Tag: Constitution

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Why a sitting president can be charged with a crime

In July, Representative Devin Nunes, a Republican who chairs the House Intelligence Committee, told donors gathered for a fundraiser that preserving their party’s majority in Congress matters above all because they “are the only ones” who can protect President Trump if the special counsel or the Department of Justice refuse to clear him.

The comments raise anew the question whether a sitting president can be indicted and tried for his crimes. The question has yet to be answered in practice. But among experts who have shaped my thinking about the question is Noah Feldman, a professor of constitutional law at Harvard, who in May published an analysis in The New York Review of Books.

Feldman argues from the premise that “the Constitution should not be read to allow a sitting president who has committed serious crimes to hide behind his office and avoid accountability for them.”

As he sees it, whether the crime occurred while the president is in office or before he became president, we ought to allow prosecution of the president if Congress fails to remove him from office via impeachment. I agree.

Feldman suggests a scenario in which prosecutors in New York who are investigating Michael Cohen, the president’s former lawyer, uncover evidence sufficient to charge President Trump with crimes such as money laundering or conspiracy. Could a federal grand jury indict the president?

Without precedent

A sitting president has never been indicted. Feldman chronicles debate over the prospect since 1973, when the Watergate prosecutor received a memo from a law professor at Harvard asserting that President Nixon could be indicted while in office. (The prosecutor decided not to indict Nixon once proceedings in Congress to impeach him had begun; the prosecution named the president an unindicted co-conspirator.)

The same year, the Office of Legal Counsel at the Department of Justice produced a memo concluding that all executive branch officials could be prosecuted while in office with the exception of the president, who was immune. In 2000, the office wrote a memorandum affirming that view, which has guided policy at DOJ since.

But the analysis doesn’t end there. Suppose, as Feldman does, that Trump actually shot someone on Fifth Avenue, a scenario that then-candidate Trump imagined aloud in 2016 as a brag about the loyalty of his supporters.

Feldman writes:

“Suppose further that a Republican House did not immediately impeach him, or that the Senate could not reach the two-thirds supermajority needed to remove him from office. Could we continue to believe in the rule of law if the president were able to avoid criminal prosecution as long as he remained in office?

Our conclusion should presumably be the same if we imagine that the crime was committed before he entered office but revealed only once he was in the White House. The Constitution should be not interpreted to require such a moral outrage.”

Yet the prospect of such an outrage looms. As the comments by Nunes and the refusal of Republicans in Congress to pass a bill to protect the Mueller investigation suggest, the party could look away regardless what the evidence shows and refuse to impeach him.

Feldman acknowledges the views of scholars who oppose indicting a sitting president – either because Congress, a coequal politically elected branch of government should do it, or because, in their view, the Constitution implicitly requires impeachment and removal from office to precede criminal prosecution.

As a practical matter, Feldman notes that prosecutors could name Trump as an unindicted co-conspirator (assuming the evidence warrants) and then see whether Congress impeached him. If Congress resisted, prosecutors could try to persuade the attorney general to authorize a prosecution.

Feldman notes with approval the recommendation of Cass Sunstein, Feldman’s colleague at Harvard, that we should think about impeachment, as Feldman puts it, “based on principle, without thinking of concrete scenarios connected to specific politicians we like or despise.”

Of course, if takes some imagination to picture prosecutors actually prosecuting the president. Would the FBI arrest him if he refused to turn himself in? What would the Secret Service do if FBI agents showed up at the White House with a warrant for the president’s arrest?

There’s no precedent for such scenarios, which underscore the fears of those who say that Congress alone – subject to the voters in the election that follows – should decide the fate of presidents.

Feldman counsels a focus on practical results and consequences. He also notes that we allow for the investigation and prosecution of representatives, senators and other elected officials who have committed crimes.

“In the end, pragmatic reality should outweigh high formalism when it comes to preserving constitutional government,” he writes. “In the matter of the Watergate tapes, the case was called United States v. Richard Nixon. If it becomes necessary, the Department of Justice, acting on behalf of the people, should bring the case of United States v. Donald Trump.”

