Obstruction of Justice Case Against Trump Only Scratches the Surface

Last week’s comprehensive paper from the Brookings Institution analyzing the case for obstruction of justice against President Donald J. Trump makes a compelling case that the President has violated the law. The report takes a deliberately narrow focus, and it likely just scratches the surface of the investigation being conducted by Special Counsel Robert S. Mueller, III.  Mueller will no doubt want to conduct a complete investigation to learn the broader picture of Russian involvement in the 2016 election, so that if there is a case for impeachment, even the Republican-controlled House of Representatives will be unable to ignore it.

The Brookings paper, produced in partnership with Citizens for Responsibility and Ethics in Washington (CREW), provides an in-depth analysis of the facts known to date. The paper concludes that “the public record contains substantial evidence that President Trump attempted to impede the investigations of Michael Flynn and Russian interference in the 2016 presidential election, including by firing FBI Director James Comey.”  In 108 pages, the report documents some of the key facts that are publicly known that support a conclusion of criminal intent, such as Trump’s asking Comey for his loyalty, clearing the room before telling Comey he hoped that the FBI could let the Flynn investigation go, asking Daniel Coats, Director of National Intelligence, to persuade Comey to stop investigating Flynn, firing Comey, and then providing shifting explanations for the firing.  While additional facts are likely already known and will become known to Mueller as the investigation proceeds, the facts documented in the report alone make a persuasive case that Trump could be charged with obstruction today.

Of course, Mueller has a far broader mandate than just investigating obstruction of justice. As outlined in his appointment order, Mueller’s mission is to probe three things: (1) “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” (2) “any matters that arose or may arise directly from the investigation,” and (3) “any other matters within the scope of 28 CFR 600.4(a).” This last section authorizes Mueller to investigate federal crimes committed to interfere with the investigation, such as perjury or obstruction of justice.

The obstruction charge is likely only a small piece of the bigger puzzle that Mueller is trying to put together.  If Mueller is able to make the case for obstruction, he is not likely to stop there.  For example, some very serious concerns have emerged about the use of social media by Russian interests to influence the election. Mueller’s mandate would certainly include exploring whether Russian actors had any assistance from members of the Trump campaign regarding geographic areas to target and issues to exploit.

In addition, other facts have emerged regarding significant financial ties between Russia and former Trump campaign chairman Paul Manafort. A recent report alleged that Manafort offered in an email message a private briefing on the campaign to a Russian oligarch. Mueller will want to explore potential violations of campaign finance laws, which are designed to keep foreign money out of American elections. He may also be considering charges under the Foreign Corrrupt Practices Act, which makes it a crime to bribe foreign officials.

Other recent reports have alleged that Manafort was the subject of not one but two separate surveillance orders issued by the Foreign Intelligence Surveillance Court. If so, that means that a FISA judge has found probable cause to believe that Manafort was acting as an agent of a foreign power, and that a significant purpose of the surveillance was to collect foreign intelligence information. In addition, other reports allege that a no-knock search warrant was executed at Manafort’s home, meaning that a judge found probable cause that evidence of a crime would be found on the premises and authorized an unannounced raid for exigent circumstances. Far from a witch hunt. Manafort and Former National Security Advisor Michael Flynn may both face possible charges of failing to timely register as agents of foreign governments for their lobbying work, which may give Mueller leverage to induce them to explain other connections between Russia and the Trump campaign.

And of course, there are the email messages in which Donald Trump, Jr., accepted a June 2016 meeting with Russians to obtain disparaging information about Hillary Clinton as “part of Russia and its government’s support of Mr. Trump.” Trump Jr., responded by saying, “If it’s what you say I love it especially later in the summer.”  The meeting was attended by Trump, Jr., as well as two other high-level advisors -- Manafort and Trump’s son-in-law, Jared Kushner. President Trump’s role in drafting a press statement about that meeting raises additional questions about his knowledge of the meeting and offers of assistance from Russia.

Mueller and his team are no doubt chasing down all of these avenues of investigation, and possibly others than are not known to the public.  Obstruction of justice is just one of these avenues.

