Did President Trump Obstruct Justice?

by Barry H. Berke, co-chair, Litigation Department, Kramer Levin Naftalis & Frankel LLP; Noah Bookbinder, executive director, Citizens for Responsibility and Ethics in Washington; and Norman Eisen, Senior Fellow - Governance Studies, The Brookings Institution

*This piece was originally published by The Brookings Institution.

There are significant questions as to whether President Trump obstructed justice since taking office. We do not yet know all the relevant facts, and any final determination must await further investigation, including by Special Counsel Robert Mueller. But as we demonstrate in a new paper, “Presidential obstruction of justice: The case of Donald J. Trump,” the public record contains substantial evidence that President Trump attempted to obstruct the investigations into Michael Flynn and Russia’s interference in the 2016 presidential election through various actions, including the termination of James Comey.

As we explain in our paper, attempts to stop a government investigation represent a common form of obstruction. Demanding the loyalty of an individual involved in an investigation, requesting that individual’s help to end the investigation, and then ultimately firing that person to accomplish that goal are the types of acts that have frequently resulted in obstruction convictions, as we detail in our paper. In addition, to the extent the president’s conduct could be characterized as threatening, intimidating, or corruptly persuading witnesses, that too may provide additional grounds for obstruction charges. There is also an important question as to whether President Trump conspired to obstruct justice with senior members of his administration although the public facts regarding conspiracy are less well-developed.

While those defending the president may claim that expressing a “hope” that an investigation will end is too vague to constitute obstruction, we show that under applicable precedents such language is sufficient to do so. In that regard, it is material that former FBI Director James Comey interpreted the president’s “hope” that he would drop the investigation into Flynn as an instruction to drop the case. That Comey ignored that instruction is beside the point under applicable law. Potentially misleading conduct and possible cover-up attempts could serve as further evidence of obstruction. The president’s actions that might qualify as such evidence include: fabricating an initial justification for firing Comey, directing Donald Trump Jr.’s inaccurate statements about the purpose of his meeting with a Russian lawyer during the president’s campaign, tweeting that Comey “better hope there are no ‘tapes’ of our conversations,” despite having “no idea” whether such tapes existed, and repeatedly denouncing the validity of the investigations.

Arguments that the president has no potential obstruction exposure whatsoever are unpersuasive. The claim that the president’s legal authority to remove an FBI director is an absolute bar to obstruction liability is a red herring. As a matter of law, the fact that the president has the authority to take a particular course of action does not immunize him if he takes that action with the intent of obstructing a proceeding for an improper purpose. The president will certainly argue that he did not have the requisite criminal intent to obstruct justice because he had valid reasons to exercise his authority to direct law enforcement resources or fire the FBI head. While we acknowledge that the precise motivation for President Trump’s actions remains unclear and must be the subject of further fact-finding, there is already evidence that he may have acted with an improper intent to prevent investigations from uncovering damaging information about Trump, his campaign, his family, or his top aides.

Special Counsel Mueller will have several options when his investigation is complete. He could refer the case to Congress, most likely by asking the grand jury and the court supervising it to transmit a report to the House Judiciary Committee. That is how the Watergate Special Prosecutor coordinated with Congress after the grand jury returned an indictment against President Nixon’s co-conspirators. Special Counsel Mueller could also obtain an indictment of President Trump and proceed with a prosecution. While the matter is not free from doubt, it is our view that neither the Constitution nor any other federal law grants a sitting president immunity from prosecution. Regardless of how that question is resolved, there is no doubt that a president can face indictment once he is no longer in office. Reserving prosecution for that time, using a sealed indictment or otherwise, is another option for the special counsel.

Congress also has actions that it can take, including continuing or expanding its own investigations, issuing public reports, and referring matters for criminal or other proceedings to the Department of Justice or other executive branch agencies. In addition, there is the matter of impeachment. In its examination of the articles of impeachment drafted against Presidents Richard Nixon and Bill Clinton, as well as those drafted against Judges Harry Claiborne and Samuel Kent, our paper shows that Congress has previously considered obstruction, conspiracy, and conviction of a federal crime to be valid reasons to remove a duly elected president from office. Nevertheless, the subject of impeachment on obstruction grounds remains premature pending the outcome of the special counsel’s investigation.

