Legal experts debate whether special counsel Robert Mueller has the authority to indict or prosecute a sitting President. Missing from any public discussion is a middle-ground option that is not necessarily precluded by any Justice Department legal opinion, and that was strongly endorsed by the Watergate special prosecutor’s legal team. What’s the option? Presentment.

Grand juries have historically had the power not only to indict but also to issue presentments, which were more like reports of wrongdoing without a criminal charge. The Fifth Amendment of the Constitution contemplates this practice in its opening words:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

Watergate special prosecutor, Leon Jaworski’s legal team strongly recommended that if he thought it was either unconstitutional or imprudent to indict or prosecute a sitting president, he could nevertheless seek a presentment by the grand jury. Jaworski’s lawyers concluded that presentment was not just a constitutionally available option, but that Jaworski was compelled to pursue it if the other options were closed. They wrote:

If we conclude that indictment of the President is constitutionally barred or is inappropriate, then we and the Grand Jury can and must fulfill our responsibilities to the public and to the law by recommending a Grand Jury presentment setting out in detail the most important evidence and the Grand Jury’s conclusions that the President has violated certain criminal statutes and would have been indicted were he not President. There appears to be no question of the propriety or legality of such a course….

So, the question is, if Mueller has sufficient evidence of criminal wrongdoing by President Trump, should he ask a grand jury to declare “that the President has violated certain criminal statutes and would have been indicted were he not President.” Continue Reading »

 Top image: A man makes a slashing motion across his throat toward counter-protesters as he marches with neo-Nazis and other rascist groups during the ‘Unite the Right’ rally August 12, 2017 in Charlottesville, Virginia.  Second image: White nationalists, neo-Nazis and members of the ‘alt-right’ with body armor and combat weapons evacuate comrades who were pepper sprayed after the ‘Unite the Right’ rally was declared a unlawful gathering by Virginia State Police. 

We at Just Security are supposed to be off the grid this week, but after spending too much time watching footage of Saturday’s violence in Charlottesville and the White House’s response to it, I, like many Americans, worry that the threat-posed by fascism within the United States only going to get worse.  I watched organized Nazi and other racist groups, supervised by men wearing Secret Service-style earpieces and escorted by men with assault-style rifles (as well as those earpieces) fight as cohesive units that have been rehearsing for Saturday’s battles. (It’s worth noting that in addition to bringing their own paramilitary escorts, dubbed “peacekeepers,”  they also sometimes resisted police who were attempting to disperse them.) Since fascism’s rise only appears to be accelerating, I want to briefly resurface to share several books that I’ve read, or are on my reading list, that are sadly appropriate reading for where we are now. Perhaps you’ve already read these books, or know the truths they contain, but someone you know hasn’t, and should.

It Can’t Happen Here

Sinclair Lewis’ classic 1936 novel on how a populist presidential candidate brings fascism to the United States. At moments throughout 2017, I’ve found myself feeling like we’re eerily using parts of this fiction as our national playbook. Often described as described as “not much of a novel” but nonetheless Lewis’ “best work”. The author himself labelled the book as “propaganda for only one thing: American democracy”, which he penned in just a few months amidst a rise in public support for populist, authoritarian ideas and figures — including Nazism — in a United States wracked by the Great Depression.

Dark Age Ahead

Jane Jacobs had a fantastic ability to spot broad patterns in numerous small data-points across society to identify truths that often escaped trained experts and technocrats who focused only on their individual areas of study or narrow and commonly accepted metrics. While she is best-known for doing this in her 1961 work, Death and Life of Great American Cities, she used this talent in 2005 to write her final book, an alarm about what she saw as warning signs that the liberal, western order may be in peril. While not nearly as in-depth as Death and Life, the idea behind her underlying message — that societies don’t always march forward in progress, instead they can, and many times have, slid backwards after centuries of progress — is worth reading about in times like these. Continue Reading »

My friend Marty Lederman has a characteristically useful post up about one of many important legal questions surrounding options in the current stand-off between the United States and North Korea.  As he puts it: “Would it be lawful under the U.S. Constitution for Trump to use force, including nuclear weapons, as a ‘first strike’ against North Korea, in an effort to degrade that nation’s nuclear capabilities, absent evidence that Korea has already decided to strike the United States and is going to do so with no time for legislative deliberation?”

