Problems Proving Obstruction and Conspiracy

April 2, 2019

Two statutes add to the many issues that complicate the status of Robert Mueller’s investigation of Russian interference in the 2016 presidential election.

One defines obstruction of justice as “imped[ing] the due administration of justice.”[1] It has been treated as necessary that one have specifically intended to obstruct a proceeding. One can prove that someone like Trump intended to impede justice either by statements of intent or actions that make it obvious. Obstruction is about such things as Trump’s dismissal of Comey and urging an end to the investigation. It would have been cleaner if Trump had recused himself from the investigation. But he didn’t dismiss Rosenstein or Mueller or order either Comey or Sessions to end the investigation, only encourage them to. Was that enough? It probably would be if you told a police officer to get lost. But, even though Congress is not limited by the same rules of evidence, Supreme Court decisions about evidence of intent will complicate things. Let me come back to that in a moment.

A second statute makes “[A]ny conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . .” a violation of federal law.[2] Participants must agree, intend, and do something to further the conspiracy. Once again, intent might be proven by explicit statements, or by actions that make it obvious.

The Supreme Court, however, is not a friend of the obvious. It ratcheted back the law of conspiracy in an antitrust case saying that it is not enough to show that two people or companies acted as if they were acting in concert. The Court wants something closer to an explicit statement or admission.[3]

The Court doesn’t like to infer intent from behavior, except for infering intent to favor African-American efforts to equalize their opportunities with those of whites. The Court decided that many electoral district lines were unconstitutional racial gerrymanders in favor of African-Americans based on the shapes of the lines, even where the more obvious purpose was political gerrymandering which, to this day, they refuse to condemn.[4] But the Court resists finding that white officials disadvantaging minorities did so intentionally.[5] In one case they would not even get to the evidence, writing that such discrimination by high public officials was “implausible.”[6]

Intelligent attorneys would stop short of explicit statements or admissions. Politicians and criminal conspirators often make agreements based on unstated understandings. Trump came much closer to the brink than an intelligent lawyer would have. But notice the absence of any explicit quid pro quo. There’s no “release the recordings, Mr. Putin, and we’ll deliver the EU.” There’s no “let us help you violate our laws to get information on the Democratic National Committee or candidate Clinton.” It wasn’t even in the form of requests that they do some illegal things in the U.S. Instead the evidence we know about was all encouragement – saying that would be great, we hope Putin does it, or we predict he will. Trump’s statements are not explicit. Lawyers recognize that circumstantial evidence is often the most reliable but this Court thinks big shots and major corporations should be protected from it. Here, the evidence we know about is ambiguous – does it indicate a joint endeavor or simply knowledge of Putin’s actions?

The strength of the evidence will depend in part on whether Congress is willing to ignore the Court. In other words, the U.S. Supreme Court had its favorites and its scapegoats even before Trump’s appointments made it worse. None of that makes Trump blameless but it does mean that there will be battles over the evidence if there is any attempt to impeach.

— This commentary was broadcast on WAMC Northeast Report, April 2, 2019.

[1] 18 U.S.C. § 1503, 1505 and https://www.law.cornell.edu/wex/obstruction_of_justice.

[2] Hass v. Henkel, 216 U.S. 462, 479-480 (1910).

[3] Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

[4] See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996).

[5] See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); and see also League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399, 517 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part).

[6] Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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Kavanaugh on Investigating the President

October 9, 2018

Brett Kavanaugh is now supposed to be called “Justice Kavanaugh.” The Constitution refers to members of the Supreme Court as judges. Whether the term “justice” will be appropriate depends entirely on his behavior. Of that I am doubtful. I think there was no justice for Dr. Christine Blasely Ford.

There is strong evidence that Kavanaugh will solidify a majority for repealing a half century of progress on voting rights, women’s rights, gay rights, anti-discrimination law and protections against our becoming a police state.  Kavanaugh invariably parried questions about his views with recitations of prior law, showing only that Kavanaugh could explain the cases, but never denying his likely impact.

Nevertheless, Trump and his Senate sycophants would have nominated and confirmed someone equally damaging to American law. More ominous are Kavanaugh’s views about whether it is OK to investigate a sitting president.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. That suit was dismissed because it didn’t claim Clinton violated the law. It was brought, however, for purposes unrelated to the suit, namely to enable fishing expeditions on Clinton’s behavior. That’s called abuse of process.  Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. In those days Republicans were puritans.  Kavanaugh pursued Clinton with gusto.

