A response to Gabriel Schoenfeld
In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is mutual. But his work has become a one-note #NeverTrump tune since spring 2016, when it became inevitable that Donald Trump would be the Republican presidential nominee.
Most of us who opposed that outcome have made an uneasy peace with it. After all, to wallow about a person of Trump’s character flaws being president would not change the realities that he is president, and that how the country is governed matters more than who is doing the governing. But, alas, Gabe is forever rabid, such that if the president helped an elderly woman cross the street, we would find him seething that Trump had caused the dangerous traffic conditions — and probably just wanted to steal her purse.
Most recently, Gabe tweets that because I am “sometimes quite partisan,” my work must be “checked.” Well, in this business, everyone’s work gets checked, so fair enough. But I am a conservative, which is not the same thing as a partisan, let alone a Trump partisan. I voted for the president because the alternative was Hillary Clinton. I’ve been pleasantly surprised at how conservatively he has governed; but never having been a Trump fan, I’m detached: I support him when I think he’s right, oppose him when I think he’s wrong, and assess him not in a vacuum but in the context of his political opposition — which is usually my political opposition. You can disagree with how I work all that out issue by issue, but it is where I’m coming from.
The Constitution’s Checks on Executive Maladministration
Where I am coming from on obstruction involves the Constitution’s checks on executive power. This is the core of my disagreement with Gabe, though he seems not to discern it. It is not that I think there are no checks on presidential maladministration, including the obstruction of FBI investigations. To the contrary, as I tried explaining in a book on the subject, there are powerful checks. But they are political, not legal. Far from vexing Gabe, this should cheer him because, in his haste to get to the Trump-indictment bash, he forgot to bring along an obstruction statute that fits the “crime.” (We’ll come to that in due course.)
In our system, prosecutorial power is executive in nature. The Framers were not fool enough to make the executive the check on himself. In their contemplation, federal law enforcement was to be narrow in scope. Indeed, when Washington took office in 1789, the attorney general was essentially the president’s lawyer; there was no Justice Department to speak of until 1870, and the FBI was not established until 1908. Of course, like the rest of today’s administrative state, the federal law-enforcement bureaucracy is mammoth compared with what it was at the Founding. But though appearances have changed, the fundamentals have not: Inferior federal officers were not meant to be the check on the chief executive; the real checks are in the hands of Congress, not prosecutors and courts.
Importantly, the ultimate check, impeachment-and-removal, does not require proof of a statutory crime. High crimes and misdemeanors are breaches of trust, more in the nature of military offenses — e.g., dereliction of duty, conduct unbecoming — than penal ones.
Gabe fails to appreciate this distinction, and so is driven to distraction by how really hard it is to make a court-prosecutable obstruction case against a president. He prefers to blink away the steep hurdles and pine that the real problem is people like moi, who supposedly insist that Trump “is innocent as mother’s milk” and thereby give “the president a get-out-of-jail-free card.” In Gabe’s telling, I have even suggested that a president cannot be guilty of obstruction based on witness-tampering; here, by contrast, is what I actually argued in my National Review column on Saturday (for what must be the fourth or fifth time in the past year):
There is no legal doubt that a president may obstruct justice by the performance of illegal acts aimed at corruptly influencing legal proceedings. The plan to bribe Watergate witnesses in the Nixon impeachment proceedings and the subornation of perjury in the Clinton impeachment proceedings are illustrative.
The real questions here are twofold. The first is: Does it matter whether some presidential misconduct qualifies as a crime under some federal penal statute? Answer: Not much. No president is going to be indicted while in office; the real sanction is impeachment-and-removal, and for that the misconduct need not qualify as a penal crime (more on that momentarily).
The second question is whether the president can commit the crime of obstruction by the performance of lawful acts that undermine not only legal proceedings but, by Gabe’s lights, any kind of proceedings. Answer: No, he cannot. It rankles Gabe that I see this as an easy question and am untroubled by the answer, but that’s because he mistakes my position for a “get-out-of-jail-free card.” As I’ve repeatedly argued, if the president abuses his authority — if he takes legal actions for corrupt ends — he can be impeached and removed.
Constraining the President: Laws v. Norms and Customs
So yes, Gabe’s consternation notwithstanding, I believe it is “cockamamie” and “patently absurd” to claim that a president could be guilty of a penal obstruction offense based on exercises of his power that are lawful even if unsavory. Because the appropriate response to executive abuse of power is impeachment, not indictment, Gabe’s angst over whether such abusive actions could be indictable in court is overwrought.
