Revisiting the Mueller Report in Light of Trump v. United States

Chief Justice Roberts's majority decision in Trump v. United States undermines key aspects of Mueller's framework.

In May 2017, President Trump fired FBI Director James Comey. That decision triggered Acting Attorney General Rod Rosenstein's appointment of Robert Mueller as Special Counsel. That investigation would span the bulk of Trump's term. Although Trump was ultimately not indicted, Mueller released a 400-page report that identified a series of what could have been indictable offenses, but for DOJ policy which prohibited the indictment of a sitting President.

Many of the constitutional issues that Mueller grappled with were unsettled when his report was written.Nixon v. Fitzgerald spoke to civil presidential immunity, but the Supreme Court had never addressed presidential criminal immunity. Seven years later,  Chief Justice Roberts's majority decision in Trump v. United States has undermined key aspects of Mueller's framework. Indeed, with the benefit of hindsight, I do not even think Rosenstein's decision to appoint Mueller in the first place would have been proper. Firing Comey was a "core" exercise of Article II powers that could not be criminalized by a generally-applicable obstruction statute.  I alluded to this point in my post about why the Chief Justice wrote such a sweeping opinion. Here, I will compare and contrast Mueller on Trump, and Roberts on Trump.

First, Chief Justice Roberts explains that the President's exercise of the removal power is a "core" power, which Congress cannot criminalize.

Some of the President's other constitutional powers also fit that description. "The President's power to remove—and thus supervise—those who wield executive power on his behalf," for instance, "follows from the text of Article II." Seila Law LLC v. Consumer Financial Protection Bureau (2020). We have thus held that Congress lacks authority to control the President's "unrestricted power of removal" with respect to "executive officers of the United States whom he has appointed." Myers v. United States (1926); see Youngstown (Jackson, J., concurring) (citing the President's "exclusive power of removal in executive agencies" as an example of "conclusive and preclusive" constitutional authority); cf. Seila Law (noting only "two exceptions to the President's unrestricted removal power").

And that robust removal power is at its apex with regard to prosecutorial decisions:

Investigative and prosecutorial decisionmaking is "the special province of the Executive Branch," Heckler v. Chaney (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump's threatened removal of the Acting Attorney General likewise implicates "conclusive and preclusive" Presidential authority. As we have explained, the President's power to remove "executive officers of the United States whom he has appointed" may not be regulated by Congress or reviewed by the courts. Myers. The President's "management of the Executive Branch" requires him to have "unrestricted power to remove the most important of his subordinates"—such as the Attorney General—"in their most important duties." Fitzgerald.

This passage would seem to negate any potential criminal liability for Trump's firing of James Comey, and his threats to fire Acting Attorney General Rod Rosenstein as a means to thwart the Mueller investigation. Full stop. If Chief Justice Roberts is correct, Mueller should have never been appointed in the first instance. Moreover, Mueller would have no claim that the threatened-firing of Rosenstein is a form of "obstruction." I think Fischer provides more support for that conclusion.

Second, the Court finds that the President's seeking of advice and counsel from his principal officers are also part of his "core" powers:

Certain allegations—such as those involving Trump's discussions with the Acting Attorney General—are readily categorized in light of the nature of the President's official relationship to the office held by that individual. . . .

The indictment's allegations that the requested investigations were "sham[s]" or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

Robert Mueller spent countless hours interviewing the President's advisors, including people at the Department of Justice and the White House Counsel's Office. Those interrogations severely compromised the President's ability to seek advice from his administration. The lawyers all feared that they might be indicted!

And to what end? Mueller was trying to probe what Trump told them, what Trump asked them, and what Trump's intentions were. But this passage by the Court suggests that these conversations could not form the basis of criminal liability. Merely seeking advice from advisors, including principal officers, is "absolutely immune." Indeed, the Opinions Clause gives the President the power to request opinions from his "Principal Officers." (This provision made an appearance in Trump v. New York.) Mueller should have never interrogated the President's advisors, and attempted to impose criminal liability on the basis of the President's requests for advice.

Third, the Court embraces a clear-statement rule with regard to the presidency. Specifically, the Court attributes the clear-statement rule to the Department of Justice, and then agrees with that attribution.

For instance, the Government does not dispute that Congress may not criminalize Presidential conduct within the President's "conclusive and preclusive" constitutional authority. See Tr. of Oral Arg. 133 ("[C]ore powers . . . can't be regulated at all, like the pardon power and veto."); see also id., at 84–85. And it too accords protection to Presidential conduct if subjecting that conduct to generally applicable laws would "raise serious constitutional questions regarding the President's authority" or cause a "possible conflict with the President's constitutional prerogatives." Application of 28 U. S. C. §458 to Presidential Appointments of Federal Judges, 19 Op. OLC 350, 351–352 (1995); see Brief for United States 26–29; Tr. of Oral Arg. 78. Indeed, the Executive Branch has long held that view. The Office of Legal Counsel has recognized, for instance, that a federal statute generally prohibiting appointments to " 'any office or duty in any court' " of persons within certain degrees of consanguinity to the judges of such courts would, if applied to the President, infringe his power to appoint federal judges, thereby raising a serious constitutional question. 19 Op. OLC, at 350 (quoting 28 U. S. C. §458); see id., at 350–352. So it viewed such a statute as not applying to the President. Likewise, it has narrowly construed a criminal prohibition on grassroots lobbying to avoid the constitutional issues that would otherwise arise, reasoning that the statute should not "be construed to prohibit the President or executive branch agencies from engaging in a general open dialogue with the public on the Administration's programs and policies." Constraints Imposed by 18 U. S. C. §1913 on Lobbying Efforts, 13 Op. OLC 300, 304 (1989); see id., at 304–306.

During the Mueller investigation, there were non-stop debates about whether such a "clear statement" rule actually exists. No backing down now. I think the Court has settled this issue. OLC opinions will cite this passage for generations to come. And were there any doubt, see Footnote 3 of Justice Barrett's concurrence:

[1] FN3: The Court has sometimes applied an avoidance canon when interpreting a statute that would interfere with the President's prerogatives. See, e.g., Franklin v. Massachusetts (1992); Public Citizen v. Dept. of Justice (1989); Sale v. Haitian Centers Council, Inc. (1993). The Office of Legal Counsel has advocated for a clear-statement rule if applying a statute would "raise serious constitutional questions relating to the President's constitutional authority." In my view, neither canon applies in this circumstance. Courts should instead determine the statute's ordinary meaning and, if it covers the alleged official acts, assess whether prosecution would intrude on the President's constitutional authority.

Barrett disagrees with the majority's application of this "avoidance canon." But Roberts has five solid votes for the clear statement rule. (In another post, I will try to tease out where Barrett and the majority actually agree–there is not much overlap.) During oral argument in Trump v. United States, Justice Kavanaugh cited the importance of the clear statement rule. Indeed, this disagreement echoes disputes over the major questions doctrine. In Biden v. Nebraska, Justice Barrett rejected the validity of substantive cannons altogether. By contrast, in West Virginia v. EPA, Justice Gorsuch conceptualized the major questions doctrine as a clear statement rule, in service of the non-delegation doctrine. I've made this point before, but I think Barrett is alone on this point, and the rest of the Court is comfortable with clear statement rules.

The Court states that even a "generally applicable" statute cannot criminalize the President's constitutional powers:

It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President's actions within his exclusive constitutional power.

And in dissent, Justice Jackson regrets the application of this canon:

The majority's new Presidential accountability model is also distinct insofar as it accepts as a basic starting premise that generally applicable criminal laws do not apply to everyone in our society.

The clear statement Rule, and the presidential avoidance cannon, prevail.

Fourth, the Court is quite emphatic that it is not proper to probe the President's subjective motivations:

In dividing official from unofficial conduct, courts may not inquire into the President's motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect. Indeed, "[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government" if "[i]n exercising the functions of his office," the President was "under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry." Fitzgerald. We thus rejected such inquiries in Fitzgerald.

