CAFE Insider Newsletter #13: Derogating The President

CAFE Insider Newsletter #13: Derogating The President

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Dear Reader,

The sensational news for the past several days has been the impending submission of a confidential report to Attorney General William Barr from Special Counsel Mueller (soon to be overshadowed, at least temporarily, by Michael Cohen’s Congressional testimony). The supposed timeline for this legally required report keeps shifting, but the essential questions remain unchanged: what will it say and what will become public?

Let’s focus on the second question for now. Given the charged nature (pun intended) of all things Mueller, there is some amount of reflexive outrage at the suggestion that even a single word in Mueller’s report might not become public. In fairness, however, there are legitimate considerations that call for some non-transparency, depending on how extensive and detailed the Mueller report is.

Sensitivity about classified information and grand jury information is a concern, as Anne and I discussed on this week’s CAFE Insider. But this kind of material can be redacted and should not give us much pause. Another concern is the inclusion of derogatory information about persons whom the Special Counsel has elected not to charge; we can reasonably expect such information in the report because the regulations specifically call for Mueller to “explain . . . declination decisions.”

The two top leaders of the Justice Department have emphasized the principle that such material should not be released to the public. William Barr testified during his confirmation hearing:

“If you’re not going to indict someone, you don’t stand up there and unload negative information about the person. That’s not the way the department does business.”

And just this week, Deputy Attorney General Rod Rosenstein echoed those sentiments in public remarks:

“The guidance I always gave my prosecutors and the agents I worked with during my tenure on the front lines of law enforcement were [sic] if we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations to American citizens.”

Now, what goes typically unsaid in these utterances is whether that principle necessarily applies to everyone. It makes some amount of sense that ordinary citizens, even if associated with or related to the president, should get the benefit of this protection. What is less clear is whether it should extend to the president himself. There is, after all, a marked distinction between the president and literally everyone else.

As I mentioned in last week’s note, in various ways the president gets more favorable treatment under the law than any other citizen in the country, and this special position is of central relevance to the current question.

Rosenstein is on sound footing when he says government lawyers should keep quiet if they’re not prepared to prove their case in court. In Trump’s case, of course, given the prevailing DOJ policy and guidance against prosecuting a sitting commander-in-chief, there is no near-term opportunity to make any case against the president in court even if the facts would otherwise warrant one. The only way, arguably, to hold an errant president accountable is through political process – elections or impeachment.

Therefore, there is a strong argument that the policy of withholding derogatory information has limited applicability to the president because of the underlying shield against prosecution inherent in his office and the uniquely available political check of impeachment. We will certainly be talking about this much more in the weeks ahead. Stay tuned.

My best,

Preet

MICHAEL COHEN TESTIFIES

Michael Cohen(C), US President Donald Trump’s former personal attorney,arrives at the Hart Senate Office Building in Washington, DC on February 26, 2019. – Cohen is on Capitol Hill to testify before the Senate Intelligence Committee. Donald Trump’s former lawyer Michael Cohen could stir fresh turmoil for his former boss when he begins three days of testimony before lawmakers Tuesday on the president’s murky business and personal affairs. (Photo by MANDEL NGAN / AFP) (Photo credit should read MANDEL NGAN/AFP/Getty Images)

On Trump’s Character

“I am ashamed that I chose to take part in concealing Mr. Trump’s illicit acts rather than listening to my own conscience. I am ashamed because I know what Mr. Trump is. He is a racist. He is a conman. He is a cheat.”

On Trump Moscow

“To be clear: Mr. Trump knew of and directed the Trump Moscow negotiations throughout the campaign and lied about it. He lied about it because he never expected to win the election. He also lied about it because he stood to make hundreds of millions of dollars on the Moscow real estate project.”

On Julian Assange and the democratic emails

“In July 2016, days before the Democratic convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speakerphone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange and that Mr. Assange told Mr. Stone that, within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign. Mr. Trump responded by stating to the effect of “wouldn’t that be great.”

On hush money payments to Trump’s alleged mistresses

“I am providing a copy of a $35,000 check that President Trump personally signed from his personal bank 14 account on August 1, 2017 – when he was President of the United States . . . The President of the United States thus wrote a personal check for the payment of hush money as part of a criminal scheme to violate campaign finance laws.”

On Trump’s school transcripts

“When I say conman, I’m talking about a man who declares himself brilliant but directed me to threaten his high school, his colleges, and the College Board to never release his grades or SAT scores.”

