A Perfect Storm Threatens the Rule of Law

by Reuben Guttman, Founding member, Guttman, Buschner & Brooks PLLC

*This piece was originally posted on Huffington Post.

Our nation has survived a sordid past from slavery to the internment of Japanese citizens. It even survived a duel between a sitting Vice President, Aaron Burr, and the former Secretary of the Treasury Alexander Hamilton that resulted in the Secretary’s untimely death. President Franklin Roosevelt tried to “pack the Court” as a counter measure to the “nine old men” who threatened his New Deal legislation. The republic even lived past Watergate and a President who used the power of the office to suppress dissent.

Through the lens of history – and despite the sometimes unseemly cast of characters who have made it – we have witnessed the evolution of a rule of law created incrementally through the recognition of new rights and the balancing of old ones, and with due consideration to revolutions in communication, transportation, and science. From the tired and poor and huddled masses, or immigrants, as envisioned by poet Emma Lazarus, to those with established economic stability, our rule of law, though resilient, is a constant balancing act. And, often, with changing circumstances, it is in need of a rebalance. It is, as Judge Richard Posner might opine, a change in the context that makes us see the text in a different light.

Against this setting, the protocol of the presidency is to tread lightly with due consideration for every step and its consequences for the near and long term. Our rule of law resides not in isolation but as part of a world order. Some common global rules bridge the laws of different nations. But each nation’s laws are established and must be interpreted within the context of culture and history.

Our rule of law permits some play where politics can adjust the balance of power in favor of the well-heeled or the downtrodden. Politics can result in the adjustment or passage of laws that protect immigrants and minorities and it can impact the regulation of business, science, and healthcare delivery.

As much as politics spawns passion and disagreement, it has presumptively existed within the rule of law.

That brings us to Donald Trump. There are bits and pieces of him in our history books, but there has been nothing exactly like him. He has attacked the judiciary, personalizing his attacks on judges and even threatening to split the Ninth Circuit, which is too liberal for his taste. He has invaded the province of the jury by openly criticizing verdicts, and he has even called for an accused to be executed; a request made before the sun even set on the day of the arrest. He used his pardon power to effectively reward a Sheriff who was held in criminal contempt for defying the order of a Republican Judge who sought to restrain discriminatory enforcement of the law. He has intruded into private sector workplaces and business relationships calling for employees – mostly members of the media and even some professional athletes – to be terminated or disciplined. He has attempted to taint the reputations of individuals or businesses who question his rule. He has charged that the New York Times is a “failing” newspaper and that CNN and its correspondent Jim Acosta publish “fake” news when they criticize him. When General Flynn took a guilty plea, he questioned why the Justice Department does not pursue “crooked Hillary” and he referred to the justice system as “cooked.” Unable to contain his ire, he proclaimed that the FBI’s reputation is in “tatters.” After claiming credit for securing the release of a UCLA Basketball player from prison, he launched a verbal assault on the player’s father who did not accord the President enough credit. The President tweeted: “….IT WAS ME. Too bad! LaVar is just a poor man’s version of Don King, but without hair.”

Of course, one must not forget that shortly after taking the oath of office, the President fired the Acting Attorney General who refused to enforce his travel ban. He later terminated the FBI Director for reasons that now merit the investigation of an independent counsel.

The issues here are not about politics. Politics gives the President the leeway to endorse a candidate for Senate even though he is an accused pedophile, is antagonistic to the rights of gays and lesbians and was twice removed from his judicial position for derelictions of his judicial duties. Politics even gives the President the right to appoint judges who are deemed unqualified by the American Bar Association, which the President has done. Politics gives the President the right to appoint a Secretary of Education who disdains public education and to appoint a protector of polluters to run the Environmental Protection Agency. He can even – as he has done – appoint an interim Director of the Consumer Financial Protection Bureau who has stated a desire to dismantle the agency. All of this we may not like, but he can do it.

And so, some may say, “so what, we have seen it before and we have survived.” Yet, imagine if all of this were occurring amidst the Cuban missile crisis? Actually, there is no need to imagine. North Korea has threatened our destruction with missiles that can now reach our nation’s capital.

And, just as the President has picked fights with newscasters, athletes, leaders of his own party, and vanquished politicians, he has done the same with North Korean Leader Kim Jung Un, the Australian Prime Minister, and even the Mayor of London. His taunting of the North Korean leader leaves little room for negotiation and invites war.

