Trump’s Defenders Forced To Craft Unusual Legal Theories

It has become increasingly apparent that the Trump administration has stopped even pretending to the follow the law. A corollary of that lack of pretense is the increasingly absurd legal theories coming out of the administration and its supporters in support of whatever actions the President takes and in defense against any actions that might be taken against him. As one would expect, the current Attorney General, Bill Barr, has provided his share of ridiculous legal arguments, such as the idea that there can be no obstruction if there is no underlying crime. The White House Counsel’s office has also come up with some of their own, such as the concept of “testimonial immunity”. And there is always the stable of right-wing lawyers to craft even more baseless theories in defense of Trump.

Barr has been particularly pernicious in his legal reasoning that extends well beyond his beliefs in expansionary presidential power and the so-called unitary executive, highlighted by his decision to take it upon himself to make a decision to clear Trump of obstruction of justice charges when Robert Mueller declined to make any prosecutorial judgement at all based on DOJ policy. Mueller clearly outlined his legal reasoning for not making such a judgement, citing the 1973 Office of Legal Counsel memo that prohibits the indictment of a sitting President.

On the other hand, Barr, in his initial summary of the Mueller report, claimed the Mueller’s “decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime. Over the course of the investigation, the Special Counsel’s office engaged in discussions with certain Department officials regarding many of the legal and factual matters at issue in the Special Counsel’s obstruction investigation. After reviewing the Special Counsel’s final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense”. He followed that up in his fireside chat the other day by saying, “We analyzed the law and the facts and a group of us spent a lot of time doing that and determined that both as a matter of law, many of the instances would not amount to obstruction…In other words, we didn’t agree with the legal analysis- a lot of the legal analysis in the report. It did not reflect the views of the department. It was the views of a particular lawyer or lawyers and so we applied what we thought was the right law but then we didn’t rely on that. We also looked at all the facts, tried to determine whether the government could establish all the elements and as to each of those episodes we felt that the evidence was deficient”. This statement actually directly contradicts Barr’s written statement to the Senate on May 1, where he stated, “Although we disagreed with some of the Special Counsel’s legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law, we accepted the Special Counsel’s legal framework for purposes of our analysis and evaluated the evidence as presented by the Special Counsel in reaching our conclusion”. In fact, Barr did not accept Mueller’s legal framework, he specifically overrode it.

Despite all his bluster about “analyzing the law” and “legal analysis”, Barr never provides any actual law or legal opinions to back up his decision. That sits in stark contrast to Mueller who not only specifically cites the OLC memo but also the Justice Manual regarding the standards for prosecutorial or declination decisions. It’s unusual, to say the least, to talk about differing legal views within the DOJ and then declaring one of those views the “right” interpretation without providing any legal basis for reaching such a decision other than some amorphous discussions among DOJ lawyers, but that is what Barr has done.

Moreover, Barr has enlisted Rosenstein in supporting his belief that DOJ policy actually does allow prosecutors to determine whether the President did or did not commit a crime despite their inability to indict based on the OLC memo. Since Rosenstein, and then Barr after his confirmation, were the ones overseeing the Mueller investigation, it would seem they would have an obligation to inform Mueller that their interpretation is now the DOJ policy and he should make a prosecutorial determination. In fact, as overseers of the Special Counsel, it was their duty to resolve any legal disputes between Mueller and the DOJ by informing Mueller what the DOJ policy was and instructing him to follow it, rather than allowing him to move forward under his own interpretation and then deciding that interpretation was incorrect and applying their own standards and abrogating to themselves a decision that was rightfully Mueller’s. This was an especially egregious breach for Rosenstein, who was in some ways an accomplice to one of the cases of obstruction, the firing of Comey, as this decision abrogated to himself the prosecutorial judgement about conduct in which he himself was involved.

Barr’s amorphous and unsubstantiated legal reasoning, if you can call it that, is also reflected in his decision to investigate the “spying”, as he calls it, that was instigated against the Trump campaign. Barr’s call for an investigation of the investigators is based on a blatant mischaracterization of what occurred and a feeling that “he has questions about what was going on” and “things are just not jiving”. In his fireside chat, Barr repeatedly claimed that the Russia investigation specifically targeted the Trump campaign. In fact, the counterintelligence investigation targeted three people who were fired from the Trump campaign for being closely tied to Russia and a fourth who was working as a foreign agent for Turkey. And those counterintelligence activities against all four only began after they had all left the Trump campaign. The counterintelligence investigation did not start with the Steele dossier, it began with a tip from an Australian diplomat that Russia would target the US election with hacked Clinton emails. The Steele dossier and its provenance were just a small part of the FISA warrant against Carter Page and were disclosed to the judge who authorized it. That warrant was reviewed and renewed on multiple occasions by the DOJ and the judges that okayed them.