Marty and I have long argued in blogs and otherwise about the wisdom and scope of presidential power to use force without congressional authorization–but we both certainly agree that the most recent, formal executive branch view of the scope of that power may be found in the 2011 Justice Department OLC memorandum explaining why the President had constitutional authority to use force in Libya without prior congressional authorization, which rests, in large measure, on a pair of opinions written by Walter Dellinger in the Clinton Administration, respecting the use of force in Haiti (1994) and Bosnia (1995).  According to the 2011 OLC view, the President has power to use force under Article II of the Constitution if two conditions are met: if a significant national interest is at stake, and if the anticipated “nature, scope, and duration” of the operation would make it something less than “war” within the meaning of the constitutional clause giving Congress the power to declare it.

In the Libya case, the President contemplated no use of ground troops, anticipated a short-term “and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster,” and foresaw minimal to no risk to U.S. troops.  As OLC put it, “although it might not be true here that ‘the risk of sustained military conflict was negligible’”–in other words, while it wasn’t actually clear ex ante what kind of conflict was likely to ensue–the absence of any planned preparation for ground invasion and past practice of substantial, sustained bombing campaigns without congressional authorization, was sufficient to satisfy the criterion that the anticipated hostilities would be something less than “war.”  In addition, OLC recognized significant national interests in promoting regional stability and in supporting the UN system (in particular, a UN Security Council Resolution that had authorized (as a matter of international law) the use of force to protect Libyan civilians then subject to brutal attack). The OLC memo of course did not limit the kind of “national interests” that could justify unilateral presidential action to those particular interests; indeed, other presidents have used force unilaterally to achieve different purposes entirely (most common of all – protection of U.S. persons and property).

This broad OLC concept of presidential authority notwithstanding, Marty now argues that it “must be wrong” that the President could act against North Korea under the circumstances he specifies here without congressional authorization for two primary reasons.  First, because “unilateral use of force” in this scenario would put the United States “in breach of its treaty obligations – and a strike here would almost certainly violate Article 2(4) of the U.N. Charter” – it would also violate our own Constitution, which itself makes treaties part of the “supreme law of the land” under Article VI, which the President must “take care” to faithfully execute.  Second, the President could not be understood to have Article II power to use force to a degree that would amount to “war in the constitutional sense,” for that power – the power to declare “war” per se — is textually committed to Congress alone.  Where, as here, the President seems to have in mind using force in “a manner that threatens to lead to the sort of conflagration we can expect in this case,” it should be apparent that “[n]o one individual, let alone the one presently in the West Wing, should be afforded the unilateral power to so radically transform the world.”

I find it much harder than Marty to square OLC’s broad conception of presidential power in the post-Truman era with a denial of presidential power to act here. Continue Reading »

With less than five months to go until Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires, we still do not have a clear path forward to a reauthorization that would also address the law’s substantial problems.  A major reason for this is an impasse on what to do about the law’s most significant flaw: that it permits the government to seek out the content of Americans’ communications that have been swept up through Section 702 without any suspicion of wrongdoing, let alone a warrant, a problem known as “the backdoor search loophole.” Unfortunately, opponents of reforming the loophole have either failed to understand how the proposed fix to the loophole would actually work, or are describing it inaccurately in an effort to discredit reform.

A common critique of the fix has recently come forward. It wrongly argues that closing backdoor search loophole would require a probable cause warrant to access any information about Americans, and that such a universally onerous requirement is just asking too much of an early-stage counterterrorism investigation.  Continue Reading »

That’s the argument the Justice Department is making in Knight First Amendment Institute v. Trump — the lawsuit in New York challenging President Trump’s blocking of users on Twitter on First Amendment grounds, in which the plaintiffs are seeking injunctive relief. Quoting (if mis-dating) the Supreme Court’s 1867 decision in Mississippi v. Johnson, the government is arguing that “courts lack jurisdiction ‘to enjoin the President in the performance of his official duties.'” This is not the first time that the Trump administration has invoked Mississippi; it’s also come up in the CREW v. Trump Emoluments Clause litigation. But for a host of reasons, the Knight case may raise the question more directly — and may eventually provide the Supreme Court with the first opportunity in 150 years to revisit one of the least-well-understood of its major separation-of-powers decisions. To that end, the post that follows aims to introduce readers to Mississippi itself, how it has subsequently been treated by the federal courts, and why it almost certainly is not (and should not be) the case today that “courts lack jurisdiction ‘to enjoin the President in the performance of his official duties.'”  Continue Reading »

