In the avalanche of news that crashed over us this past week, some may have missed a Saturday night political casualty. It was Heather Nauert, the President’s pick to replace Nikki Haley as U.N. Ambassador, quietly withdrawing her name from consideration.
Nauert’s sin was not her utter lack of diplomatic experience, but rather that old nomination-killing scandal – employing a nanny without a proper work visa. In an age of unprecedented happenings, the Nauert withdrawal was almost quaint in its familiarity. Recall, President Bill Clinton lost not one but two Attorney General nominees in the so-called “Nannygate” scandal, when in 1993 he had to withdraw the nomination of first Zoë Baird and then, a month later, Kimba Wood before landing on Janet Reno.
There was nothing especially interesting or novel in the Nauert setback except this: the transgression that tanked the former Fox News personality’s cabinet bid was mild compared to those of President Trump himself. As has been recently documented, the president – notwithstanding his white-hot rhetoric about illegal immigration, caravans, walls, and steel slats – himself has for years employed dozens of undocumented workers at five of his golf clubs in New York and New Jersey. The hypocrisy is no longer shocking, but it does rankle.
It is quite a paradox that for structural and political reasons, a duly-elected president can get away with much worse conduct and scandal than any of the officers who serve him. It would seem counter-intuitive, but in various contexts the American President is held to a lower standard, not a higher one.
As I’ve discussed on Stay Tuned, there is little doubt that if Trump were an ordinary person, he would never gain a sensitive security clearance. His financial dealings, his bankruptcies, his unpaid debts, his foreign entanglements, his long history of public lies, all would swiftly deny him security clearance if he were a mere Assistant U.S. Attorney, much less a cabinet official. And yet the security clearance rules don’t apply to him, because the country needs its commander-in-chief (no matter how problematic) to have access to classified information to protect the country.
The same is true in other contexts – many of the ethics rules that bind other executive branch officials do not apply to the president. We have always relied on norms and political accountability to rein in certain behaviors, but the president seems impervious to age old customs. Trump did not have to divest his holdings or release his taxes, has vilified federal judges by name, and staged continuous attacks on investigations brought by his own Justice Department. The list of his norm-defying actions is endless. Most upsettingly to some, of course, is the prevailing legal wisdom enshrined in a Justice Department opinion that the sitting president cannot be prosecuted. He is the only human being in the country with such immunity.
On the issue of pardons, this president takes the position that he may pardon anyone, including family members and business associates. He also claims that he can pardon himself. The DOJ teaching on this is to the contrary, though it is sparse: the Office of Legal Counsel (OLC) memo, written in 1974 under Nixon, concludes without much legal analysis that “under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.” That’s it. Even the bar on self-pardon is not completely certain.
We like to say no one is above the law. But the president is a bit, as the law in many ways treats him more favorably than anyone else in the land. One thing we will certainly have to come to grips with in the coming years is whether, and to what degree, we need to change that disparity. This we will be discussing more in the coming months.
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 SMART ON “WALLS”
The rhetoric around the border wall has been high on political catchphrases and low on substance, so this week, we urge readers to do their own digging. A great source for understanding some of the central issues involved in border security are academic studies and government reports that address fundamental questions like:
Do walls work?
What challenges does Border Patrol face in using technology, fencing, and other means to control the US-Mexico border?
What do federal laws and policies have to say about the way physical barriers should be used along international borders?
What is the economic and environmental impact of border walls?
Why have governments around the world erected walls (by some counts about 70 walls worldwide)?
Denise-Marie Ordway of Journalistsresource.org has compiled and summarized key reports on these questions. Read her roundup, “What the research says about border walls.”
Are walls the answer to border security? Write to us and let us know your thoughts by replying to this email or send us a note at firstname.lastname@example.org.
GET SMART ON THE 25TH AMENDMENT
The 25th Amendment to the Constitution was rarely a subject of national headlines until Donald Trump’s presidency brought it to the forefront of our attention. Ratified in 1963 after the assassination of President John F. Kennedy, Section 4 of the Amendment allows for the removal of a president who is “unable to discharge the powers and duties” of his office.
The media blitz of political commentary in the popular press has raised public awareness of the Amendment but also produced mistaken analysis and misconceptions about its purpose. A recent paper in the Journal of Constitutional Law strives to expose the inaccuracies, correct the record, and raise arguments relevant to the central questions raised by Section 4 of the Amendment. The provision, the paper notes, is “designed to handle some of the most challenging, traumatic and contentious contingencies that might arise involving an incapacitated President and the transfer of presidential powers and duties to the Vice President.”
READ “Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4,” Journal of Constitutional Law, Vol. 21, No.1, 2018.
And read about that time when President Reagan’s aides seriously talked about invoking the 25th Amendment in the aftermath of the Iran-Contra scandal.
REVISITING THE “ACTUAL MALICE” STANDARD
The First Amendment and the freedom of the press has been a recurring topic in this newsletter. Worth highlighting is a newly issued concurring opinion by Justice Clarence Thomas that calls on the Court to reexamine its landmark decision in New York Times v. Sullivan. The case established a bedrock constitutional principle applicable to defamation and libel lawsuits. It holds that under the First Amendment, plaintiffs who are public figures must prove that the defendant made the statement at issue with “‘actual malice’–that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Justice Thomas calls the Times decision and its progeny “policy-driven decisions masquerading as constitutional law” that fail to account for the way the First Amendment “was understood by the people who ratified it.”
