Is President Trump Immune From An Obstruction of Justice Charge?

donald_trump_president-elect_portrait_croppedIn the coming weeks, I will be addressing a number of novel constitutional issues that are being raised in relation to the Russian investigation. The first such issue has been widely discussed: is there a constitutional barrier to any federal charge against President Donald Trump for obstruction of justice.

Here is my recent column in USA Today:

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Do Rosenstein and Mueller Have Conflicts of Interest in the Trump Investigation?

Rod_Rosenstein_US_Attorney440px-Director_Robert_S._Mueller-_III-1For many weeks, I questioned the need for a Special Counsel in the Russian investigation because it seems like a coverup in search of a crime.   I still do not see the evidence of a crime and simply saying “collusion” does not supply an actual crime.  However, when President Donald Trump fired James Comey, I supported the appointment of a Special Counsel to investigate obstruction of justice, even though I remained skeptical of the basis for an actual obstruction charge. I still fail to see the compelling basis for an obstruction case without stretching the criminal code to the breaking point.  Nevertheless, I continue to support the need for an independent investigation.

The investigation of a sitting American president however must itself be beyond question as to any bias or influence.  For that reason, I have been questioning the propriety of Rod Rosenstein to continue in his current position vis-a-vis the Russian investigation.  From the outset, Rosenstein seemed to me to be an inevitable and important witness.  Ironically, the recent leak magnified this problem.  The leak seemed calculated to protect Mueller from being terminated by publicly identifying Trump as a possible target. However, whatever benefit the leak brought Mueller, it undermined Rosenstein.  If Mueller is investigation Trump for obstruction, Rosenstein should immediately recuse himself.

It is not clear if Mueller has an equal conflict of interest. There is reason to be concerned.  If Mueller discussed the Comey’s termination with Trump as a candidate for the next FBI Director, he might also be considered a witness in any obstruction investigation. It would seem highly material to the investigation to learn of how Trump described his decision and what he said (if anything) to Mueller about the ongoing Russian investigation.  At a minimum, the Special Counsel should address what is a reasonable question about his own knowledge of (and participation in) any meetings with Trump on the Comey termination and the Russian investigation.  I do not agree with the campaign to discredit Mueller and strongly object to attacks on his character.  I believe Mueller to be a person of integrity and I hope that he recognizes that such a meeting raises some legitimate questions that should be addressed.

Here is the column:

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New Lawsuits Could Determine Not Only The Legal Status Of The Comey Memos But The Legality of Comey’s Actions

200px-Cnn.svg440px-Comey-FBI-PortraitLast week, CNN filed a lawsuit seeking the famous Comey memos from the FBI, which is discussed in the column below in The Hill newspaper.  The lawsuit could produce an official characterization of the status of the memos as either personal or FBI information.  After this column was posted, Judicial Watch also filed a lawsuit seeking the memos which it maintained were the property of the FBI.  The lawsuit states “Upon learning that records have been unlawfully removed from the FBI, you then are required to initiate action through the Attorney General for the recovery of records.”  These lawsuits could prove vindicating or implicating for Comey. [Update: other news organizations have added additional lawsuits]

Here is the column:

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Both Sessions and the Senators Were Right in the Fight Over Executive Privilege

jeff_sessions_official_portraitDemocrats are clamoring for the resignation of Attorney General Jeff Sessions this week in the wake of his testimony before the Senate.  I fail to see the good-faith basis for these calls, particularly after his testimony.  Sessions shot down the claims of a third meeting with Russians that was the subject of breathless media reports for days.  He also did an excellent job in explaining the steps that he took in recusing himself, including declining to play any role in the Russian investigation long before his formal recusal.  He was also on good ground in declining to discuss conversations with the President in the Oval Office.  Despite the shock expressed by Democratic Senators, he is in a long line of cabinet members declining to disclose such presidential communications.  Nevertheless, the Democrats were right that you should have a formal invocation of executive privilege before declining to answer questions from Congress.  However, as discussed in the column below, that is not uncommon.