The Brookings paper argues that the obstruction of justice charges could come in the form of a criminal indictment.  Mueller, however, is required to comply with all Department of Justice policies. Opinions from DOJ’s Office of Legal Counsel written in 1973 and 2000 conclude that sitting presidents cannot be charged criminally. Although the Brookings paper makes strong arguments that these opinions are not legally binding, Mueller is likely to abide by them as DOJ policy. While Trump could be charged once he leaves office, it seems more likely that Mueller would present his findings sooner than that to the House of Representatives for potential impeachment proceedings. It would then be up to the Republican-controlled Congress to decide whether this case of obstruction of justice meets the Constitution’s standards for “high crimes and misdemeanors” sufficient to remove Trump from office. House members may conclude that this obstruction case is not serious enough for removal from office.  There is no court of appeals for their decision.

But, if Mueller can prove that Trump accepted assistance from Russia to win the election, even the Republican House will be unable to vote against impeachment.

Senators Finally Have a Chance to Grill Jeff Sessions on Abrupt Turnarounds at Justice

by Dan Froomkin

Attorney General Jeff Sessions has a perplexingly contradictory view of civil rights law when it comes to transgendered people.

On the one hand, he is enthusiastic about prosecuting murder cases in which the victims were allegedly targeted because of their gender identity. On the other hand, he went out of his way to give employers a green light to discriminate against transgender people in the workplace; rejected the Obama administration interpretation that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice;  and defended Donald Trump's half-baked tweet in favor of banning transgender troops.

The backtracks on transgender protections are among several stark and abrupt reversals from practices during the Obama era that have come under Sessions's watch. One on level, that's not so surprising, coming from the attorney general for a president who on Monday described himself, accurately, as "very opposite" from his predecessor.

But some reversals have violated decades of Justice Department precedent – and others have come against a backdrop of consistent forward movement on social issues.

Members of the Senate Judiciary Committee on Wednesday get their first chance to question Sessions since his confirmation hearings more than nine months ago. And in order to explore how dramatically the Justice Department has changed in that time, they should ask the attorney general to explain those turnarounds, and how they came to be.

So, for instance:

Q. It seemed obvious to former Attorney General Eric Holder that the law prohibiting discrimination "because of sex" extends to discrimination because of an employee's gender identification. Why do you see things differently?

Q. If you consider the targeting of transgender people for violence to be a civil rights issue, why is discriminating against them at the workplace not a civil rights issue?

Holder in a 2014 memo, argued the legal interpretation of "sex", as cited in Title VII of the Civil Rights Act of 1964, had evolved over time. "[C]ourts have interpreted Title VII's prohibition of discrimination because of 'sex' as barring discrimination based on a perceived failure to conform to socially constructed characteristics of males and females," he wrote.

"The most straightforward reading of Title VII is that discrimination 'because of ... sex' includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex."

In July, Sessions's Justice Department filed a brief in a case in which it wasn't even a party, arguing that Title VII doesn't protect employees from discrimination based on sexual orientation.

And a few months later, Sessions sent out a memo countermanding Holder's expansive view of "sex" with a more literal, and anachronistic, reading.

“Title VII does not prohibit discrimination based on gender identity per se," because it doesn't explicitly refer to gender identity, Sessions wrote. Rather than citing new legal precedents or evidence, he simply insisted that " 'Sex' is ordinarily defined to mean biologically male or female."

But in what Matt Apuzzo of the New York Times on Sunday called an example of the "nuance" of Sessions's approach to civil rights, Sessions has been enthusiastic about fighting individual cases of violence against transgender individuals.

Sessions voted against the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2010, which amended federal hate-crime law to include crimes motivated by a victim's actual or perceived "gender, sexual orientation [and] gender identity".

But as attorney general, Sessions praised the first conviction under the new statute of a transgender murder, and has sent a DOJ lawyer to help Iowa prosecutors try a man charged with murdering a transgender high school student last year

By all accounts he even responded with alarm to a letter this March from six House Democrats, asking him to investigate the recent murders of seven African-American transgender women.

"I personally met with the Department’s senior leadership and the Civil Rights Division to discuss a spate of murders around the country of transgender individuals," he said in June.

