Dead man walking, part two
Read part one, and then come back.
In a surprise move, the acting attorney general appointed the respected former director of the FBI Robert Mueller as special counsel to investigate matters regarding the L’affaire Russia:
Rosenstein wrote in an order that Mueller is authorized to take over the investigation that Comey confirmed to Congress in a March hearing. That includes “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise from directly from the investigation.” It also gives Mueller authority to look into other crimes noted under a statute that establishes the special counsel, “such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.” [emphasis added]
Leaked reports (I like using that term in this context) said the president was calm and collected on hearing the news. He had a little time to build up a head of steam by the following morning, when he tweeted this:
This is the single greatest witch hunt of a politician in American history!
— Donald J. Trump (@realDonaldTrump) May 18, 2017
You ain’t seen nuthin’ yet, Donnie.
On learning about the memo of his conversation with Comey (you did read part one, right), Trump tweeted:
James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!
— Donald J. Trump (@realDonaldTrump) May 12, 2017
Pretty clearly an attempt to intimidate a potential witness. And we covered obstruction of justice in part one. The president is probably indictable by authenticating his Twitter feed and confirming that the tweets are his own. We’ll come back to indictment and trial in a moment.
Given the obvious gravity of the president’s conduct, why aren’t the Republicans up in arms as they were when the Smoking Gun tape was released? Well, that was then, and this is now. You will have to supply your own answer to that.
It is unlikely that the president will be impeached. That is, unless the midterm election in 2018 goes really south for the House of Representatives. It could happen, especially with this president at the point of the spear, which is a reason for the Republicans to try informally to force him out. Even if the House was inclined to impeach the president after the midterms, a two-thirds vote in the Senate to remove him from office is nearly insurmountable.
Which brings us back to Mueller. Let’s say he concludes that President Trump ought to be indicted and in fact does so, for obstruction, intimidation, and whatever else he finds. He has the authority to do that, and we can bet that the Trump administration wouldn’t see it coming before it was filed (Mueller runs a tight ship, and it seems unlikely that his investigation will be leak prone), making it difficult for the president to make a peremptory firing of Mueller, even if he has the authority, which he may not.
Naturally, if an indictment was filed, all hell would break loose, and an immediate motion to dismiss would be made. And the president would be bound and gagged in a closet in the White House to keep him off Twitter. That would be the best part. (Reporter on the White House lawn: And the president has not been seen in the three days since the indictment was issued, and aides say they don’t know where he is.)
The first ground for dismissing the indictment would be: HE’S THE FREAKIN’ PRESIDENT! YOU CAN’T DO THIS! But it isn’t clear. From an opinion piece on Law Newz about a case on the immunity issue:
[ ] St. Clair had two main arguments for presidential immunity: 1) because the entire power of the executive branch vests in the president alone, it’s ridiculous to think he could be subject to prosecution; and 2) because the Constitutional provision on impeachment specifically says that an impeached official is subject to prosecution after removal from office, the framers must have meant that those officials couldn’t be prosecuted before they were removed from office.
While those are certainly reasonable arguments, they’re not even close to air-tight. The president might be the chief executive, but he’s not running the branch by himself. He has a large cabinet and extensive staff to assist him. It might be wildly inconvenient for a president to fend off criminal prosecution during his term, but Trump himself has bragged that he could continue running his businesses in tandem with running the country. For such a master multitasker, what’s a little prosecution thrown into the mix?
On the second argument, I’m going to go with what Leon Jaworski said in his brief — that the reference to timing was simply the framers’ way of insuring that an impeached official could not raise a double-jeopardy objection to a subsequent prosecution. Jaworski also noted that the sentence applied to all officials who are subject to impeachment, not just to the President. I think we’re pretty clear that officials who are not the president can definitely be prosecuted; therefore, it’s not really logical to conclude that the clause prohibited any prosecution, much less specified that there are special rules for the president.
As the author states, these were arguments in United States v. Nixon, the case involving not a criminal charge again the president, but rather whether he had a duty to turn over the tapes for the prosecution of members of the White House staff who had been indicted. He had to, of course, and we know what happened after that.
The quoted text is how I remember the arguments from the time. (I was in law school, a thrilling time to be there, by the way.) There is nothing in the Constitution that explicitly says you cannot charge and try a president for a crime while in office.
It is interesting to me to consider how an avowed textualist like our new Justice Gorsuch would respond to the arguments above. But I will bet that just as Justice Scalia found an individual right to bear arms after 200 years, Justice Gorsuch would conclude that Nixon’s attorney’s argument above carried the day, even though the quoted provision of the Constitution doesn’t address the question of charging and trying a sitting president. It says you can charge one after impeachment and removal from office without offending double jeopardy; that’s really all that it says.
The existence of an indictment, even if dismissed, would bring enormous pressure on the president to resign.
The headwinds are strengthening, and some people know it. Vice President Pence is trotting out the Sgt. Schultz defense: I knew nothing:
Vice President Mike Pence has been kept in the dark about former National Security Adviser Mike Flynn’s alleged wrongdoing, according to a source close to the administration, who cited a potential “pattern” of not informing the vice president and calling it “malpractice or intentional, and either are unacceptable.”
The vice president was part of the transition team that selected Flynn. He obviously seeded this leak.
We live in interesting times, my friends.
Update: And the times just get interestinger and interestinger. Now, we learn that Trump told the Russians in a meeting in the Oval Office that he got rid of the “nutjob” Comey because:
“I just fired the head of the FBI. He was crazy, a real nut job,” Trump said, according to the Times. “I faced great pressure because of Russia. That’s taken off.”
The first article of impeachment against Richard Nixon was the obstruction of justice.
Further Update: When he couldn’t get the FBI Director Comey to play ball, Trump tried to get the director of national intelligence and the director of the NSA to smear Comey and the FBI.
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