A prosecutor must be able to indict a sitting president: the OLC’s “equitable tolling” problem

My new Slate piece, with big thanks to a bunch of smart legal scholars and TwitterLaw friends:

Last week, prosecutors in the U.S. District Court for the Southern District of New York alleged in court filings that Donald Trump directed his former personal attorney, Michael Cohen, to make hush money payments that violated campaign finance laws. The prosecutors recommended serious prison time for Cohen, and commentators remarked widely that Trump could be facing his own indictment if he were not president, because the Department of Justice has a policy of not indicting a sitting president. But this news highlights a major problem with this policy: statutes of limitations. The intractability of that problem is a compelling argument for why prosecutors must be able to indict a sitting president. Otherwise, a president could escape prosecution for many felonies by running out the clock.

The campaign finance felony Trump may have directed has a five-year statute of limitations, after which time a defendant cannot be tried if he has not been indicted. What if President Trump wins a second term?

Link to read more here.

Slate: Whitaker should learn from Nixon’s lawyers: If you obstruct for a corrupt president, you go to jail

My latest in Slate, as we are still waiting for any Flynn documents tonight:

As one of the co-authors of an amicus brief challenging President Donald Trump’s appointment of Matthew Whitaker as acting attorney general, I believe that Whitaker’s appointment as a “department head,” bypassing the Department of Justice’s Senate-confirmed officers, violates the appointments clause of the Constitution. That has not stopped Whitaker from taking the job. With this power, Whitaker could obstruct the Russia investigation in many ways. The glaring legal problem for Whitaker—in addition to the illegitimacy of the appointment itself—is that any step he takes to slow or impede special counsel Robert Mueller’s investigation potentially could lead to an obstruction or bribery conspiracy charge against him, even if an attorney general would ordinarily have the power to make such moves. In case he is ever tempted to obstruct the Russia probe on the president’s behalf, Whitaker would be wise to study the history of Nixon’s two attorneys general and six other lawyers indicted for participating in Nixon’s legal scandals and what became of them.

Read link for more here. (I’ll be on Lawrence on MSNBC to discuss tonight, 10 pm)

Bush Sr. was a better president than Clinton was

I posted a short tweet that annoyed a lot of people, apparently:

I could make a case that George HW Bush was solidly one of the 10 best presidents all time. The man he lost to was solidly not. We should mourn Bush and the passing of his version of the GOP, replaced by the Confederacy of Dunces – from his son directly to Trumpism.

I’m a proud liberal who cast his first vote for Clinton over Bush, voted for Clinton over Dole, was an early Obama supporter, and voted for Bernie. Here’s my super-concise bottom line: I’ll take a moderate Republican whose signature legislative accomplishment was a bipartisan tax-raising budget deal and whose signature foreign policy achievements were ably managing the end of Cold War and then a well-executed multi-lateral coalition war that did not lead to a disaster…

…over a conservative Democrat, most of whose long-term achievements were cynically conservative, had a mixed foreign policy record, decisively lost Congress (the first time the GOP took the House since [correction: 1953]), and became only the second president to be impeached in U.S. history — for some incredibly stupid conduct, which made his second term a totally wasted four years.

Here are the best things Clinton did with long-term impact:

  1. RBG and Breyer
  2. The 1993 budget deal, which moved towards balanced budgets with tax increases, and navigated through the conservative Dems in Congress.
  3. Oslo and the peace process in Israel/Palestine, but that ultimately collapsed
  4. CHIP.

But Clinton’s domestic accomplishments were markedly conservative, and people forget just how bad the legislative record was, just off the top of my head. Keep in mind that blew the health care opportunity with hubris and chaos, and then turned sharp right:

  1. Welfare “reform.” (Cutting families off).
  2. AEDPA death penalty expansion and habeas restriction.
  3. A terrible anti-immigration law IIRIRA. A terrible law to get himself re-elected.
  4. The Prison Litigation Reform Act. Dreadful.
  5. The Crime Bill of 1994, with gun control on the positive side, but some right-wing compromises. And it was billed by the framing of “super-predators” as a coded racist dog-whistles. Not nearly as bad as Willy Horton, but still.
  6. Don’t Ask Don’t Tell (exec order) and anti-gay marriage DOMA

Foreign policy other than Israel/Palestine was disappointing. Rwanda, Somalia, delayed intervention in Bosnia/Herzegovina.

And then there’s Whitewater, perjury, obstruction of justice, and impeachment. We can agree that Ken Starr was an abusive partisan hack, but Clinton recklessly opened himself up to all of it.

Now for Bush Sr. There is a LOT not to like, too. I’ll grant that the Willie Horton ad was a low point in American politics. Clinton used race in his 1992 campaign, too, to marginalize Jesse Jackson for political points, but it is nothing compare to Willie Horton. So I fully concede that terrible mark against Bush. And there’s Clarence Thomas. And I’ll admit that Souter was a happy accident.