Yet, the Administration had just gone through a controversial hearing with top intelligence officials refusing to answer such questions and clearly knew that these questions were coming.  What did not make sense in the testimony of National Security Agency director Adm. Mike Rogers and National Intelligence Director Dan Coats was their refusal to answer on the ground that it would be “inappropriate.”  That makes no sense in isolation without an indication that the questions will be reviewed and addressed by White House counsel in whether executive privilege will be invoked.  The same problem arose with the testimony of Sessions (which was magnified by the fact that the White House has been pummeled over the earlier hearing).

The White House should have simply invoked the privilege with regard to presidential communications in the Oval Office in advance while stating an intention to try to answer as many of the questions of the Committee as possible within those long-standing constitutional confines.  It is not unheard of to decline to answer questions pending review but Sessions did not promise to have questions reviewed.  If he does not secure an invocation (or permission to disclose), he would simply be refusing to answer questions of Congress which constitutes contempt of Congress.  This is not necessary. The White House Counsel should have sent a letter in advance of the hearing either invoking or waiving privilege.  Alternatively, he needs to send a letter to address the outstanding questions.  Congress has a right to have its questions answered unless the White House claims privilege.  Even with an invocation, Congress can overcome the privilege with a proper showing to a court.  The process requires a firm answer from the White House on the basis for refusing to answer questions and it cannot be a categorical denial based on unease or discomfort.

Here is the column in the Hill Newspaper.

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The Comey Defense: Redefining Both The Law and The Leak To Oppose Donald Trump

440px-Comey-FBI-PortraitBelow is my column in The Hill Newspaper on the legal analysis surrounding the disclosure by former FBI Director James Comey that he leaked damaging information against President Donald Trump in memos to the press.  I have been surprised by the analysis which has been both artificially narrow or outright erroneous on the underlying legal issues.  There was an early effort, for example, to judge the lawfulness of Comey’s actions solely on the basis of whether it was a crime.  If these memos were government property, a claim for criminal conduct could be made but it would be unlikely under existing precedent.  However, that does not mean that Comey’s conduct was either lawful or professional. Neither is true.  In the rush to lionize Comey, the media is ignoring the fact that others have been punished for releasing non-public information to the media. Moreover, Comey and the FBI was tasked with finding leakers in the Administration. Yet, after being fired and publicly insulted by Trump, Comey became himself a leaker (despite a readily available and lawful avenue for disclosing the memos in a matter of weeks).  I have stated from the outset that criminal charges are unlikely (and in my view unwarranted) as the facts currently stand with regard to this one leak. However, the leak was in my view unlawful and unprofessional.  Comey allowed himself to be baited by Trump and proceeded to discard his professional judgment to strike back through a third party.  His conduct should not be judged solely on the basis of whether it might land him in jail. Moreover, if the FBI wanted to pursue the violation, it could drag Comey to court and seek various remedies outlined in the agreement that all FBI agents sign as a condition of their employment.

The column below explores some of the misleading conclusions being advanced in the coverage. As I state in the column, I agree that legal commentators can have good-faith differences on such questions. However, it is useful to lay out both the conclusions and the countervailing arguments.  These issues will become far more acute for Comey (including the possibility of criminal violations) if, as suggested by the White House, there were more leaks stretching back months.

 

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The Case Against James Comey

440px-Comey-FBI-PortraitBelow is my column in The Hill Newspaper on the the case against former FBI Director James Comey for leaking FBI information to the media.  There has been an effort to confine the question of Comey’s actions in terms of criminality. There are laws that could be relied upon for a formal charge in court but that is unlikely and would counter prior prosecutorial practices.  However, the disclosure clearly violates a host of federal rules and regulations that bar such use of FBI information. It is therefore unlawful and unprofessional.  It is also potentially unethical under bar rules.

Here is the column:

 

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Comey Testimony Proves To Be Neither Vindicating Nor Incriminating For Trump

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on the current status of the evidence against President Donald Trump for either indictment or impeachment.  While I do not agree with the White House that former FBI Director James Comey 
“completely vindicated” the President, I do not believe that the testimony materially altered the legal position of the President.  I believe that Comey both helped and hurt himself.  He did an excellent job in explaining why he only discussed the content of the memos with his staff, but he also admitted to being a leaker and showed repeated failures in ethical confrontations with superiors.  There is reportedly a call for Comey to return.  He may find the return appearance more challenging than the first.

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