When former U.S. President Richard Nixon sat down for an interview with British journalist David Frost in 1977, Nixon asserted a broad interpretation of executive authority:
Nixon: Well, when the president does it, that means it is not illegal.
Frost: By definition.
Nixon: Exactly, exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.
You should note the context: If the president orders someone in the federal government to do something for a national security or domestic security reason, those individuals carrying out the president’s order “are not violating the law.”
Donald Trump and his shyster lawyers have taken Nixon’s assertion “[W]hen the president does it, that means it is not illegal,” and extended this to a blanket assertion of presidential immunity from (1) being subpoenaed in a criminal investigation, and (2) being indicted for criminal activity while president. It is a novel theory that the president is above the law, and a bold rejection of the bedrock foundational American principles that we are a nation of laws and that no man is above the law.
The New York Times reports, Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena:
In a brash assertion of presidential power, [President Trump’s lawyers in a] 20-page letter — sent to the special counsel, Robert S. Mueller III, and obtained by The New York Times — contends that the president cannot illegally obstruct any aspect of the investigation into Russia’s election meddling because the Constitution empowers him to, “if he wished, terminate the inquiry, or even exercise his power to pardon.”
[Read the Trump lawyers’ confidential memo to Mr. Mueller here.]
Hand-delivered to the special counsel’s office in January and written by two of the president’s lawyers at the time, John M. Dowd and Jay A. Sekulow, the letter offers a rare glimpse into one side of the high-stakes negotiations over a presidential interview.
The Times article comments, “Mr. Trump’s broad interpretation of executive authority is novel and is likely to be tested if a court battle ensues over whether he could be ordered to answer questions. It is unclear how that fight, should the case reach that point, would play out.
It is not so unclear as the reporters would lead you to believe. While the Supreme Court has never directly addressed the question of “the intersection between the obstruction statutes and the president exercising his constitutional power to supervise an investigation in the Justice Department,” because no president has ever asserted this novel theory, we do know where the Supreme Court stands on subpoenas to the president and, at least in dicta, where it stands on the indictment of the president for criminal behavior while in office.
The Washington Post earlier this year summarized, Eighteen Supreme Court justices vs. Rudy Giuliani:
Eight justices ruled in United States v. Nixon that Richard Nixon had to turn over the Oval Office tapes during the Watergate scandal. (“Neither the doctrine of separation of powers,” wrote the court, “nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”) None of those justices were still on the Supreme Court in 1997 when the court ruled 9-0 in Clinton v. Jones that President Bill Clinton could not avoid Paula Jones’s civil suit (nor the deposition it entailed) while in office. Independent counsel Kenneth W. Starr later issued a subpoena for Clinton to testify; Clinton thereupon submitted to an interview. Four of the justices who held for Jones — Justices Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer — remain on the court today. Recall also that Chief Justice John Marshall held that President Thomas Jefferson would have to submit to a subpoena duces tecum to appear in the Aaron Burr trial.
In other words, 18 justices, four of whom remain on the court, have ruled in one form or another that presidents are not above the law or immune to ordinary legal processes. No president has prevailed in the argument that he and documents in his control are exempt from a subpoena.
As for the remaining five justices on the court, we find it impossible to believe all would rule in Trump’s favor if he tried to evade a subpoena to testify. To the contrary, Chief Justice John G. Roberts Jr. (a court institutionalist) and Justices Sonia Sotomayor and Elena Kagan almost certainly would rule against Trump. Especially in light of Trump’s constant assaults on the legitimacy of the courts, justices would be exceptionally mindful of their role in checking the executive branch and preserving the rule of law.
Given that four of the current justices held that Clinton could be compelled to testify in a civil suit (of much less consequence than a criminal case), it defies logic to think those four justices would shield Trump from a subpoena in a far-reaching criminal case.
So Donald Trump and his lawyers have only two options: voluntarily consent to an interview with the Special Counsel’s office, or the Special Counsel can, and will, subpoena the president to testify before the grand jury.
Trump’s lawyers are asserting this novel theory for one purpose only: to delay the legal process as long as possible, and to allow our demagogue-in-chief to use the legal challenge as a cudgel in the midterm elections to rally his base of sycophant supporters. In the end, Trump will be required to testify, but this strategy is more about the short-term politics of the midterm election.
Much has been written about two Department of Justice memorandums, one from the Nixon presidency and one from the Clinton presidency, which suggest that a sitting president cannot be criminally indicted by the Department of Justice. This is misleading and inaccurate. The New York Times reported Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes:
A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?