Download “Presidential Obstruction of Justice: The Case of Donald J. Trump.”

*Citizens for Responsibility and Ethics in Washington (CREW) is a party (and is providing representation to other parties) in active litigation involving President Trump and the administration. Noah Bookbinder is the executive director and Norman Eisen is the chair and co-founder of CREW. Barry Berke and Kramer Levin are outside pro bono counsel to CREW.

Evading Review: The Administration’s Muslim Ban Arguments

by Ryan J. Suto, J.D., Government Relations Manager, Arab American Institute

The Trump Administration’s consolidated Muslim Ban cases, Trump v. IRAP and Trump v. Hawaii, were set for oral arguments today, October 10. However, the president released a Proclamation late last month to replace the challenged Executive Order, prompting the Supreme Court to remove the case from the argument calendar and request briefs on October 5 detailing whether litigation surrounding the now overridden and expired Executive Order is moot and thus should be denied further consideration.

The Government’s filing asserted that this case reaches the very definition of moot, arguing that the plaintiffs are asking the Court to address an issue of no practical importance by litigating an expired law. Further, the new Proclamation differs in substance and cannot be considered a mere continuation of the previous Executive Order. The Government writes, “If respondents (or anyone else) believes the Proclamation violates their rights, they can file new challenges...”

This simple and strict view of mootness is an attractive argument, and will allow the conservative members of the bench the rhetorical ammunition needed to side with the Government in revoking certiorari from the case entirely. This would avoid a substantive Constitutional assessment of the Administration’s Muslim Ban, requiring a new round of litigation to once again reach the Court.

Both filings from the ACLU and the State of Hawaii focus on the persuasive argument that the Government voluntarily created conditions for mootness, an exception in the case law. They argue that the Government “chose not to seek expedited merits review that could have been completed before the 90-day ban expired,” “chose to issue a proclamation just two weeks before oral argument,” and “reinstated effectively the same conduct in a new form.” The plaintiffs clearly felt this was the best argument for the Court, as it is detailed extensively in both filings.

There is another exception to mootness that received little attention from the plaintiffs, however. Legal questions which are capable of repetition but are brief enough to be considered moot by the time they reach the Court are not able to evade judicial review. As the Government notes, this exception applies “where ‘the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,’ and ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’” However, in reality the Proclamation is substantially the same policy as the previous Executive Order, showing that a vast majority of the impacted parties will indeed be subject to the same actions. Indeed, this exception brings to the fore one of most important policy aspects of this case.

The Proclamation itself allows the Government to add and remove countries from the banned list at will without external review, and further allows for the granting of individual waivers to the travel ban. Based on habitual Administration rhetoric, there is no reason to believe Trump will not add additional Muslim countries to the list, such as Turkey. Importantly, these flexible policies allow the Government to grant exceptions to any potential litigant’s family or home country in an effort to avoid standing and claim mootness. In fact, the Government showed a willingness to use such a tactic in claiming mootness in Thursday’s filing, arguing, “...the claims of the only two individual respondents whom the courts of appeals found to have standing became moot wholly apart from the Order’s expiration when their relatives received visas.”

If the Supreme Court sides with the Government in ruling existing Muslim Ban challenges moot, the Administration will continue to impose a Constitutionally dubious and unchallenged travel ban on any individual from the specified countries and classes who is not able or willing to file suit against the Government. More broadly, if the Court rules that the 90-day Muslim Ban can evade substantive constitutional review, the precedent is set that this, or any future, administration is free to violate the Constitution so long as it is done on a temporary basis.

