Investigating American Presidents [3183]

Table of contents :
Professor Biography......Page 3
Course Scope......Page 5
Lecture 1— American Presidents and the Rule of Law......Page 8
The Creation of the Presidency......Page 10
Checks and Constraints on Presidential Authority......Page 11
Investigating Presidential Conduct......Page 12
Lecture 2— Presidential Investigations through History......Page 18
The Election of 1824......Page 20
The Impeachment of Andrew Johnson......Page 21
The Whiskey Ring......Page 23
The Presidential Election of 1876......Page 24
The Teapot Dome Scandal......Page 25
McGrain v. Daugherty......Page 26
Lecture 3— Separation of Powers and the Presidency......Page 28
The First Executive Investigation......Page 30
The Origin of Judicial Review......Page 31
Abuse of Judicial Review......Page 32
Enforcing Rulings......Page 33
Congressional Investigation......Page 34
Congress and President Trump......Page 36
Lecture 4— Watergate and the Special Prosecutor......Page 38
The Watergate Break-In......Page 40
The Appointment of Archibald Cox......Page 41
Myers v. United States......Page 42
Humphrey’s Executor v. United States......Page 43
Nixon’s Impending Impeachment......Page 45
Nixon’s Resignation......Page 46
Lecture 5— Rise and Fall of the Independent Counsel......Page 48
Differences between US and British Government......Page 50
The Independent Counsel Act......Page 51
Morrison v. Olson......Page 52
The End of the Independent Counsel Act......Page 53
The Special Counsel......Page 54
President Trump and Special Counsel Mueller......Page 55
New Independent Counsel Legislation......Page 56
Lecture 6— Can a Sitting President Be Indicted?......Page 58
The Indictment of Spiro Agnew......Page 60
United States v. Nixon......Page 61
Clinton v. Jones......Page 62
Arguments against Presidential Indictment......Page 63
Arguments for Presidential Indictment......Page 65
Lecture 7— Presidential Use and Abuse of Privileges......Page 68
Finding the Truth......Page 70
Attorney-Client Privilege......Page 71
Limitations on Attorney-Client Privilege......Page 72
Executive Privilege......Page 73
Limitations on Executive Privilege......Page 74
Lecture 8— Presidents, Prosecutors, and Public Opinion......Page 77
Prosecutorial Discretion......Page 78
The Investigation of Bill Clinton......Page 79
Discrediting Accusers......Page 80
Questioning Investigators’ Conduct......Page 82
Changing the Topic......Page 83
Conclusion......Page 84
Lecture 9— The Pardon Power and Its Limits......Page 86
The Pardon Power......Page 88
How the Pardon is Used......Page 89
Limitations on Pardon Power?......Page 90
Can the President Self-Pardon?......Page 92
Lecture 10— Presidential Lies and Cover-Ups......Page 96
Criteria of a Lie......Page 98
Obstruction of Justice......Page 100
Contempt of Court......Page 102
Lecture 11— The Value of Investigative Reports......Page 104
Department of Justice Policy......Page 106
Rules in Presidential Investigations......Page 107
Independent Counsel Reports......Page 108
Special Counsel Regulations......Page 110
Lecture 12— The Law and Politics of Impeachment......Page 112
Impeachment Basics......Page 114
The Impeachment of Samuel Chase......Page 115
Grounds for Impeachment......Page 117
The Politics of Impeachment......Page 118
Conclusion......Page 120
Bibliography......Page 122
Image Credits......Page 128

Citation preview

Topic History

Subtopic Modern History

Investigating American Presidents Course Guidebook Paul Rosenzweig, JD The George Washington University Law School

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Paul Rosenzweig, JD Professorial Lecturer in Law The George Washington University Law School

P

aul Rosenzweig is a Professorial Lecturer in Law at The George Washington University Law School. He earned his JD from the University of Chicago Law School and then served as a law clerk to the Honorable R. Lanier Anderson III of the United States Court of Appeals for the Eleventh Circuit. He was chosen as the 15th annual Sommerfeld Lecturer at The Judge Advocate General’s Legal Center and School and was awarded a Carnegie Fellowship at Northwestern University’s Medill School of Journalism. In his nonacademic endeavors, Mr. Rosenzweig is a senior fellow at the R Street Institute, a public policy think tank in Washington DC. He is also the founder of Red Branch Consulting PLLC, a homeland security consulting company, as well as a senior advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the US Department of Homeland Security, and he is currently a distinguished visiting fellow at the Homeland Security Studies and Analysis Institute. He is also an advisor to the American Bar Association’s Standing Committee on Law and National Security and a contributing editor of the Lawfare blog. Mr. Rosenzweig is the author of Cyber Warfare: How Conflicts in Cyberspace Are Challenging America and Changing the World, coauthor of Winning the Long War: Lessons from the Cold War for Defeating Terrorism and Preserving Freedom, and coeditor of both National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers and Whistleblowers, Leaks, and the Media: The First Amendment and National Security. Mr. Rosenzweig’s other Great Courses are Thinking about Cybersecurity: From Cyber Crime to Cyber Warfare and The Surveillance State: Big Data, Freedom, and You. ■ i

TABLE OF CONTENTS INTRODUCTION Professor Biography . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Course Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

LECTURE GUIDES Lecture 1 American Presidents and the Rule of Law . . . . . . . .

4

Lecture 2

Presidential Investigations through History . . . . . . 14

Lecture 3

Separation of Powers and the Presidency . . . . . . . 24

Lecture 4

Watergate and the Special Prosecutor . . . . . . . . . . 34

Lecture 5

Rise and Fall of the Independent Counsel . . . . . . . . 44

Lecture 6

Can a Sitting President Be Indicted? . . . . . . . . . . . 54

Lecture 7 Presidential Use and Abuse of Privileges . . . . . . . . 64 Lecture 8

Presidents, Prosecutors, and Public Opinion . . . . . . 73

Lecture 9

The Pardon Power and Its Limits . . . . . . . . . . . . . 82

Lecture 10

Presidential Lies and Cover-Ups . . . . . . . . . . . . 92

Lecture 11 The Value of Investigative Reports . . . . . . . . . . 100 Lecture 12

The Law and Politics of Impeachment . . . . . . . . 108

SUPPLEMENTARY MATERIAL Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Image Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

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INVESTIGATING

AMERICAN PRESIDENTS T

he American president is a uniquely powerful figure on the national stage—indeed, on the world stage. He or she holds sway over an executive branch whose responsibilities range from national defense to agricultural price supports and on to health, education, and tax policy. For very good reason, we have come to think of the president as the singular, preeminent figure in American political life: the “imperial president,” if you will. But, as the saying goes, power corrupts. It is not unheard of in American history for presidents to wield their significant powers in ways that are contrary to law or that call into question their fitness for office. What happens when presidents or their administrations are thought to have engaged in misconduct or the abuse of their powers? In this course, we will examine this timely and critically important question. We will look at how law, policy, and history can guide our response to presidential abuse, and we will consider whether the institutions of American democracy are robust enough to constrain a president who engages in misconduct. These issues, so salient in the past, are once again at the forefront of Americans’ minds.

Investigating American Presidents

Our course will begin with a bit of theory and a fair amount of history. We will start with an examination of the theoretical and practical grounds for presidential power and review how and why it is that the founders of the republic opted for a strong, unitary executive power. Our study will also show that the framers of the Constitution were equally concerned, however, with the lack of constraint on that power and put in place a system of checks and balances, known today as the system of separation of powers. This charged the other two branches of government, the legislative and the judicial branches, with acting to restrain executive action. Our review of history will tell us that allegations of presidential abuse are nothing new. It will also tell us, however, that sometimes complaints about presidential misconduct are really just political complaints repackaged in the language of abuse. We’ll learn that some challenges—such as the one made against our first president, George Washington—are mere political puffery. Others, like the scandals that engulfed the Grant and Harding administrations, have their roots in very real and concerning criminal activity. Our historical review will carry us up through Watergate and the Whitewater/Lewinsky investigation to present day. After we look at the history of presidential investigations, we’ll take a deep dive into the law and policy that guide investigations today and ask a simple question: Why (if at all) is the president different from every other citizen? As we will learn, presidents are, in many respects, unique. Unlike every other American, for example, there is a strong argument that they cannot be indicted for a crime while in office. We’ll look at both sides of that question and also at other open questions, including whether and how presidents can use the pardon power to frustrate investigations, and whether they have the plenary power to fire their own investigators. This course will also look at some of the unique advantages that presidents have in responding to investigations of their conduct. They have, for example, an executive privilege which can be used to shield confidential executive communications—at least some of the time. Presidents also have the power of the bully pulpit, which is the ability to command attention and vilify their prosecutors or change the topic to whatever suits them better.

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Table of Contents

We will close our examination with two aspects of presidential investigation that are unique to presidents, but perhaps to their disadvantage. We will see how for a president, unlike for any other citizen, the norm is for public disclosure of everything the investigator learns, even if it isn’t criminal, but merely embarrassing. And then, of course the president is subject to public impeachment and removal from office. In the end, this course will teach you about American democracy. In polarized political times, where everyone’s opinion seems bottomed on political advantage, the guardrails and norms of democratic behavior are under stress. It is essential, therefore, that any consideration of presidential conduct and misconduct is grounded in a firm understanding of the history of our nation, the policies that guide our consideration of ambiguous issues, and the law that binds us all. From that baseline, perhaps we can reaffirm a commitment to the rule of law and the power of democratic institutions. ■

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1

AMERICAN PRESIDENTS AND THE RULE OF LAW Lecture 1

S

ince the founding of the United States, the nation has developed systems for the restraint of presidential power, and time and again they have been a bulwark for the nation. The structure of the government gives America the architecture for how to deal with allegations of presidential misconduct. The idea behind this course is that the investigation of presidential misconduct can and should be guided by history, law, and policy. This lecture will examine the nature and extent of presidential power.

Investigating American Presidents

The Creation of the Presidency When the Constitution was written, its drafters made the choice to create a unitary executive, where all of the executive power of the nation was concentrated in one person’s hands. This choice was made in reaction to the weakness of the Articles of Confederation, which did not establish an independent chief executive. Under the Articles, the Continental Congress exercised executive power, appointing the secretaries of the executive departments and coming to dominate them. The result was an executive branch that was generally acknowledged to be slow to make decisions and confused in its direction. It was thought that a single, unified executive would be quicker and more responsive as well as more accountable and responsible. And so, the presidency was created to serve as the chief executive of the nation, with the responsibility to make sure that its laws were faithfully executed. The president was given the power of nomination to the courts and served as commander in chief of the military. Initially, this significant power was greater in theory than it was in practice. The federal government itself was quite small at the outset, and the president had little if any staff that directly reported to him. America’s first cabinet, for example, had only six members: President George Washington, Vice President John Adams, Secretary of State Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, Secretary of War Henry Knox, and Attorney General Edmund Randolph. Add in a number of staff that could be counted on two hands, and that was the entirety of the federal executive branch.

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American Presidents and the Rule of Law

Lecture 1

Checks and Constraints on Presidential Authority The very structure of the federal government serves as a check on presidential authority. Each of the three branches limits the others’ power and acts to restrain abuse. Legislative The US government is made up power to pass statutes is of three branches: executive, checked by presidential veto authority, presidential power legislative, and judicial. This to initiate new programs is three-part architecture has come limited by Congress’s ability to to be known for its separation of withhold funding, the judicial powers and the way that each branch may review actions of branch acts as a check and either of the other branches for balance on the others. constitutionality, and so on. As with any carefully balanced system, the relative strength and power of each part of the system waxes and wanes over time. In the immediate aftermath of the Civil War, congressional power was ascendant, and some feared that the president had become a mere figurehead. But that state of affairs did not last. Beginning with the economic disruption of the Great Depression and the centralization of authority necessitated by World War II, we now think that the pendulum has swung more toward empowering the president. Consider that today the president’s staff in the Executive Office of the President exceeds a thousand individuals, many of whom are loyal to the individual who serves as president rather than to the institution. Executive advisory Congressional inaction, bodies like the National Security Council combined with the and the Office of Management and security pressures of a Budget have grown to allow presidents post-9/11 world, have to exert ever greater control over the further expanded the executive branch. And presidents have national security and asserted powers that seem to have gone surveillance authority beyond original conceptions, such as of the executive branch. the power to engage in military action without congressional approval.

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Investigating American Presidents

However, this expansion of presidential authority has not gone completely unchecked. There are institutional controls, such as the Congressional Budget Office, intended as a counterweight to the Office of Management and Budget. The Ethics in Government Act created In many ways, the presidency is independent counsels and simply too big a job for any one aut hori z ed independent person to handle, and the result investigations of presidential is that presidents sometimes activity. Add to this a growth seem to have much less power in whistleblowers, a  larger than we think they do. bureaucracy resistant to presidential direction, and the establishment of independent federal agencies whose leadership is insulated from the president, and it is no wonder that some perceive a diminution of the president’s power. These are practical constraints, but there are legal constraints on presidential power that are a critical element of democratic government. When Congress restricts the funding of certain programs or when the judicial branch declares an immigration policy unconstitutional, these judgments are often subject to question. But they are a valuable check on authority, allowing democratic society to enable executive action while also constraining it. In many ways, the empowerment of executive action within the bounds of law is the fundamental question of a democracy. How we stack up in that regard is a measure of our success or failure.

Investigating Presidential Conduct The power to investigate a sitting president is the power to limit his or her authority and thereby rein in the potential for abuse. It is also the power to restrict the president’s legitimate exercise of authority for illegitimate reasons. And therein lies a fundamental paradox: Democratic nations understand the need for executive effectiveness and want security, but they also want transparency, accountability, and some control over executive behavior.

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American Presidents and the Rule of Law

Lecture 1

In many ways, the investigation of a president isn’t very different from that of any other person. When investigating a president, Congress will convene hearings, hold press conferences, subpoena documents, and propose legislation. It will task the Government Accountability Office with investigating and ask inspectors general to issue reports. Meanwhile, a prosecutor will conduct interviews, subpoena more documents, serve search warrants, convene a grand jury, and, if appropriate, ask the grand jury to return an indictment on criminal charges. There may be plea agreements or trials and then convictions, appeals, and a jail sentence.

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Investigating American Presidents

In some ways, a president whose conduct is under investigation has some natural advantages. To begin with, a president under investigation has opportunities to defend him- or herself or advance his or her position that are simply not available to the average American. Most subjects of a criminal investigation do not, for example, employ a press secretary and a communications office. The president’s communications also have tremendous reach; a presidential press conference automatically draws attendance by all major domestic media outlets as well as many foreign outlets. The president can hold a public rally without difficulty, and it will almost invariably be well attended. This capability gives any president an unmatched capacity to fight back, either by distracting attention away from his or her problems or by using the bully pulpit to set the terms of public debate about his or her conduct. This sort of megaphone to control the debate is a power unequaled in any other context by any other criminal subject. The president also has certain formal powers that are not available to the typical criminal defendant. Under the current structure of the executive branch, the special counsel who is designated to investigate a president works for the Department of Justice and is responsible to and under authority of that very same president. It is a unique circumstance when the subject of an investigation is also the boss of the person or group charged with conducting the investigation. The president can, in this arrangement, exercise formal controls over his or her investigators, although the investigators are not entirely without means of fighting back. Exercising such control may not work out well for the president politically, but as a matter of law, this is a significant authority. Likewise, the president has a nearly unrestricted power to issue a pardon for any federal crimes. While the pardon power is not absolute, it is a tool that a president can use to protect his or her friends and allies. Some even argue that the president can pardon him- or herself. 10

American Presidents and the Rule of Law

Lecture 1

Donald Trump speaking with supporters at a campaign rally at the Phoenix Convention Center in Phoenix, Arizona

The president also has some unique privileges that only he or she can wield—for example, testimonial privileges that allow the president to limit the testimony of executive officials. Grounded in the need for candid presidential advice, the executive privilege allows the government to refuse to turn over information about internal conversations. Typically employed to oppose a congressional investigation, the privilege has also been used to delay and short-circuit criminal investigations. Some people argue that the president is simply unindictable while in office and therefore immune from criminal prosecution. However, this issue remains undecided. The presidency also has a number of structural weaknesses with respect to an investigation into presidential action. These are aspects of the job that actually put the president in a much worse position than that of a more typical subject of criminal investigation.