This holding is entirely consistent with Trump v. Hawaii, where the Court refused to probe Donald Trump's subjective motivations with respect to the travel ban. By contrast, all of the lower courts were giddy to treat every single tweet as if it was a psychological profile.

Back to the Mueller report. The Special Counsel spent page-after-page trying to determine whether Donald Trump was motivated by some sort of "corrupt" intentions, which would take his actions outside the protections of the Take Care Clause. Yes, remember the Take Care Clause? There was even a blog by that name. (It's been awfully silent of late.) The argument went that when the President has a "corrupt" intent, he is not "faithfully" executing the law, therefore those actions can be criminalized. The Court emphatically rejects that analysis. Roberts explains:

The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to "take Care that the Laws be faithfully executed." Art. II, §3.

And the President's motivations behind those prosecutions are not subject to judicial review. Indeed, Roberts extends this conception of the Take Care Clause to an area where there are no specific federal laws for the President to enforce, such as the counting of electoral votes:

On Trump's view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President's duty to "take Care that the Laws be faithfully executed" plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3.

Again, Congress passes election laws, but the President has no particular role to enforce them. Yet the President's actions still fall under the aegis of the Take Care Clause.

This capacious conception of the Take Care Clause conflicts with much of the scholarship that germinated during the first Trump administration. Again, as proof of how broadly the majority reads the Take Care Clause power, consider Justice Barrett's Footnote 1:

Consistent with our separation of powers precedent, I agree with theCourt that the supervision and removal of appointed, high ranking Justice Department officials falls within the President's core executive power. See Seila Law LLC v. Consumer Financial Protection Bureau (2020). I do not understand the Court to hold that all exercises of the Take Care power fall within the core executive power. Cf. (SOTOMAYOR, J., dissenting). I agree with the dissent that the Constitution does not justify such an expansive view.

As if often said, it is a bad practice to look to a dissent as an indication of what the majority means. And Barrett's opinion, though styled as "concurring in part," is mostly a dissent from the majority's robust conception of presidential powers.

With the benefit of hindsight, Mueller's work to ascertain the President's intents were inconsistent with how Chief Justice Roberts conceives of presidential immunity. Again, the basis of the Mueller investigation runs head-long into the Court's decision.

Finally, the difficulty of defining "corrupt" in Fischer provides further proof of how tenuous Mueller's entire case was.

If you've read this far, here is a bonus fifth point. The Court includes in the "core" category for absolute immunity the President's powers concerning foreign policy:

He also has important foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration.

Justice Sotomayor, in dissent, rejects this category, since the foreign removal powers are not squarely defined in the text of Article II:

For instance, its opinion lists some examples of the "core" constitutional powers with respect to which the President is now entitled to absolute immunity—a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power.  However, the majority does not—and likely cannot—supply any useful or administrable definition of the scope of that "core." For what it's worth, the Constitution's text is no help either; Article II does not contain a Core Powers Clause.⁶ So the actual metes and bounds of the "core" Presidential powers are really anyone's guess.

⁶ Some of the powers the majority designates as "core" powers are, at best, implied from indefinite constitutional language. See, e.g., Seila Law (KAGAN, J.) ("Nowhere does the text sayanything about the President's power to remove subordinate officials at will"); Zivotofsky v. Kerry (2015) ("[T]he Constitution doesnot use the term 'recognition,' either in Article II or elsewhere"); id., at 63 (ROBERTS, C. J., dissenting) (calling the "asserted textual bases" for an exclusive Presidential recognition power "tenuous").

Why does this matter? The basis of President Trump's first impeachment concerned his conversation with Ukrainian President Zelenskyy. Remember the whistleblower? (After several years of the war between Russia and Ukraine, I think people forgot that the Ukraine issue was simmering even during the Trump years.) During the first impeachment proceedings, Seth Barrett Tillman and I wrote about how exercises of the President's core powers over foreign policy were not subject to impeachment–even where the President is charged with having "improper" motivations:

First, consider the public motivation. Trump's request would directly promote foreign and domestic policy interests: Ukraine would investigate possible corruption regarding an American citizen. The U.S. government does not commit bribery when it attempts to change the official behavior of a foreign government by offering to grant or withhold American funds, within the zone of discretion provided by statute. Likewise, the U.S. government does not commit bribery by promising continuity or change in American policy when it attempts to change the official behavior of a foreign government. All such offers have always been characterized as diplomacy. These sorts of communications with foreign powers, by their very nature, involve incentives, threats, and explicit quid pro quo exchanges. In our constitutional order, the president has the unique authority to set those priorities. People may agree or disagree with those policy objectives. And those policy objections are registered in elections. . . .

For the same reason, Trump's political opponents cannot deny the president the full scope and powers of his elected position merely by asserting in a conclusory fashion that the president is conflicted and that he might derive a personal benefit. We write might because whether the president would, in fact, receive a personal benefit would still be up to the voters. That distinction highlights why the allegations against Trump do not fit within the common understanding of bribery, for example, receiving a discrete personal benefit, such as a suitcase full of money. At most, Trump sought a change in a foreign government's policy, and any benefit or injury flows to the political community as a whole.

The Senate, sitting as a court of impeachment, is not bound by the decisions of the United States Supreme Court. But were Chief Justice Roberts's understanding of Article II to prevail, the President could not be impeached and removed for exercising his core constitutional authorities.

This post, I hope, demonstrates, how the Chief Justice's sweeping opinion seems to be a direct response to the Lawfare waged against Trump since his inauguration.

***

After all that has happened since 2005, we forget that a primary reason that President Bush selected John Roberts for the Supreme Court because of Roberts's strong views on Article II and the unitary executive. Perhaps that mode of thinking has fallen out of favor, but Roberts was groomed in the Reagan and H.W. Bush administration to understand the importance of the presidency in the separation of powers. That Article-II-centric perspective was also evident in Loper Bright. For all of Roberts's conservative apostasies over the years, he was not going to throw away his shot on presidential criminal immunity.

Comments

[Michael Ejercito]

The whole investigation was a sham.

At least absolute immunity will protect Robert Mueller.

[David Nieporent]

What does “the investigation was a sham” even mean? Mueller didn’t actually do the things he said he did? He failed to interview people and review documents?

Normally when one describes an investigation as a sham, one means that the investigator was just going through the motions and never intended to uncover wrongdoing. But surely that can’t be Ejercito’s complaint about Mueller.

[Roger S]

It was a sham because it was just lawfare against Trump. There was nothing legitimate about.

Yes, Mueller’s team interviewed some people and reviewed some documents. Supposedly they found some Russians who put out some propaganda. It did not find anything actionable.

[Noscitur a sociis]

It did not find anything actionable.

Which, I presume, you think was the correct conclusion? So what was a sham about it?

[Roger S]

The correct conclusion would have been to shut it down as soon as they determined that it was bogus. As it was, they dragged it out for 3 years, and wrote up a bunch of vague accusations that Democrats might have used to charge obstruction, or some BS charge like that.

[David Nieporent]

Robert Mueller was appointed in May 2017, and delivered his report in March 2019. The careful reader will note that this is not “3 years.”

Also, they did not, ever, determine it was bogus, for any value of “it.”

[Michael P]

It fed a horde of mindless “Orange Man Bad” headlines and breathless reports about how the latest leak from the investigation was a sign that We Are Finally About To Nail Trump For Sure This Time. Haven’t you ever heard “the process is the punishment”?

[JesusHadBlondeHairBlueEyes]

The purpose of the investigation was to shield the criminal elements in the DOJ who were illegally spying on candidate Trump and President Trump and their attempted soft coup.

[Allutz]

He failed to investigate the real criminal acts related to the Russia investigation, all of which were committed against Trump and his campaign. It is accurate, although perhaps incomplete, to refer to the Mueller Investigation as a cover up.

[Riva]

He means the whole Russian collusion nonsense was a fraud, the Steele “dossier” was a fraud. In fact the only collusion with foreign agents was by the Clinton campaign through her law firm cutouts.

