Daniel Hemel | Vox

The Pennsylvania Catholic Church report highlights the cruelty of statute of limitations laws

2018-08-21T11:34:18-04:00

The release of a Pennsylvania grand jury report documenting the sexual abuse of more than 1,000 child victims by hundreds of Catholic priests has revived a long-running debate about statutes of limitations.

These statutes — which create time limits after which criminal prosecutions and civil lawsuits can no longer be initiated — prevent many of the Pennsylvania accusers from bringing their alleged abusers to court. It’s the same type of law that helped make it so hard for Bill Cosby’s accusers to take him to court when allegations of rape resurfaced a few years ago.

Statutes of limitations are common but controversial features of federal and state law. More than 40 states still have statutes of limitations that apply to some or all child sexual abuse crimes, and most states also apply limitations statutes to civil lawsuits.

Proponents of these laws argue that litigating a case based on events from the distant past runs the risk of lost evidence and faulty memories. Critics respond that these concerns can be adequately addressed without drawing arbitrary lines that shut victims out of court.

Pennsylvania law currently allows criminal prosecutions for child sexual abuse until the victim turns 50. Victims themselves can bring civil lawsuits (in which victims ask for compensation rather than for the perpetrator to be put in prison) until they turn 30. Calls for Pennsylvania and other states to reform these statutes have grown louder in the days since the grand jury report.

The Pennsylvania state Senate unanimously passed legislation last year that would eliminate the criminal statute of limitations in child sexual abuse cases altogether as well as raise the age cap for civil claims from 30 to 50.

That measure has so far stalled in the state house, where lawmakers have sought to add a controversial amendment that would allow a two-year “window of opportunity,” starting now, in which any victim of child sexual abuse could bring a civil claim regardless of the victim’s age. Republicans in the state Senate have opposed that amendment.

The Catholic Church revelations should spur Pennsylvania legislators to break this logjam. It should also prompt lawmakers across the country to take a closer look at the rationale for their limitations statutes more broadly.

When they do, they should recognize that the justifications for these statutes are shaky, especially as applied to serious offenses such as sexual abuse. Time bars on civil claims rest on more solid ground, but there too, the arguments for reform — if not repeal — are strong.

The uneasy case for criminal statutes of limitations

Criminal statutes of limitations are widespread but far from universal. Some other common law countries, including England and Australia, have no criminal statutes of limitations. No US state imposes a statute of limitations for murder, and South Carolina and Wyoming have no statute of limitations for any criminal prosecution. Elsewhere, they vary dramatically from offense to offense and from jurisdiction to jurisdiction.

Probably the most common justification for criminal statutes of limitations is evidentiary. As time passes, memories fade, alibi witnesses die or move away, and potentially exculpatory evidence is lost. Thus, the passage of time raises the risk of convicting the innocent.

Critics of limitations statutes acknowledge these evidentiary concerns but argue that categorical time bars are an inadequate response. Why should we allow criminal prosecutions of child sexual abuse when the victim is 49 — as Pennsylvania now does — but close the window abruptly when the victim turns 50?

To be sure, any bright-line rule leads to arbitrary outcomes at the margins. But here, the law should be able to do much better. For example, when a defendant stands accused of a long-ago crime, the judge in the case could instruct jurors that they may consider prosecutorial delay as a factor in deciding whether a person is guilty “beyond a reasonable doubt.” Delay in prosecution might be one reason for doubt, but it might not be reason enough to acquit if other evidence of guilt is overwhelming.

A second justification for criminal statutes of limitations is that as time passes, people change. Individuals who committed heinous crimes 50 years ago might have reformed themselves in the intervening half-century. If they have been law-abiding citizens in the decades since, they are probably no danger to society today. Why lock them up now?

Critics of limitations statutes have an answer to this too. A defendant’s self-reformation between the crime and the prosecution may be a factor that a judge should take into account when setting a sentence, but time does not expiate all sins.

Consider, for example, the priest who allegedly forced a 9-year-old boy to perform oral sex on him in the early 1980s and then washed the boy’s mouth out with holy water. The priest — now 73 years old and living in Boca Raton, Florida — does not appear to have apologized or endured any consequences in the years since. Trying and potentially punishing the priest today would send a strong signal to future abusers and their abettors that they will not enjoy impunity if they prey on society’s most vulnerable.

State lawmakers have broad leeway to lengthen limitations periods, but their power is not absolute. In a 2003 case, the Supreme Court held that the Constitution prevents any state from reviving a criminal prosecution that is already time-barred. Thus, if Pennsylvania successfully eliminates its statute of limitations for child sexual abuse crimes today, the state could not bring charges against a defendant whose victim is now 51, because the limitations period for that charge has already run out.

