The Fiduciary Executive: Sessions and Trump cannot fire Mueller

Here’s the second installment in my series with my friend and colleague Ethan Leib on the fiduciary limits on the executive branch, in Slate this week. Sessions should not be able to fire McCabe, and nor should he or Trump be able to fire Mueller, because of the fiduciary obligation under the Constitution and their oath of office to “faithfully execute” the law.

Here’s the legal procedural pay-off:

“American courts have given the language of “faithful execution” in the context of public officials enforceable meaning in past precedents, binding public officials to good faith and loyalty. For example, one case in federal court has held poultry inspectors at the Department of Agriculture to have enforceable public fiduciary obligations to the United States; another has held a former CIA agent to a fiduciary duty of confidentiality. It could be possible for Mueller to seek an injunction from a federal court based on these arguments to block his firing from any official acting for self-protection against the public interest.”

Hypocrisy alert: the death penalty

1. is calling for the execution of drug dealers.

2. Russian organized crime engages in drug trafficking.

3. Has Trump considered whether someone who launders money for Russian mobsters through NY real estate might be considered a kind of drug dealer/trafficker?

(Just to be clear, I am 100% opposed to the death penalty. I’m just noting the potentially glaring hypocrisy, similar to his hypocrisy about due process and the Central Park 5 he wanted to execute.)

Pardons, Firings, and the Faithful President 

The President “shall take Care that the Laws be *faithfully* executed.” This constitutional text historically imposes fiduciary duties of care and loyalty against self-dealing pardons or self-protecting firings, as my friend and colleague Ethan Leib and I argue in The Washington Post:

Odd predictions for 2018

  1. All four Boston teams make it to the finals and lose all four. ( over , or over , or over … unlikely get past , as long as it’s not .

2. Netanyahu leaves office in 2018, but Trump hangs on. I can accept that… as long as…

3. The Democrats take 52 seats in the Senate, and win a comfortable majority in the House. Beto O’Rourke knocks off Ted Cruz. Maybe Bredesen defeats the odious Blackburn in Tennessee, and Democrats sweep the red state incumbents plus Nevada and Arizona.

4. More indictments, more guilty pleas turning into more cooperating witnesses. I’m avoiding specifics.

Kushner, Confirming the Dossier details, and Qatar’s Quid for Russian Quo

My new Slate piece: I connect the dots between the Kushner scandals this week and the Steele Dossier’s details of quid pro quo. Qatar may be the middleman between Putin and Trump, through Qatar’s purchase of Rosneft from Russia, and a Qatar-backed firm delivering a massive loan to Kushner. In between, Kushner manipulated a Gulf State crisis, allegedly to coerce the loan completion at the risk of a regional armed conflict. Details here:

Executive summary: “Russia’s sale of Rosneft Gas is the key event in the Steele Dossier’s quid pro quo allegation. June 2016: Russians offer Trumpers (through Carter Page) a massive payout in return for lifting sanctions. Qatari firm acquires Rosneft from Russia [Dec ‘16]. Kushner seeks money directly from Qatar. But Qatar does not deliver to Kushner. Kushner creates a crisis vs. Qatar w/ risk of war. Then the Qatar-backed Apollo Group delivers $184 million to Kushner.

Additional note:

A colleague pointed out that the 19.5% in both the dossier’s Russia/Carter Page deal and the Qatar Dec.9 deal makes sense, because there is probably  a 20% legal threshold rule for reporting financing and investors. These deals are under that 20% threshold because the dealmakers seem to be unusually focused on secrecy and evading regulators and prosecutors.

