DOUBLE JEOPARDY OR NO JEOPARDY?

More than 1000 former federal prosecutors have publically stated they would prosecute Donald Trump for obstruction of justice were he not President of the United States. Those former prosecutors made that declaration after Special Counsel Robert Mueller decided he couldn’t prosecute Trump because of Justice Department policy. That policy, stated in an October 16, 2000, Office of Legal Counsel (OLC) opinion, prohibits indictment of a sitting President. As long as Trump remains in office, no federal grand jury will hand down charges against him, regardless of the evidence that might otherwise compel such an action.

The OLC policy, which isn’t in the constitution, and a long standing American tradition against prosecuting former political opponents, could combine in assuring the government never prosecutes Trump for the acts spelled out in the Mueller Report. This circumstance carries broad and troubling implications for the rule of law in America. The OLC policy, and that tradition, could mean getting elected President provides a permanent get-out-of-jail-free card for seriously bad actors.

Trump’s Situation

Special Counsel Mueller found ten acts by Trump that might constitute obstruction of justice. Citing the OLC opinion, Mueller declined prosecution but specifically said, “while this report does not conclude that the President committed a crime, it does not exonerate him.” Any fair reading of the Mueller Report recognizes the Special Counsel would have indicted Trump but for the OLC policy. Mueller’s decision, therefore, leaves three options for dealing with Trump’s possible crimes: (1) impeachment and removal from office by Congress, (2) prosecuting him after he leaves office, or (3) letting him slide.

Impeachment, being the ultimate political act, may or

may not happen. No one  currently thinks the Republican Senate will convict Trump. Calls for Trump’s prosecution after his term ends have started, including from House Speaker Nancy Pelosi. The problem lies in that American tradition – we don’t prosecute former Presidents, no matter their crimes in office.

Twice in modern times, the issue has arisen of what to do, after he leaves office, with a President who has committed criminal acts. It also arose in a hypothetical scenario involving Trump and his 2016 opponent, Hillary Clinton. The way the issue has been handled in each case suggests we shouldn’t hold our breath for the possibility of Trump’s post-presidency prosecution.

The History

Richard Nixon resigned before the House impeached him and before the Senate likely convicted him. Out

of office, Nixon faced obstruction of justice charges and perhaps others. Before Special Prosecutor Leon Jaworski could charge Nixon, President Gerald Ford pardoned him for all offenses against the United States. By accepting the pardon, Nixon admitted guilt, but avoided indictment, trial, and possible jail time. Ford issued the pardon in the name of putting Watergate behind the nation, potentially healing America’s wounds. The pardon probably cost Ford re-election in 1976, but he may have achieved his objective of tamping down the furor over Watergate and helping the country move on.

Republicans in the House impeached Bill Clinton in 1998 over his affair with Monica  Lewinsky. The

Senate acquitted him, essentially determining sex isn’t a reason for removing a President from office. But, Clinton didn’t get off without a price. In what amounted to a plea bargain with Independent Counsel Robert Ray that avoided prosecution for perjury and obstruction of justice, Clinton accepted a five-year suspension of his Arkansas law license and paid a $25,000 fine. He also resigned from the U.S. Supreme Court bar.

The Nixon and Clinton experiences, for different

Nixon and Cllinton

reasons, cast doubt on the possibility of a post-presidency prosecution of Trump. Trump isn’t a lawyer, so he can’t forfeit a law license, but prosecutors might extract fines and business concessions in exchange for not indicting him. A Democratic successor probably won’t pardon him as Ford did for a fellow Republican, but he or she could find other ways of shutting down a prosecution.

The Tradition

In 2016, Trump mused out loud about the possibility,

if elected, of ordering that his  Justice Department prosecute Hillary Clinton over her e-mail scandal. Even Republican-leaning pundits decried such an action, arguing that bringing down the wrath of the criminal justice system on a former opponent better fit a banana republic than a country committed to the rule of law like the United States. It’s just something we don’t do, they said. 

Democratic 2020 Presidential candidates have been reluctant to endorse the idea of prosecuting Trump after he leaves office. They understand the precedent that could set. Prosecuting a former opponent, even one like Trump, opens the possibility of future politically motivated prosecutions for trivial or made-up offenses much more about settling scores than seeking justice.

And the Rule of Law?

Between the OLC policy, which some Democratic candidates say they’d change, and the tradition, it appears the rule of law could lose big. While he’s in office, Trump, if he’s not impeached and convicted, pays no price for his sins. Once he’s out, especially if its 2021 and the statute of limitations hasn’t run on his alleged crimes, his successor may not allow prosecution in the name of preserving our reputation as a nation that doesn’t permit prosecutions of former political opponents.  

So, when does a bad actor President get punished?  What do we mean when we say we are a nation of laws, not people, and no one is above the law? Do we still have the rule of law?  We’re going to have to answer these questions at some point, perhaps the sooner the better.  

