The Supreme Court handed down a stinging defeat for the Trump Administration in a unanimous decision in Maslenjak v. United States, where the Administration sought to strip an immigrant of U.S. citizenship over a false statement made on an immigration form. In a decision by Justice Elena Kagan, the justices declared that the government could not strip citizenship from Divna Maslenjak because she falsely stated that her husband had not served in the Bosnian Serb army in the 1990s. Notably, the Obama Administration had taken the same hard position in the case and the Trump Administration continued that position on the appeal.
Today I will the great honor of serving as the inaugural speaker at the W. Eugene Davis Lecture in Lafayette, Louisiana. This event holds a particular personal meaning for me because I clerked for Judge Davis on the Fifth Circuit in the late 1980s. Serving as his clerk was the single most transformative decision that I have made in my professional life. The clerkship started a lifelong friendship that I cherish to this day. Judge Davis is adored by everyone who has worked with him for his unflagging decency, civility, and integrity. When I think back to my time in his chambers, I realize how much the experience — and Judge Davis — shaped my views of legal ethics, professionalism, and civility. This lecture is a fitting tribute to a man who served justice for decades as a trial judge and later an appellate judge. He is the classic and genuine judicial article. He still relishes the simple task of judging — fairly and honestly. He has spent his lifetime eschewing ideology in favor of resolving cases in an unbiased and consistent manner. He is my ideal of what everyone judge should strive to be. He remains a humble and decent man who seeks to do justice. That is why this lecture series is such a fitting testament to the legacy of W. Eugene Davis.
For 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:
Another day, another leak. The Wall Street Journal is reporting that it has seen a memo written by Rick Ledgett, the former deputy director of the NSA, detailing a phone call in which U.S. President Donald Trump NSA Director Admiral Mike Rogers to state publicly that there is no evidence of collusion between his campaign and Russia. It is the latest high-level official reporting a concerted effort by Trump to dispel allegations of collusion. While the Special Counsel is reportedly seeking to interview Ledgett, I still remain skeptical of the current facts being used as the basis for an obstruction case. As I previously discussed, Robert Mueller has hired at least one senior lawyer known for his unsuccessful effort to expand the scope of obstruction. However, this memo does not necessarily change the narrative on both sides of the controversy. There remains an obvious defense to a conventional obstruction claim – assuming the definition of the crime is not stretched beyond recognition to change the meaning of “corruptly influence.”
Democrats 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.
Washington was awaken this morning with our now regular sound of a tweet from the President. At 6:55 am, President Donald Trump blasted the report that Justice Department special counsel Robert Mueller is now investigating him for obstruction of justice. He called the whole thing based on a “phony story” — a likely dig at former FBI Director James Comey. I previously raised my concern about the alleged leak from the Special Counsel’s office. The fact that the office is investigating obstruction is hardly news. Even those of us who have expressed substantial reservations about the legal basis for an obstruction charge against the President have said that there was ample reason to investigate such allegations. However, the leak in the Washington Post undermines the credibility not of the President but the Special Counsel. Similarly, I have previously said that these tweets from the President are highly damaging to both his public and legal case. Recent polling finds that only one in five voters support Trump’s firing of Comey and a majority now believe that he did meddle in the Russian investigation.
It is the presidential version of death by cop. Recently, I wrote a column on how Trump had become a witness against himself by, again, tweeting highly damaging observations about pending litigation and even contradicting the statements of his own legal team in the immigration order litigation. As predicted, the United States Court of Appeals for the Ninth Circuit not only ruled against his Administration but relied on his damaging recent tweet to seal the deal. The lack of message discipline extended to Trump friends this week after his friend, Newsmax CEO Chris Ruddy, said Trump was considering firing Mueller: “I think he’s considering perhaps terminating the special counsel. I think he’s weighing that option. I think it’s pretty clear by what one of his lawyers said on television recently.” The statement sent a chill throughout Congress. Such a move would not only push Congress to pass a renewal of the Independent Counsel Act but magnify allegations of obstruction.