You would never know that if you just watched those cable television channels that are determined to find crimes and impeachable offenses against President Trump without regard to the law or consideration of civil liberties. Applying the shoe on the other foot test, it’s clear there are still large gaps between the plea of guilty of Cohen on the one hand, and crimes or impeachable offenses against Trump on the other. Until and unless those gaps are filled with credible evidence of criminal behavior by the president, his enemies should be cautious about tolling the death knell for this presidency.
Who Is Guarding the Guardians?10
Our system of checks and balances is working tolerably well. The courts are reviewing executive orders, striking down some, upholding others. Congress may soon have one chamber controlled by Democrats, empowering it to conduct investigations and hearings regarding the president. The media is doing its job, despite being attacked by the president. So are the academy, religious bodies, the business world, and other mechanisms that are part of our informal checks and balances.
It is not perfect, but no system of governance is ever perfect, as Winston Churchill reminded us when he said, “Democracy is the worst form of government except for all the others that have been tried over time.” The same can be said about our imperfect system of checks and balances.
The only institution of government that is not currently being checked is the prosecutorial branch. Although President Trump toyed with the idea of firing Robert Mueller, he will not do so. Nor will he fire prosecutors in the Southern District of New York who are investigating his associates. Indeed, Congress is considering legislation that would insulate prosecutors, especially independent counsels, even further.
It is important for prosecutors to be independent of politics, but prosecutors are not above the law. Prosecutorial abuse has long been rampant throughout the country, as civil libertarians have been pointing out from time immemorial. The Supreme Court has immunized prosecutors from legal liability for many of their excesses because prosecutors are guardians of justice.
Yet, as the Romans asked, “Who will guard the guardians?”
In theory, the attorney general of the United States is supposed to check against prosecutorial abuses by federal prosecutors. But Attorney General Jeff Sessions has recused himself from this entire investigation and his deputy, Rod Rosenstein, is conflicted by his status as a key witness in many obstruction of justice investigations of the president. State prosecutors are subject to even fewer checks, and many of them are elected and play to their constituencies.
The courts, too, are supposed to serve as a check against prosecutorial abuses. Yet when District Judge T. S. Ellis, who presided over the first trial of former Trump campaign chairman Paul Manafort, called out prosecutors for using Manafort as a means to getting their real target, President Trump, Ellis was roundly criticized, including by some civil libertarians. Despite his criticisms of the special counsel, Ellis lacked the power to do much about what he regarded as abuses.
The dangerous reality is that, today, many prosecutors are above the law, even when they engage in prosecutorial misconduct. There is no effective check on their overzealousness. Many of these abuses occur behind the closed doors of a prosecutor’s office, in the secrecy of grand jury rooms and in the corridors where secret deals are made with informers. Prosecutorial decisions and actions are among the least transparent of any government officials.
Today, the Special Counsel, the Southern District, the New York attorney general, the Manhattan district attorney, and other prosecutors are targeting President Trump and his associates. Tomorrow they could be targeting Democrats. The day after tomorrow, they could be coming after you. There should be an effective check on prosecutors. It should be a check that does not interfere with their political independence but that makes sure they are not targeting Americans based on politics, or employing prosecutorial tactics that endanger civil liberties.
One check that seems to be working is the inspector general of the Justice Department, whose report on the conduct of former FBI Director James Comey during the campaign was widely seen as fair and objective. But the inspector general’s jurisdiction is narrowly defined and his resources are limited. Congress should create a permanent office, outside of politics, staffed by independent experts in legal ethics, prosecutorial tactics, and constitutional law to oversee federal prosecutors around the country and to assure that they are not overstepping their bounds.
Among those serving in such an office might be distinguished former prosecutors such as Robert Morgenthau, professors of legal ethics such as Stephen Gillers, and renowned constitutional lawyers such as Floyd Abrams. Creation of such an office should receive bipartisan support since prosecutorial misconduct has victimized Democrats and Republicans alike. The beneficiaries would be ordinary Americans who today have no recourse against prosecutorial abuses that are often committed below the radar by overzealous prosecutors anxious to advance their careers.
Honest prosecutors are guardians of our liberty but they, themselves, must be subject to nonpolitical oversight and accountability. Without a process for guarding our guardians, our system of checks and balances will remain incomplete.
Should it be Illegal for Prosecutors to “Flip” Witnesses?11
Recently President Trump said that “flipping” a witness to incriminate a prosecutorial target “almost ought to be outlawed,” saying that individuals who flip are often untruthful.
This statement raises the important question of whether it should be illegal to offer a witness a valuable consideration for providing testimony, as prosecutors allegedly did with Lieutenant General Michael T. Flynn.
Interestingly, it is already illegal for a lawyer to do that—if the lawyer is a defense attorney. If any defense attorney offers a witness an inducement to testify favorably to his client—even if his testimony is 100 percent truthful—that lawyer will be disbarred, prosecuted, and imprisoned. But it is perfectly legal, indeed widely regarded as commendable, for prosecutors to offer major inducements in order to get witnesses to testify against their targets. These inducements include money, freedom from imprisonment, and even life itself.