With news that Special Counsel Robert Mueller has begun using grand juries to conduct his investigation, there are now questions about where it might all lead. Of course, it might lead nowhere: at the end of the investigation Mueller might conclude that the evidence is insufficient to warrant criminal charges. Or it might lead to somewhere significant: Trump campaign and administration officials being charged with crimes related to Russian interference with the U.S. presidential election or with other crimes discovered during the investigation.

But what if the investigation discloses sufficient evidence of crimes or impeachable acts committed by President Trump, but Mueller concludes that he cannot indict a sitting President (either because that’s his own reading of the law or he is required to follow the view of the Justice Department’s Office of Legal Counsel on this question)? And what if the investigation discloses misconduct by Trump administration officials that does not rise to the level of criminality? In either case, what, if anything, could Mueller do with the information that has been gathered during the course of the grand jury investigation?

There are three possible options which have received little or no attention despite the flurry of commentary about Mueller’s investigation, including: (1) a public/confidential disclosure of evidence to Congress via a congressional subpoena; and (2) a public report out of the grand jury using a special procedural device. We will discuss a third option in a piece later this week, which goes beyond reporting and toward a possible greater vindication of the public interest in criminal justice. Continue Reading »

The recent news of a July FBI raid on the home of former Trump campaign manager Paul Manafort has raised expectations in some circles that special counsel Robert Mueller’s investigation is getting closer to issuing indictments against Manafort or others.  Certainly, receipt of a warrant to raid Mr. Manafort’s house at the very least suggests that investigators have probable cause that a serious crime was committed.

Based on my experience with espionage investigations however, I suspect that the speed of possible indictments rests on whether the crimes being investigated are financial in nature, or touch upon collusion with Russian intelligence. If the latter, it may be a long time coming before the criminal process wends its way to indictments due to a delicate balance of factors that often arises when a criminal investigation and counterintelligence/counterespionage (CI) investigation overlap. In other contexts at least, the criminal process can also take a back seat to CI interests, allowing known offenders to walk free. Continue Reading »

Just Security is on a reduced schedule this week for summer vacation, which means we will publish some commentary and analysis but at a lower rate than usual. Our pieces this week will include analysis by John Sipher of the expected trajectory of the Russia investigation (coming later this morning), Ryan Goodman and Alex Whiting on a set of previously unreported options available to special counsel Robert Mueller, plus more.

In the meantime, we thought to highlight some of our most relevant and thought-provoking content of the year for summer reading edification.

From deep reflections on the threat to the rule of law in America, to an explainer on the special counsel investigation, this reading list might make you rethink fundamental issues in our democracy or help clarify aspects of the workings of government that you’ve been meaning to explore:

• Why It Does Not Matter Who Rachel Brand Is, by David Luban, draws lessons from social psychology research to assess whether officials will act ethically in the Trump Administration.
• Following the Money: Russia, Cyprus, and the Trump Team’s Odd Business Dealings, by John Reed, traces a  “suspicious” series of “murky financial dealings” involving Russia, Cyprus, and President Trump’s associates.
• Of Laws, Not Men, by former General Counsel to the CIA, Jeffrey H. Smith, calls for political leaders to defend the rule of law and democratic institutions from threats posed by the Trump Administration.
• We Are Already in a State of Emergency, by Rachel Kleinfeld, argues that “the United States is already being ruled under a state of emergency” and urges vigilance in the face of a “slow creep” of declining civil liberties.
• Explainer: The Special Counsel Investigation, by Hannah Ryan, answers key questions like “What is Mueller investigating?” and “What are the potential scenarios for the investigation’s outcome?”
• International Law is Failing Us in Syria, by Rebecca Ingber, explores deep questions concerning the legality of using military force to prevent atrocities.
• Dissenting from Within the Trump Administration, by Oona Hathaway and Sarah Weiner,  offers a “catalog of the ways those working in government can respond when asked to participate in actions they believe to be illegal or unethical.”