But I’ll take Bush’s bipartisanship and multi-lateral foreign policy success over Clinton’s record. Bush’s 1990 budget deal moved towards deficit reduction relying mostly on Democratic votes. The bill passed the Senate 54-45, with 35 Democratic votes! Stunning compromise. And Bush was punished for it by increasingly ideological GOP leaders and voters.

Bush also managed two foreign policy challenges with deft multilateralism: the end of Soviet Union and the Iraq War. Was the Iraq War avoidable? Maybe. But once the crisis hit, he built an international coalition, won decisively, and then — here’s the key — he avoided the disaster that his son created by pulling back against Gen. Schwartzkopf’s push to march to Baghdad, a tough call, but the right call. And a really important call.

Bush also took steps to push Israel towards peace negotiations, too (opposing the finance of new settlements).

And Bush did not get himself impeached.

Did Bush have some right-wing policies? Some, but I think we should appreciate the lost species of the moderate Republican, and not forget how Clinton appropriated so many right-wing policies himself. Did Bush have some ethical challenges (pardon Weinberger?). Sure, but fewer relative to most presidents.

So yes, I’d rank Bush above Clinton. Solidly.

Whitaker: Crony Threat as Political Leverage

One concern I have about Trump’s use of Whitaker is that Trump will use the fear of Whitaker’s obvious hackishness to nominate somone a little less obviously awful, someone who can actually undermine Mueller more subtly and skillfully, and the Senate will confirm that person quickly to get rid of Whitaker… and to limit Mueller more effectively. I think this what people mean by constitutional hardball. And by the term “gaslighting,” as much as I don’t love that particular phrase.

An Acting Attorney General is an Officer: Digging into the “substitute teacher”/acting principal analogy

The OLC memo on Whitaker says that he is not a principal officer, because he is either an inferior officer or not an officer at all. I have addressed before that the Acting AG cannot be an inferior officer, because he is a department head, and the Constitution tells us that a department head is a principal officer.

In one of the most helpful posts on this whole debate, Mary Lederman and Walter Dellinger offer a footnote with a helpful analogy:

Will Baude suggests that “as a matter of text and structure,” it appears that a President can’t name an “Acting” Attorney General without Senate confirmation because “[o]n any given day, the office of Attorney General is a ‘principal’ office, so it should require a principal appointment, one with Senate confirmation, to occupy that office even for a day.”  That conclusion may or may not be correct, but we aren’t convinced it follows naturally from the “text and structure” of the Appointments Clause itself–because it begs the question at hand, namely, whether the person temporarily performing the office’s functions “occupies” (or holds) that office.  Think, for example, of a school district that requires the superintendent to approve of a principal’s hiring of all teachers, but that also permits a school principal unilaterally to hire persons to fill in for such teachers in the event of an unexpected “vacancy,” e.g., illness, vacation or removal.  Of course we call such “transient” replacements “substitute teachers”–and we don’t usually think of them as occupying or holding a school “office” or position in the way we think of the “permanent” teachers–of holding the position of “teacher.”  They’re simply filling in, and that’s why it’d be unremarkable for the school board to prescribe a different, somewhat less formal and less trustworthy manner of hiring them (i.e., without the approval of the superintendent) than it does for “permanent” teachers.

I think this analogy is helpful, but I think it misses the appropriate level of office here. It is odd to analogize the attorney general/acting AG to the teacher/sub, rather than to the school principal/”acting principal.” Continue reading “An Acting Attorney General is an Officer: Digging into the “substitute teacher”/acting principal analogy”

Attorneys General are Department Heads under Article II, and Should Be Senate-Confirmed

In its memo on the Whitaker appointment as Acting Attorney General, the OLC re-labels the Acting AG an “inferior officer” to avoid the Senate confirmation problem [or says that the acting attorney general is not an officer at all. More on that later]. The OLC asserts that the temporariness of the acting appointment makes him “inferior,” but time-boundedness has no relationship to the fundamental problem that comes directly out of the Constitution’s text:

  1. An Acting Attorney General is the head of a department, the DOJ, whether short- or long-term.
  2. A head of a department is plainly a principal officer as a matter of constitutional text.
  3. Principal officers must be confirmed by the Senate.

Each of these three steps is clear. The strong version of this textual argument is that there can be no such office as Acting Attorney General or any kind of acting head. Statutes might delegate many tasks of a department head to deputies and assistants, but there should be no unconfirmed acting department head of any kind under Article II.

The weaker version from this reading of Article II is that as long as Congress and the President have created an acting department head, that officer must be Senate-confirmed in some capacity, and probably limited to confirmed officers from that particular department, at least to mitigate the problematic constitutionality of this office as a matter of constitutional avoidance. [On this approach, I agree with Marty Lederman’s and Walter Dellinger’s analysis here, especially their point #2 under the Appointments Clause].

I started this analysis of the OLC’s memo and its misleading historical claims in this long earlier post. This present post is intended to be more focused on the constitutional merits, and it is meant to be more direct. Continue reading “Attorneys General are Department Heads under Article II, and Should Be Senate-Confirmed”