Q. Do you think it's possible that giving the green light to a certain kind of discrimination in one circumstance might encourage it in another?

And consider Sessions's approach to civil rights violations by police officers. As with victimization of transgender people, he seems aggrieved by individual cases, but utterly heedless of the possibility that there can be a pattern and practice of bad conduct.

For instance, Sessions promised to "punish any police conduct that violates civil rights." But in a March memo that effectively halted the federal review of troubled law enforcement agencies, he wrote that "The misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe."

Q. Why do you acknowledge that there are individual violations of civil rights, but you do not seem able to acknowledge that there are also collective, institutional violations that could and should be addressed? Are you willing to acknowledge those are possible, and actually exist?

In February, Sessions was said to be behind the formal rejection of the Obama administration’s position that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice.

Q. Did you see the Obama administration's position as part of an expansion of gay, lesbian and transgender rights? What do you consider the appropriate limits on those rights?

Sessions will rightly and inevitably face a slew of questions about his encounters with Russian officials during his time with the Trump campaign, and his role in possible obstruction of justice, including the firing of FBI Director James Comey.

Matthew Miller has suggested some good questions to that end at Lawfare; Just Security has published an excellent timeline of the various obstructions, with plenty of appearances by Sessions.

It would certainly be worth getting Sessions to state clearly what exactly he has recused himself from, and why he thinks that didn't include participating in the firing of FBI Director James Comey.

Keeping to the theme of asking Sessions about reversals, senators should also  ask him about the sudden settlement in May in a case involving Russian businessman Denis Katsyv, one of whose other lawyers was Natalia Veselnitskaya, a Russian attorney who had held a secret meeting in June 2016 with Trump’s son, son-in-law and then-campaign manager.

Democrats on the House Judiciary Committee in July asked Sessions some fine questions about that:

Q. Was Natalia Veselnitskaya involved at any point in the settlement negotiations of U.S. v Prevezon Holdings Ltd.?

Q. Why was the case settled for $6 million just two days before trial was scheduled to begin? 

Q. Was there any contact between President Trump, White House personnel, the Trump family, or the Trump campaign with the Department of Justice regarding the Prevezon case? 

Q. Did you discuss the Prevezon case with anyone associated with the transition team at any point during the time you were under consideration for Attorney General?

Q. Did you discuss the Prevezon case with Ambassador Kislyak, or any other Russian official, at any time?

When it comes to voting rights, one Sessions about-face wasn't simply a rejection of Obama administration policy, it was a reversal of more than two decades of consistent Justice Department enforcement of the rule in question. The brief was signed exclusively by political appointees. By contrast, a group of former political appointees and career lawyers filed an amicus brief with the Supreme Court to represent the historical view.

Q. Why did no career Justice Department lawyers sign the brief your solicitor general filed in July doing a 180 on the Department's traditional position on its interpretation of a key element of the Voting Rights Act?

In a key labor relations case, the Justice Department in June not only abandoned its previous position, it actually filed an amicus brief on behalf of the companies that were formerly its targets. The issue was whether arbitration agreements can bar employees from suing their employers. The Obama administration argued no; the Trump administration argued yes.

The brief, with admirable transparency, explained that "After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion."

Q. What factors played a role in the department's reversal on whether arbitration agreements can bar employees from suing their employers?

The Solicitor General has often been called "the Tenth Justice" in light of the office's tradition of honoring the doctrine of precedent. It isn't supposed to switch positions on the interpretation of federal law willy-nilly.

Q. What sort of process is there to determine whether the Solicitor General should abandon a previously held interpretation of the law?

Q. How high is the bar?

Under Obama, the Justice Department was defending a new rule regarding hydraulic fracturing operations on public lands. But when it was time for oral arguments, the Trump administration had already started dismantling the rule. So a Justice Department lawyer told a 10th Circuit panel that his bosses didn't want to win the case anymore – but also didn't want to lose it, either, because that might set a bad precedent.

A 1984 Supreme Court decision requires judges to defer to administrative agencies’ interpretations of ambiguous federal law.