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Investigating American Presidents

Consider, for example, the relatively simple question of whether or not the president might agree to be interviewed by the investigators or to testify before a grand jury. In the normal course of a typical investigation, the decision whether or not to agree to an interview is one for the subject of the investigation to consider with the advice of his or her attorney. In most cases, the subject will conclude that being interviewed carries more risk than potential benefit and decline the invitation. The reality of this trade-off is part of what lies behind the Fifth Amendment privilege against self-incrimination. We don’t want a criminal subject to be put to the cruel trilemma of having to choose between telling the truth (and possibly incriminating him- or herself), lying (and thus being subject to a perjury charge), or refusing to testify (and then being held in contempt for the refusal). A president does not realistically have this option. If a president declines to testify, it will almost certainly result in public suspicion and condemnation. An outright refusal to talk to the investigator will be taken by many as a sign of political weakness; others will see it as a tacit admission of guilt or misconduct. It’s true that a president can haggle with his or her investigators over the terms of an interview and thereby both exert a degree of control over it and delay it for an extended period of time. Nevertheless, the fact remains that the president’s fate is often tied to factors that are outside of the sphere of criminal law. A president may also lose Congress’s support for reasons that are only tangentially related to his or her actual guilt or innocence. Presidents are also burdened with public opinion. No matter what the result of an investigation, presidents have to live with the legacy. As a class of persons, presidents are often seen as self-regarding. A tarnished legacy is a significant cost that other criminal defendants who are found not guilty do not have to pay.

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American Presidents and the Rule of Law

Lecture 1

Suggested Reading Editorial Board, “The President Is Not Above the Law.” Lorant, The Glorious Burden. Schlesinger, The Imperial Presidency.

Questions to Consider 1 One thesis of this course is that the rule of law matters, but that politics seems to matter more. Is that inevitable? Is it a good thing? If it is not, how could we strengthen the rule of law without it becoming a straightjacket? 2 Another theme of the course is that presidents are different from everyone else. We explained a bit about why that is so, as a practical matter. Should that be the case? Is it hard to be a leader if you are “just like everyone else?”

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2

2

PRESIDENTIAL INVESTIGATIONS THROUGH HISTORY Lecture 2

A

lthough the modern era contains some of America’s greatest inquests into presidential power— including the investigation and resignation of Richard Nixon and the impeachment of Bill Clinton—it would be wrong to assume that most of the nation’s early years were bereft of presidential crisis and conflict. In fact, the nearly 200 years from the founding of the United States to the Watergate crisis were brimming with allegations of presidential misconduct. This lecture will delve into some of the most significant early investigations of presidential abuse of power. While some of these investigations seem to have started merely as political disputes, they have had substantial, long-term effects.

Investigating American Presidents

Charges against Washington The first challenge to a president’s conduct was one of the least well-founded, but also one of the most well-known. It pitted our first president, George Washington, against his own secretary of state, Thomas Jefferson. Jefferson The Jay Treaty resolved thought the Jay Treaty with England issues left over from the was not only unwise, but also treasonous. Revolutionary War. Jefferson believed that Washington had been seduced by the allure of what he called “harlot England,” and he argued that Washington had committed treason in negotiating the Jay Treaty. But Jefferson was biased; he opposed any negotiation with England. Jefferson’s charges never went anywhere, but they show that from the very beginning, presidents were under scrutiny for their conduct and alleged misconduct while in office.

The Election of 1824

Thomas Jefferson

In the presidential election of 1824, four major candidates ran for office and received votes. No candidate won an electoral majority or a majority of the popular vote, but Andrew Jackson, the principal opponent of John Quincy Adams, won the greatest number of popular votes and had the lead in the Electoral College. With no candidate garnering a majority of electors, the choice was up to the House of Representatives. Under the rules at that time, only the top three electoral vote–getters were eligible to participate in the runoff in the House, where each state delegation had a single vote. Henry Clay, who came in fourth place, was therefore out of the running. Clay, however, was also the speaker of the House of Representatives, and he detested Jackson. Under Clay’s influence, the House selected Adams, and then Adams named Clay as his secretary of state. 16

Presidential Investigations through History

Lecture 2

Because the House results were different from those of the general election—where Jackson had won both a plurality of the Electoral College and of the popular vote—there was a widespread perception that Adams had “stolen” the election. Taken with the fact that Adams rewarded Clay with an appointment to the cabinet, it is easy to see why many Jackson supporters charged Adams with having entered into a “corrupt bargain” with Clay. The charge was legally indistinct, and, like the charges of treason against Washington, it never amounted to more than a talking point for Adams’s opponents. But the allegations did have a strong political effect: They united Jackson’s supporters, and he was elected president in 1828.

In some ways, the election of 1824 was similar to the 2000 presidential election, in which supporters of former vice president Al Gore thought that George W. Bush’s electoral victory was illegitimate.

The Impeachment of Andrew Johnson Andrew Johnson succeeded Abraham Lincoln after Lincoln was assassinated. Despite his pro-Union tendencies, Johnson did everything in his power to frustrate Congress’s plans for Reconstruction—that is, their plan to rebuild the South. He vetoed both the Civil Rights Act and the 14th Amendment, which granted ex-slaves the rights of other citizens to equal protection under the law. Republicans in Congress wanted to rein in Johnson and keep in place cabinet members who were loyal to Lincoln and the idea of Reconstruction, so they passed the Tenure of Office Act, which prohibited the president from firing anyone in his administration without Senate approval.

Andrew Johnson (1808–1875) was a former slave-owner from Tennessee. 17

Investigating American Presidents

In February 1868, Johnson fired the secretary of war, Edwin Stanton, who was committed to southern Reconstruction. Johnson’s firing of Stanton set up a direct confrontation with Congress, because it clearly violated the Tenure of Office Act. The House of Representatives voted overwhelmingly to impeach Johnson. Following constitutional requirements, the Senate spent much of April 1868 holding an impeachment trial. In May, however, the Senate failed to convict him. The final vote was 35 votes of guilty and 19 of not guilty, which was one vote short of the two-thirds majority that the Constitution required. Johnson was acquitted and served out the remainder of his term.

The Senate as a court of impeachment for the trial of Andrew Johnson 18

Presidential Investigations through History

Lecture 2

The Whiskey Ring During the presidency of Ulysses S. Grant, there was a significant excise tax on distilled spirits. Distillers of whiskey had to pay 70 cents for each gallon produced. The Whiskey Ring was a scheme in which the distillers paid a bribe of 35 cents per gallon to various officials within the revenue service, who then issued the necessary tax stamps. In effect, the distillers were able to reduce their tax bill by half and pocket the remainder as profit.

Ulysses S. Grant

President Grant appointed a special prosecutor, John Henderson, to investigate the Whiskey Ring; this was the first time a president had appointed a special prosecutor. Henderson’s investigation began to implicate people close to Grant— including Grant’s private secretary, Nobody is quite sure how Orville Babcock—and Grant tried much money the Whiskey to stop the investigation by putting Ring scheme defrauded the pressure on Henderson. When that United States of, but when failed, Grant fired Henderson. Under it was broken, the resulting public pressure, Grant wound up prosecutions recovered appointing a new special prosecutor more than $3 million in who continued with the investigation unpaid taxes, which is and prosecution. roughly equivalent to $1

During the trial, Grant testified in billion today. support of Babcock, making him the first sitting president to voluntarily testify in a criminal case. Babcock was eventually acquitted, but his acquittal wasn’t enough to save the reputation of Grant’s presidency. The widespread corruption revealed in the investigation created the perception that the Republican Party was a cesspool of corruption. Even though Grant himself was never seen as personally corrupt, his leadership was deeply questioned. 19

Investigating American Presidents

The Presidential Election of 1876 For the election of 1876, the Republicans—then the party of civil rights and Reconstruction in the South—nominated Rutherford B. Hayes. The Democrats—associated at the time with southern desire to maintain white rule—nominated Samuel Tilden, a New York prosecutor who had brought down the Boss Tweed machine in New York City.

President Grant had been planning to run for a third term, even though the economy was weak and his administration was plagued by scandal. The House of Representatives thought ill of that notion and passed a nonbinding resolution that declared the informal two-term limit on the Presidency to be a bulwark against dictatorship. George Washington had decided not to seek a third term, and now, at the urging of the House, Grant likewise retired.

Tilden won the popular vote with a bare majority—50.92 percent of the votes cast—and garnered 184 electoral votes, but he needed 185 for victory. Hayes had 165 electoral votes, and 20 votes, mostly from the deep South, were in dispute. The details of the dispute are complex and ranged across issues of voter intimidation, ballot alteration, and outright fraud. Faced with a crisis in which no candidate could reasonably be declared the winner, Congress rushed to pass a law creating the 15-member Electoral Commission to hear evidence and make a decision. In the end, that commission voted 8–7 to award the 20 disputed ballots to Hayes, who thereby won the Electoral College with 185 votes, despite not winning the majority of the popular vote. It is worth noting, however, that the best historical estimate is that Hayes would have also won the popular vote but for the voter suppression efforts of the Democratic Party. 20

The Democratic Party resorted to abusive tactics to suppress the vote of blacks and white Republicans. Paramilitary groups that went by names like the Red Shirts and the White League disrupted meetings and resorted to intimidation and threats of violence.

Presidential Investigations through History

Lecture 2

In order to secure Democratic acceptance of the result, however, the Republican party was forced to make concessions, known today as the Compromise of 1877. Before he left office, President Grant removed federal troops from several southern states, and Hayes immediately removed the troops from the last two southern states after the election. Reconstruction was dead. The promise of equality took a back seat until the Civil Rights era in the 1960s, in large part because of the corruption of Grant’s administration and the Whiskey Ring investigation.

Rutherford B. Hayes

The Teapot Dome Scandal In the early 1900s, the US Navy began converting from coal-fired naval vessels to ships powered by oil, making oil an important strategic commodity. Teapot Dome was a piece of land in Wyoming that had a wealth of oil and gas reserves; it was worth a great deal of money, so it was designated as part of the naval strategic petroleum reserve. In 1921, President Warren G. Harding’s secretary of the interior, Albert Fall, began maneuvering to have the Teapot Dome lands transferred from the Navy to his own department. When the transfer was complete, Fall leased the lands in sweetheart deals to Harry Sinclair and Edward Doheny. Although the no-bid contracts themselves were perfectly lawful, the bribes paid to Fall were not. All told, he received roughly $500,000 in gifts, a sum worth approximately $7 million in contemporary value.

Albert Fall

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Investigating American Presidents

When the scandal broke, the Harding administration declined to investigate, in part because cabinet members such as Fall were implicated. The task fell to Congress, where Senators Robert La Follette and Thomas Walsh led the investigation. Walsh spent more than two years trying to trace the bribes. Though Fall’s sudden increase in wealth was highly suspicious, he hid the money in investments and his cattle ranch, through what today might be called laundering. However, one payment from Doheny was inadequately concealed, and Walsh discovered it. It was Fall’s downfall and the unravelling of the scheme. The Supreme Court voided the Teapot Dome leases and Fall went to jail for a year. He was the first former cabinet member to spend time in prison for official misconduct.

McGrain v. Daugherty Because the Harding administration didn’t conduct a thorough investigation of the Teapot Dome scandal, the attorney general at the time, Harry Daugherty, declined to participate in the investigation and eventually resigned—acts that seemed suspicious to outside observers and led to speculation that Daugherty had also been involved in the sweetheart deals, or perhaps in their cover-up. Congress expanded its investigation to include an Harry Daugherty inquiry into Harry Daugherty’s conduct. Daugherty’s brother Mally was called before the Senate committee to testify and produce documents. Mally refused to honor the Senate’s demand, and he was charged with contempt, convicted, and sentenced to prison. In his appeal, Mally Daugherty challenged the authority of Congress to demand documents from him and to arrest him on a charge of contempt. The dispute went all the way to the Supreme Court. In the case McGrain v. Daugherty, the court upheld the power of the Congress to compel the presence of witnesses at hearings. 22

Presidential Investigations through History

Lecture 2

Thus, McGrain v. Daugherty stands for a very important and fundamental provision: that Congress has an independent and effective authority to conduct investigations of the executive branch. This case is, in many ways, at the very core of our contemporary system of oversight by the legislative branch, because without that formal power, threats from Congress would be mostly unenforceable and without effect.

Suggested Reading Chernow, Grant. Cherny, “Graft and Oil: How Teapot Dome Became the Greatest Political Scandal of Its Time.” McGrain v. Daugherty, 273 US 135 (1927). Rehnquist, Centennial Crisis.

Questions to Consider 1 Some investigations of presidents are overtly political; others are grounded more in grave misconduct. Is there an objective standard to distinguish the two? 2 Do unintended consequences matter? Or should we conduct investigations of alleged abuse in the moment without regard to the possibility of unforeseen disruptions?

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3

SEPARATION OF POWERS AND THE PRESIDENCY Lecture 3

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ince the US was founded, much of the restraint on executive authority has been exercised not within the executive itself, but by the other two branches of government: the legislature and the judiciary. This lecture will discuss separation of powers and oversight of the executive. The judiciary is only modestly effective; courts have the power to declare what the law is, but because they have no independent enforcement power, they are less effective than Congress. Congress can bring to light the need for change, and Congress alone has the singular power of removing the chief executive. However, whether or not Congress reaches that point probably depends both on its composition and the circumstances.

Investigating American Presidents

The First Executive Investigation In September 1791, during George Washington’s first term as president, General Arthur St. Clair led a force of 1,400 American soldiers into the Ohio territory to construct new forts. On November 3, St. Clair’s troops made camp for the night but didn’t bother to build a defensive perimeter. Indians attacked in the middle of the night, and St. Clair’s forces, poorly trained and without any Arthur St. Clair earthworks to hide behind, were badly mauled. St. Clair lost 650 men, and another 270 were wounded—well over half of his force. It was one of the most significant Indian victories over American forces in the history of the nation. When Congress convened in Washington the next year, some of the members of the House of Representatives pushed for an investigation of the disaster. The very request was controversial, both in the House and in the executive branch; at this stage in the nation’s history, much of our philosophy of governance was still being worked out in practice. In the House, some of the members believed that under the separation of powers doctrine, only the executive branch could review its own conduct. Others, however, took the contrary view: They saw the separation of powers not as a prohibition on one branch examining the conduct of another, but as a means of checking the growth of power in any branch. In the end, this latter view of separation of powers won out, and Congress launched its first investigation of the executive. When Congress asked the War Department for records, however, it caused a fair amount of consternation in the cabinet. Nobody was sure whether or not the House had the authority to make such a request for information, or whether the Washington administration had a duty to answer. 26

Separation of Powers and the Presidency

Lecture 3

Ultimately, Washington set a precedent and agreed to provide the requested information, though he reserved the right to hold back any information he thought might endanger public safety. In effect, Washington asserted for the first time what has come to be known as executive privilege.

The Origin of Judicial Review As one of his last acts as president, John Adams decided to make William Marbury a justice of the peace in the District of Columbia. In the haste of the transition, Marbury’s commission—the actual piece of paper with Adams’s signature on it that made him a judge—was not delivered. Adams was replaced by Jefferson, whose secretary of state, James Madison, refused to deliver the commission. Marbury sued in the Supreme Court, asking the justices to issue a writ of mandamus ordering Madison to deliver his commission. A writ of mandamus mandates that lower courts and government officials act in a particular manner. The Supreme Court had been given the power of mandamus in the Judiciary Act of 1789. In his ruling in Marbury v. Madison, Chief Justice John Marshall said that withholding the commission was unlawful, but he also took the opportunity to make the much larger claim that Section 13 of the Judiciary Act of 1789 (the section that granted mandamus power to the Supreme Court) was unconstitutional. He reasoned that the Constitution itself established the original powers of the Supreme Court and that the mandamus power in Section 13 expanded those powers— something that the Constitution did not authorize Congress to do.

