Corrupt Intent Plus A Platitude Equals What?

And the answer is . . . no one knows.

The president believes he is above the law. That’s the takeaway from the confidential 20-page memo sent by President Trump’s lawyers to the special counsel, Robert Mueller, published over the weekend by The Times. And it’s the same sentiment that Rudy Giuliani expressed on Sunday when he suggested that Mr. Trump has the power to pardon himself.

The long and dubiously artful letter by John Dowd and Jay Sekulow on behalf of their client isn’t likely to persuade Special Counsel Robert Mueller of much of anything. It will play to its tribe and be ridiculed by the other tribe. 

The central claim of the legal memorandum is that it is impossible for the president to illegally obstruct any aspect of the investigation into Russia’s election meddling. That’s because, as president, Mr. Trump has the constitutional power to terminate the inquiry or pardon his way out of it. Therefore — and this is the key and indefensible point — he cannot obstruct justice by exercising this authority “no matter his motivation.”

Harry Litman, former United States Attorney for the Western District of Pennsylvania under President Bill Clinton, argues that corrupt intent is what distinguishes the exercise of presidential authority from a constitutional power to obstruction of justice.

No tenable account of executive power holds that a president’s purposes in exercising powers accorded under Article II, “to take Care that the Laws be faithfully executed,” have no import. If it were otherwise — if the president had the authority to use his constitutional powers for any reason — it would follow that he could accept a bribe for doing an official act, or, more saliently, extend a pardon to keep a witness from testifying. This would very clearly violate the maxim that the president is not above the law.

Except there is no such legal doctrine that “the president is not above the law.” It’s a platitude, the sort of fortune cookie wisdom that we latch onto to fill the gaps in actual law. And in this case, it’s not even the platitude, which is “no man is above the law.” It might seem that Trump must be included, but that’s the question. Does the president violate the law by the exercise of discretion afforded by the Constitution if done with corrupt intent?

George Washington lawprof John Banzhaf’s email press release today takes the opposing view.

Critics counter than “no man is above the law,” but that is a sound bite and slogan, not a legal principle, notes public interest law professor John Banzhaf, who suggests that it is not true, and, even if it were, it does not apply in this situation since some presidential actions could constitute obstruction.

For example, top diplomatic officers from foreign countries have full immunity, as do their deputies and families.  This means that they cannot be arrested nor convicted of any crime – including even rape or murder, much less obstruction of justice – and thus are ‘above the law” in every sense of the words.

Well, that’s something of a special situation, given the implications for international relations. So the platitude isn’t a trusim, but Trump is no diplomat from a foreign nation.

A better and more appropriate example is a U.S. Senator who is given the authority to vote on the Senate floor by the U.S. Constitution.

If he acts within that authority and votes, it seems clear that he has not committed a crime, even if he acted with so-called “corrupt intent” – e.g., he helped defeat legislation which would have hurt his business interests, or help a romantic rival avoid bankruptcy or even jail, or, in a very close analogy, the legislation would have established an agency which would probably have uncovered his own wrongdoing.

Would it be a stretch to believe that elected representatives act with corrupt intent on occasion, and that we don’t blink an eye about it? Well, sure, but then we don’t obsess over them as we do over the president, so just because they got away with it doesn’t mean Trump should.

But does any of this mean the president is subject to indictment or prosecution, rather than impeachment for his failure to “take care”? Who knows?

We are deep into uncharted waters here. It’s not that we haven’t touched the edges of the shoreline in the past, but there has never been an answer to the myriad questions raised by the scenario at issue. There are arguments for and against. There are platitudes aplenty. There are certainly very passionate views of right and wrong. None of these answer the question.

Although this action had disastrous political repercussions, and led to a unique statute which would permit the appointment of a somewhat independent special prosecutor – who was still part of the executive branch under the president, and subject to presidential termination indirectly by his attorney general for cause – Nixon’s firings themselves would not seem to constitute the crime of obstruction of justice.

In any event, any discussion of potential criminal liability for Trump may be strictly academic, since the weight of legal authority as well as Justice Department policy holds that a sitting president cannot be indicted or tried for any crime while in office, and he could probably pardon himself if necessary.

We may well end up with an answer to the question of criminal culpability for a president, even if for obstruction rather than the elusive crime of “collusion” that precipitated this mess, but at the moment, this is all bluster. There is no legal “answer” to these questions, just arguments. You can believe whatever you want, but it doesn’t change the fact that platitudes aren’t law no matter how easily they fit into a twit or a New York Times op-ed.

18 comments on “Corrupt Intent Plus A Platitude Equals What?

  1. Richard Kopf

    SHG writes: “You can believe whatever you want, but it doesn’t change the fact that platitudes aren’t law no matter how easily they fit into a twit or a New York Times op-ed.” No truer words have been written. But as is his style, there is a nuance to SHG’s writing that is easily overlooked.

    Notice the word “law” in our host’s sentence. Concentrate upon it for a moment. What does SHG mean by “law?” Does he mean to include the “law” of impeachment, a “high crime or misdemeanor?” If so, we ought to consider Federalist No. 65, where Hamilton explained the “law” of impeachment.

    Hamilton defined impeachable offenses as “those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” By using the word “political” Hamilton expands the legal universe exponentially when it comes to Trump.

    Mueller and Trump (and SHG) are on the same page. They understand “law” in two contexts. That is, the law found in the statutes and the law found in the Constitution. The two are not the same.

    SHG is a sly one.

    All the best.

    RGK

    Reply
          1. Richard Kopf

            A wise one once said, provide the tweetees “with a unicorn and tell them to ride like the wind.”

            Oyster Bay Confucius (circa 2018)

            Reply
  2. jack p

    Platitudes like “no man is above the law” are politics, which trumps the laws. The US president is a political figure with popular support; if he can gather enough support in congress and the uninterested mob of US citizens to squash the case against him, it will become lawful for him to do it. Because these politicians make these laws, and the wording of them means what they damn well want them to mean. Only the constitution is, ahem, inviolate. Because of course that honored document has not been subject to creative misinterpretation by interested Parties.

    Two kinds of people laugh at the law; those that break it and those that make it.

    Reply
  3. Justin

    It seems to me the real confusion is about what obstruction of justice is and why it’s a crime. The talk around Trump just serves to keep up the pretense that the way out of a Trump presidency is by arguing he committed a crime.

    Reply
  4. Ken Mackenzie

    A workaround. President Trump has surgery. While he’s under general anaesthetic, Vice-President Pence becomes Acting President, and pardons Mr Trump, his family, and all the cooperating witnesses. Legal problem solved.

    Reply
  5. mineforever9999

    a pardon requires a conviction,
    once convicted, no longer president,
    no longer president, no power to pardon,
    no power to pardon, cann’t pardon ones self,
    cann’t pardon ones self, with a conviction,
    with a conviction, don’t pass go, don’t collect $200,
    go directly to JAIL !!!!!!!!!!!!!!!!!!!!!

    IF PRES could pardon himself Nixon wold have pardon himself and not needed PRES FORD to pardon him.

    Reply

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