I raise this alarm as a loyal liberal who has supported every Democratic candidate for president since I campaigned for Adlai Stevenson in 1952. Yet because of my strong opposition to open-ended criminal laws, some critics on the left have accused me of becoming “President Trump’s attack dog.” Nothing could be further from the truth. I worked to prevent the election of Donald Trump, and since his swearing-in, I have been critical of many of his actions, including his travel ban, his rescission of protections for “Dreamers,” his telling the Russians about intelligence gathering, and his failure to single out white nationalists for their provocations in Charlottesville.
But elastic criminal laws should not be stretched to cover Mr. Trump’s exercise of his constitutionally authorized power. When the president asked the director of the FBI to drop its investigation into Michael Flynn, the former national security advisor, or fired James Comey from the FBI, or provided classified information to the Russians, he was acting within his constitutional powers. Those actions may deserve opprobrium, but they should not be deemed criminal. The proper place to litigate the wisdom of such actions should be at the ballot box, not in the jury box.
Even if it were to turn out that the Trump campaign collaborated, colluded, or cooperated with Russian agents, that alone would not be a crime, unless the campaign asked them or helped them to commit criminal acts such as hacking.
Today, the target for politically tinged investigations is Donald Trump and his campaign. Last year (and again today), it was Hillary Clinton—as it was her husband before her. Next up are Bernie Sanders and his wife, who are being investigated at the behest of a Republican Party official in Vermont.
An overly flexible, easily expanded criminal statute is a loaded weapon capable of being fired by zealous prosecutors at almost any target. It’s time to store the weapon until it is really needed—and not the next time someone wants to wound his political enemies.
When Criminal Law Is Weaponized for Political Gain3
US Attorney General Jeff Sessions’s appearance before the House Judiciary Committee in October 2017 well illustrates the growing problem of misusing the criminal law to settle political differences that I alluded to in the previous essay.
While the hearing was intended to uncover issues relating to Russia’s attempt to interfere in our presidential elections, the tone and overall focus of the hearing quickly shifted to mutual recriminations when both Republicans and Democrats grilled the attorney general about alleged crimes committed by their rivals.
Republicans on the committee pressed Sessions about a host of accusations against Hillary Clinton. They kept returning to the same question: Why had a special counsel not yet been appointed to investigate her?
When Sessions answered that there would need to be a “factual basis” to appoint a special counsel to investigate Clinton, several of the Republican committee members scoffed. Republican Congressman Jim Jordan asked, “What’s it gonna take to get a special counsel?” Meanwhile, his colleague, Representative Trent Franks, pressed on with accusations that Clinton had committed a crime by colluding with the Russians on the Uranium One deal: “What do you think the Justice Department can do to correct … what appears to be an injustice?”
Democrats on the committee took a similar tack, flinging around accusations of criminal conduct on the part of President Donald Trump.
Democratic Representative Ted Deutch aggressively questioned the attorney general about the president’s firing of former FBI director James Comey, asking whether “it would be reasonable for the members of this committee to conclude that the president, by first interfering in one investigation and then interfering in an investigation into himself, committed obstruction of justice?”
These partisan attempts to criminalize policy differences are not new.
As I’ve previously noted, from the time President Thomas Jefferson instructed his attorney general to prosecute his former vice president Aaron Burr, politicians have sought to weaponize the criminal justice system to target their opponents. In recent years Ted Stevens, Tom DeLay, Rick Perry, Bob Menendez, and other elected and appointed officials—of both parties—have been accused of crimes. None of these public officials has been finally convicted, but as former Secretary of Labor Ray Donovan put it after he was acquitted of questionable charges: “Which office do I go to get my reputation back?”
But it’s only gotten worse these past few years.
The 2016 presidential election was one of the most polarizing in our history. For Trump supporters, everything Hillary Clinton did was deceitful, wrong, and criminal. And for those who supported Hillary Clinton, Trump’s behavior was abhorrent, inexcusable, and criminal. This hardening of positions, and deep-seated aversion to the other, manifested itself in increasingly tenuous demands to criminalize political differences.
Indeed, “Lock ’em up” has become the battle cry of both Democrats and Republicans when they do not like the policies propounded by their opponents. Boorish calls for indictment have replaced calibrated criticism of opposing views, and there have been far too few calibrated calls—on both sides of the aisle—for de-escalation of the mutual demands for criminal prosecution and/or impeachment.
Recall the political conventions in the summer of 2016, where this type of coarse rhetoric galvanized the crowds.
At the GOP convention in Cleveland, Roger Stone famously got up on the stage and called for action against Hillary Clinton: “We demand the prosecution of Bill and Hillary Clinton for their crimes.”
During his convention speech, Chris Christie goaded the crowd into chanting “guilty” and “lock her up,” while Florida attorney general Pam Bondi said from the convention platform: “‘Lock her up!’ I love that.” Scott Walker echoed the same sentiment in his speech: “If she [Clinton] were any more inside, she’d be in prison.”
