Tag Archives: Federal Bureau of Investigation

Investigate McCabe’s 25th Amendment Tale

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

24 February 2019 in the Wall Street Journal

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

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

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

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

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

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

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

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

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

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

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

Source: https://www.wsj.com/articles/investigate-mccabes-25th-amendment-tale-11551045250

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Kavanaugh’s Foes Politicize the FBI

By David B. Rivkin Jr. and Kristi Remington

October 1st, 2018, in the Wall Street Journal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Trump Is Right to Pardon Scooter Libby, an Innocent Man

President Trump has pardoned I. Lewis “Scooter” Libby, convicted in 2007 of perjury and obstruction of justice. The president was right to do so. Mr. Libby’s conviction was a travesty.

Mr. Libby, who served as Vice President Dick Cheney’s chief of staff, got caught up in a special counsel’s investigation about the disclosure to the press of a CIA agent’s identity. It appears Mr. Cheney was the investigation’s real target. Mr. Libby’s lawyers have said prosecutors offered to drop the charges against Mr. Libby if he would incriminate his boss. But, there was “no there, there.” Neither Mr. Libby nor Mr. Cheney had anything to do with the “leak” or with covering it up. No one was charged with a crime in the “outing” of the agent, Valerie Plame, and it’s not clear it was a crime.

The Intelligence Identities Protection Act of 1982 makes it a crime to reveal the identity of a “covert” intelligence agent. Ms. Plame was a midlevel employee stationed at Central Intelligence Agency headquarters. In early 2002, she urged her superiors to tap her husband, retired diplomat Joe Wilson, to investigate claims that Saddam Hussein had tried to buy processed uranium in Niger. The CIA interpreted Mr. Wilson’s report as supporting that claim, but a year later he publicly declared the evidence was dubious and became a vocal critic of President Bush’s Iraq policy.

The late Robert Novak wrote a column revealing that Mr. Wilson had gone to Niger at Ms. Plame’s urging. Mr. Wilson asserted that the revelation of his wife’s CIA employment was meant to punish him. But her identity was well-known around Washington, suggesting that she had not taken “affirmative measures” to conceal her “intelligence relationship to the United States,” a necessary element of the crime.

Special counsel Patrick Fitzgerald was appointed by his friend James Comey, then deputy attorney general. From the start, Mr. Fitzgerald knew that the critical “leak” to Novak had come from then-Deputy Secretary of State Richard Armitage. He nevertheless commenced an extensive investigation to “discover” what had happened.

The charges against Mr. Libby were based on his description of various conversations he had with journalists at the time, including the New York Times’s Judith Miller. Based on notes she had made containing the word “bureau” in association with Ms. Plame’s job, Ms. Miller became the only reporter to testify that Mr. Libby had discussed Ms. Plame’s CIA connection with her. Mr. Fitzgerald called her testimony “critical” in his closing argument to the jury, which found Mr. Libby guilty on four of five counts.

But Ms. Miller later realized her testimony had been mistaken. Ms. Plame published a memoir in late 2007, months after Libby’s trial. In Ms. Miller’s 2015 book, “A Reporter’s Story,” she writes that one particular point in Ms. Plame’s account immediately caught her eye: Ms. Plame’s CIA “cover” had been as an employee of a State Department bureau. Mr. Libby would have known the CIA has “divisions,” not “bureaus.” He could not, therefore, have been the person who revealed Ms. Plame’s CIA connection to Ms. Miller.

Ms. Miller did not recognize her mistake when preparing her trial testimony, because she did not know that Ms. Plame had a State Department cover. Had she known, she would not have claimed she and Mr. Libby had discussed Ms. Plame’s CIA status. But Mr. Fitzgerald knew, and Ms. Miller believes he deliberately led her away from the truth.

All this means that Mr. Libby was telling the truth about his conversations with Ms. Miller, and that he did not deliberately mislead Mr. Fitzgerald’s grand jury or the FBI. For her part, Ms. Miller had not lied at Mr. Libby’s trial; she had given false testimony in good faith. “With the information about Plame’s cover that Fitzgerald had withheld, it was hard not to conclude that my testimony had been wrong,” she writes. “Had I helped convict an innocent man?

She had. It is now established that Mr. Libby never told any reporter about Ms. Plame, never knew that she had any special status, and had no reason to lie about any of this—and that the “leak” had caused no harm to the CIA, its personnel or operations. But the time for Mr. Libby’s appeals has long passed.