[John F. Carr]

Is Blackman arguing that Mueller should not have charged Trump with crimes? I think he already got that wish.

[tylertusta]

He’s arguing that if you apply Trump v US to the conduct that Mueller was investigating, that conduct is probably absolutely immune.

Which means that Mueller’s investigation of Trump, if held today, would be legally improper and unconstitutional.

I think that there’s a bigger implication here that Prof. Blackman didn’t quite get to: future special counsel investigations of any Presidential act will be effectively impossible. There will probably be no more Muellers.

[Michael Ejercito]

One Mueller was one too many!

[Rev. Arthur L. Kirkland]

Let’s hope Democrats have learned that choosing Republicans to conduct investigations and prosecutions — with hope this will lead to justice, or to a diminution of claims of partisanship — is foolish.

Republicans never seemed to be much interested in choosing Democrats, so they didn’t have much lesson to learn.

That Democrats have appeased Republicans with respect to the FBI directorship is also inexplicable.

[Social Justice is neither]

What? No more open ended fishing expeditions whose only purpose is to stymie a President? How will “our democracy” survive if non-Democrats are allowed to act?

[Brett Bellmore]

Well, Presidents DO often engage in acts that aren’t core power exercises, so that’s maybe a bit exaggerated.

But, yes, the days of having a special counsel sicced on you for firing an insubordinate subordinate are probably over.

[David Nieporent]

He’s arguing that if you apply Trump v US to the conduct that Mueller was investigating, that conduct is probably absolutely immune.

If one’s knowledge was gained solely from reading Blackman’s piece, one might not realize that Mueller was actually appointed to investigate Russian interference in the election.

Which means that Mueller’s investigation of Trump, if held today, would be legally improper and unconstitutional.

The decision to which you and Blackman refer was about prosecuting a former president. It was not about investigating a current (or former) president. One cannot with a straight face argue that “separation of powers” concerns allow the judicial branch to tell the executive branch that it can’t conduct an investigation.

I think that there’s a bigger implication here that Prof. Blackman didn’t quite get to: future special counsel investigations of any Presidential act will be effectively impossible. There will probably be no more Muellers.

Like I said: if one’s knowledge was gained solely from reading Blackman’s piece, one might not realize that Mueller was actually appointed to investigate Russian interference in the election.

[Roger S]

Mueller’s team learned early on that there was no Russian interference with the election. They should have announced that, and terminated the investigation.

[David Nieporent]

Except Mueller’s team established that there was Russian interference in the election.¹ It failed to establish a direct criminal conspiracy involving Trump and the Russian government.
​
​
¹So, by the way, did the GOP-run Senate Select Committee on Intelligence.

[Brett Bellmore]

So freaking what? There has been Russian interference in every major election in the US dating back to before WWII. Heck the CPUSA was a wholly paid for operation of the KGB, they went belly up the moment the USSR stopped subsidizing them!

The only thing at all significant about the claim of “Russian interference” was the lie that Trump’s campaign was involved in it.

[Roger S]

That’s right. Saying “Russian interference” makes it sound as if the Russians were setting up anonymous ballot drop boxes, or framing political candidates with bogus crimes. No the Democrats were doing that. The Russians posted some anti-American propaganda, as they always do. They were not even necessarily trying to help Trump.

[Rev. Arthur L. Kirkland]

Son of a bitch

[Vryedni]

What the fuck is wrong with you? It’s his mother. You want to criticize her politics, I’ll join you. But cursing his mother? If you have any decency, you’ll apologize.

[David Nieporent]

So freaking what?

So the lesser (hard as it is to believe) Schlafly’s claim that “Mueller’s team learned early on that there was no Russian interference with the election” is false.

[tylertusta]

… was actually appointed to investigate Russian interference in the election.

And yet his ultimate target was Trump. Funny how that works.

One cannot with a straight face argue that “separation of powers” concerns allow the judicial branch to tell the executive branch that it can’t conduct an investigation.

Sure you can. How does an investigator enforce a subpoena? Which branch hosts the grand jury and issue warrants?

There’s a word for this: complicit.

By hosting the investigators’ efforts and sanctioning their use of the force of law, the judicial branch would be complicit in the investigation into the executive branch, which is why the separation of powers is in play even for an investigation.

[Stephen Lathrop]

Federal grand juries act outside the scope of separation of powers. They are governed by none of the 3 branches. What power they have is, by default and constitutional inference, sovereign power.

[David Nieporent]

No matter how many times you say it, it won’t be right. Federal grand juries operate under the authority of the judicial branch. Without that, they’re just a bunch of random people showing up for one of those flash mob performances, and they have exactly the same legal power that an owner of a TCBY does.

[A Guy]

The weird thing is that special counsel’s only get involved by request of the opposition party to level the playing field. If biden just asked Merrick Garland to investigate Trump, or Trump asked Wray to investigate Trump, it would deligitamize the investigations.

Why is this something anyone wants or cares about?

[Brett Bellmore]

Well, thanks for admitting that Rosenstein was a member of the opposition party to Trump.

[tylertusta]

I disagree with Prof. Blackman’s characterization of Mueller’s non-prosecution of Trump. It was not because of DOJ policy (notwithstanding Mueller’s initial and later corrected testimony to Conrgess). Instead, Mueller’s team just decided to not make a decision at all.

Anwyays, I agree that a prosecution coming from the Mueller investigation is going to forever remain a fevered pipe dream of Trump haters. It was a legal improbability back in 2021, but as of July 1st it’s a legal impossibility.

[Magister]

Before the Supreme Court ruled on presidential immunity, the statute of limitations almost certainly prevented any prosecution for obstruction of justice revealed by the Mueller report, which was issued in April of 2019. Nobody was holding their breath waiting for any such prosecution; barring corrupt Supreme Court meddling, the two federal prosecutions of Trump are much more a slam dunk than the multiple obstructions of justice Mueller reported would be.

[tylertusta]

The SOL is tolled if the DOJ finds itself unable to prosecute. Since it is DOJ policy to not prosecute a sitting President, the SOL is arguably tolled while the President is in office. You’d need a court to agree, but there’s no shortage of district court judges who hate one Donald J. Trump.

That means that for acts taken by Trump during his Presidency, the clock started on Jan 20th, 2021. Most of the crimes alleged have a 5 year SOL, which means that the DOJ has until 2026 to charge Trump. This would cover any hypothetical charge of obstruction.

For counts alleging a conspiracy between Trump and the Russians before Trump was sworn in, the SOL would again be paused. Depending on the exact charge and when the acts occurred, a five year SOL would run out in 2025-ish.

No, I think the reason why the Biden DOJ didn’t pick up the Mueller case and run with it was because of the exact immunity problem that just exploded in Smith’s face. As a prosecutor, you are supposed to only bring cases that can be sustained at trial and through all appeals, including at the Supreme Court.

Trump’s firing of Comey is the exact kind of core Article II act that even Jack Smith conceded was protected under the separation of powers. I think even the DC Circuit panel would have been squeamish to allow that to be charged.

[Brett Bellmore]

It was particularly odious for Rosenstein to have used it as the basis for an independent counsel when he’d authored the memo justifying it. If he’d thought it was so questionable as to justify an investigation, he should have said so in the memo.

Certainly the revelations about Comey’s handling of classified information retroactively justified the firing. Actually, underscored that he should have been fired earlier, when Trump took office.

[David Nieporent]

when he’d authored the memo justifying it.

Once again: he did no such thing. Trump decided to fire Comey to stop the investigation; Rosenstein’s memo — which argued that Comey was too mean to Hillary Clinton! — had nothing to do with it.

[Brett Bellmore]

Trump was entitled to have his subordinates stop investigations he told them to stop. They worked for him, not the other way around. Refusing to comply was in fact insubordination entirely justifying firing him. Rosenstein appointing a special counsel to pick up the investigation Comey refused to drop was just second hand insuborination.

It’s true that Rosenstein’s letter didn’t justify the firing on the basis of insubordination. Comey’s firing was over-determined, it was fully justified for multiple causes. Really, Trump’s mistake in the case of Comey and several others was not firing them on taking office.

