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Monday, December 09, 2019 {{ new Date().getDay() }}

Seven Myths About Trump, Impeachment, And The Rule Of Law

Reprinted with permission from the Alliance For Justice blog Yeomans Work.

It’s time to take on some of the myths that permeate discussion of how to proceed in subjecting Donald Trump to the rule of law. This list is not exhaustive.

  1. The House needs to conduct oversight to obtain more facts to decide whether to open an impeachment inquiry. Nope – the Mueller report is more than enough. 1,000 former federal prosecutors. Trump resistance – diffuse investigations tied up in court. Unfocused. Public not following. By saying it needs to investigate further to know whether to open an inquiry, the majority minimizes the gravity of the facts already in the public record. It undermines any sense of urgency.
  2. Because a majority of the public does not support impeachment, the House should back off. No. The public doesn’t understand impeachment. Many think it means removal from office, rather than the first step in a two-part process. Also, Nixon’s poll numbers when the Watergate process started were much better than Trump’s are now. Nixon’s approval hovered in the mid-’60s and support for impeachment was in the teens. Trump is historically unpopular. His approval rating hovers around 40 percent and about the same percentage think he should be impeached. Also, the impeachment process can change minds. Very few people have plowed through the entire Mueller report. But, they will watch impeachment hearings on TV. If the House majority handles the process well, the portrait of Trump will be devastating.
  3. Impeachment inevitably will lead to exoneration in the Senate, which will boost Trump. Nothing is certain. If the House makes a referral, will McConnell even hold a trial, or will he treat the referral like the second coming of Merrick Garland? If he does convene a trial, it will consume a lot of Senate floor time that would otherwise be spent confirming judges who refuse to express their support for Brown v. Bd. of Education. Even if Trump is not removed, the trial will bombard the public with Trump’s misdeeds. Prof. Larry Tribe has suggested the possibility that the House could impeach Trump without making a referral to the Senate for a trial. The House could decide after all of the evidence is in whether it is worthwhile to send the case to the Senate. It could decide simply to let the impeachment stand without a trial.
  4. Trump wants to be impeached because he is at his strongest when he is fighting. Gimme a break. No president wants to go down in history as impeached (joining Andrew Johnson and Bill Clinton). Trump will not enjoy the House revelation of all of his high crimes and misdemeanors. Trump and his supporters speak obsessively about what a mistake it would be for Democrats to impeach him. Hmm. Should Democrats really embrace strategic advice from Trump, Fox News, and Republicans in Congress?
  5. Impeachment will give Trump something with which to stir up his base before the election. Seriously? Trump will fight House Democrats every step of the way, regardless of what they do. We have already seen his extreme reaction to all forms of oversight. His base is and will be stirred up. Moreover, Trump, his Attorney General, and his congressional allies will go on the offensive, attacking the FBI and DOJ over the initiation of the Mueller investigation. The field will be Trump’s unless House Democrats occupy it by educating the public about the validity of the Russia investigation from its origin to its finish. They must lay out not only the process but also the evidence and conclusions to show that the investigation was legitimate and catastrophic for Trump.
  6. It’s better to wait to see what happens in 2020. This mindset is reminiscent of Democrats’ attitude toward Mitch McConnell’s refusal to process Merrick Garland. Be patient, they advised. Hillary will be elected, Democrats will take the Senate and a Democratic nominee will fill the seat. Oops. Better to spend the time between now and the election battering Trump with an impeachment inquiry. A vigorous, focused impeachment inquiry complemented by a meaty legislative agenda is the Democrats’ most effective strategy. Failing to move forward on impeachment reflects an unnecessarily cautious mindset.
  7. Trump can be held accountable in 2021 after he leaves the office. No president has ever been prosecuted after leaving the office. President Ford pardoned Nixon before a decision whether to prosecute could be made. It has been one of our important norms that incoming administrations do not prosecute their predecessors. Turning the criminal law enforcement machinery loose on political opponents is a primary no-no. Trump may be different because he so clearly will have violated the law, but there will be a national debate about prosecuting him – and it will be a serious one. The outcome is not certain, which means it is not certain that Trump will be held accountable in any way.

Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previously served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including Acting Assistant Attorney General. 

Democrats! Stop Debating The Rules And Act, With Bold Creativity

When Attorney General Barr released his wounded version of Robert Mueller’s report, House Democrats, under the tight control of Nancy Pelosi, announced that they would begin a process of examining the contents of the report, in addition to conducting oversight in several other areas. They then left town on a ten-day recess. Those ten days drained a disturbing amount of fuel from our democracy. The Democrats’ tepid response allowed Barr and Trump to peddle the lie that Mueller had found no collusion and no obstruction.

Less fearful House Democrats could have responded to the report with the unmitigated outrage that its contents warranted. Bold Democrats might have broadcast a narrative that the report showed Trump’s stunning contempt for America. He and his campaign knew about and welcomed the Russian attack on the election. They failed to notify law enforcement and embraced the Russian assistance. Trump, then, even after the intelligence community briefed him, continued to deny that Russia was responsible. He covered up for the hostile foreign power that corrupted the election on his behalf.