There are cases in which courts have allowed prosecutors to pay witnesses contingent fees—that is, bonuses—if their testimony results in convictions. There are cases in which prosecutors have threatened to seek the death penalty unless a witness flips against a co-defendant. There are cases in which prosecutors threaten to prosecute wives, children, parents, and siblings of witnesses unless they flip, to offer ten- or twenty-year reductions in sentences in exchange for favorable testimony.
That is why Judge Ellis, who presided over the first Manafort trial, observed that flipped witnesses sometimes have an inducement not only to “sing” but to “compose”—that is, to embellish. Michael Cohen may have been composing when he said through his lawyer, that President Trump knew about the Trump Tower meeting between his son (Donald Trump Jr.) and a Russian. Cohen’s lawyer has now, commendably, walked back this accusation.
You might wonder how all this is legal in light of the federal statute that prohibits the payment of anything of value in order to influence the testimony of a witness. Here is what the statute says:
Whoever … directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness is guilty of a felony. [US Code § 201 (c)(2), emphasis added]
A literal reading of the statute would encompass the offers and threats routinely made by prosecutors to secure the testimony of witnesses. After all, it applies to “whoever,” and “any,” but the courts have ruled that prosecutors are exempt from the words of the statute. Only defense attorneys and their clients are covered by it, despite the broad language.
Several years ago, a US Court of Appeals applied the language of the statute to prosecutors, raising questions about the entire process of paying witnesses fo
r their testimony. But that decision was quickly reversed by a ruling that continued the exemption of prosecutors from the coverage of the statute.
The only requirement is that prosecutors must inform the judge, jury, and defense attorneys of all payments and promises made to witnesses. But such disclosure would not be enough to exempt defense attorneys or defendants from the criminal penalties provided by the witness tampering statute. This disparity unlevels the playing field of our adversary system of justice.
Civil libertarians and criminal defense attorneys have long been skeptical of the widespread tactics used by prosecutors to intimidate, induce, buy, or rent witnesses. We understand how central this tactic is in the way prosecutors bring cases today. Coupled with the other side of the coin—under which defendants who go to trial receive multiples of the sentence they would have received had they pleaded guilty—these twin tactics explain why so few cases today ever get before a jury: fewer than 10 percent in federal court. It is far more advantageous to cooperate with prosecutors than to challenge them.
Notwithstanding the importance of these tactics, they should raise troubling concerns among anyone concerned with basic fairness.
So, I welcome President Trump’s statement about the unfairness of our present system of flipping witnesses, even though I realize it is somewhat self-serving. Would he and his supporters be equally concerned if a special counsel or other prosecutors were using these tactics against his political opponents? Nevertheless, it is important to have these issues raised and debated by all Americans. Today they are being used against Republicans, tomorrow they may be used against Democrats, and every day they are being used against ordinary Americans caught up in our deeply flawed criminal justice system that relies far too heavily on the testimony of flipped witnesses.
Will Mueller Subpoena Trump?12
The long delay by Robert Mueller’s team in responding to the Trump legal team’s offer to sit down with prosecutors has fueled speculation as to the special counsel’s plans. One possibility is that Mueller’s team is preparing to subpoena the president and to defend the subpoena against expected constitutional challenge.
Months ago I speculated, paraphrasing The Godfather, that the Trump team would be making Mueller an offer he couldn’t accept. The purpose behind making such an offer is to allow President Trump to argue that it was Mueller, not he, who turned down the opportunity for a meeting. If that indeed is the tactic, it is likely that Mueller has seen through it and no longer wants to engage in what he regards as a sham negotiation. Mueller may, of course, respond in kind by making the Trump team an offer he knows it can’t accept. In either case, the end result may well be a stalemate in the negotiations and no face-to-face meeting between prosecutors and the president.
If that is the end result, then Mueller has several options. The most obvious is that he could subpoena Trump to appear in front of a grand jury. If the president refuses, Mueller can seek a court order. The Trump team would then claim a variety of privileges and the court might well grant some and deny others. The court should, in my view, disallow any questioning of a sitting president about the motives behind actions he took that were authorized by Article II of the Constitution. Allowing the president’s motives to be questioned by prosecutors sends us down a slippery constitutional slope, especially in a world where all presidents have mixed motives for their actions.
Presidents have patriotic, partisan, historic, financial, egotistical, and other motives for their actions. Allowing a prosecutor to parse these motives would undercut the authority of every president. So it is likely that a judge would refuse to allow prosecutors to ask a president why he fired or pardoned anyone. The Supreme Court has already suggested that the president’s motives in enacting a travel ban do not convert a constitutionally authorized act into an unconstitutional abuse.
