This can be accomplished in several ways. Judge Kimba Wood, who is presiding over the matter, could hold a hearing in which the potential suspects are placed under oath and asked the simple question whether they leaked the contents of the tape and/or whether they know who the leaker was. Obviously, people who are willing improperly to leak confidential material may also be willing to lie about it under oath, but the consequences of lying under oath are greater than leaking, as leaking is not a crime but perjury is.
Notwithstanding the importance of this issue, there seems to be little interest among the participants in determining who leaked the tape. There has been no call for an investigation. Perhaps this is because both sides think they benefited from the leak. I leave that to the public, and eventually the courts, to determine. What is clear is who was hurt by the leak: all Americans who rely on confidentiality—which means all of us—were hurt when the world was allowed to listen to a lawyer/client privileged conversation that no one except the participants should ever have heard.
An Obstruction Case Against Trump Would Be a Civil Libertarian Nightmare6
The New York Times has reported that, according to three sources, Special Counsel Robert Mueller is trying to stitch together an obstruction of justice case against President Trump based on his public tweets, TV appearances, conversations with public officials, and other entirely lawful acts. If this is true, it suggests that there is no “smoking gun” or fire, not even any kindling. It suggests that all Mueller seems to have is some dry twigs from which he is trying to build a bonfire. The New York Times headline, “Mueller Looking for Obstruction in Trump Tweets,” should raise a red flag for all civil libertarians. This is exactly the kind of creative manufacturing of crimes from innocent and indeed constitutionally protected acts that endangers the liberties of all Americans.
Just imagine a prosecutor going through all of your tweets, all of your conversations, and all of your emails in search of a plausible theory of criminality based on a statute such as obstruction of justice. If Mueller manages to cobble together an obstruction of justice case from innocent communications, then this dangerous precedent will lie around like a loaded gun ready to be used by any vindictive prosecutors against any plausible target. That could be you or someone you love. It could be a Democrat or a Republican. It could be a liberal or a conservative.
In the brilliant and increasingly relevant book, Three Felonies a Day, the experienced attorney and author Harvey Silverglate describes a “game” prosecutors play. One of them names a known target, and the others scour the criminal code to find three felonies he or she may have committed. If the report is accurate, Mueller and his team may be playing this game with a real live target, namely, President Trump.
I recall a case when the Equal Rights Amendment was pending and the votes of Illinois legislators were essential to secure ratification by that state. A naive young woman approached a legislator and offered a contribution to his campaign in exchange for a commitment that he would do the right thing and vote for equal rights for women. The woman was arrested and charged with attempted bribery under a vague statute.
Civil libertarians were properly outraged in that case. Defenders of Mueller will surely argue that it is common for prosecutors to stitch together innocent conduct to manufacture a crime, especially when the target is a suspected drug dealer, terrorist, or gangster. Tragically, they are right. There are such cases, but there should not be. Many wrongs do not make a right. Moreover, in those cases, the underlying conduct is generally done in secret. Here, Mueller evidently is trying to turn public communications—core First Amendment expressions—into a crime.
The time has come, indeed it is long overdue, for all Americans to take a hard look at broad and ambiguous statutes that empower prosecutors to be “creative.” There is a concept in criminal law known as lenity. If there are numerous ways of interpreting a statute, the law requires that it be interpreted in the most reasonably narrow way, so as to avoid empowering prosecutors to target unpopular defendants. Failing to apply this concept to constitutionally protected emails, tweets, messages, and other forms of communication should concern every civil libertarian, even those who are anxious to find legal weapons with which to target President Trump.
Imagine if Hillary Clinton had been elected and a special counsel was trying to stitch together an obstruction case against her for allegedly erasing emails, using her own home server, and taking other ambiguous actions. Democrats would immediately become civil libertarians and denounce such a “witch hunt.” Now it is the Republicans who are calling the investigation a “witch hunt.” That term may overstate what is happening, but the danger of criminalizing political differences is real.
The problem with turning communications, which by themselves are not criminal, into a criminal obstruction case is that life is lived prospectively while prosecutors look at evidence retrospectively. As the philosopher Søren Kierkegaard put it, “Life can only be understood backwards, but it must be lived forward.” In legal terms, this means that isolated statements may have an innocent intention at the time they were made, but when looked at backwards they may appear to be part of a guilty pattern. Even more fundamentally, crime requires both guilty acts and guilty intentions.
There is considerable danger in turning innocent acts, especially constitutionally protected ones, into criminal obstruction based on an intent inferred after the fact from a pattern that may not have been contemplated at the time. This is what Mueller seems to be doing, if the report is accurate. All of us who care about preserving civil liberties and the rule of law should be concerned about this dangerous approach to stitching together a guilty fabric from innocent threads.