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Trump shows why Congress should reclaim the power to declare war

Three days after the 9/11 attacks, Congress passed a resolution authorizing the president to use military force against those responsible.

Rep. Barbara Lee, a Democrat who represents California’s East Bay region, was the lone member of either the House or Senate to vote against the resolution.

“In granting these overly broad powers, the Congress failed its responsibility to understand the dimensions of its declaration,” she wrote.  “I could not support such a grant of war-making authority to the president; I believe it would put more innocent lives at risk.”

For that act of bravery and conscience – not to mention a construing of the Constitution as strictly as a hero of the right such as Justice Neil Gorsuch might construe it – Lee received insults and death threats.

Yet the concerns she expressed endure. They arose again on Tuesday, when the president took to Twitterto tell Russia to “get ready” for missiles fired at Syria by the U.S. in retaliation for what appears to have been an attack on civilians using chemical weapons.

In the wake of that tweet, Lee, now joined by three of her colleagues, including two Republicans, issued a statementurging the president to seek authorization from Congress before using military force against Syria.

“The Constitution clearly gives Congress, not the executive branch, the power to authorize war,” they wrote. “Any use of force against Syria requires approval from Congress first.”

The move follows a similar statement last June by members of the Senate Foreign Relations Committee who said that U.S. airstrikes in Syria exceeded the authorization passed in the wake of 9/11.

In 2013, at Lee’s request, the Congressional Research Service compiled a memorandum that listed the uses of military force taken pursuant to the 2001 authorization. They included the use of such force in 10 countries (a number that now stands at least at a dozen after deployments in Niger and Syria), detaining prisoners at Guantanamo Bay, and engaging terrorist groups both “on the high seas” and “around the world.”

In short, the resolution produced a forever war that has strayed from its justification to avenge the 9/11 attacks and now stands on questionable legal footing.

President Barack Obama recognized the problem implicitly in August 2013, when, after being presented with evidence of a chemical weapons attack by the Syrian regime against its own people, he refrained from taking military action until Congress could be heard.

Obama explained his decision as follows:

“[H]aving made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I’m also mindful that I’m the President of the world’s oldest constitutional democracy. I’ve long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people.”

A month later, the prospect of a diplomatic solution that called for the Syrian government to hand over its stockpile of chemical weapons spared Congress what some members feared would be a tough vote.

Still, the decision by President Obama to seek authority from Congress marked a move to harmonize the use of military force with the Constitution.

In September 2013, when a vote by Congress on the use of military force in Syria seemed imminent, Donald Trump warned President Obama against attacking Syria. “If you do, many very bad things will happen,” Trump tweeted.

Fast forward to last Sunday, when Trump blasted Obama for failing to take military action against Syria. Though the tweets induce whiplash, they establish that, as president, Trump has about as much regard for the Constitution as he does for consistency.

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Ninth Circuit misread the law governing the Trump travel ban, government tells Supreme Court

The Ninth Circuit misread the law that underpins the president’s exclusion of visitors to the United States from six majority-Muslim countries, the government argues in a new round of papers that ask the Supreme Court to reinstate the travel ban.

The Immigration and Nationality Act (INA) requires only that the president find entry of a group of visitors to the U.S. would be detrimental to the nation’s interests, regardless of whether Congress comes to the same conclusion, says the government in a brief filed on Thursday. Thus, the appeals court erred when it ruled on June 12 that the travel ban has no basis in the record and therefore exceeds the president’s authority, the government says.

“The court of appeals read into that provision a requirement that, before suspending entry, the president must articulate a factual finding — satisfactory to courts — that support[s] the conclusion that entry of all nationals whose entry he suspends would be harmful to the national interest,” writes the government. “That requirement turns the statute’s text on its head.” [internal quotes omitted]

In its ruling, the Ninth Circuit noted that the executive order containing the ban does not discuss any instances of terrorism in the U.S. by citizens of Iran, Libya, Sudan, Syria or Yemen — an omission the State of Hawaii and others challenging the ban raised before the appeals court and are likely to assert in their brief, which is due this Tuesday. The executive order cites one example of domestic terrorism by a native of Somalia who came to the U.S. at the age of 2.

