Root for Sessions to Hang On

It may seem bizarre to root for Sessions to stay AG, and it may be cruel to want anyone to suffer daily Tweet attacks from Trump, but we should be hoping Sessions does not resign. Trump has a strategy: get Sessions to resign, rather than have to fire him, so that Trump can use a recess appointment to find any Senate-confirmed Trump-loyalist to serve as a new AG and to do his dirty work to fire Mueller. Steve Vladeck has a terrific post today explaining the legal framework and why a resignation rather than a firing is so helpful to Trump.

Update: It looks like Senate Democrats have found a way to block Trump from making recess appointments, so it may not matter if he fires Sessions or forces him to resign through humiliation.

Tomorrow: How a Bill Becomes a Disaster

McConnell’s strategy is now out: tomorrow, he is going to offer the health care bill that the HOUSE ALREADY PASSED. This is a huge move, because if the Senate passes it, it will be DONE. Trump will sign it, and Schoolhouse Rock fans, you know that’s how a bill becomes a freaking disaster. McConnell will be gambling on a high risk, high reward (from GOP donors). But with McCain flying back early from surgery to vote yes, McConnell is going for broke. Call Senators at 844-432-0883. Collins and Rand Paul are probably no votes. We need at least one more, and it probably comes down to Heller (NV), Capito (WV), and Portman (OH).

What if Trump fires Mueller or starts mass pardons? It would backfire.

Note: Slate published this post as “Trump Can’t Escape the States.”

 There are more and more signals that Trump is exploring firing Mueller and pardoning anyone and everyone in his circle. So what would happen next? The bottom line is that those moves would backfire spectacularly.

First, can Trump pardon himself? That’s surprisingly hard to answer. The constitutional text gives no answer, and the Convention debates aren’t particularly helpful. Some people cite the Latin phrase “Nemo judex in causa sua” (One can’t be a judge in his own case) as some kind of answer, but the pardon power is executive, not judicial, so a president isn’t formally a judge in his own case. Plus we don’t live in Rome, even if the Latin sounds wicked smart. The bottom line is that the only significant barriers to self-pardons are politics (impeachment) and federalism (state powers).

 Presidential pardons can’t apply to state prosections. So state attorneys general, especially NY’s Eric Schneiderman, DC’s Karl Racine, and Delaware’s Matthew Denn should think about cancelling their summer vacation plans.  (Yes, Delaware. Go Google “quo warranto.” Or see my old post or see below.) And maybe they should open up some office space for Bob Mueller and his A-team when he inevitably gets fired for getting closer and closer to hard evidence of serious crimes.

Anyway, three big points: 1) This is your increasingly regular public service announcement that the president cannot pardon people for state crimes. Even if Trump pardons Kushner, a state prosecutor can bring charges under state law any time. Similarly, Trump can be prosecuted under state law. Nixon’s attorney general concluded in 1974 that a sitting president can’t be indicted, but there is no constitutional text or precedent for such a conclusion, and it was obviously an interpretation that benefited Nixon. I think this is an open question, and on balance, I think the better argument is that the president can be indicted.

2) Pardons will backfire. If you’re pardoned, you can’t plead the 5th Amendment, the privilege against self-incrimination, because you can no longer face a penalty for incrimination. So if Kushner, for example, gets pardoned, he can still get a subpoena to testify. If he tries to plead the 5th, he would be help in contempt of court and face jail. If he testifies and lies, the pardon for old crimes does not extend to new crimes post-pardon. He would face jail for perjury. So ultimately, Trump pardoning Kushner, Flynn, etc. would actually make it more likely that they would have to testify.

[Update on pardons: Upon reflection, I overlooked that one of my points, that state prosecutors can charge state crimes even after presidential pardons, conflicts with another point: that pardoned people can’t plead the 5th. If a federally pardoned person might face state charges, they can still invoke the 5th Amendment’s privilege against self-incrimination. But even if they can take the 5th, the danger of state conviction under a mountain of documented evidence would still be enough to get someone like Flynn or Manafort to flip and be a witness against Trump.]

3) Pardons can be their own basis for impeachment. Impeachment is for high crimes and misdemeanors, which are not the same thing as regular crimes in the books. If a president abuses his or her power, that abuse can be the basis of impeachment even if that abuse isn’t formally covered by any criminal statute. For example, if Trump simply disregarded Supreme Court rulings on immigration (or if he disregarded the law to sabotage health care), Congress could impeach and convict. Abuse of the pardon power could be the same. I’d go further and argue that the use of the pardon to obstruct a criminal investigation is, well, obstruction of justice.