Chief Justice John Marshall 27

Investigating American Presidents

And so, though Marbury didn’t get his commission, the Supreme Court won a victory. By declining to accept a power granted to it by Congress, the Court granted to itself the power and authority to say that Congress had acted beyond the scope of its power. And by that logic, the same would be true of the Court’s power over the executive branch.

Abuse of Judicial Review Although the court system is often viewed as being above politics, it has proven to be at least partially subject to the winds of political fortune. Marbury was the first case in The Missouri Compromise (1820) which the Court struck down an act of Congress. The Court allowed Missouri to join the waited more than 50 years to United States as a slave state strike down another law— along with Maine as a free state. the Missouri Compromise, This upheld the balance of the intended to avert a  civil North and South in the Senate. war over slavery. In its 1857 The Compromise also stated decision in the Dred Scott that except for Missouri, slavery v. Sandford case, the Court would be illegal for the rest of the rather infamously ruled that Louisiana Purchase north of the negroes could not be citizens 36°30′ parallel. of the US, and thus those who were not yet free couldn’t sue for their freedom. By invalidating a key part of the Compromise, the Court was thought to have been acting politically and is remembered as having contributed to the outbreak of the Civil War. Dred Scott is not the only time the Court acted politically. In the case of Fred Korematsu, his detention in an internment camp at the outbreak of World War II (along with other Americans of Japanese descent) was approved by both Congress and the Supreme Court, essentially because of a collective hysteria about threats tinged with a healthy dose of racism.

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Separation of Powers and the Presidency

Lecture 3

Enforcing Rulings When the Courts say that the executive must obey a certain ruling, it is not obvious how they can compel the executive to abide by their decision. We assume that the executive will, but that assumption has not always been accurate. In the early 1800s, Georgia was bent on ousting the Cherokee from their land. Samuel Worcester, a missionary, lived among the Cherokee and encouraged their resistance. In response, Georgia passed a law that required white people living on Indian land to have state permission. Worcester obtained no such permission and was removed and imprisoned. When his case got to the Supreme Court, the Court said that the Indians were a sovereign nation, and that the Georgia law conflicted with a US–Cherokee treaty. The Court therefore struck the law down.

Samuel Worcester

President Andrew Jackson, however, had championed the Indian Removal Act, a law that gave the Federal government power to abrogate prior treaties and forcibly move the Indians westward. When Jackson read the Court’s decision in Worcester v. Georgia, he simply rejected it. With the federal government ignoring the decision, Worcester remained in jail and Georgia militia continued to harass the Cherokee. In the end, the Cherokee signed a new treaty under duress, and the US Army forcibly marched 15,000 of them westward on what has come to be known as the Trail of Tears. Over 4,000 lost their lives. Besides being a tragedy for the Cherokee, this story shows how easily bedrock protective norms of governance can erode.

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Investigating American Presidents

Congressional Investigation In 1974, Seymour Hersh, an investigative reporter for The New York Times, published details of several CIA programs, exposing activities ranging from covert efforts to subvert foreign governments to intelligence activities within the United States aimed at political opponents of the executive branch. These revelations led the House and Senate to independently charter two select committees responsible for thoroughly examining how America’s intelligence and law enforcement communities had conducted themselves. Congressman Otis Pike chaired the House committee, and Senator Frank Church chaired the parallel committee in the Senate. Over the course of the next two years, these panels worked at a frenetic pace; the results were astonishing and shocking. Perhaps the most infamous program of the era was COINTELPRO, conducted by the FBI. Its purpose was to surveil, infiltrate, and disrupt domestic political organizations that were thought to be un-American. The name COINTELPRO was short for Counterintelligence Program. Groups under COINTELPRO scrutiny included Students for a Democratic Society, the National Lawyers Guild, and members of the women’s rights movement. Among the individuals targeted for surveillance were Dr. Martin Luther King Jr., authors David Halberstam and Ernest Hemingway, and the actress Jean Seberg, who provided financial support to the Black Panther party.

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Separation of Powers and the Presidency

Lecture 3

COINTELPRO targeted various communist and socialist organizations, groups associated with the civil rights movement, antiwar groups, and other liberal organizations. A small portion of the scrutiny was directed at white hate groups such as the Ku Klux Klan. There was real value in the congressional investigations conducted by the Pike and Church committees. Through their examination, they exposed an unlawful and unregulated system of intelligence and law enforcement activity. These committees put in place a new system of oversight and control, one that continues to operate to this day, and one that reflects an effort by democratic institutions to enable intelligence and law enforcement activities within the bounds of law.

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Investigating American Presidents

The Judiciary and President Trump The normal relationship between the judiciary and the executive is marked by oversight married to deference. Although the courts will prohibit the executive from acting, they more often give the government room to act, so long as there is some rational basis for its decisions. This is especially true in areas of the law like national security or immigration. And yet even in these areas, modern-day American courts have expressed significant skepticism about President Trump’s exercise of authority. The initial versions of his executive orders regulating travel from Muslim nations were struck down, and the final version was approved by only the barest majority in the Supreme Court. Meanwhile, his announced policy to resume the deportation of children illegally present in the US has been stopped by judicial action, and his policy of separating children from parents at the border has likewise been enjoined.

Congress and President Trump By contrast, many see Congress as less engaged in oversight of the executive than it has been in years past, particularly in the majority-Republican House of Representatives. In early 2017, the House Intelligence Committee started an investigation into Russian meddling in the 2016 election—the election that put Trump in office—to produce a definitive, bipartisan report on the subject. By any objective measure, however, the investigation has not been bipartisan. Over the objections of committee Democrats as well as the Justice Department and the FBI, Chairman Devin Nunes released a memorandum alleging a conspiracy against the president. Then the committee closed its investigation altogether. Devin Nunes 32

Separation of Powers and the Presidency

More problematically, the Committee’s Republicans also determined—contrary to the official consensus of the American intelligence community—that the Russian government had not even been seeking to help elect President Trump. The House committee’s partisan conclusions seem to many to be more politics than oversight. When Congress abdicates oversight of presidents on a partisan basis, the doctrine of separation of powers suffers.

Lecture 3

Follow ing the H o us e Intelligence Commit tee’s investigation, the Senate Intelligence Committee issued a bipartisan report that agreed with the intelligence community and affirmatively concluded that the best evidence suppor ted the finding that President Putin had personally authorized the election influence campaign.

Suggested Reading Dred Scott v. Sandford, 60 US 393 (1857). Kriner, Investigating the President. Marbury v. Madison, 5 US 137 (1803). Worcester v. Georgia, 31 US 515 (1832).

Questions to Consider 1 It is clear that congressional oversight is less effective these days. What is the cause of this increased partisanship and what can we do about it? 2 More than 200 years ago, the judiciary gave itself the power to overrule the executive. Do we still think that is a good thing?

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4

WATERGATE AND THE SPECIAL PROSECUTOR Lecture 4

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residential control of executive personnel is the generally accepted legal rule. This means that during the Watergate investigation, President Nixon enjoyed the advantage of being able to fire the special prosecutor who was investigating him. This lecture will discuss the Watergate scandal and the role that the special prosecutor played in it. How do we ensure that those who are responsible for leading the nation are not a threat to the citizens of the very union they are bound to protect? In an independent prosecutor, our nation hoped it had found the answer.

Investigating American Presidents

The Watergate Break-In On the night of June 17, 1972, five burglars broke into the headquarters of the Democratic National Committee (DNC), located in the Watergate complex in Washington DC. This was actually the second time the burglars had entered the DNC offices. The first time, they went in to take photographs of campaign documents and to install wiretaps to monitor political phone calls. But the wiretaps had failed, so the June break-in was to repair them. This time, however, the five burglars were caught in the act by a security guard and arrested. Initially, the burglary seemed of little importance, but the FBI’s investigation soon found a connection between the burglars and President Nixon’s Committee for the Re-Election of the President. The consequences of their arrest brought down a president, and the legal and practical implications of the burglary still resonate in our national consciousness.

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President Richard Nixon (1913–1994) was the first US president to resign from office.

Watergate and the Special Prosecutor

Lecture 4

Five months after the break-in, in November 1972, Nixon was reelected in a landslide. In January 1973, the five burglars were convicted of conspiracy and burglary. Then the investigation spun out of control. One of the burglars wrote to the presiding judge and alleged that there had been a high-level cover up by more senior officials. He also alleged that witnesses had perjured themselves and that the burglars had been pressured to maintain their silence. A short while later the deputy director of the president’s reelection committee admitted to investigators that he had, in fact, perjured himself, and he implicated two top Nixon confidants in the scheme: John Dean, the chief lawyer in the White House, and John Mitchell, who had been Nixon’s attorney general until he resigned in 1972 to direct the Committee to Re-Elect the President.

The Appointment of Archibald Cox

John Mitchell

In late April 1973, Nixon fired Dean and asked for the resignations of two other aides implicated in the cover-up, H.R. Haldeman and John Ehrlichman. Nixon also asked for the resignation of the attorney general, Richard Kleindienst, who was a close personal friend. Nixon appointed Elliot Richardson as the new attorney general, in part because of Richardson’s sterling reputation and his lack of a personal connection to Nixon. In addition, Nixon gave Richardson the authority to appoint a special prosecutor to investigate Watergate, independent of regular DOJ controls. Richardson appointed Archibald Cox to that position. Cox struck a hard bargain with Richardson on the scope of his investigation. In addition to investigating the Watergate break-in and cover-up, Cox was given the authority to investigate “all offenses arising out of the 1972 election,” including the president and his staff and appointments. 37

Investigating American Presidents

Cox was also given the sole discretion to decide whether he would consult with the attorney general on any matter being investigated. Perhaps most importantly, Cox secured a promise that Richardson would only dismiss him for “extraordinary improprieties.” Several months later, a former White House deputy chief of staff revealed the existence of a taping system in the Oval Office. Cox demanded the tapes, but Nixon would not release them, citing his executive privilege. When Cox persisted, Nixon ordered Cox to drop the subpoena, but Cox refused. This was the standoff that tested the authority of the president over his own inquisitor. The nation was shocked and riveted by the drama: A vital legal precedent for our democracy was at stake.

Archibald Cox (1912–2004) was a Democrat who had been the solicitor general under President John F. Kennedy.

Before we continue the discussion of the Watergate scandal, we need to examine two Supreme Court cases that deal with the president’s removal authority: Myers v. United States and Humphrey’s Executor v. United States.

Myers v. United States In the 1926 Supreme Court case Myers v. United States, Frank Myers was the postmaster in Portland, Oregon. At the time of this suit, a provision of law said that postmasters could be appointed to and removed from office only by and with the advice and consent of the Senate. The president, Woodrow Wilson, removed Myers from office without consulting the Senate, and Myers sued, saying his removal was illegal.

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Watergate and the Special Prosecutor

Lecture 4

Noting that the executive staff was, in effect, an extension of the president’s own authority, the Court concluded that presidents had the exclusive power to remove executive officers. In other words, the Court held that the statute limiting the president’s removal authority was unconstitutional—the president could remove executive officials as he wished and he did not need the approval or authority of anyone else to do so. This decision was not obvious. Justice Oliver Wendell Holmes observed in dissent that the position of postmaster wasn’t required by the Constitution; it was created by an act of Congress. So if Congress could create or eliminate the position at will, why, Holmes asked, couldn’t Congress also put a condition on how the position was to be filled and how a postmaster was to be removed? Justice James Clark McReynolds asked an even more fundamental question: Given the Constitution’s focus on the separation of powers and limited government, how could the Court give the president the “illimitable power” to fire every appointed official in the entire government? It certainly seems a reasonable question to ask.

Humphrey’s Executor v. United States William Humphrey was a commissioner of the Federal Trade Commission (FTC) at the time when President Franklin Delano Roosevelt was attempting to implement the New Deal program. Originally appointed by Calvin Coolidge and then reappointed by Herbert Hoover, Humphrey was a Republican who Roosevelt thought was obstructing the implementation of his programs. Roosevelt asked Humphrey to resign twice, and twice Humphrey refused. And so, Roosevelt fired him.

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Investigating American Presidents

Humphrey sued for his job back. He died while the suit was pending, so the case, Humphrey’s Executor v. United States, was continued by his estate. At the time he was fired, the Federal Trade Commission Act limited the reasons that a commissioner could be fired. It said that a president could dismiss an FTC commissioner only for “inefficiency, neglect of duty, or malfeasance in office.” Everyone acknowledged that President Roosevelt’s decision to fire Humphrey was not about any of these; it was purely about political differences. After Myers, one might have expected Humphrey’s suit to be unsuccessful. But the Court distinguished the Myers case, saying that Myers was purely an executive official who served at the pleasure of the president. By contrast, according to the Court, the FTC had powers of adjudication that made it a quasi-legislative body. For those types of institutions, the Court said that Congress could set conditions under which its members could or could not be removed.

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Watergate and the Special Prosecutor

Lecture 4

The Saturday Night Massacre As a result of Cox refusing to withdraw his subpoenas, on October 20, 1973, in an event that has come to be known as the Saturday Night Massacre, Nixon ordered his attorney general Elliot Richardson to fire Cox. Richardson refused and resigned in protest. Though Nixon’s order to fire Cox was perfectly legal, it violated Richardson’s promise that Cox would only be fired for “extraordinary improprieties,” so Nixon accepted Richardson’s resignation. Nixon then turned to deputy attorney general Elliot Richardson William Ruckelshaus. Ruckelshaus had not made any commitment to Cox, so he was duty bound to carry out the president’s order. However, Ruckelshaus also refused, and when he attempted to resign, Nixon fired him instead. The third ranking DOJ official, solicitor general Robert Bork, finally did the deed and issued the order. Although lawful, Nixon’s firing of Cox didn’t produce the result he had hoped for. The political pressure was so great that in the end, he was forced to appoint Leon Jaworski as Cox’s replacement. And Jaworksi was given even stronger protections for his independence than Cox had been given.

Nixon’s Impending Impeachment Following a policy of the Department of Justice, Jaworski named Nixon as an unindicted coconspirator and did not seek his indictment. This was, in part, because of a legal dispute over whether a president could be indicted while in office. So the final decision of Nixon’s fate rested with Congress.

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Investigating American Presidents

The Senate investigation proved to be remarkably independent and forthright, showing how Congressional oversight can be of value when Congress rouses itself to action. On January 6, 1973, Senate Majority Leader Mike Mansfield called for the creation of a Senate Select Committee on Watergate. Senator Sam Ervin of North Carolina was appointed as the chair. On May 9, 1974, the House Judiciary Committee Senator Sam Ervin began hearings to consider articles of impeachment. Initially, the Republicans on the Committee were unified in their support of the president, but Democrats held the majority. Between 35–40 million Americans tuned in to watch. In the end, by a 27-11 vote, the committee adopted the first article of impeachment and on a 28-10 vote agreed to the second. The vote in favor of the third article was 21 to 17. According to a Harris poll, 66 percent of the public favored impeachment. The articles would move on to the House floor for a vote where they were expected to pass, but with a fairly solid core of support in the Senate, it still seemed like Nixon might survive the ordeal. 

Nixon’s Resignation The final straw was the so-called smoking gun audio tape, one of the Oval Office recordings that Cox had sought by subpoena. By unanimous decision, on July 24, 1974, the Supreme Court ordered that Nixon turn the tapes over. Released to the public on August 5, 1974, the smoking gun tape was of a meeting on June 23, 1972, just six days after the break-in happened. It revealed that President Nixon had been part of the cover-up of the burglary almost from the very beginning. The public revelation of the tape meant the end of Nixon’s political support in Congress and across the country. Several Congressmen who had previously voted against the articles of impeachment in the House Judiciary Committee now publicly declared that they would vote for impeachment on the House floor. 42

Watergate and the Special Prosecutor

Lecture 4

On August 7, the Republican leaders in the House and Senate paid an evening visit to Nixon. They told him that impeachment was a certainty and that no more than 15 Senators would vote to acquit him during the trial. And so, just a day later, on August 8, 1974, Nixon resigned.

