Yeomans Work

Are We There Yet?

April 5, 2018

The ever-expanding chaos in the Trump administration has amped up concern that we are reaching the bursting point.

The departures of Gary Cohn, H.R. McMaster, Hope Hicks, Rex Tillerson, Rob Porter, David Shulkin, John Dowd, and others launch a new phase in which Trump can surround himself with characters from his TV world and act even less responsibly. Trump has spewed ever more astonishing tweets disparaging the FBI, DOJ, Democrats, immigrants, and Amazon. Mueller’s net is tightening and, apparently, driving Trump toward desperation.

This is a phase to be dreaded – an endgame in which Trump will cast aside any remaining constraints, launching an orgy of firings, pardons, and maybe a couple of wars. Members of Congress heightened the concern by issuing statements cautioning Trump not to fire Bob Mueller and pushing for legislation to protect him.

The legislation, which is a fine idea and probably constitutional, is not going to happen. The Republican leadership, which has shamelessly promoted party at the expense of country, will not allow legislation to reach the floor of either house. It seems unlikely that it could muster a majority in the House and would almost certainly fail to get the necessary 60 votes in the Senate. Regardless, the leadership does not want to rile Trump and it certainly does not want to provoke a meltdown if a bill passed. Trump would veto the bill and it would be impossible to muster two-thirds of each house to override a veto.

In any event, even Trump should recognize that firing Mueller will not end the Russia investigation. Though Mueller, because of his talent and personal qualities, would be sorely missed, Deputy Attorney General Rod Rosenstein would appoint a replacement and carry on. The power to define the scope of the investigation and to approve major steps rests with Rosenstein. Trump would love to get rid of Rosenstein or, better yet, get rid of Attorney General Jeff Sessions and replace him with a TV crony who could stifle the Russia investigation. Sessions has survived this long because of his support in the Senate. Rosenstein has survived because Trump has not yet been willing to risk the outrage that might follow his ouster and because he is uncertain he can put a reliable crony in his place. As the vise tightens, he may become less risk-verse.

Oddly, that makes Trump’s firing of Veterans Affairs Secretary David Shulkin more interesting. While Shulkin may have been forced out over his resistance to privatizing veterans’ health care, his ethical transgressions made him an easy target. Pursuant to the most obvious reading of the Vacancies Reform Act, the Deputy Secretary should take over the VA. (It’s complicated, but trust me). Trump, however, appointed an official from the Department of Defense, Robert Wilkie, to take charge. The Act allows the president to appoint any other Senate confirmed official to serve for 210 days if an officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Shulkin claims that he did not resign, though the White House initially contended that he had. Therefore, Wilkie can step in only if Shulkin is “otherwise unable to perform the functions and duties of the office.” That phrase has not been interpreted definitively, but it applies most easily to instances of incapacitation or absence for other reasons. Applying it to a forced removal is a stretch.

Wilkie’s appointment, however, confirms that the administration is willing to stretch. That same reading would allow Trump to fire Rosenstein and Sessions and replace them for 210 days with cronies of Trump’s choice. That would allow him to leave Mueller in place but with a lid on the investigation. That’s worrisome.

The Washington Post reports that Mueller told Trump’s lawyers that Trump is a subject of his investigation, but is not a target. Trump is prematurely jubilant. The story is based entirely on self-serving leaks by Trump’s team and received undeserved breathless hype. A subject is someone whose conduct is under investigation by a grand jury. A target is someone against whom sufficient evidence has been developed to seek an indictment from a grand jury. Because Mueller and Rosenstein will feel bound by Justice Department policy, Trump cannot be indicted by a grand jury while he is president. Therefore, it’s likely he technically cannot be a target. In any event, a smidge more evidence can convert a subject into a target.

Another piece of reporting inspired concern about pardons, a weapon that Trump may employ when his back is against the wall. It was reported that John Dowd, acting as Trump’s lawyer, discussed the possibility of pardons with Michael Flynn and Paul Manafort. If true, Flynn rejected the overture when he pled guilty. The unreliability of Trump combined with the financial and emotional cost of fighting a long legal battle surely made Mueller’s favorable plea offer more appealing to Flynn.

The pardon discussion, however, may provide an explanation for Manafort’s unwillingness to enter a plea deal. He is confronting formidable evidence and the possibility of spending the rest of his life in prison. He is facing trials in the summer and fall and may yet cut a deal, but it’s not clear what he’s waiting for at this stage. Some have suggested that it is preferable to face the wrath of Mueller than to cooperate and face the too-often fatal wrath of betrayed Russians. But the prospect of a pardon at the end of the line provides another possibility.

Trump may feel reluctance to grant pardons for two reasons. First, once a defendant has been pardoned, he no longer has a 5th Amendment right to remain silent and could be compelled to tell all. That argument fails in this situation because presidents have authority to issue pardons only for violations of federal law. The key players here, especially Manafort, Jared Kushner, and Donald Trump Jr., would retain exposure for violations of state law, including banking, tax, and campaign finance violations. This outstanding state exposure would allow them to refuse to speak with federal investigators.

The second reason is more substantial. The issuance of pardons could contribute to a finding that Trump obstructed justice. There has been considerable debate about whether a president can obstruct justice by exercising his very broad constitutional authority to pardon. Alan Dershowitz argues vigorously that he cannot. Most of the rest of the legal world argues correctly that an exercise of the pardon power for a corrupt purpose, such as impeding an investigation of the president himself, constitutes obstruction of justice. Since Mueller will not indict Trump, the relevant question will be whether Trump has committed an impeachable offense. The House Judiciary Committee voted out an article of impeachment against Richard Nixon alleging that he obstructed justice by ordering that the CIA tell the FBI to shut down its Watergate investigation. Trump’s issuance of pardons to impede the FBI’s investigation of him – in addition to the mountain of other evidence of obstruction – should prove at least as impeachable.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.