Trump proceeded to obstruct justice in ways so obvious that over 900 former federal prosecutors have signed a letter saying he would be charged with multiple felonies if not for the OLC memo precluding indictment of a sitting president. Bottom line: the President sold out the country and committed serious crimes to conceal his perfidy.

Concerned about launching a polarizing process (because it would be a shame to disrupt the prevailing bipartisan harmony), Democratic leadership at first seemed to take impeachment off the table, only to let it creep back into the discussion as a possible step far down the investigative road. This posture drained Democratic efforts to convey the seriousness of the Mueller Report of all momentum. No rush, no big deal.

According to the Democratic leadership, it is more important to pass legislation for show. Plainly, the House needs to pass legislation to establish a Democratic agenda for the coming election, but make no mistake: that is all it is doing. Nothing of substance that the House passes will make it to the Senate floor on Mitch McConnell’s watch. The House can process its legislative agenda and hold a president to account simultaneously.

Democratic hesitation has given Trump the upper hand. The House Judiciary Committee is now in the position of trying to kick-start its presentation of the Mueller Report. But the Constitution awards the advantage of inertia to the executive in any investigation. That advantage is particularly acute in service of an executive who feels no obligation even to make a show of inter-branch comity. Trump’s posture of complete defiance toward all requests for testimony and documents should surprise nobody, least of all the House leadership.

Trump has successfully mired House Democrats in a process battle. This is a battle the House must fight and should win on the law, but it loses unless it focuses on Mueller’s description of the substance of Trump’s conduct. Only then – if it understands the harm he inflicted — will the public care that Trump is obstructing the investigation.

The Judiciary Committee is devoting its energy to a fight over Attorney General William Barr’s willingness to appear before the committee, and its entitlement to the unredacted Mueller Report and supporting evidence. Forget Barr. He does not need another platform from which to mislead.

The unredacted report is important, but the supporting evidence is more so. The fight to get both would be won if the committee moved to impeachment mode. Issues of grand jury secrecy and executive privilege wilt when confronted by the need for information for impeachment. But the committee will slog ahead demanding the material for oversight purposes, making the outcome in court less certain, particularly given Trump’s success in stocking the courts with supporters of expansive executive power, including his two Supreme Court appointees. Meanwhile, the clock will run.

The House must recapture the narrative. Its principal task now is to educate the public on Trump’s misdeeds. While a few among us get excited about battles over executive privilege, the interpretation of Federal Rule of Criminal Procedure 6(e), the unavailability of criminal contempt for executive branch officials, the complexities of civil contempt litigation, and the possibility of resurrecting the House’s ability to bypass courts and lock up recalcitrant witnesses pursuant to its inherent contempt authority, the vast majority of the public doesn’t give a damn. But they are more likely to listen to salacious details about the criminal and treacherous doings of their president and his inner circle.

The Judiciary Committee cannot sit back and wait for its process litigation to play out. It needs to think creatively about how to hold regular hearings highlighting various aspects of Mueller’s findings. It can feature experts on obstruction of justice who can walk through Trump’s misdeeds, on Russian intelligence, on the use of social media in elections, and on computer hacking.

The committee can start inviting – and subpoenaing, if necessary – witnesses who no longer work in government. It may have to start with more tangential witnesses to avoid protracted battles while it waits for the process to bring them higher-profile witnesses such as Robert Mueller, Don McGahn, Don Jr., Jared Kushner, Steve Bannon, Jeff Sessions and others. The Committee should not waste two consecutive business days without a hearing. The all-night reading of the Mueller report by House Democrats is a good try, but it smacks of desperation and a lack of real educational purpose. How many students will stay up all night to listen to the professor read from the textbook?

Meanwhile, commentators are distracted by a curious debate over whether we are in a constitutional crisis, as both Nancy Pelosi and Jerrold Nadler have said. We are in a period of anti-constitutional defiance by the President. That’s serious in the extreme and has exposed gaping deficiencies in our aging foundational document. But constitutional remedies remain, at least theoretically. Trump has yet to defy openly a court order and impeachment has not been tried. A true constitutional crisis arises only when constitutional remedies have failed and resort to extra-constitutional means is necessary. We’re not there – yet.

Bill Yeomans is the Senior Justice Fellow  at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previousy served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. 

To Confront Trump’s Betrayal, Democrats Must Act Urgently

Reprinted with permission from the Alliance For Justice blog Yeomans Work.

Attorney General Barr unveiled a heavily smudged version of Robert Mueller’s report twelve days ago. He misrepresented its content both in writing and at a press conference before its release. His false narrative – that the president had engaged in neither collusion nor obstruction – continues to resonate with much of the public. While journalists and experts who have read the 448-page report have rejected Barr’s take and marveled at his audacity, the burden rests with Congress to set the record straight. Congress responded initially with a face-plant, otherwise known as recess. It returns this week to try again.

