Mikhail’s Blackstone breakthrough: Emoluments meant private benefits

I am crossposting John Mikhail’s breakthrough findings on the Emoluments Clause from Balkinization.

For background: The “foreign emoluments” clause of the Constitution states, “[N]o person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Art. I, Sec. 9, cl. 8. The “domestic emoluments” clause states: The President “shall not receive … any other Emolument from the United States, or any of them [any state].”  I have written before about how President Trump is receiving both foreign and state emoluments.  I am working with Mikhail, Jack Rakove, and Gautham Rao on an historians’ amicus brief on the legal meaning and context of the word “emoluments” in the eighteenth century.

Trump’s lawyers have argued in a white paper that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  They suggest a narrow reading excluding the payments to Trump’s businesses for market transactions. I have argued that such market transactions should be considered “office-related,” but Mikhail’s research shows that emoluments are not limited to “office related payments.”  In Blackstone’s Commentaries, the primary usage of the term included private benefits and advantages. As most judges and legal scholars probably know, Blackstone was one of the most important legal sources for the Founding generation. Founding-era Americans cited Blackstone far more than any other English or American legal scholar.  Mikhail also adds a poignant reference to emoluments by the executor of Blackstone’s will, using “emoluments” in reference to the benefits from Blackstone’s estate.

I excerpt Mikhail’s post summarizing his findings:

“Blackstone does not support such a narrow reading [by Trump’s lawyers].  … The majority of Blackstone’s usages of “emolument” involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

For example, Blackstone uses “emolument” in the context of family inheritance, private employment, and private ownership of land.  He refers to “the power and emoluments” of monastic orders; to “the rents and emoluments of the estate” managed by ecclesiastical corporations; and to the “pecuniary emoluments” which the law of bankruptcy assigns to debtors.

Blackstone describes the advantages to third-party beneficiaries of a gift as “the emolument of third persons.”  He uses “emolument of the exchequer” to refer to an increase in the national treasury.  Finally, in explaining the law of corporations, he characterizes “parish churches, the freehold of the church, the churchyard, the parsonage house, the glebe, and the tithes of the parish” as among the “emoluments” vested in the church parson.

A further illustration of the fact that Blackstone understood emoluments to relate to private commercial transactions can be found in the forms of “Conveyance by Lease and Release” that appear at the end of Book II of the Commentaries.  In the first of these forms (“Lease, or Bargain and Sale, for a year”), Blackstone suggests the following language for conveying parcels of land:

THIS INDENTURE . . . witnesseth, that [A.B. and C.]. . . have bargained and sold . . . unto [D.E. and F.G.] . . . the capital messuage, called Dale Hall . . . and all those their lands . . . called or known by the name of Wilson’s Farm . . . together with all and singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, underwoods, ways, waters, watercourses, fishings, privileges, profits, easements, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever to the said capital messuage and farm . . .”

Blackstone uses the same language in his second form (“Deed of Release”).  Both forms can also be found in his Analysis of the Laws of England (1756), published ten years earlier.  Yet Blackstone probably did not create these forms on his own.  Many form books and other legal manuals of the period included similar templates.  In Giles Jacob’s Law Dictionary (1729), for instance, which included not only a dictionary of legal terms, but also writs, case reports, and deeds and conveyances, one finds a “Form of a Release and Conveyance of Lands” with almost identical language, in which “A.B.” conveys to “C.D.” a piece of property together with “all . . . Easements, Profits, Commodities, Advantages, Emoluments, and Hereditaments whatsoever.”

“When Americans bought and sold property during the founding era, they frequently referred to emoluments in their deeds and conveyances…

“Based upon the foregoing considerations, it seems clear that Blackstone did not understand “emolument” in the restricted fashion advocated by Trump’s lawyers.  Nor, it seems, did the founders themselves. The current deadline for the President to respond to the second amended complaint in CREW et al., v. Trump is June 9.  It remains to be seen what originalist or historical arguments, if any, the Department of Justice will make to Judge Ronnie Abrams, to whom the case is assigned.”