INDICTING THE RUSSIANS: IN PRAISE OF ROBERT MUELLER

   Robert Mueller. (photo: James Berglie/TNS)

Friday, Special Counsel Robert Mueller announced the indictment of 12 Russians, one American, and three organizations on charges of interfering in the 2016 presidential election.  We encourage every American who cares about democracy to read Mueller’s 37 pages.  It’s easy to find  and reads, in the words of one cable news host, like a Tom Clancy novel.  

    

The details grab and terrify.  They are riveting and chilling because they describe a vile attack on the United States.  We will resist the temptation to compare this to Pearl Harbor or September 11 – tragedies involving massive loss of life.  We understand the danger in such comparisons.  We find, however, Mueller’s indictment no less significant because it describes an attack by foreign agents aimed at destroying American democracy.

First things first

A few fundamentals help in understanding the indictment’s importance.  First, President Trump has branded the Mueller investigation a hoax.  His supporters have suggested there’s no underlying crime.  Friday’s indictment destroyed both claims.  Mueller painstakingly demonstrated the criminal violations of American law the Defendants committed. They “conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions of [governmental agencies] in administering federal requirements for disclosure of foreign involvement in certain domestic activities.”  Translation: it’s against our law for foreigners to interfere in certain American activities, particularly elections, and anyone who participates has committed a crime.

Second, the indictment spelled out, conceptually and in detail, what the Russians did and how they did it.  Broadly speaking, they sought to conduct what they themselves called, “information warfare” against the United States with a goal of “spreading distrust towards candidates and the political system in general.”  The conspirators bought social media ads, organized and staged political rallies, and spent millions of dollars on helping elect Trump.  “They engaged in operations primarily intended to communicate derogatory information about Hillary Clinton, to denigrate other candidates such as Ted Cruz and Marco Rubio, and to support Bernie Sanders and then-candidate Donald Trump.”

Target: Black People   

The conspirators aimed some of the “information warfare” at minority voters in a directed, admitted attempt to suppress that vote.  On an Instagram account named “Woke Blacks” they posted, “[A] particular hype and hatred for Trump is misleading the people and forcing Blacks to vote Killary.  We cannot resort to the lesser of two devils. Then we’d surely be better off without voting AT ALL.” An Instagram post on an account called “Blacktivist” said, “Choose peace and vote for Jill Stein.  Trust me, it’s not a wasted vote.”

African-American community members didn’t post these statements. Russians who’d set up accounts, sometimes using fake identities designed to look like real Americans or real grassroots organizations, put them out.  The Special Counsel probably knows, but hasn’t yet said, if Trump operatives cooperated with these efforts.  Regardless, the indictment spells out the illegal activities, how they were done, and the real objectives.

                       
 

More to come

Many questions remain in the indictment’s aftermath.  What happens next?  Obviously, we don’t know but many credible legal analysts believe other shoes will drop soon with the Special Counsel indicting people in Trump’s circle for conspiracy, obstruction of justice, or both.  What about the President himself?  Trump claimed exoneration because the Russians started their program before he announced for President, proving he hadn’t colluded with Russia.  Newsweek columnist and NBC/MSNBC analyst Jonathan Alter, author of “The Defining Moment: FDR’s Hundred Days and the Triumph of Hope”, found Trump’s tepid response to the allegation that Russia “waged war” on American democracy ridiculous.  It was, he said, like Franklin Roosevelt saying after Pearl Harbor “he hadn’t colluded with Japan.”  How should the Commander-in–Chief respond when presented with a discovery that a foreign power attacked America?  Will Trump now impose congressionally approved sanctions on Russia?  Will he ask for new authority to combat the continuing threat?  Just what will he do now to protect America?   

The indictment’s stunning detail and riveting narrative quality lead us to two observations.  First, it represents magnificent intelligence work and brilliant lawyering we believe leaves no room for credibly questioning if Russian interference in our election occurred.  The indictment described the organizational structure of the Russian operation down to the jobs individuals held, the street address in St. Petersburg of the office out of which many of the defendants worked, and the U.S. states Russian operatives visited before they set up the operation.  Intelligence professionals suggested the United States (or an ally) infiltrated the operation because electronic intelligence won’t pick up some kinds of information contained in the indictment.

Second, this indictment could represent a turning point in how the country views the investigation.  Perhaps now, with the details presented so starkly, more Americans will accept that the Russians did attack us in 2016 and realize if we don’t act, it will happen again and again.  Earlier in the week, the nation’s top intelligence officials told Congress the Russians are still at it and will grow bolder in this year’s mid-terms.  Mueller’s work, if nothing else, tells Vladimir Putin some grownups in the United States know what he’s up to and won’t take it lying down.

We previously expressed our frustration that more Americans weren’t outraged about Russia. Does this change your mind?