The Criminal 45th POTUS?

May 17, 2017

The Criminal 45th POTUS?

After the revelations of the past 24 hours, it appears that President Trump’s conduct in and around the firing of the F.B.I. Director, James Comey, may have crossed the line into criminality. The combination of what is known and what is credibly alleged would, if fully substantiated, constitute obstruction of justice. It is time for Congress and a special counsel in the executive branch to conduct objective, bipartisan inquiries into these allegations, together with the underlying matters involving Michael Flynn and Russia that gave rise to them.

First, the facts. On January 26, Sally Yates, then the acting Attorney General, informed the White House that Mr. Flynn had apparently lied about his conversations with the Russian Ambassador. The next day, President Trump hosted Mr. Comey for a private dinner, during which he allegedly asked Mr. Comey repeatedly whether he would pledge his “loyalty” to him, which Mr. Comey declined to do.

Image result for Sally Yates

Sally Yates–Acting Attorney-General

On February 14, the day after Mr. Flynn’s resignation as National Security Advisor, President Trump allegedly held Mr. Comey back after a meeting to say that Mr. Flynn had done nothing wrong and that, “He is a good guy. I hope you can let this go.” Mr. Comey declined to drop the investigation, going on in March to confirm before Congress that it was ongoing, and later requesting greater resources from the Department of Justice to pursue it.

Finally, on May 9, President Trump fired Mr. Comey. We were first told he did so because Mr. Comey bungled the F.B.I.’s investigation into Hillary Clinton’s email. Two days later, President Trump changed his story: “In fact, when I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should have won.’” The day after that, President Trump threatened Mr. Comey on Twitter, warning him against leaking to the press.

Image result for James Comey

Any one of these facts or allegations, by itself, likely would not constitute obstruction of justice. After all, as the F.B.I. Director himself stated, the President has the undisputed power under the Constitution to hire and fire members of his administration in the normal course of government business.

But what he cannot do is exercise that power corruptly, to spare himself or those associated with him, like Mr. Flynn, from scrutiny and possible criminal liability. To do so would run afoul of a series of federal statutes that define the crime of obstruction of justice. They are variations on the theme that anyone who “corruptly” or by “any threatening letter or communication” tries “to influence, obstruct, or impede, the due administration of justice” will be subject to criminal penalties.

The operative word here is “corruptly.” It means “an improper purpose,” or one that is “evil” or “wicked.” There is no precise formula for defining it; those involved in the administration of justice must continually wrestle with its interpretation.

Here, the evidence strongly suggests that the president acted corruptly. That starts with the demand for loyalty from Mr. Comey, the account of which the White House disputes. That demand can reasonably be understood to mean that Mr. Comey should protect Trump and follow his bidding, rather than honoring his oath to follow the evidence. It is also an implicit threat: Be loyal, or you will be fired.

When Mr. Comey did not seem to take the hint, Mr. Trump made his meaning crystal-clear on February 14: Let the investigation go, and let Mr. Flynn go, too. The president denies this as well, of course, as he has denied so much else that has proven to be true. Who are we to believe: Mr. Comey, who would have no reason to accuse the President of obstruction of justice, and who has apparently preserved meticulous notes of his conversations? Or the President, who fact-checkers have demonstrated has told more lies in less time than any other modern occupant of the Oval Office?

While Mr. Trump might have been within his rights to fire Mr. Comey, this pattern of demands to protect himself and Mr. Flynn, followed by retaliation when the demands were not met, if proven, is a textbook case of wrongful conduct. Add to this the fact that Mr. Flynn was already offering testimony about the Russia connection in exchange for immunity from prosecution, and Mr. Trump’s clumsy attempt to dissemble the cause of the firing, and it is clear that a cover-up was afoot.

Finally, Mr. Trump topped things off with his tweeted threat to Mr. Comey; witness intimidation is both obstruction of justice in itself, and a free-standing statutory offense.

