I know because I am currently being accused of being corruptly motivated in making my argument against charging President Trump with obstruction of justice. My emails are filled with such charges. The following email is typical:
“I want to know how much the Trump administration is funneling to you under the table, of course, to keep your support of him off the record? And if it’s not money, what sort payoff is it? Favors, promises, bribes … what?? Why all the secrecy when indirectly advising his legal team via cable networks’ panel discussions? I think your games, shenanigans and defense of this very disturbing man give the legal profession a black eye. Shame on you! Why not come out and openly defend Trump which you are obviously doing through innuendo?”
Others emails I have received include the following: “PLEASE BE TRUTHFUL. YOU ARE NOT A LIBERAL BUT RATHER A ZIONIST REPUBLICAN AUTHORITARIAN BIGOT” as well as “SELLING YOUR OPINION/SERVICES TO THE HIGHEST BIDDER!”
My motives have also been questioned by some of my academic and political colleagues. Am I being paid? Am I auditioning to be Trump’s lawyer? Do I want to be appointed to a judgeship? Am I really a secret Republican? Did I really vote for Clinton? Do I expect favors in return for my arguments?
The point is that many of those who disagree with my arguments refuse to believe that I am making them out of principle. They assume a corrupt motive.
The same is true in the larger political context. Each side believes the other is corrupt to the core. They question each other’s motives. That is why using the concept of “corrupt motive” to criminalize constitutionally authorized political actions is a dangerous double-edged sword that can be used against both Democrats and Republicans by politically motivated prosecutors.
Before the recent efforts to expand the obstruction statute to cover President Trump, many civil libertarians, political liberals, defense attorneys, and even judges were rightly critical of the expansive use of “corrupt motive” in the context of both commercial and political cases. But now that they see an opportunity to use this overbroad concept to “get” President Trump, many of these same people have become enthusiastic supporters of expanding the open-ended law even further in a shortsighted effort to criminalize the constitutionally protected actions of a president they dislike.
Anglo-American law is based on precedent. What happens today can be used tomorrow. So, beware of creating precedents that lie around like loaded weapons in the hands of overzealous or politically motivated prosecutors.
The Ruling Shows I’m Right on Trump and Corruption8
The recent reversal of Sheldon Silver’s corruption conviction by the US Court of Appeals for the Second Circuit confirms the point I’ve been making for months about President Trump: his actions, as controversial as they may be, do not fit the definition of “corruption,” as that vague word is used in federal statutes.
My critics have argued for an extraordinarily broad definition of corruption capable of being expanded to fit nearly everything Trump has done—from firing FBI director James Comey, to asking him to consider dropping the investigation of Lieutenant General Michael Flynn, to his son’s meeting with Russian surrogates.
This is the way the New York Times put it in its story about the court’s narrowing the meaning of corruption in the context of federal criminal law: “There was a time when political corruption might have been described—as a former Supreme Court justice once said of pornography—as something you knew when you saw it.” In other words, it was in the eye of the beholder rather than in a precise statutory definition.
That dangerous time—dangerous because it substituted the rule of individual prosecutors for the rule of law—came to a gradual end over the past several years as the Supreme Court repeatedly cabined the definition of corruption under federal statutes that relate to the provision of “honest services” (another broad category). It ruled that not all political actions that smell or look like corruption can be prosecuted criminally without Congress specifically making such conduct criminal by precisely worded legislation.
This salutary approach to defining overbroad words like “corruption” was applauded by many civil libertarians and liberals, and especially by criminal defense attorneys who had seen up close how expandable terms like corruption could be and were being abused by ambitious prosecutors determined to add notches to their belts by convicting dishonest politicians.
Now many of these same civil libertarians, liberals, and even defense attorneys have forgotten how dangerous those bad old days were and are demanding that President Trump and his family members should be prosecuted for corruption under the most expansive definition of corruption, despite recent court rulings narrowing that open-ended term.
“Just this one time, please. Just let us get Trump.” That is what the fair-weather liberals, civil libertarians, and criminal defense lawyers seem to be saying. “Then, we will return to our principles.”
But that’s not the way the law works. There are no exceptions—no “just this one time.” It’s worth repeating my conclusion to the previous essay: the law operates on precedent. Today’s exception may become tomorrow’s rule. And even if it doesn’t, it creates a precedent for more exceptions, which may be applied to our side of the political aisle, as Republicans tried to do with Hillary Clinton.
H. L. Mencken understood why it is so important to defend the rights of those you disagree with and not make exceptions for your political enemies: “The trouble about fighting for human freedom is that you have to spend much of your life defending sons of bitches; for oppressive laws are always aimed at them originally, and oppression must be stopped at the beginning if it is to be stopped at all.”