The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”
Mr. Starr assigned Ronald Rotunda, a prominent conservative professor of constitutional law and ethics whom Mr. Starr hired as a consultant on his legal team, to write the memo in spring 1998 after deputies advised him that they had gathered enough evidence to ask a grand jury to indict Mr. Clinton, the memo shows.
Other prosecutors working for Mr. Starr developed a draft indictment of Mr. Clinton, which The Times has also requested be made public.
In 1974, the Watergate special counsel, Leon Jaworski, had also received a memo from his staff saying he could indict the president, in that instance Richard M. Nixon, while he was in office, and later made that case in a court brief. Those documents, however, explore the topic significantly less extensively than the Starr office memo.
In the end, both Mr. Jaworski and Mr. Starr let congressional impeachment proceedings play out and did not try to indict the presidents while they remained in office.
Neal Katyal, a former acting soliciting general in the Obama administration who authored the Department of Justice guidelines for the Office of Special Counsel recently wrote at The New York Times (excerpt):
Mr. Giuliani appears to be making an argument not just about timing — that a sitting president cannot be indicted while in office — but also about the president’s being immune from the criminal process altogether. That is the basis for his claim that the president can refuse a subpoena, which harks back to the notorious statement of Richard Nixon that “when the president does it, that means that it is not illegal.”
Leave aside for the moment the pesky detail that such claims are fundamentally inconsistent with the Constitution and the idea that no person is above the law.
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The mishmash of bad constitutional arguments being floated by Mr. Trump has to cause Mr. Mueller concern. And that is why Mr. Giuliani’s story that Mr. Mueller’s team told him that Mr. Trump cannot be indicted seems at best incomplete. It is true that the special counsel regulations (which I drafted in 1999 for the Justice Department) generally require the special counsel to obey Justice Department policy. And it is also true that Justice Department policy is that a sitting president cannot be indicted. But the regulations contemplate that a special counsel could, in appropriate circumstances, depart from Justice Department policy.
The regulations had to be written that way. Those of us who created them could not foresee all the possible permutations of law and facts that would unfold in the years to come. If congressional leadership, for example, was in criminal cahoots with the president, no one would want the special counsel to be powerless to indict or to report information to the full Congress for impeachment.
I would argue that this is precisely the circumstances which exist today, as demonstrated by the actions Rep. Devin Nunes and other Republican members of Congress who are actively engaged as accessories to a conspiracy to obstruct justice, and a feckless GOP leadership who have abdicated their constitutional obligation to hold this president accountable for his actions.
Accordingly, the regulations permitted the special counsel to seek a departure from Justice Department policy, by going to the acting attorney general (in this case, Rod Rosenstein) and requesting it. The idea was that if responsibility for decision-making was vested in Justice Department leadership, decisions to protect the rule of law were more likely to be made. And as a safeguard against wrongdoing by Justice Department leadership, the regulations require transparency in the process: If the acting attorney general refuses a special counsel request, he must notify the majority and minority parties in Congress.
In this way, the regulations put a thumb on the scale in favor of having Mr. Mueller seek an indictment if he finds evidence of criminal wrongdoing by Mr. Trump. Unlike the Independent Counsel Act, a predecessor to the special counsel regulations that required the prosecutor to write a detailed final report to Congress, the regulations require only a substantive report when the acting attorney general overrules the special counsel. The acting attorney general is free to write one otherwise, but the only way Mr. Mueller can ensure such a report is written is to make a request that is overruled.
All of this explains why Mr. Giuliani’s story that Mr. Mueller has concluded he cannot indict a sitting president seems implausible and incomplete. It is far more likely that Mr. Mueller has concluded that Justice Department policy currently forbids such a step, but that he has a path forward toward seeking indictment if he believes it warranted. And Mr. Trump, whose Justice Department has, with his blessing, repeatedly overruled longstanding Justice Department positions at an unheard-of rate, is in no position to complain if Mr. Rosenstein overrules these two old opinions. Of course, if Mr. Rosenstein refuses to overrule them, he would still be creating a record that Congress may use as it considers impeachment.
There is also a Supreme Court opinion that the two earlier Department of Justice memos appear to have overlooked, perhaps because the department considered the Court’s discussion in a civil case dicta. Nevertheless, a majority of the Supreme Court agreed that a sitting president could be criminally indicted for his actions in office.