Taken together, this evidence is already more than sufficient to make out a prima facie case of obstruction of justice — and there are likely many more shoes to drop. Mr. Comey reportedly took notes on all of his encounters with the president. If what has emerged so far is any indication, this is unlikely to offer much comfort to Mr. Trump.

And there remains the core question of the President’s motives. Is he withholding his taxes because they show evidence of “a lot of money pouring in from Russia,” as his son once stated, or do they show no such thing, as his lawyers claim? Why is Mr. Trump so fervently protecting Mr. Flynn: out of loyalty to a friend, or because Mr. Trump fears what that friend would say if he received immunity?

We have previously called for Congress to set up an independent 9/11-style commission on the Russia and Flynn investigations, and for the Department of Justice to appoint a special prosecutor. This appointment is necessary because Congress can’t actually prosecute anyone who may have committed crimes, including obstruction of justice, in connection with the Trump-Russia matter. This week’s revelations about the president, the most powerful man in the country, emphasize the need for these independent structures to be erected and to encompass these new allegations.

At least for now, we need not address the question, fully briefed to the Supreme Court during Watergate, but never resolved, of whether a special prosecutor could indict the President; as with Nixon, the question may again be obviated by other events, like the House initiating impeachment proceedings and the President resigning.

In the meantime, the House and Senate must continue their existing investigations and expand them, with the Judiciary Committees of both bodies immediately beginning hearings into the president’s abuse of power. Congress must be prepared to follow the evidence wherever it may lead.

Richard W. Painter, a Professor at the University of Minnesota Law School, is the Vice Chairman and Norman L. Eisen is the Chairman of Citizens for Responsibility and Ethics. They were chief White House ethics lawyers for Presidents George W. Bush and Barack Obama, respectively.

29 thoughts on “The Criminal 45th POTUS?

  1. If you were to believe what is written by the author, then you might as well believe that pigs can fly. Richard W. Painter is one of those people suffering Trump Derangement Syndrome, of which there is no cure. Even with the firing of Comey, the investigation on Russia election meddling is still on under the USA system of government as confirmed by McCabe, the acting director.

    There is no reason for Malaysians in this blog to be sucked into the Trump Derangement Syndrome peddled by the leftists of the United States. The price of being sucked into the narrative of the left is clouding our discernment of what is time-tested form of government.

    We need antidote of NYT; try this from the right:

  2. There is no question that Trump has committed obstruction of justice – a federal crime. The question is whether anyone other than Congress can attempt to prosecute him for it.

    The conventional wisdom is that even if Trump committed federal crimes, only Congress can address that wrongdoing by impeaching him. The prevailing view, embraced by the Justice Department’s Office of Legal Counsel and many legal academics, is that the president is immune from routine criminal prosecution by someone like a US attorney or a local district attorney. He could be charged for wrongdoing as president after leaving office, but not until after impeachment and removal, or resignation.

    But Jimmy Gurulé, a Notre Dame law professor and former senior federal prosecutor under both Presidents Bush, said that Trump could be prosecuted for obstruction of justice. Under 18 USC Section 1505, it is a crime to “endeavor to influence, obstruct or impede… any pending proceeding… before any department or agency of the United States.” The FBI investigation into Flynn is a “pending proceeding,” and so if Trump tried to obstruct or impede it, that’s a crime. A grand jury is also looking into Flynn; if Trump knew that before approaching Comey, Gurulé said, he could also be prosecuted for “attempt to influence or obstruct a grand jury investigation,” a charge carrying up to 20 years in prison.