The lack of urgency shown by Democrats in the House in response to the release of the redacted report is dissipating momentum to hold Trump accountable. The report is an astonishing blueprint for impeachment. It reaffirms Trump’s fundamental betrayal of the country. The report describes in riveting detail the “sweeping and systematic” attack on our electoral system by Russia. It finds that the Trump campaign knew of the attack and concluded that it would benefit Trump’s electoral prospects. The campaign failed to inform the FBI of Russian overtures. Even after the intelligence agencies informed Trump of the assault by Russia on his behalf, Trump denied Russia’s culpability. He continued to do so after he became president and had access to all of the intelligence on the attack. He stood next to Vladimir Putin before television cameras in Helsinki and told the world that he had no reason to doubt Putin’s assurance that Russia had not interfered in the election. Trump has consistently refused to accept his responsibility to lead the nation’s defense against ongoing and future attacks on our elections.

The remainder of the report should be read through that lens of unpatriotic self-interest. Trump obstructed Mueller’s investigation at every turn. He fired or tried to fire key officials, dangled pardons, attacked the investigators, and lied repeatedly. Though many of these episodes could be prosecuted if not for OLC’s opinion prohibiting indictment of a sitting president, their criminality is not a prerequisite for impeachment. In combination, they portray a man remarkably unfit for office, who is willing to abuse the public trust to serve his personal needs. The report portrays a weak president, who, for good reason, doubts the legitimacy of his election and will do anything to defend it.

Trump’s strategy now is to run out the clock. Democrats need to respond with urgency, but they are flirting with playing his game. Calling Barr to testify about the report is a poor play. Barr has already taken his opportunity to spin the report. He doesn’t merit another platform. The Committee’s recognition that it needed to have counsel question Barr once each member had exhausted her five minutes is encouraging. But Barr’s presence will give Republicans a chance to lob conspiracy theories that Barr will embrace. Barr’s reluctance to answer questions from counsel instead of the less prepared and more verbose members reveals that his true intent is not to be transparent, but to control the message.

Barr’s threat not to testify is a gift to House Democrats. They should denounce his unwillingness to cooperate, issue a subpoena for a much later date, and move on with their hearings into the meat of the findings in Mueller’s report, starting with Mueller himself.

Trump has vowed to fight every request for information and subpoena from Congress. This fight now spans at least six committees, covering such diverse issues as tax returns, the Emoluments Clauses, and security clearances. Trump’s total resistance strategy guarantees that the war will be fought on multiple fronts and each front will move slowly. This process will diffuse public focus and delay any reckoning.

Trump’s posture of resistance adds further fuel for impeachment. He is denying the fundamental role of Congress in overseeing the executive branch. His unwillingness to authorize testimony or the production of documents manifests contempt for Congress similar to the contempt that formed one of the proposed articles of impeachment against Richard Nixon.

Trump is pushing the House toward impeachment. His posture strengthens the case for bundling investigation of all of his obstructive and contemptuous conduct into hearings in a single forum that is focused on moving toward impeachment. While crystal balls are in short supply, the political argument against impeachment is not clear. Polling suggests that 37 percent of the general public and 60 percent of Democrats support the initiation of impeachment. Those numbers seem remarkably high considering that Barr’s spin as amplified by Trump has dominated the news. The polling was conducted before Trump’s full rejection of oversight.

People have not read – and will not read – the full report. Nor are they likely to pay close attention to diffuse oversight hearings in a variety of different committees. But they will pay attention to high-drama, focused hearings in a single committee that lay out the evidence in the report. Democrats need to trust that the public will react with disgust and horror to Trump’s astonishing abuse of the public trust. Recall that Republicans presented united opposition to Nixon’s impeachment and it wasn’t until two weeks before his resignation that a majority of the country first supported his removal from office.

True, the Senate is unlikely to vote for removal, but months of hearings in the House followed by a trial in the Senate will make every American aware of Trump’s betrayal and will force every Senator to defend their vote to keep Trump in office. That’s a pretty powerful lead into the 2020 election.

This process will not be easy. While Congress may have the legal right to demand that witnesses testify and the executive branch produce documents, the forces of time and inertia favor the president. The House must rely on contempt citations followed by civil enforcement litigation. The process will take time, but moving to impeachment will strengthen the House’s legal position in overcoming executive privilege and objections to the scope of its investigation. It will also help in obtaining grand jury material collected by Mueller.

The clock is ticking.

Bill Yeomans is the Senior Justice Fellow  at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previously served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. 

Withholding Mueller Evidence Could Provoke Impeachment Inquiry

Reprinted with permission from the Alliance For Justice blog Yeomans Work.

Attorney General Barr repeated in his testimony before House and Senate appropriators this week that he intends to redact grand jury material from the version of the Mueller Report that he sends to Congress. He also made clear that he does not intend to seek court permission to release grand jury testimony to Congress or the public.

