Tag Archives: Russia

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – A

A. Collusion vs. Conspiracy – Setting a High and Unnecessary Threshold of Proof

The investigation focused on conspiracy law because “collusion” is not in a term used in the governing criminal law. That fact may explain why Trump constantly refers to collusion in defending his conduct. While it’s technically true that the Report did not find “collusion” between the Trump Campaign and the Russian Government, the Report did not make a lot of other findings because they were equally as irrelevant as “collusion.”  For example, the Report did not find that Donald Trump is a generous person who readily contributes substantial amounts of his claimed fortune to charitable causes. Such a finding would have been (a)  untrue and (b) utterly irrelevant to the matters under investigation.

On the relevant issue of conspiracy, the Report focused on “coordination” as a factual question — limited to whether an “agreement — tacit or express — between the Trump Campaign and the Russian government” existed during the Campaign or the transition. Why Mueller thought this limitation was essential to the investigation and to any charging decisions is never explained.

It was entirely possible for the Trump Campaign to “coordinate” without an “agreement” to do so. Given Mueller’s expressed conclusion that the Campaign expected to benefit from information stolen by the Russians and the clearly established fact that high-ranking members of the Trump Campaign and family actively sought “dirt” possessed by Russia on the Clinton candidacy, “coordination” within the meaning of the conspiracy laws should not turn on the existence of an “agreement,” tacit or otherwise.

Framing the problem as Mueller did sets a bar so high that a successful investigation was likely impossible. As bad as Russia’s demonstrated electoral interference was, it was entirely feasible that “coordination” by the Trump Campaign with the Russian activities could have been accomplished without anything resembling an “agreement” between the Campaign and the Russian government. Mueller owes an explanation of why the existence of an agreement was essential to a finding of conspiracy. Would mere knowledge of what the other side was doing suffice to establish such an “agreement?” Mueller apparently thought not, but the underlying reasoning for such a counter-intuitive judgment is missing. Conspiracies are typically very hard to prove, but there was no apparent or compelling reason to get the bar so high.

Although Russians masked their operation while conducting political rallies and in doing so “made contact with…Trump campaign officials,” Mueller says the investigation uncovered no evidence of “coordination.” I-MR 4 This cries out for elaboration. Which rallies and which campaign officials? When? Are we to believe that the Trump campaign worked with unknown parties to stage political rallies and never bothered to find out with whom they were working?

A related curiosity is the question of timing the decision to end the investigation. The Report notes (I-MR 14) that the Russians masked their identity in communications with the Trump Campaign but some of those contacts are still under investigation. Per Appendix D at I-MR D-1 thru D-6, there may be as many as 14 additional investigations pending but no details or clues are provided regarding their targets or subject matter. The massive redactions from I-MR 14 to I-MR 37 suggest that the primary subject matter may be Russian interference in the election unrelated specifically to possible coordination with the Trump Campaign, but, if so, this should be clarified.

The Report says Russians released hacked materials about Clinton through Wikileaks (I-MR 4), thus implicitly indicating that Julian Assange conspired with the Russians. Mueller concedes the SCO was unable to resolve the connection between the release of the Trump “grab ‘em” tape and the same-day release of WikiLeaks documents harmful to Clinton. I-MR 36. But what was Assange’s relationship to the Trump Campaign? This is not elaborated in the Report.

 Trump personally welcomed help from WikiLeaks and the Russians. He later claimed he was speaking sarcastically, but when, in relation to investigation steps, did he make the sarcasm claim?  This is a common Trump tactic – make a dog whistle statement followed by “I was just joking” when blowback ensues.

In June 2016 a Redacted Party predicted to the Trump Campaign that WikiLeaks would release info damaging to Clinton. I-MR 5. There is more here that needs explanation to sustain the conclusion that there was no evidence of coordination.

The Report portrays the involvement of Russia and Trump Campaign’s response as having same goals – each would benefit from the other’s success – but Mueller nonetheless concludes that throughout the entire campaign, the parties somehow operated independently, though in parallel, to each other’s activities without any coordination. I-MR 5. He also concluded that Trump Campaign people did not understand they were dealing with Russians, I-MR 35, an idea that conflicts directly with the documentary prelude to the infamous Trump Tower meeting at which high Campaign officials attended in explicit expectation of receiving stolen negative information about Hillary Clinton.