    The thing is, though, this has never been tested before. And some legal scholars, like Hofstra University’s Eric M. Freedman, have argued that rank-and-file prosecutors can indeed indict and prosecute the president. It might be difficult for, say, the US attorney for the District of Columbia (currently Channing Phillips, an Obama appointee) or the acting US attorney for Southern New York (Joon Kim, a longtime deputy to Obama pick Preet Bharara, whom Trump famously fired) to test the president’s immunity by securing an indictment. Trump could simply dismiss them from their post. But state and local prosecutors don’t serve at the president’s pleasure the way US attorneys do. They’re typically elected or appointed by state or local politicians. If a state or local prosecutor concludes that Trump broke a law, they could secure an indictment and finally force the courts to come to a decision about whether or not presidents can be indicted and prosecuted. So if Trump were to, as he’s jokingly threatened in the past, “stand in the middle of Fifth Avenue and shoot somebody,” then New York County District Attorney Cyrus Vance Jr. could indict him for assault or murder without fear of losing his job. The case would, of course, be immediately appealed, and the question could be settled once and for all, most likely by the Supreme Court.

    The most famous argument that presidents should be immune from ordinary criminal prosecution was made in a 1997 law review article by Yale constitutional law professor Akhil Amar and Kalt, his then-student. They argued that the president is a unique official, as the sole person ultimately in charge of the executive branch. “If he is arrested, so too is the executive branch of the government,” they wrote. This distinguishes him from a normal legislator or judge, who can be prosecuted, because there are plenty of other judges and legislators who can carry on their work. “Any distraction of the President from his duties is much more significant than similar distractions of these other, prosecutable officials, and has a much bigger impact on the well-being of the nation and all its People,” they concluded. At the state level, they pointed to the landmark 1819 case of McCulloch v. Maryland, which ruled that state officials cannot obstruct “the measures of a government [the federal government] created by others as well as themselves.” “In other words,” Kalt and Amar summarized, “a single state cannot use its power to derail the functioning of the United States.” A federal prosecution would similarly illegitimately impede the function of the presidency, and put an inferior executive officer, like a US attorney or independent counsel, in charge of prosecuting the president. The president could simply fire either one, rendering the point largely moot. “If the President freely allows his regularly appointed lieutenants to pursue him, then there is no separation of powers problem,” they wrote. But if the president refuses to let that happen, he’s in his rights as the leader of the executive branch to dismiss either a US attorney or independent counsel prosecuting him.

    In a 1992 law review article later adapted into testimony during the Clinton impeachment imbroglio, Hofstra University’s Eric Freedman took the opposite stance. There was explicit disagreement, he wrote, among the founders about whether the president was immune from prosecution, disagreements that reached the floor of the very first Senate ever convened. So the issue can’t be resolved by recourse to the Constitution’s original meaning. Second, historical practice is that every other federal officeholder, including the vice president, has been considered eligible for regular prosecution. After Vice President Aaron Burr killed Alexander Hamilton, he was indicted for murder in both New York and New Jersey. “Amid the considerable public tumult that followed, there was never any suggestion that he had any immunity from prosecution on these charges,” Freedman wrote. Moreover, in the Watergate case, the Iran-Contra investigation, and Bill Clinton’s impeachment saga, subpoenaing the president was considered unquestionably legal and appropriate. “The question of how to enforce a criminal sentence against the President is no different than the question of how to enforce a subpoena against the President,” Freedman wrote, and subpoenas against the president have been enforced in the past. If the president is given a sentence like prison that precludes him from carrying out the duties of his office, Freedman argued that his Cabinet and vice president could use the 25th Amendment to suspend his presidency, or the president could invoke the amendment voluntarily for the length of his sentence. If the president were in prison and still insisting on performing his duties from there, two-thirds of members in the House and Senate would need to ratify the vice president stepping in as acting president. But it’s hard to imagine a situation where the president is literally in prison and Congress doesn’t assent to that.

    The best way to test this is to have some prosecutor try it. In Freedman’s view, the best way to prosecute Trump would be to revive the independent counsel statute passed after Watergate. That statute led to the appointment of Kenneth Starr to investigate Clinton’s Whitewater land deals, which culminated in the impeachment effort. It expired in the late ’90s, partly as a consequence of fatigue from the Clinton investigations. “As a practical matter, what you need at this point is for Congress to revive the independent counsel,” Freedman said. “No one in the Justice Department chain of command will do it, not just for the obvious reasons but because the Justice Department has an official position of longstanding that it can’t be done.” Freedman said an independent counsel would have the authority to bring charges against the president, noting that the independent counsel statute specifically said the counsel can only be removed for cause. “Under the then-statute, which was upheld as constitutional, such an indictment would not be a cause for firing him.” Amar and Kalt, in their article, argued the contrary, that it’s clearly within the president’s power to fire an independent counsel for whatever reason, and that the Supreme Court’s prior ruling on the office didn’t say otherwise.

