SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

As the Special Counsel’s investigation picks up steam, with the indictments of Paul Manafort and Rick Gates already filed and the guilty pleas with now cooperating witnesses Michael Flynn and George Papadopoulis publicly disclosed, Mueller’s team has amassed a wealth of information regarding President’s heavy-handed attempts to obstruct justice.

The avalanche of damning evidence of Trump’s obstruction of justice started with the firing of FBI Director James Comey on May 9, 2017 after direct attempts by Trump failed to extract from Comey a pledge of loyalty and a commitment to drop the FBI’s investigation of his former National Security Advisor Michael Flynn. There is also evidence that Trump pressured Director of National Intelligence Dan Coats to urge Comey to end his investigation into Flynn and his Russian connections, which was eerily reminiscent of former President Nixon’s attempt to use the CIA to derail the FBI investigation into Watergate and which ended up being included as part of the Articles of Impeachment against Nixon.

Despite the White House’s initial disinformation campaign to persuade the public that Comey was fired for other legitimate concerns, Trump could not resist telling NBC’s Lester Holt during a live interview on May 11, 2017 — two days after the firing — that Comey’s firing was due to “the Russia thing.”

If there was any doubt whatsoever that Trump fired Comey in order to try to quash the FBI’s and the Justice Department’s investigation of possible collusion between the Trump Campaign and Russian intelligence operatives to interfere with the 2016 election and to swing it in Trump’s direction, those doubts were dispelled when Trump told Russian Ambassador Sergey Kislyak and Sergey Lavrov, the Russian Foreign Minister, in the Oval Office on May 10, 2017,  the day after the firing of the FBI Director, that he had discharged “Nut Job” Comey in order to take “pressure” off the Russian investigation. Only Trump, the two Russian officials, and a Russian news representative were permitted to be in the Oval Office during this critical discussion, which also involved the disclosure of highly sensitive and classified information that the U.S. had obtained from Israeli intelligence about the Islamic State.

Two months before he fired Comey, Trump ordered White House Counsel Don McGahn to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation, saying that he needed Sessions to provide active oversight over the Russia investigation in order to “protect him” and “safeguard” him. Mueller can persuasively argue that the only possible reason why Trump would be so desperate for Sessions to “protect” him was that Trump had something to hide from the federal prosecutors, and that he was desperately afraid that the investigation would lead into troubling areas regarding the underlying “collusion” investigation, or into collateral areas such as the Trump Organization’s heavy reliance on Russian money of suspicious origin in possible violation of U.S. money laundering laws.

After Comey was fired and replaced by Deputy FBI Director Andrew McCabe, who corroborated Comey’s testimony regarding Trump’s repeated requests for a “loyalty oath” from Comey, Trump pressured FBI Director Christopher Wray to fire McCabe, causing Wray to threaten to resign, according to news reports. Trump continued to berate McCabe in a barrage of twitter rants, until McCabe finally capitulated and announced his abrupt and early retirement from the FBI.

Trump is also reported to have ordered White House Counsel McGahn to fire Special Counsel Mueller, only to back down – at least for the time being- when McGahn threatened to resign.

The question being pondered by the Special Counsel’s office is what to do with all of this evidence of criminal obstruction of justice by Trump himself. Although the Justice Department issued two legal opinions in 1973 and 2000 during the investigations of Presidents Nixon and Clinton, concluding that a sitting President could not be indicted, there is nothing in the U.S. Constitution itself that explicitly says that. All that the Constitution says about the prosecution of the President is that, in Article I, Section 3, he (or she) is subject to prosecution after being impeached by the House of Representatives, and then convicted and removed from office by a two-thirds vote of the Senate.[1] It is silent on the issue of whether a President can be indicted before being impeached, or whether the two proceedings can take place simultaneously.

Legal memos prepared in 1973 for the Watergate Special Prosecutor and for Kenneth W. Starr, the Independent Counsel investigating allegations against President Clinton, reached the conclusion that a sitting President could be indicted if the evidence warranted it, which put both of these special federal prosecutors at odds with official Department of Justice policy.

Special Counsel Mueller, in consultation with Deputy Attorney Rosenstein, may well decide that the evidence of President Trump’s violations of the criminal obstruction of justice statutes is so compelling that the Grand Jury should be asked to return an indictment against him. President Trump’s lawyers will make an inevitable motion to dismiss the indictment on constitutional grounds, and that question will then finally have to be decided by the U.S. Supreme Court.

In the alternative, if the Special Counsel merely ask the Grand Jury to issue a Report laying out the evidence against President Trump, or name President Trump as an unindicted co-conspirator in an Obstruction of Justice indictment, then they will be violating the sacred principle that “No man is above the law,” even a sitting President. Passing the buck to Congress to consider impeachment of the president is not a good option, since impeachment is, at its core, a political decision as to whether a sitting president who has demonstrated that he is unfit to fulfill the duties of the office should be allowed to complete his term or not. That decision (whether to impeach or not) may have little or nothing to do with the issue of whether a president has violated the criminal laws, and whether he should be prosecuted for violations of those laws “without fear or favor,” just like every other citizen.