We teeter on the brink of extinction much as we did in October 1963. Yet, 64 years ago the leader of the free world, though inexperienced, appreciated the norms of diplomacy, the perils of his own fallibility, and the horrors of war.

It appears we are amidst a perfect storm: a President whose challenges to the rule of law sow domestic discord; and a President who – unlike his predecessors – disdains seasoned diplomats and advisors. If there was a check on Richard Nixon, it was a Democratic Congress – indeed a bi-partisan Congress – willing to ask hard questions. With few exceptions, this Republican majority in Congress is unwilling to challenge this President no matter what he does.

How will this end? How will it all play out? If Trump is threatened directly with impeachment, how will he lash out and will it have consequences beyond our borders?

Anyone who has a vision for the future – which is the stuff Presidents are made of – has to be concerned. But Trump is a different animal; for a man who lives on Big Mac’s, Filet-O-Fishand chocolate shakes, he seems to lack concern about his own future or ours. His trail of lies and half-truths speak to a man who wants to get past the moment leaving the consequences for tomorrow and another lie.

We are at a place in history without precise precedent. It is indeed a perfect storm; hopefully one which we will live to write about.

Considering Presidential Pardons after Flynn’s Guilty Plea

by Andrew Wright, Associate Professor, Savannah Law School

Michael Flynn is cooperating with Special Counsel Robert Mueller’s investigation. The plea agreement requires that Flynn “shall cooperate fully, truthfully, completely, and forthrightly with this Office and other Federal, state, and local law enforcement authorities identified by this Office.” Flynn’s statement of the offense ominously announces that “[t]hese facts do not constitute all of the facts known to the parties concerning the charged offense.” There is some debate about whether this agreement signals that Flynn has significant incriminating information about senior-most White House advisors, or President Trump himself. Only Flynn, Mueller, and the others whom Flynn might implicate on matters related to the investigation are in a position to know the quality of his cooperation.

But what if President Trump started using his pardon power to end the Russia investigation? What would be the effect, if any, if President Trump pardoned Flynn now? What about pardons of others that might be implicated by Flynn in his cooperation? Pardons raise a number of important questions after Flynn’s plea.

As an initial matter, a presidential pardon would relieve Flynn of punishment for the crime to which he has pled. He pled guilty to a single-count felony violation of the false statement statute, 18 U.S.C. § 1001. The plea agreement reflects an agreement by the parties as to Flynn’s estimated sentencing range under the Federal Sentencing Guidelines: 0-6 months of prison time and $500-$9,500 in fines in light of the total offense level and Flynn’s criminal history profile. A presidential pardon would relieve Flynn of all forms of punishment meted out by prison time and fines.

A full and total pardon would also erase other federal criminal exposure for any uncharged federal crimes Flynn may have committed that are within the terms of the pardon. While only Mueller has looked at all the available evidence, press reports about Flynn’s business dealings with people and entities affiliated with the Turkish government suggest Mueller, at a minimum, could have potentially sought criminal charges related to omissions and failures under the Foreign Agent Registration Act (FARA). The Manafort and Gates indictment demonstrates Mueller’s willingness to bring charges under FARA. Press accounts have also linked Flynn to conduct that could implicate conspiracy to commit kidnapping and criminal provisions of federal ethics laws. Flynn’s transition contacts with the Russian ambassador also raise the possibility of charges under the Logan Act because it appears he was advocating Russian actions, although that statute has its critics. In any event, uncharged crimes against Flynn, and perhaps his son Michael Flynn, Jr., remain the critical source of Mueller’s leverage to ensure Flynn’s continued cooperation. If President Trump pardoned Flynn, it would eliminate that leverage.

Presidential pardons only reach federal crimes. They have no effect on criminal prosecutions by the states. On his show The Beat, Ari Melber argued that state cooperation provision is designed to defeat presidential pardons of other parties who may have violated state law. Jed Shugerman has also advanced the theory that Mueller is playing a inside/outside federalism game as a hedge against pardons. For example, under the agreement, at the Special Counsel’s command Flynn would have to testify about any incriminating knowledge he has that would be relevant to a state money laundering prosecution against, say, Jared Kushner. The weakness in the Flynn cooperation agreement as a line of defense against the bad faith use of presidential pardons is that if the President pardons Flynn, Muller’s legal leverage over Flynn evaporates and Flynn would be less likely to honor the agreement.

