When at Times the Mob Is Swayed

by Burt Neuborne

  In United States v. Nixon, four Republican justices joined with four Democratic colleagues to reject that argument unanimously (Justice Rehnquist did not participate). The justices noted, first, that the evidence was demanded on behalf of a judicial body, a petit (criminal) jury; and second, that unless and until the Justice Department regulations were changed, the special prosecutor was authorized to demand the tapes on behalf of the criminal jury. If the special prosecutor had power to force the president to turn over the Watergate tapes to a criminal jury, Robert Mueller, as special counsel, almost certainly had power to force the president—just as he forced the president’s lawyer—to turn over evidence to a grand jury. What we don’t know is whether Mueller used all of his power.

  It’s also likely that, based on Supreme Court precedent established during the extended investigation into President Bill Clinton’s sex life, Mueller had the power to force the president to testify under oath before a grand jury, or, in the alternative, to submit to a personal interview with Mueller’s staff, under oath. In 1994, after his election as president, Bill Clinton was sued by Paula Jones for allegedly sexually harassing her while he was governor of Arkansas. Clinton argued that, as a sitting president, he could not be sued for damages in a federal court until he left office. He demanded dismissal of the Jones lawsuit, or at worst a stay of all judicial proceedings, including pretrial discovery under oath, until his term of office expired. In 1997, after Clinton’s reelection, five Republican justices joined four Democratic colleagues in unanimously rejecting the president’s claim to be above the law, even temporarily.

  No separation-of-powers bar exists, ruled the Supreme Court, to a private lawsuit for damages against a sitting president in federal court for alleged actions having nothing to do with his official duties, especially when the allegedly unlawful conduct occurred before he became president. Jones’s lawyers, seeking to bolster her story, then sought to question Clinton under oath about other alleged sexual escapades, especially his relationship with a White House intern, Monica Lewinsky. When Clinton falsely denied any sexual impropriety, he was charged with contempt of court for lying under oath and was eventually forced to resign from the Supreme Court bar.

  After Jones’s lawsuit was settled for $850,000, an independent counsel outside the ambit of the Justice Department launched a criminal investigation into Clinton’s alleged perjury and obstruction of justice, requiring the president to testify under oath before a grand jury. Based on conflicts between the president’s grand jury testimony and his testimony in the Jones case, the independent counsel recommended impeachment proceedings. The Republican-controlled House voted a presidential bill of impeachment for only the second time in the nation’s history. President Andrew Johnson was impeached in 1868 and acquitted in the Senate by a single vote. In 1973 President Nixon resigned to avoid an impeachment vote.

  The Republican-controlled Senate failed to convict President Clinton by the required two-thirds vote, with fifty Republican senators voting to remove the president from office for obstruction of justice and forty-five Democrats, joined by five Republicans, voting to acquit.

  So, based on Clinton v. Jones and its aftermath, Mueller could almost certainly have forced President Trump to testify before a grand jury or be questioned under oath by the special counsel about his behavior before he became president and his private behavior after he took office.

  The Clinton precedent is complicated, though, by the Supreme Court’s earlier decision in Nixon v. Fitzgerald, where five Republican justices voted to grant Richard Nixon complete immunity from suits in federal court seeking damages for official actions taken in the discharge of his duties as president. Three Democratic justices and one Republican justice dissented. Recall that Nixon was immunized from criminal liability by President Ford’s pardon.

  Connecting the Supreme Court dots, illegal conduct prior to Trump’s inauguration, such as alleged collusion with Russian agents or otherwise knowingly participating in the Russian scam, was undoubtedly fair game for criminal investigation by the Special Counsel. But what about illegal post-election activity allegedly engaged in by the president as part of the discharge of his official duties, such as firing James Comey in an effort to shut down the investigation or unlawfully paying hush money to conceal criminal activity? Since, under Nixon v. Fitzgerald, post-election official conduct would be immune from civil damages, it may well be immune from criminal sanctions also.

  The outcome in the Supreme Court would turn on whether the Court’s reasoning in Fitzgerald that a president should not be required to worry about potential damage liability when he performs his official acts carries over to a president not having to worry about being punished for violating the criminal law. It would, I believe, be an appalling mistake to place the president above the criminal law—but then, I’m a Democrat.

  Mueller followed the lead of the Clinton independent counsel by issuing a comprehensive report more than four hundred pages long to the attorney general setting forth the facts. Mueller declined to recommend criminal charges against the president or his cronies based on collusion with Russian intelligence agents. He was, however, unable to decide whether to recommend the indictment of the president for criminally obstructing the investigation. The attorney general, William Barr, a hand-picked political appointee of the president who had campaigned for the office by writing a memorandum attacking the Mueller investigation, promptly issued a four-page “summary” of the four-hundred page report purporting to exonerate his boss. Much now turns on the courage and political wisdom of members of Congress who are duty-bound to see that the entire Mueller report sees the light of day. That’s just what happened to the independent counsel’s report on Bill Clinton. The same ground rules should govern Donald Trump. Once the Mueller report is public, the voters can decide whether President Trump deserves condemnation and punishment. The question is not whether Trump is a felon. It is whether he is a liar, a cheat, and a willing beneficiary of a massive campaign contribution from the KGB.