Uncertainty alone justifies a ban, White House says

Besides relying on a series of State Department reports from 2016, the administration cited no evidence to support its assertion of a threat to national security posed by residents of the six countries. The omission explains in part why the challengers say the reasons for the ban offered by the White House are a pretext to disfavor Islam in violation of the Establishment Clause.

In its brief to the court, the government says the president imposed the travel ban “in the face of uncertainty over whether these foreign governments that sponsor or shelter terrorism are able and willing to provide” information that would allow the Departments of State and Homeland Security to determine whether entry of visitors from those countries constitutes a threat.

The uncertainty alone justifies a halt for three months on visitors while the administration ascertains whether each of the countries can screen travelers sufficiently, says the government.

The administration also urges the justices to overrule a finding by the Ninth Circuit that the travel bank violate the INA’s prohibition on discrimination based on nationality in the issuance of visas. That bar does not apply to the president’s ability to restrict entry of visitors, the government contends.

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Civil rights groups sue Chicago over police abuses, seek court oversight

In August 2013, an African-American couple stood outside their home on Chicago’s South Side when officers from the Chicago Police Department (CPD) arrived and began towing their car. The couple asked the police if they could remove personal items from the car before it was towed. One of the officers hit the female member of the couple, who happened to be pregnant and suffered a miscarriage.

The incident, which ended in a settlement with the city, is one of 19 cases charging abuse by the CPD that Chicago settled in the past two years and among a series of wrongs cited by a coalition of black and Latino residents who filed a lawsuit on Wednesday accusing the CPD of using excessive force in violation of their civil rights.

The class action aims to build on a civil rights investigation by the Obama administration, which found a pattern of misconduct and unconstitutional force by the CPD. However since then both Mayor Rahm Emanuel and Attorney General Jeff Sessions have backed away from the idea of court oversight.

“We’re asking the federal court to oversee the police department and to appoint a monitoring team that’s going to oversee enforce a process to bring about the changes that are necessary to redress years of unchecked police abuse and a code of silence,” Craig Futterman, attorney for the plaintiffs and a professor of law the University of Chicago, told reporters. “It’s a sad and scary day when we have our federal government abdicating its responsibility to enforce our nation’s most fundamental laws.”

The class action asks the court to appoint monitors to oversee efforts by the city to change its policing and end a culture that allows police to conceal wrongdoing by their colleagues.

A history of abuses

In support of their accusations, the coalition, which also includes community groups and nonprofits such as Black Lives Matter, documents a history of abuse by police against Chicago’s black and Latino residents.

Over a period of five years that ended in June 2015, black people accounted for 80 percent of the 282 people shot by the CPD despite black people making up just a third of the city’s population, the plaintiffs said in court papers. In the last three of those years, three-fourths of people shocked by police with a Taser gun were black, according to the plaintiffs, who also document a series of abuses that range from use by police of racially charged language to punching people, clubbing them with batons, and slamming them to the ground.

The city says it agrees that reforms are needed but blames the Trump administration for failing to pursue a consent decree. “The substance of the reforms that we are all trying to achieve is not really in question,” Edward Siskel, Chicago’s top lawyer, told the Times. “It is matters of process that we are discussing.”

If the city wants to negotiate a consent decree, “we can do it tomorrow,” Futterman responded.

Besides failing to train police properly, agencies charged with overseeing the CPD frequently fail to determine whether officers’ accounts of encounters with residents match evidence, the plaintiffs contend. Such failures lead police to conclude they can operate with impunity, according to the plaintiffs, who assert that the CPD has proved to be incapable of policing itself.

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Trump travel ban appeal is moot, challengers say

The fate of President Trump’s prohibition on visitors to the U.S. from six majority-Muslim countries may turn on whether the Supreme Court agrees to hear the case at all.