During 2016, George Papadopoulos, while working for the Campaign, tried to arrange meetings to follow up information from Joseph Mifsud (identified by Mueller as a Russian agent) that Russia had dirt on Clinton. While no meetings may have resulted, why weren’t Papadopoulos’s activities at a minimum “attempts to coordinate” Is it plausible that he acted entirely on his own without communicating with other Campaign officials? What specific efforts were made to track down this crucial information? Why isn’t this covered in detail in the Report?

Indeed, why was the Trump Tower meeting not, by itself, a clear attempt to coordinate with Russia?  The information offering may have been a ruse but Campaign leaders didn’t know that and attended in expressed hopes of getting dirt on Clinton. They walked out only when the hoped-for dirt was not proffered. It’s pretty clear from the email history that if the dirt had been produced, it would have been accepted and not reported to the FBI.

Similarly, Carter Page was ousted from Campaign only after media attention drawn to his Russian connections. I-MR 6 If there had been no media attention, is there evidence the Campaign would have removed Page? Nothing in the Report suggests this would have occurred. Was there not more evidence of Page’s connections to Russia and, therefore, likely attempts to coordinate with it in support of Trump’s campaign?

Paul Manafort, then Trump Campaign Chairman, was also meeting with Konstantin Kilimnik, who had Russian intelligence contacts.  They discussed campaign strategy, including swaying Democratic voters in Midwest. Manafort shared polling data. I-MR 7 WHY is this not coordination even by Mueller’s limited definition? At the time Manafort was the trusted head of the Campaign. Why would his conduct not have been attributed to the Campaign? Why was this not addressed in the Report?

Next: Involvement of WikiLeaks –Gaping Holes & Unresolved Issues

Semi-Final Thoughts on Mueller Report

Donald Trump and his enablers are jumping around like a bucking bronco that has just thrown its rider. This is to be expected. Supporters of the president are calling for revenge against those who questioned the president’s patriotism. Also to be expected from that crowd.The Trump gang does not, of course, care a whit about propriety as long as they win. Whether they have won remains to be seen, however.

I say that for several reasons, not least of which is the stunning revelation that Mueller’s team met with the Attorney General three weeks ago and disclosed that Mueller would make no finding on the obstruction of justice issue. Small wonder, then, that Barr/Rosenstein were able to absorb the entire Mueller report and provide their own crucial conclusion on obstruction (i.e., no obstruction) that Mueller had, on the evidence, declined to make.

Speaking of wonder, one must wonder now what else transpired during that meeting. Did Mueller’s people provide the AG with some or all of the evidence accumulated during the investigation? Apparently they did, because it would otherwise be impossible for Barr/Rosenstein to arrive at the conclusion of “no obstruction” as quickly as they did after Mueller’s report was “officially delivered” on Friday. This would also explain how an as yet unnamed “high official” at DOJ knew immediately after the report was delivered that there were no further indictments forthcoming.

If this is true, why was it done? I had originally thought it most likely that the Mueller report itself was just a summary, making the Barr/Rosenstein letter to Congress a summary of a summary, in which case Barr/Rosenstein wouldn’t have cared what the evidence was. Likely they don’t care anyway, but it is difficult to understand why Mueller would have provided a briefing to Barr/Rosenstein three weeks before releasing the report. Are we to believe as well that Barr/Rosenstein did not communicate the revelation to Trump before the DOJ letter was sent to Congress? It’s possible but if it were communicated in advance, we would have a hint as to why Trump was so suddenly down with the idea of pubic disclosure of the report.

All this is somewhat speculative, of course, but Mueller did the country no favors with these maneuvers. New questions arise at every turn. I confess that I decided early on not to watch the media circus of speculation and instant analysis that the Barr/Rosenstein letter inevitably created.

The ultimate question here – what role did Trump and his associates (family as well as hired hands) play in the documented Russian attempts to influence the 2016 election – will only be settled if and when the evidence on which Mueller relied is laid out for the public to digest. How much credence did Mueller give to Trump’s own statements and conduct in light of his refusal to be interviewed? It seems that Mueller discounted Trump’s own statements (Holt interview) about why he fired James Comey. If so, why did Mueller discount that evidence on both the collusion issue and the obstruction issue? Very importantly, how did Mueller square the Trump Tower meeting and Trump’s role in lying about its purpose with the conclusion that there was no collusion?