That raises the interesting question of why the Department of Justice was demanding documents and hauling witnesses before the grand jury to testify regarding the president, if the Department of Justice knew 1) that its policy prevented it from bringing criminal charges against the president and 2) that it would not share the grand jury testimony with Congress, which has the power to impeach.

Was the special counsel off on a lark, abusing the power of the grand jury in a hollow exercise? Of course not. Barr’s position is untenable. Congress must receive the unredacted Mueller Report, including grand jury material.

Given Mueller’s previous indictments and all that we already know about the Trump campaign’s and administration’s dealings with Russians, as well as Trump’s public attempts to undermine the investigation, Congress has an obligation to obtain all of the fruits of Mueller’s investigation. Even before release of Mueller’s report, it has a constitutional obligation to investigate. That obligation will become irresistible once it obtains the report.

Indeed, both Mueller and Barr made congressional demands for the complete report and supporting material essential; Mueller by including in his report that his investigation did not exonerate Trump of obstruction of justice, and Barr by including Mueller’s language in his letter summarizing Mueller’s conclusions. Mueller alerted Congress that he had uncovered substantial evidence that warranted congressional attention. Congress would behave irresponsibly if it failed to respond with a demand for all of the evidence.

Barr’s unwillingness to seek court approval to release grand jury material is tellingly consistent with his longstanding hostility to Mueller’s investigation. The unsolicited 19-page memorandum that he shared with DOJ and Trump’s legal team before his nomination called the obstruction of justice inquiry “fatally misconceived.”

His unsurprising, ham-handed effort to override Mueller by exonerating Trump of obstructing justice gave Trump a helpful talking point. His conclusion, however, lacked legal effect, since DOJ would not indict Trump. Rather, its principal effect was to confirm his allegiance to the Trump team and to convince Congress that he does not deserve the benefit of the doubt.

Barr’s unwillingness to share grand jury material means that he intends to withhold massive amounts of evidence from Congress, in addition to redacting from the report’s narrative information extracted from that evidence. According to Barr, Mueller issued over 2800 subpoenas. Those subpoenas produced volumes of grand jury testimony and documents that Barr intends to conceal. Unless Barr adopts a very narrow view of what constitutes grand jury material – an unlikely prospect – the report sent to Congress will resemble Swiss cheese and the supporting material, if any, will be sliced thin.

Barr could petition Chief Judge Howell of the D.C. District Court, who supervised the grand jury, for an order lifting the secrecy of material generated by the grand jury. While Rule 6(e) of the Federal Rules of Criminal Procedure imposes secrecy on grand jury proceedings, it contains exceptions that should allow release in this matter. Several courts have held that courts also retain inherent authority to release grand jury material, but the D.C. Circuit effectively took that option away last week in an unrelated case. In doing so, however, it appeared to reaffirm that one of the 6(e) exceptions should apply here.

That exception allows release of material “preliminary to or in connection with a judicial proceeding.” Grand jury material related to Watergate, Ken Starr’s investigation of Clinton, and the prosecution of Judge Alcee Hastings was released to Congress pursuant, in part, to this exception. Courts determined that impeachment was a judicial proceeding.

Trump supporters will argue that the exception does not apply because Congress has not authorized a formal impeachment inquiry. Republicans see political advantage in goading the majority into a vote to authorize impeachment proceedings. The exception, however, explicitly contemplates that the material may be produced “preliminary to” a judicial proceeding. Congress needs the information to know whether it should launch a formal impeachment inquiry. Notably, the House had not opened a formal inquiry when Starr delivered his report to Congress. The House can strengthen its legal hand by stating openly – and truthfully — that it needs the information to determine whether an impeachment inquiry is warranted.

Since Barr will not petition for release of grand jury material, the House Judiciary Committee will have to subpoena the report. When Barr refuses to include grand jury material, the committee may hold him in contempt and file suit to enforce its contempt order. In the end, the House is likely to prevail. The judicial proceeding exception provides an avenue for the court to serve the enormous public interest in Congress seeing the full Mueller Report.

House Judiciary Committee chair Jerrold Nadler appears intent on serving a subpoena as soon as Barr produces a redacted report. He should, since the enforcement process will take time.

In a final effort to convince Trump that he is completely in the fold (and that he should not be trusted by Congress), Barr testified to his concern that the FBI had spied on Trump’s campaign. He plans to look into this Trump conspiracy theory. Trump wanted a protector as his Attorney General. He chose wisely.

Bill Yeomans is the Senior Justice Fellow  at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previously served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. 

On Obstruction Charge, Barr Delivers — For Trump

Reprinted with permission from the Alliance For Justice blog Yeomans Work.