PREET’S BOOK LAUNCH

Join us as we celebrate the publication of “Doing Justice” with a live taping of Stay Tuned on March 19 in NYC. Preet will be in the hot seat, interviewed by CBS This Morning co-host, Bianna Golodryga at NYU’s Skirball Center. All tickets come with a signed copy of the book. Get tickets now. 

INDICTING THE PRESIDENT

WASHINGTON, DC – JANUARY 20: Supreme Court Justice John Roberts (2L) administers the oath of office to U.S. President Donald Trump (L) as his wife Melania Trump holds the Bible and son Barron Trump looks on, on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today’s inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Drew Angerer/Getty Images)

Can a sitting president be indicted? It’s a common question among our listeners, and it has yet to be addressed by the Supreme Court. The short and common answer is “no,” according to an oft-cited Justice Department policy embodied in two Office of Legal Counsel (OLC) memos written in 1973 and in 2000, both prompted by the scandals that engulfed the Presidencies of Nixon and Clinton in impeachment, though Nixon was never actually impeached.

The rationale for the policy is that criminal prosecution is highly disruptive, and it undermines the President’s ability to do his job as the constitution mandates. But the constitutional law arguments contained in these memos are not settled law. Walter Dellinger, former Acting Solicitor General who also led the OLC from 1993 to 1996 argues that “the complex history of criminal proceedings against presidents and vice presidents suggests that these issues are not foreclosed.”

In an article for the Lawfare blog, Dellinger analyzes the 1973 and 2000 memos as well as four other occasions where the U.S. government addressed the indictability of a sitting president internally or in public court filings. He writes:

Perhaps the most important point that emerges from a review of all the opinions is this: only once has the United States addressed the question of whether a president can be an unindicted co-conspirator. The conclusion was an unequivocal yes. Richard Nixon was so named in the Watergate indictment, and that inclusion was sustained by Judge John Sirica and defended by the United States in United States v. Nixon. (The Supreme Court did not resolve the question.) No department opinion or filing has ever contradicted that position. The fact that it is permissible to name a sitting president as unindicted co-conspirator, moreover, tends significantly to undermine the only argument against indicting a sitting president.

READ, “Indicting a President Is Not Foreclosed: The Complex History.”

DOUBLE JEOPARDY & DUAL SOVEREIGNTY

WASHINGTON, D.C. – APRIL 19, 2018: The U.S. Supreme Court Building in Washington, D.C., is the seat of the Supreme Court of the United States and the Judicial Branch of government. (Photo by Robert Alexander/Getty Images)

The double jeopardy doctrine first arose in the context of Mueller-related media coverage following concerns that President Trump may issue pardons to any number of his associates convicted by the Special Counsel.

Talk of double jeopardy resurfaced last week after Bloomberg reported that the Manhattan District Attorney’s office “is ready to file an array of tax and other charges against Manafort,” and the New York Times followed-up with reporting that the “office is expected to seek charges whether or not the president pardons” his former campaign chairman (whom he has praised as “a brave man” who “refused to break,” unlike that “rat” Michael Cohen).

Article 2, Section 2 of the Constitution limits a president’s pardon power to individuals who commit “Offenses against the United States,” that is, federal — not state — crimes. Worried that the president might use his pardon power to bypass accountability, state prosecutor offices are considering bringing their own charges against Mueller’s defendants. But the Fifth Amendment’s double jeopardy clause holds that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb” – meaning that an individual cannot be prosecuted twice on the same set of facts. In a 1957 case of Green v. United States, the Supreme Court explained the ban on double jeopardy as follows:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Some states have recognized what’s known as the “dual sovereignty” exception to double jeopardy which permits a criminal defendant to be prosecuted for the same criminal act by different states or in federal court and then in a state court (or the other way around) on the grounds that the states and the federal government are “separate sovereigns.” The Supreme Court upheld the practice in its 1959 decision in Abbate v. United States. Justices recently decided to revisit the constitutionality of the “dual sovereignty” exception in the case of Gamble v. United States and they will soon issue their decision.

The Gamble case involves a man named Terrence Gamble who was prosecuted on both state and federal charges based on the same set of facts of illegally possessing a gun while being a felon. At oral arguments in December, things didn’t seem to go in Gamble’s favor when the Justices sounded skeptical of his attorney’s arguments. Still, Gamble’s position has proponents across the ideological spectrum. A win for Gamble could mean a win for some of Mueller’s defendants who couldn’t be prosecuted by state prosecutors, even if they are pardoned by Trump.