*Photo credit: By Rhododendrites (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

Will Jesner Signal a Retreat from Corporate Accountability?

by Jeffrey S. Vogt, Legal Director, Solidarity Center

Since the modern “rediscovery” of the Alien Tort Statute (ATS), starting with Filártiga v. Peña-Irala in 1980, corporations have been named as defendants in ATS cases. That corporations could be held liable under the ATS for jus cogens violations of customary international law had for years generated little controversy. In 1997, in Doe v. Unocal Corp, the first major ATS case against a corporation, the question as to whether corporations, as opposed to natural persons, could be held liable under ATS was not at issue. By 2008, the 11^th Circuit Court of Appeals, in Romero v. Drummond Company, could quickly dispense with the issue holding that, “The text of the Alien Tort Statute provides no express exception for corporations[.]” This acceptance came to a halt when in 2010, the Second Circuit Court of Appeals, in Kiobel v. Royal Dutch Shell, held that corporations could not be held liable under the ATS because corporate liability was not sufficiently developed under customary international law (as opposed to US law). The US Supreme Court avoided addressing the issue when Kiobel was before it in 2013, instead finding a lack of jurisdiction over the Dutch, corporate defendant due to a presumption against extraterritoriality. Notably, not all courts followed Kiobel; the Seventh Circuit, in the 2011 case of Flomo v. Firestone National Rubber Company, kept the doors open to corporate ATS cases.

The question of corporate liability is now squarely before the US Supreme Court in the case of Jesner v. Arab Bank, PLC. I do not here examine the merits of Kiobel or Jesner, as many have already commented elsewhere. Rather, I argue that a ruling that finds the ATS does not support jurisdiction over corporations for human rights violations abroad would be out of step with the practices of many other countries, which have no difficulty in holding corporations liable. Further, recent developments in international law require states to provide victims of human rights violations with a remedy in domestic courts.

For example, in the UK, Peruvian citizens sued UK mining company Monterrico Metals PLC in London for serious abuses they suffered while held captive on company property following a protest at the mine site. In Canada, Guatemalan citizens filed tort claims against a Canadian mining company HudBay Minerals Inc. in Ontario in 2010-11 for the murder of an indigenous community leader and the wounding of another by the company’s security personnel in El Estor, Guatemala. The case is still proceeding, but the corporate nature of the defendant has not been raised as an issue. In Germany, relatives of the victims of a deadly garment factory fire in Pakistan filed a claim against German retailer KiK in Dortmund in 2015. Kik had sourced denim goods from the Ali Enterprises factory, where the exit doors prevented workers from fleeing the electrical fire, leading to the death of over 260 workers. The court accepted jurisdiction and granted legal aid to the plaintiffs to cover their costs of litigation. And in France, in 2015, a criminal complaint was filed against French construction giant Vinci for trafficking/forced labor of migrant workers on projects in Qatar. Indeed, in the EU, the so-called Brussels I Regulation provides that member states’ courts have jurisdiction to hear human rights claims against corporations based in the EU, even where the victims are not from an EU member state and the harms took place outside of the EU. These cases constitute only a small sample of the human rights cases filed against corporate defendants where the corporate form presents no question as to potential liability.

Further, some states, including France and the Netherlands, have recently enacted laws imposing liability on corporations for human rights violations which occur in their supply chains. In 2017, France enacted a law which requires major French companies to adopt vigilance plans and opens those companies to civil liability should human rights harms nevertheless occur. The Dutch legislation, also enacted in 2017, imposes on corporations a legally enforceable duty of care to eliminate child labor in their supply chains.

The opinion of UN treaty bodies likewise holds that states must regulate corporations, including for human rights harms perpetrated abroad. The UN Committee on Economic, Social and Cultural Rights, in its 2011 “Statement on the obligations of States Parties regarding the corporate sector and economic, social and cultural rights,” explained that, “States Parties should also take steps to prevent human rights contraventions abroad by corporations that have their main seat under their jurisdiction.” That same year, international legal scholars published the Maastricht Principles on Extraterritorial Obligations in the area of Economic, Social and Cultural Rights, which argued that states are obligated to regulate transnational corporations and to provide a legal remedy for victims of human rights violations committed by those corporations.