It is generally understood that President Donald Trump picked William Barr to be attorney general because Barr had written a 19-page memo debunking Special Counsel Robert Mueller’s possible obstruction of justice case against Trump. Now Barr has performed the function for which Trump selected him. Barr’s decision to override Mueller’s refusal to exonerate Trump of obstruction of justice in the Russia probe plunked a giant thumb on the scales of justice and gave Trump the political message he so desperately craved: no collusion and no obstruction – complete exoneration. As commentators lavished praise on our institutions for allowing the Mueller investigation to reach its conclusion, Barr reignited cynicism about the apolitical nature of law enforcement.

Barr acknowledged in his letter that Mueller had concluded there was significant evidence of obstruction of justice, but had decided not to make a prosecution-style decision. That sounds like a punt by Mueller, but I think it is more properly read as an acknowledgment that the Department of Justice would not indict a sitting president, so there was no need to decide whether DOJ could prosecute. Rather, Mueller recognized that the ultimate determination regarding consequences for obstruction rests with Congress. He, therefore, laid out the evidence, for and against, for Congress’s enlightenment.

Barr, however, interpreted Mueller’s failure to reach a conclusion as passing the final decision to the attorney general. That’s an odd determination unless Mueller expressly asked Barr to make the call. We have no indication that he did so. Given DOJ policy against indicting a sitting president, there is no need for DOJ to decide whether the president could be prosecuted. The only call is for Congress to make: whether the president should be impeached — and impeachment does not require that the president have been adjudged guilty of a crime.

Barr’s intervention appears nakedly political. His move strikes at the very reason we have special counsels. They are necessary for the investigation and prosecution of high-ranking government officials. The notion is that the potential for actual partiality or the appearance of partiality is too great when government officials investigate their own. The idea is to remove these investigations from the political chain of command to the greatest extent possible. Barr’s refusal to accept Mueller’s conclusion is precisely the kind of political intervention the special counsel system is designed to avoid. The Mueller report now goes to Congress with a cover letter from the attorney general stating that Trump did not commit the crime of obstruction of justice, rather than simply stating that there exists substantial evidence of obstruction of justice and laying out the evidence.

Obviously, it is essential that Congress and the public see Mueller’s report as quickly as possible. While Mueller may not have pursued a conspiracy indictment for illegal cooperation with Russia, Congress and the public still need to see whether the investigation uncovered dealings between Russia and the Trump campaign. To state the obvious, our standard for evaluating a president must demand more than the fact that he has not been convicted of crimes.

Regarding obstruction, Mueller obviously thought there was troubling evidence against the president. That should be Congress’s starting point, rather than Barr’s gratuitous overriding of Mueller. Congress will need the full report and essential supporting documents to acquit its constitutional obligation of determining whether to commence impeachment proceedings. It will also need to hear directly from Mueller and Barr.

Congress has at least three hurdles to surmount to get the report, but it must succeed. First, the report must be scrubbed to remove classified material or information that might affect ongoing investigations. The report also likely contains grand jury material. Grand jury material is secret and its disclosure can be a felony. It can be made public by court order, but DOJ or Congress will have to seek one and the final decision whether the need for the information surmounts the interest in grand jury secrecy rests with the court.

Finally, the president can assert executive privilege over communications with his close advisors and their communications with others designed to obtain information to advise the president. Executive privilege can also extend to matters involving national security and law enforcement. While executive privilege yielded to a criminal trial subpoena for the Watergate tapes, and should yield if Congress is seeking the evidence as part of an impeachment inquiry, the president may choose to litigate, arguing that he must protect the privilege for future chief executives. Prior to the report’s completion, there was bipartisan support for its release, including from the president. It will be disappointing if the president and his supporters develop a new affection for opacity.

Even with a cooperative executive branch, Mueller’s report will not reach Congress or the public without some delay. A recalcitrant executive can extend the delay. The task for Congress and the public is to ramp up the pressure to share the full report and supporting materials as quickly as possible. After all, according to Trump, he has been cleared. He should want the public to see the evidence.

Bill Yeomans is the Senior Justice Fellow  at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previousy served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. 

 

 

Executive Privilege: Is Impeachment The Only Way To The Truth?

Reprinted with permission from the Alliance For Justice blog Yeomans Work.

Democratic leaders, including Nancy Pelosi, have discouraged movement toward impeachment for now. Their rationale has been twofold: the House of Representatives’ time and energy would be better spent pursuing substantive legislation and, in any event, House committees will conduct oversight investigations that will shine devastating light on the operation of the Trump administration. Both rationales make sense for the short-term political benefits they yield, but, in the end, both blink at reality.

The House should, of course, develop and pass legislation that addresses the major problems facing the country. H.R. 1 is an excellent start. It should move on to a revitalized Voting Rights Act, health care, immigration, climate change, and other elements of the Democratic agenda. But, it will do so in full knowledge that the Senate will not take up any but the least controversial of these enactments. Should substantive legislation miraculously slip through, Trump will veto it. The effort is still important to show the public what Democrats would do with control of the government, but it will not be an effort that consumes all of the House’s resources. The House can and should legislate and investigate simultaneously. This is the constitutional version of walking and chewing gum at the same time.