Lieberman should not be FBI Director

Get ready for Trump to nominate Lieberman FBI director. And get ready to fight it. Trump would pick Lieberman only because he used to be a Democratic Senator and he would be useful political cover. Lieberman offers Trump a facade of bipartisanship, but it is a poorly kept secret that he resents the Democratic Party leadership for turning against him in 2004. There were many stories between 2004 and 2010 that he was bitter about the Clintons and Obama. He openly flirted with endorsing Trump over the summer, before eventually endorsing Clinton. I didn’t find the flirtations to be a sign of nonpartisanship. Trump’s nomination of Lieberman would be gaming the Senate for rushed confirmation of old colleague, to manipulate Lieberman’s old neo-con Senate buddies McCain and Graham, and to avoid tough questions.

Moreover, Lieberman also doesn’t have enough relevant experience for the FBI. He served as Connecticut state attorney general in the 1980s, and that office plays a law enforcement role, but it is not like FBI today. In particular at this moment, having FBI/DOJ experience in this moment is vital.

Lieberman shares Trump’s Islamophobia. He has surrendered old principles for a post 9/11 right-wing neo-Con agenda. In 2015, Lieberman led a campaign against the Obama administration’s Iran deal for United Against Nuclear Iran. My view is that the opposition to the Iran deal was politicized/partisan. I have written before on the blog about the deal being complicated but necessary because of Russia and China undermining the sanctions no matter what we wanted. But even if one agrees with the opposition to the deal, one should recognize how his leadership of the opposition compromises his role for what must be a non-political position at the FBI in the middle of a politicized crisis.

But what is also disqualifying is his recent breach of professional ethics of disclosure. This year, Lieberman introduced Betsy DeVos as Trump’s nominee in Senate hearings, but he failed to disclose his conflict of interest because of his law firm’s close representation of Trump’s casinos and his campaign. Trump casinos have been penalized repeatedly for laundering money and are suspected of being the origin of Trump’s Russia ties. Lieberman’s firm represented Trump during campaign, and threatened legal action against the New York Times for publishing his taxes.  You can read more here.

More on conflicts here.

I hope the rumors are wrong, and I hope that Trump will not nominate Lieberman. If he does, it will be challenging to overcome the Senators’ self-aggrandizing pseudo-aristocratic view of their own Senatorial privilege of collegiality, almost literally an Old Boys Network. Lieberman is has lost that privilege with his lack of professionalism, and Trump must not be allowed to exploit it.

 

 

Muell-tide

Once upon a time, we celebrated “Fitzmas.” (The 2005-06 Fitzgerald investigation into Valerie Plame leaks by Rove and Libby) Now do we await “Muell-tide” (Myule-tide)? That’s better than Muellukkah. [A twitter follower @jhohos suggests “Mueller Time,” and that’s even better]

We have lots to anticipate optimistically. The Mueller appointment is outstanding. This riveting must-read article is one reason why:

https://www.washingtonian.com/2013/05/30/forged-under-firebob-mueller-and-jim-comeys-unusual-friendship/

Did Trump violate the Espionage Act?

Just read this story about Trump telling classified information to Russian Ambassador Kislyak and Foreign Minister Lavrov.  The opening of the story:

“President Trump revealed highly classified information to the Russian foreign minister and ambassador in a White House meeting last week, according to current and former U.S. officials, who said Trump’s disclosures jeopardized a critical source of intelligence on the Islamic State.

“The information the president relayed had been provided by a U.S. partner through an intelligence-sharing arrangement considered so sensitive that details have been withheld from allies and tightly restricted even within the U.S. government, officials said.

“The partner had not given the United States permission to share the material with Russia, and officials said Trump’s decision to do so endangers cooperation from an ally that has access to the inner workings of the Islamic State. After Trump’s meeting, senior White House officials took steps to contain the damage, placing calls to the CIA and the National Security Agency.

“’This is code-word information,” said a U.S. official familiar with the matter, using terminology that refers to one of the highest classification levels used by American spy agencies. Trump “revealed more information to the Russian ambassador than we have shared with our own allies.’”