Was the no-collusion finding based on a lack of hard evidence such that Mueller, applying a strict beyond-a-reasonable doubt standard as a jury would do, felt no crime could be charged? To what extent did Mueller use the standard of probable cause in evaluating the evidence against Trump on collusion?

I could go on with this but it is pointless unless and until the full Mueller report and the evidence on which it was based are disclosed. Given the revelation of an undisclosed meeting between Mueller and DOJ leadership weeks ago at which Mueller’s findings were disclosed, such disclosure is essential if this sordid chapter of American history is to be put to rest.

Force Trump to Plead the 5th Amendment

Shortly after Brett Kavanaugh, with full support from the Republicans on the Senate Judiciary Committee, stonewalled on all the important questions put to him, and may have lied about others, the news arrived that Trump’s attorneys have advised that Trump will not respond to questions from Special Prosecutor Robert Mueller in any manner, oral or in writing. This latest zigzag in Trump’s position regarding the Russia investigation may be a direct result of Kavanaugh signaling that nothing Trump does could lead Kavanaugh, as a Supreme Court Justice, to decide in favor of presidential accountability while in office.

Given that the Republicans have once again prevented the Senate from fulfilling its constitutional mission of advising and consenting to a presidential appointment to the highest court, it seems to me it is time to call the question on the bigger questions related to presidential accountability. It is time, I suggest, that Mueller should stop fooling around with Giuliani and camp and subpoena Trump to testify under oath about the Russia collusion issues before a grand jury. This would, of course, expose Trump to huge risks that he would perjure himself, further establishing the existence of “high crimes and misdemeanors,” the Constitutional threshold for impeachment. For that reason, among others, Trump would undoubtedly refuse to comply with the subpoena and the issue would then be put to the courts.

If, as is almost certain, Brett Kavanaugh is confirmed and the issue reaches the high court, which it will, Kavanaugh will be faced with the non-hypothetical question whether he will recuse himself from a decision regarding the power of the presidency to stand above the laws that apply to every other person in the country. Having just vanquished a king to gain the freedom of a new country through the Declaration of Independence and the Constitution, it is quite unimaginable that the Founding Fathers intended such immunity. Nevertheless, the issue has not been decided by the Supreme Court. It is also hard to imagine a better case to present the issue than one in which the nation’s chief executive declares that he is not accountable to even testify about his possible corrupt obstruction of justice and interference in the election that placed him in office. This is likely the best case that will ever exist for getting a ruling that the president is not above the law.

Of course, the president would have the ability to avail himself of the protection against self-incrimination afforded other citizens under the 5th Amendment. To avoid incriminating himself,

Trump would almost certainly be advised by his attorneys to plead the 5th Amendment in response to all questions put to him by Mueller’s investigators.

Imagine for a moment that Trump is asked direct questions about his knowledge of contacts with Russians, cooperation with Russians and more regarding the suborning of the election that we know to have occurred in 2016. He has four choices.

One, tell the truth. That’s probably not a good choice for him since the publicly available information strongly suggests his active complicity in the Russian election activities. We don’t know what Mueller knows but neither does Trump. In any case, truth-speaking is not his style, especially when it will make him look bad, so telling the truth is likely off the table.

Option Two, lie. This is the course he would be most tempted to take since he, and this is thoroughly and incontestably documented, lies multiple times a day about all manner of things, great and small. Telling lies about his conduct in this situation would expose him to a perjury charge, however, not a place he would want to be. Recall that he does not know what Mueller knows and can prove. Trump’s attorneys would be, indeed have said they are, so concerned about Trump’s propensity to fabricate that they would likely insist that he take Option Three.

Option Three, plead the 5th Amendment. Refuse to answer “on the grounds that answering may incriminate me.” Under American law, pleading the 5th does not constitute an admission of guilt and pleading may not by itself be the basis for a finding of guilt. In the minds of many members of the public, however, a president pleading the 5th Amendment on matters of this seriousness would be tantamount to a confession.

Option Four, refuse to appear for questioning. This might be seen as the “nuclear option,” whereby the president says, in effect, “I refuse to be held accountable and will not cooperate in the process that is trying to destroy me.” This question, I believe, was decided by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), a unanimous decision by the eight Justices participating (Justice Rehnquist did not participate). The opinion upheld a subpoena directing the president to produce to a grand jury certain tape recordings and documents relating to his conversations with aides and advisers. The grand jury’s prior indictment of seven people had named the president as an “unindicted coconspirator” in defrauding the United States and obstructing justice.

