The President’s Removal Powers and Faithful Execution

The DOJ has asked SCOTUS to give the president unprecedented powers to fire independent agency heads (like the heads of the Fed, the CFPB, the Federal Trade Commission, the Nuclear Regulatory Commission…).
But in the NY Times, Ethan Leib & I argue that the Constitution’s presidential duty of faithful execution empowers Congress to guard against presidential bad faith….

Quid Pro Quo: The Trump Transcript is a Felony, Not Just a High Crime

Folks, this just is not so hard. Just read the transcript.

It contains an explicit quid pro quo for felony bribery.

Zelensky: “We are ready to continue to cooperate… buy more Javelins” ⁦

Trump⁩: “I would like you to do us a favor though.”

This is linguistically the same as “If you do us a favor…” or “However, you do us a favor…” It is a conditional phrase that creates a condition of exchange.

There are two basic elements of bribery. First, quid pro quo:

A: I would like to you to do me a favor.

B: “I would like you to do us a favor though…”

Check.

Second: Under the bribery statute, 18 USC 201, the “quo” must be “corrupt… influence,” “fraud,” or “a violation of lawful duty.” On page 4 of the transcript:

Trump: “The other thing, there’s a lot of talk about Biden’s son, that Biden stopped the prosecution…”

The quid pro quo from the top p. 3 moves immediately to Trump’s next point, at the bottom of p. 3/top of page 4: Zelensky should work with Giuliani and AG Barr “to find out about” “Biden’s son” & “Biden.” This is bribery as corrupt influence 18 USC 201(b)(1)(A) and a violation of lawful duties in terms of civil or criminal campaign laws (18 USC 201(b)(1)(C).

I have been critical of those who claimed that the Trump Tower meeting in June 2016 was a criminal campaign violation, because it cannot be criminal to talk to foreign nationals about candidates. The Clinton campaign indirectly investigating by having FusionGPS/Christopher Steele talk to foreing nationals cannot be criminal. But there is a world of difference between those conversations vs. pressuring a foreign government’s prosecution force to do your opposition research for you and potentially indict the family of your opponent (especially in context of withholding $391 million in aid).

The harder question here is that of course some quid pro quo exchanges with foreign governments are lawful and valid: Ukraine should pay for the Javelin missiles, and of course Trump could say, “You need to pay for the missiles, though.” If a president thought a terrorist or spy was on American soil, a president could offer arms deals or other support to encourage cooperation. That’s not bribery.

So the key is that asking a foreign government to investigate or prosecute a rival or his family is corrupt in this context. This might be true in any corruption case against any rival (no clear and present danger. Hunter isn’t going to kill anyone). But it seems clear when the case is apparently so weak.

This is unlawful foreign solicitation/coordination. It doesn’t matter if it rises to the level of a criminal violation. It is a civil violation of campaign finance law in itself to solicit a foreign government to conduct opposition research for your campaign, especially given the record of Trump’s 2016 campaign (which I documented here as criminal by Manafort and Gates, and would at least be a civil violation by the campaign).

Key reminder: “High crimes and misdemeanors” for impeachment ARE NOT limited to felonies. The Framers purposely used the English phrase for abuse of power, not felonies. If people argue this transcript is bad but not criminal, they are missing the point and moving goalposts.

In terms of evidence of consciousness of guilt:

The call took place on July 25, with Trump saying AG Barr & Giuliani were in on this plot. A week before: Trump order Mulvaney to block $391M from Ukraine. 3 days after: Trump forces out the uncooperative DNI Coats for his hack in the House, Congressman Ratcliffe. Many officials are implicated.

Five final observations:
1) Some people say Trump’s Biden request came after the quid pro quo “though.” This is wrong, because Trump linked a first thing (CrowdStrike and “the server, they say Ukraine has it”) and “the other thing,” Biden, which came immediately after.
But let’s think about Trump’s CrowdStrike and “server” reference. What’s that about? That’s about the 2016 Russia hack of the Clinton server. Trump is trying to get Ukraine to produce evidence (propaganda) about the 2016 campaign to dispute the claim that Russia was behind the hacking, as part of a crazy conspiracy theory that Manafort’s enemies in Ukraine set him up. So even this effort by itself about CrowdStrike and the server is an effort manufacture campaign propaganda for 2020.
2) This bribery transcript is so damning and criminal, and yet the White House just released it without a fight. It’s hard not to wonder what must be in the IG whistleblower report, Trump’s tax returns, and Trump’s bank records…
3) If Trump, Barr, & Giuliani had to take such risks to press Ukraine to investigate, it suggests the DOJ and FBI resisted their corrupt pressure for a partisan prosecution of the Bidens. That says a ton about the weakness of Trump’s lies & the strength of our rule of law…
4) Impeach Barr. It is obvious Barr must recuse himself. It is equally obvious Barr will resist such calls… But impeaching Barr for such conduct either forces him to recuse or highlights his unethical behavior if he won’t. At least it scrutinizes his conduct.

