Deputy Attorney General Rod Rosenstein has responded to the crescendo of outrage by appointing former FBI director Robert Mueller as special counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump’’ and “any matters that arose or may arise directly from the investigation’’ as well as any other matters within the scope of the Department of Justice (DOJ) regulation on special counsel appointments.
“In my capacity as acting attorney general I determined that it is in the public interest for me to exercise my authority and appoint a special counsel to assume responsibility for this matter,’’ Rosenstein stated.
“My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command,’’ Rosenstein added.
Independent counsel Kenneth Starr thought he had “substantial and credible” evidence against President Bill Clinton in 1998. Starr turned over the results of his investigation to the House of Representatives, who then initiated impeachment proceedings.
Evidence of a Cover-up by Trump
As evidence of President Donald Trump’s malfeasance emerges, the old adage that the cover-up is worse than the crime may once again prove true.
There is circumstantial evidence of improper contact between members of the Trump administration and Russian operatives during the presidential campaign. At this point, however, we have seen no concrete proof of criminal conduct.
But evidence of a cover-up continues to mount. Trump has admitted the Russia investigation motivated him to fire FBI director James Comey. Trump asked Comey to end the investigation of former National Security Advisor Michael Flynn. Trump made veiled threats to Comey about possible tapes of their conversations. Trump demanded that Comey pledge loyalty to him, but Comey refused. And Trump defensively fixated on Comey telling him three times that Trump was not an object of the investigation.
These acts constitute probable cause that Trump engaged in obstruction of justice and witness tampering.
Both of these crimes are felonies. They are “high crimes and misdemeanors,” the constitutional standard for impeachment.
In addition, according to the Washington Post, Trump revealed “highly classified information” to Russian Foreign Minister Sergey Lavrov, Russian ambassador to the U.S. Sergei Kislyak, and Russian reporters.
Although this may not amount to criminal behavior, it could still constitute a high crime and misdemeanor for impeachment purposes.
What are High Crimes and Misdemeanors?
Alexander Hamilton wrote in The Federalist No. 65 that offenses are impeachable if they “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.”
When the president obstructs justice or tampers with a witness, that violates the public trust and injures society’s right to the fair administration of justice.
The New York Times reported that Trump revealed to Lavrov and Kislyak classified information he learned from Israel. The president does have the power to declassify classified information. But CIA whistleblower John Kiriakou told Democracy Now! that the proper procedure for a president to declassify information is that “it goes back to the CIA, to the originating office. The CIA will pull the relevant information out of the report, put it on a new blank sheet of paper and then type at the top, ‘Secret releasable to Russia.’ That way, nobody gets in trouble, no sources and methods are revealed, everybody’s happy, and we can establish something of a liaison relationship to the Russians. That’s not what the president did”
Former CIA director Michael Hayden cautioned in the Washington Post: “The information reportedly derived from another country’s intelligence service, so its revelation would have violated the near-sacred third-party rule of intelligence: Information from one country cannot be shared with another without the agreement of the originator. Break that rule often enough and your intelligence begins to dry up.”
Indeed, US intelligence officials told the Post that the “disclosures jeopardized a critical source of intelligence on the Islamic State.”
Moreover, Hayden noted, “Reportedly, National Security Council staffers were concerned enough about the revelations that they felt compelled to warn the CIA and the National Security Agency. Clearly, someone in government was concerned about potential damage.”
Trump’s revelation to the Russian officials endangers the future security relationship between the US and one of its allies, which is a significant purveyor of intelligence about the Middle East. That could injure US national security, and thereby, the society itself. Trump “revealed more information to the Russian ambassador than we have shared with our own allies,” a US official told the Post.
The Judiciary Committee’s impeachment inquiry staff during the Nixon impeachment wrote in 1974 that impeachment “is to be predicated only upon conduct seriously incompatible with . . . the proper performance of constitutional duties of the presidential office.” Under the Constitution, the president has a duty to “take Care that the laws be faithfully executed.”
There is strong evidence that Trump committed high crimes and misdemeanors to support an impeachment investigation. Mueller will undoubtedly uncover a great deal more. The new special counsel should send the results of his investigation to the House of Representatives, where impeachment proceedings take place.
Obstruction of Justice
The articles of impeachment in the cases of both Nixon and Clinton contained allegations of obstruction of justice.
The federal obstruction of justice statute punishes anyone who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.”
A conviction of obstruction of justice requires “acting with an improper purpose, personally or by influencing another.” Trump asked Vice President Mike Pence and Attorney General Jeff Sessions to step out of the Oval Office before the president requested that Comey drop the investigation of Flynn. The president didn’t want Pence or Sessions to hear what he had to say to Comey. This is evidence that Trump made the request to Comey for an improper purpose.
If Trump did fire Comey because the latter’s investigation was getting too close to incriminating Trump, it would be a cover-up, and strong evidence of obstruction of justice.
The federal witness tampering statute punishes anyone who “knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to influence, delay or prevent the testimony of any person in an official proceeding”
A person also engages in witness tampering if he “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” or “intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from attending or testifying in an official proceeding.”
Comey reported that Trump asked him for his loyalty. Although the FBI requires its officials to pledge fealty to the Constitution, not to any individual leader, Trump sought to elicit a personal loyalty oath from the FBI director. This may be evidence of intimidation to prevent Comey from testifying against Trump.
And Trump’s veiled threats to Comey about tapes of their conversation, ostensibly to keep Comey quiet, may also amount to witness tampering.
Regulations on Appointment of Special Counsel
The attorney general (AG) has the authority to appoint and remove special counsel to investigate top government officials. The AG exercises power over indictments and other prosecutorial actions. The special counsel remains accountable to the AG, who can block “any investigative or prosecutorial step” he deems “inappropriate or unwarranted.”
In March, Attorney General Jeff Sessions recused himself from the Russia investigation because during his confirmation hearing, Sessions had failed to disclose contacts he had with Russian officials. Thus the authority to appoint a special independent counsel falls to Deputy Attorney General Rosenstein.
DOJ regulations call for the appointment of an outside special counsel when (1) a criminal investigation of a person or matter is warranted, (2) the investigation or prosecution of that person or matter by a U.S. Attorney’s Office or litigating division of the DOJ would present a conflict of interest for the Department, and (3) under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. When these three conditions are satisfied, the AG must select a special counsel from outside the government.
Mueller, a former government official, is expected to resign from his law firm in order to serve as special counsel in this investigation.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her most recent book is “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.” Visit her website at http://marjoriecohn.com/ and follow her on Twitter @MarjorieCohn.
This article first appeared on Jurist.