Trump’s attorneys would certainly argue that the Nixon decision was “distinguishable” from the Trump case. That is one of an attorney’s jobs and there is no doubt Trump’s lawyers would present the question to the courts, which would then make the final decision regarding the scope of the president’s immunity from the legal processes that apply to everyone else. To simply refuse to cooperate would, I think, not only create a “constitutional crisis,” but it would go a long way to weakening Trump’s political support in Congress.

I do not suggest, of course, that all Trumpers would turn on him in these circumstances. For reasons not fully understood, there apparently are millions of people who are so entranced by the Trump persona that nothing he does or says, or fails to do or say, will change their view of him. But they are already a minority of the voting population and, I suggest, the president taking the 5th Amendment on questions related to subverting the American electoral process or, worse, simply refusing to cooperate, would move many voters across the line. Unmoved though they may be by the reality that Trump supports policies directly injurious to their economic, social and physical well-being, many of those at the margin of acceptance would finally say “enough.” We don’t need them all to achieve a massive reversal in the polity in favor of reason and the rule of law. If, on the other hand, I am wrong about this, we are probably no worse off than before but we will have a better understanding of where the law stands on these issues and can take whatever actions are then necessary and appropriate.

Therefore, I submit, it is time to call the question on Trump. Time to force him to choose between telling the truth, lying, pleading the 5th Amendment or simply declaring “I am above the law.”

Treason – Why Do They Do It?

The events of the past few days do not need recounting. By now, anyone who is awake is aware that the President of the United States adhered to and gave aid and comfort to an enemy of the United States. I define “enemy” here as a country that interferes in the internal politics of our democracy to prejudice the outcome of an election. My view is that because the Constitution sets out three separate forms of treason, only one of which involves “war” as such, it is possible to commit treason with a country as to which the United States is not technically “at war.” And I believe Trump clearly did that in Helsinki. No amount of later backpedaling and doubletalk can cancel what he did, especially recognizing that he insisted on a no-witnesses meeting with Putin that lasted for several hours.

The Constitutional definition of “treason” is stated as follows in Article III, Paragraph 3:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open court.”

I am aware that there is a lot of debate among legal scholars and historians about the exact meaning of Article III’s definitions and I don’t propose to recount or resolve them here. Instead, I am interested in the underlying question: why does anyone commit treason? In simpler terms, what would motivate an officer of the United States, and in particular the highest officer, to side with a foreign country engaged in hostile acts against his country when such alignment is resisted by most or all of his most senior and experienced advisors?

That question has now risen in importance as a result of the travesty of Donald Trump bowing and scraping before Vladimir Putin at the Finland joint press conference. Even members of Trump’s own party are asking the question because they conceive of no explanation that makes sense. His later “I meant ‘wouldn’t’ instead of ‘would’” warrants no more comment or analysis than just “look at the video and you will see he meant what he said: ‘would.’

The possible reasons for committing what I, and many knowledgeable commenters, believe was an act of treason include at least the following:

  • Ideological alignment on issues of overriding importance to the actor
  • Mental illness such as to fundamentally impair his ability to make decisions
  • Stupidity
  • Money/Avarice
  • Power
  • Blackmail

There may be some I haven’t thought of but for now this is the list. Let’s consider them one by one.

Ideological alignment on issues of overriding importance to the actor: I dismiss this one out of hand because Trump appears not to have a consistent ideology of any kind. He adopted the mantle of Conservative Republican when it suited his political ambitions but historically he has been all over the place on matters of ideology. There is no reason I have seen (confessing I might have missed it) that he would be attracted to communism or socialism. Ultra-right fascism is definitely a possibility, given his pre- and post-election tendency to morally equate the actions of white supremacist/Nazi/alt-Right extremists with those of the progressive Left. He clearly is attracted to authoritarian leaders – aside from Putin, Duterte of the Philippines comes to mind. Trump’s business history is that of a bully who pushes around and cheats people who are not in a position to fight back on an equal footing. 