Change is more likely to happen for civil, not criminal, suits

If childhood victims now older than 50 ever have their day in court, it will likely be in the civil context because the constitutional prohibition on reviving time-barred prosecutions does not apply to civil suits.

The debate over civil statutes of limitations is similar, but not identical, to the dispute over criminal time bars. In civil cases, the penalty is typically monetary, and so the concern about sending an innocent person to prison does not apply.

That might make the case for making civil statutes of limitations weaker than in the criminal context. On the other hand, in civil cases it’s the victim and not a prosecutor who controls when claims are filed, and so arguably it’s the victims who are at fault if they fail to bring the case quickly.

One of the key takeaways from the church sex abuse scandals and the #MeToo movement is that the social and emotional pressure for victims of sexual misconduct to stay silent about their experiences can begin to lift once other victims raise their voices. Age-based thresholds like those in Pennsylvania ignore that powerful lesson. Becoming the first person to publicly accuse a particular defendant of sexual abuse, assault, or harassment requires enormous courage for middle-age adults as well as younger victims.

One possible approach is to follow the grand jury’s suggestion for an additional two-year window on civil claims but to start the clock once the defendant has been publicly accused of sexual misconduct by another person.

Pennsylvania could apply this two-year rule not only in cases of child sexual abuse but also to civil claims of sexual misconduct involving adult victims. While the grand jury’s proposal for a new two-year window would be a one-time fix, this alternative approach could apply going forward to all civil claims involving sexual misconduct.

A more radical approach would be to eliminate the civil statute of limitations altogether in cases of child sexual abuse — and perhaps for claims of serious sexual misconduct involving adult victims as well.

For some, such a proposal may raise concerns about potential plaintiffs sitting on their claims for years and then springing lawsuits on defendants once exculpatory evidence has deteriorated or been discarded.

A possible compromise would be to reduce the amount that victims can recover if they are slow to bring their claims, but not to bar them from recovering anything. In that case, plaintiffs still would have an incentive to file their actions sooner, but victims who struggle to overcome the social and psychological barriers to speaking out would not lose their day in court.

While the sexual abuse revelations in last week’s grand jury report highlight some of the major flaws with existing statutes of limitations, these flaws extend beyond the present case. The report should prompt lawmakers, lawyers, and lay people to reflect on the statutes that stand in the way of victims seeking justice.

These statutes do serve evidentiary and diligence-promoting functions, but those functions could likely be fulfilled through alternative means. Reforms that are specific to child sexual abuse are sensible first steps, but they should not be the end of the road.

Daniel Hemel, a frequent Vox contributor, is an assistant professor at the University of Chicago Law School.

First Person is Vox’s home for compelling, provocative narrative essays. Do you have a story to share? Read our submission guidelines, and pitch us at firstperson@vox.com.

How nondisclosure agreements protect sexual predators

2017-10-13T07:20:22-04:00

Harvey Weinstein celebrates (with Uma Thurman, Heidi Klum, and others) at a party following the 2014 Golden Globes. | Araya Diaz/Getty Images

How did Hollywood producer Harvey Weinstein prevent allegations of sexual harassment and sexual assault from surfacing for so long? With Angelina Jolie, Gwyneth Paltrow, and others stepping forward to report their own experiences of unwanted sexual advances, the nondisclosure agreements and confidential settlements that Weinstein has used for decades are drawing increasing scrutiny.

According to a New York Times report, employees of Weinstein’s company are required to sign contracts promising not to make statements that could harm the reputation of the firm or its top executives. And when female employees have sued Weinstein for harassment, he and his company have generally settled the claims confidentially — pairing payments with a condition that the plaintiffs not talk about the details of their cases.

Is it — and should it be — legal for employers to use confidentiality provisions to keep harassment claims secret? The Weinstein scandal raises these questions in a particularly stark way, although such provisions have long been controversial.

Confidentiality clauses have featured in a number of high-profile sexual harassment scandals. In November 2011, Politico reported that Herman Cain, then running for the Republican presidential nomination, had been accused of sexual harassment by two women who worked with him when he ran the National Restaurant Association; Cain’s employer had settled the claims with agreements that forbade the women to speak about the incidents.

Venture capital firm Kleiner Perkins offered to settle former employee Ellen Pao’s sexual harassment suit only if — according to Pao’s account — she signed an agreement limiting her freedom to talk about her experience. (She dropped her suit but declined to settle, saying she did not want to be silenced.) Fox News Channel likewise used confidentiality clauses in contracts with employees to protect its late chief Roger Ailes from sexual harassment claims.