Justice Thomas’s argument speaks to Trump’s complaints that the “actual malice” standard makes it practically impossible for public figures to prevail in libel and defamation lawsuits. Speaking at a campaign rally in Fort Worth, Texas in February 2016, Trump made this promise:
“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
Justice Thomas grounded his analysis in originalism, a theory that the Constitution should be interpreted according to the intent of those who drafted and adopted it. Harvard Law School professor Noah Feldman argues that Justice Thomas’s opinion “calling to roll back a key libel law isn’t really about originalism.” Read his op-ed for Bloomberg, and let us know what you think. Does it make sense to relax the standards public figures must meet to challenge false reporting in courts? Write to email@example.com with your thoughts.
ANDY MCCABE’S NATIONAL EMERGENCY
Takeaways from episode 13 of CAFE Insider:
• Are the discussions about secretly recording Trump and invoking the 25th Amendment a “coup” that needs to be investigated by Congress as Sen. Lindsey Graham argued? The word “coup,” like “treason,” should not be thrown around casually. The discussions took place at a tense time – the aftermath of FBI Director Jim Comey’s firing. A congressional investigation over mere discussions, lacking any action undertaken by Rod Rosenstein, Andrew McCabe, or anyone else, is a waste of Senate resources. A hearing would likely help rather than damage Democrats so far as it would elicit testimony about Trump’s behavior that led the Deputy Attorney General and Deputy FBI Director to consider options as extreme as wearing a wire and invoking the 25th Amendment.
• Did Mueller actually recommend 19½ to 24 years of prison time for Paul Manafort? And, how does the sentencing process work in general? It has been reported that Bob Mueller “recommended” a lengthy sentence of 19½ to 24 years, but that’s not quite the case. The Special Counsel wrote, “the Government does not take a position as to the specific sentence to be imposed here” though “the government agrees with the guidelines analysis.”
For prosecutors, sentencing is an odd phase of the criminal justice process. Say the recommended sentence is 10 to 15 years but the prosecutor believes that 5 years is what’s fair – it would be unusual for the prosecutor to argue that the sentence should be lower than the range recommended by law. For good or ill, prosecutors are typically careful not to weigh in on the fairness of the guidelines, but rather communicate their view of what just punishment is through the stridency of their language.
The sentencing process begins with the Department of Probation pre-sentence report that calculates a recommended range in prison time based on advisory guidelines. Sentences are determined based on two primary factors: (1) the conduct associated with the offense and (2) the defendant’s criminal history. A number of points is assigned to each factor based on the severity of the crime and the offender’s level of recidivism. A complicated computation then yields a proposed punishment.
In Manafort’s case, the calculated offense level was 38 (out of 43) with a recommended range of 19½ to 24 years. The high range is in part a function of the high dollar value associated with the charges of tax evasion and bank fraud of which Manafort was convicted in Virginia. As the Special Counsel’s office wrote in the sentencing memo:
Manafort was the lead perpetrator and a direct beneficiary of each offense. And while some of these offenses are commonly prosecuted, there was nothing ordinary about the millions of dollars involved in the defendant’s crimes, the duration of his criminal conduct, or the sophistication of his schemes. Together with the relevant criminal conduct, Manafort’s misconduct involved more than $16 million in unreported income resulting in more than $6 million in federal taxes owed, more than $55 million hidden in foreign bank accounts, and more than $25 million secured from financial institutions through lies resulting in a fraud loss of more than $6 million.
If you haven’t already, listen to “Andy McCabe’s National Emergency”
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THIS WEEK ON STAY TUNED
Veteran journalist Christiane Amanpour is this week’s guest on Stay Tuned. The wide-ranging conversation covers her career as a war journalist, her philosophy on reporting, and even her status as the “OG” (Original Gangster).
In this sneak peek at the interview, Amanpour explains a reporting principle she has pinned to the top of her Twitter feed: “Truthful, not neutral”
There’s the truth, and there are facts. And there’s empirical evidence. That’s truth, and that’s being truthful when you seek and report in those parameters. Neutrality is often confused by people for objectivity. People sometimes think that our golden rule, which is objectivity, means neutrality. It does not. Neutrality is when you essentially put two opposing thoughts on the same platform, and give equal weight to two opposing thoughts. Now sometimes you can, but often you cannot.
Let’s just take genocide for instance, which is where I learned my craft. There is no moral or factual equivalence between the gross violation of humanitarian law and mass killing of people based on their ethnicity or their religion. There’s no equating the perpetrators with the victims. I found that out in Bosnia and in Sarajevo …
So I learned that really, really quickly, that objectivity means giving all sides a hearing, but not conflating all sides and making them neutral, or morally, or factually equivalent. And you can transfer that, that doctrine if you like, to anything of massive importance. For instance, climate change, something that is an existential threat to our civilization. By the way, not to the planet, the planet will continue to exist. Our civilization may very well not. [Condensed and edited for clarity]
Don’t forget to listen to this week’s episode of Stay Tuned. It drops this Thursday, 2/21.
SOMEONE TO FOLLOW
Jack Goldsmith is an expert on national security and a Harvard Law School professor who served in President George W. Bush’s Justice Department. His Twitter feed is a great source of threads explaining legal topics in the news. Follow him @jacklgoldsmith
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That’s it for this week. We hope you’re enjoying CAFE Insider. Please send us your suggestions and questions at firstname.lastname@example.org.
– Preet and the Cafe Team