In fact, in his Senate testimony, Barr said his concerns about the Russian investigation were based on his disbelief that intelligence operation was limited “to a single confidential informant and a FISA warrant”, striking him “as a fairly anemic effort if that was the counterintelligence effort designed to stop the threat as it’s being represented”. In other words, Barr’s rationale for starting the investigation of the counterintelligence operation was that it was not thorough enough. If anything, the fact that such a sensitive investigation was tightly compartmentalized and executed with such discretion actually points to the ability of the counterintelligence agencies to handle such investigations properly and within the law.  And yet, throughout all these mischaracterizations of what went on and his belief that the answers to the questions he has are “just not jiving”, Barr has yet to cite one law that might have been broken that would prompt an actual investigation.

While Barr offers his own determinations of law without any supporting legal opinions or citations, or simply doesn’t cite any law at all, other Trump supporters are concocting truly bizarre legal theories in order to protect the President. Trump has insisted on multiple occasions that he believes the Supreme Court will intervene to prevent him from being impeached. Alan Dershowitz has now brought forward his attempt to provide a legal framework for allowing the Court to intervene in the impeachment process or to hear an appeal from the President should he be convicted.  Dershowitz wrote “[w]ere a president to announce that he refused to accept the actions of the Senate in voting for his removal … and that he would not leave office unless the Supreme Court affirmed his removal, the people might well agree with him.” Dershowitz relies on two separate opinions from Byron White and, later, David Souter, who were reflecting on a hypothetical case where the Court might get involved if a President was impeached for things that were clearly not high crimes of misdemeanors.

Dershowitz pairs this idea of the Supreme Court as some sort of a post-impeachment conviction appellate venue with a highly restrictive view of what actually constitutes “high crimes and misdemeanors”.  Like Barr, he has an expansive view of Presidential power and believes that only an actual crime could trigger an impeachment. Simple abuse of his executive powers does not rise to an impeachable level. He quite clearly states, “A president cannot be convicted of a crime for merely exercising his constitutional authority to fire, pardon or end an investigation” and that “not all political actions that smell or look like corruption can be prosecuted criminally without Congress specifically making such conduct criminal”. He even goes so far as to state that the President could allow Russia to invade Alaska and reclaim that territory and it would not be an impeachable offense. Under Dershowitz’s theory, Congress would be hard-pressed to find any impeachable offense and, if convicted, the President could appeal to the Supreme Court that the grounds for impeachment did not rise to the level of a crime that was outside the exercise of normal presidential power. Using that theory, then, most, if not all, of the counts in Nixon’s impeachment were basically unconstitutional.

Yet the Supreme Court has ruled in a case where a judge appealed his impeachment conviction to the Court based on the fact that the Senate hearings were held by a special committee rather than the full Senate. The Court ruled that the case was nonjusticiable because impeachment was a political process and there was no judicial standard for resolving the case. In other words, the Court agreed with the prevailing constitutional view that it has no role in the impeachment process. And the idea that the Supreme Court would actually agree to essentially re-install a President after the process of Congressional impeachment seems beyond belief. But the Roberts Court has its own ideas about expanding its powers, so, like everything under Trump, nothing can be certain.

Just so we are clear, Dershowitz is advocating the President create the ultimate constitutional crisis by refusing to leave office when convicted of impeachment by the Senate and instead appeal that convictions to the Supreme Court where he has appointed at least two of the nine justices. This is what Trump is referring to when he talks about the courts not allowing his impeachment. He is not misunderstanding the process. He is referencing Dershowitz’s unique legal theory.

Now, it seems pretty clear that the present Senate will not convict Trump of impeachment anyways. But, if the President’s approach to impeachment is to basically refuse to leave office, I think we can be assured that, as Michael Cohen and others have warned, this will be his same attitude should he lose in 2020 or end his term in 2024. And there will be plenty of right-wing sycophants like Barr and Dershowitz concocting bizarre legal theories about why Trump should be able to stay in office as long as he wants.