These cases, and others, have led many to ask whether the enforcement of confidentiality clauses serves primarily to protect sexual harassers, allowing them to continue their abuses.

Federal law places limits on nondisclosure agreements, though some companies ignore those limits

The enforceability of confidentiality clauses — like the enforcement of contracts in general — is for the most part a matter of state law, though there are instances in which federal statutes intercede. For instance, the National Labor Relations Act of 1935, also known as the Wagner Act, prohibits employers from restraining employees in the exercise of their right to engage in “concerted activities” for the purpose of “mutual aid or protection.” (Much of the Wagner Act focuses on union organizing, but the protection for “concerted activities” applies regardless of whether workers are unionized.)

The states, for their part, may decide to disregard certain contractual provisions signed by workers and employers, as long as no federal law mandates enforcement. California, for instance, refuses to enforce “noncompete” agreements that limit employees’ ability to switch jobs.

Confidentiality clauses relating to harassment claims come in two basic flavors — and under existing law, the distinction between the two is significant. The first are agreements such as the ones that Weinstein Company apparently had employees routinely sign — broad waivers forbidding employees from making any critical comments that could harm the company’s “business reputation” or “any employee’s personal reputation.”

That kind of confidentiality clause — which prevents an employee or ex-employee from speaking about sexual harassment and other workplace misconduct — is generally considered to violate federal labor law, though lots of employers use them anyway. The National Labor Relations Board has ruled that “a confidentiality rule prohibiting employees from discussing their sexual harassment complaints among themselves” constitutes an unfair labor practice in violation of the Wagner Act. The Board has also held that an employer violates the Wagner Act when it requires employees to sign agreements promising not to “publicly criticize” the firm or its leaders.

The Wagner Act does not apply to domestic workers, independent contractors, or individuals employed as supervisors. Thus, an executive in Weinstein’s organization might lack protection under the act because she supervises lower-rung employees.

Companies have a freer hand to enforce confidentiality in legal settlements

A second type of confidentiality clause comes up in the context of settlement agreements between employees (or ex-employees) and employers, in which employees are paid to drop their claims and keep quiet about the matter. The National Labor Relations Board has not condemned that kind of confidentiality clause. Indeed, in an August 2016 decision, the board noted that it has long favored the “private, amicable resolution of labor disputes, whenever possible,” and that “an employer may condition a settlement on an employee’s waiver of [Wagner Act] rights if the waiver is narrowly tailored to the facts giving rise to the settlement and the employee receives some benefit in return for the waiver.”

One Democratic member of the board, Lauren McFerran, dissented from that decision, arguing that an employer’s use of confidentiality clauses as a “quid pro quo” for the settlement of workplace-related claims “has an impermissible chilling effect” on the rights of all employees to act collectively. But her view is likely to remain a minority position — especially now that President Donald Trump’s appointments have shifted the board in an employer-friendly direction. And while a federal court could in theory overturn the board’s view regarding confidentiality clauses in settlement agreements, that’s unlikely, as federal courts generally accord deference to agency interpretations.

A likelier avenue for legal change runs through state capitals. California passed a law last year that prohibited the use of confidentiality clauses in civil settlements if the “factual foundation” for the allegations involve acts that could be prosecuted as felony sexual offenses. That law would apply to settlements involving allegations of rape or sexual assault—and at least three women now say that Weinstein raped them, according to a New Yorker report. However, the alleged rapes occurred in France and New York, making it unlikely that California law would govern the settlements.

A number of states have passed “sunshine-in-litigation” laws that bar the enforcement of confidentiality clauses in settlements if they conceal information related to “public hazards.” One might reasonably argue that a pattern of workplace-based sexual harassment on the part of a powerful individual like Cain, Ailes, or Weinstein amounts to a “public hazard” to which these laws should apply.

Indeed, a Florida-based labor and employment attorney, Chloe Roberts, proposed precisely this theory in an opinion piece last November, but it does not appear that any court has addressed it yet. It also wouldn’t help much in the Weinstein case, because the Weinstein Company is based in New York, which has not passed a law against confidentiality clauses in “public hazard” cases. And even in states with such laws, it would be extraordinarily risky for a harassment victim who has signed a confidentiality clause to violate the provision in order to generate a test case.

Rather than waiting for such a test case, state legislatures might move proactively to pass laws that explicitly bar the enforcement of confidentiality provisions in settlement agreements applying to workplace-related sexual harassment claims. The upside of such a law would be clear: Serial harassers would lose the ability to buy silence from their victims. The allegations against Cain, Ailes, Weinstein, and others might have come to light many years earlier had such laws been in place.