The Framers armed the president with the power to pardon federal offenses (his own included), to dismiss subordinate executive officers (prosecutors included), and to shut down executive investigations (those implicating him included). It therefore seems to me ridiculous to contend that, when it came to reining in a rogue president, they envisioned criminal indictments based on an abstruse theory that lawful actions could nevertheless amount to obstruction felonies. What they had in mind was impeachment.
Gabe manages to miss this point while dancing around it. He writes:
As McCarthy himself acknowledges, when a criminal investigation is underway, the president cannot simply do as he pleases. If he wants to interfere, he is bound by norms and customs to be circumspect, either using his pardon power or issuing a direct order to shut the investigation down and taking “political heat” (up to and including impeachment) for doing one or the other.
No. Actually, the president can simply do as he pleases. And even if we assume that Gabe meant to say that the president may not simply do as he pleases — i.e., that there is some real prohibition on his doing whatever he pleases to interfere in an investigation — Gabe would still be wrong because the prohibitions he has in mind are “norms and customs.” It is by these, he says, that the president is “bound” to be “circumspect.”
No president is going to be indicted while in office; the real sanction is impeachment-and-removal, and for that the misconduct need not qualify as a penal crime.
This misconstrues “norms and customs.” It is all to the good if a president is influenced by them, but he will never be bound by them — like everyone else, the president is bound only by law. Gabe misses this distinction, theorizing that these supposedly binding “norms and customs” limit the president to only those lofty forms of interference in an investigation that Gabriel Schoenfeld is prepared to accept as “circumspect” — such forms as the official granting of a pardon and the closing of an investigation by a “direct” presidential order (apparently, an indirect order won’t do). By contrast, other forms of interference — e.g., encouraging the FBI director to halt the investigation of the just-fired national-security adviser whom the president believed had done nothing wrong — are condemnable because Gabe perceives them as beneath presidential norms, beyond the “circumspect.”
This is gibberish. If the president is not violating a law, then we can hope that he will be guided by norms and customs, but he may do whatever he thinks he can get away with politically (just as President Obama calculated he could get away with DACA, which not only flouted “norms and customs” but usurped congressional power and transgressed what Obama himself had conceded were limits on his constitutional authority).
Trump has intervened unhelpfully in a number of cases, as I’ve pointed out. Of course, we should disapprove of this. A president should not intercede in pending criminal investigations — I’d prefer if he never did it, and he certainly shouldn’t make a habit of it. It would be better if the president hewed to that norm and custom. It would have been better if Trump had not pled on Michael Flynn’s behalf to FBI director James Comey — just as it would have been better if Obama had not publicly announced in April 2016 that he did not believe Mrs. Clinton should be indicted. But the fact that it would be preferable for a president to refrain from signaling how he wants an investigation to turn out does not mean such signaling is tantamount to a criminal obstruction felony. The authority that FBI agents and prosecutors exercise when they weigh in on the merits of an investigation or prosecution is the president’s power. There is no power that the president’s subordinates may exercise but that he may not, regardless of what norms and customs counsel against it.
I observed in the aforementioned weekend column that a president should resist involvement in individual cases, not because the law requires that he do so but “because of prudential policy aimed at protecting the integrity of the legal system.” This is displeasing to Trump antagonists because a president is obviously not going to destroy the legal system’s integrity by putting his thumb on the scale just once, or even a handful of times. They prefer to imagine Special Counsel Robert Mueller cobbling together a magic-bullet obstruction charge that might knock their nemesis out of office. It is not going to happen. A president’s intrusions in criminal cases would have to achieve a certain critical mass before the system would be threatened, and only then would Congress be stirred to impeachment proceedings. But here’s the point: If that were to happen, it would not matter whether any single intrusion constituted a statutory obstruction crime; in impeachment, the salient issue is abuse of power, not guilt beyond a reasonable doubt on the elements of a penal offense.
Not a ‘Confession’
The rest of Gabe’s critique is a similar mishmash of legal confusions. Always, he assumes the worst about Trump, even when an innocent explanation is more plausible. (Gabe wants Trump in the criminal-justice system but apparently without such inconveniences as the presumption of innocence and the reasonable-doubt standard.)
A good example is Gabe’s assertion that Trump has twice “confessed” to firing Comey “to slow or end a criminal probe in which the president himself might be a suspect.” He is referring to Trump’s (1) interview with NBC’s Lester Holt and (2) comment to Russian diplomats: “I just fired the head of the FBI. He was crazy, a real nut job. . . . I faced great pressure because of Russia. That’s taken off.”
The president’s remarks to the Russian diplomats were reprehensible. But neither these remarks nor the NBC interview along the same lines amounted to a confession to a crime.