Q. Are you concerned that abrupt reversals in interpretations of federal laws could lead the courts to reconsider the normal cannons of deference?

Sessions has ordered prosecutors to abandon Obama-era leniency when it comes to prison sentences for nonviolent drug offenses, returning to the drug-war tactics that led to the current state of mass incarceration.

Q. Do you think the Drug War has worked?

Q. Do you disagree that mass incarceration has a disproportionate impact on people of color?

There's been an emerging consensus on the right and left that civil asset forfeiture by law enforcement agencies is widely abused, wildly unfair, and probably unconstitutional.

In July, Sessions rolled back Obama-era curbs on asset forfeiture and announced the federal government will seize more cash and property from suspected criminals, whether or not they have been charged with a crime.

But his move was so unpopular in both parties that the House overwhelmingly passed an amendment that would roll back the Sessions rollback.

Q. What prompted you to try to reopen the civil asset forfeiture spigot?

Q. Who, besides you, thinks that letting the government seize innocent people's property without charging them with a crime is a good idea?

Every new administration wants to put their stamp on the Justice Department. But the way Sessions is reversing course at times seems not very well thought out. Making Sessions answer for those actions is what congressional oversight is all about.

GRITS (getting radical in the south) Conference

by Taylor Loynd, VP of Administration, ACS Student Chapter, and 2L, University of Texas School of Law and Marcus Martinez, VP of Programming, ACS Student Chapter, and 2L, University of Texas School of Law

*Loynd and Martinez are co-directors of the 2017 GRITS Conference

GRITS. It’s not just our favorite breakfast meal. It’s also our favorite way of getting radical in the South. The GRITS (getting radical in the south) Conference started at the University of Texas School of Law in 2015 by a group UT law students who wanted to provide an opportunity for dialogue on the inherent challenges of social justice work in the region, and strategies to overcome them, among public interest law students, practitioners, and activists in the South.  The 2017 GRITS Conference just wrapped at the University of Texas School of Law on September 22-23 and served as the ACS Texas Regional Convening.

Getting radical means something different for everyone involved in the conference. To some, it means being critical of how legal and social institutions disproportionately disadvantage people of color, women, members of the LGBTQ community, and those living in poverty. To others, it means letting your identity and values guide how to work inside and out of those social and legal institutions. Still, others believe getting radical is simply acting with compassion. The need for radical work, specifically in the South, evokes different issues for people, as well, whether it’s the legacy of segregated living throughout the region or the heavily militarized border shared with Mexico.

As co-directors of the 2017 GRITS Conference, we wanted to continue the original mission of GRITS and foster a continuing conversation about what it means to get radical in the South. We believe providing this space is crucial to continue social justice work in the South, especially in the new political climate. We partnered with organizers, community leaders, impact litigators, direct-services providers, policy advocates, and law students to collaborate and discuss Economic Solidarity, Healthcare Access for Vulnerable Populations, Immigration and Border Militarization, Implicit Bias, the Gavel Gap, Radical Defenses Against the Prison-Industrial Complex, Restorative Justice, and Women’s Economic Security.

In one of the most impactful sessions of the weekend, the Gavel Gap discussion brought Travis County Associate Judge Aurora Martinez Jones to the conference to describe her journey from law school to her career as a judge, all while facing the reality of significant disparities between the race and gender composition of the courts and the communities they serve. These disparities are known as the Gavel Gap and ACS has worked to create a database of information for over 10,000 currently sitting state court judges of general jurisdiction in all 50 states to examine the gender, racial, and ethnic composition of state court, which was then compared to the gender, racial, and ethnic composition of the general population in each state. Hearing Judge Aurora Martinez Jones speak about the compassionate, fair, and supportive way she operates her court room, presiding over the Child Protective Services and family drug court dockets, brought the exact kind of conversation we want to foster at GRITS. Furthermore, her call to all aspiring attorneys of color to consider pursuing a judgeship inspired the diverse members of the audience, and her presence made the possibility feel all the more achievable.

The GRITS Conference is an opportunity for law students, lawyers, and activists to build coalitions, share strategies for progressive lawyering, and develop new approaches for the future. This space is essential for the future of social justice work. 