Mental Illness:  Many experts and non-experts alike have addressed the question whether Trump has a “mental illness,” a “personality disorder,” or dementia of some kind. I don’t know the answer, of course, but am reluctant to argue that the fact of Trump’s seeing everything differently than I do is evidence of any of those things. Certainly, his behavior evinces a monstrously large ego, massive insecurity and need for approval and similar considerations, but whether those obvious characteristics would lead a person to commit treason seems weak. The same for his propensity to bully everyone to show that he is the bigger man, the most important person in the room/world.

Stupidity: To be clear, I believe Trump acts like an ignorant fool most all the time. He knows little or no history, reads little or nothing, declines to be briefed and appears to believe his massive intelligence overshadows all experts in all fields so that no one has anything useful to tell him. Still, can we conclude that he is just plain dumb? On the surface, at least, he is (was) an educated person. And he has had the resources to continue to be educated, though he seems to have affirmatively avoided taking in new information for decades. Trump is willfully uninformed about the important elements of his job, but does that mean his is too stupid, too ignorant to understand that aligning with a historical enemy of his country, run by a dictator (spare me the baloney about how Putin was “elected” in a democratic process in Russia)?

Money/Avarice:  Considering Trump’s refusal to release his tax returns, the mounting evidence of secret business deals with Russians, his numerous lies about whether or not he has business relationships in Russia, and his and his family’s continuing to profit from incomes fed to his business empire by foreign interests, a plausible argument can be made that Trump would sell out his country simply to secure his business interests. It is possible that much of his past business activities have been funded by Russian interests. On the other hand, Trump is a very rich man and getting richer every day, often at the expense of the American taxpayer. So, would he commit treason for still more money? Possibly, because, for people like Trump, there is never enough money. The more they get, the more they want more. Always more.

Power: The president of the United States is reputedly the most powerful person in the world. What additional power would he expect to get by supporting a hostile foreign power against his own country? His party controls both houses of Congress already. He knows that cozying up to Vladimir Putin is worrisome or worse to even many Republican members of Congress who are otherwise slavering all over him to prove their loyalty (that he appears to value above all else, including competence). Yet, to borrow a contemporary meme, he persists. The power explanation rings true somewhat, especially when combined with the Money/Avarice option. It may be that my list oversimplifies a multi-element explanation. The answer may be a combination of personality disorder/willful ignorance/grasping for more personal and family wealth and power. Could be. But there is at least one other choice.

Blackmail: Since the disclosure of the Steele dossier (see https://bit.ly/2nFuZn4), rumors and stories have continued to surface about Trump being a Russian asset or at least subject to blackmail related either to personal misconduct in Russia or corrupt business dealings there. These views have gained new momentum in the wake of Trump’s bending the knee to Putin in Helsinki. There is no known way at the moment to verify this, although one hopes that the Mueller investigation is looking very deeply into the web of Trump-Russia connections and Trump’s inexplicable fondness for a historically hostile power. The extraordinary detail in the indictment of the 12 Russian hackers is an indication of the sophistication and thoroughness of U.S. counterintelligence expertise when aggressively applied in the hunt for traitors and their enablers.

Bottom Line: Spoiler alert: anticlimax coming.

I suspect that the awful reality is that, as suggested above, the explanation for Trump’s conduct toward Russia and Putin has multiple sources. Treason, especially by a president, is so serious that we must not yield to the temptation to believe in the simplest “explanation,” an “obvious” single cause.

Avoiding impatience is also important. Having conducted a corruption investigation early in my career, involving confidential “inside” sources, a conspiracy among multiple parties, some with “stellar reputations,” and serious efforts by numerous parties to hide the truth, I can attest to the importance of letting the painstaking, often tedious, investigative work proceed to whatever conclusion it will reach. The demands of Trump’s Republican enablers in Congress and elsewhere to “end the investigation” because it “has produced no evidence of collusion” are simply partisan and delusional wishful thinking. They have no idea what information is building inside the Mueller investigation and will not know, as we will not, until Mueller decides to conclude his work and report his findings.

Mueller’s Indictment of Russia Hackers — Updated

In the original post, I reported that paragraph 43(a) of the Mueller Russian hacking indictment stated that a “candidate for the U.S. Congress” asked for, and received, stolen emails from the Russia hackers posing as Gucifer 2.0. The information related to the candidate’s opponent.