The Washington Post reports, “For almost anyone in government, discussing such matters with an adversary would be illegal. As president, Trump has broad authority to declassify government secrets, making it unlikely that his disclosures broke the law.”
But these would be Trump’s violations of the Espionage Act, if he were anyone else other than president. And it’s not obvious that a president could not violate the Espionage Act. Executive immunity is broad, but I’d need to read more on that point.  [Update: I’ve read more, and that’s right: if the President does it, it’s not illegal]. Here is a running list, and it just keeps growing and growing:
18 U.S.C. 793

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(f)

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. Section 798

a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.
 50 U.S.C. 783

(a)Communication of classified information by Government officer or employee

It shall be unlawful for any officer or employee of the United States or of any department or agency thereof, or of any corporation the stock of which is owned in whole or in major part by the United States or any department or agency thereof, to communicate in any manner or by any means, to any other person whom such officer or employee knows or has reason to believe to be an agent or representative of any foreign government, any information of a kind which shall have been classified by the President (or by the head of any such department, agency, or corporation with the approval of the President) as affecting the security of the United States, knowing or having reason to know that such information has been so classified, unless such officer or employee shall have been specifically authorized by the President, or by the head of the department, agency, or corporation by which this officer or employee is employed, to make such disclosure of such information.

Did Trump illegally tamper with a witness?

A few minutes ago, Trump tweeted: “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!”

First, is he trying to appear as Nixonian as possible? Or is he so ignorant of all history that he has no idea how damaging this reference is politically? Either way, it is the panicked behavior of someone who lied about what was said, and is trying desperately to intimidate or create doubt.

Second, it’s also possible that he wants to deflect attention from his confession of obstruction of justice last night on NBC, which I lay out here.  That’s the clearest case of a felony, but I’m watching the media today miss that headline because I think they don’t see the significance of Trump’s admission legally.

Maybe at this stage, politics is more influential than law, but let’s talk about the law. Trump was explicitly addressing media leaks, but we all know that Comey is scheduled to be a witness next week in the Senate (and certainly again thereafter).  Hat-tip to Jennifer Taub, the statutes on witness intimidation are written broadly and enforced broadly.  Here is the relevant text of federal criminal statute 18 U.S. Code Section 1512, with relevant passages in bold:

(b)Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—  

(1) influence, delay, or prevent the testimony of any person in an official proceeding;(2)cause or induce any person to—

        (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;… or
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release, parole, or release pending judicial proceedings…
shall be fined under this title or imprisoned not more than 20 years, or both.
(d)Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from

(1) attending or testifying in an official proceeding;
(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense…; or
(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;
or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.
Comey isn’t going to be delayed or deterred, so (b), Trump’s intent, is more relevant than (d), his actual effect on Comey. I am reading cases today.  As I read more, I am worried that these statutes are overly broad, and that the threshold for intimidation needs to be high, so that we don’t criminalize political discourse.  I’ll keep reading…

Did Trump admit to felony obstruction of justice on NBC?

We are in unprecedented territory, but one can make an argument that in tonight’s NBC interview, Trump just confessed to the high crime of obstruction of justice in violation of 18 U.S.C. Sections 1503 and 1505 [update: 1512(c)(2) might be most relevant].

You can find the text of the interview with Lester Holt here.  This is Trump’s key admission: “And in fact when I decided to just do it [fire Comey,] I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should’ve won.’”  

This is a direct admission that he fired Comey because he wanted to end the Russian investigation. Of course, it is possible for a Trump defender to play semantics, but Trump is making the causal link here himself: When I decided to fire Comey, I was focused on stopping (or impeding) an FBI investigation that I don’t like.

Our legal system has never addressed this question: When the president is firing a law enforcement officer in order to end that officer’s investigation into his own administration, is that obstruction of justice? Of course, the president has the power to fire a law enforcement official, just like he has the power to drop a bomb on someone, but the power to act in one way generally does not make any intent to do that act “legal.” The president has the constitutional authority to order a raid, order lethal force, or issue immigration bans, but that does not insulate those acts from an inquiry into the motives behind those acts, and those motives can constitute felonies (or in the case of an immigration ban, intent can render the ban illegal/unconstitutional). But we have never had an impeachment trial for a president firing a law enforcement official, nor have we ever had litigation over it, so we are in uncharted territory.