And finally, a state representative from New Hampshire took the coercive rhetoric to its “logical” conclusion, calling for Clinton’s execution. “This whole thing disgusts me … Hillary Clinton should be put in the firing line and shot for treason.”
President Trump further stoked the fire, seeking to have his former political rival investigated and/or prosecuted. In his tweets he has called for Clinton to be indicted and for a special counsel to be appointed to investigate her “crimes.”
Here are some of Trump’s tweets:
“So why aren’t the Committees and investigators, and of course our beleaguered A.G., looking into Crooked Hillary crimes & Russia relations?” —July 24, 2017
“The Uranium to Russia deal, the 33,000 plus Emails, the Comey fix and so much more … There is so much GUILT by Democrats/Clinton, and now the facts are pouring out. DO SOMETHING!” —Oct. 29, 2017
“Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with the Crooked Hillary & the Dems … People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!” —Nov. 3, 2017
Democrats have played tit for tat, making mirror-image arguments. They were calling for criminal investigation, indictment, and impeachment of President Trump even before his inauguration. The fury against Trump has meant there has been little nuance in analyzing the actions of the current administration.
For many anti-Trump extremists, everything Trump has done is wrong, and since it is wrong, it must necessarily be criminal.
Democrats have accused the president—and members of his administration—of “treason,” “obstruction of justice,” and “collusion.” For example, Senator Tim Kaine—Hillary Clinton’s former running mate—said: “We’re now beyond obstruction of justice in terms of what’s being investigated … this is moving into perjury, false statements, and even into potentially treason.”
Moreover, two different Articles of Impeachment have now been filed against the president.
The first cites Trump’s alleged “obstruction of justice” for having fire
d James Comey—a constitutionally protected action within the president’s authority—while the second accuses the president of being a “danger” to our democracy.
There is a dangerous fallacy inherent in attempts by both sides to turn alleged political sins into prosecutable crimes.
Under our Constitution, for a political act—or any act—to be a federal crime, it must violate a criminal statute, not some general prohibition against wrongdoing.
In the early days of the new Republic, the Supreme Court ruled that there are no federal “common law” crimes. Only statutory crimes may be prosecuted under federal law. There could be common law torts, under which the courts could expand and contract the law to meet changing needs. But when it comes to federal crimes, only Congress could enact them with unambiguous statutory language.
All such crimes require two distinct elements: a specifically prohibited actus rea, a criminal act; and a mens rea, a criminal intent that accompanies the act. Without these, there can be no constitutionally valid crime regardless of how heinous the conduct may be. This means that criminal prosecution must be a neutral sanction of last resort, not an initial weapon used to target political rivals.
Crimes may not be made up as we go along; they must be expressly prohibited by preexisting criminal statutes.
Here’s how I made this point in recent interviews: “Today it’s Clinton; tomorrow it’s Trump; the next day it’s [Bernie] Sanders; after that, it’s you.”
It was Lavrentiy Beria, the former head of the notorious Soviet KGB, who told Joseph Stalin: “Show me the man, and I’ll find you the crime.” We never want to become a country in which political leaders of either party can point to their political enemies and have prosecutors “find” the crime.
Consider the aforementioned criminal trial of Senator Bob Menendez (D-NJ) for vague crimes alleging political corruption. After weeks of testimony and days of deliberation, the case resulted in a hung jury. According to the press reports, jurors voted 10-2 for acquittal. Not content to await the outcome of the hotly contested trial, the RNC declared him guilty before the trial began and urged him to announce that he would immediately resign when he was convicted by a jury, which they took as a foregone conclusion.
The RNC set up a “war room” to “disseminate any potentially embarrassing details” that emerged at the trial. What actually emerged was the embarrassing reality that what Menendez was accused of having done—accepting plane rides and other favors from an old friend—is as common among Republicans as it is among Democrats.
The RNC doesn’t care about raising the level of ethics in the Senate, as they claim. All they care about is raising the number of Republicans in the Senate. If Menendez had resigned immediately, the vacancy would have been filled by the outgoing New Jersey GOP governor, Chris Christie. The rush to get Senator Menendez to resign if convicted by a jury, rather than wait until the appellate process would be completed, was because there was a November gubernatorial election in New Jersey that Democrats were expected to win and did.
Could there be any clearer example both of the criminalization of political differences and of the hypocrisy of the RNC in the complaining—as I have done—about Democrats trying to criminalize their differences with President Trump and members of his administration? The difference is that I have railed against the criminalization of politics by both sides.
Both sides have violated this important principle. Democrats and Republicans alike have failed what I previously have called the “shoe on the other foot test.” Neither would be making the argument they are putting forward against their political enemies if it were their political friends who were in the crosshairs. Both sides respond by arguing that the other side is worse. The RNC insists that Menendez is really guilty of corruption but Trump is innocent of obstruction of justice. Democrats insist that Trump is guilty of obstruction but Menendez is innocent of corruption.