Image: Lyndon B. Johnson on his 60th birthday on August 27, 1968 with his grandson in the pool at the LBJ Ranch, near Stonewall, Texas – LBJ Presidential Library

I. Afghanistan

• Laura Dickinson, A Legal and Policy Risk Analysis of the Erik Prince Plan to Privatize War in Afghanistan (Thursday, August 10)

II. Foreign Intelligence Analysis: President Trump

• Ned Price, What A Foreign Intelligence Analysis of President Trump Would Look Like (Tuesday, August 8)

III. Transgender Military Ban

• Morten G. Ender, Tweets, Trans, and the American Military (Monday, August 7)
• Kate Brannen, A Wrap-Up of Just Security’s Coverage of Trump’s Trans Ban (Friday, August 11)

IV. The Trump-Russia Investigation

• Marty Lederman, The Functions and Potential (but Fixable) Flaws of the “Protect Mueller” Bills (Monday, August 7)
• Ryan Goodman, Lots at Stake Whether Trump is Immune from Prosecution–even if Mueller doesn’t indict (Wednesday, August 9)
• Alex Whiting, FBI Search of Paul Manafort’s Home: What Does It Really Mean? (Wednesday, August 9)
• Julian Sanchez, A Few Thoughts on the Manafort Raid (Thursday, August 10)

V. Congress and an Authorization for Use of Military Force (AUMF) against ISIS

• Scott Roehm, Bringing the AUMF Debate Back to its Constitutional Roots, and Recent History (Friday, August 11)

VI. North Korea 

• Marty Lederman, No, the President Cannot Strike North Korea Without Congressional Approval (Thursday, August 10)

VII. Norms Watch

• Hannah Ryan, Norms Watch: Democracy, the Trump Administration, and Reactions to It (August 4-August 11) (Friday, August 11)

VIII. Leak Investigations

• William E. Lee, Trump’s New War on Leaks: Reporters Caught in the Crossfire? (Monday, August 7)

IX. Sexual Violence and International Criminal Accountability for ISIS

• Catherine Powell, Rape as a Tactic of Terror: Holding the Islamic State Accountable (Friday, August 11)

X. Human Rights and Armed Conflict

• Adil Haque, Aggression, Armed Conflict, and the Right to Life: Does UN Human Rights Committee Get it Right? (Friday, August 11)

XI. Guantanamo

• Steve Vladeck, D.C. Circuit Holds that 9/11 Appellate Judge Should Have Recused (Wednesday, August 9)

XII. Surveillance and Cross-Border Data Requests

• Mailyn Fidler and Scarlet Kim, In the U.S.-U.K. Deal, Both Sides Deserve Scrutiny (Wednesday, August 9)

XIII. Kenya

• Mayesha Alam, Kenya’s Elections Matter for the U.S. (Tuesday, August 8)

A U.S. Army howitzer firing at Islamic State positions in Iraq in 2016.

Last Friday, Rita Siemion published an insightful analysis of the Trump Administration’s first meaningful public statement on its authority for the ISIS war, which came in the form of a letter from the State Department to Senate Foreign Relations Committee (SFRC) Chairman Bob Corker. The letter was released the same morning that Secretary of State Rex Tillerson and Secretary of Defense Jim Mattis briefed the SFRC on the Administration’s views regarding “the Authorizations for the Use of Military Force.”

Rita characterized these developments as follows: “Just as Congress was showing signs that it might, after 16 years, start to rein in the nation’s growing list of post-9/11 wars, the Trump administration told Congress no thanks, we are happy with the overbroad authorities we’ve got.”

I share her take, with one important caveat: I see little evidence that Congress’s newfound interest in tackling post-9/11 war authority would result in “rein[ing] in” much of anything. What’s worse, I don’t think many lawmakers view that as their role. Given the backdrop against which they would be legislating, that’s deeply troubling—both in the war powers context and from a broader institutional perspective.  Continue Reading »