Tag: Russia Probe

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.

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.

Plan A and Plan B If Donald Trump Fires Special Counsel Bob Mueller

Congress needs to be prepared to take immediate action if President Trump fires special counsel Robert Mueller, former White House ethics chief Norm Eisen said Monday.

Citing Capitol Hill response to Richard Nixon's 1973 "Saturday Night Massacre" firing of the Watergate special counsel as a model, Eisen said members of the House and Senate would need to quickly launch hearings into potential obstruction of justice, take steps to assure that Mueller's records and staff are preserved --  and demand that Trump appoint a new special counsel right away to continue his work.

"We're talking about a whole other level of firestorm here," Eisen said, "and I do believe the president's hand would be forced by the abandonment of support from his own Congress and the risk of a full-blown investigation being powered forward in Congress."

Call that Plan A.

But if Republican leaders even under those circumstances refuse to act against their own president – or if Trump refuses to appoint someone new -- Plan B is for the American public to make itself heard.

"We need to be ready for that," Eisen said. "I anticipate that we'll see, as we did at the very beginning of the administration, huge public outcry."

Eisen's comments came during an American Constitution Society webinar in which he and Ohio State University law professor Peter Shane explored the various ways Trump might take Mueller off the playing field, and the possible legal and political ramifications.

Neither predicted Trump would force Mueller out – "I don't think Trump himself knows yet," Eisen said – but considering his record of violating presidential norms, they both said it was a distinct possibility.

"Trying to keep track of all the rule-of-law concerns raised by this administration is like a game of Constitutional whack-a-mole," Shane said.

The rule of law is not just about following bright-line rules and heeding explicit court orders, Shane said. It is more about a culture of deference to the integrity of the legal order.

President Trump's hostility toward Mueller's investigation into Russian interference in the election and possible collusion with the Trump campaign "has to be seen as a relentless attack on those sorts of practices," Shane said.

Firing Mueller is made more complicated for Trump by the special counsel rules set forth in 28 C.F.R. § 600.7, a federal regulation that says that "The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General."

And according to that regulation, even the attorney general needs to have a legitimate reason. "The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."

Attorney General Jeff Sessions, of course, has famously recused himself from all special counsel-related matters, leaving Deputy Attorney General Rod Rosenstein as acting attorney general for that matter.

So Trump would technically have to order Rosenstein to fire Mueller. If Rosenstein refused and resigned, then the duty would pass to Associate Attorney General Rachel Brand. And if she resigned, the duty would traditionally continue to pass down through the top ranks of the Justice Department – except none of those positions has yet been filled with a Senate-confirmed nominee.

According to an Executive Order Trump signed in February (then oddly revoked and reissued in March), the line of succession would then jump to Dana Boente. In addition to being the unconfirmed, acting chief of the department's national security section, Boente remains the U.S. Attorney for the Eastern District of Virginia, a job for which he won Senate confirmation in 2015. (That is also how Boente ended up briefly serving as acting attorney general in February, after Trump fired Sally Yates, the Obama appointee who was acting attorney general at the time.)

But all that is assuming that Trump chooses to heed that rule – which is notably part of the Code of Federal Regulations, not a legislative mandate in the U.S. Code  -- in the first place.

Eisen and Shane noted that Trump could potentially decide to fire Mueller directly – all by himself – asserting a particularly extreme view of what some hawkish constitutional lawyers call the "Unitary Executive Theory," and refusing to allow his executive power to be bound by, in this case, a mere executive-branch regulation.

("I can't emphasize strongly enough that I think this theory is wrong," Shane said.)

But that could easily lead to a messy federal court battle, making the more likely scenario a reprise of the "Saturday Night Massacre," where the top two officials in Nixon's Justice Department resigned rather than fire Watergate special prosecutor Archibald Cox. The solicitor general at the time – Robert Bork – became acting attorney general, and followed Nixon's orders.

Neither Rosenstein nor Brand is seen as likely to be willing to go along with Mueller's discharge, Shane said.

But how much will today's Congress follow the Watergate script at that point?

As Eisen noted, Cox's firing led to Nixon coming under such immediate and enormous congressional and public pressure that a mere 11 days later Nixon himself named a new Watergate special prosecutor: Leon Jaworski. And Jaworski took up where Cox had left off.

Eisen said that if Trump ousts Mueller, "I think you'll see bipartisan outcry for appointment of a new special counsel."

But that is Plan A.

And if you think the Republican Congress still won't act against Trump, or you can't imagine that Trump – after calling Mueller's investigation a "witch hunt" – would turn around and appoint someone new to lead it under any circumstances whatsoever – then the situation will call for Plan B.

Another Saturday Night Massacre?

By ACS President Caroline Fredrickson

“The Events of recent weeks have eerily reminded me of those Watergate days,” stated William D. Ruckelshaus, who resigned as President Nixon’s Deputy Attorney General after refusing to fire Special Prosecutor Archibald Cox.

Ruckelshaus joins a growing chorus of Republican advice-givers concerned about Trump’s reported desire to fire Special Counsel Robert Mueller. His opinion piece in today’s New York Times (“A ‘Saturday Night Massacre’ Veteran Offers Trump Some Advice) tracks a comparison of Nixon and Trump created by the ACS.