As I said at the time, the president’s remarks to the diplomats were reprehensible. But neither these remarks nor the NBC interview along the same lines amounted to a confession to a crime. Trump grew increasingly furious over a four-month period because Comey would not publicly reveal his private assurances that Trump was not under investigation, even though the director was publicly intimating that Trump was under investigation. The “great pressure” Trump complained about “because of Russia” was not the Russia investigation itself; it was what Trump perceived as Comey’s disingenuous public portrayal of him as a suspect. The investigation was never even slowed, much less shut down, by the director’s dismissal. Gabe may not buy this interpretation of Trump’s statement, but to label it a “confession” to an obstruction felony is silly.
Is an FBI Investigation a ‘Proceeding’ under Federal Obstruction Law?
Gabe spends most of his energy taking issue with my distinction between counterintelligence and criminal investigations. Offering a studiously incomplete account of the governing regulations and Deputy Attorney General Rod Rosenstein’s order appointing Mueller, he contends that the Russia investigation has never been a counterintelligence probe but, from the first, a hybrid of counterintelligence and criminal investigations. This is significant because, while skeptical about my contention that a president cannot obstruct a counterintelligence investigation in a manner that is legally actionable (because such probes are conducted specifically to inform the president about foreign threats; they are not to legal proceedings), Gabe does not rebut my position. Rather, he maintains that I have inaccurately described, as strictly counterintelligence, the investigation that Mueller was authorized to conduct; Gabe counters that it was concurrently and properly a criminal investigation.
Let’s pretend for a moment not only that Gabe is right but that counterintelligence is not a factor at all. That is, let’s pretend that Rosenstein fully complied with the governing regulations and appointed Mueller to conduct an unambiguously criminal investigation — to wit, a probe of whether Trump obstructed the FBI’s criminal investigation of Flynn. This is the best-case scenario for Gabe, yet he still falls flat.
Conveniently, Gabe’s erratic disquisition on obstruction never clues us in on what obstruction statute he believes Trump has violated. This is a telling omission: There can be no criminal prosecution absent a violation of a specific federal criminal law. Gabe does not cite one, probably because there does not appear to be one that fits.
There can be no criminal prosecution absent a violation of a specific federal criminal law.
The closest one is Section 1505 of the penal code. It proscribes (in pertinent part) obstruction of “the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.” The U.S. Attorneys’ Manual, which presumably constrains Mueller, expressly instructs that an FBI probe is not a “proceeding” under this criminal statute. (See Section 1727 of the criminal-resource section: “Investigations by the Federal Bureau of Investigation (FBI) are not section 1505 proceedings.”) Thus, while Congress has made it a crime to lie to the FBI (in Section 1001), the manual shields other arguably obstructive conduct from prosecution.
Similarly, Section 1512 of the penal code prohibits witness-tampering in official proceedings, including corrupt attempts to influence a person to withhold testimony or information about a federal crime. But again, the U.S. Attorneys’ Manual instructs prosecutors that the Section 1512 definition of “official proceedings” (found in Section 1515) is a “restatement of the judicial interpretation of the word ‘proceeding’ in . . . [Section] 1505.” (See Section 1730 of the criminal-resource section.) As we’ve just seen, the Section 1505 interpretation excludes FBI investigations.
Concededly, I think this is dubious law as applied to FBI criminal investigations. The cases on which the U.S. Attorneys’ Manual relies are from lower courts and are more than 35 years old. It should be a felony corruptly to impede a federal criminal investigation. But for present purposes, my view of the matter is of no importance. The Justice Department’s objective in having a manual is to achieve uniformity in federal enforcement — prosecutors are supposed to follow the manual even if they disagree with it. Moreover, if a federal prosecutor were to ignore the manual and break new ground, one would think this would be done only in a crystal-clear case of obstructing the FBI, not on an extravagant theory of obstruction based on lawful actions by a constitutional officer empowered to interfere in investigations.
In any event, on the facts as we understand them, it is not clear that the president could be guilty of a statutory obstruction offense. And even if one could arguably justify a charge of obstruction in the context of a criminal investigation, it would be patently unjustifiable in the context of counterintelligence. The latter is not in any sense about the administration of law in official proceedings — it’s about information-gathering.
Counterintelligence v. Criminal Investigation . . . Again
That brings us back to the distinction between counterintelligence and criminal investigations, which I have emphasized but Gabe pooh-poohs. According to Gabe, Deputy Attorney General Rosenstein’s order appointing Mueller did not make a hard “apples and oranges” distinction between the two species of investigation. Instead, he prescribed the “apricot” of counterintelligence along with the “plum” of a criminal probe. The resulting “aprium,” Gabe says, is apparent from Rosenstein’s mandate that Mueller investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” — a formulation that shows Rosenstein did not mean to limit Mueller to one or another investigative category.
