Month: June 2019

There’s something about Trump that frequently causes his critics to lose all sense of rationality and perspective. This phenomenon, known as “Trump derangement syndrome,” regularly afflicts his political opponents and much of the media. It also exacts a heavy toll on liberal law professors, particularly those who call Harvard home. A striking example is the recent proposal by Laurence Tribe for the House of Representatives to declare Trump guilty of impeachable offenses without going through the nuisance of a constitutionally-prescribed Senate trial.   

Trump’s opponents almost universally believe he is guilty of obstruction of justice in connection with the Russia investigation and perhaps other impeachable “high crimes and misdemeanors.” If so, their recourse under the Constitution is for the House of Representatives to adopt articles of impeachment and submit them to the Senate for trial. The House’s role is like that of a grand jury—to investigate and indict (impeach) the president if it finds the charges well founded. House members then act as prosecutors and the Senate constitutes the jury. Impeachment requires only a majority vote in the House; conviction requires a two-thirds Senate vote.

But House Democrats face a dilemma. While they may have the votes to impeach Trump, there’s no chance the Senate would convict him. Another complication is that a majority of American voters oppose impeachment; thus, impeaching Trump could be both futile and politically costly. Coming to the rescue, Tribe offers a solution to this dilemma: the House can simply bypass a Senate trial and issue its own “verdict” declaring Trump guilty of impeachable offenses. This guilty verdict would not remove Trump from office or impose an actual legal penalty on him. (Doing so would constitute a patently unconstitutional bill of attainder.) However, Tribe assures that it would be “deliberately stigmatizing” by branding him with “a ‘Scarlet I’ that Trump would have to take with him into his reelection campaign.”      

Tribe asserts, without much explanation, that the impeachment process provided for in the Constitution whereby the House acts as investigator and prosecutor while the Senate serves as the jury is “misguided” and “old-school.” He complains that a Senate verdict in Trump’s case would be a politically driven “whitewash.” Under his proposal, the House need not “play the Senate’s corrupt game.” Rather, it can act as combined investigator, prosecutor, judge and jury.

Apart from rewriting the Constitution’s impeachment provisions, Tribe conveniently ignores the obvious fact that politics undoubtedly would drive the House’s actions just as much as the Senate’s. He blithely assumes that Trump would have “ample opportunity” to defend himself in the House and even notes the “possibility” that the House might “unexpectedly” exonerate him. However, it is inconceivable that Trump would get objective and unbiased treatment from the kangaroo court process Tribe proposes. The vast majority of Trump’s would-be House Democratic jurors already presume his guilt, as does Tribe.

In sum, Tribe’s proposal flouts the Constitution as well as fundamental considerations of due process and fairness. It’s a sad commentary that animus toward Trump can cause a distinguished constitutional law professor to abandon so readily so many basic American legal values.

While Tribe’s proposal fortunately hasn’t gained much traction so far, it does have the enthusiastic endorsement of another liberal lawyer and virulent Trump critic, Harry Litman. Litman praises Tribe’s proposal as providing “an outlet for House members to respond to the extraordinary gravity of the president’s assault on the rule of law” as well as “some sort of reckoning for Trump’s outrages.” Litman illustrates another of the proposal’s negative features—its elitist, anti-democratic nature. He emphasizes that it affords a way to avoid the “intolerable” (to elites) alternative favored by a majority of Americans of leaving Trump’s fate to the voters in 2020.

Trump has been shattering norms of presidential behavior from the outset of his term. Instead of responding by upholding our bedrock legal and ethical values, however, his opponents too often choose to compete with him in a contest to undermine them.        

Breaking two years of silence, Special Counsel Robert Mueller made a public statement at the Justice Department on May 29. With the investigation complete, he announced his resignation and his intent to say nothing more concerning his report, including commenting on “any additional conclusions or hypotheticals about the President.” He stated that the report “speaks for itself” and “is my testimony.” He emphasized that, if push came to shove, “[a]ny testimony from this office would not go beyond our report.”

Mueller briefly addressed the approach he took to the investigation and his conclusions. Nothing he said went beyond the four corners of his written report. However, because of the points he chose to emphasize or perhaps because he was speaking at all, politicians and the media widely viewed his comments as a revelation. What they revealed was subject to debate. As one pundit put it:

“At long last, the sphinx of Washington spoke on Wednesday, and here is what President Trump heard: ‘Case closed.’ Here is what the president’s adversaries heard: ‘Time to impeach.’”       