One court partially righted the wrong Mr. Libby suffered. In 2016, the District of Columbia Court of Appeals, a local tribunal, restored Mr. Libby’s license to practice law in the nation’s capital. This action was based on a report by the D.C. Bar’s Office of Disciplinary Counsel, which specifically noted that Mr. Libby had consistently maintained his innocence, that he never denied the seriousness of the offenses of which he was convicted, and that Ms. Miller, as a “key prosecution witness . . . has changed her recollection of the events in question.”

Long ago, Hillary Clinton’s friend and law partner Vince Foster wrote that Washington was a place where “ruining people is considered sport.” He left those words in a note found after his 1993 suicide. Foster’s observation is undeniably true—but should not be. Mr. Trump promised to change the way Washington works, and has himself experienced the full force of this detestable Washington pastime since before he took office. By granting Scooter Libby a full pardon, he has taken a step toward changing Washington’s culture, and he has righted a grievous wrong.

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.

Can a President obstruct Justice?

Speculation about Special Counsel Robert Mueller’s investigation has turned toward obstruction of justice—specifically, whether President Trump can be criminally prosecuted for firing James Comey as director of the Federal Bureau of Investigation or for earlier asking Mr. Comey to go easy on onetime national security adviser Mike Flynn. The answer is no. The Constitution forbids Congress to criminalize such conduct by a president, and applying existing statutes in such a manner would violate the separation of powers.

The Constitution creates three coequal branches of government, and no branch may exercise its authority in a manner that would negate or fundamentally undercut the power of another. The power to appoint and remove high-level executive-branch officers, such as the FBI director, is a core aspect of the president’s executive authority. It is the principal means by which a president disciplines the exercise of the executive power the Constitution vests in him.

The same is true of Mr. Trump’s request, as purported by Mr. Comey: “I hope you can see your way clear . . . to letting Flynn go.” The FBI director wields core presidential powers when conducting an investigation, and the president is entirely within his rights to inquire about, and to direct, such investigations. The director is free to ignore the president’s inquiries or directions and risk dismissal, or to resign if he believes the president is wrong. Such officials serve at the president’s pleasure and have no right to be free of such dilemmas.

A law criminalizing the president’s removal of an officer for a nefarious motive, or the application of a general law in that way, would be unconstitutional even if the president’s action interferes with a criminal investigation. Such a constraint would subject every exercise of presidential discretion to congressional sanction and judicial review. That would vitiate the executive branch’s coequal status and, when combined with Congress’s impeachment power, establish legislative supremacy—a result the Framers particularly feared.

Mr. Trump’s critics claim that subjecting the president’s actions to scrutiny as potential obstructions of justice is simply a matter of asking judges to do what they do every day in other contexts—determine the purpose or intent behind an action. That is also wrong. The president is not only an individual, but head of the executive branch. Separating his motives between public interests and personal ones—partisan, financial or otherwise—would require the courts to delve into matters that are inherently political. Under Supreme Court precedent stretching back to Marbury v. Madison (1803), the judiciary has no power to do so. And lawmakers enjoy an analogous immunity under the Speech and Debate Clause.

The president’s independence from the other branches does not merely support “energy” in the chief executive, as the Framers intended. It also ensures that he, and he alone, is politically accountable for his subordinates’ conduct. If officials as critical to the executive branch’s core functions as the FBI director could determine whom and how to investigate free from presidential supervision, they would wield the most awesome powers of government with no political accountability. History has demonstrated that even when subject to presidential authority, the FBI director can become a power unto himself—as J. Edgar Hoover was for decades, severely damaging civil liberties.

There are limits to presidential power. The Constitution requires the Senate’s consent for appointment of the highest-level executive-branch officers—a critical check on presidential power. The Supreme Court has upheld statutory limits—although never involving criminal sanction—on the removal of certain kinds of officials. But the decision to fire principal executive-branch officers like the FBI director remains within the president’s discretion. A sitting president can also be subjected to civil lawsuits—but only in a carefully circumscribed fashion, to avoid impeding his ability to discharge the powers of his office.

The ultimate check on presidential power is impeachment. Even though Mr. Trump cannot have violated criminal law in dismissing Mr. Comey, if a majority of representatives believe he acted improperly or corruptly, they are free to impeach him. If two-thirds of senators agree, they can remove him from office. Congress would then be politically accountable for its action. Such is the genius of our Constitution’s checks and balances.