Confidential agreements sometimes benefit the victims, too

But there are downsides too. For one, some victims might prefer to have confidentiality clauses in settlement agreements. Without the protection of a confidentiality clause, victims might be worried that a vindictive ex-employer will smear them in public or stymie their efforts to find a new job. A potential, but not perfect, solution might be to allow confidentiality provisions with one-sided opt-outs: The employer would not be able to speak out about the matter unless the employee speaks first.

A second concern is that disclosure of settlement amounts will lead to negative publicity for harassment victims: They might be tarred with accusations of money-grubbing, for instance. Victims might also have a general privacy interest in keeping compensation information to themselves. To address these and other concerns related to disclosure of settlement amounts, my University of Chicago colleague Saul Levmore and his co-author Frank Fagan at EDHEC Business School have suggested that confidentiality clauses could be enforceable as to the amount of settlement but not to the facts underlying the victim’s claim.

A third concern is that under certain circumstances, a ban on confidentiality clauses in settlement agreements may reduce the size of payouts to victims. Harassment defendants may be willing to pay more to settle claims if they can keep the allegations under wraps. And so if we want to ensure that victims are compensated financially for the harms they suffer, then perhaps there are instances in which we want them to be able to settle claims out of public view. (But as Levmore and Fagan note, a lone plaintiff likely does not know whether a defendant is a serial harasser who would be willing to pay a significant sum for silence. Thus, the plaintiff may lack the information and the bargaining power to extract a large payment in exchange for a confidentiality clause.)

The Supreme Court is examining whether employers can enforce confidentiality via mandatory arbitration

While these three concerns ought not outweigh the powerful case against confidentiality clauses, another obstacle may loom in the path of state-level legal change: the Supreme Court. Last Monday, the justices heard argument in a trio of cases concerning arbitration provisions in employment contracts. The employers in those cases, supported by the Trump administration, argue that a 1925 law called the Federal Arbitration Act mandates that federal and state courts enforce arbitration clauses as written even when those arbitration clauses come with strict confidentiality requirements.

While the cases before the Supreme Court do not involve sexual harassment allegations, the court’s decision could nonetheless affect confidentiality provisions related to harassment claims.

Consider the contract between former Fox News anchor Gretchen Carlson and her former employer. The agreement reportedly requires Carlson to bring any legal claim against Fox News in a private arbitration proceeding rather than in court, and adds that “all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.” Through its arbitration provision, that contract accomplishes virtually the same thing as a confidentiality clause.

Hopefully, the Supreme Court’s resolution of the arbitration cases will preserve the ability of states to experiment with sunshine-in-litigation laws applying to sexual harassment — and won’t allow employers to circumvent such laws by rolling confidentiality requirements into arbitration provisions. But the court has read the Federal Arbitration Act quite expansively in the past, and there is a risk that its decision might make it more difficult for states to override confidentiality clauses in arbitration agreements.

At least for now, though, state lawmakers retain the freedom to act. Federal lawmakers could act, too — say, by amending the Wagner Act to prohibit confidentiality clauses in harassment settlements. But notwithstanding attempts by Republicans in Washington to make hay of the Weinstein allegations, it’s hard to imagine this Congress passing — let alone our sexual-predator-in-chief signing — a sunshine-in-litigation law for harassment claims. While outrage is the natural first reaction to the Weinstein news, a call to your state senator or representative would be a sensible second reaction.

Confidentiality provisions that prevent victims from speaking openly about workplace sexual harassment are clearly a problem. And while there is room for debate about the shape of the remedy, the status quo is clearly not working. Legal change will likely depend on whether state lawmakers have the courage and creativity to craft legislation limiting confidentiality agreements.

The Weinstein revelations might be just shocking enough to inspire action.

Daniel Hemel, a frequent Vox contributor, is an assistant professor at the University of Chicago Law School.

The Big Idea is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at thebigidea@vox.com.

The case that President Trump committed the crime of obstruction of justice, explained

2017-06-15T10:38:07-04:00

Impeachment of the president has been moving from a protest cry to a legal possibility. | Andrew Lichtenstein / Getty

Special counsel Robert Mueller is now investigating whether President Donald Trump has committed obstruction of justice, the Washington Post reports. This news should shock precisely no one: Mueller’s mandate specifically authorizes him to investigate obstruction of justice allegations arising out of his probe. But the report underscores the seriousness of the obstruction allegations against Trump — and the strength of the evidence already amassed.