The period of 90 days for the so-called travel ban that took effect in March has expired, the challengers contend in papers filed this week with the court. Thus, the matter is moot, say the challengers, who add it would be premature for the justices to weigh in until the lower courts have resolved the matter on the merits.

Hearing the appeal “would effectively grant the government a victory on the merits,” the State of Hawaii writes in its brief. “Absent the injunction [from the lower courts], the government will have imposed the full travel ban and most of the refugee ban before the October Term begins.”

The Fourth Circuit ruled last month that the travel ban likely violates the Establishment Clause, based on statements by the president that he aimed to keep Muslims out of the U.S. The Ninth Circuit held last week that the president has failed to supply evidence of a threat to national security sufficient to justify the exclusion of 180 million people based on their nationality.

According to Hawaii, the Fourth Circuit correctly considered statements by candidate Trump describing Muslim refugees as a threat in determining “that the stated [national security] rationale is a sham.”

To conclude otherwise would be to authorize presidents to enact policies intended to further unconstitutional aims “by cloaking the policy in neutral terms and a national security rationale,” says Hawaii. “That is not the law.”

The parties have until Wednesday to file briefs addressing the Ninth Circuit’s ruling

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Trump’s tweets can (and will) be used in court

After President Trump took to Twitter on Monday to defend the merits of his “travel ban” (his words) on visitors to the U.S. from six predominantly Muslim countries, a series of surrogates stepped forward to try to undo the damage to the administration’s defense of the ban in the courts.

Sebastian Gorka, an adviser to Trump, told CNN that tweets “are not policy… [they’re] social media.” In short, Gorka reasoned as follows: Only policy binds the president. Tweets are not policy. Therefore, tweets cannot bind the president.

The premises put forward by Gorka miss the point. Tweets are statements. Under the Federal Rules of Evidence, out-of-court statements, including those made on social media, will be excluded as hearsay if they are used to prove the truth of the matter asserted.

But a statement that would otherwise be hearsay falls outside the definition of hearsay (and therefore can be used in court) if a party to the litigation (insert Trump) said it, and the statement is offered against that party by his opponent (insert those challenging the travel ban).

If you wonder whether Trump is a party to the litigation over his travel ban, here’s how his lawyers captioned the brief they filed on Thursday asking the Supreme Court to revive the ban, which has been blocked by the Fourth Circuit:

Statements via social media are still statements

A statement made through social media fits the exclusion from hearsay so long as it is offered against, not by, the party who made it. As District Judge J. Michelle Childs explains in an article for the American Bar Association:

Social media sites seem designed specifically for users to assert their views, relate their experiences, manifest agreement with others’ opinions, and acknowledge others’ activities. Courts have found these activities to come under [the rule’s] exclusion from hearsay by admission. For example, a plaintiff’s sexually explicit Facebook comments were not hearsay when used by the defendant to show that the defendant’s remarks concerning similar conduct should not be considered harassment against the plaintiff.

Of course, Trump’s lawyers know this, which is how we know that no lawyers reviewed his tweets. The lawyers for those challenging the travel ban know it, too, which is why they welcomed the tweets. Here’s reaction from Neal Katyal, who argued on behalf of the challengers in the Ninth Circuit:

And here’s reaction from Omar Jadwat, the attorney who persuaded the Fourth Circuit to suspend the travel ban:

Trump’s lawyers argue that if you set aside statements by Trump and his surrogates during the campaign (and a few statements following the inauguration) you’ll see that the appeals court erred in enjoining the travel ban. The presidential oath of office transformed Trump into the chief executive, whose determinations regarding immigration policy are entitled to deference by the courts, say his lawyers:

Taking that oath marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation that the Constitution reposes in the President.

Trump shattered that notion in five 140-character outbursts. Expect to read his tweets in papers the Supreme Court has asked the challengers to file by this Monday. Yet in the end, the travel ban will fall not because the president tweeted about it. The travel ban will fall because it disfavors a particular religion in violation of the Constitution.