Suggested Reading Barone, “The President Can Fire the Attorney General.” Gormley, Archibald Cox. Humphrey’s Executor v. United States, 295 US 602 (1935). Myers v. United States, 272 US 52 (1926). Woodward, All the Presdient’s Men.

Questions to Consider 1 Which is right? Humphrey’s Executor or Myers? If a president can’t fire the people who work for him, is he really in charge? 2 Why can’t we just rely on the career prosecutors in the Department of Justice to do the work? Do we really need an independent investigator at all?

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5

RISE AND FALL OF THE INDEPENDENT COUNSEL Lecture 5

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fter the Watergate Scandal, American politicians were convinced that an independent investigator function was essential to our nation. In 1978, Congress passed the Ethics in Government Act, which created the Office of Independent Counsel. Over the next two decades, the US deployed independent counsel 20 times, but in 1999, Congress let the Act expire. This lecture will explore what happened to the independent counsel, why it has faded away, and what has replaced it.

Investigating American Presidents

Differences between US and British Government When the Constitution was adopted in the late 1700s, the separation of powers was an unusual idea. For example, contrast it with the structure of the English government, which survives to this day. In England, the legislative branch, Parliament, is unified with the executive branch, the ministers. The Prime Minister is an elected member of Parliament from the majority party. Her ministers also sit in the legislature. Virtually all of the executive operations of the English government are managed by career civil servants who take direction from political appointees and change with each change in government. Indeed, the most powerful person in any cabinet office in England is usually the career deputy minister who has been around for years.

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House of Commons of the United Kingdom

Rise and Fall of the Independent Counsel

Lecture 5

This form of government has some advantages. For instance, because the executive branch of government is united with the legislative branch, new laws and programs are typically passed through Parliament very quickly. By contrast, in America, where control of Congress is often split from the control of the executive branch and where institutional mechanisms like the filibuster work to slow down legislation, it is often the case that an executive’s legislative program languishes. In the English system, the executive is accountable to the legislative branch because it comes from the legislative branch. The Prime Minister shows up in Parliament weekly to answer questions, as do the various ministers. Ultimately, in the UK, everyone is responsible to the Parliament. In the US, the executive is both separate from the legislature and a whole entity unto itself. The idea is that everyone in the executive branch works for the president.

The Independent Counsel Act The independent counsel (IC) was a new hybrid type of prosecutor with all the power of the executive branch but located in and responsible to the judicial branch. The attorney general was required to call for the appointment of an independent counsel whenever colorable allegations of misconduct were leveled against any senior executive official, not just the president. A special branch of the judiciary, known as the Special Division, was responsible for selecting the independent counsel. The Independent Counsel Act was revised and reauthorized in 1983. The Reagan administration opposed the renewal. Reagan and his advisors were convinced that by shattering the concept of a unitary executive, the law was creating an unconstitutional structure.

Ronald Reagan 47

Investigating American Presidents

They were also of the view that the institutional independence of the Department of Justice from the White House meant that the Department could be trusted with even the most sensitive information. Despite their concerns, however, when Congress renewed the act with overwhelming support, President Regan signed it into law, avoiding a significant political battle.

Morrison v. Olson In 1988, the Supreme Court heard a challenge to the law’s constitutionality. The case involved Theodore Olson, who was accused of misleading Congress during testimony he had given about the operation of the Environmental Protection Agency’s Superfund Cleanup Program. Because Congress felt that Olson had been untruthful, the attorney general appointed Alexia Morrison as independent counsel to examine the allegations surrounding Olson’s testimony. Rather than respond to Morrison’s inquiries, Olson resisted and refused to satisfy Morrison’s demand for documents. He argued that the independent counsel law was unconstitutional and that it violated the separation of powers – the exact argument that the Reagan administration made when the law was renewed. The case came before the United States Court of Appeals for the District of Columbia Circuit, which agreed with Olson and struck down the Independent Counsel Act. 48

Theodore Olson (b. 1944) was appointed as the solicitor general by President Bush in 2001. Olson is regarded as one of the foremost Supreme Court lawyers in America today. President Trump is reported to have asked Olson to defend him in the investigation into Russian efforts to influence the 2016 presidential election.

Rise and Fall of the Independent Counsel

Lecture 5

On review, the Supreme Court ruled in Morrison v. Olson, by a vote of 7 to 1, that the IC law was constitutional. The Court said that the IC law was not about Congress trying to increase its own power, but rather it was about increasing the power of the judiciary as a check against the executive. The Supreme Court thought this was permissible so long as the law did not interfere “unduly” or “impermissibly” with the executive branch’s powers. In Justice Scalia’s famous dissent in Morrison v. Olson, he argued for the unitary executive interpretation. He said that the Constitution gave the president all the executive powers of government—especially ones relating to law enforcement—and argued that it was “ultimately irrelevant how much the statute reduces presidential control.” Any infringement on the executive’s power was unconstitutional.

The End of the Independent Counsel Act In December 1992 the independent counsel law was, again, set to lapse. The Republican party, maintaining their constitutional objection, filibustered the renewal and prevented it from becoming law. But then Bill Clinton became president, and the issue of a land deal in Arkansas, known as Whitewater, came to the fore. In the absence of an independent counsel law, Attorney General Reno appointed a special prosecutor, Robert Fiske, to investigate the matter. The Republicans sensed an opportunity, and in June 1994, the Act was reinstated. President Clinton signed the bill into law, saying, in words that he no doubt came to regret, that it was “a foundation stone for the trust between the government and our citizens.”

Janet Reno

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Investigating American Presidents

Seven separate investigations of the Clinton administration were opened. Most notably, Ken Starr was appointed to replace Robert Fiske. Roles were reversed and the strongest supporters of the law became its critics. When the Independent Counsel Act came up for renewal a fourth time in 1999, it was allowed to expire. Both parties came to see it as unleashing an uncheckable prosecutor.

The Special Counsel Although the law no longer provides for an independent counsel, there will always be a need for some way of reviewing executive misconduct, and there will always be a need to give that reviewer some form of practical independence from the influence of the political side of the executive branch. In the absence of a specific law, the executive branch has returned to the practice of the pre-Watergate era, appointing a quasi-independent investigator called a special counsel who has authority to review conduct within the executive branch. Special counsels have jurisdiction over a particular subject matter, and their investigation is limited to that topic. When the IC Act lapsed, Attorney General Reno published a set of regulations that guide the appointment and removal of special counsel. The attorney general should appoint a special counsel whenever the prosecution or investigation of a matter might raise a conflict of interest for the Department of Justice and when the attorney general decides that it is in the public interest to appoint a special counsel. But this special counsel is not an independent counsel. He or she exercises prosecutorial jurisdiction that is established and defined by the attorney general. The special counsel is limited to investigating the specific matter referred to him or her as well as collateral offenses arising out of the investigation that interfere with the investigation. In addition, the special counsel has to follow all of the rules and regulations of the Department of Justice (DOJ); for this reason, it is unlikely that the special counsel will indict a sitting president. DOJ rules say the special counsel can’t.

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Rise and Fall of the Independent Counsel

Lecture 5

Finally, and perhaps most importantly, the special counsel can be removed by the attorney general. The attorney general can remove the special counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Department policies.”

President Trump and Special Counsel Mueller What would happen if President Trump has somebody fire Special Counsel Mueller? There are three main possibilities. The political pressure to replace Mueller would be fairly intense. In the normal course of business, when the lead prosecutor leaves an investigation, he is replaced. Since the investigation would still be open, it might continue without a special counsel. If Mueller were fired, the ongoing pieces of his investigation could get farmed out to various US Attorneys or a DOJ litigating division to pursue. If that happened, the investigations might lose some coordination, but they would continue apace. The third possibility is that whoever fires Mueller could also order that the investigation be closed out. Many would see this as a dubious act, because there would be no apparent basis in fact for shutting the investigation down. Robert Mueller (b. 1944) is the special counsel in the investigation of Russian interference in the 2016 presidential election. He was appointed by Deputy Attorney General Rod Rosenstein after Attorney General Jeff Sessions recused himself from the case. 51

Investigating American Presidents

But even firing a special counsel and closing down the investigation would not necessarily end the matter. The US government may share information collected during an investigation when authorized by statute or by a court. It is quite possible for a special counsel to share relevant investigative information regarding possible criminal violations of state law with the relevant state attorney general. No action by the federal government could limit that state official, nor could any action prevent him or her from continuing the investigation. In short, firing the special counsel would likely be a mistake. It would come at severe political cost to the president and, quite likely, have relatively little actual effect on an investigation.

New Independent Counsel Legislation There have been recent attempts to revive the independent counsel law, or something like it. One reform seeks to limit the attorney general’s power to fire the special counsel for misconduct. Currently, the attorney general’s determination that misconduct has happened is not subject to review. To protect against this, the House and Senate have begun considering bills that would protect or partially protect the independence of a special counsel. Both would allow a special counsel who is fired to challenge the firing if he disputed the reasons for his firing. Both would give the final authority to review the decision to independent judges. One would let the review happen before the firing occurred; the other proposal would have it happen after the putative firing took place, but in each case, we would put federal judges in the position of reviewing the hiring and firing decisions of the executive branch. There is some real difference in this proposal from the old IC Act; the old law actually let the judges pick the prosecutor and appoint him or her. Here, the attorney general would still have the authority to make the appointment, and the judges would have the final say only on removal.

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Rise and Fall of the Independent Counsel

Lecture 5

Suggested Reading Gormley, The Death of American Virtue. Mokhiber, “A Brief History of the Independent Counsel Law.” Morrison v. Olson, 487 US 654 (1988). Schmidt, Truth at Any Cost.

Questions to Consider 1 Ken Starr says independent counsels are weak. Most others see them as overly strong and independent. Which side of the debate persuades you? 2 Should Congress revive the independent counsel law today? If it did, who (if anyone) should have the power to remove the independent counsel if he or she goes off the rails?

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6

CAN A SITTING PRESIDENT BE INDICTED? Lecture 6

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lthough no sitting president has ever been indicted, there is credible evidence that suggests that some have committed crimes, both before taking office and during their term. This lecture will explore whether or not it is legal to indict a sitting president. After discussing the indictment of a sitting vice president, we will explore three major court cases as well as arguments for and against indictment. If a president can be indicted, how does that affect the management of the nation? If a president cannot, what does that mean for the rule of law?

Investigating American Presidents

The Indictment of Spiro Agnew It is clear that everyone except the sitting president of the United States is subject to the same law and can be indicted. In the 1970s, Vice President Spiro Agnew was investigated for tax fraud and corruption relating to his service as governor of Maryland. The case against Agnew was a strong one. One witness was willing to testify that he had made cash payments to Agnew. Another, the former chair of Maryland’s Road Commission, had kept detailed records and documentation laying out the corrupt payments that had been made to Agnew. In part to protect Agnew, President Richard Nixon asked Attorney General Elliot Richardson to take personal responsibility for the investigation. Agnew told Richardson that the money was a series of campaign contributions, not kickbacks.

Vice President Spiro Agnew (1918–1996)

Agnew also fought the investigation in public. He asserted that a sitting vice president could not be indicted, and he said that the investigation should be conducted by the House of Representatives. In other words, he thought the issue was political, rather than legal. Agnew’s argument was not completely frivolous; it was supported by historical precedent. In 1826, the House investigated Vice President John C. Calhoun, who, like Agnew, was said to have taken illegal payments before he got the job. Therefore, there was some idea that the House might be the right venue for the inquiry this time around, too, but the House speaker refused Agnew’s request, saying that the House would defer to the courts. Agnew gave speeches in which he tried to rally support and turn public opinion his way, but as the investigation proceeded, his public support dwindled. The Nixon administration, through the solicitor general, filed a brief that said the vice president was not immune from prosecution. Agnew was eventually indicted, and on October 10, 1973, he pled no contest to tax evasion before a federal court in Baltimore. 56

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He did get a good deal. Attorney General Richardson did not charge Agnew with any other crimes. Agnew paid only a $10,000 fine, and he was placed under three years of unsupervised probation. In his memoirs, Agnew denied his guilt but said he needed to protect his family.

United States v. Nixon When it comes to the legality of indicting a sitting president, the first important case to think about is United States v. Nixon. The case arose from the Watergate scandal involving President Nixon. Eventually, the special prosecutor, Archibald Cox, learned that President Nixon had a tape recording system in the Oval Office that had recorded the president’s conversations with his senior staff, including some who were already under indictment. Everyone thought the tapes might have incriminating evidence about the staff and even about Nixon.

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Investigating American Presidents

The prosecutors issued a subpoena for the tapes. Nixon’s lawyers argued that he did not have to provide evidence to the grand jury. His attorney James D. St. Clair said that “The president wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.” In the language of the law, he said that Nixon had an absolute executive privilege that protected the discussions he had with the government officials who advised him. The Supreme Court unanimously rejected that proposition. Instead of recognizing an absolute executive privilege, it held that presidential privilege as to materials subpoenaed for use in a criminal trial was qualified. While a claim of executive privilege might trump the judicial process if it were based on military or diplomatic secrecy, the court found a “generalized interest in confidentiality” was insufficient. So, at a minimum, United States v. Nixon shows us that the president does not have all the powers of a king and that when a court of law demands documentary evidence from him, the president must respond, unless he has a good, specific reason not to.

Clinton v. Jones The second case we will discuss is Clinton v. Jones. Paula Jones used to work for the state of Arkansas. In May 1994 (during the Bill Clinton presidency), she filed a lawsuit alleging sexual harassment by Clinton in 1991, when Clinton was governor of Arkansas. Initially, the district court in Arkansas held that a sitting president could not be sued in a civil case and deferred the case until after Clinton’s term of office. But when the case reached the Supreme Court, the court ruled unanimously that the president could be sued. It said that the president, like any official, was subject to the same laws—civil laws, not necessarily criminal laws—that governed all Americans. 58

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Perhaps more importantly, the justices rejected the argument that the lawsuit would be a distraction to a sitting president, saying that they were confident that the courts could manage the case so that it didn’t interfere with the president’s constitutionally assigned role. In the end, Clinton v. Jones shows that being a sitting president doesn’t protect you from being sued in civil court.

Nixon v. Fitzgerald In Nixon v. Fitzgerald, former president Nixon was a defendant in a civil lawsuit for damages that arose from his allegedly unlawful official conduct while in office. Fitzgerald was a civilian analyst for the Air Force. He claimed he lost his job because he testified about cost overruns before Congress. When he sued, he named a number of people as defendants including Nixon, who probably had absolutely nothing to do with the retaliation that Fitzgerald complained about.

Ernest Fitzgerald

In a 5–4 decision, the Supreme Court held that presidents are absolutely immune from liability for civil damages for alleged official acts while president.

Arguments against Presidential Indictment The Department of Justice (DOJ), representing the executive branch, has long been of the view that the president is unique and cannot be indicted. The DOJ holds that the Constitution’s silence on presidential immunity may indicate that such immunity was so well-accepted and well-known that it didn’t even need mentioning. After all, the English Crown was immune from all prosecution, so in the DOJ’s view, the novelty was in making the president subject to any form of check, such as impeachment. 59

Investigating American Presidents

The DOJ also justifies its position based on practical questions of implementation. It argues, broadly, that the possibility of an indictment and criminal prosecution of a sitting president would “undermine the capacity of the executive branch to perform its constitutionally assigned functions.” There certainly is some merit to that argument. If, hypothetically, a president were in jail or were obliged to sit at a trial for weeks on end, it is quite likely that the management of the country would suffer. Indeed, in the famous 1807 trial of Aaron Burr for treason, President Jefferson told the courts that he thought he could not be ordered to attend court in person to testify. It would follow that he couldn’t be ordered to attend so he could be tried, either.

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The trial of Aaron Burr.

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In addition to the practical difficulties created by a requirement for the president’s physical presence, the DOJ also relied heavily on the intangible but significant effects on presidential power that could come from an indictment and trial. As the DOJ put it in a memorandum prepared in 1973 under President Nixon, “the president is the symbolic head of the Nation. To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.” Finally, the DOJ’s opinions on presidential indictability look at, but dismiss, the three cases (Nixon, Clinton, and Fitzgerald) discussed earlier. They conclude that they don’t directly answer the question of whether a president can be indicted, prosecuted, or imprisoned. Thus, as a formal legal matter, the question of presidential immunity does remain open.