If you want to know more about the history and meaning of impeachment for “high crimes and misdemeanors,” I would start with this conversation on Trumpcast between host Jacob Weisberg and law professor Noah Feldman. The bottom line is that the term “high crime and misdemeanors” in English law was broader than regular felonies. The term referred to political crimes like the abuse of power. Feldman explains: “There’s an instinct that it must be about crimes that are on the books, violations of statutes. That is exactly what it doesn’t mean, because the word high modifies both crimes and misdemeanors. High crimes and misdemeanors was a technical term that the Framers knew from procedures that the British used for impeachment, and high means governmental or in connection with, in our case, the presidency. High crimes and high misdemeanors are actions performed in an official capacity by a government official that violate the basic principles of the government and that therefore subject you to impeachment. They don’t have to be actual crimes that are on the statute books at all.”

Based on his research, Feldman suggested that Trump could be impeached for the “high crimes” of corruption, abuse of power, and undermining the rule of law. Trump admitted tonight to those crimes.

But let’s examine whether Trump arguably committed the felony of obstruction of justice under federal statutory law. Here is the most relevant statute:

18 U.S. Code Section 1505: Obstruction of proceeding before departments, agencies, and committees: “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—Shall be fined under this title, imprisoned not more than 5 years ….”

To interpret this statute, I am relying on Charles Doyle’s publication for the Congressional Research Service. “The crime of obstruction of [such] proceedings has three essential elements. First, there must be a proceeding pending before a department or agency of the United States. Second, the defendant must be aware of the pending proceeding. Third, the defendant must have intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.” United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991).

First, what is a proceeding? Courts have interpreted this term broadly. An investigation itself has been interpreted as a proceeding. United States v. Kelley, 36 F.3d 1118, 1127 (D.C.Cir. 1994). [Update: In Kelley, the D.C. Circuit notes that an investigation under Section 505 needs to be more than “a mere police investigation,” and it cites a case excluding an FBI investigation under this statute. Thus, more weight should go to the provision on an inquiry or investigation by Congress. Arguably, Trump dismissed Comey because of his past role in Congressional inquiries and his potential role.]

Second, Trump was obviously aware of the investigation.

Third, what is the requisite intent and what constitutes corruption?  I quote Doyle: “In the case of either congressional or administrative proceedings, §1505 condemns only that misconduct which is intended to obstruct the administrative proceedings or the due and proper exercise of the power of inquiry. In order to overcome judicially-identified uncertainty as to the intent required, Congress added a definition of “corruptly” in 1996: “As used in §1505, the term ‘corruptly’ means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information,” 18 U.S.C. 1515(b). Examples of the type of conduct that have been found obstructive vary.”

Obviously, Doyle does not offer an example of “a president firing an official to end an investigation.” But Trump was acting an improper purpose, quite simply to obstruct the investigation, and thus, to obstruct justice.

Here is 18 U.S. Code Section 1503: “Whoever corruptly, or by threats or force, or by any threatening letter or communication, … endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).” This provision is remarkably broad, and from what I’ve read, it has been applied broadly, but mainly it applies to interfering with judicial officials, rather than investigations. It would be fruitful to research just how broadly it applies to investigations.

[Update with thanks  to Randall Eliason: 18 U.S.C. Section 1512(c)(2) may be a broader provision applicable here:

“(c)Whoever corruptly- (2)… obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

18 USC 1515 defines “official proceeding,” and includes Congress and authorized government agencies. ]

This post is an initial inquiry into the statutes and judicial interpretations, but more work obviously needs to be done. Specifically, I am researching how 18 U.S.C. Sections 1503 and 1505, two obstruction of justice provisions, have been applied to officials firing or otherwise retaliating against subordinates (for whistleblowing, investigating, or threatening to investigate the official’s conduct). That’s basically the case here, and a fair extension of Trump’s own admission. Any help is appreciated. All hands on deck.

