Ah, the good old days — when then-attorney general Loretta Lynch’s greeting extended to former president Bill Clinton on an airport tarmac was enough to raise a ruckus and take her out of the decision-making on the Hillary Clinton email investigation (the one that was disclosed during the campaign and reopened 11 days before the election, as opposed to the Russia investigation that was kept secret). Now, President Trump orders up an investigation of investigators based on no evidence of impropriety and then meets directly with Deputy Attorney General Rod J. Rosenstein and FBI Director Christopher Wray to discuss sharing and/or releasing such information. Yes, we are through the looking glass.
“Based on the meeting with the President, the Department of Justice has asked the Inspector General to expand its current investigation to include any irregularities with the Federal Bureau of Investigation’s or the Department of Justice’s tactics concerning the Trump campaign,” the White House said in a written statement. “It was also agreed that White House Chief of Staff [John] Kelly will immediately set up a meeting with the FBI, DOJ, and DNI [Director of National Intelligence] together with Congressional Leaders to review highly classified and other information they have requested.” It’s far from clear what this entails, but it appears to be a wholly improper attempt to give Trump’s allies in Congress a peek at critical documents for Trump’s legal benefit.
Trump’s TV lawyer Rudolph W. Giuliani blabbed to Politico the real reason for the request:
[He] said the documents requested by Trump will “indicate what the informant found.” He also said the memos “should be made available to us on a confidential basis,” he added. “We should be at least allowed to read them so we know this exculpatory evidence is being preserved.” It’s unclear if there were any arrangements made for the White House to view the documents.
This goes beyond obstruction to total disruption of an investigation, with an implicit request for Congress to turn over to a potential defendant classified materials. Trump’s lawyer asking for critical investigative documents in the press is about as blatant as one can get.
The normal separation between the White House and the Justice Department on investigative matters is being obliterated before our eyes — and worse, Trump is using his powers as president to aid in his own defense. Former CIA agent and former independent presidential candidate Evan McMullin spoke for many Americans when he tweeted: “I’m increasingly concerned for our nation. When the president works to expose law enforcement sources contributing to an investigation of himself, while ordering specious counter-probes of investigators, he’s using presidential power to hold himself above the law and the people.”
Members of Congress, however, should tread very, very carefully before going down the road of helping Trump’s legal defense. The “speech or debate” clause of the Constitution protects members of Congress for what they say on the floor or in committee. But it is not an all-purpose immunity to evade criminal and civil penalties. A useful analysis from the Congressional Research Service from December 2017 explains that the Supreme Court makes clear that conduct not legislative in nature is not protected:
In United States v. Brewster, which involved a Member’s challenge to his indictment on a bribery charge, the Court reaffirmed . . . clarified that “a Member of Congress may be prosecuted under a criminal statute provided that the Government’s case does not rely on legislative acts or the motivation for legislative acts.” The Court made clear that the Clause does not prohibit inquiry into illegal conduct simply because it is “related“ to the legislative process or has a “nexus to legislative functions,” but rather, the Clause protects only the legislative acts themselves. By adhering to such a limitation, the Court reasoned that the result would be a Clause that was “broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members.”Brewster also drew an important distinction between legislative and political acts. The opinion labeled a wide array of constituent services, though “entirely legitimate,” as “political in nature” rather than legislative. As a result, the Court suggested that “it has never been seriously contended that these political matters … have the protection afforded by the Speech or Debate Clause.”
Moreover, in this arena the case involving then-Sen. Mike Gravel (D-Alaska) is critical to defining what is and is not protected:
After coming into possession of the “Pentagon Papers”—a classified Defense Department study addressing U.S. involvement in the Vietnam War—Senator Mike Gravel disclosed portions of the document at a subcommittee hearing and submitted the entire study into the record. The Senator and his staff had also allegedly arranged for the study to be published by a private publisher. A grand jury subsequently issued a subpoena for testimony from one of Senator Gravel’s aides and the private publisher. Senator Gravel intervened to quash the subpoenas. …Private publication, as opposed to publication in the record, was “in no way essential to the deliberations of the Senate.” Thus, the Clause provided no immunity from testifying before the grand jury relating to that arrangement.
What does that have to do with Trump and the Russia investigation? If, for example, a member of Congress leaks classified material — say, the name of a confidential source — to the press, that does not fall within the realm of protected activity. In some cases, that could be prosecuted as improper release of classified materials. If the information is passed to a witness or likely defendant with intent to interfere with an ongoing case or to give a witness or defendant a heads-up, that may bring into play a whole host of criminal violations (e.g. obstruction, witness-tampering). In short, if members of Congress think they have a free pass to continue helping out Trump (as they did in the ridiculous, misleading memo from Rep. Devin Nunes), they should consult with counsel.
Constitutional scholar Laurence Tribe tells me: “The Court’s basic approach to this whole subject turns on the idea that intrinsically legislative activities — including all actions that form an ‘integral part of the deliberative and communicative processes by which members’ take part in committee or floor activities with respect to lawmaking or investigative functions entrusted by the Constitution to Congress — are absolutely protected from civil or criminal inquiry external to Congress. That includes voting, preparing committee reports, and conducting committee hearings.” He cautions, “It certainly does not include running back and forth between the Hill and the White House to work with the PR machinery of the Office of the President (or with POTUS or his top staffers) in undermining the work of the Justice Department or the counterintelligence services, or in helping to cover up evidence of abuse of power by the president or fabricate evidence of abuse of power by DOJ.”
Before Democrats start salivating about the possibility of going after members of Congress if they are shown to be leaking to the press or to the president, they should understand that the argument here is largely “theoretical,” as former White House ethics counsel Norman Eisen tells me. “Personally I do believe that there are some indicators of possible corrupt intent in the behavior of a few members of the House, with the latest piece of the puzzle being the attempted illegitimate disclosure of the identity of a witness,” he says. “Actions intended to pose a threat or danger to a witness can constitute witness intimidation. But a prosecution of obstruction of justice or witness intimidation is not going to happen absent much, much more.” The evidentiary hurdle would be high and the “speech or debate” clause would be strongly litigated.
So what to do about the president turning the criminal-justice system into his plaything, as if he were some tinpot dictator? First and foremost, one cannot understate the irresponsibility of the House leadership, which has the authority to pull misbehaving members off a committee. Other members can file an ethics complaint (good luck with that) or even expel a member under extraordinary circumstances. The best and really only remedy to correct the bulldozing of legal norms rests with the voters, who can throw out members of Congress who do not take their oaths or oversight obligations seriously.
Impeachment and removal of a president is a tall order. Once again, the ultimate remedy for Trump trespassing on democratic norms — and for his violation of his oath to see that the laws are faithfully executed — is at the ballot box in 2020.