While it assuredly makes sense to begin the investigative process by authorizing multiple committees to launch oversight inquiries, the limits of that approach became glaringly obvious this week when the White House made clear it would stonewall requests for documents. The House Judiciary Committee’s deadline for compliance with its voluminous document requests passed quietly. Elijah Cummings, Chair of the House Committee on Oversight and Reform, voiced his frustration in a Washington Post op-ed, complaining that he had sent a dozen letters to the administration, which had failed to produce a single document or witness in response. Unidentified administration members confirmed that the White House planned to resist almost all requests.

In any administration, congressional oversight is a complicated dance. It is one of the core constitutional functions of Congress. Administrations generally recognize that there is some obligation and some advantage to cooperating up to a point. Impasses generally are resolved through negotiation, but many of the usual forces pushing the parties toward resolution do not exist between the Trump administration and the House.

Initially, the general sense of obligation for governing responsibly that animates the vast majority of government actors is alien to this president. Self-enrichment, adulation by his base, and self-protection leave no room in Trump for concern about responsible governance. Nor does Trump fear political embarrassment from non-cooperation. He has built his political brand around hostility to all who oppose him. That now includes the Democratic House, and his supporters revel in the fight.

Nor does Trump fear that the House will exact a price by withholding its support or legislating in opposition to him. He does not have a significant legislative agenda and does not expect the House to support any of his core goals. His emergency declaration to produce wall funding demonstrated his disregard for the House and the benefit he sees in opposing it. He is confident that between Mitch McConnell refusing to allow votes on House legislation and his veto pen, the House cannot harm him legislatively. It should, therefore, surprise no one that the administration will engage in scorched-earth resistance to congressional efforts to shine light into its inner workings.

Unfortunately, stonewalling can work. The cumbersomeness of congressional compulsion can allow a recalcitrant administration to run out the clock. If Trump ignores document or witness requests, congressional committees will feel obligated to engage in some negotiation.

When that fails, the committee can issue a subpoena, which imposes a legal requirement on the witness to appear. A witness can continue to resist the committee, likely asserting that executive privilege protects her testimony. The committee can vote to hold the witness in contempt. The House can then authorize a referral to the U.S. Attorney for the District of Columbia who can seek to indict the witness for criminal contempt of congress.  The U.S. attorney, who works for the Department of Justice, will not seek an indictment because it will already have signed off on the lawfulness of the assertion of executive privilege. The committee can then seek authorization to file a civil contempt action in federal district court.

Civil litigation can be painfully slow. The House initiated civil contempt proceedings against Harriet Miers and Karl Rove in 2007 after they asserted executive privilege in refusing even to appear at a House Judiciary Committee hearing to address the firings of U.S. attorneys. The district court eventually held they had to appear, but could object to answering individual questions. They finally agreed to a closed-door interview two months after the Bush administration left town.

Importantly for the proceedings that may come, executive privilege is a real thing. The Supreme Court recognized its constitutional grounding in U.S. v. Nixon, in which it held that the privilege was qualified and was overcome by the need for subpoenaed evidence in a criminal prosecution.  Since then, the Supreme Court has stayed away, but the D.C. Circuit has discussed the scope of the privilege in a couple of significant opinions. We know that the privilege applies most powerfully to presidential communications, including those between the president and his close advisors and between those advisors and others they contact to prepare advice for the president. A great deal of the information the House is seeking will fall within that bubble.

We also know that the needs of a criminal investigation may overcome the privilege, but it is less clear that generalized congressional oversight will, in most instances, provide a sufficient interest to puncture the privilege. The needs of a specialized and focused impeachment inquiry, however, provide a justification at least as compelling as a criminal investigation and should defeat the privilege.

Developments in the Mueller investigation, whether further indictments or the release of a report, may affect the course of congressional investigations. As things now stand, however, the Trump administration appears intent on stonewalling to exhaust the clock. It can be expected to assert executive privilege, forcing Congress to litigate unresolved questions about the weight of general oversight in piercing the privilege. The House would greatly increase its likelihood of prevailing in those disputes, and of exposing more quickly the misdeeds of the Trump administration, if it were conducting an impeachment inquiry.

Bill Yeomans is the Senior Justice Fellow  at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previousy served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. 

 

Justice Department Precedents Support Release Of The ‘Mueller Report’

Reprinted with permission from the Alliance For Justice blog Yeomans Work.

My former Department of Justice colleague, Barry Kowalski, and I have been dismayed by reports that Attorney General William Barr might rely on Justice Department practice to suppress the Mueller report. Barry handled some of the Department’s most sensitive matters, including the prosecution of police officers who beat Rodney King and a reinvestigation of the assassination of Dr. Martin Luther King, Jr. We know from our combined 57 years in the Civil Rights Division (CRT) that the Division’s practice provides all of the precedent Barr needs to release fully Mueller’s product.