US Supreme Court will hear petition to review Microsoft search warrant case while momentum to modernize the law continues in Congress

by Brad Smith, President and Chief Legal Officer, Microsoft

*This piece originally appeared on Microsoft on the Issues on October 16, 2017.

In July 2016, the Court of Appeals for the Second Circuit agreed with Microsoft that U.S. federal or state law enforcement cannot use traditional search warrants to seize emails of citizens of foreign countries that are located in data centers outside the United States.  Today, the Supreme Court granted the Department of Justice’s petition to review Microsoft’s victory.  This is an important case that people around the world will watch.  We will continue to press our case in court that the Electronic Communications Privacy Act (ECPA) – a law enacted decades before there was such a thing as cloud computing – was never intended to reach within other countries’ borders.

But as we have said from the beginning of this litigation, there’s a broader dimension to this issue as well. The continued reliance on a law passed in 1986 will neither keep people safe nor protect people’s rights.  If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what’s to stop the government of another country from getting your emails even though they are located in the United States?  We believe that people’s privacy rights should be protected by the laws of their own countries and we believe that information stored in the cloud should have the same protections as paper stored in your desk. Therefore, Congress needs to modernize the law and address these fundamental issues.

In his Second Circuit opinion, Judge Lynch urged Congress to act, and many members of Congress have publicly agreed. Legislation has been proposed in both houses to update the law and we support these efforts, regardless of the outcome of our case in the Supreme Court.

The current law, ECPA, was enacted in 1986 when the World Wide Web was still a few years away from being invented and no one conceived of conducting most work and personal business online.  A world connected by cloud services simply didn’t exist. The ways in which we communicate have radically changed over the past three decades — but the laws governing those communications haven’t. Current laws don’t adequately support the needs of law enforcement anywhere in the world or protect our rights.

We challenged the warrant that resulted in this ligation because we believed U.S. search warrants shouldn’t reach over borders to seize the emails of people who live outside the United States and whose emails are stored outside the United States. We challenged the DOJ’s interpretation of the law because we strongly believe it is problematic in a number of ways:

  1. It contradicts the basic premise that before a U.S. statute reaches across another country’s borders, it should be clear that’s what Congress intended when it passed the law.
  2. We disagree with the premise of the government’s argument in favor of the warrant that customer email is the property of the email provider, not the customer, which would cause people to lose their rights when they go online.
  3. It creates conflicts with the laws of countries in Europe and elsewhere around the globe, which are intended to protect privacy interests and restrict the disclosure and transfer of personal data to a third country.
  4. It puts everyone’s emails at risk – if the U.S. government can unilaterally use a warrant to seize emails outside the United States, what’s to stop other governments from acting unilaterally to seize emails stored inside the United States? At a time when countries are rightly worried about foreign government hacking, the DOJ’s interpretation would open the door to accomplishing the same thing.

The current laws were written for the era of the floppy disk, not the world of the cloud. We believe that rather than arguing over an old law in court, it is time for Congress to act by passing new legislation, such as the International Communications Privacy Act (ICPA) of 2017. This past July, Senators Orrin Hatch, R-Utah, Chris Coons, D-Delaware and Dean Heller, R-Nevada, introduced ICPA in the Senate which builds on previous versions of the legislation. Representatives Doug Collins, R-Georgia, Hakeem Jeffries, D-New York, Darrell Issa, R-California, and Suzan DelBene, D-Washington, introduced an identical bill in the House.

ICPA provides sensible ways for cross-border data access, including a robust legal process to access the email of Americans and notification of foreign countries, when required under international law. Without these important clarifications, technology companies, law enforcement and the courts will continue to interpret and apply a law to technologies and circumstances far beyond what Congressional leaders envisioned in 1986.

Gun Violence Groups Call on Elected Leaders to Act

by Christopher Wright Durocher, Director of Policy Development and Programming, ACS

A coalition of 88 groups concerned with gun violence in the United States has released an open letter to the elected leaders of America, calling for meaningful legislative action in the wake of the shooting earlier this month in Las Vegas that left 59 people dead and more than 500 injured.