As the Court gears up to issue its opinion in Gamble, a great way to understand the arguments on both sides of the issue is to listen to the oral arguments (and read along the transcript if you wish). Then let us know what you think. Does the dual sovereignty exception violate the spirit of the double jeopardy doctrine? Write to us at letters@cafe.com or reply to this email.

THE USUAL SUSPECTS

Can Mueller submit his report to the Attorney General if there still pending litigation? The applicable regulation that governs Special Counsels, 28 CFR § 600.8 (c), states, in part, that “[a]t the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report.” (emphasis added) It is unclear what the word “work” encompasses, but it is fair to assume that Mueller will submit his report before all the litigation is concluded. Mueller has made the core decisions on whom to charge and with what and has staffed the various investigations with DOJ lawyers or Assistant U.S. Attorneys in the D.C. office, making the handoff of cases easier. So even if the Special Counsel’s work may be coming to a close, the cases arising out of his investigation will live on. Trials take a long time, as does the motion practice leading up to a trial. In Roger Stone’s case, it could take a year or more before the trial even begins.

What information is the Attorney General required to provide to Congress? Under 28 CFR § 600.9(a)(3), the Attorney General must “notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with . . . description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” That means that if the Attorney General did not overrule Mueller on any point, no information has to be provided to Congress. If, for example, Mueller writes in his report that the office found sufficient evidence against Trump to present to a grand jury but did not bring charges due to the OLC memo that guides against indicting a sitting president, Attorney General Bill Barr could legally keep this information confidential, unless he disagrees with Mueller on that point.

How much time can Paul Manafort get for his two cases? Manafort will soon be sentenced in two separate cases, first in Virginia and then in D.C. The Special Counsel’s sentencing memo filed in connection with Manafort’s guilty pleas to two counts of conspiracy in the D.C. case describes his actions as “bold.” Prosecutors argue that Manafort “presents a grave risk of recidivism,” and thus a departure from the sentencing guideline rage of 17 ½ to 23 years and 10 months is not warranted. The memo does not mention, somewhat oddly, that the statutory maximum sentence that the judge can impose on Manafort in the D.C. case is 10 years since each count of conspiracy of which Manafort is convicted carries a 5 year maximum sentence. Judge Amy Berman Jackson who is handling the D.C. case will have the benefit of knowing Manafort’s sentence in the Virginia case, which she can use to inform her decision on what sentence to impose on him and whether that sentence runs concurrent to or consecutive to the sentence Manafort gets in the Virginia case.
If you haven’t already, listen to “The Usual Suspects

Please note: you may now manually add your unique feed to your favorite podcast app. Please sign in and visit the My Account section of the site. There, you will find the Podcast Link just under the words ‘My Account.’ Confused? Here are instructions for adding the feed.

Please note: you may now manually add your unique feed to your favorite podcast app. Please sign in and visit the My Account section of the site. There, you will find the Podcast Link just under the words ‘My Account.’ Confused? Here are instructions for adding the feed.

THIS WEEK ON STAY TUNED

Bryan Stevenson is a civil rights attorney who represents prisoners on death row. He is this week’s guest on Stay Tuned. In this sneak peek of the interview, Stevenson shares the central argument he makes to proponents of the death penalty:

The death penalty isn’t a question about whether people deserve to die for the crimes they’ve committed. The threshold question, in the American criminal justice system, is: Do we deserve to kill? Because even if people deserve to die, you have to have a sufficient integrity, you have to have a sufficient reliability, before you can get to that and I don’t think in this country – when we have a criminal justice system that treats you better in too many places if you’re rich and guilty than if you’re poor and innocent, where wealth is determinative of outcomes – that we should be killing people in that kind of system. I think when you have a system that presumes black and brown people dangerous and guilty because of their color that we’re going to able to get to the kind of reliable outcomes that a just system requires.

Don’t forget to listen to this week’s episode of Stay Tuned. It drops this Thursday, 2/28.

SOMEONE TO FOLLOW

David Axelrod, who served as the Chief Strategist for Barack Obama’s presidential campaigns, is the director of the University of Chicago Institute of Politics and host of “Axe Files” podcast. His Twitter feed is a great source for commentary on the Trump White House and assessments of the 2020 Democratic presidential candidates. Follow him @davidaxelrod.

SHOP CAFE

Get your Stay Tuned merch! Insiders get a special 20% discount on their first purchase. Use code: INSIDER20

That’s it for this week. We hope you’re enjoying CAFE Insider. Please send us your suggestions and questions at insider@cafe.com.

– Preet and the Cafe Team

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