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Judge blocks Trump move to slash funds for sanctuary cities

Donald Trump’s words keep getting in the way of his efforts to tighten the nation’s borders.

A federal judge on Wednesday halted enforcement of a presidential order that would have authorized the White House to cut off funds to cities that refuse to cooperate with enforcement of federal immigration laws.

The power to spend belongs to Congress and not to the president, said District Judge William Orrick in San Francisco, who ruled that a Jan. 25 order by the administration that authorizes defunding of so-called sanctuary cities contravenes the Constitution’s separation of powers.

Though government lawyers asserted in court that the order does not give the president authority to impose new conditions on federal grants, Orrick noted statements by the president in February, when he told former Fox News host Bill O’Reilly that the threat of defunding “would be a weapon” to use against cities that decline to honor requests by the federal government to hold inmates in local jails for up to two days after their scheduled release so that immigration officials can determine if they want to take the person into custody.

Orrick also noted remarks by Attorney General Jeff Sessions, who told reporters that the death of Kate Steinle, a San Francisco woman who allegedly was killed by an undocumented immigrant, occurred because the assailant “admitted the only reason he came to San Francisco was because it was a sanctuary city.”

“If there was doubt about the scope of the order, the president and attorney general have erased it with their comments,” wrote Orrick, who also cited comments by White House press secretary Sean Spicer that the order aimed “to get cities into compliance” with executive action.

The injunction, which applies nationwide, follows a series of rulings by federal judges that blocked enforcement of a presidential ban on travel to the U.S. by people from six predominantly Muslim countries. Judges in those cases cited public comments by the president and his surrogates that the White House sought to ban entry of Muslims into the U.S. in violation of the Constitution.

Floyd Abrams, the First Amendment lawyer who successfully defended The New York Times against efforts by the Nixon administration to stop the paper from publishing the Pentagon Papers, recently told the Times that Trump’s tweets also may provide evidence in court for claims that a possible federal prosecution of WikiLeaks would represent an effort to use the legal system to punish journalists.

The ruling by Orrick addresses accusations by the cities and counties of Santa Clara and San Francisco, which each charged that the potential for losing federal grants as result of their policies would force them to cut critical services and entitlements.

San Francisco estimated it stands to lose about $1.2 billion, or about 12.5% of its annual budget, if the White House defunded the city and county. Santa Clara said that federal funds constitute about 35% of its annual revenues.

Because the executive order fails to clarify what conduct might cause a locality to lose funds, the directive also violates the Fifth Amendment’s Due Process clause, which requires that laws lay out the conduct they prohibit, Orrick said.

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Judge in Hawaii blocks revised Trump travel ban

The Trump administration has failed in its second try to ban travel to the U.S. by people from six majority Muslim countries.

The ban, which represented a do-over by the White House after its first attempt was blocked by the courts, likely violates the Constitution’s prohibition on government’s preferring one religion over another, the U.S. District Court in Honolulu ruled on Wednesday, a day before the ban was to take effect.

A “reasonable, objective observer – enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance – would conclude that the executive order was issued with a purpose to disfavor a particular religion,” Judge Derrick Watson wrote in a 43-page ruling that halts enforcement of the ban nationwide.

The lawsuit originated with Ismail Elshikh, Ph.D., a U.S. citizen and the Imam of the Muslim Association of Hawaii, who accuses the administration of violating the Establishment Clause of the First Amendment. In court papers, Dr. Elshikh cites a series of statements by the president, his staff and surrogates that the president set out to institute a ban on Muslims seeking entry to the U.S. Dr. Elshikh points to evidence that the travel ban is unlikely to strengthen national security.

The revised ban also contravenes the Fifth Amendment’s guarantee of due process, by preventing Dr. Elshikh’s mother-in-law, a citizen of Syria who last visited the U.S. in 2005, from obtaining a visa to visit her family in Hawaii. “Citizens may have a constitutionally protected interest in specific non-citizens’ ability to travel to the United States,” the plaintiffs write in court papers.