The truth is that both sides advocate the stretching of already elastic crimes—such as corruption and obstruction—to fit their targeted political opponents.
Civil libertarians must resist this tactic because elastic criminal laws, capable of being stretched to fit nearly anyone, endanger the liberty of all Americans. A statute, once expanded to fit a criminal enemy, can be used by one’s foes against political friends.
All Americans are at risk of over-criminalization. That’s why civil libertarians, even those who despise Trump (or Clinton or Menendez) should stand in opposition to current efforts to criminalize President Trump’s exercise of his constitutional authority. But authentic civil libertarians, who advocate neutral policies without regard to which political parties are helped or hurt, are becoming increasingly rare in our hyper-partisan age. “Whose side are you on?” has become the question. And the answer of “I am on the side of civil liberties for all” is regarded as wimpy, a cop-out, or worse.
Partisans regard it as a form of political treason—giving aid and comfort to the enemy in a time of political warfare.
I know because I have been accused of disloyalty by many of my Democratic friends because I have criticized efforts to accuse President Trump of crimes based on the exercise of his constitutional powers.
The criminal sanction should be reserved for unambiguous acts coupled with clear criminal intent based on clearly written and narrowly drafted statutes. All Americans would be better off if political differences were resolved at the ballot box, rather than in the courts of law.
If existing statutes are insufficient to prevent new evils, they should be amended, and future acts prosecuted under the newly enacted statutes. But vague accordion-like statutes—such as “obstruction of justice,” “corruption,” and “conspiracy”—should not be expanded to cover the political sins of one’s enemies. Nor should never-used laws—such as the Logan Act—be resurrected to selectively target political enemies.
It is not too late to declare a cease-fire on the mutually destructive criminalization of political difference. Congress should appoint a nonpartisan commission of experts to investigate Russia’s efforts to influence elections. This should be a bipartisan concern of all Americans. Evidence should be gathered and public hearings held. The purpose of such hearings would be to inform the American citizenry of what has taken place in the past, what we can expect in the future, and what can be done to prevent Russian intrusion into our political system. Congressional hearings do not accomplish this, as evidenced by the partisan bickering we saw when Attorney General Jeff Sessions testified. Partisan politicians are not interested in objective truth emerging from such hearings. They just want to win for their party. This does not help the American public. Nor will the investigation by the Special Council accomplish the goals of informing the citizens of our country and preventing future intrusions by Russia into our elections.
This is because prosecutors operate behind the closed doors of grand jury rooms and it is illegal to leak grand jury evidence.
Mueller’s investigation—which is deploying prosecutorial tools long criticized by civil libertarians—should be put on hold until and unless a bipartisan commission completes its investigation and determines—if it does—that serious crimes were committed during the last election. That is how democracies are supposed to function and information ought to be gathered: in public, with sunshine as the best disinfectant against the contamination of partisanship.
Under the existing constitutional framework, the president has the power to fire officials of the executive branch, including the attorney general and the director of the FBI. He also has the power to pardon any defendant, either before or after trial.
He should not be prosecuted for exercising his authority—an entirely lawful act—regardless of his motive.
Presidents typically have mixed motives for their political actions: self-preservation, partisan benefits, doing what they regard as the right thing. To allow prosecutions to be based on psychoanalyzing motives poses dangers to our system of separation of powers.
&nb
sp; The first President Bush exercised his constitutional authority based on questionable motives when he pardoned Caspar Weinberger on the eve of his criminal trial for lying to Congress regarding the infamous Iran-Contra affair.
Bush also pardoned five other defendants, thereby ending a multiyear investigation by Special Prosecutor Lawrence E. Walsh, who expressed outrage at the president’s interference with his investigation—an investigation that might well have ended with a finding of guilt pointing directly at the president.
President Bush paid a heavy political price for his highly questionable but entirely lawful actions in pardoning defendants who might well have incriminated him. I do not recall any demands that he be prosecuted or impeached during that less partisan era.
Until and unless the Constitution is amended to deprive the president of these powers when the investigations and prosecutions he stops are directed at him or members of his administration, the problem will persist, because it is inherent in our structure of government. But we should not try to solve this problem by expanding existing criminal statutes to target lawful political actions.
Article II may provide a partial solution. It empowers Congress to enact legislation vesting the appointment of “inferior office” in “the courts of law.” Congress could therefore create an office of director of public prosecution to be appointed by the courts. It is unlikely in the current partisan environment that such legislation would be enacted.
In the meantime, we must do everything we can under our current laws to depoliticize criminal prosecutions. The liberty of Americans is endangered when political considerations influence—sometimes determine—who is to be criminally investigated and prosecuted. That’s why I—a liberal Democrat who voted for Hillary Clinton—will continue to vehemently oppose expansions of the criminal law to target President Trump for his alleged political sins.
The Case Against the Democratic House Impeaching Trump Page 6
