The Limits of Presidential Pardoning Power and Impeachment (Part 4)

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Perhaps my readers think the arguments and conclusions offered here are the reserves of a fringe liberal sector of legal minds. FOX News’s Judge Andrew Napolitano gave helpful responses to some of the questions we addressed in this series.

The arguments contained in this series rest on firm legal grounds.


The Limits of Presidential Pardoning Power and Impeachment (Part 3)

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A Yale Law Journal article offers illuminating commentary on the nature and scope of high crimes and misdemeanors:

Indeed, in subsequent remarks on September 8, Madison indicated specifically that the power of the House to impeach extended to “any act which might be called a misdemesnor,” a criterion much different from “high crimes and misdemeanors against the State. Thus, although several recent commentators have concluded from the exchange of September 8 that the Convention rejected “maladministration” as a standard for impeachment, it is more accurate to say that the Convention accepted “high crimes and misdemeanors against the State” as a standard for mandatory removal, after one delegate-Madison-had questioned “maladministration” for such a purpose.

One need only consider later assertions by Madison himself to confirm that the effect of Article II, section 4, is neither to confine impeachable offenses to “high crimes and misdemeanors” nor to reject “maladministration” as a ground for impeachment. Speaking before the Virginia ratifying convention Madison suggested that “if the President be connected in any suspicious manner, with any person, and there be grounds to believe he will shelter them, the House of Representatives can impeach him; they can remove him if found guilty.” He later indicated that the President was impeachable for “abuse of power.”

Impeachment power can be interpreted to be quite expansive. The article continues:

Other public comment and actual practice in the period immediately following the drafting of the Constitution indicate that impeachment was understood in the light of earlier English and American practice, and that impeachable offenses were not generally seen as limited to “high crimes and misdemeanors against the State.” A theme which runs through the state ratification debates is that impeachment serves to make public officials “answerable” to the people. Impeachable conduct included: conduct exciting suspicion; “malconduct” and abuse of power; making bad treaties (James Wilson); an attempt by the President to push a treaty through the Senate without a quorum being present (John Rutledge); behaving amiss, or betraying public trust (Charles Pinckney); “any misdemeanor in office” by the President, and giving false information to the Senate (James Iredell); abuse of trust “in any manner” by the President (Richard Spaight); “any maladministration in his office” by the President; and misbehavior (Governor Randolph of Virginia). Moreover, in the debates of the First Congress on the Executive Departments, the standards proposed for impeachment of the President included “maladministration, “misdemeanors,” “malconduct,”; misbehavior, “displacing a worthy and able man,” indolence and infirmity. John Vining, of Delaware concluded that the people have the means of “calling [the President] to account for neglect.”” Finally, in the trial of Judge John Pickering in 1803, the Congress impeached and convicted a federal judge for drunkenness. The crucial feature of the Pickering case is that the Senate appears to have consciously rejected “high crimes and misdemeanors” as the necessary standard for impeachment and removal.

The president can exercise the pardon power but Congress can punish the president by impeachment. Trump supporters take refuge in the plenary interpretation of the pardon power, but their arguments against impeachment has little merit.

The Limits of Presidential Pardoning Power and Impeachment (Part 2)

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We concluded our last post with the notion of high crimes and misdemeanors. High crimes and misdemeanors are impeachable offenses according to Article 2, section 4 of the Constitution:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

What does “high crimes and misdemeanors” mean?

George Mason, James Madison, and Virginian delegate, Edmund Randolph were crucial in laying the foundation for the Constitution’s impeachment powerConstitutional scholar Gary L. McDowell wrote in The George Washington Law Review:

On September 8, the Convention returned to the problem of impeachment and this time the debate focused on what were properly impeachable offenses. George Mason thought it imprudent that the provision be “restrained to Treason & bribery only” and suggested that the power be expanded to include “maladministration.” His concern was that treason and bribery were insufficient to reach such political offenses as the subversion of the Constitution. Madison insisted that “maladministration” was so “vague” a term as to have the effect of reducing the term of the President “to a tenure during pleasure of the Senate. At this point Mason willingly moved to withdraw the suggested “maladministration” and substituted “other high crimes & misdemeanors. His motion was accepted by a vote of eight to three.