Speculation abounds that Special Counsel Robert Mueller will produce a report imminently.  Even if he does, it will be a confidential report to Attorney General Barr, who will then decide how much of the substance and supporting material of Mueller’s investigation to release to Congress and the public.  During his confirmation testimony, Barr cautioned that the combination of the Special Counsel regulations and DOJ practice of not commenting on individuals who will not be charged substantially limits what he can reveal about the substance of Mueller’s investigation.  In fact, the Special Counsel regulations establish only the minimum that the attorney general must reveal, and DOJ practice fully supports sharing almost all of the contents of the report and supporting material with Congress and the public.  The practice of CRT provides ample precedent for the attorney general to release as much information from the Mueller investigation as will serve the public interest.

Many criminal civil rights investigations involve police shootings or racially motivated violence that can tear communities apart.  As a result, CRT developed a practice of writing comprehensive memoranda when closing high profile investigations without charges. These publicly available memoranda recognize the importance of assuring affected communities that a thorough investigation has been conducted and has failed to identify sufficient evidence to sustain a prosecution.

A familiar example is the 86-page memorandum detailing the investigation into the shooting of Michael Brown in Ferguson, Missouri in August 2014.  The shooting sparked civil unrest. The release of the Ferguson report, containing detailed descriptions of witness statements and forensic evidence, showed the community that the federal government had fully investigated. This practice, which has been followed repeatedly in matters involving controversial police shootings, breaks with DOJ’s standard approach of releasing little or no information at the conclusion of an investigation when no criminal charges are brought. The compelling public interest in assuring traumatized communities that justice is being pursued mandates CRT’s more transparent practice.

A second type of investigation also demonstrates CRT’s practice of disseminating the details of investigations to serve the public interest.  It involves matters of substantial public interest that traditionally fall within the department’s jurisdiction, but are unlikely to be prosecuted because the statute of limitations has run, participants and witnesses have died, or other factors have intervened.  The most prominent example of this type of investigation is the Civil Rights Division’s reinvestigation in 1998 of then-new allegations regarding the assassination of Dr. Martin Luther King, Jr.

The Office of Legal Counsel, relying on a 1976 opinion by then-Assistant Attorney General Antonin Scalia authorizing further investigation of the assassination of President Kennedy, concluded that the department had authority “to conduct an investigation the only purpose of which is to ‘detect’ the commission of a federal crime,” regardless of whether prosecution was possible.  Relying upon the OLC opinion, the Civil Rights Division investigated and issued a detailed report of its findings.

In recent years, Congress has also authorized and CRT has investigated unsolved civil rights matters occurring before 1980.  CRT has issued detailed reports to Congress and the public on over 100 of these cold cases. Because of the age of these cases, there is little expectation that prosecutions will ensue. The investigations are designed to bring some closure to families and others personally affected by the crimes. They also serve the public’s need to know that these events have been thoroughly investigated and to understand as much as possible what happened.

The OLC opinions undercut Barr’s suggestion that the failure to pursue criminal charges against President Trump and his associates will prevent disclosure of details of the investigation.  The Kennedy and King assassination reinvestigations demonstrate that it is appropriate for DOJ to investigate to allay significant public concerns and to report details of the investigation to the public, even though criminal prosecution may be impossible. The public interest in disclosure of possibly illegal conduct by a sitting President is at least as great as the public interest legitimately served by disclosures made following CRT investigations over the years.

Attorney General Barr, therefore, has longstanding Department of Justice policy and practice to draw on in sharing the details of Mueller’s investigation. The discretion rests entirely with him to do so. Hurdles remain regarding the disclosure of grand jury material, classified information, and executive privilege, but they are surmountable.

Although grand jury material is protected from disclosure by Federal Rule of Criminal Procedure 6(e), courts approved its release to Congress for impeachment purposes during Watergate and the impeachments of President Clinton and Judge Alcee Hastings. It has been and can be redacted from a public report. Classified information is routinely shared with Congress and can also be redacted from any public version of a report. United States v. Nixon provides strong authority for overcoming claims of executive privilege. The Supreme Court held that executive privilege could not block production of Watergate tapes in response to a criminal trial subpoena. The compelling interest in producing evidence that may be relevant to impeach a president should also overcome the privilege.

Much of the country believes Donald Trump has committed crimes and impeachable acts, while his core supporters accept his claim that the special counsel investigation is a witch hunt. Under these circumstances, Attorney General Barr must elevate the public interest over any reluctance to discuss matters that will not be prosecuted. Public interest in police shootings, civil rights era crimes, and assassination investigations warrants broad disclosure of information to bolster public confidence that DOJ reached proper conclusions following thorough investigation. Similarly, the evidence addressing concerns that the President, his campaign, or administration have conspired with a hostile foreign power or obstructed investigation of that conduct also merits broad public disclosure. According to DOJ practice, Barr has discretion to reveal the details of Mueller’s investigation.  He should exercise it.

Bill Yeomans is the Senior Justice Fellow  at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previousy served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. 