Perhaps most important, and cited by several briefs in the Jesner case, are the UN Guiding Principles on Business and Human Rights (UNGPs). Adopted by the UN Human Rights Council in 2011, the UNGPs have had a significant influence on the development of the state duty to protect against corporate violations of human rights. As the petitioner’s brief notes, the “state duty to protect human rights ‘can be rendered weak or even meaningless’ unless states ‘take appropriate steps to investigate, punish and redress business-related human rights abuses when they do occur.’” This includes providing a civil remedy for harms caused by corporations. Indeed, the Commentary to Article 23 of the UNGPs explains that “Business enterprises should treat this risk as a legal compliance issue, given the expanding web of potential corporate legal liability arising from extraterritorial civil claims, and from the incorporation of the provisions of the Rome Statute of the International Criminal Court in jurisdictions that provide for corporate criminal responsibility.” The drafter of the UNGPs, Professor John Ruggie has noted that corporations are subject to liability for human rights violations in a growing number of jurisdictions around the world.

Certainly, the arguments above are not exhaustive. However, it is clear that there is an existing practice in many states to hold corporations accountable for human rights abuses through civil (and criminal) claims, and that the commentary of intergovernmental institutions underscore the fundamental importance of states providing a judicial remedy.

Gerrymandering 3.0

by Samuel Rubinstein, Strategic Engagement Fellow, American Constitution Society

In North Carolina, the General Assembly is advancing a proposal that would add judges and district attorneys to a growing list of gerrymandered districts that already includes members of Congress and state legislators. The new maps will cut the number of judicial districts from eight to five, diluting the strength of urban votes. The new map cracks apart countywide districts in urban areas such as Wake and Durham counties. To accommodate their deliberations, the legislature moved to scrap judicial primaries planned for early next year, further tampering with voters’ choices.

Proponents call the plan an update to a system that has been unchanged for 60 years. But recently the North Carolina Courts Commission, a 30-member advisory board that helps make policy related to the state judiciary and that includes sitting judges from around the state, recommended delaying consideration of the new judicial boundaries.

Besides the lack of a transparent process and rush to approve new districts, perhaps most troubling is how the new maps would reduce diversity on an already un-diverse judiciary. According to the American Constitution Society’s Gavel Gap report, white men make up 66% of North Carolina’s judges, despite being only 31% of population.

But analysis of the proposal by NC Policy Watch shows that it would “double-bunk” more than half of all black district court judges in the state, forcing them to run against each other, with similarly severe effects on women and other minority groups, at both the district and superior court levels.

This is just the latest in a series of judicial attacks. Already, the General Assembly has switched judicial elections from non-partisan to partisan, eliminated public financing for judicial campaigns, shrunk the size of courts to deny the Governor appointments, and slashed the budget of the Attorney General, resulting in layoffs of dozens of career attorneys. The legislature is also proposing to eliminate popular election of judges in favor of selecting them by legislative election, further concentrating power in their hands. Although judicial elections are deeply flawed, a new report from the Brennan Center explains why legislative selection is equally problematic, which is why only two states use this method.

A fair judiciary is worth defending. Courts are supposed to be an impartial arbiter, insulated from the politics of the other coequal branches. Stacking the deck to make the courts subservient to the legislature is un-democratic, tramples the rule of law, and most of all, helps only those in power.

Deciding Cases is Your Job, Mr. Chief Justice

by Richard C. Reuben, James Lewis Parks Professor of Law and Journalism, University of Missouri School of Law

Chief Justice Roberts's concerns about the integrity of the court being diminished if the court starts hearing partisan gerrymandering claims is overwrought and disappointing.

The truth is, ANYTIME the court opens up a new area, as sometimes it must to enforce the Constitution and especially the Bill of Rights, there will be some cases that will need to be decided to flesh out the details. Fear of more cases, for example, certainly hasn't deterred the court from deciding questions regarding the death penalty, abortion, and affirmative action to name just a few.