Dangers to the First Amendment If Foreign Campaign Dirt Is Criminal7
The “get Trump at any cost” legal posse has come up with a theory that puts not only the First Amendment at risk, but also the rights of voters to receive information about presidential and other political candidates. According to this theory, the federal election campaign statutes would make it a crime for any candidate to receive information from a foreign source about his or her opponent. The principal statute at issue reads as follows: “It shall be unlawful for (1) a foreign national, directly or indirectly, to make: (A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”
The language and legislative history of the statute suggest that it was intended to prohibit the solicitation and receipt of cash or other material items of value. Although its words are open to a broad interpretation that would include information of value, to interpret the statute in that way would put it in direct conflict with the First Amendment, which at its core, protects information that political candidates can use to inform the American public about their opponents. If the statute were interpreted to apply to obtaining negative information about an opponent, the following hypotheticals would become reality. Remember these are purely hypotheticals, not based on any facts, intended to make an argument.
A Canadian reporter based in Washington provides information to the Hillary Clinton campaign proving that Donald Trump bribed Canadian officials to secure permits to build a hotel in Montreal. An Israeli green card holder attending an American university discovers that Clinton, while a student at Wellesley College, had joined the Communist Party. Bernie Sanders is given information by a French socialist proving that Clinton and Trump colluded to defeat his primary bid. A Russian lawyer gives evidence that Clinton deliberately destroyed her emails to cover up crimes. A British spy provides information that Trump engaged in improper sexual behavior while in Moscow. An Australian journalist provides a recording of James Comey telling a friend that he purposely reopened the Clinton email probe to defeat her bid for president.
All of these hypotheticals, most of which bear no reality but some of which may come close, would be covered by an interpretation of the statu
te that brought information within the words “a contribution of money or other thing of value.” In each of these hypotheticals, the information is provided by a foreign national. In each of these hypotheticals, the information is at the core of the First Amendment.
Yet, serious academics and other commentators who have joined the “get Trump at any cost” legal posse have argued on national television that the statute prohibits the kind of information that Russians may have wanted to offer the Trump campaign at the Trump Tower meeting. They argue that even if the information was obtained by the Russians lawfully and was not part of a larger “collusion” scheme, the mere gathering of any information from a foreigner—friend or foe—is a criminal violation of campaign laws.
Defenders of the unconstitutionally broad interpretation of this statute might argue that all of the information contained in the above hypotheticals could be given directly to the media, which would then publish it. That may well be true, but if the information was first given to a political candidate or campaign, it could not be transmitted by that candidate or campaign to the media. To do so would be to circumvent the statute by laundering the information through the media. Moreover, under the First Amendment, a candidate would have the right to use or withhold all or part of this information as it best served his or her campaign, rather than giving it to the media. Even if the media published the information, the First Amendment rights of candidates would be violated.
It’s worth revisiting the shoe test as a guiding principle here: If President Hillary Clinton were being investigated for violation of campaign finance laws for seeking to obtain negative information about Donald Trump, the American Civil Liberties Union would be up in arms about this obvious violation of the most fundamental principles protecting the freedom of expression of candidates. But since the election of Trump, the ACLU and many other lifelong civil libertarians have failed the shoe on the other foot test. They have applied one standard to Clinton and a quite different one to Trump.
This double standard hypocrisy reflects a broader problem. Throughout the world, civil liberties have been weaponized by both the right and the left in support of their ideological agendas. The standard is “free speech for me but not for thee” instead of free speech and civil liberties for all including opponents. Under any neutral approach to constitutional principles, our campaign laws must not be broadened to deny candidates the right to receive negative information about their opponents.
Is “The Truth” the Truth When It Comes to Prosecutors?8
When Rudy Giuliani stated, perhaps inartfully, that “truth isn’t truth,” he was getting at a higher—or should I say lower—truth. This is a truth that virtually every experienced defense attorney and prosecutor understands: namely, that prosecutors get to pick which witness—and which “truth”—to believe.
Giuliani was discussing US President Donald Trump’s decision whether or not to be interviewed by Special Counsel Robert Mueller. Giuliani made the point that even if President Trump testified truthfully, he could be accused of lying to a prosecutor—a serious felony—if the prosecutor chose to believe witnesses who have provided a different account.
To be specific, President Trump has stated publicly that he was not aware of the Trump Tower meeting between a Russian woman and his son until after it took place. One of Trump’s attorneys at the time, Michael Cohen, has apparently said that Trump was aware of the meeting.
President Trump has also stated that he did not ask former FBI Director James Comey to go easy on Michael Flynn. Comey has said that President Trump did.
If President Trump were to repeat these denials in an interview with a prosecutor, he would be walking into a perjury trap even if he truly believed that his denials were the complete truth, and even if he actually were telling the complete truth. All the special counsel needs in order to charge a subject of an investigation with lying to a prosecutor is a single witness willing to contradict the subject. The witness may himself be a criminal who has been squeezed into “singing” in order to save his own skin. The witness may not only be “singing,” he may also be “composing,” as discussed previously and corroborated by Judge Ellis. Under federal law, the testimony of such a “flipped witness” need not be corroborated in order to secure a conviction.