  It turns out that Robert Mueller’s failure to recommend criminal prosecution of President Trump rested on two flimsy criminal law loopholes, neither of which should exist. Loophole 1—I call it the “cooperation/conspiracy” loophole—purports to exempt unscrupulous people from criminal liability for encouraging and knowingly benefiting from someone else’s crimes, unless a prosecutor can prove that a deal existed between the crook and the knowing beneficiary. Loophole 2 purports to allow a sitting president to literally get away with murder and escape criminal prosecution because, according to the Justice Department, a sitting president cannot be indicted.

  I think that the special counsel was wrong about both loopholes. Based on the facts laid out in the Mueller report, the Trump campaign could—and should—have been indicted for encouraging Russian intelligence agents to break the law in order to benefit from their clearly illegal acts; and Trump himself could—and should—have been indicted for (or at least formally accused of) criminally obstructing the Russian investigation.

  Let’s look first at Loophole 1. The Mueller report does a brilliant job of describing the existence of massive Russian intelligence operations designed to hijack the 2016 presidential election for Donald Trump and Vladimir Putin. Mueller demonstrates that Russian operatives mounted multiple massive social media disinformation campaigns reaching more than one hundred million voters designed to help the Trump candidacy; and arranged for the theft and release of hundreds of thousands of damaging, unlawfully obtained emails from Democratic Party officials. Mueller also painstakingly chronicles 140 links between the officials of the Trump campaign and Russian agents, noting the coordination of Russian activity with the needs of the Trump campaign and the enthusiastic response of campaign officials to Russian efforts to support Trump. In the end, though, Mueller argues that merely welcoming criminal activity and knowingly benefiting from it doesn’t add up to a federal crime, unless a deal exists between the crook and the unscrupulous beneficiary of the cr
ime.

  I don’t think Mueller was right. If I find out that someone is in the process of burning down a building; meet with the arsonist more than one hundred times to discuss the building; cheer while the arson is going on; and then collect the fire insurance proceeds, the law does not allow me to walk away scot-free just because no deal can be proven. Now, change the crime from arson to criminal interference in a U.S. presidential election. Suppose a hugely wealthy supporter of a candidate for president decides to make a series of secret multi-million-dollar campaign contributions in blatant violation of federal law. Suppose the candidate’s campaign is on notice that the secret contributions are unlawful but welcomes the cash and uses it to secure the candidate’s election. The campaign would—and should—be criminally liable, even if no deal between the crooked supporter and the campaign can be proven.

  The Mueller report convincingly demonstrates that the Trump presidential campaign was the knowing recipient and enthusiastic beneficiary of the largest illegal campaign contribution in history—Russia’s investment of many millions of dollars aimed at hijacking the 2016 presidential election for Donald Trump and Vladimir Putin. Why should the Trump campaign be better off legally because the clearly unlawful campaign contribution came from the Russian government instead of from a crooked American supporter? Since, as Mueller demonstrates, the Trump campaign was on notice about the Russian interference in the election; failed to blow the whistle, indeed welcomed the unlawful support; and chose to accept the benefits of the ongoing unlawful action, I think the campaign broke the criminal law. Mueller should have said so.

  Loophole 2 protecting the president from indictment for obstruction of justice is even flimsier. Mueller’s stated reluctance to call the president’s obstructive acts “criminal” rested solely on the belief that since a sitting president cannot be indicted, it would be unfair to openly call him a crook because Trump would lack a criminal trial forum in which to defend himself. With respect, that explanation barely passes the laugh test. Not only does the president command a mighty bully pulpit with which to defend himself, the absence of a public criminal trial forum was—and is—Trump’s own fault. He could waive his claimed constitutional immunity from indictment tomorrow. But he won’t. Trump’s like the guy who murders his parents and then seeks mercy as an orphan. Even more fundamentally, the legal authority for the proposition that a sitting president is above the criminal law is awfully thin. Nixon tried the argument and failed. Clinton also tried it and failed. If Trump had been forced to try it in court, I believe that he would probably have failed, too. Remember, though, that Trump’s immunity from indictment lasts only as long as he is a sitting president. The 2020 electorate will act as a nationwide grand jury with the power to remove Trump’s sitting president immunity once and for all. He’ll probably be forced to end his disgraceful tenure by becoming the first American president to pardon himself. In the end, I predict that the report will be made public before the 2020 elections—but not necessarily through the processes of law. This one will be a repeat of the Pentagon Papers—with one or more courageous whistle-blowers and a free press providing the voters with information crucial to an informed choice.

  That will place the issue where it ultimately belongs—in the hands of the voters. If American voters, after being informed of the material in Mueller’s report, do not choose to protect the electoral process from foreign subversion by punishing a president who obtained office with the assistance of a massive Russian disinformation campaign and then sought to torpedo the investigation into his conduct, no special counsel or impeachment process can preserve the integrity of our democracy.