There is related news. The Palmer Report has stated that the Congressman in question is likely to be Rep. Matt Gaetz (R-FL). https://bit.ly/2NPvWVX The basis for the report is that Rod Rosenstein had advised Trump in advance that the Mueller Russian hacking indictments were imminent and had identified to Trump the Congressman referred to in paragraph 43(a). Apparently concerned about the fate of the Congressman, given his involvement in using the stolen materials from the Russia hack, Trump issued a tweet out of the blue while on his overseas trip:

“Congressman Matt Gaetz of Florida is one of the finest and most talented people in Congress. Strong on Crime, the Border, Illegal Immigration, the 2nd Amendment, our great Military & Vets, Matt worked tirelessly on helping to get our Massive Tax Cuts. He has my Full Endorsement!”

Why Gaetz? Palmer Report suggests it’s because Gaetz is close to Roger Stone who has admitted that he, Stone, is the unnamed Trump associate mentioned in the indictment. Prior to the disclosure of the indictments, Gaetz was all over the news for months, complaining that the Mueller investigation was biased. No wonder Trump likes him.

Back on June 14 Politico reported that Rep. Matt Gaetz (R-FL) was among the chorus of Republicans wetting themselves (I said that, not Politico) over the Justice Department’s inspector general report about FBI agent Strozk, saying:

“It is smoking-gun evidence that the Mueller probe is built on a rotten foundation,” said Rep. Matt Gaetz (R-Fla.), a freshman lawmaker on the House Judiciary Committee who has also earned Trump’s praise for his criticism of the Russia inquiry.”

https://politi.co/2uwkohy

Curiously, though, I can find no indication that Gaetz has had anything to say since the indictments were released and Trump effectively outed him. There is nothing on his official congressional website.

There is some element of speculation in all this but it is mighty curious that Trump would suddenly rush to Gaetz’s defense when no one else but Mueller/Rosenstein knew Gaetz was the Congressman mentioned in the indictment.

So, the plot thickens. And the Republican enablers of Trump’s treasonous conduct continue to berate the investigators.  None of those Republicans can answer the question: if Trump is guilty, what difference does it make that some of the investigators that collected the evidence were opposed to his presidency? Their logic is that it is only important that he’s guilty if he’s exposed by evidence collected by people who have no opinion on whether he is, or even might be, guilty. The thing is that people with no functioning minds are not very good at collecting evidence.

 

 

 

 

 

Mueller’s Indictment of Russia Hackers

I have plowed through the entirety of the indictment, which is full of details about the Russian hacking of the Democratic National Campaign Committee and related bodies. I only have a few observations to offer.

First, the indictment makes clear beyond a doubt both the sophistication of the U.S. intelligence apparatus in discovering these remarkable details about the hacking operation. It also explains in part why the Mueller investigation is taking so long. An extraordinary amount of work must lie behind the allegations in the indictment.

Second, the indictment has no direct bearing on the issue that Trump and his enablers are so obsessed about – to wit, the issue of collusion. As a result, the assertions of the Republican National Committee and other Trump sycophants that it is now “clear” that there was no collusion by the Trump campaign is preposterous on its face. These repeated claims of innocence are candy for his base, but Trump shows every sign of someone deeply guilty of serious crimes.

Third, the indictment contains a remarkable statement in paragraph 43(a). I must have missed the reporting on it. It states that a “candidate for the U.S. Congress” asked for, and received, stolen emails from the Russia hackers posing as Gucifer 2.0. The information related to the candidate’s opponent. The indictment gives no hints whether this was a candidate for the House or the Senate, nor any other potentially identifying details. But, whoever it was, that person must be sweating bullets tonight. And deservedly so.

So, on this Friday the 13th, the scary stuff is over for now. But not for long. I suspect this is just one small part of the muck that Mueller’s people are exploring.

Law Professors’ Letter Thrashes Trump Claim to Powers of a King

I was in the middle of drafting a long and detailed dismemberment of the two letters recently published by the New York Times, letters written by Donald Trump’s attorneys to Special Prosecutor Mueller. https://nyti.ms/2Lg6kiQ  The letters escalate the conflict to a new and perhaps ultimate level by asserting that the president, under the U.S. Constitution is empowered to use his discretion to stop any investigation into any crimes he may have committed, including treason, and to pardon himself, along with any involved parties, including his family members, for any crimes alleged, whether or not formally charged or convicted. I was going to title it “Trump’s Attorneys Declare War on the U.S. Constitution.”