 

 

 

 

Kris Kobach is a menace to democracy. Boycott his vote-rigging commission.

Trump is using the Comey firestorm as a smoke screen for a potentially more dangerous move: appointing Kris Kobach vice chair of a new “election integrity” commission, with Vice President Mike Pence as chair. Kobach will make it a voter-suppression/vote rigging commission, fomenting anti-immigrant and racist fears. That’s his expertise and his life’s work. One of my biggest fears has been Sessions, Bannon, and Kobach working together to rig the 2018 and 2020 elections. Frankly, this is a bigger problem than the Russian investigation. Democrats must boycott this commission and mobilize against Kobach’s role immediately.

I first witnessed Kris Kobach’s anti-immigrant project in the 1990s, when I was a Yale undergrad and Kobach was a Yale Law student. Yale groups organized a debate over California’s Prop 187, also called “Save Our State,” a referendum to block undocumented immigrants from access to state services. The debate paired “for” and “against” from the undergrads, the law school, and the faculty. My friend Cristina Rodriguez represented Yale undergrads on the “against” side.  Kris Kobach represented Yale Law’s “for” side. How is it possible that I remember this event 23 years ago so clearly? Because I remember vividly how extreme Kris Kobach was. While the other pro-187 debaters were careful to distinguish between the “legal” and “illegal” process, Kobach struck me even then as far more xenophobic than other Yale conservatives. At the event, I heard that he was brilliant, a star conservative law student.  As a debater, I knew that he was making terrible strategic moves by using xenophobic rhetoric before that Yale audience, and that bad strategy struck me as a sign that he was deeply committed to xenophobia as a 25 year old. His image at that moment is seared into my memory, because I remember thinking, “This dude is really smart and really scary. Remember his name, because he’ll be back with a vengeance.”

He is indeed back with a vengeance. I recognized his name immediately when he popped up in the Bush White House after 9/11 working on national security/immigrant restriction projects under Attorney General John Ashcroft. He then became an alt-right hero in his anti-immigration work for “self-deportation” and anti-“voter fraud” projects (i.e., voter suppression). Just minutes after I tweeted out this story, an anti-Semite/white nationalist Twitter troll replied right on schedule “Kobach for FBI director!” The alt-right has been pushing for Kobach for years, because they know he is a true believer in white nationalism.

If you want to read more about Kobach’s dangerous history, the Southern Poverty Law Center has a profile here, titled “Lawyer for America’s Nativist Movement.” Kobach proposed the “self-deportation” measure in the 2012 GOP platform, and said, “If you really want to create a job tomorrow, you can remove an illegal alien today.”

Building on an anti-immigrant agenda, Kobach has shifted to voter fraud propaganda and voter suppression. He is the architect and promoter of Crosscheck, ostensibly a program to check voter rolls, but in practice, a coordinated campaign to purge voter rolls and engage in “vote caging” and voter suppression. Shockingly, it had a disproportionate impact in purging minority voters from the rolls. You can read the Washington Post’s profile here.  Mother Jones’s profile is here. He has made a career out of false claims about voter fraud (here, here, here, here and here).  In January, he met with Trump, and photographers were able to blow up a photo to read the blueprint for deportation and voter suppression in the new administration. His agenda called for expanding the NSEER program, which some reports suggested at that time could be the basis for a Muslim ban or a Muslim registry.

He didn’t get the job he was interviewing for (Department of Homeland Security), but if he gets this new Vice Chair job, he’ll be able to focus even more intently on vote rigging. And you can bet that Pence and Kobach will try to get jurisdiction over the Russian hacking scandal to put their own spin, disinformation, and fake news out in the media.

Look, the Comey firing is a big deal. But no matter what happens in the Russia investigation, the only hope for stopping Trump and Pence is winning the House, winning the Senate, and then winning the 2020 presidential election. Kobach’s job is to rig the system to make that more difficult. Democrats have to stop this commission before it gets off the ground. Democrats must boycott anything Kobach is a part of.