While those could be significant consequences, a Flynn pardon would worsen the President’s broader legal and political troubles. It would immediately be perceived for what it was—self-protective obstruction of a criminal investigation. Some, like Andy Grewal, argue that no exercise of executive power by the President can constitute a criminal act defined by Congress. I fundamentally disagree. The use of the pardon power, like removal of the FBI director, in order to obstruct an investigation, with corrupt intent, could violate an obstruction of justice statute as well as the Take Care Clause of the Constitution. But that is a debate for another time. Self-protective pardons under these circumstances would be politically toxic, and would be an event as seismic as Comey’s firing.

What It Means to Trust and Believe Women

by Chris Edelson, assistant professor of government, American University School of Public Affairs

For much of American history, legal rules and cultural norms have deemed women unworthy of trust or responsibility.  The law often treated women as children, incapable of carrying out adult duties. Women did not have the right to vote until 1920. It took until 1961 for the Supreme Court to strike down laws automatically excluding women from jury duty.   Until 1979, state laws made it legally impossible for a husband to rape his wife. In the early 19th century, the doctrine of “coverture” provided that a married woman did not have legal status separate from her husband.  In the eyes of the law, married women were not their own person.  Women were barred—by law or by practice—from professions like law, medicine, and politics.

We like to think those days are long behind us, that women are no longer second-class citizens relegated to a separate, lesser sphere. But it may be difficult, especially for men, to recognize the ways in which significant problems linger.

The recent flood of stories about sexual assault and harassment has pulled back the curtain—in ways that are often painfully obvious but also sometimes harder to see. When women have come forward with allegations of sexual assault or misconduct by powerful men, they are often ridiculed, slandered, dismissed, or simply not believed. One of the dozens of women who described being sexually assaulted and harassed by Harvey Weinstein wore a wire to record incriminating comments; prosecutors did not bring charges.  Four women have accused Roy Moore of sexual assault, attempted rape, or groping. Moore has called this a political witch hunt and the ultra-right wing Breitbart News sent reporters to Alabama in an effort to “discredit the women”.  17 women have described being assaulted, groped, or harassed by Donald Trump. Trump called them liars and threatened to sue them after the election. He never sued, but he was elected president, and the womens’ charges have largely been ignored (though one of the women, Summer Zervos, has filed a defamation lawsuit against Trump).

Even when multiple women come forward with highly credible allegations, it is quite possible nothing will happen—or, more accurately, nothing will happen to the man they accuse. The women who describe what happened to them can expect to be publicly smeared and derided. The focus is on whether to believe their accounts—even when the stories they tell are persuasive, specific, and corroborated.

This of course reminds us what hasn’t changed. A contest between one blustering, disingenuous man and multiple, even dozens, of credible women somehow becomes an even match—or even one where the women lose. Women still know that they cannot count on being trusted or believed. No wonder so many do not immediately come forward with their accounts.

There may be, however, cautious reason for some hope. Some Republicans in Congress have decided that the women accusing Moore can be trusted. Senate majority leader Mitch McConnell (R-KY) bluntly concluded that “I believe the women”. When Leeann Tweeden said that Sen. Al Franken kissed and groped her in 2006 without her consent, Senate Democrats condemned Franken’s behavior and called for an investigation.  These are important first steps, though it is not enough. First, it remains to be seen whether there will be any consequences for Roy Moore or Al Franken. With Franken in particular, it may be his word against Tweeden’s, unless additional women come forward. Will her account be dismissed with the tired “he said, she said” rationale? Second, and more broadly, it’s essential to consider what it means to really believe and trust women. Sen. McConnell is right that men should believe women when they come forward with credible accusations of sexual assault and harassment. But men must also trust women when they say they can decide what happens to their body during pregnancy, or whether they should have access to contraception.  And, most centrally, men should welcome and support the long overdue necessity of equal representation for women in elected office, on the federal and state bench, in corporate boardrooms, and across society.  When that happens, maybe it won’t be necessary any longer to wonder whether men will believe or trust women.  Women will be able to ensure, by themselves, that their voices have power and consequence.