Presidents Who Commit Crimes Don’t Get to Pick Their Own Justices
The nearly simultaneous conviction of Paul Manafort on eight felony counts and the guilty plea of Michael Cohen, who identifies Trump as a co-conspirator in violating campaign finance laws, accelerate the dismantling of the Trump criminal organization. Trump is likely to respond in unhinged desperation with firings, revocation of security clearances, and pardons, all of which he has discovered he can accomplish without bureaucratic interference. To state the obvious, the coming onslaught of illegitimate presidential action necessitates that the next Supreme Court justice believe in the courts as a forceful check on executive abuses. Even more obviously, the week’s events clarify that the Senate should not rush to confirm the nominee of a president who gained the presidency illegitimately, has now been identified as an unindicted co-conspirator in two felonies, and who selected this nominee to protect himself from accountability for his crimes. Just as no person can be their own judge, unindicted co-conspirators should not get to choose their own justices.
In the coming weeks, Trump is likely to abuse the powers of the presidency to protect himself from legal accountability. We can expect him to rely primarily on powers that he can exercise without the inconvenience of process. Trump has recently discovered his power to strip former and current federal officials of their security clearances. He has acknowledged targeting former CIA Director John Brennan because of Brennan’s television and twitter criticism of Trump. The White House has announced a veritable enemies list of others who Trump is considering targeting. There has been no suggestion that any of the officials have done anything to jeopardize their fitness for access to secure information under the standards of Executive Order 12968, which establishes standards for granting and revoking security clearances. Rather, Trump plainly intends to use his presidential power to grant and revoke clearances to punish the speech of his critics.
The consequences for former officials are less severe than those for the government, which enjoys the freedom to call on these officials for advice, so long as they possess clearances. The consequences for currently serving officials, however, can be profound. Trump has focused on Bruce Ohr, a career attorney at the Department of Justice whose wife once worked for GPS Fusion, the group that commissioned the Steele dossier. If Trump is willing to go after Ohr, why not Mueller, the attorneys on his staff, career analysts in the intelligence agencies, and others whom Trump perceives as posing a threat to him? Such a convenient way to disable the Deep State!
If Trump pulls clearances, there will be legal challenges asserting the due process and First Amendment rights of officials. These challenges will raise questions of first impression that likely will be resolved by the Supreme Court.
Trump may also weaponize the pardon power to protect himself. He responded to the Manafort verdict by denouncing the prosecution and praising Manafort in a tweet that may well presage a pardon. The next set of indictments from Mueller could allege another conspiracy to defraud the United States. This would be the domestic mirror of the conspiracies already charged involving Russians and could reach into Trump’s closest circle, including family members. Those indictments would almost surely provoke pardons that would raise issues, such as whether the use of pardons by a president to stifle an investigation can constitute obstruction of justice. While that might be an issue largely for impeachment, a conspiracy to obstruct justice that involved pardons among other acts could implicate others in a criminal prosecution that could reach the Supreme Court. If Trump attempted to pardon himself (preventing prosecution even after he left the presidency), the Supreme Court would surely be asked to decide the difficult question of whether the president has that power.
Another Trump response to his collapsing world is likely to entail firing officials involved in the investigation of his activities. He has already tried to fire Mueller, and would like to replace Deputy Attorney General Rosenstein, who supervises Mueller. He has also made clear that he blames Attorney General Sessions’ recusal from the Russia investigation for most of his troubles and wishes he would move on. While the president has broad powers to fire and replace political appointees, the Department of Justice regulations governing Mueller’s appointment limit the grounds for his removal and state that only the Attorney General can fire him. Trump’s circumvention of the regulations would raise difficult questions regarding presidential authority that would surely reach the Supreme Court.
Trump’s weaponization of presidential power in his own defense will generate fundamental issues of the scope of presidential power under the Constitution. Those questions cannot be entrusted to Trump’s hand-picked justice, who has written that presidents should not be subject to investigation while in office and has stated his desire to overrule Supreme Court precedent protecting the special counsel’s job.
Moreover, recent events have further undermined the legitimacy of the Trump presidency. Michael Cohen stated in open court that Trump directed him to pay off two women to silence them about sexual affairs prior to the election in violation of campaign finance laws. Publication of their stories would have affected some voters. Combine those voters with the effects of the Russian social media and hacking attacks on Trump’s behalf and Trump’s victory by a mere 77,000 votes cannot be trusted. At the very least, until Mueller’s investigation lays out the full story of Trump’s corrupt campaign, the Senate should put Kavanaugh’s nomination in limbo.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.