    But in any case, Congress would have to revive the independent counsel statute before any of this could happen. So far, there’s little indication that Republican leadership is open to that. Even if they did, Trump would presumably veto it, and if they have the two-thirds majorities in both houses that they would need to override the veto, they presumably would have the votes for an impeachment and removal.

  3. At last prayers have been answered with appointment of Special Counsel. The music will be the same until the globalist get their pound of flesh.

  4. I have commented before,that there is a possibility of a President Pence,and Groper in Chief Donald Trump might not serve out his full four year term.

    Groper in Chief,Donald Trump,did not hide what he was when he knocked out his sixteen Republican opponents in the primary,crude,arrogant,disrespectful of women.And this dude have been sued for cheating his contractors,students in his phony Trump U and even waitresses and waiters working in his golf clubs.Worse still,he had been sued for unwanted groping,kissing and statutory rape.

    Yet,the American people thought that he was a bargain,a pasar malam quantity.They got him and they deserve him.

  5. Today, the Justice Department has named former FBI Director Robert Mueller to serve as special counsel investigating Russia’s alleged involvement in the 2016 presidential election, including any possible involvement of Trump’s campaign in that effort. It is heartening that the DOJ took steps to make sure that Jeff Sessions could not interfere before they appointed Mueller. By not giving Sessions any advanced notice, they also made sure that Trump could have no advance notice. The Trump White House was only given 30 minutes notice before the appointment of Robert Mueller as special counsel was announced, and Sessions wasn’t told until after the letter had been signed appointing the special counsel. This behavior should dispel anyone of the notion that Sessions can be trusted to have anything to do with the Russia investigation.

    It’s clear that publicly for the past week, administration officials and most GOP members of Congress are still trying to remain calm and protect the president simply because he’s a Republican. But privately, they know the train is coming off the track, the roof is beginning to cave in as one unprecedented revelation after another is reported to the public. These developments – the firing of James Comey, the reporting that Trump demanded loyalty from Comey and asked him to halt the Michael Flynn investigation, the fact that Trump divulged classified intelligence to the Russians, today’s news that House majority leader Kevin McCarthy said Trump was being paid by Putin, and now the appointment of a special prosecutor – are all forcing Republicans into a corner.

    The GOP may not have found their spines yet when it comes to putting country above their political agenda, but it’s only a matter of time before they, too, have had enough of what appears to be a massive cover-up by this president.

    • LaMoy, good news. Mueller is an outstanding man with global reach as FBI Chief (the G-Man). He must get on with the job poste haste. America must be a nation of Laws, not of a strong narcissistic Trump. Jeff Sessions should be fired.–Din Merican

  6. It is not likely yet that President Trump will eventually be impeached. However, if he was impeached based on what public has known and what could be inferred from existing facts, it will be a defeat of Americanism and American institutions, which are characterized with independent but equal three branches of government. FBI director and Attorney General are supposed to serve at the pleasure of the president. Special council can only investigate and recommend, but not prosecute the president. FBI director must not be allowed to investigate the president, except under tight supervision and direct control of the congress, which is one of the only two government branches bestowed the power by the US Constitution to check on the executive.

    The lefts and leftism spread around the world do not believe in Americanism and its institutions as what the Framers have specified in the US Constitution. Leftists believe in what they feel the justice should be, and they are ready to tear the institutions apart to support the feeling.

    The way many third world nations initiate a coup is to make the people believe there is an independent justice to be upheld by independent council accountable to nobody but the feeling of justice expounded by the leftists.