None of this is to suggest the president has absolute immunity from criminal obstruction-of-justice laws. He simply cannot be prosecuted for an otherwise lawful exercise of his constitutional powers. The cases of Richard Nixon and Bill Clinton —the latter impeached, and the former nearly so, for obstruction of justice—have contributed to today’s confusion. These were not criminal charges but articulations of “high crimes and misdemeanors,” the constitutional standard for impeachment.

And in neither case was the accusation based on the president’s exercise of his lawful constitutional powers. If a president authorizes the bribery of a witness to suppress truthful testimony, as Nixon was accused of doing, he can be said to have obstructed justice. Likewise if a president asks a potential witness to commit perjury in a judicial action having nothing to do with the exercise of his office, as Mr. Clinton was accused of doing.

Although neither man could have been prosecuted while in office without his consent, either could have been after leaving office. That’s why President Ford pardoned Nixon—to avoid the spectacle and poisonous political atmosphere of a criminal trial. In Mr. Trump’s case, by contrast, the president exercised the power to fire an executive-branch official whom he may dismiss for any reason, good or bad, or for no reason at all. To construe that as a crime would unravel America’s entire constitutional structure.

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/can-a-president-obstruct-justice-1512938781

Apple, the FBI and free speech

A court order that compels the iPhone-maker to write and then sign new code may violate the First Amendment.

by David B. Rivkin, Jr., and Andrew M. Grossman, in USA Today

February 19, 2016

It would be one thing if Apple could carry out a court order that it unlock an iPhone used by the San Bernardino terrorists simply by waving a magic wand. But encryption isn’t magic; the order requires Apple to write and digitally sign a security-degraded version of its iOS operating system. That raises serious First Amendment concerns because the order amounts to a government-compelled speech.

The FBI picked this fight to set a precedent. For years, it’s been locked in a “crypto war” with Silicon Valley over how to provide law enforcement access to users’ data. So far, Apple, Google, and other companies have rebuffed demands to implement government back doors that defeat encryption and other security measures, arguing that such bypasses weaken security and facilitate abuses by criminals, corporate spies and foreign governments.

Apparently unable to identify a true ticking-time-bomb scenario to bring to court, the FBI settled for the next best thing: obtaining encrypted data off the workplace phone of shooter Syed Farook. The phone’s encryption is keyed to a passcode, and Apple’s software erases data after ten incorrect passcode attempts. So the government, relying on an aggressive reading of the 1789 All Writs Act, obtained an order directing Apple to “bypass or disable the auto-erase function” and make it possible to cycle through all possible passcodes.

While the FBI has previously obtained warrants requiring Apple to extract unencrypted data from devices running older software, this appears to be the first time that it has sought to conscript a company to write new software to circumvent security features. If it prevails, such a precedent will govern future cases.

That makes it all the more important that the courts get the legal principles right this time around. Overlooked so far in this debate is the First Amendment’s prohibition on compelled speech. The Supreme Court has affirmed time and again that the right to free speech includes the right not only decide what to say but also what not to say. Representative cases have upheld the right of parade organizers to bar messages they disapprove and of public employees to refuse to subsidize unions’ political speech.

Computer code can be speech: no less than video games (which the Supreme Court found to be protected), code can convey ideas and even social messages. A new encryption algorithm or mathematical technique, for example, does not lose its character as speech merely because it is expressed in a computer language instead of English prose.

That’s not to say that all code is absolutely protected. But there’s a strong case to be made where code embodies deeply held views on issues of public policy and individual rights — such as the right to be free from government surveillance. Forcing a person to write code to crack his own software is little different from demanding that he endorse the principle of doing so.

And that leads to the most troubling aspect of the court order: it does, in fact, demand that Apple endorse the government’s views by requiring that it digitally sign the software so that it can run on an iPhone. A signature speaks volumes: agreement, endorsement, trust, obligation. Apple says all those things when it decides to sign a new version of its operating system.

The government can’t force a person to sign a petition and endorse a political view. But that is exactly what it demands here: to compel Apple to endorse a version of its own software that runs precisely counter to its values. At the very least, that is one more reason for a court to reject the government’s aggressive legal position in this case.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who is an adjunct scholar of the Cato Institute,, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2016/02/19/apple–iphone-fbi-san-barnardino-terrorism-free-speech-column/80569422/