It is, of course, true that by narrowing the criminal law definition of corruption, some dishonest politicians will fall through the cracks. As one former prosecutor put it: “Prosecutors were concerned from the start that [the Supreme Court’s decisions narrowing the definition of corruption] would allow a lot of reprehensible behavior to go unpunished …”
Another put it this way: politicians “will learn the language of corruption. It will still be a bribe, but it will fall outside of anything that is technically illegal” (emphasis added). But there is no such animal as “technically illegal.” Under the rule of law, actions and intentions are either legal or illegal. If they are not specifically prohibited by an existing criminal law, they are legal—not technically legal, but simply legal.
For prosecutors who believe that the recent court decisions “may be the beginning of a parade of horribles,” as one former prosecutor put it, there is a democratic remedy: enact legislation that specifically covers the conduct you deem reprehensible and apply it to future cases. That’s the way the rule of law is supposed to operate in a democratic society.
So, let’s have one law for all politicians and citizens. Let’s not stretch existing law to fit Donald Trump, Hillary Clinton, or anyone else. The courts have rightly interpreted corruption narrowly. If prosecutors—including the Special Counsel investigating the Trump administration—want to broaden that term, let them take their case to Congress, not to a grand jury.
No One Is Above the Law9
Our Constitution provides that the members of each branch of government be protected from legal consequences for performing their constitutionally mandated functions. Thus, Article I of the Constitution explicitly immunizes from arrest all members of Congress “during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” This immunity, though limited, protects legislators from arrest for actions for which ordinary citizens could be prosecuted. This limited immunity does not put them “above” the law, since it is the law itself that provides the immunity.
Judges, too, are immunized from not only from criminal prosecution, but also from civil liability for actions taken within their judicial authority. This is how the Supreme Court put it in Stump v. Sparkman (in which a young woman sued the circuit judge who had tricked her int
o being involuntarily sterilized by misinforming her that it was an appendectomy!): “The governing principle of law is well established and is not questioned by the parties. As early as 1872, the court recognized that it was ‘a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.’”
Prosecutors, too, have limited immunity for actions undertaken within their prosecutorial authority. It should come as no surprise, therefore, that the president—as head of the executive branch—cannot be prosecuted for acts that he or she is authorized to take pursuant to Article II of the Constitution. Article II of the Constitution explicitly allocated to the president the authority to “take care that the Laws be faithfully executed.”
This grant of power authorizes the president to decide who should be investigated and prosecuted and who should not. Presidents including John Adams, Thomas Jefferson, Abraham Lincoln, Franklin Roosevelt, John Kennedy, and Barack Obama have exercised this authority by instructing the Justice Department to investigate and prosecute individuals or groups—and not to investigate or prosecute others. Some have exercised that authority wisely, others not. But none have committed the crime of obstruction of justice by trying to influence prosecutorial decisions.
I’ve noted how President George H. W. Bush stopped an investigation in its tracks—an investigation that could have pointed directly to criminal action by him during the Iran-Contra scandal—when he pardoned Casper Weinberger and five other crucial witnesses who could have pointed the finger at him. The Special Prosecutor, Lawrence Walsh, was furious at this decision, claiming that it was intended to, and did, stop the investigation. Yet no one suggested that President Bush be charged with obstruction of justice, because in pardoning those witnesses he was exercising his constitutional authority under Article II.
I’ve also noted that President Andrew Johnson was impeached for firing Secretary of War Edwin Stanton in violation of a statute passed by Congress. He was acquitted by the Senate, and the Supreme Court subsequently declared the statute unconstitutional as impinging on the president’s power to fire members of the executive branch.
Even former director of the FBI James Comey said that the president had the authority to fire him, for any reason or no reason. Now President Trump’s political opponents are seeking to have the Special Counsel psychoanalyze the president to determine whether his motives were pure, mixed, or corrupt. Nearly all presidential actions are motivated by mixed intentions, ranging from self-aggrandizement, to political benefit, to partisan advantage, to patriotism. If a president or a senator or a judge acts within his or her constitutional authority, their motives should not be probed by prosecutors even if they suspect unsavory ones.
If a president’s actions, on the other hand, are unlawful—as President Nixon’s clearly were when he told subordinates to lie to the FBI and paid hush money—good intentions (they are hard to imagine in Nixon’s case) would not be a defense. For purposes of the criminal law, presidents must be judged by the lawfulness or unlawfulness of their acts, not by the motivations that underlay them.
My argument, unlike that of President Trump’s lawyer, is not that a president can never be charged with obstruction of justice. It is that he cannot be charged with that crime if his only actions were constitutionally authorized. This distinction is central to our system of separation of powers and checks and balances.
The phrase “no one is above the law” has become weaponized by those who believe that President Trump is claiming to be above the law. But this misunderstands his position and that of his lawyers, who are arguing that his controversial actions are authorized by the law. They may be correct or incorrect, but it is not accurate to characterize their position as asserting that the president is “above the law.”
