Below is my column in the Hill Newspaper on the recent column in the New York Times by Harvard Law Professor Lawrence Tribe and others that Devin Nunes could be charged with obstruction of justice. The column contains highly dubious uses of both history and precedent to advance this latest claim of criminality. The ABA Journal and other papers have reported on the theory without any objective of its meritless foundation in constitutional law. The basis for such claim is so attenuated as to border on the fanciful. There are serious possible crimes being alleged without twisting the criminal code to go after supporters of President Trump.
For a year, some of us have questioned calls for the prosecution of President Trump for obstruction of justice. Every ill-conceived statement or tweet by Trump is proclaimed as “smoking gun” evidence of this seemingly catch-all crime. As the “resistance” to Trump grew, so did the expansion of the interpretation of the crime. It became increasingly more difficult to determine not what is obstruction but what is not obstruction. A recent column in the New York Times seems to have the answer: Prosecute them all and let God sort them out.
The column by Harvard Law School professor Lawrence Tribe, (right), American Constitution Society president Caroline Fredrickson and Brookings Institution fellow Norman Eisen argued that House Intelligence Committee Chairman Devin Nunes (R-Calif.) could now join Trump in the criminal dock. His crime? Writing a memo alleging FBI abuses that was released by a vote of the majority of a committee overseeing the FBI.
The column entitled “Is Devin Nunes Obstructing Justice?” captures the distemper that has overtaken legal analysis. It appears that anyone deemed as supporting Trump can now be charged with the same nebulous crime. After all, if Trump is actively trying to obstruct a federal investigation, surely those who actively support him or oppose the investigation are no less guilty of the same offense.It is not that easy for federal courts, which traditionally follow the opposite inclination under the “rule of lenity.” Courts tend to not only define criminal laws narrowly but rule in favor of defendants in areas of ambiguity. These and other experts appear to view ambiguity as an invitation for creativity in finding ways to indict Trump. There is a real danger to civil liberties by the continuing effort to endlessly expand criminal definitions. Trump will not be our last president and these new overarching definitions will remain with us as a type of unpaid bill. It will be citizens who pay that legal bill.
The latest obstruction claim asserts that “by writing and releasing the memo, the chairman may just have landed himself, and his staff members, in the middle of Robert Mueller’s obstruction of justice investigation.” Of course, there is the obvious complication of the immunity afforded to members of Congress under the Speech and Debate Clause of Article I.
In Gravel v. United States, the Supreme Court reaffirmed this immunity for not just members but staff after Sen. Mike Gravel (D-Alaska) read portions of the Pentagon Papers before a congressional committee. Ironically, Gravel was supporting the New York Times, which first published the papers in defiance of the Nixon administration.
While acknowledging the “strong bulwark” of immunity, the authors work mightily to limit the possible use of immunity, including some creative use of history. For example, they note that the Supreme Court did not extend immunity as far as Gravel’s publication of the papers in a later book. However, the court supported the immunity over the disclosure through the committee.
If anything, Nunes is in a much stronger position than Gravel. Nunes did not unilaterally release the memo like Gravel and he did so in a committee with direct oversight of the FBI. Conversely, the Pentagon Papers were read at an entirely unrelated subcommittee on buildings and grounds of the Senate Public Works Committee.
It is equally dubious to suggest that the memo may be found to have “mere peripheral connection to legislative acts” or a pure political act to deny immunity. The basis for this claim is simply that the authors and Democrats disagree with the conclusions of the memo. No competent federal judge would rule that such a memo is unrelated to the legislative purpose of oversight over the FBI.
Even more bizarrely, there was this warning: “Nunes would do well to remember what befell Senator Daniel Brewster of Maryland.” Nunes would be understandably confused by the historical reference. Brewster claimed immunity over the acceptance of alleged bribes. This facially ridiculous argument was rejected by the Supreme Court, though Brewster was later acquitted of bribery and had the remaining convictions overturned on other grounds.
Where experts argued for months about the dubious crime of “collusion” with the Russians, these experts are now arguing for a crime of “collaboration” with the White House. The idea is that, if Nunes or his staff coordinated in the issuance of the memo, they could be charged for casting doubt on the conduct of the FBI in the early investigation of the Russian matter.
The suggestion of an obstruction case against Nunes reduces the criminal code to a virtual professorial parlor game. For a year, experts have assured eager (if not desperate) audiences that a criminal case against Trump is now in sight. For example, Tribe and Eisen have been alleging a host of unlawful acts, including a lawsuit alleging unconstitutional emoluments that was thrown out by a federal judge in December.
Tribe previously argued that Trump could be charged with witness tampering for dictating a misleading statement on the Trump Tower meeting. Tribe previously found compelling evidence of obstruction of justice, criminal election violations, Logan Act violations, extortion and possible treason by the president or his family. He also found grounds for impeachment.
Eisen previously declared the meeting at Trump Tower with Russians promising evidence of illegal contributions to the Clinton Foundation to be the long-sought “smoking gun” for prosecution. Eisen invoked the Logan Act, a law from 1799 that makes it a crime for citizens to intervene in disputes or controversies between the United States and foreign governments. It has never been used to convict a single U.S. citizen and is widely viewed as facially unconstitutional.
There has been an accordion-like flexibility in these interpretive approaches. While adopting expansive interpretations to allow the prosecution and impeachment of Trump, Eisen and Trump have adopted narrow interpretations to prevent Trump from granting himself a pardon.
There appears no price too high to pay in the pursuit of Trump. It is not enough to simply disagree in today’s politics. Your opponents must not only be wrong but criminally culpable in our extreme political discourse. The New York Times column shows how this mania has gone mainstream.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has been lead counsel in national security cases for more than two decades and has testified before congressional intelligence committees. You can follow him on Twitter @JonathanTurley.