Tuesday, December 17, 2019

Interesting Times No Matter What

The second impeachment Article that the House of Representatives will vote on tomorrow alleges that as part of the “impeachment inquiry, the Committees undertaking the investigation served subpoenas seeking documents and testimony deemed vital to the inquiry from various Executive Branch agencies and offices, and current and former officials,” but that in “response, without lawful cause or excuse, President Trump directed Executive Branch agencies, offices, and officials not to comply with those subpoenas.” [1] The article goes on to list specific instances of this conduct. 

The illegality of the President’s actions in this regard is abundantly clear. 2 U.S. Code §192 provides, 

“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.” [2]
And 18 U.S. Code §2 says,

“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

“(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” [3]

Since the president ordered his subordinates to ignore congressional subpoenas, this looks like a slam dunk. Of course, it’s beginning to look as though the Republican majority Senate isn’t going to convict Mr. Trump no matter what the evidence. 

But there is an additional complication: executive privilege. Mr. Trump’s defense, to the extent he is required to put on one, will be that the subpoenas sought information that he should be permitted to keep confidential as the President.

The only time the Supreme Court has ever weighed in on the issue of executive privilege was in United States v. Nixon. [4] That case involved a judicial subpoena in a criminal matter, but the privilege to be claimed is the same. There the Court said that “neither the doctrine of separation of powers, 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,” and that “when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.” (Id, p. 706) It is difficult to see how it could be any different with a congressional subpoena.

Now all of this is, doubtlessly, an academic exercise. The Republican led Senate is not going to remove the Republican President from office. 

Meanwhile, Mr. Trump recently had to pay “$2 million to eight charities as part of a settlement in which the president admitted he misused funds raised by the Donald J. Trump Foundation to promote his presidential bid and pay off business debts….In the end, the president admitted in court documents that he had used the foundation to settle legal obligations of his businesses and even to purchase a portrait of himself.” [5] In other words, he embezzled from his charity.

Why this was not made the basis of another article of impeachment is beyond the grasp of your humble servant. From the public perception standpoint, refusing to cooperate with Congress is one thing; stealing from a charity is quite another. The spectacle of the Senate trying to summarily dismiss an impeachment article like that would raise a stench reaching to the far reaches of the solar system. 

One supposes that the defense would be raised that Mr. Trump committed his misdeeds in connection with that case before he was President, so it doesn’t count. That theory, of course, would immunize a president from impeachment even if old bodies were dug out of his backyard, so it wouldn’t need to be taken seriously.

It is apparently apocryphal that the curse “may you live in interesting times” is of Chinese origin. But we live in them all the same.

Friday, December 6, 2019

The Delegation to the President

The Trump administration’s issuance of new regulations that will “cause hundreds of thousands of people to lose access to the Supplemental Nutrition Assistance Program” [1] has raised legitimate concerns about the humanity of the action, but, surprisingly, little objection to the system that has allowed it. How is it, we should be asking, that the President is empowered to enact something with such broad implications without any input from Congress?

This is a symptom of the regulatory mode of governance that we have all gotten used to: Congress passing legislation with, essentially, blanks to be filled in by the Executive. But if you handed the ordinary reasonable person a copy of the Constitution for his perusal, he would likely be amazed that it has been interpreted to allow the President such sweeping legislative authority.
NBC reports that the “USDA rule change affects people between the ages of 18 and 49 who are childless and not disabled. Under current rules, this group is required to work at least 20 hours a week for more than three months over a 36-month period to qualify for food stamps, but states have been able to create waivers for areas that face high unemployment.” But the “new rule would limit states from waiving those standards, instead restricting their use to those areas that have a 6 percent unemployment rate or higher.” This is clearly legislative matter which has been unilaterally enacted by the President.

The Supreme Court, however, has historically gone along with this sort of thing. The rule is “that Congress can not delegate its power to make laws to an executive department or to an administrative officer, nor confer upon any such officer or the courts the power to determine what the rule of law shall be.” [2] On the other hand, so long as Congress lays “‘down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’” [3] This rationale is “driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”

Superficially, that appears to make sense. But what can happen is that a change in administration can result in sweeping changes without any Congressional input at all. The USDA itself says that about 688,000 people will lose access to SNAP benefits under the new rules. An impact of that magnitude should involve the deliberation of the legislative power rather than being implemented by executive fiat. The high Court should revisit its doctrine permitting such broad delegation of legislative authority to the President.

Friday, November 22, 2019

The Most Serious Ground for Impeachment

In the last offering in these pages, your humble servant submitted for your incisive consideration that President Trump can be impeached, and convicted, for stealing from his charitable non-profit before he took office. [1] It is to be admitted, however, that people often think of impeachable offenses as misdeeds committed while in office, and actions committed in connection with the performance of that office.

We really need to consider that problem no further than to speculate about what could be done about a dead body found buried in a president’s former residence. Still, it will be useful to take a look at the pertinent constitutional provision to see if the impeachment process is so restricted. Article II, Section 4 of the Constitution reads this way:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” [2]
There is no restriction on when the treason, bribery, or other crime is committed. And, really, we should be grateful for that. Otherwise, a failed attempt at treason, only discovered after the perpetrator took office, would be without an immediate remedy in the case of the President; who, according to prevailing wisdom, cannot be prosecuted until his term is completed.

But there is another impeachable offense that the president has committed in office, beyond the extortion attempt on the president of Ukraine that congressional Democrats appear to be hanging their hats on. He revealed state secrets to the Russians! [3]
“The intelligence disclosed by Mr. Trump in a meeting with Sergey V. Lavrov, the Russian foreign minister, and Sergey I. Kislyak, the Russian ambassador to the United States, was about an Islamic State plot….” At the time that happened in 2017, the prevailing wisdom was that Mr. Trump’s disclosure wasn’t illegal, since “the president has the power to declassify almost anything.” 

To the extent that is true, it isn’t a complete analysis. As the Lawfare blog pointed out at the time,

“Questions of criminality aside, we turn to the far more significant issues: If the President gave this information away through carelessness or neglect, he has arguably breached his oath of office….in taking the oath President Trump swore to ‘faithfully execute the Office of President of the United States’ and to ‘preserve, protect and defend the Constitution of the United States’ to the best of his ability. It’s very hard to argue that carelessly giving away highly sensitive material to an adversary foreign power constitutes a faithful execution of the office of President.

“Violating the oath of office does not require violating a criminal statute. If the President decided to write the nuclear codes on a sticky note on his desk and then took a photo of it and tweeted it, he would not technically have violated any criminal law–just as he hasn’t here. He has the constitutional authority to dictate that the safeguarding of nuclear materials shall be done through sticky notes in plain sight and tweeted, even the authority to declassify the codes outright. Yet, we would all understand this degree of negligence to be a gross violation of his oath of office.” [4]
Still, we need not concede the illegality point so readily. Federal statute provides that whoever “Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information…obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes” is subject to a fine, imprisonment up to ten years, or both. [5]
Now the information Mr. Trump disclosed had come from an ally, probably Israel, undeniably a foreign government. [6] Classified information for these purposes has the statutory definition of “information which…is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution….” That means that once the appropriate agency designates information declassified, it retains that status until the agency declassifies it. Of course, the President has the power to order the information declassified. But Mr. Trump didn’t do that in this case; he simply disclosed the information. To the Russians. 

Thus, it appears that the President is capable of violating this law after all. And this he manifestly did. His disclosure to the Russians of classified information should be yet another article of impeachment to be brought before the Senate for trial.