  THE DREAMERS

  Throughout the eighteenth, nineteenth, and early twentieth centuries, the vast frontier, with its seemingly unlimited land and resources, and an American economy chronically short of manual labor, combined to generate a national immigration policy designed to encourage white newcomers to emigrate to the United States. Blacks were welcomed until 1808, but only if whites owned them. Chinese laborers were welcomed to build our railroads, and then kicked out. Korean immigrants were banned entirely.

  On the other hand, throughout the eighteenth, nineteenth, and early twentieth centuries, white Christians from northern and western Europe were encouraged to immigrate in the millions. The pattern held into the early twentieth century, which opened with massive waves of immigration—lawful and undocumented—from southern and eastern Europe. Then things changed.

  In the years following World War I, the nation’s immigration policy flipped from the Statue of Liberty’s wide-open “golden door” (at least for whites) to a walled racial fortress replete with moat and drawbridge. In 1924, Congress subjected long-term immigration to a national quota system, with the national quota numbers openly rigged to retain the nation’s racial and religious balance as it had existed in the 1890s. Northern European nations were allocated more long-term visas than they could use. Southern and eastern European quotas were often oversubscribed. Asia, Africa, and most of South America received almost none.

  When the shadow of Nazism fell across Europe in the 1930s, many Eastern European Jews desperate to escape the coming Holocaust were routinely denied entry because the Polish, Czech, or other national quotas had been filled, and Congress had not yet provided for the temporary entry of persecuted persons seeking asylum.

  At the same time, Congress encouraged the temporary entry of tourists, temporary workers, and students from around the world, who brought money, broad backs, and know-how into the country without placing any significant demands on its political or social structure.

  In 1965, as we’ve seen, Congress tried to reset what had become a racist immigration clock. It ended the national quota system. Long-term visas were to be allocated on a first-come, first-served basis. Efforts were made to reunite families by favoring the issuance of immigration visas to close relatives of people already admitted to the United States—a process since derided by President Trump (whose wife recently used her status to obtain visas for her parents) as “chain migration.” And, finally, a generation late, Congress permitted the emergency entry of refugees seeking asylum from persecution.

  In the years following the elimination of the national quota system, demand for low-wage workers, especially for particularly difficult jobs such as harvesting crops and working in meatpacking plants, encouraged millions of aliens seeking a better life—both documented and undocumented—to cross our national borders. Recurring worldwide plagues of civil, religious, and social strife, made worse by economic desperation and physical devastation, increased the flow of immigrants from around the world, often overwhelming the immigration system and creating a vast underclass of more than ten million undocumented aliens, vulnerable to racism and economic exploitation, and subject to deportation if discovered. An overburdened asylum system fell further and further behind in seeking to identify qualified asylum seekers.

  Congress, as usual, dithered. President Obama sought unsuccessfully to encourage a bipartisan congressional compromise over immigration, seeking a middle ground that would harden the border against future undocumented aliens while providing security—even a path to citizenship—to some or all of the otherwise law-abiding undocumented immigrants already in the country. When the president was blocked by Republican senators opposed to granting any form of “amnesty” to undocumented aliens, he focused on the politically most attractive segment of the undocumented population—the approximately 1.2 million young persons who had been brought—or sent—through the cracks in the wall by their parents in search of safety and a better life. President Obama labeled them “the Dreamers.”

  He initially sought to persuade opponents of amnesty to accept the Dreamers by pointing out that, as children, they bore no moral responsibility for breaking the immigration laws. When he failed to persuade the Republican Congress to act, President Obama turned to unilateral presidential action, issuing regulations declining to deport Dreamers and granting them a secure, r
egular immigration status. He even tacked on similar unilateral protections against deportation for their parents to prevent the destruction of families.

  Did President Obama violate separation of powers by acting unilaterally to help the Dreamers? If you say no, be prepared to explain why President Trump’s unilateral travel ban is different.

  President Obama argued that, given the scarcity of resources available for the enforcement of the immigration laws, it made no sense for immigration authorities to expend the enormous amount of resources that would be needed to deport more than one million young people who were brought into this country as children, had lived exemplary lives here, and were well on the way to becoming productive members of the community. Accordingly, the president defended his unilateral order protecting the Dreamers as a classic exercise of prosecutorial discretion designed to allocate scarce law enforcement resources.

  Obama’s critics argued that the regulations were far more than a mere presidential decision to allocate limited resources. They noted, first, that the usual exercise of prosecutorial discretion is an informal “retail” decision by a prosecutor who declines to enforce the criminal law against a particular person in a single case. The Dreamer regulations institutionalized a decision to forgo enforcement on a wholesale basis, directing immigration enforcement agents and prosecutors to refrain from enforcing the law against an entire category of individuals.

  Critics noted as well that, unlike ordinary exercises in prosecutorial discretion, the Dreamer regulations established an institutional framework for its implementation, providing criteria for coverage, a mechanism for registration, and, most important, a regularization of immigration status that permitted a Dreamer to work, pay taxes, and enjoy a secure life in the United States. They claimed that such comprehensive regulations were more like the enactment of a statutory exemption from the immigration laws than a resource-driven inability to enforce them.