5) Emoluments! It’s not just the felony quid pro quo… There is also an explicit and sad #Emoluments suck-up by Zelensky on p 4-5:

“The last time I traveled to the United States… I stayed at the Trump Tower.”

Courts: take note of this causal nexus for plaintiffs’ standing and corruption.

Bonus: is this what Giuliani and Trump meant when they said the Take Care clause gabe the president a duty to outsource prosecution to the Ukrainian government?

Two speaking events in September

September 15, 5:00 – 6:30:

League of Women Voters:

Is our Constitution working?

How is our Consitution holding up?  Is there still a balance of powers among the three branches of government? Is the Supreme Court still an independent branch of government or should structural changes be made? What about the independence of the Fed, the Attorney General, and the Department of Justice?  Are we near a constitutional crisis? See details here.

Kendrick-Durand House and Grounds

286 Waverley Avenue
Newton, MA 02458
 

September 24: The Future of the Supreme Court

JCC Boston Hot Buttons, Cool Conversations Series

We will examine the shift in the Supreme Court and its power to determine the direction of hot button issues including reproductive rights, gun laws, and immigration. We will look at the Court as a bellwether of this nation and examine the power as the highest court. Does the Court reflect the views of the country and where it’s headed?

With Kate Shaw, Gary Lawson, me, and moderator Robert Barnes (Washington Post)

Tuesday, September 24, 2019 at 7:30pm

Riemer-Goldstein Theater, Leventhal-Sidman Center

More info here. Tickets here.

Three podcasts: TrumpCast on Mueller, Embedded, and Throughline on Mass Incarceration.

Just linking to three podcasts I was honored to be a part of over the last few weeks. I love the podcast format because it allowed each story to go into more depth and analysis. And I was particularly impressed with the depth and engagement of each of these hosts and producers.

“Which Volume of the Mueller Report are you?”: TrumpCast with Virginia Heffernan on Mueller’s testimony here.

NPR’s Embedded “Worse than Willie Horton” on Judicial Elections here.

NPR’s Throughline on Mass Incarceration here with Khalil Gibran Muhammed, John Pfaff, and Emily Bazelon.

The Mueller Report’s Errors

In Politico, I wrote a piece calling for one or two expert lawyers to ask the questions at the Mueller hearing, rather than the members of Congress. That model worked in Watergate and Iran Contra. In that piece, I put together some of the errors in the Mueller Report.

Here is a concise list all in one place:

Error #1: Campaign Coordination. The DOJ assigned him to investigate “coordination.” His report stated “‘Coordination’ does not have a settled definition in fed criminal law. We understood coordination to require an agreement—tacit or express.” Wrong.
Congress explicitly rejected such a permissive interpretation. In 2002, Congress passed a statute declaring that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination,” and any knowing and willful violations are criminal.  The FEC followed through accordingly: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” w/o any requirement to prove agreement. And the Supreme Court validated these rules in 2003: “Expenditures made after a wink or nod often will be as useful to the candidate as cash.” And the Supreme Court also explained that this was a long standing rule: “An agreement has never been required under §315(a)(7)(B)(i), which uses precisely the same language as the new provision to address coordination with candidates, and which has survived without constitutional challenge for almost three decades.”

Error #2: Mueller’s failure to clarify which legal standards he was using: Beyond a reasonable doubt? This created a lot of confusion,  which enabled Barr and Trump to mislead. By preponderance or by “substantial credible” evidence, Mueller found conspiracy and illegal coordination. See my New York Times op-ed on this problem.

Continue reading “The Mueller Report’s Errors”

To get Mueller to answer, don’t have Congress ask the questions. Use the Watergate/Iran-Contra Model.

My piece in Politico:

“If recent history is any guide, Robert Mueller’s much-anticipated Capitol Hill appearance on Wednesday will fizzle into a mix of political grandstanding by the questioners and frustratingly narrow answers from the star witness. Congress’s biggest public chance to highlight the links between the Trump campaign and Russia, and the president’s acts of obstruction, will become a chance for members to showcase their wit, score politcial points and maybe even go viral with a dramatic exchange. This one was originally scheduled for last week, and a main reason for its delay is that the junior members of the Judiciary committee wouldn’t have enough time to get their own questions in.

So far, the solution has been to expand the hearing time. Here’s a better one: None of the members should ask the questions at all.

Their expert staffers should ask all the questions—not just to resolve the battle of egos, but to give Congress its only chance to make any real progress on the issues…

For more, follow this link.