The letter assails Congress for considering two bills that would liberalize gun regulations—one removing restrictions on the sale of firearm silencers and the other effectively nationalizing the most permissive state concealed carry permit laws through federal mandated reciprocity between states. Though the National Rifle Association (NRA) and its gun industry allies defend these measures as commonsense and necessary to meet Second Amendment principles, these bills go far beyond the protections of the Second Amendment the Supreme Court laid out in the seminal case District of Columbia v. Heller.

The letter also calls on elected officials to take demonstrable steps towards ending gun violence through a series of reforms, including universal background checks, bans on assault weapons and high-capacity magazines, the repeal of broad legal immunity for the gun industry, and federal funding for gun violence prevention research.

To date, the only measure being widely discussed in response to the Las Vegas shooting is the regulation of so-called bump stocks, devices that use the kickback of a semi-automatic rifle to enable them to fire at nearly the rate of a machine gun. While gun violence prevention advocates consider this a necessary step in light of the Las Vegas shooter’s use of a bump stock, they believe it is insufficient to address the gun violence epidemic confronting the nation, which goes well beyond mass shootings.

Notably, the advocates address their demands to “American leaders, from the halls of Congress to town council chambers,” implicitly acknowledging that even absent federal action, there is much that state and local leaders can do to address gun violence. For instance, since the tragic shooting in Newtown, Connecticut in 2012, Congress has failed to take any meaningful steps to address gun violence, but states and cities across the country have passed 180 gun violence prevention laws that expand background checks, increase protections for victims of domestic violence, and limit the availability of certain types of weapons. Currently, seven states, as well as cities like Chicago and Washington, DC, ban assault weapons. Unfortunately, even at the local level, violence prevention efforts are being frustrated. As the recent ACS Issue Brief The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond, explains, “forty-three states have enacted broad preemption statutes related to firearms and ammunition, with eleven states absolutely preempting all municipal firearm regulations.”

Despite these obstacles, in addressing all of America’s elected leaders, gun violence prevention advocates recognize that meaningful steps to curtail violence require local, state and federal action.  

Read the full letter here.

An Open Letter to Chief Justice John Roberts

by Eduardo Bonilla-Silva, Ph.D., president of the American Sociological Association

*This letter was originally published by the American Sociological Association.

During oral arguments in the gerrymandering case Gill v. Whitford, Supreme Court Chief Justice John Roberts referred to social science as "sociological gobbledygook." ASA President Eduardo Bonilla-Silva has responded in a letter, the content of which is below.

Dear Chief Justice John Roberts:

I write today on behalf of the American Sociological Association, the nation’s largest scholarly professional association of sociologists, to respond to a comment you made during oral arguments on Tuesday, October 3rd for the case of Gill v. Whitford. You said: “It may be simply my educational background, but I can only describe it [social science data] as sociological gobbledygook.” 

We were pleased to learn that Justices Kagan and Sotomayor subsequently expressed concern about your statement and spoke to the value of social science measures.  In this letter, we provide additional context for understanding the empirical nature of social scientific data and the ways it has served the national interests.

In an era when facts are often dismissed as “fake news,” we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted.  What you call “gobbledygook” is rigorous and empirical.  The following are just a few examples of the contributions of sociological research to American society that our members offered in response to your comment:

  • Clear evidence that separate is not equal
  • Early algorithms for detecting credit card fraud
  • Mapped connections between racism and physiologic stress response
  • Network analysis to identify and thwart terror structures and capture terrorists
  • Pay grades and reward systems that improve retention among enlisted soldiers
  • Modern public opinion polling
  • Evidence of gender discrimination in the workplace
  • Understanding of the family factors that impact outcomes for children
  • Guidance for police in defusing high-risk encounters
  • Strategies for combatting the public health challenge of drug abuse

We are certain that the social scientists and legal scholars at your alma mater would be disappointed to learn that you attributed your lack of understanding of social science to your Harvard education. Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff.  Given the important ways in which sociological data can and has informed thoughtful decision-making from the bench, such time would be well spent. 

Sincerely,

Eduardo Bonilla-Silva, Ph.D.
President, American Sociological Association