Seriously, that was one of Trump’s bigger mistakes, which I hope like hell he doesn’t repeat if he wins this fall: Not firing enough people on taking office.

[Sarcastr0]

Brett’s ‘it can’t be abuse of power if you actually have the power’ is an incredible way to justify authoritarianism of all kinds.

[MaddogEngineer]

An abuse of power is a political question, for impeachment. It is not a criminal matter, not when it’s the president making that determination who has this power, since he is the head of the executive branch. This is exactly what the chief justice was targeting, and he’s being proven entirely correct the more people criticize the decision and comment on recent history.

Not everything you don’t like is a crime. Although the Democrats do have a track record of trying to criminalize political disagreements.

[Sarcastr0]

An abuse of power is a political question, for impeachment

It’s also a personal judgement, which you and Brett are abrogating in favor of hiding behind legalities.

‘Trump had within his power to do this thing’ is not a justification that doing said thing is okay. It says a great deal that the right, more and more, conflates could and should when it comes to their authoritarian cult of personality.

[JesusHadBlondeHairBlueEyes]

What rules are you using to bind a President in his use his lawful authority?

Who decided those rules?

[Krayt]

Abuse of power < — > Congress passing laws how other branches must use their powers

[Sarcastr0]

Read Brett’s comment again. He’s not talking about Congress, he’s justifying Trump abusing his powers because it’s not illegal.

This is how authoritarians talk. It is not how people defending freedom talk.

[JesusHadBlondeHairBlueEyes]

Can you generalize this totally legal act that is an abuse of power into some sort of principle? You just assert it is because in your opinion it was.

Is that when a President should be investigated and hamstrung? When some lifer bureaucrat doesn’t approve of his use of legal authority?

[Brett Bellmore]

No, I’m justifying Trump using his powers, because it wasn’t illegal OR abuse. He told his subordinate to drop an investigation he rightly thought was an utter waste of resources, and fired him for refusing to follow a lawful order.

[David Nieporent]

They worked for him, not the other way around.

Contrary to what you — and, apparently, John Roberts — thinks, they worked for the public, not for him. When hired, they took oaths. To the constitution, not to Trump, not to the president generally.

[Brett Bellmore]

They worked for the public through him; He was the one who was elected, not them.

[David Nieporent]

He was elected to faithfully execute the laws enacted by Congress, not to run around like a monarch issuing decrees.

[Bruce Hayden]

Which, of course, firing high level subordinates is a core Presidential power. That said, my memory is that the actual justification for firing Comey was that he had lied to Trump.

Plus, Comey failed to rein in (and tacitly supported) his subordinates (McCabe, Strzok, Page, etc) who intentionally tried to destroy Trump’s campaign and Presidency. I should add that the same group running the anti-Trump attempted coup in the FBI (and probably DOJ) were the ones who instigated the Mueller investigation, transferred their evidence there, to keep it away from AG Barr, etc, and, in the case of Strzok and Page, transferred to Mueller’s investigation.

[David Nieporent]

Weird how if they were trying to destroy Trump’s campaign they were very careful not to say anything publicly about investigating him before the election. (Unlike wrt Hillary, where the FBI kept leaking stuff about her emails.)

[Michael P]

You have it fundamentally backwards. Strzok, Page, and the rest DID leak to the press. The FBI made public announcements in 2016 because the 2016 disclosures were legally proper. Swamp creatures are careful to use cut-outs and background comments when they know they shouldn’t be saying those things in public.

[David Nieporent]

They did not. That the FBI was investigating Trump over his ties to Russia was absolutely not leaked by the FBI before the election. Not by Strzok, Page, or “the rest.” To be sure, Steele did some leaking, against the wishes of the FBI, but that, too, was virtually nonexistent before the election.

[Brett Bellmore]

Peter Strzok, Lisa Page conspired to leak anti-Trump stories to mainstream media

“On April 10, 2017, Mr. Strzok text-messaged Lisa Page, his lover and then-FBI counsel, to discuss a “media leak strategy.”

“I had literally just gone to find this phone to tell you I want to talk to you about media leak strategy with DOJ before you go,” Mr. Strzok said.

Two days later, Mr. Strzok congratulated Ms. Page on two derogatory stories that appeared about Carter Page, a former Trump volunteer whom the FBI was wiretapping.”

[David Nieporent]

Brett: what was the date of the election? What was the date that the Washington Times claimed this happened? Can things that happen in April 2017 affect an election in November 2016?

[Roger S]

Trump had many grounds for firing Comey.

[Brett Bellmore]

Also arguably not, on account of the difference between “unable” and “contrary to policy”. But as you say, there are no shortage of judges who hate Trump.

[Noscitur a sociis]

The SOL is tolled if the DOJ finds itself unable to prosecute. Since it is DOJ policy to not prosecute a sitting President, the SOL is arguably tolled while the President is in office.

Could you flesh out that argument? Perhaps with some pertinent legal authorities?

[tylertusta]

The OLC memo, footnote 33, does a better job than I ever could in describing it:

https://www.justice.gov/file/146241-0/dl?inline

[Noscitur a sociis]

Seems pretty thin. All they have are two Third Circuit cases, one of which suggests that tolling is theoretically available in criminal cases in dicta, the other of which rejects an argument that equitable tolling would apply. If that’s the best authority OLC could dig up, that’s not very impressive. (They also suggest that Congress could provide for tolling by statute, which is true enough, but obviously hasn’t happened.)

[tylertusta]

I don’t disagree. But it’s arguably a consideration.

And I still think that if you bring a case in DC, you have a better-than-even odds of the district court and DC Circuit agreeing that the SoL was tolled.

[Noscitur a sociis]

In May 2017, President Trump fired FBI Director James Comey. That decision triggered Acting Attorney General Rod Rosenstein’s appointment of Robert Mueller as Special Counsel.

We are not off to a very auspicious start. Mueller was appointed to

conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination bet ween the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

https://www.justice.gov/archives/opa/press-release/file/967231/dl

And this is not a very inspiring ending.

But were Chief Justice Roberts’s understanding of Article II to prevail, the President could not be impeached and removed for exercising his core constitutional authorities.

There is absolutely nothing in the court’s opinion suggesting that the criminal immunity should prevent impeachment for the covered acts, and the very suggestion is absurd to anyone with even a modicum of understanding of how the impeachment clause got into the constitution.

[tylertusta]

I believe you meant to reply as a new thread instead as a child of my comment.

[Noscitur a sociis]

Your belief is correct.

[Brett Bellmore]

“Instead, Mueller’s team just decided to not make a decision at all. ”

As Rush famously said, “If you chose not to decide, you still have made a choice.”

[tylertusta]

Absolutely. It was a deliberate choice on Mueller’s part. I think it’s telling that since the best they could do was try to deny Trump a political victory by just not deciding.

…and it ended up not working anyways.

[Brett Bellmore]

Yup, and coming out and saying he hadn’t exonerated Trump, like Trump started out guilty and had to be proven innocent.

[tylertusta]

A hallmark of TDS is the inversion of due process and norms.

[Noscitur a sociis]

I don’t think that’s an accurate characterization of the conclusion, which says:

Because we determined not to make a traditional prosecutorial judgment, we did not drawultimate conclusions about the President’s conduct. The evidence we obtained about thePresident’s actions and intent presents difficult issues that would need to be resolved if we weremaking a traditional prosecutorial judgment. At the same time, if we had confidence after athorough investigation of the facts that the President clearly did not commit obstruction of justice,we would so state. Based on the facts and the applicable legal standards, we are unable to reachthat judgment. Accordingly, while this report does not conclude that the President committed acrime, it also does not exonerate him.

[Brett Bellmore]

And even saying it was contrary to standing DOJ policy. It’s not his job to exonerate anyone; They start out with a presumption of innocence, and it’s his job to rebut that. Lacking the means to rebut it, they retain that presumption.

It’s a damning indictment of Mueller that he wrote those words, which should never come from anybody in such a position.