If keeping score, Trump’s adversaries generally thought they heard more to their liking than did Trump and his supporters. The latter turned up the rhetoric vilifying Mueller. The former claimed that Mueller clearly meant to convey the following:

• He believes that Trump obstructed justice and would have said so but for a legal opinion by the Justice Department’s Office of Legal Counsel (OLC) holding that a sitting President can’t be indicted.
• He invited Congress to impeach Trump.
• His remarks confirmed the almost universal (albeit unfounded) view among Trump opponents that Attorney General Barr engaged in serious misrepresentations or even outright lies in characterizing the report.

Mueller said none of these things. He did restate the report’s conclusion that charging Trump with a crime was “not an option” under his interpretation of the OLC opinion. He also reiterated the report’s conclusion that he lacked “confidence that the President clearly did not commit a crime,” thereby again refuting Trump’s (but not Barr’s) claim that the investigation “exonerated” him on obstruction. However, neither Mueller nor the report said he would have accused Trump of obstruction but for the OLC opinion. Indeed, Barr asserted that Mueller told him repeatedly that this was not Mueller’s position. In a joint statement issued after Mueller spoke on May 29, Mueller’s office and the Justice Department affirmed Barr’s account and said that Mueller had not contradicted it.

Mueller’s statement did not mention impeachment. He did cite a passage from the OLC opinion that obviously referred to it. However, this hardly constitutes an impeachment invitation by Mueller as Trump opponents claim. Indeed, it’s unlikely he meant to encourage impeachment. Mueller would be a key witness in any impeachment proceeding, but the one thing he made abundantly clear in his statement was that he wanted no part of it.

With regard to Barr, the joint statement referenced above puts to rest the notion that Mueller contradicted him on the point about the OLC opinion. Mueller also said in his statement that he did not question Barr’s good faith in declining to release the introduction and executive summaries of the report in advance of the full redacted version. Some in the media assert that by affirming Barr’s good faith on this point, Mueller implicitly questioned his good faith on other, unspecified points. The basis for this  assertion is unclear.

In sum, Mueller left things where they stood before he spoke—in the same state of politically polarized confusion over his strange and ambiguous treatment of the obstruction question that has existed since the report was issued. The only real news from the May 29 statement was his intent to walk away from this mess. It’s hard to imagine that he will get away with that.

There’s a broad consensus on the left that, although Mueller was unwilling to say so, the facts and analysis laid out in his report demonstrate that Trump obstructed justice. This will almost surely lead to at least exploratory Congressional hearings on impeachment. How can Mueller justify refusing to testify fully about his investigation and report? His work is of great public interest. He conducted it as a public servant, along with a number of other government employees, at a cost to the taxpayers likely to exceed $30 million. Clearly, he owes Congress and the public his unconditional cooperation. Even if impeachment proceedings to do not ensue, Mueller needs to forthrightly address the many substantive ambiguities in his report. If he doesn’t, others surely will. There were immediate rumblings of discontent from Mueller staffers about Barr’s handling of the report; presumably, someone on Mueller’s staff leaked his March 27 letter to Barr on this subject. The leaking will only intensify and produce unverifiable, diverse takes on the meaning of the report unless Mueller speaks up officially.

In the unlikely event Mueller somehow avoids elaborating on the substance of the report, he still has a lot of explaining to do about his approach to the job. For example:

Mueller’s bosses at the Justice Department expressed surprise at his position that the OLC opinion prevented him from making a traditional prosecutorial decision on Trump and obstruction; they obviously disagreed with his interpretation. As a Justice Department employee, Mueller rightly considered himself bound by the OLC opinion but why didn’t he feel equally bound to defer to his superiors’ controlling interpretation of the opinion?

Mueller apparently believed that the only decision he could make regarding Trump and obstruction was whether to “exonerate” him. What was the source of his authority to decide whether Trump merited “exoneration” and what legal standards applied in making this determination?

Once Mueller ruled out “exoneration,” the only apparent purpose of the investigation as it pertained to possible obstruction by Trump was to develop and preserve evidence for potential future use. Why then does the report include extensive analyses of the facts and law applying to an obstruction case against Trump?  Why not simply compile and catalogue the relevant evidence without issuing a lengthy report (volume II) that gratuitously explores the legal and evidentiary pros and cons of prosecuting him when that was not an option to consider? Doesn’t this create the very kind of unfairness that Mueller claimed he wanted to avoid by not making a prosecutorial decision?

The OLC opinion had the same impact on Mueller’s consideration of whether Trump committed a crime relating to Russian election interference (volume I of the report) as it did on obstruction. Yet Mueller made what looks like a traditional prosecutorial decision on the election interference question, finding “insufficient evidence” of a crime involving Trump with no mention of “exoneration.” Why such strikingly different approaches to these two questions?