Ryan Goodman analyzes at Just Security, When Five Supreme Court Justices Said a President Can Be Indicted (excerpt):
In Nixon v. Fitzgerald (1982), the Supreme Court held that a President cannot be sued for civil damages involving actions taken within his official duties. The case required the Justices to explore the scope of presidential immunity from judicial procedures. The key question is what the Justices said about whether a President is immune from criminal prosecution. Of course for Trump, any actions preceding the presidential election would not be official acts within the scope of his duties, and he’d have a difficult time claiming that a President committing a crime while in office (e.g., perjury) is within the scope of official duties.
How does one get to five Justices?
1. Four Justices in dissent:
Justice Byron White, in writing a dissenting opinion joined by three other Justices (Brennan, Marshall, and Blackmun), stated that a president is not immune from criminal prosecution:
“But there is no contention that the President is immune from criminal prosecution in the courts under the criminal laws enacted by Congress, or by the States, for that matter. Nor would such a claim be credible. The Constitution itself provides that impeachment shall not bar ‘Indictment, Trial, Judgment and Punishment, according to Law.’ Art. I, § 3, cl. 7.”
2. Chief Justice Warren Burger in a concurring opinion:
Here’s the most important point. Chief Justice Burger (a fifth vote for the majority), in his opinion concurring with the majority, appeared to agree with the dissent. He wrote:
“The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides — all having absolute immunity — are not immune for acts outside official duties. Ante at 457 U. S. 753-755. Even the broad immunity of the Speech and Debate Clause has its limits.[fn3]”
[fn3] “In United States v. Brewster, 408 U. S. 501 (1972), we held that the Speech and Debate Clause does not prohibit prosecution of a Senator for accepting a bribe designed to influence his legislative acts.”
Fitzgerald was obviously a case about (1) civil liability for (2) official acts, and thus Chief Justice Burger could be limited to saying only that a president is not immune from civil suits for acts that are outside of his official duties. That narrow reading is a stretch, if not unworkable, interpretation of what he said. Chief Justice Burger was obviously also making a distinction between civil suits and criminal prosecutions. His reference to the availability of criminal prosecution for taking a bribe indicates that point strongly.
3. The majority opinion
For what it’s worth, the Chief Justice’s concurrence may also aid the interpretation of the majority opinion. And the majority opinion, read in such light, is arguably consistent with the dissent’s view on the availability of prosecution for offences committed by a president in his personal capacity. Note Justice Burger’s citation to pages 753-55 of the majority opinion. Here’s what the majority said there:
“When judicial action is needed to serve broad public interests — as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon— the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President’s official acts, we hold it is not.”[fn37]
[fn37] “The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions….”
In other words, the majority too made space for criminal prosecutions as different from civil suit for damages against the president for acts within his official duties.
4. Is all of this just dicta?
Yes, maybe. If Justice Burger is properly read to be saying that a sitting president is not immune from criminal prosecution, that is presumably dicta since the case was about civil liability. That said, one might argue that Justice Burger’s (and the majority’s) view of immunity from civil suits for official acts, is predicated on the idea that the public interest could be vindicated and accountability mechanisms exist through the criminal law. The thrust of their analysis is that such measures address the concern that the holding in the case leaves the public vulnerable to abuse by a sitting president.
President Trump has eschewed the established system for issuing presidential pardons, and is personally “issuing pardons to prominent public figures whose cases resonated with him given his own grievances with investigators at the Department of Justice.” Critics rightly contend that he is signaling his associates — like one of his personal lawyers, Michael D. Cohen, who is under investigation for possibly violating federal campaign finance laws — to stay strong and not help prosecutors. Trump Wields Pardon Pen to Confront Justice System.
Dangling pardons to potential targets for prosecution in the Russia investigation is itself obstruction of justice, and is impeachable. Richard Nixon also contemplated doing this, but his chief of staff H.R. Haldeman talked him out of it because it was so obviously obstruction of justice. Nixon: Still the One (1997):
As the final Watergate tapes released by the National Archives reveal, Nixon wanted to give three of his allies — H.R. (Bob) Haldeman, John Ehrlichman and John Mitchell, who had all resigned by then — the greatest gift a President can bestow: a blanket pardon. According to Samuel Dash, chief counsel of the Senate Watergate Committee, this exchange, if known to the committee at the time, would have justified a separate article of impeachment all by itself. ”Even Haldeman,” he says, ”was trying to shut him up.”