But there is no need for that because of the intervening publication in https://protectdemocracy.org/law-professor-article-ii/, widely reported, of a letter from a list of distinguished law professors that totally demolishes the Trump attorneys’ claims. If you do nothing else today, you should read the letter. To help you, I have reproduced it below, without the signatories and footnotes (in the interest of space) but you can see all of it at the link cited just above. Here is the letter:

“June 4, 2018

Donald McGahn II
White House Counsel
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Emmet Flood
Special Counsel to the President
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Dear Mr. McGahn & Mr. Flood:

We, legal scholars who study and teach constitutional and criminal law, write in connection with the President’s apparent belief that he is empowered by the Constitution to halt the Special Counsel’s investigation into alleged Russian interference in the 2016 election for any reason whatsoever, and his apparent view that he is not constrained by Congress’s duly enacted laws prohibiting the obstruction of justice. As reported in the New York Times, attorneys for the President wrote a letter to Special Counsel Robert S. Mueller asserting that the Constitution empowers him to “to terminate the inquiry, or even exercise his power to pardon,” and that he cannot illegally obstruct any aspect of the investigation because of these powers.[1]These views are incorrect.

First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting “corruptly” to interfere with federal criminal investigations.[2] Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.

(1) Article II and Faithful Execution

While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed” (emphasis added). Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power.

When the Founders thus defined the Presidency as an office bound and restricted by overarching duties of care and faithfulness (fidelity) to the Constitution and laws of the United States, they were invoking the well-known concept of treating a public officer as a fiduciary.[3] In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions.

The President’s duties of care and faithfulness are the fiduciary duties most explicitly required by the Constitution, a document that refers to many offices as “Offices of Trust,” invoking the legal concept of trusteeship (a fiduciary relationship). Mirroring the Constitution’s text, the Federalist Papersrepeatedly use the language of care, faith, and trust to describe the offices and duties of all three branches of the federal government and the way their powers should be exercised on behalf of the American people. George Washington, in the opening lines of his first inaugural address, spoke of the presidency as a “trust” committed to him by the American people.[4] The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty bound to act with faithfulness to the law and the people, not to his own selfish interests. A similar view of the office underlies the conclusion of the Department of Justice’s Office of Legal Counsel that a president may not pardon himself.[5]

It is not strange that the Founders chose to create a chief executive who would be bound to act for public-spirited reasons, rather than pursuing self-interest, self-dealing, or self-protection. Monarchy and all of its attendant ills were rejected by the Founders. The President would not be a king by another name.[6] By banning titles of nobility,[7] and providing that the President would be elected to a term of years,[8] not chosen on hereditary principles, and not ruling for life, the Constitution addressed the fear that a chief executive’s primary interest would be perpetuation of his dynastic successors and retainers rather than the good of the country. Many English kings had been foreign born, and still held lands and titles abroad, giving them personal interests that might differ from those of the citizenry. In response, the Constitution requires that the President be a citizen.[9] The President was to be given a salary while in office, and prohibited from imposing taxes or otherwise raising funds on his own authority, and also positively barred from accepting bribes, gifts, or other emoluments of office from foreign governments or state governments.[10] Typically monarchical kinds of financial self-dealing by the chief magistrate were therefore substantially checked. And importantly, the Constitution was conceived at a time when the English Bill of Rights constrained even the monarch from exercising the so-called “dispensing” power to dispense with or suspend Acts of Parliament.  Our Constitution similarly limits the President, and certainly cannot be read to grant him a power the British monarch lacked.[11]

These structural checks against abuses typical of monarchy further elucidate the Founders’ vision—seen in the Oath and Take Care Clause—of a chief executive bound to act with care and fidelity for the benefit of the country, not himself personally. Other structural provisions in the Constitution which evidence a norm against self-dealing support this reading.[12]

The President’s executive powers therefore would not permit him to terminate the Russia investigation by firing the Special Counsel or his Department of Justice supervisors; to order the destruction of evidence developed in the Special Counsel’s investigation; to pardon himself or other subjects of the Special Counsel’s investigation;[13] or to attempt to quash a subpoena, if the President takes any of these actions motivated predominantly by self-interest. Indeed, the Constitution, properly understood, would prohibit all of those actions under those conditions.

Because the President does have vast powers as head of the executive branch, and because the difference between public-interested (constitutional) and corrupt (unauthorized and hence unconstitutional) presidential actions may often turn on the reasons for which actions are taken, the lawyers for a President have an especially important obligation of their own to the Constitution and people of the United States. The President’s lawyers must counsel their client so that he understands that acting for the right reasons is the key to lawfully exercising the great powers he wields.