    By the way, such an exalted state of feeling about justice is also what is promulgated by Islamists and all collectivists in the past. Carcasses of failed states could be found in history.

    Traditional American ideas are far from the leftist ideas of government. The world including Malaysia will miss a model of good government if the traditional American ideas about government fail. The world will be on fire if the world adopts ideas too far from American Trinity: Liberty, In God/Truth We Trust, and Nationalism as in E Pluribus Unum.

  7. With all this going on, i’m inclined to think that Reagan the cowboy and Dubba Lil Bush were merely pig-like, but not flying ones – unlike Senor Drumpski. Everyone makes mistakes, but no POTUS has been as Asinine and full of Deceit as D. Ivan Drumpski.

    It is a marvel that the Rednecks who are the first to jump and ‘protect’ the U.S Constitution, especially their Second Amendment (i.e gun-toting) are so enamored by a 3 time bankrupt , low class t.v reality showman – that they deny reality and that they have the worst idiot as The Chief.

    Drumpski has brought a new meaning to ‘Transactional Politics’ i.e Irreversible Cretinism.

    Also, kindly note that Personality Disorders are extremely difficult to treat – much more difficult than Psychosis. Euthanasia should be considered.

    • A 3 time bankrupt? How about 6 times, bro. Dumbo the Elephant can fly. Drumpski’s supporters are just a bunch of “poorly educated” dumbos. At the command of Drumpski they march “left, right, left right…” and the only two words they know are “left” and “right”.

  8. Over the last week The New Straits Time and others have come out with some of their best editorials on foreign issues. MSM is alive and well in Malaysia

  9. Love the fact that all folks like Shiou can do is peddle the lies and bigotry of right wing hacks to protect their idiot in the white house. The GOP and Conservatism has been shown for the liars and hypocrites that they are and the left so far is only marginally better because they do not have to protect a president like Trump.

    Malaysians should take not. American conservatism is dead and while we can and should look to specific threads for inspiration we should like any rational people discard the mainstream FOX and Friends demagoguery and embrace the kind of populism that Bernie Sanders advocates and which the DNC destroyed much to their detriment.

    • He is not just a right wing, my little brother. He is a very, very sick extreme right wing. Deng Xiaoping has a famous saying: “Black cat, white cat; the one that catches mice is a good cat.” And in America we have a saying: “There is no Democratic or Republican way of cleaning the streets.” Common folks really don’t give a damn about left wing or right wing, Democratic or Republican. Their wishes are actually very simple – a job to provide food, shelter and clothing to their families and loved ones.

    • The ability of placing food on dining table depends on a nation’s ability to place itself correctly at the left-right political spectrum. Venezuela places itself so much to the left that its people not only cannot place food on dining tables, but also cannot find enough toilet papers to wipe their butts.

  10. If Trump were impeached, it confirms rather than “defeat of Americanism and American institutions, which are characterized with independent but equal three branches of government.” The Constitution of the United States, Article II, Section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

    “FBI director and Attorney General are supposed to serve at the pleasure of the president”? What a Trump’s loyal lapdog! While it’s within the President’s power to fire a member of his administration, the insinuation here is quite different. It’s meant to convey loyalty to a monarch, translated from a Latin phrase that means “at the pleasure of the king.” Yep. Just smacks of authoritarian regime, doesn’t it? And as we know, Trump is obsessed with loyalty. In a private dinner Trump asked Comey to pledge his loyalty. Comey declined, saying he could only offer his honesty. That was one of the reasons Comey was fired.

    Neither the Attorney General, the FBI Director nor any cabinet member serves at “the pleasure of the president.” The president has the power to fire them, but they do not serve at “the pleasure of the president.” All cabinet members take the same oath as other federal employees and it looks quite similar to the one that Congress recites: “I [name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

    In fact, the only members of public service that specifically swear to serve the President are the members of our armed forces. As their Commander in Chief, the President is the final step in the chain of command for military officers. Everyone else has sworn only two things; to uphold the rule of law and to do their damn job. Federal government officials, appointed and otherwise, have only one loyalty and it’s not to the president. It’s to the promise of democracy that’s enshrined in the Constitution of the United States.