Because of these realities, most experienced defense attorneys would never allow their clients to get into a swearing contest with a flipped witness, even if the client were telling the absolute truth. That is what Rudy Giuliani meant when he said, in the context of a decision whether to have his client interviewed by the Special Counsel, that “truth isn’t truth.” Truth may be truth in science (although even scientific truth is subject to challenge and revision), but when it comes to a special counsel, truth is often in the eyes—and ambitions—of prosecutors, who decide which “truth” to believe.
Every experienced defense attorney with whom I have discussed this issue has said that he or she would never advise a client in President Trump’s situation to be interviewed by the Special Counsel, even if that interview were limited to a handful of questions. Even one question that results in an answer that is contradicted by one witness would be enough to spring the perjury trap. That is why pundits and commentators who repeatedly pronounce that if President Trump is telling the truth he risks nothing by submitting to an interview are simply wrong. Many former prosecutors who repeat this falsehood in their roles as “expert” commentators know the truth. But in their “anything goes” attitude when it comes to nailing President Trump, they are willing to mislead the public into believing that only witnesses who willfully lie are at risk from an interview.
Traditionally, it has been liberals and civil libertarians who have complained about prosecutors springing perjury traps using questionable flipped witnesses. Traditionally, it has been conservatives and law-and-order types who have defended this tactic. But now that President Trump is in the cross-hairs of the Special Counsel, the attitudes have been flipped as quickly as a witness threatened with prosecution.
Hypocrisy abounds on both sides. I, for one, am pleased that Rudy Giuliani, who himself was a tough prosecutor, now understands how this tactic can be used to trap innocent people. I am disappointed, however, that so many liberals, civil libertarians, and defense attorneys are unwilling to criticize this tactic when it is directed at a president of whom they disapprove.
Did President Trump Violate Campaign Finance Laws?9
Ever since the news broke that Michael Cohen pleaded guilty to finance laws and swore that candidate Donald Trump directed him to do so, I have been reviewing the morass of rules and laws that govern campaign finance. I have been teaching and practicing criminal law for more than a half century, and yet I have to acknowledge that I am having difficulty understanding the laws as they relate to the allegations made by Cohen against President Trump. But a few things are clear in this case.
A candidate is free to contribute to his or her own campaign. It also is not criminal for a candidate to pay hush money to women whose disclosures might endanger his campaign. So if candidate Trump paid hush money to his two accusers, there would be no violation of any campaign or other laws. To be sure, if he did so for the purpose of helping his campaign, as distinguished from helping his marriage, his campaign would have to disclose any such contribution and failure to do so might be a violation of a campaign law—but the payments themselves would be entirely lawful.
If, on the other hand, Cohen made the payments by himself, without direction from the president, then that would constitute an impermissible campaign contribution from a third party. But if Cohen was merely acting as a lawyer for Trump and advancing the payments, with an expectation of repayment, then it would be hard to find a campaign finance crime other than failure to report by the campaign.
Failure to report all campaign contributions is fairly common in political campaigns in the United States. Moreover, the offense is committed not by the candidate, but rather by the campaign, and is generally subject
to a fine. Though it is wrong, it certainly is not the kind of high crime and misdemeanor that could serve as the basis for a constitutionally authorized impeachment and removal of a duly elected president.
Moreover, prosecutors should be reluctant to rely on the uncorroborated word of a defendant who pleaded guilty to lying and defrauding. Thomas Jefferson once observed that a criminal statute, to be fairly enforceable, must be so clear that it can be understood by the average person reading it while running. He did not mean while running for office. He meant that a criminal statute must not be subject to varying reasonable interpretations.
Anyone reading the collection of statutes and regulations that govern elections would immediately conclude, even while sitting, that they do not satisfy this Jeffersonian criteria. Reasonable people can disagree about whether these open-ended laws apply to any of the acts and omissions that Cohen alleged against Trump. An overzealous prosecutor could, of course, stretch the words of the accordion-like statute to target a political enemy, or read it more narrowly to favor a political friend. If the same morass of laws were being applied to a President Hillary Clinton, civil libertarians would be up in arms about their ambiguity.
As a civil libertarian who voted for and contributed to the Clinton campaign in 2016, I am critical as well of efforts to stretch these laws so as to target a president against whom I voted. The guilty plea of Cohen, coupled with the conviction of Paul Manafort, does not make Trump look good politically. He promised the American people to surround himself with the best advisors, but he surrounded himself with too many people who broke the law, even if he himself was not legally complicit. However, the rule of law demands that we distinguish between political sins and federal felonies. As the record now stands, Trump appears to be guilty of political sins but not federal felonies or impeachable offenses.
The Case Against the Democratic House Impeaching Trump Page 20