[1] Article 1, Section 3 states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

THE CURRENT ASSAULT ON FREEDOM OF THE PRESS AND OTHER CORE AMERICAN VALUES

 

One of the most troubling aspects of Donald Trump’s campaign, from a constitutional and legal perspective, is that he is the first presidential candidate in history (or at least in my lifetime) who refuses to accept as a “given” established core values of our constitutional democracy. These core values include Freedom of Speech and of Religion, which are embedded in the First Amendment to the U.S. Constitution, and the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments.

If Donald Trump’s campaign is any indication of what a Trump Administration would be doing, then we can anticipate that the freedom of speech and expression exercised by non-violent protesters at his rallies would continue to be suppressed. Mr. Trump himself has repeatedly urged his supporters at his mass rallies to assault non-violent protesters. He has also made a continuing practice of belittling and berating the press for its coverage of his campaign and has even withheld press credentials from certain news organizations that have had the temerity to report on certain aspects of his campaign in a negative light.

On Monday, September 19, 2016, immediately after a series of bombings in New York and New Jersey, Trump blamed “freedom of expression” as a potential roadblock to the war against terrorism. In an interview on Fox News, Trump blamed freedom of the press for the fact that magazines were being sold that published bomb-making instructions. He did not identify which magazines he was referring to, but presumably, he was referring to Al Qaeda’s English-language propaganda magazine, Inspire, or jihadi websites that publish bomb-making instructions. What Trump failed to note – perhaps because he does not himself know – that these kind of magazines are not sold at any mainstream U.S. bookstores or newsstands.

Trump’s suggestion that First Amendment freedoms should be eliminated, or at least abridged, under the guise of supporting the fight against terrorism is reminiscent of Putin’s heavy-handed attacks on press freedom in Russia by labeling all media opposition there as unpatriotic or treasonous.

Over the past few years, numerous prominent Russian reporters have been found murdered or have “disappeared” after writing articles critical of Putin and his inner Kremlin circle. Similarly, the political opposition in Russia has been mostly crushed with the jailing or exile of several prominent political opposition leaders. As Timothy Snyder pointed out in a recent New York Times article on Russian fascism (09/21/16), Putin has long idolized Ivan Ilyin, the founding father of Russian fascism, who believed that individuality, diversity, and democracy were evil, and that the only thing that was important was a Holy Russia governed by a “national dictator.” Writing in the 1930s and 1940s, Ilyin looked to Mussolini and Hitler as the kind of leaders who could save Europe by destroying democracies and the individual freedoms that went along with them.

Trump’s real concern with the press and American media in general is that it has been largely critical of both him and the policies that he has espoused in his campaign, suggesting, for example, that his proposals to build a multi-billion-dollar Wall on the southern border with Mexico would be ineffective at stemming the flow of Mexican immigrants, a nonsensical waste of money and resources, and an environmental catastrophe. The press has also portrayed him and his campaign as xenophobic, misogynistic and racist, which Trump has considered being “unfair” and “false”, even though mainstream reporting is, for the most part, backed up with a wealth of documentary support. Trump has now ratcheted up his criticism of the press by suggesting that the media coverage of his campaign and press freedom in general is basically harmful to the country as long as we are in the midst of an existential war on terrorism.

What Trump seems to be missing, or at least ignoring, is that America’s longstanding tradition of a free and uncensored press is precisely part of what has made this country an exceptional example of how real democracies are different from autocratic pseudo-democracies such as Russia, Turkey and countless other “republics” in name only around the globe.

A likely reason why Trump has expressed such admiration for President Vladimir Putin of Russia is that, if elected, he would like to emulate Putin’s iron hand when it comes to the press and political dissent. Correspondingly, Putin’s embrace of Trump and aversion to Hillary Clinton springs from his belief that Clinton, as Secretary of State during the Russian parliamentary elections of December 2011 and the presidential elections of March 2012, gave the signal to the Russian opposition to demonstrate in the streets against the rigged elections and stuffed ballot boxes that kept Putin and his ruling party in power. Putin forced all nongovernmental organizations as “foreign agents” and branded all political opponents as enemies of the Russian state. It is not surprising, therefore, that Putin would support Trump and release hacked emails embarrassing the Democratic National Committee and Hillary Clinton, since Trump has reciprocated by expressing agreement with most of Russia’s foreign policy, including the weakening of NATO and the democratic republics of Western Europe and Ukraine. Just as the institutions of democracy have been hollowed out in Russia and reduced to a sham, the undermining of democracy in the U.S. and Western Europe is also part of the grand design of Putin and his former KGB cronies.