Arguments for Presidential Indictment There is no specific text in the Constitution regarding presidential indictment. However, there is reason to believe that the framers were against presidential immunity, because the Constitution does actually give limited immunity to members of Congress. The arrest clause of Article I, Section 6 says that in some cases, members of Congress can’t be arrested on their way to or from a session of Congress. The speech and debate clause from the same section says that senators and representatives can’t be questioned in any court for anything they said during speech and debate on a measure in Congress. The idea here is that the constitutional framers knew how to create an immunity provision; they did it for members of Congress. The fact that they knew how to do it but chose not to do it for the president is an implicit indication that they didn’t want the president to have immunity. Watergate special prosecutor Leon Jaworski’s office also thought it had developed clear and compelling evidence of Nixon’s participation in a conspiracy to obstruct justice. They concluded that they had the authority to present that evidence to the grand jury for its consideration. 61

Investigating American Presidents

They began from a simple premise: The special prosecutor’s office had been created to investigate allegations involving the president. Why set a criminal investigator to a task that, at least implicitly, one did not think he could complete? Their second premise was somewhat more debatable: No man is above the law. While this is generally true in America, the DOJ’s response might reasonably be that the president is unique, and that is certainly a plausible argument from a practical standpoint. Yet it is not difficult to imagine a hypothetical scenario in which that position would simply be untenable. Their third premise turned the DOJ’s main argument against indictment on its head. Recall that the DOJ took the position that indictment would disable and distract the president, preventing him from fulfilling his presidential duties. To this, the Watergate prosecutors had a simple response: “so would impeachment.” Under that interpretation, if the framers of the Constitution had the idea that disrupting the president’s work for impeachment was possible, then they must not have been of the view that other forms of disruption for bad acts were impermissible.

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James Wilson (1742–1798), one of the Founding Fathers and a member of the original Supreme Court, said “far from being above the laws, he [the president] is amenable to them in his private character as a citizen.” This makes it clear that at least one of the Framers thought that presidents could be criminally prosecuted like any other citizen.

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Suggested Reading Clinton v. Jones, 520 US 681 (1997). Nixon v. Fitzgerald, 457 US 731 (1982). Savage, “Can the President Be Indicted?” United States v. Nixon, 418 US 683 (1974).

Questions to Consider 1 If a president cannot be indicted, how would you deal with presidential criminality? Only by impeachment? 2 If a president were indicted and convicted but not impeached, would we want the president to run the country from jail?

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PRESIDENTIAL USE AND ABUSE OF PRIVILEGES Lecture 7

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an a confidant really keep the president’s secrets, or can he be compelled to testify about them by a prosecutor who is investigating the president? This lecture will explore the balance between finding the truth in an investigation and the president’s need for candid advice and a confidential sounding board for policy discussions. While the president is granted privacy in some situations, these testimonial privileges are not an unlimited, absolute protection. This helps to ensure that the people remain in control of their government.

Investigating American Presidents

Finding the Truth The American legal system is an engine for determining the truth and finding out what the facts are, but the truth is often obscured during a criminal investigation. American society often places a higher value on procedural protections that are designed to assist in the search for truth in the long term than on finding out the facts in every individual case. Because of those procedural impediments, the search for truth in particular cases often founders. In its search for truth, the judicial system uses two fundamentally competing paradigms. In general, all witnesses are under an obligation to testify truthfully, under pain of criminal prosecution for perjury. But we also have a structure of testimonial privileges that we have erected which sometimes permit witnesses to refuse to testify truthfully. These two strands of the law are in tension—not typically in an individual case, but as competing expressions of the goals of our judicial structure.

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In fact, our legal system provides not just one testimonial privilege, but many. Anyone who watches crime dramas is familiar with the Fifth Amendment’s privilege against self-incrimination—the basis for the famous admonition that you have the right to remain silent. Beyond that privilege, our system also provides that wives cannot be compelled to testify against their husbands, and priests cannot be compelled to disclose what they learn in the confessional. These latter protections are based on our collective values. As a society, we say that marital communication is so important that we don’t want to pit husbands against wives. We say that confession is good for the soul—and so we don’t want to make a priest testify as to what someone has confided.

Attorney-Client Privilege The first of two testimonial privileges that are typically relevant to the president is attorney-client privilege. Attorney-client privilege is the general idea that your lawyer is not permitted to and cannot be compelled to disclose whatever you tell her in confidence as part of her representation of you. In the interest of truth and justice, we want to foster candid communications between client and attorney. For that reason, the attorneyclient privilege usually protects lawyers from being forced to testify against their clients. Any American who hires a lawyer can rely on this privilege, which is generally thought to have two important grounds. The privilege encourages clients to be truthful with their lawyers. If a defendant thought that his attorney could be compelled to turn around and repeat what he had said, the defendant would be unlikely to tell his lawyer the unvarnished version of what happened. The second reason is closely related, but it applies only to the criminal side of an investigation; the privilege is an important adjunct to the Fifth Amendment privilege against self-incrimination. If a suspect cannot be compelled to testify against himself, the privilege would be strongly undercut if his attorney could be compelled to say what he had said. It is about protecting the rights of the accused. 67

Investigating American Presidents

There is a guide book prepared by the US Department of Justice, the United States Attorneys’ Manual (USAM), that serves as an internal set of rules that tell the lawyers who represent America in court how they are supposed to do their jobs. In short, it’s a procedural manual on the who, what, when, where, why, and how of prosecuting cases. It embodies what the government considers important and what it thinks is not. It is significant that the USAM has an entire section that limits what investigators may do regarding the attorneys of criminal suspects. It says, for example, that using a search warrant to search an attorney’s office is a serious impingement on the value of the attorney-client privilege. It’s not unheard of to do so, but when investigators think that a search in an attorney’s office is necessary, the manual requires high-level approvals. It requires investigators to exhaust other investigative avenues before they search. And it requires specific procedures that are to be followed to limit the examination of privileged documents. 

Limitations on Attorney-Client Privilege For the attorney-client privilege to exist, there must actually be an attorneyclient relationship regarding a specific matter. If someone has a lawyer to help resolve a tax dispute with the IRS, the representation is limited to that matter and so is the privilege. Other things he may have told his lawyer in passing are outside the scope of the representation and are not privileged. Other conversations with a lawyer are not automatically covered by the privilege. If a president asks a lawyer for political advice, that conversation is not protected by the attorney-client privilege. The law is clear that as a general matter, a person cannot claim to have an attorney for all matters that might arise. One obvious reason for this limitation is that it would frustrate legitimate investigations. Another important limitation on attorney-client privilege is the crime-fraud exception. This exception allows the government to read, review, compel production of, and compel testimony of an attorney and his or her records. It arises if, and only if, the client uses the attorney’s services to commit a crime. 68

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For example, when Monica Lewinsky was subpoenaed in Paula Jones’s sexual harassment lawsuit against Bill Clinton, Lewinsky submitted an affidavit saying she had never had any sexual contact with the president. We now know that was a lie, and because she used a lawyer to help draft the affidavit, that lawyer was required to testify about his interactions with Ms. Lewinsky. The crime-fraud exception demonstrates how testimonial privileges are limited to their theoretical justification, meaning that privileges are always in derogation of the truth, so they are generally construed quite narrowly.

Executive Privilege The other testimonial privilege that comes into play with respect to presidents and those who work for them is executive privilege. Executive privilege is the right of the president and the executive branch to withhold information from public scrutiny. In many ways, the reasoning behind executive privilege is similar to that of attorney-client privilege. The purpose is to foster candid political and policy-based discussions between the president and his advisors, so the president is granted the right to keep his closest advisors from being forced to reveal their conversations with him. Dwight D. Eisenhower was the first president to use the phrase “executive privilege,” but the idea is almost as old as the nation itself. Although executive privilege is not mentioned anywhere in the Constitution, George Washington was the first to invoke the concept, albeit unsuccessfully. That was in 1792, when he tried to refuse congressional and judicial requests for information about a military expedition in Ohio. In the end, Washington gave in and sent all of the requested papers to Congress. 69

Investigating American Presidents

Executive privilege extends not just to the legal advice that the president receives but, at least in theory, to many communications that take place within the executive that are intended to develop policy within the executive. Despite the seemingly essential nature of executive conversations, they are not always privileged against disclosure. Indeed, quite to the contrary, history seems to tell us that they are less well protected than are attorneyclient conversations.

Limitations on Executive Privilege The most famous case involving a presidential invocation of executive privilege is President Richard Nixon during the Watergate scandal. The special prosecutor had issued a subpoena demanding that President Nixon turn over the tapes of conversations in the White House. Nixon resisted, asserting that the confidential nature of the conversations made them privileged against disclosure. Nixon lost, but he did not completely lose. The Supreme Court recognized that there was a set of competing values. As it said, there is a “valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties.” On the other hand, the Court rejected Nixon’s extreme reading that he had an absolute power to withhold the tapes. Referring to Article II of the Constitution, which defines executive power, the Court held as follows: “To read the Article II powers of the president as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Article III.”

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President Nixon had asserted only that confidentiality was generally a good thing, not that the White House tapes were particularly in need of confidentiality. Indeed, how could he, given that they disclosed his own crimes? And so, the Court held that public interest in truth–in the factual determination of a criminal investigation—was more important than Nixon’s assertion of a privilege. Nevertheless, it left the door open for future claims by future presidents. In the end, Nixon knew that he’d made a mistake. Four days after he produced the tapes that the Court ordered released, he resigned from office. As he indicated in his memoirs, he understood that he had hurt not just his own presidency, but potentially the presidencies of all who came after him. He wrote, “I was the first president to test the principle of executive privilege in the Supreme Court, and by testing it on such a weak ground… I probably ensured the defeat of my cause.”

Suggested Reading Clark v. United States, 289 US 1 (1933). In Re Lindsey, 158 F.3d 1263 (DC Cir. 1998). US Department of Justice, US Attorneys’ Manual.

Questions to Consider 1 Think about your closest relationships. With whom do you share confidences? Will they keep them secret? Should they be allowed to if you are under criminal investigation? 2 We can imagine a world in which there were no testimonial privileges at all. Would that be a better system? Would it be more just? More transparent?

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PRESIDENTS, PROSECUTORS, AND PUBLIC OPINION Lecture 8

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residents throughout history—including Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump—have used their bully pulpit to move public perception and drive the news cycle during an investigation. In fact, the phenomenon of a president defending himself by publicly attacking his investigator has a long provenance in American history. This lecture will take a closer look at why and how presidents wield public opinion as a weapon against their investigators, and the effects of that power.

Investigating American Presidents

Prosecutorial Discretion A prosecutor’s ability to choose his cases—and thereby choose his defendants—is often the focus of a president’s efforts to defend himself when he is being investigated. This sense of independence combined with discretion is why prosecutors threaten presidents—they are outside of the president’s effective control. It is also part of what prompts presidents to fight back against them so vigorously. The prosecutor’s ability to select his cases—what is known as prosecutorial discretion—is usually a good thing. Consider, by way of analogy, the way speed limits are enforced. Many people go at least a little bit faster than the posted speed limit some of the time. If there were 100 percent enforcement of the traffic laws, everyone would be a criminal. But the police don’t need to pursue every speeder to get most people to slow down. They choose their targets, and the end result is that most people slow down enough to make the roads safe.

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Because the decision on whether or not to prosecute a person is so consequential, the Department of Justice has a whole chapter of its manual devoted to the topic. These principles are intended to guide the use of the criminal justice system to administer justice fairly and ensure that scarce federal resources are used appropriately. A prosecutor who is contemplating the investigation of a president must go through a carefully structured, dispassionate thought process before deciding to begin an investigation, much less ask a grand jury to return an indictment. Yet when the gloves come off in the fight between a president and a prosecutor, the fight often boils down to a public relations battle over whether the prosecutor’s investigation of the president is a wise investment of prosecutorial discretion to support the rule of law and investigate a serious crime by an important executive, or an inappropriate use of prosecutorial authority to find something to charge a political opponent with.

The Investigation of Bill Clinton From the perspective of Independent Counsel Ken Starr, the investigation of President Bill Clinton was about a president who lied under oath in both a civil case and in a grand jury. From Clinton’s perspective, however, the investigation was part of a vast right-wing conspiracy. In the end, however, it is fair to say that Starr lost the public relations battle. Many people primarily remember two things when they think about Starr’s investigation of Clinton. First, they think that the Whitewater part of the investigation was just an arcane fight over real estate. Second, they think that the Clinton impeachment was just about a group of Republicans going after the president for lying about sex, which was a personal matter between him and his wife.

Hillary Clinton 75

Investigating American Presidents

President Clinton framed the investigations in a way that suggested that neither one proved anything important; this was the key to avoiding conviction at his impeachment trial. There at least four different tactics that played into Clinton’s public relations campaign to convince the American public that his framing of the investigation was the more convincing one.

Discrediting Accusers First, there was a concerted effort to discredit those who accused the president of misconduct. James B. McDougal was a real estate developer who had business dealings with the Clintons in Arkansas. One such deal involved a project known as the Whitewater Development project. McDougal lied to investors by inflating the value of the land and used the inflated valuation to take out mortgages and resell the property. It’s a classic fraud to skim nonexistent equity out of a property and then let the mortgage be foreclosed, with the lender losing money. McDougal was ultimately convicted of crimes in connection with Whitewater. Starr’s investigation into the Whitewater deal looked at whether or not the Clintons knew of or participated in McDougal’s criminal plan. After McDougal was convicted, he testified that the Clintons were complicit in his criminal scheme. However, his ex-wife, Susan, refused to testify, and charges were never brought against the Clintons. One aspect of the case that made it difficult for Starr is that many of Clinton’s supporters challenged James McDougal’s story, some even spreading the idea that he was not mentally competent. While the lack of better evidence was probably the main reason Starr never brought a case, the public attacks on McDougal’s sanity contributed to the decision. A separate front in the public relations war between President Clinton and Ken Starr was the relationship between the president and White House intern Monica Lewinsky. The attacks on Lewinsky were even worse than those on James McDougal, though arguably less successful.

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Lewinsky was involved in a sexual relationship with President Clinton—a relationship that he concealed when asked about it during a deposition in a civil lawsuit by Paula Jones. In the end, the relationship between Lewinsky and President Clinton was conclusively established by DNA evidence. In the media, Lewinsky was called a “little tart,” a “ditzy, predatory White House intern,” and a “young tramp looking for thrills.” While all this was happening, not many people reflected on the impropriety of an older man, who was her supervisor, taking advantage of a 22-year-old intern.

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Casting Doubt on the Prosecutor A second line of public relations effort involved the president and his team attempting to cast doubt on the motives and bona fides of the prosecutor. Many people don’t remember how Ken Starr was viewed before his appointment as Independent Counsel. He was a conservative lawyer, but he was widely respected and generally regarded as fair and well qualified. The attacks from Clinton’s team were often very personal. For example, Michigan Representative John Conyers, who was then the top Democrat on the House Judiciary Committee, called Starr a “federally paid sex policeman spending millions of dollars to trap an unfaithful spouse.” In the end, the attacks were so vigorous and so successful that public opinion polls gave Starr an approval rating of only 11 percent.

Kenneth Starr (b. 1946) was a distinguished former federal judge. He also served as solicitor general under President George H.W. Bush, who also had him on the short list for a Supreme Court nomination.

Questioning Investigators’ Conduct A third tactic, similar to attacking the motives of the investigator, is to question the investigators’ conduct and operation. This was a tactic that President Clinton used to change public opinion about the Starr investigation. On more than a half dozen occasions, Clinton and his supporters filed complaints about the conduct of the Starr office. The District of Columbia Disciplinary Counsel examined whether Starr had violated the District’s rules of professional conduct. 78

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The Office of Professional Responsibility in the Department of Justice examined whether Starr’s team had violated department policy on the use of prosecutorial powers. Attorney General Janet Reno called for the Justice Department’s public integrity section to examine whether Starr’s office had leaked to the media, and whether his prosecutors improperly tried to negotiate an immunity deal with Monica Lewinsky without her lawyer present. Clinton’s personal attorneys asked the district court in Washington for permission to interview Starr’s lawyers and alleged that they violated federal rules of grand jury secrecy. All of these challenges were eventually dismissed as meritless. One member of Starr’s staff was charged with lying about his contacts with the press, but he was eventually acquitted. The constant drum beat of allegations of misconduct, however, must have contributed to the public’s perception of the Starr investigation and led to his low approval rating. It didn’t matter if the charges were true or not; in the public mind, the constant repetition of allegations of misconduct came to be the reality.