Barr Thinks DOJ Practice Allows Him to Bury Mueller’s Report: He’s Wrong

Reprinted with permission from the Alliance For Justice blog Yeomans Work.

William Barr filed his written answers to senators’ questions this week shortly before the Senate Judiciary Committee postponed until February 7 the vote on his confirmation as attorney general. The answers did nothing to soften his harsh views on criminal justice, civil rights, and reproductive choice. Nor do they allay concerns about his handling of the Mueller investigation. Rather, his answers suggest that we will never know whether career ethics officials advise him to recuse himself from the Mueller investigation. Further, while promising transparency, Barr’s answers clear a path for burying Mueller’s final product.

At his hearing, Barr stated that he would consult career ethics officials regarding recusal from oversight of the Mueller investigation, but refused to commit to following their advice, as previous nominees, including Jeff Sessions, had done. He insisted that he would make his own determination, regardless what ethics officials said. In his written answers, he refused to budge and added that he would not commit to making officials’ advice public. The public, therefore, likely will never know whether ethics officials told him to recuse himself, though the public likely will hear if officials do not urge recusal. In any event, Barr appears firmly committed to supervising Mueller.

Regarding release of any Mueller report, Barr repeated his statement that his “goal will be to provide as much transparency as I can consistent with the law, including the regulations discussed above, and the Department’s longstanding practices and policies.” In context, this reasonable-sounding language provides the rationale for a spare notification to Congress that the special counsel investigation is complete and little more.

The regulations that Barr committed to follow require only that the attorney general notify Congress when the special counsel’s investigation is closed. The required content for the notification is an explanation of any instance in which the attorney general overrode a proposed action of the special counsel as “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Such a notification is unlikely to contain extensive discussion of the special counsel’s findings and conclusions. While the special counsel regulation states that the attorney general may release “these reports” to the public if he concludes it is in the public interest to do so, Barr made clear that he reads the regulation as authorizing release only of the attorney general’s notification to Congress and not the underlying special counsel report.

Moreover, in referring to “the Department’s longstanding practices and policies,” Barr noted that “the Justice Manual, sec. 9-27.760, cautions prosecutors to be sensitive to the privacy and reputational interests of uncharged third parties. It is also my understanding that it is Department policy and practice not to criticize individuals for conduct that does not warrant prosecution.” Barr also repeated his view that the OLC opinion of 2000, which holds that a sitting president cannot be indicted, remains controlling. Taken at face value, Barr’s statement means that because Trump cannot be indicted, Barr will be sensitive to Trump’s privacy and reputational interests and will not criticize him, since his conduct cannot warrant prosecution. So much for transparency.

DOJ policy against commenting on the conduct of people who are not indicted is an important safeguard. Jim Comey’s criticism of Hillary Clinton while announcing she would not be charged was an egregious breach. The FBI recommended against charges because it found insufficient evidence to indict and Comey (if he should have spoken at all) should have stopped there. If, however, Mueller finds sufficient evidence that Trump engaged in conduct for which he would be prosecuted but for his office, the public interest in learning the details will be overwhelming and must overcome traditional DOJ practice. The public has a need to know – as we head into another election cycle –whether its top elected official has engaged in otherwise criminal conduct. And Congress, which conducts impeachment, the constitutionally designated alternative to criminal indictment, must receive the evidence.

DOJ practice is flexible if the public interest requires. While most of DOJ guards closely the fruits of criminal investigations that do not produce charges, the Civil Rights Division traditionally has been more forthcoming. It routinely accommodates the public interest by making public its memoranda closing criminal civil rights investigations, making limited redactions to protect privacy and grand jury secrecy. Civil rights crimes – whether a police use of force or private violence motivated by race, religion, or sexual orientation – often leave communities wary and on edge. Releasing the fruits of a thorough investigation can help to ease tensions and promote healing. The Mueller investigation demands at least the same flexibility.

After Sen. Whitehouse raised concern this week that Barr’s testimony left open the possibility that Barr could invoke DOJ practice and claims of privilege to limit the content of his report, Chairman Graham agreed to seek further clarification from Barr. Senators Blumenthal and Grassley also co-sponsored legislation to require that special counsels submit full reports to Congress. Mitch McConnell almost certainly will bar the door to the senate floor if he sees this bill coming, just as he has in the face of legislation to protect Mueller. But, members should make him do it.

Senators must demand that Barr put aside traditional DOJ practice and promise to exceed the minimum reporting requirements of the special counsel regulations. They should demand a commitment to share detailed reporting from Mueller. The country is in an extraordinary posture with an administration subject to substantial criminal and counter-intelligence investigations. Falling back on regulations and traditional practices that were not formulated with this crisis in mind will disserve the public and thwart the proper functioning of our constitutional structure. Barr’s failure to acknowledge this crisis will be one more reason to deny him confirmation as attorney general.

Bill Yeomans is the Senior Justice Fellow  at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previousy served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General.