[Noscitur a sociis]

No, his job was to conduct an investigation and provide the attorney general with a confidential report explaining what he found. The paragraph I quoted is that A summary of his conclusions from that, and provides information that I would certainly hope the attorney general would want to know. The decision to publicly release that information was made by Barr, not Mueller.

(For similar reasons, it was in my judgment entirely appropriate for Hur to include his assessment of Biden in his report.)

[Brett Bellmore]

Specifically using those words, I mean. He was supposed to leave it at not having found any evidence of guilt. He added that line to imply guilt in the absence of any evidence.

[David Nieporent]

Yes, I’m quite sure that Mueller believed that Bill Barr would be swayed by these “implications.”

Of course, you still can’t manage to figure out the “implications” of things like “be wild,” “fight like hell” “be strong.”

[santamonica811]

NaS,
Absolutely right! The people whining and bitching about Trump being raked over the coals here should have been similarly butt-hurt about Biden being skewered by Hur. Otherwise; they’re pathetic hypocrites. (The opposite is also true…those who felt it fair for Trump’s obvious guilt to be put into the report should also have supported Hur’s observation. I supported Hur at the time, because it seems, to me, *obviously* relevant..and therefore, not exclusively a cheap shot.)

[SRG2]

That the immunity ruling undermines the Mueller investigation is an argument against the immunity ruling, not the investigation.

[Joe_dallas]

NO – the alleged activities occurred prior to inauguration.

That being said, the russian collusion was always preposterous.

The mueller team was fully aware the steele dossier originated from the Hillary camp very early in the investigation.

[Joe_dallas]

Slight correction – some the allegations were the “obstruction of Justice” – obstruction of the investigation. However, once it was learned (very well known) by the Mueller team that the basis of the investigation was from the false plant by the Hillary camp, any further investigation was corrupt by the Mueller team.

[MaddogEngineer]

Yes, the charge was obstruction of an investigation the president himself agreed to allow.

Some of the more inventive theories from The Resistance was that possible pardons were promised to guarantee the silence of witnesses that could incriminate Trump. That itself being a form of obstruction that could be charged later (out of office, or even during an impeachment trial). I think the chief’s decision means that such pardon promises will be very difficult to prosecute against any president, because any such conversation within the executive branch would be double privileged: both the president’s motives and his conversation with any such persons. Unlike the hypothetical of prosecuting Bill Clinton for selling Marc Rich a pardon, about which Rich could independently plea deal testify as a private citizen he offered to pay a bribe to receive it, all such interactions with a government employee subordinate would be completely privileged.

Nobody has discussed it anywhere that I’ve seen, but I’m not sure whether any of this privilege/evidentiary threshold applies to a Senate impeachment trial. The Senate can decide these things for itself independently I think.

[Brett Bellmore]

“Yes, the charge was obstruction of an investigation the president himself agreed to allow.”

Because he could see the infinite recursion coming; The charge for not allowing the investigation, the charge for not allowing the charge…

[MaddogEngineer]

I agree the calculus has changed somewhat, but the politics hasn’t. Certainly some of the pressure to (dis)prove any illegality is gone, because it can’t be charged. A future president might still want to authorize such an investigation to give his administration a clean bill of health.

Although I can also see a future Trump just saying FU to it all.

[Brett Bellmore]

” A future president might still want to authorize such an investigation to give his administration a clean bill of health.”

A future administration will have made sure that their staff isn’t full of people who will start investigations of him at the drop of a hat.

[David Nieporent]

The basis of the Russia investigation was not the Steele dossier. Why are you lying?

Also, even if it had been, and even if Hillary had personally written it (in which case it would be odd to call it the Steele dossier), that would not make “any further investigation” “corrupt.”

[MaddogEngineer]

No, that’s not lying. Of course the Steele dossier was one of the foundational elements for such an investigation. Are you going all Clintonian on us, parsing that finely. I don’t think the claim was the ONLY basis. The entire thing was a self-referential whisper campaign, and the Mueller appointment was a vain attempt to prove a negative. A negative which should never have reached the point of credibility. When did you stop beating your wife? Can you prove you did stop?

[Bruce Hayden]

The Mueller investigation was a a legal ploy to keep the original Crossfire Hurricane investigation active, when it was being shut down by the Trump Administration. It was thought up by the same people (McCabe, Strzok, Page, etc), some of whom then transferred to the Mueller investigation, taking their evidence with them. Then, the Mueller investigation prevented the evidence from falling into Trump’s hands by utilizing a LawFare misinterpretation of the § 1001 Obstruction statute that read Intent and Materiality out of the statute, accusing anyone in the Trump Administration trying to acquire their evidence or shut down the investigation of § 1001 Obstruction. This ended with the appointment of AG Barr, who rejected that § 1001 misinterpretation. But by then, the Dems had retaken the House, and the evidence was transferred there.

[David Nieporent]

§ 1001 is not obstruction, so you got that wrong, and that’s the least wrong thing you wrote.

[Stephenson123]

This person gets it.

[David Nieporent]

1. The Steele dossier did not originate from the Hillary camp. The Steele dossier originated from Christopher Steele. It’s right there in the name; even you should be able to figure that out.

2. Everyone on the planet was aware that Democrats had provided funding for Steele’s efforts; that was reported by David Corn in October 2016, even before the Steele dossier was actually published by Buzzfeed in January 2017.

3. Joe_dallas is not smart enough to understand the difference between Russian collusion and the Steele dossier.

[MaddogEngineer]

I’m not sure why you think your answer to #1 matters, given your #2.

The Steele dossier would never have been seen by the public if not for people in the Clinton orbit. You can pretend all you want some of those involved were disinterested, but that does not make it relevant.

The Steele dossier was the single biggest piece of “evidence” providing a political probable cause that Russia collusion should be investigated. As I wrote above, sure there were others, but they were self-referential back to the same bogus sourcing. Of course the public didn’t realize that at the time. Stories were planted with friendly reporters, which cause a public upswell demanding that the rumors be investigated.

The Mueller investigation showed there was no there there, and knew that pretty early on, but continued because they hoped to find something and were also hoping to cause a process crime to prosecute. Same pattern as the Fitzgerald Valerie Plame investigation, which new pretty early on that the leaker was not in the Bush White House, not a “cancer at the heart of the presidency”.

[tylertusta]

Let’s not forget that some of the allegations in the dossier were partly created by people in Clinton’s orbit.

[Brett Bellmore]

“Stories were planted with friendly reporters, which cause a public upswell demanding that the rumors be investigated.”

Literally Fusion GPS’s whole shtick; They’d compile/generate scurrilous stories, then use a long list of paid tame media people to get them reported on.

But the Steele Dossier was such a steaming heap that their usual moles in the media refused to touch it unless some additional hook could be provided to justify the coverage.

So Comey obligingly briefed Trump on the dossier to give them their hook.

[tylertusta]

that was reported by David Corn in October 2016, even before the Steele dossier was actually published by Buzzfeed in January 2017.

This is incorrect. David Corn did not report that the information was funded by Democrats in October of 2016. That connection was only publicly acknowledged in October of 2017 when Perkins Coie’s involvement and connection to the Clinton Campaign and DNC was revealed.

Furthermore, despite their denials, the Clinton Campaign was aware of the dossier and coordinated with their cut-outs in Perkins Coie’s to promote it before the election.

[Stephenson123]

You are just repeating the party, government line.

[tylertusta]

And it just so happens to be the truth.

[David Nieporent]

This is incorrect. David Corn did not report that the information was funded by Democrats in October of 2016. That connection was only publicly acknowledged in October of 2017 when Perkins Coie’s involvement and connection to the Clinton Campaign and DNC was revealed.

No; that’s when we learned that it was funded directly by Hillary’s campaign. In 2016 Corn reported that Fusion GPS was originally funded by a GOP donor, but that it had switched to a Democrat before Steele was hired.

[Brett Bellmore]

Yes, Fusion GPS does business with both major parties, but the Steele dossier specifically was never funded by a GOP source, the Republican donor had been paying for other ‘research’.