Changing the Topic Finally, a president can change the topic. By controlling the public agenda, he can set the terms of discussion. Sometimes he does so legitimately, but his motives may be less than pure. When news of President Clinton’s relationship with Monica Lewinsky broke in public, he became embroiled in the alleged sex scandal. In August 1998, just three days after publicly admitting that he had a sexual relationship with Monica Lewinsky, President Clinton went on TV to announce that he had ordered missile strikes on terrorist facilities in Afghanistan and Sudan. He announced the strikes as a response to terrorist attacks masterminded

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by Osama bin Laden on the US embassies in Kenya and Tanzania roughly two weeks earlier, but some saw them as an effort by the president to distract and condemned him. Many of Clinton’s defenders supported his actions, however. As Defense Secretary William Cohen put it at the time, “The only motivation driving this action today was our absolute obligation to protect the American people from terrorist activities.” It is important to recognize that the American president is relatively unique in the world. He cannot stop managing the government simply because he is under investigation. Thus, any number of his activities will change William Cohen the topic, but it won’t be in an invidious way. Rather, the public will be distracted because real and significant issues warrant their attention. Put another way, it is not fair to condemn a president for using the bully pulpit on matters of real concern to the public.

Conclusion The public relations battle between president and prosecutor is really one that exposes a political nerve in this country. Public reaction to events is often tied not to their merits but rather to the political valence of who is benefited and who is not. The public relations battle is where we see most clearly that the investigation of a president is often not about law or policy, but rather about politics and winners and losers. How we see an investigation often depends on where we sit, and that is why the public relations aspects of a presidential investigation are often the most decisive.

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Suggested Reading Meacham, Impeachment. US Department of Justice, “Principles of Federal Prosecution.”

Questions to Consider 1 Sometimes the participants in a criminal case are placed under a gag order not to talk about it. Should we use gag orders to restrict how the president’s PR campaign is waged? 2 Do you think that the growth of social media like Twitter and Facebook has changed the public relations landscape a lot? Or is it just more of the same, albeit a little faster? Does it make a difference?

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THE PARDON POWER AND ITS LIMITS Lecture 9

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he Constitution gives the president the power to issue pardons or reprieves. Scholars sometimes say that presidents may grant a pardon for any reason or for no reason at all, and the only real check on that power is how history views them in retrospect. People who support the investigation of presidential misconduct worry that presidents might use this unique power to protect themselves from an investigation of possible illegal behavior. This lecture will examine the presidential pardon power and look at the arguments on whether presidents can self-pardon.

Investigating American Presidents

The Pardon Power There are two basic pardoning actions that are granted to the president by the Constitution: reprieves and pardons. A reprieve is the commutation or lessening of a sentence already imposed; it does not affect the legal guilt of a person. So, if the president grants a reprieve and commutes the sentence of a woman who is in jail for robbery, she gets out of jail but is still guilty with the felony conviction on her record.

The Constitutional Basis of the Pardon The power to pardon is grounded in Article II, Section 2 of the Constitution, which gives the seemingly unlimited power to the president. It says the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” That’s it. The text says nothing about whom the president may give the pardons to or why they may be given, nor does it express any limits at all save for one: A president cannot pardon in cases of impeachment.

By contrast, a pardon completely wipes out the legal effects of a conviction. If, for example, the conviction is for a felony and the law says that felons can’t vote or carry guns, after a pardon, the recipient is restored to all of the privileges that had been forfeited. In the eyes of the law, it’s as if the conviction never happened. The Constitution also specifies that the president may issue pardons for “Offences against the United States.” This has typically been interpreted to mean that pardons only apply to federal criminal offenses. Therefore, the president cannot pardon a person for a civil case or reprieve a person for violations of state law. There are two general types of pardons. One is the justice and mercy pardon. Here, the president acts to correct a perceived injustice in the criminal justice system and right a terrible wrong. One example of this type of pardon was Thomas Jefferson’s pardon of many who were convicted under the Alien and Sedition Acts. 84

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The Alien and Sedition Acts were laws passed during an undeclared naval war with France. The laws seemed to outlaw criticism of the Adams government and were widely viewed as a government overreach into the realm of censorship.

The other type of pardon is the peacefulness pardon. This is the idea that by issuing a pardon, the president can bring about reconciliation between political opponents in a contentious context. For example, Jimmy Carter issued a sweeping pardon for all the Vietnam war resisters, many of whom had had fled to Canada. Some pardons and reprieves don’t fall neatly into either primary category, and some of these have generated controversy as well. People still recoil in shock at Richard Nixon’s commutation of the sentence of Teamster boss Jimmy Hoffa, allegedly to secure Hoffa’s political endorsement. President Trump’s pardon of Arizona sheriff Joe Arpaio, who was convicted of contempt of court, has been the subject of hot dispute.

How the Pardon is Used Based on the text in the Constitution, the pardon power is basically without limitation as to reason, subject, or even timing. For example, a pardon can be issued from the time an offense is committed and can even be issued after the full sentence has been served. So, if a man committed a crime that isn’t even under investigation yet, the president can still pardon him and forestall any investigation. However, a pardon cannot be granted before an offense has been committed, because that would effectively give the president the power to waive the laws. In practice, some wonder if this is a real limitation. If the president could say “I will pardon you tomorrow if you commit murder,” it has the same effect. However, if a president made such a promise, it would surely be an impeachable offense. 85

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Pardons used to be very personal. Lincoln is said to have read pardon applications himself and once granted clemency to 62 Civil War deserters in a single day. At the start of the 20th century, presidents routinely granted between 100 and 200 pardons each year. By contrast, President George W. Bush granted fewer than 200 pardons during his eight-year term. This is particularly striking considering that in the early 1900s, the total federal prison population hovered around 10,000 nationwide, and today that number is roughly 200,000. In percentage terms, this was an extreme reduction. This change occurred in part because pardons became institutionalized. Instead of being handled by the president personally, in the 1970s, the attorney general delegated the power to review all pardon applications to officials responsible for prosecutorial policy. This move at once professionalized the process and also limited it so that presidential idiosyncrasies were moderated. However, presidents may still review pardons themselves if they want to.

Limitations on Pardon Power? According to Attorney General Jeff Sessions, presidents have an inherent power and authority to execute pardons in any way they see fit, and there are no direct limits on that power. The reality is that this was a purposeful choice. Alexander Hamilton said, “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” The assumption here, however, is that the pardon power is always a benign prerogative. But perhaps that is not always the case. It’s easy to imagine a president acting for more malignant motives.

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Jeff Sessions (b. 1946) was nominated to serve as attorney general by President Trump in 2017.

The Pardon Power and Its Limits

That’s the concern that animated George Mason at the time of our nation’s founding. He refused to sign the Constitution because he thought that it gave the executive too much power without sufficient checking. Mason was worried about the idea that presidents might pardon their own coconspirators and criminal confederates. His concerns were not held by the majority of the Convention, and the result is the broad pardon power that presidents currently have. But is it really the case that if presidents were to issue corrupt pardons to protect themselves that the law would have no answer? The question has never been decided. Many scholars think the answer is that the president’s pardon power does not extend to criminality. In other words, the pardon itself is valid and recipients can use it to clear their records, but presidents are liable for any crimes they might commit in the lead-up to the pardon. For example, if a president solicited a bribe to grant a pardon, the theory would be that the pardon is effective, but the president can be charged with soliciting a bribe.

Lecture 9

George Mason (1725–1792) was one of the seminal thinkers and leaders of the Revolution. He lived in Virginia and he wrote much of the Virginia Declaration of Rights that was adopted by that State in 1776. Much of that declaration, in turn, was a guide for Thomas Jefferson’s Declaration of Independence. For example, Mason is the author of these words in the Virginia declaration: “That all men are born equally free and independent and have certain inherent natural Rights.” His concerns about executive power can be viewed as reflecting the thinking of some of the more influential founders.

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To see this side of the argument most clearly, consider the prospect of a promised pardon—that is, a pardon that the president hasn’t given yet. Imagine that a president knows that a particular person is a key witness against him or her. The witness has been indicted and is awaiting trial. The prosecutor is offering the witness a deal: Testify against the president and we’ll drop all the charges. What happens if the president makes a promise to the witness: Don’t testify against me and take your chances at trial. The witness may be acquitted, but if he or she get convicted, the president has promised a pardon. If the offer were made by anyone other than the president, and if the promise were anything other than a pardon (for example, a money payment), that promise would be a classic attempt to tamper with a witness and obstruct justice. It’s only because it is the president and it is a pardon that we may think differently. But what if the president who promised a pardon never delivers? What if the witness stays mum, is convicted, and then goes to jail, and the president reneges on his promise to grant a pardon? Without the pardon being involved, the cloak of absolute presidential power pretty much dissolves. And it is hard to see how, without the cloak, the false promise of clemency wouldn’t be an obstructive act. But how can the same promise be criminal if the president doesn’t deliver, and totally lawful if he does?

Can the President Self-Pardon? Is it possible for presidents to pardon themselves for crimes they have committed, thereby frustrating an investigation and charges? The earlier discussion about whether a president can be indicted doesn’t seem to matter much if presidents can turn around and pardon themselves. But if the pardon was used that way, wouldn’t it effectively make the president into an uncheckable authoritarian? Presidents could act in any and every unlawful way they pleased, from embezzlement to murder, without fear of conviction—even if they might still be removed from office by impeachment for such crimes.

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The Department of Justice’s Office of Legal Counsel (OLC) is traditionally very much in favor of executive power. That bias is one of the reasons the OLC has always been of the view that a president cannot be indicted in the first place. But on the issue of self-pardons, the OLC is more restrained. In a 1974 opinion, written just three days before President Nixon resigned, the head of the OLC wrote that “[u]nder the fundamental rule that no one may be a judge in his own case,” presidents could not issue themselves a pardon. To be sure, the OLC’s opinions only bind the subordinates in the executive branch; a president is free to ignore them, as many presidents have. But it would be strange to accept the OLC view in cases where it’s favorable yet reject it in others where it’s limiting.

Nixon announces the release of edited transcripts of the Watergate tapes, April 29, 1974.

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On the other hand, what the text of the Constitution does not say is almost as important as what it does. As we’ve seen, the pardon clause has only one textual exception for cases of impeachment. It is a fair argument to say that this implies that, as former prosecutor Andy McCarthy has put it, “the Framers understood they were permitting the president to pardon himself” for crimes, and thus, that only impeachment would remedy this kind of misconduct. In the end, perhaps the question is not necessarily relevant. Because we can generally expect a sitting president not to be indicted, the only value of a self-pardon is that presidents could self-pardon on the way out the door in an attempt to insulate themselves from postpresidential prosecution.

President Ford announcing his decision to pardon Nixon, September 8, 1974, in the Oval Office

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And even then, it seems unlikely that the question would ever be tested in the courts, as a chain of unlikely events would have to occur for that ever to happen. As Alan Dershowitz the emeritus Harvard law professor put it: First, “a prosecutor would… have to try to prosecute the former president.” Then, “the former president would have to raise the pardon as a defense.” Finally, “the courts would have to decide whether, under our system of separation of powers, the courts have jurisdiction to review a presidential self-pardon.” And, of course, if a president self-pardoned, the next president could make the whole controversy moot by issuing a second pardon to the self-pardoned former president. Once again, we are looking at an area where the law really has little purchase.

Suggested Reading Lawton, “Presidential or Legislative Pardon of the President.” The Founders’ Constitution, “Debate in Virginia Ratifying Convention.”

Questions to Consider 1 What if courts could review a presidential pardon and reject it if they found that it was corrupt? Would that be a better system? 2 If a president pardons one of his campaign aides who has been convicted of lying about the campaign, what should happen?

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PRESIDENTIAL LIES AND COVER-UPS Lecture 10

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merican presidents are unique in many ways, but they are very similar to their fellow citizens when it comes to lying. Just like anybody else, when presidents get in trouble, they will lie about it. Unlike their fellow citizens, however, when presidents or government officials lie, it can harm the very fabric of government. Their lies undermine our belief in the system’s fairness and corrupt our faith in its bona fides. This lecture will discuss what happens if the president lies or attempts to obstruct justice.

Investigating American Presidents

Criteria of a Lie Most people understand what it means to lie. Many people have told lies themselves, and they know the difference between a grand, malicious lie and a little white lie. In law, however, not all lies are created equal and some lies aren’t even crimes. There are two federal statutes that criminalize lying, both similar in structure and content with slightly different scope. One law prohibits perjury; it makes it a crime to lie under oath. In addition to oral statements in federal court or under oath in other venues (for instance, a congressional hearing), the same law makes it a crime to make a material false statement in a written statement made under penalty of perjury. The other law is known as the false statement act. It is much the same as the perjury statute, with one really important exception: It doesn’t matter if the person is under oath or not. All that is necessary is for that person to make a false statement in an official proceeding.

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These two laws both seem quite broad, but when examined more closely, it turns out they are actually narrower than they appear. There are three significant limitations. The first is that it is only a crime to lie willfully. In other words, the person who made the statement must have known it was false at the time he said it. Accidental misstatements don’t count. Saying something that is untrue but that the witness genuinely believes is true doesn’t count either. A second limitation is that the lie has to be “material.” In other words, it has to matter in some way. If it wouldn’t have any effect, then that falsity is immaterial. The final limitation is that omission of the truth is not considered a lie. In particular, if someone deflects and doesn’t answer a question directly, the law does not count this as a lie. The classic Supreme Court case that decided this third point is called Bronston v. United States. Bronston, who owned a motion picture company that made movies in Europe, was asked under oath about the assets of the company. He was also asked about his personal assets. One of the lawyers asked Bronston the following series of questions. Question: Do you have any bank accounts in Swiss banks, Mr. Bronston? Bronston: No, Sir. Question: Have you ever? Bronston: The company had an account there for about six months, in Zurich. The question seemed to clearly imply that it was about his personal funds, but he answered about the company. Of course, it turned out that Bronston actually had a Swiss account for roughly 5 years, and when the government found out, it charged him with perjury.

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The Supreme Court was unanimous in holding that Bronston was not guilty. The Court agreed that his second answer was misleading and left the impression Bronston had never had any personal Swiss accounts. But the Court asserted that perjury does not follow the same rules as casual conversation; it is not illegal to imply an answer. And so, Bronston went free because the lawyer didn’t recognize his dodge and follow up with another question.