(2) Congress’s Obstruction Statutes and the Separation of Powers

In addition to internal constraints imposed on the President by the text of Article II and constitutional structure, the President is also externally constrained to avoid obstruction of justice.

The mistaken claim that Article II provides a complete defense to obstruction by the President rests in part on the incorrect premise that the Constitution grants him the exclusive right to exercise the executive powers. A President’s Article II powers must be read in conjunction with the restrictions the Constitution places on the federal government, Congress’s Article I powers, and the courts’ Article III powers, as well as laws duly enacted by Congress. The administration of justice involves all three branches of government.

The limitation on the President’s exercise of Article II powers is perhaps easiest to understand in the context of the Bill of Rights. For instance, it would violate the First and Fifth Amendments for the President to fire federal employees based on their race or religion. To give another example, the Due Process Clause requires that persons wielding prosecutorial power be “disinterested.”[14] The Constitution must be read as a whole; none of its provisions, including Article II, is an island.

Most importantly for our purposes, Congress can also exercise its constitutional authority to place limits on the executive.

When Congress legislates within its constitutional authority in a manner that restricts the President, the President is presumptively bound to comply with that law.[15] After all, Congress is expressly given power to enact laws “necessary and proper” for implementing the powers of the President.[16]

Congressional limitations upheld by the Supreme Court on the President’s exercise of his war powers, in a case such as Hamdan, are especially instructive. There, the Court held that Congress could specify procedures for the President to follow for trying military detainees at Guantanamo.[17] If Congress can constrain the President’s vast powers as Commander in Chief in times of war, then it can surely place limits on his conduct in his everyday role as the head of our domestic law enforcement agencies.

And, indeed, that is exactly what Congress and the courts have done.  Even though the executive branch is generally empowered with law enforcement responsibility, Congress has enacted civil service laws and created independent agencies limiting the executive branch’s power to hire and fire federal employees who enforce the law. In upholding the statute that provided for an independent counsel, rather than the Department of Justice, to investigate wrongdoing in the upper reaches of the executive branch, the Supreme Court “concluded [that] ‘we simply do not see how’ it is ‘so central to the functioning of the Executive Branch as to require as a matter of constitutional law that’ the President be understood to have unlimited control over the investigation and prosecution of potential crimes involving himself or his top aides.”[18] As Richard Pildes wrote recently, “Given the established constitutional principle that Congress can protect a federal prosecutor from the President’s domination in these type of cases, Congress can certainly constrain the President’s power in more limited ways . . . including by making it a crime for the President to act with a corrupt intent to stymie or shut down investigations of the President himself and his top aides.”[19]

It is only in rare cases that the President has constitutional power that is “both ‘exclusive’ and ‘conclusive’” on a particular issue,[20] thereby disabling Congress from legislating. And it would likewise be in only a very rare case that generally applicable federal criminal statutes would not apply to the President because of inconsistency with Article II. The Constitution, after all, directly contemplates that the President (and other officers) could be subject to criminal liability for their official actions.[21]

While the President might, for example, intervene directly in an on-going criminal investigation to advance a public-interested goal concerning national security or some other consideration, it is implausible to contend that Article II overrides Congress’s obstruction of justice statutes in circumstances where the President is acting to advance “narrowly personal, pecuniary, or partisan interests.”[22]

The federal obstruction laws, with their bar on corruptly-motivated actions, apply whether the president obstructs an investigation through firing officials leading it, shutting down the investigation, ordering the destruction of documents, or dangling or issuing pardons to induce witnesses to impede the investigation. Just as the President could not use otherwise lawful firing powers in exchange for a bribe without running afoul of federal bribery laws, he is not free to exempt himself from the application of the obstruction of justice laws.

* * *

The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the “injuries and usurpations” that justified independence. Our Founders would not have created—and did not create—a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.

In sum, both Article II and the criminal laws of this country forbid the president from engaging in corrupt and self-dealing conduct, even when exercising Article II powers to execute the laws

We have no doubt that you take your professional roles very seriously—and we hope our legal analysis above provides some illumination as you continue to advise your client to faithfully execute our laws and to take care that those laws are faithfully executed throughout the Executive Branch.”

[Signed by 26 law professors]