Given Trump’s affinity for Putin and the way that he has been able to control the press and to suppress dissidents in Russia, it is likely that President Trump would take similar steps to “discipline” the U.S. mainstream press, but denying White House press credentials to reporters who consistently question Trump’s policies and practices, by having his administration challenge the FCC licenses of offending news organizations, and other measures designed to stifle a free press. Borrowing from Putin’s playbook, opposition political leaders would also be likely subjected to a barrage of investigations and prosecutions by a politicized U.S. Dept. of Justice, with perhaps Chris Christie or some other political hit man being appointed to the position of Attorney General of the United States. And since President Trump would have the pardon power, no doubt Christie’s Bridge Gate problems would also be quickly solved.

The President of the United States has awesome powers. If used without restraint in order to silence critics or to get even with political opponents, the U.S. government can quickly be turned into something more closely resembling the pseudo-democracies of Russia, Turkey or countless other “republics” in name only, which outwardly profess adherence to democratic principles and the electoral process, but in practice are nothing more than autocratic regimes. These regimes rule through raw power and fear, who perpetuate themselves through the brutal suppression of free speech and a free press.

Although we take the Freedom of the Press for granted, this country has gone through some extremely troubling periods when there were severe restrictions placed on the right of free expression and freedom of the press.  It is entirely within the realm of possibility that such rights can be suppressed once again under the administration of a Trump or someone like him. It should be remembered that in 1798, only a few years after the passage of the Bill of Rights and adoption of the Constitution in 1791, the governing Federalist Party attempted to suppress criticism by means of the Alien and Sedition Acts, which made criticism of Congress and of the President a crime. Fortunately, Thomas Jefferson was elected President in the election of 1900, in part due to his opposition to the Sedition Acts, and he pardoned most of those who had been convicted under them.

During the Civil War, four New York newspapers were prosecuted in mid-1961 for “frequently encouraging the rebels by expressions of sympathy and agreement.” These actions all followed various “executive orders” issued by President Lincoln, including his eighth order on August 7, 1861, which made it both illegal and punishable by death to hold “correspondence with” or give “intelligence to the enemy, either directly or indirectly.” This was understood as an explicit direction for actions taken by various state and federal governmental officials to harass or prosecute newspapers and reporters who published any articles deemed to be sympathetic to the Southern cause.

During World War I, the Espionage Act of 1917 and the Sedition Act of 1918 imposed restrictions on the press, with offenders subject to fines of $10,000 and up to 20 years imprisonment for the publication of “disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the military or naval forces of the United States ….”

Similarly, a Minnesota law that targeted publishers of “malicious” or “scandalous” information was not invalidated by the U.S. Supreme Court until 1931, when the decision in Near v. Minnesota struck down this state law as an infringement on the First Amendment’s freedom of the press. In 1938, in Lovell v. City of Griffin, the U.S. Supreme Court extended the reach of the First Amendment’s freedom of the press beyond just newspapers and periodicals, holding that freedom of the press was a fundamental persona right extending to “every sort of publication which affords a vehicle of information and opinion. This, of course, now extends to the internet.

In January 2014, the Ninth Circuit Court of Appeals held, in Obsidian Finance Group LLC v Cox, that the protections of the First Amendment’s free speech and free press clauses extend to bloggers on internet, and that they cannot be liable for defamation unless the blogger acted negligently. The Ninth Circuit explained that journalists and bloggers are essentially equal under the First Amendment since those protections do not depend on “whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”

One way that Donald Trump has said that he would consider restricting the freedom of the press is by loosening up the defamation and libel laws, which subject newspapers and other media outlets to possible lawsuits for the publication of information that is alleged to be false and defamatory. As the law now stands, however, there are severe legal restrictions on a person’s ability to successfully pursue a lawsuit for an allegedly defamatory article if that person may be considered to be a “public figure.” The reason for this is that in New York Times Co. v. Sullivan, a 1964 case, the Supreme Court sharply restricted such libel cases by holding that when a publication involves a public figure, a plaintiff in a libel suit bears the burden of proving that the publisher acted with “actual malice,” meaning that the publisher had to know of the inaccuracy of the information or statement being published, or acted with “reckless disregard” as to the truth of the statement. In another watershed case, in 1971 the Supreme Court, in New York Times Co. v. United States, upheld the publication of the previously secret Pentagon Papers, which contained some highly critical information regarding America’s involvement in the Vietnam War. I recall this case very clearly since I was a law school intern in the U.S. Attorney’s Office in Manhattan at the time that the case was argued in federal court.

If Donald Trump has his way, these and other restrictions on the ability of a public figure such as himself to sue the press for its negative reporting of him would be swept aside, and the country would embark on a new era of press restrictions and even criminal prosecutions of newspapers and investigative reporters, no doubt including the teams of reporters now delving into the illegal activities of the Trump Foundation.