It may well be worth noting that Mason’s original proposal for this new standard of impeachable offenses was for “‘other high crimes & misdemeanors. “This was quickly amended by striking out “State” after the word “against” and substituting “United States,” “in order to remove ambiguity.”‘ When the draft from the Committee on Style was laid before the Convention all references to “high crimes and misdemeanors against the United States” was dropped in favor of what would become the version that today appears in the Constitution: “The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.” Thus as finally adopted, the standard of “high Crimes and Misdemeanors” seems to have a broader, less restricted meaning than merely a narrow interpretation of crimes against the government. This meaning seems to reflect the general sense of the Convention that impeachment was intended to reach political abuses, such as maladministration or malversation, as well as indictable crimes. Moreover, it also seems to undermine the claim that impeachment is limited only to what one might call official duties and does not reach what Joseph Story would later call simply “personal misconduct.”

According to McDowell, the president can be impeached on the grounds of:

1. Crimes against the government
2. Political abuses maladministration and malversation
3. Indictable Crimes (This seems to be a broad category. It suggests that if a president can be indicted for their actions, they can be impeached for the same actions.)
4. Personal Misconduct

The Limits of Presidential Pardoning Power and Impeachment (Part 1)

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Some people believe US presidents have plenary pardoning power. Nefarious reasons for pardon is no hindrance to the exercise of this right. The reach and depth of the president’s pardoning power appear, in fact, to be plenary. In fact, US presidents can pardon basically anyone, and those pardons will hold.

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Another matter involves whether the president is immune from constitutional punitive measures like impeachment in the execution of their pardoning power. Put simply, some believe the president can pardon anyone for any reason and they should not be subject to impeachment.

This line of thought is severely, perhaps irreparably, flawed. As Elbridge Gerry, an attendee of the Constitutional Convention and a Representative from Massachusetts, explicitly stated that impeachment is a means to keep the executive in check.

The Founders of this country discussed this very question on Wednesday, June 18, 1788, during the Virginia ratifying convention for the US Constitution. Following the reading of the 1st clause of Article 2, section 2 of the Constitution George Mason asked:

Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

James Madison responded to Mason’s query in this way:

There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended fill he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.

On September 8, 1787, Mason asked if treason and bribery were the only grounds for impeaching the president. Mason and Madison debated the matter and Mason concluded that the president can be impeached for “other high crimes and misdemeanors.”

It is highly likely that Trump will pardon everyone accused of crimes related to the Russia investigation. Will Congress do what is necessary to keep Trump accountable?



The Time for Assessment is Now

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It goes without saying that the Trump administration is an unconventional political entity. Trump has broken many presidential norms and has done much to damage the credibility and fabric of the United States. Countermeasures must be taken to prevent irrevocable damage.

The first line of defense is identifying the exposed areas of government and political action. Max Boot, the Jeane J. Kirkpatrick Senior Fellow for National Security Studies at the Council on Foreign Relations, took the time to jot down some of these violations in an article written for the Washington Post. What are some of the norm violations?

1. Revealing intelligence sources
2. Politically motivated prosecutions
3. Mixing private and government business
4. Undermining the First Amendment

Plese, read the article. It’s time to get serious about the state of this country.

Legal Precision and the Russia Investigation (Part 2)

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One of the most relevant statues, in my view, has to do with the conspiracy to the Defraud the United States. Federal statute 18 U.S.C. § 371 says:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Thus, I think Donald Trump and his administration is vulnerable under this statue. I’m not alone in this estimation. Mueller’s team has already indicted 13 Russians on the basis of this statue. Kathleen Clark, a law professor at Washington University Law, said:

U.S. election law prohibits foreigners from providing assistance to U.S. political campaigns, and prohibits anyone from soliciting such foreign assistance. It is through the lens of that law that I have followed the developments of the past few days about the June 9, 2016, meeting between Donald Trump Jr. and Russian lawyer Natalia Veselnitskaya.

If the emails leading up to the meeting that Trump Jr. released Tuesday morning are genuine, they are damning. In the first email, a business associate wrote Trump Jr. and indicated that a Russian government official “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary [Clinton] … and would be very useful to your father.” This email was offering assistance that would violate U.S. law. But rather than rebuff the offer, Trump Jr. expressed enthusiasm for it, and even suggested when the information should be disclosed to the public: “Seems we have some time and if it is what you say I love it especially later in the summer.” Trump Jr. may be counting on his father—and the presidential pardon power—to excuse him from criminal liability for what he disclosed Tuesday morning.