Then, with Bush in the White House before the election of President Obama, he told an audience at Minnesota Law School, that he had changed his mind. He wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So Kavanaugh concluded that there were good reasons not to sue sitting presidents. He added that impeachment was always available. Left unsaid, however, was that to be more than a partisan political tool, impeachment must rest on investigating to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and support that country’s interests in exchange for putting Mr. Trump in the White House. The Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, Trump’s selection of a judge who doubts the legitimacy of investigating a sitting president strengthens his attacks on the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But we don’t allow people to be judge in their own cause. What we already know about the Trump campaign justifies a deeper look. And Trump’s effort to control the investigation can amount to impeachable behavior. For Democrats to take back the Court, the law and the cause of justice, they will have to defeat Kavanaugh’s senatorial supporters and elect a Congress prepared to prevent presidential abuse. In other words, the battle isn’t over and the stakes just got larger.

— This commentary was broadcast on WAMC Northeast Report, October 9, 2018. This is a revised and updated version of commentary originally prepared for broadcast on September 18, 2018, pulled because of the Kavanaugh hearings, rescheduled for September 25 but pulled again at the last minute because of new developments in the Middle East. The earlier version was posted here.

 


Personality and Presidents

October 11, 2016

I walked by a group talking about the election and a young woman was saying she would never vote for Hillary because of her personality – I forget the word she used. So I stopped and asked her if that was the most important thing in a candidate. She responded “Yeah” like wasn’t it obvious and went on talking. I moved on shaking my head about her naiveté. This president is going to have to deal with Russia, China, the Muslim world, climate change, and her personality is the issue? The next president is going to have to be cool under pressure, not shoot wildly from the hip, and understand the stakes, the pressures, the possibilities and the limitations of what we can accomplish, and her personality is the issue?

I know some people want to feel like they could have a beer with the president. I think George Bush would have been great to sit down with over a beer. From all accounts I think he’s probably a really nice guy, and easy to get along with. But he was so unprepared to deal with foreign affairs that he made mistakes that will reverberate for decades, if not centuries. I want someone who is preoccupied with what he or she needs to know – which doesn’t tend to make good drinking conversations.

I’ve never met Clarence Thomas but the people I do know who know him tell me he is a really nice guy to be around – including, despite the Anita Hill affair, some of the women who have worked for him. But I think he has been a disaster as a member of the Supreme Court. I did meet Chief Justice Rehnquist, more than once. Sweet guy, at least toward me. But I’m convinced he led the Court in disastrous directions. I’ve also met Breyer. He’s much more often on my side, so Steve, please take care of yourself and stay on the Court. But as far as I’m concerned, if I sat down with Breyer it would be all about business. I didn’t like his apparent manner. I say apparent because what do gestures and expressions or tones of voice really mean about someone’s congeniality when you don’t really know them?

Culturally we often think people who look over their glasses are being haughty – but former Secretary of State Cyrus Vance who wore reading glasses and generally looked over them when talking with me, was very helpful regarding things my office and I were trying to do on behalf of the disadvantaged, and in the process I learned to like him as much as I respected him, which was a lot.

I’m not sure I’d even want a president to take the time to have a beer with me. I’d want her to be focused on what she needs to know to manage any of the life and death problems that are on her desk. I know presidents do take time out to meet people and try to seem connected. But I don’t have the need to take their time. The most connected thing Obama has had to do is to grieve with the families that have lost loved ones, soldiers, children, spouses, and I know he has been as deeply affected by that experience as any president. He’s got more important things on his mind than chatting with me.

Lobby him? That’s not social; that’s business. Beer? That’s my problem, not hers. Personality? Give me a break.

— This commentary was broadcast on WAMC Northeast Report, October 11, 2016.


Is Culture the Solution to the Campaign Finance Problem?

August 2, 2016

This is the fifth in a series on Money in Politics.

Americans love prohibitions rather than investments. That’s tragic because prohibitions often work poorly while investments pay off.

Antipathy toward investments grew in the backlash to the Civil Rights Movement. Politicians used crime as a wedge issue and the riots facilitated their strategy. While liberals talked about the causes of crime, and the things we could do to deal with it, conservatives had no patience for what they called “coddling criminals.”[1]

In the 60s we still invested in prevention,[2] afterschool activities, and treatment. But the War on Drugs substituted a focus on condemnation and mass incarceration.[3] Prohibitions were in and expenditures became “waste.” We’re turning back now because we have discovered it is expensive to warehouse people.

Reagan generalized, telling America that “Government is the problem.” His attack was designed to end the War on Poverty that President Johnson inaugurated. The war on taxes was a way to kill otherwise popular programs.[4] Reagan’s successors were trapped by the effectiveness of his anti-government and anti-expenditure rhetoric. G.H.W. Bush, forced into assuring the American public that he would not raise taxes, told the public, “Read my lips: no new taxes.” Prevailing anti-expenditure sentiment forced President Clinton to reduce relatively successful federal programs. And George W. Bush, continued the same theme, telling the people repeatedly that you can use “your money” better.

Politicians are saddled with the curse of being part of a system of government the people came to despise. Revelations of the damage done by campaign funding deepened that feeling and curdled reactions to the one method of campaign funding that would not lead to more corruption – public funding of political campaigns. Public funding of presidential election campaigns, through small federal tax credits, came about partly in reaction to Watergate. But support for the program has declined steadily since.