Mueller may now have enough to charge collusion as criminal conspiracy 

During the entire investigation, I’ve written or stated that “collusion” is not a crime. But now I’m persuaded that Mueller has legal precedent and probably sufficient facts to convert knowing collusion into a criminal conspiracy charge. I agree with Randall Eliason’s commentary that Mueller has evidence to turn collusion into a conspiracy charge under 18 USC 371, and Mueller is using this approach in his indictments:
“For purposes of Section 371 conspiracies to defraud the U.S., fraud has a different and broader meaning. In 1924 in Hammerschmidt v. United States the Supreme Court held that conspiracy to defraud the U.S. includes schemes “to interfere with or obstruct one of its lawful government functions by deceit, craft, or trickery, or at least by means that are dishonest.’’ A conspiracy to defraud the U.S. under 371 does not need to result in a loss of money or property by the federal government.”
“This theory has been used in election fraud cases in the past. For example, in the 1990’s there was a scandal involving China’s attempts to promote its interests within the U.S. government and potentially influence the 1996 presidential election. Charlie Trie, a Chinese-American with ties to the Clintons, was convicted for violating various campaign finance rules by exceeding legal contribution amounts and concealing the true identity of donors. Among the charges in his indictment: conspiracy to defraud the U.S. under Section 371 by impairing and impeding the legitimate functions of the Federal Election Commission.”
This development is very serious. Obviously, Mueller needs more evidence, but the indictment of 13 Russians contains both this conspiracy charge and facts that might lead a path towards indicting Trump officials and Cambridge Analytics officials. Certainly the obstruction charges just got a lot more potent now that we know of underlying concrete crimes.

The basic facts alleged in the indictments of 13 Russians were not surprising generally to those following the news of Russian manipulation of Facebook and Twitter, but I was surprised by the details of identity theft and bank fraud. Those specific crimes are more concrete and more easily proven than violations of campaign finance law or election law, and that puts anyone who knowingly conspired with them in more serious legal jeopardy. These indictments do mention “unwitting” Americans, which seems exculpatory of the Trump campaign at this stage, but 1) it is a more careful and professional way of phrasing an indictment at this stage, 2) it is wise for Mueller and Rosenstein to avoid unnecessary politically contentious allegations now, and most importantly 3) Mueller unsealed a guilty plea by a “witting” American co-conspirator on the same day, showing that there is more behind this indictment of Russians than innocent mistake. Even if the indictment doesn’t specify Trump campaign knowing conspiracy, that doesn’t mean Mueller already has evidence of it or is on his way of finding it.

Finally, even if the 13 Russians are never arrested and tried, these indictments prevent them from traveling to countries with Interpol agreements with the US, by which these suspects would be extradited. If they were extradited and tried, their prosecution for identity theft and bank fraud could be “paper prosecutions,” meaning a relatively solid and clear case relying on documents much more than live testimony.

Rosenstein was strategically smart, but Congress needs to act to protect Mueller

I agree with Dahlia Lithwick in Slate: Optically, it was strategically smart to have Rosenstein make the announcement himself. It presents a unified front at the DOJ, and it looks more obstructive if Trump tries to fire him. I just want to elaborate on the quote I provided for her:

As Mueller makes more progress in the investigation, it makes it more difficult legally to fire Mueller because it is more blatantly obstructive. On the other hand, as Mueller gets closer to where the “bodies are buried,” and because Trump may know where the bodies are buried, Trump might take his chances with obstruction charges in order to actually obstruct the revelations that would actually end his presidency. Until Congress passes a veto-proof bill to protect Mueller from firing without cause, what makes Trump think that there would be a significant immediate cost to firing Mueller or Rosenstein? Every indictment raises the stakes of obstruction but also increases the chance of a temper tantrum firing with no clear consequences until Congress changes hands. If Congress can’t pass a Mueller statute, in the very least the Senate intelligence committee needs to make a more public stance.

If Trump fires Mueller, I still think the Senate Intelligence Committee or NY AG Eric Schneiderman could hire him to continue the investigation with subpoena power. But Trump firing Mueller would still delay and disrupt the investigation. Congress needs to act by giving Mueller formal job security: by statute, DOJ officials should not be able to fire Special counsels without good cause. And the President should not have the power to fire special counsels at all. 

I’ll have more to come on constitutional and legal arguments for such statutes.