And I reiterate, I mean those sneer quotes, Fusion GPS’s business is creating/finding scurrilous rumors and getting them reported on. They’re an anti-PR firm, not a political researcher.

[David Nieporent]

Yes, Fusion GPS does business with both major parties, but the Steele dossier specifically was never funded by a GOP source, the Republican donor had been paying for other ‘research’.

I mean, that’s literally exactly what I just said.

They’re an anti-PR firm, not a political researcher.

No, they’re researchers. That’s why they hired Christopher Steele and not Danielle Steel to do the research and prepare the dossier.

[Brett Bellmore]

I rather think it had more to do with people being generally aware that Danielle Steel writes fiction, while they could obscure that Christopher was writing fiction for them. And that she’d have charged too much.

[Sarcastr0]

You ‘rather think’ followed by speculation about motives. Telepathy doesn’t cut it, and yet you continue to confidently detail how those you support are in good faith and those you do not are in bad faith.

It’s been years, how do you not see the huge dose of subjectivity you inject into your takes on what’s going on?

[David Nieporent]

By the way, that came out about 15% less clever than I wanted it to, when I did my fact checking before posting and learned that Danielle Steel did not — as I had thought — spell her last name with an ‘e’ at the end.

[Joe_dallas]

DN likes to make up his own facts – or repeating discredited talking points

https://nypost.com/2022/03/30/clinton-campaign-dnc-fined-by-fec-for-lying-about-steele-dossier-payments/

[David Nieporent]

Not clear how you think that contradicts anything I wrote.

[Dilan Esper]

More provocative question– is United States v. Nixon, the tapes case, still good law after Trump v. United States?

[JFree]

Ford’s pardon of Nixon is irrelevant and meaningless after Trump v US.

[benji]

I think Nixon might have still faced some problems regarding non-Watergate crimes even if they would have been more difficult to get him on.

[MaddogEngineer]

My initial reaction, which I also shared on the Twitter, was that US v Nixon remains good law, with the chief having said nothing about it.

Upon reflection, and the way you phrased your post, I’m not wondering. May be a bit more complicated. If the president’s interactions among subordinates is truly sacrosanct, and it doesn’t get more official than in the Oval Office, how does one square the 2 opinions?

Perhaps it’s that a prosecutor cannot use anything on those tapes against the president himself, even if incriminating. The out being that the Watergate prosecution was officially not (just) about the president. They could be used to prosecute others, as the Watergate SCOTUS decided. Hadn’t thought through the ripple effect ramifications of naming the president an unindicted co-conspirator

[MaddogEngineer]

*I’m NOW wondering, not “not”

[California Dreamer]

So Nixon could not have been prosecuted for ordering the burglary of the Democratic National Committee at the Watergate hotel. Or for attempting to bribe federal judge Matt Byrne. And the Saturday Night Massacre was all fine and dandy, since Nixon was exercising one of his core constitutional powers. This all demonstrates the remarkably broad scope of Roberts’s view of the scope of Presidential immunity.

[Brett Bellmore]

No, he could have been in both cases, since the President has no core burglary or bribery powers. (Assuming the bribe wasn’t something like a pardon or veto, which are core power exercises themselves.)

You’d have difficulty collecting evidence, though, to the extent that evidence was communications with White House staff.

[Brett Bellmore]

“Hadn’t thought through the ripple effect ramifications of naming the president an unindicted co-conspirator.”

One of the ripple effects was the DOJ officially adopting a policy of not naming unindicted co-conspirators anymore, because it was just too prone to being a form of legally immunized slander.

9-11.130 – Limitation on Naming Persons as Unindicted Co-Conspirators and 9-16.500 – Identifying Uncharged Third-Parties During Plea and Sentencing Proceedings

Got violated quite a bit in Trump’s case, of course.

[jimc5499]

What ever happened to “serve at the pleasure of the President”?

[Brett Bellmore]

It was actually “serve at the pleasure of the President unless he’s named “Trump””; is the problem.

[DaveM]

Thank you for expanding on this point. I hadn’t really thought through all the implications. Having a concrete example helped.

[Mr. Bumble]

By the way, where is Mueller now? Does he even know where he is?

[tylertusta]

The poor man. I hope he’s getting good care.

[Brett Bellmore]

If you believed his testimony, he hardly knew what was going on around him while supposedly leading an investigation. By how? Who knows; Was it just an excuse to avoid answering embarrassing questions, or was he genuinely out of touch with ‘his own’ investigation?

But, yeah, I hope he’s surrounded by people who are concerned about him, rather than just about what they can do with him. He’s not a soldier in our political wars anymore, so let him have a peaceful retirement.

[tylertusta]

I heard some speculation that Mueller was actually disengaged from what his team was doing on the day-to-day. Mueller’s deputy Zebler would have been the one who pushed the team into constitutionally dubious directions such as the never-ending obstruction investigation while telling his boss just what he needed to hear.

I think there may be something to that speculation.

[Brett Bellmore]

It’s possible, I suppose, but still remarkably convenient for him to not remember anything about the conduct of his own investigation.

Myself, I figure that he might not have known all the details, but that the investigation was probably proceeding in general terms the way he wanted it to, abuses and all.

[MaddogEngineer]

Once again, Professor Blackman cannot see the forest for the trees. President Trump agreeing to cooperate with the Mueller investigation waived his immunity from investigating of the executive branch around him, by allowing the relevant staff to be interviewed.

One thing I’m not sure about is what would have happened if that cooperation were revoked. I don’t think any evidence accumulated to date could have been restricted from future usage (subject to statute of limitations).

Obviously a current president can shut down any such investigation. And according to the chief, such an act would not be obstruction. As AG Barr correctly decided as a matter of law (anticipating the chief) with the disagreement about that when the report was released.

Shutting down an investigation could be an impeachable offense, if evidence uncovered along the way was incriminating. I don’t see why, after removal from office, an ex-president couldn’t be prosecuted using some of that evidence gathered when the privilege was waived.

[Joe_dallas]

The problem was continuing the Mueller investigation after it became known the steele dossier originated from the Hillary camp, thus knowing their investigation was based on fabricated evidence. The discovery of the source of the steele dossier occurred very early in the investigation. Continuing the investigation was corrupt. Stopping a corrupt investigation was (would have been) the correct step.

[David Nieporent]

You should stick to making up shit about epidemiology.

[MaddogEngineer]

It isn’t just hindsight that allows Joe to say that. He’s correct that early on, it became evident there was no real evidence to support the accusation. At least not the top line accusation the Trump himself was colluding and coordinating. Despite the breathless “walls are closing in” stuff on hostile cable news, which the likes of Adam Schiff fanned with his coy “intelligence” tidbits, which were bogus as well. Nobody seriously disputed that Russians were trying to cause havoc. Everybody was fixated on the idea the Trump is deeply involved. Even though no one could quite articulate how that would “steal” an election, even if true. But they liked to talk as if it did steal it, and that Hillary was cheated.

But because most of the people involved were hostile to Trump, they were happy to play it out as long as possible. Leaving the impression that there might still be something there, if only Trump were not “obstructing” them from finding it. Or perhaps inducing a process crime along the way. (Something no one in Hillary’s circle ever faced or feared with the investigation of her email server.)

[MaddogEngineer]

It’s too bad Mitch McConnell prevented the president of the United States from deploying the United States government to stop this Russian interference in the latter half of 2016. /sarcasm

[Dan Schiavetta]

What McConnell did (which he didn’t deny) was put the interests of the Republican Party above the security of the nation.

[Brett Bellmore]

You’re too kind to him. He puts the interests of the Mitch McConnell ahead of everything. Those interests are just more likely to align with those of the Republican party than the Democratic, at times.

[Joe_dallas]

DN – you keep ignoring facts
It was well known by the Mueller team that the hillary camp funded the Steele dossier via perkins coie, etc

[David Nieporent]

I do not “keep ignoring that.” I say it was well known — and also 100% irrelevant to anything. Knowing that Hillary paid for the dossier just has no bearing on whether it was correct or not, let alone whether it should be investigated to see if it was. And, again, you ignorantly think that Russian collusion = the dossier, such that discrediting the latter (which was never done) disproved the former.