Obstruction of Justice Obstruction of justice is the crime of trying to frustrate a legitimate investigation by means other than lying. Typically, this involves destroying evidence or tampering with witnesses to get them to lie. Paul Manafort was a campaign manager for Donald Trump. In the summer of 2018, Manafort was charged with illegal money-laundering activities relating to work he did for individuals from Ukraine. One of the important questions was whether that lobbying happened only in Europe or in Europe and in the United States. In one case he sent this message to one of the potential witnesses: “We should talk. I have made clear that they worked in Europe.” Then a friend of Manafort’s, Konstantin Kilimnik, followed up with another message saying that “P” (presumably Paul Manafort) was trying to reach the witness to brief him: “Basically P wants to give him a quick summary that he says to everybody (which is true) that our friend never lobbied in the US, and the purpose of the program was EU.” Is that just giving someone a heads up and a quick summary? Or is it, as Special Counsel Mueller charged, an effort to influence the witness’s testimony and coach him on what he could or should say? If it is the former, then it is a matter of little concern. If it is the latter, then it’s witness tampering and an effort to obstruct justice. 96

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If presidents tried to convince a witness to lie, the general view is that they would be guilty of obstruction and witness tampering. There are, however, two very important caveats to that view. The first is based on an extremely strong view of the president’s authority. Because the president is the head of the executive branch and federal government, any attempt to obstruct justice would, in effect, be obstructing the president’s own investigation. From this perspective, the president has the constitutional authority to end any federal criminal investigation at any time and for any reason. The second caveat is a weaker view of presidential authority that is still, nevertheless, an argument along the same lines. One could argue that, for example, even if it is true that the president could be charged with obstruction for destroying evidence, that doesn’t mean that everything he does is subject to review for obstruction. Here, the argument would be that if the president’s acts are within the limits of his legal authority, then, by definition, they can’t be obstruction of justice. For example, presidents are constitutionally authorized to fire an employee, and they are absolutely immune for that decision. But if that’s the case, then a president’s supporters would argue that motive doesn’t matter. For instance, if the president is legally allowed to fire the FBI director, it should not matter that it is being done to head off a criminal investigation into his or her own conduct. Since a president’s actions would be lawful, criminal charges could be only based on motive. But even if the president had improper motive in carrying out a legal act, motive by itself should not constitute a crime. That amounts to prosecuting the president based on thought rather than action. However, typically, to be charged with criminal offense, an individual must have engaged in an act that has two distinct components: an actus reus (a guilty act) and mens rea (a guilty mind). For example, if someone just thinks about killing a king but does not do it, the mind is guilty, but no crime has been committed. Conversely, if someone strikes another person but it is because of an epileptic seizure, a bad act has been committed, but there is no guilty mind. Crimes traditionally require both components. 97

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But what this classic understanding of criminality means is that it is always the case that the difference between a lawful act and an unlawful act can turn on intent. Intent always determines morality and criminality, and it seems no different just because the actor is the president. For example, it is perfectly legal for a woman to shred her business files while cleaning out her office. But if she shreds the files because they have been subpoenaed and she doesn’t want to hand them in to a grand jury, that is now an obstruction of justice. To have a different rule for presidents would be to resurrect Richard Nixon’s notorious view that “when the president does it, that means that it is not illegal.” It should not be the case that the president, and only the president, can use otherwise lawful powers in a corrupt way and not be called to account.

Contempt of Court If the president is issued a subpoena, can he or she be forced to testify? If a normal man refused to testify in response to a valid subpoena, then the prosecutor would go to court, show the judge the valid subpoena and evidence of the refusal, and ask the judge to find him in contempt of court. That could have a couple of different consequences, because there are two types of contempt of court: civil and criminal. A finding of civil contempt is an effort to compel a witness to appear as ordered. Typically, a witness would be arrested on a civil contempt citation and put in jail and remain there until either he changed his mind and testified or the investigation ended and the grand jury that summoned him shut down. By contrast, the idea of criminal contempt is like that of any other crime. The prosecutor can decide to charge the contemnor with the criminal charge of contempt and try to prove the case in court beyond a reasonable doubt. If convicted, the defendant is sentenced to a term of years.

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Typically, if someone who has been convicted doesn’t show up voluntarily for incarceration, the court would send the US Marshals out to arrest that person. But that’s unlikely to happen to a president who refuses to testify. After refusing to appear before the grand jury, the president isn’t likely to voluntarily show up for prison either. If the Marshals arrive to arrest the president, there would undoubtedly be a standoff with the Secret Service. If presidents do not want to appear in court, there is probably no way for the court to physically force them to do so that wouldn’t involve a conflict of constitutional dimension, so the civil contempt route seems unavailing. Moreover, since it is likely that a sitting president cannot be indicted for criminal conduct, the idea of criminal contempt as an enforcement mechanism is likewise of little utility.

Suggested Reading 18 US Code § 1001, “Statements or Entries Generally.” 18 US Code § 1510, “Obstruction of Criminal Investigations.” 18 US Code § 1512, “Tampering with a Witness, Victim, or an Informant.” 18 US Code § 1621, “Perjury Generally.” Bronston v. United States, 409 US 352 (1973).

Questions to Consider 1 Does the Bronston decision make any sense? Shouldn’t lies of omission also be criminal? 2 If I do something that I’m allowed by law to do (such as veto a bill or pardon someone) how could that possibly ever be obstruction of justice?

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THE VALUE OF INVESTIGATIVE REPORTS Lecture 11

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hen a president is under investigation, the investigator’s discoveries almost always become public, either in a report to Congress or in a public report to the American people. The value of a public report lies in its ability to shape the course of events and in its permanence as a historical public record. This lecture will explore why investigations typically happen behind closed doors for most people, and then it will turn to how and why the rules are different for presidents.

Investigating American Presidents

Department of Justice Policy In the American system of governance, a federal prosecutor’s job is to investigate whether a crime has occurred and, if there is probable cause to believe that one has, to bring charges regarding those allegations before a grand jury for consideration. If the grand jury chooses to return an indictment, then the prosecutor has the further duty of attempting to prove the case before a jury beyond a reasonable doubt. Up to this point, the investigation has happened in private; the policy of the Department of Justice is to do its talking in court. If an investigation produces insufficient evidence of criminality, the prosecutor and investigators are supposed to simply pack up and move on to the next case. This norm of prosecutorial conduct is so strong that even when prosecutors have concluded that the uncharged person has actually committed a crime, they generally refrain from naming the individual. The reputation and privacy interests of the uncharged individual outweigh the public’s right to know. The departmental policy to stand silent when asked about investigations that don’t result in charges is actually more than just a policy. When the investigation involves the use of a federal grand jury, this policy becomes a matter of actual law. Rule 6(e) of the Federal Rules of Criminal Procedure makes it unlawful for any prosecutor to publicly disclose a “matter occurring before the grand jury” without authorization from a court. This rule of secrecy serves not only the privacy interest of the accused, but other interests as well. As one court put it: “First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” 102

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Lecture 11

In July 2016, FBI Director James Comey announced the end of the FBI’s investigation of Democratic presidential candidate Hillary Clinton and her use of a personal email system for work-related communications while she was secretary of state. Although the FBI did recommended against her prosecution, Comey broke the norm and went out of his way to criticize Clinton and her senior aides as “extremely careless” in their handling of classified information. He offered his own personal opinion that “no reasonable prosecutor” would prosecute Clinton based on the facts developed by the investigation. Comey said that by making a public announcement of this sort, he was trying to protect the FBI and the Obama Administration’s Department of Justice from criticism that they were biased or attempting to influence the election. Most observers agree that Comey was wrong in breaking with DOJ policy to comment on an investigation that was concluded without an indictment. As the Justice Department’s inspector general put it in his review of Comey’s actions: “We concluded that Comey ’s unilateral announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct.”

Rules in Presidential Investigations All of the factors mentioned above would seem to be in play even during a highprofile presidential investigation. If it weren’t for the privacy granted, witnesses may not come forward for fear of political retribution, and their testimony may be incomplete or false because of political inducements. While it is unlikely that a president under investigation would flee the country, he or she certainly might try to influence the grand jurors to vote against an indictment. 103

Investigating American Presidents

And the damage to a president’s reputation from the public acknowledgment of an investigation is severe. So there seems to be every reason to think that a president would be entitled to count on the confidentiality of an investigation. And yet, when the president is involved, much of the rule of secrecy and confidentiality goes out the window. As former attorney general Eric Holder put it: “[I]n cases involving well-known people, the public has a right to be kept reasonably informed about what steps are being taken to pursue allegations of wrongdoing so that they can determine whether prosecutors are applying the law equally to all citizens.” The rules of secrecy lose their force simply and precisely because it is the president who is under investigation. When average citizens are under investigation, they have a privacy interest in keeping that from their neighbors. When the investigation does not return an indictment, they have a legitimate and significant interest in not suffering reputational harm. Presidents have these same interests, but in the end, we think that these interests yield to a higher value: the public’s interest in assessing the probity of its leaders. Even if a prosecutor chooses not to bring charges against a senior leader of government, if during the course of an investigation the prosecutor discovers conduct that bears upon the leader’s fitness for office—conduct that may be strictly lawful but is immoral or unethical— the prosecutor should be in a position to bring that information to the public and, more importantly, to Congress, which has the authority to deal with such matters as it sees fit.

Independent Counsel Reports That conception of the need for accountability led to one of the most important and controversial innovations of the Independent Counsel Act. That law—which was in place from 1978 until 1999—created the independent counsels and gave them a direct reporting line to Congress, outside of the ordinary chain of command and without the review of the attorney general. It also gave independent counsels a direct reporting line to the public. 104

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The independent counsel was obligated to file a final report that set forth fully and completely a description of the work of his or her office. Every independent counsel saw this as a broad requirement, more than merely reporting on the number of cases brought and how they were disposed. The independent counsels saw this mandate as embodying the reporting function that normal prosecutors do not undertake. These reports are valuable for transparency and accountability, but also for history. This idea seems embodied in the law’s provision that after the reports were released to the public, they could be printed by the Government Printing Office. And because the reports became part of history, anyone mentioned in them had the right to file comments and rebut the prosecutor’s conclusions. Congress also gave the independent counsel the job of telling Congress when it should start thinking about impeachment. The statute said that an independent counsel was required to report to the House of Representatives “any substantial and credible information” that was uncovered “that may constitute grounds for an impeachment.” This is another unusual role for a prosecutor. Prosecutors know what a crime is and how to assess whether or not the case can be proven beyond a reasonable doubt, but this impeachment provision casts independent counsels as a political actors rather than as a neutral arbiters of the law. And so, it is no surprise that the only time this provision was ever invoked was during the impeachment of Bill Clinton. Ken Starr filed a report alleging that President Clinton had lied under oath. Rather than a dispassionate assessment of those allegations, the impeachment and trial of the president soon sank into a partisan mire. Clinton was impeached in the House on, essentially, a party-line vote, and his abbreviated trial in the Senate resulted in his rapid acquittal. It’s no wonder that as the independent counsel era came to a close, many thought that the pendulum had swung too far in the direction of transparency and accountability. They concluded that the reporting requirements for the independent counsel did more harm than good.

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Special Counsel Regulations The openness and transparency envisioned under the Independent Counsel Act now lies in the dustbin of history. It has been replaced by a series of regulations that govern the conduct of a special counsel. The special counsel is substantially less independent than the independent counsel was. Special counsels are by definition members of the Department of Justice; they are subject to its regulations and subject to the control of the attorney general and the president (whose conduct may be under investigation). The special counsel’s regulations do not allow the special counsel to make a report to Congress or to the public. Instead, the regulations say that at the end of the special counsel’s work, he or she is to provide the attorney general with a confidential report explaining the prosecution or declination decisions that were made. Note three important aspects of this regulation. 1. The report only goes to the attorney general. 2. The report is confidential. Thus, traditional secrecy values take precedence over the transparency and accountability arguments. 3. The report is only about prosecution or declination decisions. That is, the report discusses only why a case was brought or why it wasn’t. The regulation seems, by its terms, to prohibit the special counsel from reporting on things that are unrelated to a prosecution or declination—for example, things about conduct that might bear on fitness for office but don’t relate to a criminal offense. However, transparency and accountability are not lost under the special counsel regulations. The regulations require the attorney general to notify the chairman and ranking minority member of the Judiciary Committees of each house of Congress at the end of the special counsel’s investigation or if the attorney general removes the special counsel. Congress may also get a chance to review how the attorney general managed the special counsel. The special counsel reports to the attorney general and is bound by the Justice Department regulations, but if there is a conflict between the special counsel and the attorney general, the current regulations require the attorney general to notify Congress about it. 106

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Some people think that this provision is how the special counsel could sneak a full report to Congress even if the attorney general might object to the report. Since conflicts must be made public, the special counsel could create such a conflict—not necessarily because he wanted to, but because by doing so, he or she would effectively require the attorney general to make a report of that conflict to Congress. The attorney general also has the option of releasing the special counsel’s report to the public. It is allowed, but not required, that it is released if the attorney general thinks that the release would be in the public interest. The phrase “in the public interest” essentially gives the attorney general unreviewable discretion to make as much or as little of the special counsel’s report public as he or she chooses to. The attorney general is the final decision maker; any other information releases are subject to the general rules of secrecy discussed earlier.

Suggested Reading Federal Rules of Criminal Procedure, Title III, Rule 6(e). Holder, Dealing with the Media in High-Profile White Collar Crime Cases.

Questions to Consider 1 Filing reports is all about transparency and accountability. Those are not normally the jobs of a prosecutor. Would you support a rule that says prosecutors can never make public reports about what they find if it isn’t a crime? 2 The secrecy of a grand jury is also thought to encourage people to tell the truth. Does that make sense? Or is it more likely that you would lie behind closed doors if you thought nobody would ever know?

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THE LAW AND POLITICS OF IMPEACHMENT Lecture 12

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his lecture will delve into the basics of impeachment. Impeachment is a legal, constitutional means of preventing a presidency from going off the rails. It has rarely been used, but it always looms in the background of any discussion about presidential misconduct and abuse. We will see that the law on what constitutes an impeachable offense is rather open-ended, and the decision to impeach is often very political. Although we need impeachment authority, it’s a dangerous weapon that we don’t want to have to use. The possibility of impeachment is a critical deterrent to abuse, but those seeking impeachment may often do so for the wrong reason.

Investigating American Presidents

Impeachment Basics Article II, Section 4 of the Constitution says that all civil officers of the US are liable to impeachment. This includes the president, judges, and subordinate federal officials. There was disagreement among the Founding Fathers from the start on whether it was a good idea to give the legislature the power of impeachment. Some thought that the impeachment power would make the legislative branch too strong and make the executive branch subservient to the legislature; however, this view lost out in the drafting of the Constitution.

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The process of impeachment starts with the House of Representatives, and if it advances from there, it concludes in the more deliberative Senate. The constitutional framers thought to mirror the criminal process, where a popular institution (the grand jury) initiates the proceedings, and then a smaller institution (the petit trial jury) tries the matter to conclusion. However, nothing in the Constitution speaks to what the process is in the House for initiating impeachment proceedings. Impeachment principally begins through an investigation conducted by the House Judiciary Committee—the committee given jurisdiction over impeachment. The Judiciary Committee then recommends articles of impeachment—each a separate allegation of misconduct or wrongdoing— and those are voted on by the full House of Representatives. When the articles are adopted, the House then appoints a subcommittee of members to present the case to the Senate. Not every impeachment results in conviction and removal of the accused officer. In fact, the most famous cases of impeachment from American history all resulted in acquittal, often precisely because the House seems to have used the impeachment process as a political cudgel rather than as a legitimate check on abuse.

The Impeachment of Samuel Chase There have been fewer than two dozen federal impeachments in American history, and most have proven totally uncontroversial. They have, for example, resulted in the removal of corrupt judges like Thomas Porteous or Samuel Kent. But occasionally, the impeachment power is abused for political reasons. This was the case in the impeachment of Samuel Chase.

Samuel Kent (b. 1949) was a judge who resigned after he was impeached in 2009 for the crime of sexual assault. 111

Investigating American Presidents

Samuel Chase was an associate justice of the Supreme Court. At the time of his appointment, Chase was a staunch Federalist, aligned with John Adams’s party and opposed, in general terms, to the political program of Thomas Jefferson and his party, the Democratic-Republicans. The impeachment arose against the backdrop of the Marbury v. Madison case, which established judicial review. Jefferson was deeply concerned that this power would enable the judiciary to frustrate the Democratic-Republican agenda.