Cute . . . but Gabe’s fruit salad is on the light side, and he’s missing more than a pluot.
He omits that, in defining “the investigation,” Rosenstein’s order expressly incorporates the description of it in then-director Comey’s March 20, 2017, House testimony. Comey clearly stated that the FBI was conducting the investigation “as part of our counterintelligence mission.” It was not a criminal investigation. In fact, we know the FBI and Justice Department were doing things that are not done in criminal investigations — resorting to the Foreign Intelligence Surveillance Court (rather than federal district courts) for warrants, as well as working with the CIA, NSA, and Office of the National Intelligence Director (see the agencies’ report of the investigation, dated January 6, 2017). Comey did gratuitously add that the FBI would assess “whether any crimes were committed,” but as he acknowledged, that happens “with any counterintelligence investigation” — it does not turn a counterintelligence investigation into a criminal investigation. Comey specified no crimes that were being looked at.
Gabe counters that Rosenstein’s order explicitly invites Mueller “not only to look into ‘any matters that arose or may arise from [that] investigation,’ but also ‘to prosecute federal crimes’ arising from it” (emphasis and brackets in Gabe’s original). This, Gabe insists, is a critical part of the “specific factual statement of the matter to be investigated” that the regulations require for establishing the special counsel’s jurisdiction (see Section 600.4(a) of Title 28, Code of Federal Regulations).
Well, sure. But as we’ve covered here about a million times, the fact that Rosenstein did this does not mean it was proper.
Conveniently, Gabe omits the regulations that get the Justice Department to the point of defining the special counsel’s jurisdiction. Under Section 600.1, a special counsel may be appointed only if the acting attorney general “determines that a criminal investigation of a person or matter is warranted,” and that a “conflict of interest” would be presented if the Justice Department were to handle “that investigation or prosecution” in the normal course. There are two salient things to notice about this: (a) The regulation does not authorize the appointment of a special counsel to conduct a counterintelligence investigation (which makes sense since counterintelligence probes are not lawyer work and prosecutors are not ordinarily assigned to them); and (b) there must be grounds to believe a crime warranting investigation has been committed before the special counsel is appointed.
The regulations do not authorize the acting attorney general to assign a special counsel to look for an unknown crime.
Pace Gabe, the regulations do not authorize the acting attorney general to assign a special counsel to look for an unknown crime. They require that concrete grounds for opening a criminal investigation pre-exist the special counsel’s appointment. Gabe highlights the regs’ requirement (in Section 600.4(a)) of a “specific factual statement of the matter to be investigated.” But that statement is supposed to be a description of the grounds for a criminal investigation that the Justice Department has found under Section 600.1 — i.e., the crimes the Justice Department is too conflicted to investigate and prosecute.
Rosenstein’s order thus fails. It purports to assign Mueller a counterintelligence investigation, which the regs do not permit. It further invites Mueller to root around to see if any unknown crimes were committed, in contrast to the regs, which require that the known crimes be spelled out — it is these known crimes that are supposed to form the basis for the Justice Department’s conflict, and, hence, for the special counsel’s appointment. Since these are defects in the appointment order, Gabe does not repair the order by quoting it.
Finally, Gabe’s reliance on the regulations’ authorization to investigate obstruction (which is echoed in Rosenstein’s appointment order) is misplaced. The regs authorize a special counsel to probe and prosecute obstruction of the special counsel’s investigation. The alleged obstruction incidents Gabe relies on happened prior to Mueller’s appointment and had no effect on his investigation.
Could Rosenstein have properly appointed Mueller to investigate Trump for obstruction based on, say, the Flynn matter? Perhaps, although Rosenstein would presumably have had to grapple with the preliminary question of whether the federal obstruction statutes cover FBI investigations. But assuming arguendo that this hurdle could be cleared, Rosenstein would still have had to comply with the regs: Cite the purported Flynn obstruction as the basis for appointing a special counsel, then describe it in the statement of the special counsel’s jurisdiction. Again, Rosenstein did not do that.
Conclusion
To repeat in closing, I believe it is specious to claim that a president can be found guilty of an obstruction offense, under federal criminal statutes, on the basis of acts that are within his lawful authority, even if the acts spring from malign motivations. Contrary to my friend Gabe Schoenfeld’s claims, this is not because I believe that the president is above the law. It is because our law’s check on presidential maladministration is impeachment, not criminal prosecution. If Congress concluded that a president committed acts that interfered with FBI investigations, and that were corruptly motivated even if technically within the president’s lawful authority, Congress could impeach the president. Were that to happen, it would not matter that the acts were not indictable obstruction crimes under the federal penal code.