A president has the power to order a military strike, but not if his intent is to murder someone who has dirt on him or who is sleeping with his wife. Similarly, Trump has the power to fire FBI directors, but his intent can be criminal and violate the obstruction statutes (18 USC 1503, 1505 and 1512(c)(2)), as I’ve written before. So too does a president have the power to pardon, but not for bribes, for example. And in this case, Trump has the power to pardon, but not to obstruct justice (under the same statutes).

4) OK, on to the Mueller question. Can Trump fire Mueller? I’ve been reading a lot about this, and I’ll rely on Jack Goldsmith, who was part of the Comey/Mueller high speed thriller in 2003: It turns out that there is no clear answer.

So let’s assume that Trump will fire Mueller. It turns out that there are many ways for him to get back on the case:

A) A state prosecutor, with the help from a state attorney general or governor, could hire Mueller and his A-Team of lawyers. They’d have subpoena power under state criminal law.

B) State attorneys general could use their quo warranto power to investigate the Trump Organization, fraud, and money laundering from Russian sources.

C) A Congressional committee could hire him, such as the Senate Intelligence Committee. Or Congress could create a Joint Select Committee.

D) Congress could pass a new Independent Counsel statute that circumvents the president. Congress would need a veto-proof 2/3 supermajority of each House. Don’t hold your breath on that one.

E) The civil litigation on emoluments (there are now three suits) and the very intriguing new suit (Cockrum) against the Trump campaign for hacking conspiracy can also pursue many of the same questions, and Mueller and his lawyers could be called in as a witness in these cases.

The bottom line is that there are many paths to continue this investigation. If Trump pardons people or fires Mueller, those moves will backfire almost as badly as firing Comey.

A New Civil Case Powerfully Opens a New Front Against Trump for Russia Conspiracy

A new civil complaint has been filed against the Trump campaign, and it is perhaps the most compelling private case filed so far, because it focuses powerfully on the Russian hacking conspiracy with three plaintiffs who were concretely harmed by the release of private information. In Cockrum et al. v. Donald Trump for President, the plaintiffs have solid standing and a firm foundation in a statutory claim: long-standing civil rights law protecting voting rights and privacy from intimidation and harm. One question that needs to be resolved is about whether it fits the requirement for “state action” by the defendant, but the history of the statute should help answer this question. And because the conspiracy involved interstate (and international) electronic conduct, the Interstate Commerce Clause should be sufficient to extend this statute to these (quasi-)private actors.

Each plaintiff has a compelling story of harm, because the hacking conspiracy released deeply private information or sensitive financial and contact information. The complaint sets out step-by-step the facts suggesting the coordination between Russian hackers and the Trump campaign, and it is actually a riveting weaving of many strands and events over the past year.

The legal theory comes from statutes passed after the Civil War to protect civil rights during Reconstruction (it was originally called the Ku Klux Klan Act of 1871, or the Enforcement Act, and these set of statutes were intended to address non-state actors organized to intimidate). The statutory basis is 42 U.S.C. Section 1985(3):

(3)Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire … for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

 

This statute directly addresses conspiracies to intimidate voters or injure voters because of their support for a candidate. The hackers knew that they were releasing private financial and other private information, and that knowledge is enough to constitute a conspiracy of intimidation, even if it was not their primary goal. The very goal of hacking was to release private information, without regard to whose privacy would be infringed. And it is certainly plausible from the facts that one of the goals of the hacking was to intimidate the Clinton campaign and its supporters — including these plaintiffs — from participating in the election. There are certainly many others who could have brought this suit, but these three plaintiffs have a strong case. And the plaintiffs do not need to be targeted because of race. They have a valid case if their freedom of association and political support is targeted. For background on how Section 1985 has been applied broadly, see this piece.

There is some question, under the precedents, about whether the defendants need to be state actors or officials. Keep in mind that these statutes were originally passed to protect against the KKK, non-state actors who organized to intimidate. The concept here is acting “under the color of state law,” so that a private actor is covered by the statute’s requirements. The question may be if a campaign is a quasi-state actor. Courts have also allowed the Commerce Clause to be the basis for extending this law to private parties, but these cases have been curtailed. See Griffin v. Breckenridge, 403 U.S. 88 (1971) and Scott, 103 S.Ct. at 3357. As I noted before, the interstate/international hacking, like wire fraud, is covered by interstate commerce, and thus the statute through the Interstate Commerce Clause should apply to this particular conduct. More work needs to be done in this area.