Americans have not always been as hostile to government as they are now. Responsible and effective government were this country’s major contributions to civilization, coming out of the 1776-1783 revolutionary struggle and the birth of the Constitution in 1787. From the Eisenhower Administration, when people were first polled about confidence in government, and well into the 60s, three-quarters of the public trusted government most of the time. Only twenty-five percent of the public do now.

But now, Americans have decided that government and politicians are bad. People don’t want to give politicians anything – except for funding police and the armed services. Making public funding possible is intertwined with these larger questions of whether government can be trusted with anything. President Obama and Secretary Clinton have been talking about smart investment. The public has little patience for failure, even though success, public or private, usually follows failed experiments.  So the future of public funding is linked to changing attitudes about government, politicians and the possibility that they can make smart investments. Many things could be done better, and ultimately more cheaply, if we were willing to invest.

— This commentary was broadcast on WAMC Northeast Report, August 2, 2016.

[1] On wedge issues, see Christine Watkins, Gun Control: The Debate and Public Policy, quoting Eric Zorn, “Librarians Take a Risky Stand on Full Access to the Web,” Chicago Tribune (June 5, 1997).  On changed attitudes, see Michael J. Robinson,  Television and American politics: 1956-1976, Public Interest, Number 48, 3-39 (Summer 1977).

[2] See Nat’l Comm. on the Causes and Prevention of Violence, Final Report: To Establish Justice, to Insure Domestic Tranquility (1969).

[3] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).

[4] David Stockman, The Triumph of Politics: Why the Reagan Revolution Failed (1986).


Media Coverage of the Presidential Campaign

June 7, 2016

During this pledge drive, amid disputes about media coverage of the presidential campaign, it’s a good time to review how we got here.

The 19th century press was partisan; every party had their papers. Around the dawn of the 20th century, publishers and advertisers who wanted to reach people on all sides, shaped the era of the penny press and just-the-facts news, with opinion segregated onto separate editorial pages. News was supposed to be nonpartisan. It worked very well when the media put the cruel responses to the Civil Rights Movement into every home in America.

Nevertheless, even while Civil Rights and Vietnam glued Americans to the media, the press was still reeling from self-criticism about how it had allowed the infamous Senator Joe McCarthy to make unsubstantiated charges of treason and communist sympathies without appropriate debunking. And so was born the era of checking with targets for their response.

In broadcasting the FCC enforced the fairness doctrine, requiring balanced presentation of controversial issues of public importance. That sounds better than it was. I learned first-hand when the now defunct St. Louis morning paper blasted the Legal Aid Society there and we met with the editorial board of the afternoon Post-Dispatch. They told us that denials wouldn’t help, and would actually remind the public of the charges. Instead they would – and did – run stories about the good things we were doing.

He said-she said journalism or the more oblique but effective good-story-bad-story journalism could help to inform people on issues they follow closely with open minds. Otherwise it could be more confusing than helpful.

In this era, I believe Irving Kristol, himself a conservative, wrote an article saying the New York Times was both America’s best newspaper and not very good. His point was that reporters weren’t experts in the areas they were covering. Taking a man-in-the-street approach to stories helped reporters write for and speak to ordinary Americans but often at the cost of misunderstanding issues that experts could have untangled.

Sociologist Herb Gans wrote a book explaining that media bias rarely resulted from partisanship but from the ease of newsgathering from a few sources, like the White House, which gave those sources disproportionate access to the press.

By the time their work came out, Woodward and Bernstein had blown Watergate open and everyone tried to copy what we now call investigative reporting. That goes much deeper but involves the reporter or news outlet in examining controversial issues, laying themselves open to charges of bias by anyone who disagrees.

But legal rules changed and cable soon splintered the marketplace for news, now further splintered by digital media. As in the 19th century, Americans can choose what they’d like to hear, see or read and ignore the rest. Everyone can speak to their own choir with thunderous applause. More discerning and complex stories are often ignored or reduced to sound bites.

Donald Trump takes advantage of that by simply announcing his views in outrageous ways sure to catch everyone’s attention. While Joe McCarthy could make unsubstantiated charges without fear of press criticism, Donald Trump uses inflammatory rhetoric to get everyone’s attention above the din of press criticism.

I’m not convinced there is a perfect answer. Every campaign reflects the efforts of a new crop of politicians to game the media approach of their era. And in an effort to be fair, the press tries not to make candidate-specific judgments about how to cover campaigns – including Trump’s – but tries to cover them in standard ways.

If you listen closely on this station you will hear the residue of every method of journalism practiced in America for the last century. There are straight facts, he-said-she-said journalism, commentary, investigative reporting and a plethora of polling and analysis from every direction. This certainly is the thinking person’s station. Thank you WAMC.

— This commentary was broadcast on WAMC Northeast Report, June 7, 2016.


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