Samuel Chase

At this early time in American history, the justices of the Supreme Court wore two hats. In addition to their duties on the Supreme Court, they also served as district court judges, working outside of Washington to manage local cases and proceedings. In one case, speaking to a grand jury in Baltimore, Chase was quite intemperate, condemning the Democratic-Republican policies, saying they would “take away all security for property and personal liberty … and our Republican constitution will sink into mobocracy.” Jefferson saw Chase’s outburst as an opportunity to reduce Federalist influence on the courts, so he wrote to a friendly congressman to solicit Chase’s impeachment. And so, in March 1804, the House passed eight articles of impeachment, some relating to the Baltimore grand jury and others relating to two additional cases where Chase is said to have committed procedural error or made “intemperate and inflammatory” remarks. In real effect, however, the charge was that Chase was politically biased against Democratic-Republican defendants and ideals. When the case came up for trial in the Senate, Chase’s lawyers argued that the impeachment was no more than an assault by Chase’s political opponents, and that it would be dangerous to set the precedent of impeachment for political differences, especially in a case that had implications for the independence of the judiciary. Chase was acquitted on every count, in some cases by large margins. The episode cemented the tradition of judicial independence, while also standing as a caution to judges to avoid the expression of political views from the bench. 112

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Lecture 12

Grounds for Impeachment The Constitution says that an officer can be removed for “Treason, Bribery or other High Crimes and Misdemeanors.” While treason and bribery are reasonably clear, many are not sure what qualifies as a high crime or misdemeanor. The use of the phrase “other” suggests that high crimes and misdemeanors are things that are serious and of the same type as bribery and treason. It would make no sense to impeach someone for an ordinary misdemeanor—a parking ticket, for example—so it seems clear that the word “high” must apply both to crimes and to misdemeanors. In some ways, the House of Representatives decides what an impeachable offense is. Article I, Section 2 of the Constitution grants the House the power of impeachment, and Article 1, Section 3 empowers the Senate to try impeachment cases. What constitutes an impeachable offense is, therefore, a political question. The concept of impeachment and the phrase “high crimes and misdemeanors” both come from the English system of government. If we look at the historical record of English impeachments, we see two things. An actual commission of a punishable crime was not necessary for an impeachment to begin. So, when a president’s supporters assert that he can’t be impeached until it’s proven that he is a criminal, they are making an argument that lacks historical support. In England, the word “misdemeanors” meant simply “misdeeds,” rather than “petty crimes,” as it now does in America, so almost any type of misconduct is within the scope of the impeachment power. Indeed, in the Federalist Papers, Alexander Hamilton made the important point that impeachment and trials were given to the House and Senate precisely because they would not be “tied down” to the delineation of offenses like prosecutors or the courts.

Alexander Hamilton 113

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However, it also seems clear from history that impeachment is not appropriate for trivial acts. Many have suggested that a president should not be impeached at all unless he has engaged in an abuse of power flowing directly from his office. On this basis, some saw the impeachment of President Bill Clinton as illegitimate since it derived from his personal behavior, rather than any official act.

The Politics of Impeachment The Clinton impeachment is instructive of both the realities of impeachment and the hesitancy of Americans to remove the president from office. The impeachment arose from president Clinton’s testimony in a civil lawsuit brought against him by a former Arkansas employee, Paula Jones. As a matter of federal law, in sexual harassment suits, a defendant’s prior acts of sexual harassment are considered relevant evidence. Therefore, it was fair game for Jones’s attorneys to ask Clinton about his sexual contact with other women outside of his marriage. Under oath, the president denied any such encounters. However, Clinton had several sexual encounters with Monica Lewinsky. He denied this fact to the Jones attorneys and later also denied it to the grand jury investigating the matter. The office of independent counsel Ken Starr sent a report recommending impeachment to Congress just before the 1998 midterm elections. The Republican majority proceeded to consider four articles of impeachment. Two of the proposed articles were rejected, but two articles were approved on a mostly party-line vote. One article charged that Clinton had lied to the grand jury, and another charged that he had obstructed justice by encouraging Lewinsky to lie and by attempting to tamper with other witnesses. Trial in the Senate began on January 7, 1999; Chief Justice William Rehnquist presided, as the Constitution requires. Opening arguments were followed by depositions of some of the witnesses, including Lewinsky, excerpts of which were entered into evidence in the Senate.

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During the closing argument, the president’s counsel, Charles Ruff, characterized the impeachment in terms that bore on public duties. He argued that private conduct was not relevant to the impeachment question. The House’s chief manager, Representative Henry Hyde, responded with an argument that no president was above the law and that the rule of law mattered even with regard to a president’s private conduct. In the end, the perjury charge was considered the weaker one. It failed with only 45 votes, far fewer than the 67 needed for removal. The obstruction charge got 50 votes. All 45 Democrats in the Senate voted “not guilty” on both charges—probably reflecting their perception that the impeachment was a political exercise.

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Clinton’s case demonstrates that impeachment is as much a political event as a legal one. Contrast Clinton’s case with that of Richard Nixon. Nixon’s support remained relatively strong up until just before the very end. After the release of the smoking gun audio tape that proved that Nixon had lied to the public about his involvement in the Watergate cover-up, the House Judiciary Committee passed articles of impeachment. In the wake of these events, Nixon’s public support collapsed, and he was forced to resign. The Gallup polls for Bill Clinton tell a different story. According to Gallup, “Bill Clinton received the highest job approval ratings of his administration during the Lewinsky/impeachment controversy. As the Lewinsky situation unfolded, Clinton’s job approval went up, not down, and his ratings remained high for the duration of the impeachment proceedings.” That’s not to say, however, that the Lewinsky affair didn’t resonate politically with the public. Clinton’s vice president, Al Gore, ran to succeed him as president and lost to George W. Bush in the hotly contested and still-controversial 2000 election. Gore thought that Clinton’s scandal and the resulting dismay it caused in the country cost him the election.

George W. Bush

Conclusion The rule of law is an important check on presidential abuse, but laws are only the start of the conversation, not the end. The laws serve as guides, but when they are applied to the president and other high executive officials, they do not necessarily bind. When the law isn’t clear on what the extent of presidential immunity is or what the formal bounds of the pardon power are, the courts may well be called on to express judgments as to those issues, but there is little or no guarantee that a president would abide those judgments. 116



There is a strong, palpable norm that suggests that they will and that they should, but this course has considered what happens if they don’t. The only answer we have found is that it depends on how the public reacts. In a democracy like America, the people themselves control the interpretation of the Constitution.

Suggested Reading Jones v. Clinton, 36 F. Supp. 2d 1118 (1999). Kramer, The People Themselves. National Archives, Letter from Thomas Jefferson to Joseph H. Nicholson. Newport, “Presidential Job Approval: Bill Clinton’s High Ratings in the Midst of Crisis, 1998.” Rehnquist, Grand Inquests. Wallner, “#Resistance and the Crisis of Authority in American Politics.”

Questions to Consider 1 Should we impeach officials for behavior that is unethical or immoral but not criminal? Isn’t it up to the public to judge that at the next election? 2 The idea of a “people’s constitution”—that in the end it is up to the people to enforce constitutional norms through their political response—is attractive. What are the downsides of that? Would it empower majorities? Would it distort law? Or is it a good thing for the people to get what they want? Isn’t that what democracy is about?

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BIBLIOGRAPHY 5 US Code. “Ethics in Government Act of 1978.” Washington DC: Government Publishing Office, 1978. https://www.gpo.gov/fdsys/ granule/USCODE-2010-title5/USCODE-2010-title5-app-ethicsing. Act establishing the office of the Independent Counsel. Barone, Michael. “The President Can Fire the Attorney General.” The Washington Examiner. August 27, 2009. History of presidential authority over the attorney general. Bronston v. United States, 409 US 352 (1973). The case that adopts a narrow definition of what it means to lie under oath. Lies of omission do not count. Chernow, Ron. Grant. New York: Penguin Press, 2017. Magnificent biography of Ulysses S. Grant by the author of Alexander Hamilton. Includes a good history of the Whiskey Ring. Cherny, Robert W. “Graft and Oil: How Teapot Dome Became the Greatest Political Scandal of Its Time,” The Gilder Lehrman Institute of American History: History Now. September 8, 2015. A useful, short history of the Teapot Dome scandal. Clark v. United States, 289 US 1 (1933). Case that allows the crime-fraud exception to pierce the veil of attorney-client secrecy. Clinton v. Jones, 520 US 681 (1997). Presidents can be sued in civil court while in office. Dred Scott v. Sandford, 60 US 393 (1857). Much reviled case in which the Supreme Court approved slavery. Editorial Board. “The President Is Not Above the Law.” The New York Times, April 15, 2018. Argues for an accountable presidency. Gormley, Ken. Archibald Cox: Conscience of a Nation. Reading, MA: Perseus, 1999. An excellent history of Watergate. ———. The Death of American Virtue: Clinton vs. Starr. New York: Crown Publishing Group, 2010. A history of the Starr investigation of Bill Clinton. 118

Bibliography

Hamilton, Alexander, James Madison, and John Jay. “The Federalist Papers.” https://w w w.congress.gov/resources/display/content/ The+Federalist+Papers. The best summary of the Founder’s thinking about American government. Holder, Eric H., and Kevin A. Ohlson. Dealing with the Media in HighProfile White Collar Crime Cases: The Prosecutor’s Dilemma, in White Collar Crime at B-1 (1995). An argument that the prosecutor has the duty to inform the public in high-profile cases. Humphrey’s Executor v. United States, 295 US 602 (1935). Later case that somewhat limits the president’s plenary authority to fire executive branch employees when they exercise quasi-legislative functions. In Re Bruce R. Lindsey, 158 F.3d 1263 (D.C. Cir. 1998). Case holding that presidential aides cannot claim an executive or governmental attorney client privilege to conceal presidential communications bearing on a criminal investigation. Jackson, Robert. “The Federal Prosecutor.” April 1, 1940. https://www. justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01-1940.pdf. Address delivered at the Second Annual Conference of United States Attorneys. Jones v. Clinton, 36 F. Supp. 2d 1118 (1999). The judge’s ruling on Bill Clinton’s perjury in the Jones civil case. Kramer, Larry. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press, 2005. Arguing that the people define what the constitution says, not the courts or the text. Kriner, Douglas L, and Eric Schickler. Investigating the President: Congressional Checks on Presidential Power. Princeton, New Jersey: Princeton University Press, 2016. Excellent book on how Congress investigates presidential conduct. Lawton, Mary C. “Presidential or Legislative Pardon of the President.” Office of Legal Counsel. August 5, 1974. https://www.justice.gov/ file/20856/download. US Department of Justice opinion holding that a president cannot pardon himself. 119

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Legal Information Institute. 18 US Code § 1001. “Statements or Entries Generally.” https://www.law.cornell.edu/uscode/text/18/1001. The provision making false statements a crime ———.18 US Code § 1510. “Obstruction of Criminal Investigations.” https://www.law.cornell.edu/uscode/text/18/1510. Criminalizes the obstruction of justice. ———.18 US Code § 1512. “Tampering with a Witness, Victim, or an Informant.” https://www.law.cornell.edu/uscode/text/18/1512. Makes it a crime to tamper with a witness. ———. 18 US Code § 1621. “Perjury Generally.” https://www.law.cornell. edu/uscode/text/18/1621. The statute that makes perjury a crime. ———. Federal Rules of Criminal Procedure. Title III, Rule 6(e). https:// www.law.cornell.edu/rules/frcrmp/rule_6#. The general rule that all matters occurring before the grand jury are secret. Lorant, Stefan. The Glorious Burden. New York: Harper & Row, 1964. A summary of the presidency, its power, and its occupants. Marbury v. Madison, 5 US 137 (1803). Seminal Supreme Court case that creates judicial review of executive actions. McGrain v. Daugherty, 273 US 135 (1927). Supreme Court case establishing the principle of Congressional oversight of the Executive Meacham, Jon, Timothy Naftali, Peter Baker, and Jeffrey A. Engel. Impeachment: An American History. New York: Modern Library, 2018. A good history on impeachment and an excellent source for information about Andrew Johnson’s impeachment in particular. Meacham, Jon. The Soul of America: The Battle for Our Better Angels. New York: Random House, 2018. Mokhiber, Jim. “A Brief History of the Independent Counsel Law.” PBS: Frontline, May 1998. https://www.pbs.org/wgbh/pages/frontline/shows/ counsel/office/history.html. A short history of how the independent counsel law was implemented in practice. 120

Bibliography

Morrison v. Olson, 487 US 654 (1988). Case that held that the independent counsel law was constitutional and did not violate the separation of powers. Myers v. United States, 272 US 52 (1926). Supreme Court case that gives the president authority to fire executive officials at will. National Archives. Letter from Thomas Jefferson to Joseph H. Nicholson. May 13, 1803. https://founders.archives.gov/documents/ Jefferson/01-40-02-0278. Jefferson’s effort to have Samuel Chase impeached. ———. Letter from Thomas Jefferson to William Charles Jarvis. September 28, 1820. https://founders.archives.gov/documents/ Jefferson/98-01-02-1540. Jefferson writes that he thinks judicial review gives judges too much power. Newport, Frank. “Presidential Job Approval: Bill Clinton’s High Ratings in the Midst of Crisis, 1998.” The Gallup Poll. June 4, 1999. https://news.gallup. com/poll/4609/presidential-job-approval-bill-clintons-high-ratings-midst. aspx. Bill Clinton’s approval ratings stayed strong during impeachment. Nixon v. Fitzgerald, 457 US 731 (1982). Presidents are absolutely immune from civil suit for their official actions. Office of Legal Counsel. “A Sitting President’s Amenability to Indictment and Criminal Prosecution.” 2000. https://www.justice.gov/sites/default/ files/olc/opinions/2000/10/31/op-olc-v024-p0222.pdf. Clinton-era memorandum arguing that presidents cannot be indicted. ———. “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While in Office.” 1973. https:// assets.documentcloud.org/documents/4517361/092473.pdf. Nixon era OLC memo saying presidents cannot be indicted while in office. Rehnquist, William H. Centennial Crisis: The Disputed Election of 1876. New York: Vintage Books, 2005. A short history of the Hayes/Tilden election dispute. ———. Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. New York: Quill/Morrow, 1999. A history of two early impeachments. 121

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Savage, Charlie. “Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes.” The New York Times, July 22, 2017. Public source for the memo by Ronald Rotunda, arguing that a President can be indicted. Schlesinger, Arthur M., Jr. The Imperial Presidency. Boston: Houghton Mifflin, 1973. Advances the thesis that presidential power is ascendant. Schmidt, Susan, and Michael Weisskopf. Truth at Any Cost: Ken Starr and the Unmaking of Bill Clinton. New York: HarperCollins, 2001. An easier read on the history of the Starr investigation into Monica Lewinsky. The Constitution of the United States, Article I and Article II. http:// constitutionus.com/. The foundational document and blueprint for American democracy. The Founders’ Constitution. Article 2, Section 2, Clause 1. “Debate in Virginia Ratifying Convention.” June 18, 1788. http://press-pubs.uchicago. edu/founders/documents/a2_2_1s6.html. A source for the debates in the ratifying conventions, including, in this case, Mason’s view on the pardon power. ———. Letter from James Madison to W. T. Barry. August 4, 1822. http:// press-pubs.uchicago.edu/founders/documents/v1ch18s35.html. Madison’s views on government and the need for transparency. Tocqueville, Alexis de. Democracy in America. Translated by Henry Reeve. Charleston, SC: BiblioBazaar, 2008. A seminal view of American democracy and its foundational principles by a foreign visitor. United States v. Nixon, 418 US 683 (1974). Presidents must provide evidence in response to a criminal subpoena. US Department of Justice. “Principles of Federal Prosecution.” In US Attorneys’ Manual. https://www.justice.gov/usam/usam-9-27000-principlesfederal-prosecution. The portion of the US Attorney’s manual that guides the exercise of prosecutorial discretion. ———. US Attorneys’ Manual. https://www.justice.gov/usam/united-statesattorneys-manual. Procedural guidebook and manual for US Attorneys representing the United States. 122

Bibliography

Wallner, James. “#Resistance and the Crisis of Authority in American Politics.” Law and Liberty. December 6, 2017. http://www.libertylawsite. org/2017/12/06/resistance-and-the-crisis-of-authority-in-american-politics/. A modern view of the people’s role in constitutionalism. Woodward, Bob, and Carl Bernstein. All the Presdient’s Men: The Greatest Reporting Story of All Time. New York: Simon & Schuster Paperbacks, 1974. The “ur” version of Watergate from the reporters who uncovered it. Worcester v. Georgia, 31 US 515 (1832). Case involving the Cherokee in Georgia. Its history demonstrates that the Court cannot enforce its own orders.

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