What happens is that the court uses subsequent cases to provide additional guidance and things settle down as the lower courts learn to apply the new constitutional standards and only the cases that get to the court thereafter are where the courts of appeal are in significant disagreement.

There is little question that there is partisan gerrymandering, and that it has been used successfully to deprive citizens of one party their right to effective participation in the political process by making their vote meaningless in fact because it is impossible to elect the candidate of their choice. There is no question that this violates the Constitution, as it has been interpreted for more than a half century. For Roberts to sacrifice this right to vote on the altar of efficiency is an affront to the court whose integrity he seeks to preserve.

We’re Challenging Muslim Ban 3.0, Which Is Just More of the Same

by Cody Wofsy, Staff Attorney and Skadden Fellow, ACLU Immigrants' Rights Project

*This piece was originally posted on ACLU's Speak Freely blog.

President Trump signed the third version of his Muslim ban executive order on Sept. 24, about two weeks before the case involving the second version of the ban was to be argued before the Supreme Court. This action led the court to cancel oral arguments on the earlier version so that the parties could address whether the new order renders the Trump administration’s appeal moot.

In the meantime, the ACLU has returned to the federal district court to challenge the new order, which is set to go into effect on Oct. 18.

The new ban indefinitely bans people from Iran, Libya, Syria, Yemen, and Somalia, five overwhelmingly Muslim countries that were also targeted by the earlier versions. The order emphasizes that countries are being banned because they have not cooperated in providing information for visa vetting. Yet Somalia remains banned even though it does live up to the government’s new visa cooperation standards.

The order adds restrictions on Chad — another Muslim-majority nation — along with North Korea and Venezuela. The inclusion of two countries that are not Muslim majority doesn’t even qualify as a fig leaf. North Korea accounted for just 61 affected visas last year — out of more than 75 million visitors to the United States.

And Venezuela as a country is not banned in any meaningful sense. Only certain Venezuelan government officials and their families are affected, and those individuals are only barred from obtaining tourist and temporary business visas. In contrast, nearly every single person from the Muslim-majority countries is barred from getting a green card, no matter what family, business, or other U.S. connections he or she has.

The total numbers underscore the scope of suffering the new ban will impose, if allowed to go into effect, and the hugely disproportionate impact it will have on Muslims. According to an analysis of the number of U.S. visas granted by category in 2016, the new ban would bar tens of thousands of individuals from Iran, Libya, Syria, Yemen, and Somalia annually from obtaining green cards.

Many of these are people coming to the U.S. to join their husbands, wives, parents, and children who are citizens or lawful permanent residents. These families would be separated indefinitely. By contrast, the impact on people from countries newly included in the ban is small: 40 immigrants from Chad can expected to be blocked, nine from North Korea, and none at all from Venezuela.

The new ban, like the old ones, is illegal. The March version of the ban is unconstitutional because, as the Court of Appeals for the Fourth Circuit recognized, the ban violates the Establishment Clause by disfavoring a specific religion. “When the government chooses sides on religious issues,” the court explained, “the inevitable result is hatred, disrespect and even contempt towards those who fall on the wrong side of the line.”

The court noted that there was a “direct link” between Trump’s “numerous campaign statements promising a Muslim ban that targets territories,” the original ban he signed in January — “only one week into office executing that exact plan” — and the second, “watered down” version of the ban, as Trump called it.

As a candidate, Donald Trump posted a statement “On Preventing Muslim Immigration” calling for “a total and complete shutdown of Muslims entering the United States.” He claimed that “Islam hates us” and that there are “problems with Muslims coming into the country.” When this was met with outrage, Mr. Trump told the world that he would achieve the same goal without explicitly naming Muslims.

“People were so upset when I used the word Muslim,” he explained. “Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”

This third Muslim ban is yet another attempt to follow through on that campaign pledge and to paper over the president’s plain religious animus, which he has never disavowed. The courts have not been fooled and have rightly seen the previous versions of the order as unreasonable, immoral, and unconstitutional. The same is true of this one.

Get Involved