another key problem. Under Mr. Schiff’s legal theory of what constitutes an impeachable offense, the House must demonstrate that the president has engaged in quid pro quo conduct vis-à-vis Ukraine, where U.S. military aid was allegedly withheld to secure cooperation in investigating Hunter Biden’s association with Burisma Holdings, a Ukrainian energy company. Mr. Trump vigorously denies that he intended to withhold U.S. aid.

 

His state of mind is of utmost importance to the House’s case. Yet, the only witnesses who have provided testimony on the question had little if any direct contact with the president. Advisers like Messrs. Bolton, Kupperman and Mulvaney, by contrast, would have been in daily contact with him. If House Democrats are serious about impeaching Mr. Trump for his dealings with the Ukrainian president, obtaining a judicial ruling that they are entitled to this critical testimony should be their top priority.

 

Mr. Schiff’s claim that Mr. Trump is guilty of an impeachable offense if he “forces us to litigate” is preposterous. It is the president’s right and obligation to protect the institution of the presidency from inappropriate congressional demands. If Mr. Schiff believes he is right on the law, he should welcome the opportunity to put his case to a judge. His refusal to do so exposes the entire exercise as a partisan sham.

 

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/schiffs-obstruction-theory-11573776120

This Impeachment Subverts the Constitution

By David B. Rivkin, Jr., and Elizabeth Price Foley

October 25, 2019, in the Wall Street Journal

Speaker Nancy Pelosi has directed committees investigating President Trump to “proceed under that umbrella of impeachment inquiry,” but the House has never authorized such an inquiry. Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense. Lawmakers and commentators have suggested various possibilities, but none amount to an impeachable offense. The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.

The impeachment power is quasi-judicial and differs fundamentally from Congress’s legislative authority. The Constitution assigns “the sole power of impeachment” to the House—the full chamber, which acts by majority vote, not by a press conference called by the Speaker. Once the House begins an impeachment inquiry, it may refer the matter to a committee to gather evidence with the aid of subpoenas. Such a process ensures the House’s political accountability, which is the key check on the use of impeachment power.

The House has followed this process every time it has tried to impeach a president. Andrew Johnson’s 1868 impeachment was predicated on formal House authorization, which passed 126-47. In 1974 the Judiciary Committee determined it needed authorization from the full House to begin an inquiry into Richard Nixon’s impeachment, which came by a 410-4 vote. The House followed the same procedure with Bill Clinton in 1998, approving a resolution 258-176, after receiving independent counsel Kenneth Starr’s report.

Mrs. Pelosi discarded this process in favor of a Trump-specific procedure without precedent in Anglo-American law. Rep. Adam Schiff’s Intelligence Committee and several other panels are questioning witnesses in secret. Mr. Schiff has defended this process by likening it to a grand jury considering whether to hand up an indictment. But while grand-jury secrecy is mandatory, House Democrats are selectively leaking information to the media, and House Republicans, who are part of the jury, are being denied subpoena authority and full access to transcripts of testimony and even impeachment-related committee documents. No grand jury has a second class of jurors excluded from full participation.

Unlike other impeachable officials, such as federal judges and executive-branch officers, the president and vice president are elected by, and accountable to, the people. The executive is also a coequal branch of government. Thus any attempt to remove the president by impeachment creates unique risks to democracy not present in any other impeachment context. Adhering to constitutional text, tradition and basic procedural guarantees of fairness is critical. These processes are indispensable bulwarks against abuse of the impeachment power, designed to preserve the separation of powers by preventing Congress from improperly removing an elected president.

House Democrats have discarded the Constitution, tradition and basic fairness merely because they hate Mr. Trump. Because the House has not properly begun impeachment proceedings, the president has no obligation to cooperate. The courts also should not enforce any purportedly impeachment-related document requests from the House. (A federal district judge held Friday that the Judiciary Committee is engaged in an impeachment inquiry and therefore must see grand-jury materials from special counsel Robert Mueller’s investigation, but that ruling will likely be overturned on appeal.) And the House cannot cure this problem simply by voting on articles of impeachment at the end of a flawed process.

The Senate’s power—and obligation—to “try all impeachments” presupposes that the House has followed a proper impeachment process and that it has assembled a reliable evidentiary basis to support its accusations. The House has conspicuously failed to do so. Fifty Republican senators have endorsed a resolution sponsored by Judiciary Committee Chairman Lindsey Graham urging the House to “vote to open a formal impeachment inquiry and provide President Trump with fundamental constitutional protections” before proceeding further. If the House fails to heed this call immediately, the Senate would be fully justified in summarily rejecting articles produced by the Pelosi-Schiff inquiry on grounds that without a lawful impeachment in the House, it has no jurisdiction to proceed.

The effort has another problem: There is no evidence on the public record that Mr. Trump has committed an impeachable offense. The Constitution permits impeachment only for “treason, bribery, or other high crimes and misdemeanors.” The Founders considered allowing impeachment on the broader grounds of “maladministration,” “neglect of duty” and “mal-practice,” but they rejected these reasons for fear of giving too much power to Congress. The phrase “high crimes and misdemeanors” includes abuses of power that do not constitute violations of criminal statutes. But its scope is limited.

Abuse of power encompasses two distinct types of behavior. First, the president can abuse his power by purporting to exercise authority not given to him by the Constitution or properly delegated by Congress—say, by imposing a new tax without congressional approval or establishing a presidential “court” to punish his opponents. Second, the president can abuse power by failing to carry out a constitutional duty—such as systematically refusing to enforce laws he disfavors. The president cannot legitimately be impeached for lawfully exercising his constitutional power.