[Roger S]

Mueller was investigating events before the 2016, but did not conclude until April 2019. Yes, it was prolonged for partisan political reasons.

[Bruce Hayden]

By then, it had turned into a § 1001 misinterpretation perjury trap investigation. This continued for maybe a year, until Bill Barr became AG, and asked the central question: WTF were they doing, after having determined that there was no Trump/Russian collusion? Of course, they knew it from the git go, since the Mueller investigation had all of the Crossfire Hurricane evidence, and knowledge that it was started based on an FBI attempt to prevent Trump from becoming President. They were the ones who knew, well before the election, that the Steele Dossier was basic disinformation, much of it made up over drinks in a Georgetown bar, but used it all the way through the first half of 2017 to justify the 4 FISA warrants on Carter Page.

[M L]

“There’s no big there there” – Peter Strzok to Lisa Page, May 2017

[A Guy]

Where is the part where Steele fabricated evidence for Clinton? Even fox news acknowledged that nothing appeared fabricated, that much of it was confirmed and some of it was unconfirmed.

I just want to make sure I know the facts.

[Brett Bellmore]

Oh, come on, that’s SOP when you’re fabricating a smear: Mix innocent stuff that can be verified with incriminating stuff that can’t, in the hope that when you tell people that Bob took the 2:30 flight to Prague to spend the weekend with his mistress, they’ll find that, yes, he did take the 2:30 flight, and ignore that you invented the part about the mistress.

Who cares if they didn’t fabricate the innocent details? They fabricated the bad sounding stuff.

[tomogorman]

This seems either obviously wrong, trivially correct (and in need of supplement), or proof of the absolute tyranny this opinion creates but its defenders attempt to pretend does not.
Certainly grant that per the Robert’s opinion Trump’s actions in the first impeachment would be immune from prosecution.
However, for the first category, the idea that they would be then immune from impeachment seems obviously wrong. One of the central justifications for the idea that criminal prosecution is unnecessary is that there are other checks including impeachment. And impeachment, being a political process, would not be bound by the restrictions of immunity. Indeed, the present case is an obvious point. The decision of whether or not to prosecute is within the zone of absolute immunity, but are you seriously maintaining that if a President nakedly tells an AG to bring knowingly false charges against his political enemies that not only is he immune from criminal prosecution but he cannot even be impeached. (Yes, this will obviously require judgment calls because of mixed motives – this is why impeachment is a political question – but the Clark scheme was not a close call – there was no reason to place Clark as Acting AG for the final few weeks other than the fraudulent election claims and Trump’s election claims were so plainly unsupported as to be fraud). So, surely you are not saying that immune conduct is also not impeachable?
Possibly, you are making a narrower point – that DOJ should not be investigating this because it will inevitably involve a quasi political question rather than criminal prosecution. Maybe, but I note that all of these attacks against special counsels are not combined with any attempt to boost Congress’ investigatory powers (for which at the moment it is woefully under resourced if it cannot rely on DOJ for any help).
Finally, if it is really your position that a President is both immune from criminal prosecution and from impeachment for any actions in his core powers then yes you have a four year elected King. He can openly prosecute political enemies without even a fig leaf of rationale, sell pardons on the open market, etc. The only check is election – but under our system that means four years of full power (maybe Congress could intervene under the spending clause but only at the cost of basically bankrupting or micromanaging executive agencies). That is absurd.

[MaddogEngineer]

You just brought up what I said above I haven’t seen mentioned elsewhere: the privilege/evidentiary threshold for a article of impeachment or a Senate trial. I think the Senate can decide (subject to common law ideas of due process) whatever it wants as far as the admissibility of evidence. It may just mean that some offenses for which the Senate can convict/remove a president from office are not able to be criminally prosecuted later. Before we get too bothered by all this, not every possible offense would be protected as an official act. Failure to enforce the law or ordering things done contrary to the law is not an official act and certainly impeachable, AKA not official acts. Such malfeasance are the very reason impeachment exists. Being impeached/removed from office for that may never align with any criminal statute for future prosecution.

[David Nieporent]

ordering things done contrary to the law is not an official act

That can’t be right. It would mean that the president is never immune for lawbreaking, when in fact SCOTUS just ruled that the president is immune for lawbreaking. Whether it’s an “official act” is a separate question from whether it’s legal or not.

But, yes, Josh’s argument that it’s not impeachable is batshit. Impeachment — to borrow language from the Supreme Court’s decision — is a “core” Congressional power. SCOTUS has no authority to limit it in any way. (Indeed, SCOTUS itself said that in [Walter] Nixon v. U.S.)

[Brett Bellmore]

” when in fact SCOTUS just ruled that the president is immune for lawbreaking.”

Not exactly, no. What they ruled, essentially, is that exercise of a core Presidential power can’t BE lawbreaking. To the extent that Congress enacted a law presuming to criminalize such exercise, it would be unconstitutional.

Say that Congress presumed to create an official process for issuance of pardons, for instance, with criminal penalties for departing from it. Because pardons are a core Presidential power, that law would be unconstitutional, so the President not following it wouldn’t BE “lawbreaking”.

[MaddogEngineer]

One of the reasons why the Hatch Act doesn’t apply to the president and vice president. Really difficult for them to stop being the person in office. As the chief’s opinion correctly identified.

I could make the case that Biden’s last State of the Union was one big Hatch Act violation, egregiously so, because he mentioned his rival for office. Ditto the Dark Brandon Independence Hall speech, using government resources and settings for a political attack on his opponents. Impossible to litigate, it’s a matter of political norms which have been falling left and right ever since somebody abused an intern in the Oval Office.

[Brett Bellmore]

Since somebody broke the better part of two century’s tradition and rand for a third then fourth term in office, you mean?

[Joe_dallas]

David Nieporent 1 day ago
Flag Comment
Mute User
“That can’t be right. It would mean that the president is never immune for lawbreaking, when in fact SCOTUS just ruled that the president is immune for lawbreaking. ”

That description is worse than both sotomayor and Jackson dissent No – The SC did not rule that president is immune from lawbreaking.

[JoeFromtheBronx]

“Mostly law professors | Sometimes contrarian | Often libertarian”

One generally regular blogger is a libertarian on this issue. He gets repeated pushback from the non-libertarian comment class.

Another (Baude) who sometimes blogs here was too. Others are mostly MIA. One is gung ho full authoritarian.

I continue to be a defender of Robert Meuller, a lifetime Republican & appointee of multiple Republican presidents after being a Vietnam vet. Many liberals snidely reference his investigation and actions. I find them mistaken.

This blog post underlines what is wrong with even a “mild” form of the Trump immunity case. POTUS should not be above the law. Even “core powers” can be used in illicit ways. JB doesn’t even want these things used in impeachment. Them being wrong at all is dubious with his rhetoric.

Don’t be gaslit by those who assure us there are means of accountability. They want a POTUS (well their POTUS) above the law. That’s not libertarian & it isn’t even the breed of conservative people of that leaning should accept.

[Stephenson123]

Well said

[MaddogEngineer]

You should read Chief Justice Roberts opinion then. You’ll find that no president is actually above the law.

Last time I checked, impeachment is still in the Constitution. It’s silly to suggest the only thing that has been stopping presidents from behaving badly is a threat of prosecution after leaving office.

If you’re concerned that impeachment has become impotent, I’d suggest you check with all the senators who knew perfectly well that Bill Clinton had perjured himself, but decided it “didn’t matter”. When doesn’t matter becomes the standard, the sky’s the limit! No way my side is going to do the right thing when the other guys got away with that. That’s a sucker’s game!

I think you’re the one gaslighting us about your profile. For myself, I’ve never voted for Trump and never will, because he’s terrible as his last 4 years have shown. Still not any reason to prosecute him for things that are not crimes.