Nixon: What I mean to say is this — talking in the confidence of this room … I don’t give a $(expletive$) what comes out on you or John $(Ehrlichman$) — even that poor damn dumb John Mitchell. There is gonna be a total pardon.
Haldeman: Don’t — don’t — don’t even say that.
Nixon: You know it. You know it and I know it.
Haldeman: Nope. Don’t say it.
Nixon: Forget you ever heard it.
Haldeman: No, I — I —
Nixon: It has to be done, Bob, because it’s wrong — wrong for you guys — well, not Mitchell. … You and John (Ehrlichman) cannot be condemned for something you didn’t do. (Expletive), it was up to Dean.
Haldeman: I don’t think we will be condemned.
Nixon: You don’t? Really?
Haldeman: No, sir.
Nixon: Why not?
Haldeman: Because we didn’t do it. I don’t —
Nixon: Ha ha ha.
Alex Whiting explains at Just Security, Why Dangling a Pardon Could Be an Obstruction of Justice—Even if the Pardon Power is Absolute (excerpt):
The pardon dangle works completely differently — and in important respects has the opposite effects [of an actual pardon]. First, this kind of dangle is not a public act. Therefore, as long as it remained secret, it could be done without incurring any of the political downstream consequences that come with actually pardoning someone. It hides the President from scrutiny rather than exposes him to it as a potential check on the use of the power. Second, the objective of the dangle appears to have been to foreclose the prospect of Flynn and Manafort [and Cohen’s] cooperating or testifying. Once again, this is the opposite effect of an actual exercise of the pardon. The message of the dangle was sufficiently clear: hang in there and keep fighting (do not cut a deal with the special counsel) because you will be pardoned before you spend a day in jail. The President and his lawyer’s hope would have been that with the threat of jail eliminated, neither former aid would feel compelled to plead guilty and cooperate with Mueller to reduce his sentence. But, since they were not actually pardoned or not yet anyway, they still kept their Fifth Amendment privileges, and so Mueller could not simply demand they testify before the Grand Jury. In this way, the dangle could operate to stop any cooperation from Flynn and Manafort [and Cohen], who could then be pardoned later if and when they were indicted or even after their cases went through pretrial, trial and appeal. Indeed, you also have to put yourself back at the time these events all took place: before Manafort was indicted and Flynn pleaded guilty. That’s when the dangle could work its magic.
Because a pardon dangle is secret and seeks to discourage cooperation with an ongoing investigation without public scrutiny or consequences, it should be analyzed differently than a pardon when it comes to an obstruction case. Because of the way a pardon dangle operates, it should acquire none of the deference that might be afforded an actual pardon, and if the dangle is found to be orchestrated with a corrupt motive, it should qualify as a potential act of obstruction of justice.
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The fact that John Dowd [one of the author’s of the memo] made the offer—as Trump’s personal lawyer—means presumptively this was also no official act. As Marty Lederman has noted, Dowd himself may be prosecutable for involvement in what amounts to criminal activity here. At bottom, a key to understanding this issue is not to be distracted by debates about the scope or absolute nature of the pardon power. The dangling pardon is a different creature, necessitating a very different analytic inquiry.
The Trump lawyers’ memo is untenable and is unsupported at law. They are asserting a novel theory that the courts should reject out of hand.
UPDATE: On ABC’s “This Week” on Sunday, host George Stephanopoulos asked President Trump’s chief attorney, Rudy Giuliani, about the defense memo:
Stephanopoulos: Do you and the president’s attorneys believe the president has the power to pardon himself?
Giuliani: He — he’s not but he probably does. He has no intention of pardoning himself but he probably — not to say he can’t. I mean, that — that’s another really interesting constitutional argument, can the president pardon himself.
Stephanopoulos: Do you think it’s an open question?
Giuliani: It would be an open question. I think it would probably get answered by gosh, that’s what the constitution says and if you want to change it, change it. But yes.
WRONG, this is not an open question. “The question of whether a U.S. president can pardon himself has long been settled. In 1974, shortly before President Richard Nixon resigned in disgrace over the Watergate scandal, the U.S. Justice Department in a legal memo argued that a fundamental rule of justice is that ‘no one may be a judge in his own case.’ Furthermore, the U.S. Constitution’s pardon provision is clear that the president can act as a judge about someone else’s conduct, and disallows a president from pardoning himself to dodge impeachment or removal.” Giuliani steps in it, again.