Applying these standards to the behavior triggering current calls for impeachment, it is apparent that Mr. Trump has neither committed a crime nor abused his power. One theory is that by asking Ukrainian President Volodymyr Zelensky to investigate Kyiv’s involvement in the 2016 U.S. presidential election and potential corruption by Joe Biden and his son Hunter was unlawful “interference with an election.” There is no such crime in the federal criminal code (the same is true of “collusion”). Election-related offenses involve specific actions such as voting by aliens, fraudulent voting, buying votes and interfering with access to the polls. None of these apply here.

Nor would asking Ukraine to investigate a political rival violate campaign-finance laws, because receiving information from Ukraine did not constitute a prohibited foreign contribution. The Mueller report noted that no court has ever concluded that information is a “thing of value,” and the Justice Department has concluded that it is not. Such an interpretation would raise serious First Amendment concerns.

Equally untenable is the argument that Mr. Trump committed bribery. Federal bribery statutes require proof of a corrupt intent in the form of a quid pro quo—defined by the Supreme Court in U.S. v. Sun-Diamond Growers (1999), as a “specific intent to give or receive something of value in exchange for an official act.” There was no quid pro quo in the call. Mr. Zelensky has said he felt no pressure, and the purported quid (military aid to Ukraine) was not contingent on the alleged quo (opening an investigation), because the former materialized within weeks, while the latter—not “something of value” in any case—never did.

More fundamentally, the Constitution gives the president plenary authority to conduct foreign affairs and diplomacy, including broad discretion over the timing and release of appropriated funds. Many presidents have refused to spend appropriated money for military or other purposes, on grounds that it was unnecessary, unwise or incompatible with their priorities.

Thomas Jefferson impounded funds appropriated for gunboat purchases, Dwight Eisenhower impounded funds for antiballistic-missile production, John F. Kennedy impounded money for the B-70 bomber, and Richard Nixon impounded billions for highways and urban programs. Congress attempted to curtail this power with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.

Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it. Lyndon B. Johnson used the promise of financial aid to strong-arm the Philippines, Thailand and South Korea to send troops to Vietnam. The General Accounting Office (now called the Government Accountability Office) concluded that this constituted “quid pro quo assistance.” In 2013, Barack Obama, in a phone conversation with Egyptian President Abdel Fattah Al Sisi, said he would slash hundreds of millions of dollars in military and economic assistance until Cairo cooperated with U.S. counterterrorism goals. The Obama administration also withheld millions in foreign aid and imposed visa restrictions on African countries, including Uganda and Nigeria, that failed to protect gay rights.

Further, there is credible evidence that Ukraine interfered in the 2016 presidential election at the request of senior Obama administration officials. The Justice Department is investigating this as part of its broader inquiry—now a criminal investigation—into efforts to target the Trump campaign in 2016 and beyond. It is certainly legitimate for the president to ask Ukraine to cooperate.

In addition, the president’s constitutional duty to “take care that the laws be faithfully executed” implies broad discretion to investigate and prosecute crimes, even if they involve his political rivals. Investigating Americans or Ukrainians who might have violated domestic or foreign law—and seeking the assistance of other nations with such probes, pursuant to mutual legal-assistance treaties—cannot form a legitimate basis for impeachment of a president.

It’s legally irrelevant that a criminal investigation may be politically beneficial to the president. Virtually all exercises of constitutional discretion by a president affect his political interests. It would be absurd to suggest that a president’s pursuit of arms-control agreements, trade deals or climate treaties are impeachable offenses because they benefit the president or his party in an upcoming election.

Using a private party such as Rudy Giuliani to carry out diplomatic missions is neither a crime nor an abuse of power. While the State Department’s mandarins have always lamented intrusions on their bureaucratic turf, numerous U.S. presidents have tapped people to conduct foreign-policy initiatives whose job—whether in the government or private sectors—did not include foreign-policy experience or responsibility. George Washington sent Chief Justice John Jay to negotiate the “Jay Treaty” with Britain. Woodrow Wilson used American journalist Lincoln Steffens and Swedish Communist Karl Kilbom as special envoys to negotiate diplomatic relations with the Soviet Union. A close Wilson friend, Edward House, held no office but effectively served as chief U.S. negotiator at the Paris Peace Conference after World War I.

Nor is it illegal or abusive to give a diplomatic assignment to a government official whose formal institutional responsibilities do not include foreign affairs, such as the energy secretary. JFK relied on Attorney General Robert F. Kennedy to negotiate with Moscow during the Cuban missile crisis.

Although the impeachment inquiry has been conducted in secret, what we know suggests it has become a free-ranging exploration of Mr. Trump’s foreign-policy substance and process, with the committees summoning numerous State Department witnesses. Congress could properly undertake such an inquiry using its oversight authority, but by claiming that it is proceeding with an impeachment inquiry, it has forfeited this option.

If the House impeaches Mr. Trump because it disapproves of a lawful exercise of his presidential authority, it will in effect have accused him of maladministration. The Framers rejected that amorphous concept because it would have allowed impeachment for mere political disagreements, rendering the president a ward of Congress and destroying the executive’s status as an independent, coequal branch of government. If the House impeaches on such grounds and the Senate concludes it has jurisdiction to conduct an impeachment trial, it should focus first and foremost not on the details of Mr. Trump’s foreign policy, but on the legal question of whether the conduct alleged is an impeachable offense.

Alexis de Tocqueville observed in 1835: “A decline of public morals in the United States will probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office.” What House Democrats are doing is not only unfair to Mr. Trump and a threat to all his successors. It is an attempt to overrule the constitutional process for selecting the president and thus subvert American democracy itself. For the sake of the Constitution, it must be decisively rejected. If Mr. Trump’s policies are unpopular or offensive, the remedy is up to the people, not Congress.

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: https://www.wsj.com/articles/this-impeachment-subverts-the-constitution-11572040762

Probe the effort to sink Kavanaugh