The State of Hawaii, the co-plaintiff in the lawsuit, alleges that the revised ban will impede its ability to recruit students and faculty from the affected countries, as well as depress travel to and tourism in the Aloha State.

President Trump called the ruling an “unprecedented judicial overreach” and vowed to appeal it to the Supreme Court. At least a dozen states have sued to block the revised travel ban.

Separately, a federal judge in Maryland ruled Thursday that enforcement of the revised travel ban would violate the Establishment Clause, citing statements by the president and administration officials.

Despite the White House’s revising its executive order with the aim of the ban’s passing constitutional muster, “the history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban,” Judge Theodore Chuang wrote.

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Why the revised Trump travel ban may still be unconstitutional

The revised Trump travel ban may satisfy the White House and its supporters but it remains to be seen whether the edict comports with the Constitution.

In an executive order issued Monday, the administration prohibits visits to the U.S. by people from six predominantly Muslim countries. The order, which supersedes an order issued Jan. 27, includes a series of changes that are designed to withstand court challenges. The changes include a recitation of the allegedly heightened risk that visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen present to national security.

The danger “of erroneously permitting entry” of a visitor from one of the six countries who may intend to commit an act of terror “is unacceptably high,” the order tells us. Yet it contains nothing that ties nationals from the affected countries directly to threats of terrorism within the U.S.

Country of citizenship “is unlikely to be a reliable indicator of potential terrorist activity,” the intelligence arm of the Department of Homeland Security (DHS) concluded in a three-page report published in February by the Associated Press. Of 82 people who engaged in activity inspired by a foreign terrorist organization since the start of the Syrian conflict in March 2011, “slightly more than half were native-born United States citizens,” according to the analysis, which DHS has termed incomplete.

The revised travel ban does include a recitation, purportedly culled from reports published annually by the State Department, that describes conditions that can breed terrorism generally in each of the six countries. But as the Economist observes, “the edit has the flavor of a student essay whose first version contained no support for its thesis and has been patched up with a visit to a couple of websites. The logic behind categorical bans from particular nations remains dubious.”

Like the order its replaces, the revised ban also suspends for four months the admission of refugees into the U.S. “The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation,” the president writes in the revised order. But “without any context, this 300 figure is meaningless,” the Washington Post noted.

That leaves the order vulnerable to a conclusion by the courts that it remains motivated by discrimination. “The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” a three-judge panel of the Ninth Circuit wrote in its Feb. 9 ruling denying the administration’s request to reinstate the ban after a federal judge in Seattle blocked its enforcement nationwide.

What’s more, the appeals court noted, the states that challenged the initial order offered evidence of “numerous statements” by the president of his intent to ban Muslims from entering the country. With its lack of evidence tying the travel ban to an actual threat to national security, the revised travel ban does little to undo that conclusion.

Washington state Attorney General Bob Ferguson, who sued to block the ban, said in a statement Monday that his office was reviewing the revised order to determine its impact on the state and his office’s next legal steps.

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Trump expected to issue revised travel ban

President Trump is expected on Monday to sign an executive order banning travel to the U.S. by people from at least six Muslim countries that the White House hopes can withstand court challenges.

Though the extent of changes to the current order remained unclear on Sunday, they reportedly will include removing Iraq from the travel ban, which may continue to apply to visitors who arrive from Syria, Somalia, Sudan, Yemen, Iran and Libya. The order also is expected to clarify that lawful permanent residents and visa holders have due process rights and remove a provision that gave priority to refugee claims by Christians.

The Ninth Circuit last month refused to reinstate the ban, which was part of an executive order issued in January, after a federal judge blocked its effect nationwide.

The revised ban comes amid a flurry of charges by the president that his predecessor ordered investigators to listen to his phone calls during the presidential campaign as part of a government probe into alleged ties between the Trump campaign and Russia. President Obama has denied the charge.