Donald Trump may be liable if he knew about this action. George Washington University Law School Lecturer in Law, Randall D. Eliason wrote:

Suppose Trump campaign officials got involved with Russian hackers only after the hacking was already completed, and worked with them on things like timing the release of certain emails. Conspiracy to violate the CFAA might not be a viable charge, because you can’t conspire to commit a crime that is already completed.

At that point a couple of other options would come into play. Accessory after the Fact, 18 U.S.C. § 3, punishes anyone who knows a crime against the U.S. has been committed and then “receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment.” Anyone who worked with Russian hackers to help them conceal their activities and avoid detection or apprehension could be considered an accessory.

A related charge, Misprision of a Felony, 18 U.S.C. § 4, punishes anyone who has actual knowledge of a felony that has been committed against the U.S. and “does not as soon as possible make known the same to some judge or other person in civil or military authority.” Again, if Trump campaign officials got involved with Russian hackers after the hacking was completed and cooperated with them rather than reporting the hacking, misprision would be a potential charge.

The investigation is not a witch hunt, Trump protestations aside.

Legal Precision and the Russia Investigation (Part 1)

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Robert Mueller’s investigation into Russian interference is continuing apace. The investigation has divided politicians and the citizenry at large. A popular objection to the investigation is advanced on legal grounds. Defenders of the president say there is no law against collusion. Trump supporters try to blunt the charge of collusion by saying the word collusion is an empty legal concept. Donald Trump often sends tweets that say there was no collusion. Jay Sekulow, Trump’s lawyer, said, “Collusion in and of itself, there’s no crime of collusion.” How can we make any headway in this debate with so many interlocutors?

This blog series is devoted to bringing clarity to the legal terms of the investigation.

The online version of Black’s Law Dictionary defines “collusion” as, “A deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party of his right….”

This definition is only partially helpful. The scope of Mueller’s investigation is much broader than this anemic definition.

Renato Mariotti is a partner at the law firm Thompson Coburn and he has experience handling obstruction cases as a former federal prosecutor. According to Mariotti:

Although “collusion” is a word that has been thrown around a lot lately, it doesn’t have any specific legal meaning. What matters legally is whether someone in the Trump campaign joined a conspiracy, aided and abetted a crime, or actively concealed a crime. None of these legal concepts is complicated. A conspiracy is just a legal term for an agreement to commit a crime. You aid and abet a crime if you know about criminal activity and actively try to make it succeed. There is also a crime called “misprision of felony” that means you know that a felony has been committed and you actively work to conceal the crime.

Noah Feldman, a professor of constitutional and international law at Harvard University, says a relevant law is 52 U.S.C. 30121, which regulates campaign contributions. The law states:

52 U.S. Code § 30121 – Contributions and donations by foreign nationals
(1) a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or

(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

It is possible that Donald Trump Jr. became liable under this law when he met with Russians to get “dirt” on Hillary Clinton. Richard Briffault, a professor at Columbia Law School, thinks it is unclear whether Trump Jr. committed a crime in this case. Robert Bauer, a partner at Perkins Coie and professor at New York University Law School, argues Trump Jr. is probably legally liable under this statue.

Is Donald Trump a Liar?

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The Washington Post published an article recently that tallied Trump’s false or misleading statements. It says:

In the 466 days since he took the oath of office, President Trump has made 3,001 false or misleading claims, according to The Fact Checker’s database that analyzes, categorizes and tracks every suspect statement uttered by the president.

That’s an average of nearly 6.5 claims a day.

Trump Lies and misleading statements:

1. Americans imprisoned in North Korea: Trump tweeted on May 2, 2018 “As everybody is aware, the past Administration has long been asking for three hostages to be released from a North Korean Labor camp, but to no avail. Stay tuned!
2. Chain Migration: “President Donald Trump repeatedly has claimed that Sayfullo Saipov — the Uzbekistan national who was arrested for a deadly terrorist attack in New York City last year — brought 22 people with him into the United States through “chain migration.” There’s no evidence of that, and it’s likely not even possible.”
3. Refugees: Trump said the US does not screen refugees coming into the US
4. Personnel ChangesTy Cobb, Trump’s former lawyer, being replaced by Emmet Flood
5. Mexico and Immigration: “The Mexican government forces many bad people into our country.”
6. The Steele Dossier and the Russia Investigation: “Trump claimed that the “Mueller probe” was “based on … a Fake Dossier” paid for by the Democrats, referring to opposition research conducted by former British spy Christopher Steele.”
7. His tax cuts were the biggest tax cuts in history
8. Canadian Trade: “In making his case for renegotiating NAFTA, President Donald Trump told GOP donors that the U.S. has a trade surplus with Canada — but only because the trade balance “doesn’t include energy and timber.””
9. Barack Obama and ISIS: Trump suggested that Obama’s “apology tour” created ISIS
10. Family-based Immigration: Trump said, “Under the current broken system, single immigrant can bring in virtually unlimited numbers of distant relatives.”
11. Ted Cruz’s Father: “Ted Cruz’s father “was with Lee Harvey Oswald” before the assassination of President John F. Kennedy.”
12. MS-13 Arrests: “What the Border Patrol and ICE have done, we have sent thousands, and thousands, and thousands of MS-13, horrible people out of this country or into our prisons.

Here is a partial list of PolitiFact’s Pants on Fire Trump Lies:

1. Voting: “”In many places, like California, the same person votes many times. You probably heard about that. They always like to say ‘oh that’s a conspiracy theory.’ Not a conspiracy theory, folks. Millions and millions of people.”
2. Russia Meddling: “I never said Russia did not meddle in the election.”
3. Climate Change: “The ice caps were going to melt, they were going to be gone by now, but now they’re setting records, so okay, they’re at a record level.”
4. Chicago: Chicago is “the city with the strongest gun laws in our nation.”
5. The Racists in Charlottesville: White nationalist protesters in Charlottesville “had a permit. The other group didn’t have a permit.”
6. Amazon: Amazon is a ‘no-tax monopoly.’

What do you think? Is Trump a liar?

Blowing Up the Iran Nuclear Deal


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I wrote about the Iran Nuclear Deal here, and here. The deal is less than ideal but much better than nothing. Donald Trump just betrayed the deal. What are the consequences of this unilateral decision?

1. Strained Relations with Russia: Dmitry Peskov, the Deputy Chief of the Presidential Executive Office, Presidential Press Secretary in Russia, said negative consequences will result if the US pulls out of the deal.
2. Cedes Ground to Iranian Hard-liners: President Hassan Rouhani endorsed the deal at some political cost. The deal was an attempt to use diplomatic means to reach a resolution over an issue as big as nuclear weapons. Pessimistic Iranian detractors of diplomatic solutions will have one more piece of evidence to support their position. Trump’s actions undermine US credibility and support the narrative that diplomatic relations with the US are futile. Iranians can now say: ‘America can’t be trusted. We must resort to non-diplomatic means to get our way.’ Remember, the deal was struck because we did not like Iran’s past actions, we will reap those actions again.

Perhaps my comments seem alarmist or hyperbolic to some readers. If this is you, read the words of Iranian Supreme Leader Ayatollah Ali Khamenei:

Now, this [nuclear negotiations] is a new experience. If the other side [the United States] sets aside its bad behavior, this will become a new experience for us, one that will tell us that, well, we can also negotiate with them about other issues. But, if they repeat the same behavior and take the wrong path, it [the negotiations] will only reinforce our past experience.

These are disturbing words indeed. President Rouhani said, “Iran will wait and see how others react.” Rouhani’s statement shows that our actions on the world stage matters. Iran is deeply influenced by international actors. We should have taken advantage of this level of influence and leveraged a better deal, not scrap the deal entirely.
3. The fracturing of International Business Relations: Companies like Boeing may lose $20 billion because of this diplomatic breach. The company agreed to sell 110 plans to Iran for about $20 billion. Airbus stands to lose money as well.
4. Threatens the North Korean Peace Process: Yevgeny Serebrennikov, first deputy chair of the Federal Council Committee on Defense and Security in Russia, said Trump’s actions place peace negotiations with North Korea on uncertain footing.
5. Iranian Nuclear Weapons: Bloomberg News:

The collapse of the accord could hamper denuclearization efforts, and not just in the Middle East. While President Hassan Rouhani has signaled a route that keeps Iran in the deal, Foreign Minister Mohammad Javad Zarif has warned that if the U.S. exits, his country might resume its nuclear program. Iranian officials have also threatened to leave the Non-Proliferation Treaty if the deal crumbles.

Today, May 9th, Iranian politicians shouted “death to America” and burned the American flag. Just another day in Trump’s failed presidency.