    No wonder Trump loves “poorly educated people.” They serve him like emperor.

  11. Shiou, keep your advice to yourself. We can differentiate what’s right and what’s wrong. You seem to be stuck on people being left or right!! Can’t your brain handle both sides or is it only one sided? I don’t care about leftists or rightists. I only care about what’s right or wrong and certainly what Trumptie Dumptie has been doing falls on the wrong side.

  12. When one is too deep into leftism, one starts to see things that do not exist: “promise of democracy enshrined in the US Constitution”. USA is a republic with a Constitution, not a democracy as leftists repeated so often that they believe it themselves. That is the problem of repeating lie too often that yourselves come to believe it.

    The idea of democracy is deployed in US politics while not mentioned once in the Constitution is for promoting the individual liberty. Individual liberty is further affirmed by dividing the power of the 3 branches of government – so that people can play one against the others for the purpose of preserving the individuals’ power.

    Within the realm of executive branch, president has the constitutional right to fire anyone despite the resulting political fallout. Therefore, describing FBI director and attorney general serving at the pleasure of the president is not too far off from reality. The political fallout is to be sought after by two other branches, as what is envisioned by the founders. FBI director or any agencies under the executive branch must not be allowed to use governmental power to investigate the president, except under the control of other two branches, otherwise we will have a coup and then a banana republic.

    Only the poorly educated leftists will claim they want what is “right”, to hell to the separation of power of the 3 branches of government. Because they are so poorly educated they cannot fathom that individual liberty is made possible precisely because of the 3 independent but equal branches.

    That is also the reason when a nation has a majority of leftists, the nation degenerated into a dictatorship with harsh treatment of its people: Soviet Union, China prior to 1987, Venezuela, Cuba, former Eastern Europe nations, North Korea, and every single nations (except Israel) in Middle East. You got a picture.

  13. Shiou, There you go again with your ranting. Where were you educated or did you even get one? And if you did, is it from the right? Your brain must be sparkling white from the powerful washing and bleeching (not bleaching!). Oh it must be the right side only while your left side is still the original colour

  14. Quote:- “…serving at the pleasure of….”

    This is an anachronism from a bygone era where decisions made or actions taken, however drastic on the people affected, were never ever questioned.

    Like the king, if he was an absolute monarch, could lop off your head if it pleases him, (i.e. at his pleasure), and no one asked why; like in ancient China where a court trial was instituted after execution.

    In Trump’s case, or any other past presidents, he could hire and fire certain public officials at his administrative prerogative, not at his pleasure, but the “why” could still be asked.

    Appointing a special counsel is asking why, and if his decision is found to fall under any of the impeachable categories, he has to go, whether into retirement or jail.

    Who knows, perhaps Trump have delusions of being an absolute monarch.

    • How an absolute monarch got checked by a lowly Hawaiian judge on his royal decree on limiting certain group of immigrants as what is allowed under US Constitution for president? Answer: Even the so-called monarch has more respect to the Constitution’s separation of power than you think.

  15. “Even the so-called monarch has more respect to the Constitution’s separation of power than you think.”

    Do not lie. Trump has gone on about the judiciary that even his own Supreme Court nominee felt it was disheartening. Trump’s AG taking his queue form his master made disparaging remarks about said judge. Never mind the fact that Trump has tweeted about abolishing the Ninth Circuit.

  16. “….. ability to place itself correctly at the left-right political spectrum. ”

    Except of course when a so called leftist like Hillary Clinton supported the right wing fascist of Honduras.

    It”s like this Shiou, maybe you should look at how the left wing (sic) Northern European countries handle things instead of poking your nose in South American geopolitics which just makes your left/right delusions more idiotic.

  17. You can appoint the best prosecutors in the world. But you must first identify the crime, Do not expect the criminal to give you evidence that will incriminate him.

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