Does Donald Trump Have Congressional Immunity?10
[Professor Laurence Tribe responded to the previous essay, arguing that a president can be prosecuted or impeached for obstruction if he has corrupt motives. I replied.]
My colleague Larry Tribe’s response is unfortunately not responsive to my arguments. He erects several straw men, which he proceeds to knock down, but he fails to respond to my most compelling arguments.
Two striking examples: Larry correctly points out that congressional immunity is based explicitly on the text of the Constitution, but he fails to deal with my other primary example—judicial immunity. There is no mention of judicial immunity in the Constitution, and yet the Supreme Court has ruled that the separation of powers and checks and balances requires that judges be immune for conduct that is part of their constitutionally authorized powers. If he is to argue that the inclusion of congressional immunity in the Constitution precludes immunity for members of other branches, he must respond to my argument about judicial immunity. That he fails to do so reveals the weakness in his constitutional analysis.
Second, I provide three specific examples of presidential acts that he ignores: President George H. W. Bush was neither charged nor impeached for pardoning Casper Weinberger and other potential witnesses against him—acts that the Special Prosecutor believed were clearly motivated by a desire to protect himself. Nor does he deal with the fact that Presidents Nixon and Clinton were not impeached for merely exercising their constitutional authority. Congressional committees went out of their way to specify criminal acts beyond those authorized by Article II. Larry must deal with these examples. While doing so, he may also want to consider the failed impeachment of former president Andrew Johnson for firing a cabinet member in violation of the Tenure of Office Act passed by Congress. The Supreme Court ultimately held that act unconstitutional as violative of separation of powers.
The cases Larry cites do not deal directly with the issue of whether a president can be charged with criminal conduct for merely exercising his constitutional powers. His inclusion of impeachment is yet another straw man, since my article does not suggest that a president could not be impeached for improperly pardoning or firing an executive official. That remains an open question. The text of the Constitution suggests that impeachment must be based on “treason, bribery, or other high crimes or misdemeanors.” Congress may have the power to broaden these categories, but not ignore them.
Larry includes among alleged criminal acts by President Trump telling the director of the FBI to go easy on General Flynn. But he fails to respond to my more general point that our Constitution authorizes the president to direct his attorney general whom to prosecute and whom not to prosecute. Thomas Jefferson did that, as did Abraham Lincoln, FDR, and Barack Obama.
Larry’s most dangerous argument—and several of his arguments endanger our liberties—is that “placing presidential pride over the nation’s sovereignty is a grave abuse of presidential power by anyone’s definition.” All presidents are motivated in part by “pride” and other personal considerations. If questionable motives could turn an Article II exercise of presidential power into crimes, there would be no limits to the criminalization of political differences.
Finally, Larry characterizes my arguments as “familiar,” as if that were a bad thing. He is, of course, correct about them being familiar since I have been making them for nearly fifty years. I opposed the naming of Richard Nixon as an unindicted co-conspirator. I railed against the impeachment and prosecution of former president Clinton (as did Larry). And I strongly opposed efforts to criminalize Hillary Clinton’s carelessness. Yes, my arguments are familiar because I have been consistent in making them for half a century. They are not about Donald Trump. They are about the institution of the presidency and our constitutional system of separation of powers and checks and balances.
This exchange demonstrates that Larry Tribe and I respectfully disagree about fundamental issues regarding our Constitution and efforts to criminalize political conduct. I think the general public can learn from our clash o
f ideas. Accordingly, I renew the challenge to my friend and colleague to engage in a public debate now, while these important issues are at the forefront of public controversy. CNN has offered an international platform for this debate. I have accepted CNN’s invitation. I urge Larry to do so as well, so that we can respond to each other’s arguments in the court of public opinion. And let the citizens decide. That’s how democracy works best.
Rod Rosenstein Should Not Be Fired, but Should He Be Recused?11
Deputy Attorney General Rod Rosenstein should not be fired. He is a distinguished public servant with a bipartisan reputation for fairness. But there is a real question whether he should be recused from participating in any investigation by the Special Counsel of alleged obstruction of justice by the president.
Five facts are indisputable. First, Rosenstein is currently supervising Robert Mueller, who he appointed to be Special Counsel to investigate the Russia matter and all ancillary issues. Second, these ancillary issues include any possible obstruction of justice growing out of the Russia investigation. Third, President Trump’s firing of former FBI director James Comey may be an important building block in any possible obstruction case against the president. Fourth, Rosenstein played a central role in that firing, having written the memorandum justifying the president’s action. Fifth, Rosenstein would be an important—perhaps the most important—witness in any investigation of the reasons behind the firing.
The question is whether a lawyer should both supervise an investigation and be an important witness in that very investigation. Attorney General Jeff Sessions recused himself because he might have been a witness or subject of the Russia investigation. Rosenstein might be a more central witness in any obstruction of justice investigation by the prosecutor who he is supervising.
The Case Against the Democratic House Impeaching Trump Page 8