But a court might well allow prosecutors to question a president about actions he took before he became president, which are not covered by any privilege. These actions would include paying hush money to accusers, failure to report campaign contributions, and ordinary economic activities. The problem for Mueller is that these actions prior to becoming president are largely within the jurisdiction of the Southern District of New York, which is investigating these matters, not the special counsel.
Trump’s team may also try a broadside attack on the power of prosecutors to subpoena a president for any purpose. They could argue that since a sitting president cannot be indicted or tried for alleged crimes, the use of a grand jury is improper. Only Congress may investigate allegedly impeachable offenses. Alternatively, the Trump team might argue that a prosecutor must show extraordinary need to subpoena a sitting president and there is no need to do that in this case because so many other people, including White House counsel Don McGahn, have provided information. Subpoenaing the president to ask him questions to which they already know the answers is a quintessential “perjury trap.”
No one can predict how these arguments will resonate with a court. That is why both sides have been cautious in provoking a legal and constitutional challenge. Mueller also has an alternative that would not involve a subpoena. He could simply write a report highlighting the fact that the president has refused to sit down with him, despite statements by Trump that he has nothing to hide. He could use the president’s refusal as a building block in a critical report that would be sent to Congress and, ultimately, released to the public.
So stay tuned as the Trump and Mueller teams position themselves for both legal and public relations battles. The Trump team’s goal is to have the public see this conflict as largely political, because such a perception would strengthen Trump’s base and weaken the credibility of any adverse report. The Mueller team’s goal is to have the public see this as an objective legal dispute that is not political in nature but, rather, an application of the rule of law to a controversial president.
In the end, both sides will succeed to some degree in the court of public opinion. But in the court of law, there probably will be a winner and a loser. For now, however, it is too early to know the outcome.
Trump is No Unindicted Co-Conspirator13
During Brett Kavanaugh’s confirmation hearings, Senator Richard Blumenthal (D-CT) questioned the legitimacy of the judge’s appointment to the High Court. Blumenthal said in his opening remarks: “The president of the United States who has nominated you is an unindicted co-conspirator….” Senator Cory Booker has also characterized Trump as “an unindicted co-conspirator.”
Following Cohen’s guilty plea, pundits across the political spectrum have claimed that since Cohen stated in his allocution that he paid hush money “at the direction of a candidate for federal office,” President Trump is now an unindicted co-conspirator.
On Fox News, Jonathan Turley, a law professor at George Washington University, stated that, “If the [prosecutors] believe that what’s in this indictment was true, and that he was directed to make this payment … then the president just became an unindicted co-conspirator.”
Before this claim is repeated so often that people assume it is true, let me state categorically that Donald Trump is not an unindicted co-conspirator and that it is wrong to characterize him as such. An unindicted co-conspirator is someone against whom a grand jury has found probable cause, on the basis of evidence, that he or she is guilty of being a co-conspirator in a crime. But as far as we know there has been no grand jury indictment in this case, because Cohen waived the grand jury and pleaded guilty to an “information” prepared by a prosecutor, not a grand jury. An information is used in federal trials generally when a defendant voluntary pleads guilty and waives the right of an indictment by a grand jury. So unless there is a secret indictment against Cohen accusing Trump of being his co-conspirator, Trump cannot be an unindicted co-conspirator.
Moreover, the information against Cohen did not include the allegation by Michael Cohen that he was directed to pay hush money by the candidate. That self-serving accusation was made b
y Cohen in his statement to the judge. So it cannot be the basis for a conclusion that Trump is an unindicted co-conspirator.
Unlike President Nixon, who had been named an unindicted co-conspirator in an indictment handed down by a grand jury, President Trump has not been accused by a grand jury indictment of anything thus far. Cohen’s guilty plea and allocution cannot turn the president into an unindicted co-conspirator. Only a grand jury can.
Moreover, even if Trump were to be an unindicted co-conspirator, civil libertarians should be wary of any such designation.
When President Nixon was named “unindicted co-conspirator” in 1974, I yelled foul, even though I voted against Nixon and was critical of most of his policies. I thought it was unfair to designate the president as an unindicted co-conspirator, since a person in that status has no right to defend himself because he is never brought to trial. I urged the ACLU, on whose board I then served, to challenge this misuse of the grand jury and to protect our political enemy’s civil liberties.
Courts have also noted that unindicted co-conspirators have no legal forum in which to defend themselves. In United States v. Briggs, 514 F.2d 794 (5th Cir. 1975), the Fifth Circuit Court of Appeals found that a federal grand jury had violated the due process rights of several activists when it named them as unindicted co-conspirators in a plot to disrupt the 1972 Republican National Convention. The court wrote that the due process rights of the alleged co-conspirators were violated and suggested that if the government had probable cause, it should have indicted the co-conspirators instead of naming them in a “presentment.” A “presentment” simply names the accused, but is not the basis for a trial. The Briggs court wrote:
The Case Against the Democratic House Impeaching Trump Page 21