This case may seem redundant with Mueller’s investigation and the Senate and House investigation, but what if Trump fires Mueller? What if the House and Senate Republicans stall? A civil case offers the advantage of decentralized access of discovery, and potentially a more public investigation while the other institutions move secretly and slowly.

More problems with the campaign finance charge against Don Jr.

The statute we’ve been discussing as the basis for prosecuting Don Jr (based only on what we already know) is 52 USC 30121, soliciting a contribution or “thing of value” from a foreign national. In addition to the problem of applying “a thing of value” to general information and meetings (a 1st Amendment problem and a line-drawing problem, as I’ve written before), it’s also a problem that the conduct might not even be criminal under the statute.

I’ve been trying to find any mention that there is a criminal penalty for 52 US 30121 as applied to Don Jr’s attempt.  This section does not mention criminal liability (jail or criminal fine), nor does the other section in the statute that covers enforcement across the sections, 52 USC 30109 (it doesn’t mention 30121 at all). The only possible criminal penalty would be in 30109(d)(1)(a), but only if the value of the contribution or “thing” exceeds a threshold of $2,000 or $25,000. It’s hard to put any value on the completely ambiguous prospect of some information, and of course, at this stage, the parties claim the value was zero (I’m skeptical, but we are only working with what we know now).  Some have cited government webpages or cases with criminal prosecutions under 30121, but those cases apply only when there was a contribution over those dollar value thresholds, unlike this case.

The bottom line is that it’s not clear that the statute offers any criminal liability for Don Jr, even if the text of the statute (“thing of value”) could apply to the Russia lawyer’s offer of information.

 

Re-thinking the “Thing of Value” Campaign Finance Charge Against Don Jr.

[I was interviewed on PBS on this topic. Link here.]

I’ve been thinking a lot about my claim in a post on Monday night that Donald Trump, Jr., committed a crime by soliciting a “thing of value” (opposition research) from a foreign national, under 51 U.S.C. 30121. All day Tuesday, I’ve seen more and more commentators, lawyers, and commentators make the same argument. On Tuesday morning, I posted a note of caution about this interpretation for political speech and 1st Amendment concerns. After thinking about it more and reading more, I don’t think such a broad interpretation is correct, and I retract my earlier claims.

First, how do we draw a line between “opposition research” and information or investigation? It’s impossible. So essentially, this interpretation would criminalize a campaign official talking to foreign nationals about anything related to the opponent or even their own candidate.

For example, in 2012, let’s say a newspaper or website published a document purporting to be a Kenyan birth certificate for Barack Obama. Let’s say an Obama campaign official traveled to Kenya to obtain that birth certificate. Would the certificate itself be a “thing of value”? What if that official talked to Kenyan officials about how to prove or disprove the authenticity of that birth certificate? Any conversation would be a “thing of value.” Now let’s say a Romney campaign official did any of these acts (or back in 2008, a Clinton campaign staffer had done the same). It would be “opposition research,” but it would have to be protected speech and not a criminal violation.  [Update: One reader somehow thought I was implying that it would be illegal for Obama staffer but legal for Romney staffer. Just to clarify: I think it would obviously be legal for the Obama staffer to talk to the Kenyan national, even though the information is obviously “a thing of value.” So if it’s legal for an Obama staffer, it has to be legal for a Romney staffer.]

Similarly, let’s say in the summer of 2016, a Russian official contacted the Clinton campaign with information that the Russian government was behind the hacking. Such information would be a “thing of value” to the campaign. Maybe the most appropriate reaction should be to direct the Russian informant to the FBI, but surely it would not be criminal for a Clinton official to meet with the informant to make sure to get the information as soon as possible.

Moreover, I cannot find any case that comes close to applying the campaign finance “thing of value” wording to information or opposition research from a foreign national. And there seems to be good reason for courts to avoid going so far.  [I’m adding a note here about the rule of lenity: In construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.]

I have more to say on new evidence that the Don Jr. meeting was probably related to hacking Clinton emails, given the timeline, but for now, I am being more cautious and circumspect about my earlier claims that there is already evidence of a crime. At this moment, I don’t think the Don Jr. emails in and of themselves constitute evidence of a crime. Other context, such as awareness of Russian hacking before June 3, or the campaign focusing on the hacked Clinton/DNC emails immediately after, might relate to criminal violations of the Computer Fraud and Abuse Act of 1986 and other laws.