[SRG2]

You’ll find that no president is actually above the law.

…except when engaging in core official acts.

[Krayt]

More accurately, Congress cannot use one of its core powers, lawmaking, to direct the other two branches on how to use their core powers, except as spelled out by the Constitution.

So Congress is not above the law, either. The higher law of the Constitution.

[JoeFromtheBronx]

And, not just those, especially given the practical effect of the opinion as a whole.

[David Nieporent]

…except when engaging in core official acts.

…or when engaging in non-core official acts unless some amorphous non-test is satisfied.

[Michael Ejercito]

Lower copurts have yet to craft this test.

[JoeFromtheBronx]

It’s silly to suggest the only thing that has been stopping presidents from behaving badly is a threat of prosecution after leaving office.

Keep straw away from open flames.

Bill Clinton

Repeat. They didn’t say it “didn’t matter.” Didn’t even say all kinds of perjury not justifiably impeached.

Not that it is the main point of my entry but impeachment is of limited value. It is in practice a way to remove a small subset of judges who are no longer serving in good behavior. And, usually, after they were prosecuted first.

your profile

He committed crimes. Among them are those in federal and state indictments.

[Noscitur a sociis]

Last time I checked, impeachment is still in the Constitution.

Better notify Prof. Blackman!

[Stephenson123]

Long time followed and supporter of Reason. The author appears to have misunderstood this. This gives the president more power while he wants the president to have less power. Don’t fall for it.

[ReaderY]

I think the biggest problem with the Appointments Clause argument is that it is the Grand Jury that indicts, not the prosecuting attorney. And under the original intent of the Constitution, a Grand Jury, like an Electoral College, was intended to exercise independent judgment as a buffer, in an unusual situation at least, to stay the effect of executive overreach on the public, just as an Electoral College was intended to provide a similar buffeting effect, in a pinch, with respect to the effect of the public on the Executive.

But if the Court can, with a mere stroke of a pen and some nice-sounding rhetoric, turn the Electoral Collece from an independent emergency fail-safe into a mere ministerial arm of its state overseers empowered to do nothing more than play a scripted part in a ceremonial ritual, I don’t see why it can’t, with equal ease and equal legitimacy, do the same to a Grand Jury.

[MaddogEngineer]

A grand jury can obviously indict. The problem is the non-officer asking them to do that. Grand juries don’t just assemble themselves. The grand jury doesn’t prosecute the indictment it renders.

[ReaderY]

Well, Congress doesn’t just pass laws. It has a staff including staff lawyers. Sometimes the elected folks sign papers without reading them. Yet the law holds the members of Congress, not the staff lawyers, responsible.

So far as original intent is concerned the lawyer advising the Grand Jury is just the Grand Jury’s staff lawyer, advising them rather than telling them what to do. The indictment is the Grand Jury’s, not the staff lawyer’s, responsibility.

The concept still exists. Some states still have regular working investigative grand juries that do their own investigating. And in other states grand juries have occassionally used residual power to up and do things on their own.

[Voize]

Yet the law holds the members of Congress, not the staff lawyers, responsible.

We can hope the voters do, but as far as the law is concerned the Speech and Debate Clause absolves members of Congress from any responsibility for their work.

[Stephen Lathrop]

ReaderY — To answer many confusions, commenters here should read the, Handbook for Federal Grand Jurors. It explains at length why a federal grand jury is not beholding to any branch of government, including the Supreme Court.

Probably, the pickle the Roberts Court has got the nation into will take a series of grand juries to get the nation out. That is, if America has a republic, and still wants to keep it.

At the time of the founding, grand jury power was used to facilitate the creation of American independence from Britain, as the Handbook explains. Compared to that accomplishment, power to correct the errors of the corrupt Roberts/MAGA Court should be an easier lift. But to make it work will require renewal of citizens’ commitment to joint popular sovereignty which has lately been in short supply.

The corrupt MAGA Court structured its decision to preclude checks and balances, with an eye to announce and protect Court supremacy. The Court’s aim and ambition has been to take advantage of that historically more-recent tendency to ignore joint popular sovereignty as the apex of power in American constitutionalism. The Court’s notion has been that with the joint popular sovereign out of the picture, the Court commands the apex of power by default; because the Court is allegedly final. A Court guaranteed the power to speak last, rules over everyone who comes before. Those others only propose, while the Court disposes.

A flaw in that way of thinking is that capacity for continuous activity by the joint popular sovereign is not quite yet out of the picture. The grand jury is a remnant of American popular sovereignty; it still possesses remnant agency of its own. That agency founded in sovereign power is in constitutional principle superior even to that of the Court.

What the grand jury has, as a practical matter, is power to commence investigations and prosecutions. That is a power actually constitutionally denied even to the executive branch, which in common understanding ostensibly wields that power, but in constitutional principle does not. Instead, the power to commence rests with the grand jury, while the power to proceed requires executive branch assent. As the Handbook explains, that makes the government and the grand jury into checks upon each other. But make it a point to notice, the Judicial branch has no part in any of that.

The question how to leverage that remnant grand jury power to commence, and thus to help the executive branch fix the mess the Roberts Court has made, now looms imposingly. I hope to encourage commenters here to think constructively about how that might be accomplished.

[Squirrelloid]

It feels like SCOTUS said ‘Nixon was right’. “When the president does it, it’s not illegal.”

[Roger S]

That’s right. Sometimes it is legal for the President to do things that others cannot do.

[LGDaub]

“Fourth, the Court is quite emphatic that it is not proper to probe the President’s subjective motivations”

But it’s OK for Roberts to deem Trump adding a citizenship question back onto the Census form a ‘mere pretext,’ and thus not somehow allowed. Pretext for what was never clearly spelled out. But it sounded then like the result of a judicial probe of Trump’s motivations.

[David Nieporent]

But it’s OK for Roberts to deem Trump adding a citizenship question back onto the Census form a ‘mere pretext,’ and thus not somehow allowed. Pretext for what was never clearly spelled out. But it sounded then like the result of a judicial probe of Trump’s motivations.

You are mistaken. The case was Department of Commerce v. New York, not Trump v. New York. In fact, Trump’s name does not appear anywhere in the opinion, not even once. The court was evaluating Wilbur Ross’s actions, not Donald Trump’s.

[Stephen Lathrop]

Nieporent — The wise and admirable power of legal formalism to guide the nation’s affairs through common difficulties cannot be disregarded. It should not be disparaged.

But in exceptional cases—the corrupt Roberts/MAGA Court has just delivered the mother of all exceptional cases—formalism may have to be relaxed, to avoid hindrance of America’s People, as they exercise joint popular sovereignty to restore American order and institutions according to their pleasure, instead of according to the corrupt Court’s dictates. To do that is no less in keeping with America’s constitutional tradition than is the kind of punctilious reliance on law you cite above.

Note that a corrupt counter-idea in similar vein has already been announced by the leader of the Heritage Foundation, who proclaimed a second American revolution, no less. He offered reassurance that it would be a bloodless revolution, if those targeted prove docile enough to permit that mercy.

There can be no doubt that challenge to existing sovereignty was laid down on behalf of the MAGA movement. It means to seize government power to carry that challenge to completion, and to use that government power to overturn the two-plus century reign of joint popular sovereignty by America’s People.

A special danger attends the fact that the American People are divided, and the MAGA movement contains many who suppose that division empowers them to impose government at pleasure. They take little note of customary power constraints under this nation’s traditional sovereignty. The MAGAs suppose if only they can mobilize power sufficient to do it, they will rule at pleasure themselves. Thus their paradoxical intention and attempt to achieve sovereignty by turning government power against the existing sovereign. Done without notice that existing sovereign doctrine was always meant to constrain government power, first and foremost.

If your commitment to punctilious legalism has power to defeat such illegitimate challenges, please get busy and make it happen. If not, then instead please consider how to channel constructively a renewed joint popular sovereign response, with power proportioned to the scale of the danger, equipped with means sufficient to win the contest, and restrained enough not to do as much or more damage as the current challengers threaten to do.