In a nutshell, the case against President Trump consists of the following: The President intimated to then-FBI Director James Comey in February that Comey ought to shut down the bureau’s investigation of former Trump National Security Adviser Michael Flynn. When Comey rebuffed him, President Trump sought to enlist Director of National Intelligence Daniel Coats in an effort to stop the Flynn probe.

Making matters worse, President Trump then fired Comey and said publicly that the firing was related to the Russia investigation — a statement that might be interpreted as an implicit threat to Comey’s replacement that he should bring the probe to a halt if he wanted to keep his job. Whether or not any of these actions would amount to obstruction in isolation, they sum up to a course of conduct that might very well place President Trump on the wrong side of the criminal law.

Trump may be shielded from criminal indictment by virtue of his status as president, and he may remain shielded from impeachment by virtue of the fact that his own party controls both chambers of Congress. On the law, though, the argument that Trump is guilty of obstructing the FBI’s Flynn probe is quickly gathering steam.

What exactly is obstruction of justice?

While “obstruction of justice” has become something of a buzzword in recent weeks, it is an offense with a precise legal definition, criminalized by several federal statutes. The two that are most likely to apply in this case are section 1505 and 1512 (c) of Title 18 of the US Code. Both statutes impose liability on anyone who “corruptly” influences a proceeding or who “endeavors” or “attempts” to accomplish that result. The term “corruptly” means “acting with an improper purpose.” And importantly, the endeavor or attempt need not be successful. As Chief Justice William Rehnquist wrote in a 1995 opinion, “the endeavor must have the ‘natural and probable effect’ of interfering with the due administration of justice,” regardless of whether any interference or influence ultimately occurs.

Section 1505 applies only when the defendant attempts to influence a “pending proceeding” before a federal department or agency or a congressional committee. Lawyers and law professors disagree about whether an FBI investigation can count as a “pending proceeding” for purposes of section 1505. A federal district court in Louisville— in a 1981 case called United States v. Higgins — held that an FBI investigation is not the type of proceeding to which the statute applies, and a Justice Department manual takes the same position (citing the Higgins decision).

But as Helen Klein Murillo and Benjamin Wittes write in an excellent analysis of the issue on the Lawfare blog, the Higgins decision is highly questionable. The Higgins court held that the phrase “pending proceeding” in section 1505 includes only proceedings involving an agency “with rulemaking or adjudicative authority in addition to investigative functions” — even though that limitation is found nowhere in the text of the statute. Moreover, the Higgins decision is not binding precedent outside the Western District of Kentucky (or even inside it), since it was the product of a single district judge’s pen.

In any event, if that section of the law does not apply in this case, section 1512(c) still might, as former federal prosecutor Randall Eliason has noted. Section 1512(c), enacted after Enron as part of the Sarbanes-Oxley Act, can be used to charge anyone who “corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so.” Such “official proceedings” include federal grand jury investigations. Several news organizations have reported that a federal grand jury in the Eastern District of Virginia has begun an investigation of Michael Flynn, the president’s former national security adviser, and his interactions with Russian officials — and that investigation might be enough to trigger the application of section 1512(c).

President Trump might have obstructed the investigation into Flynn even if he knew very little about it

Significantly, it doesn’t matter for the purposes of the law whether the grand jury probe was underway at the time of President Trump’s alleged obstruction: The statute clearly states that “an official proceeding need not be pending or about to be instituted at the time of the offense” — Trump’s obstruction could violate section 1512(c) if it interferes with a grand jury proceeding later in time. It also doesn’t matter whether President Trump knew about the proceeding: The question is instead whether the grand jury proceeding was foreseeable to Trump at the time of the offense.

So to sum up so far: The central question under either section 1505 or section 1512(c) is whether President Trump, acting with an improper purpose, took steps that had the natural and probable effect of influencing the FBI’s investigation into ties between the Russian government and Michael Flynn. If the answer to that question is “yes,” Trump still might have additional arrows in his quiver: He might argue that the FBI investigation is not the sort of proceeding to which section 1505 applies, or that the grand jury inquiry into Flynn wasn’t foreseeable at the time of the attempted obstruction.

But showing that Trump acted with an improper purpose and took steps that had the natural effect of influencing the FBI’s Flynn probe would go a long way toward establishing that he is guilty of obstruction.

To make a judgment about obstruction, look beyond the solo meetings with Comey and examine the full picture

The strongest single piece of evidence against President Trump is his Valentine’s Day tête-à-tête with the president in the Oval Office. According to Comey’s testimony, Trump cleared the room so that he would be alone with the FBI chief — which itself put Comey on alert that something unusual was happening. The president then said to Comey, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” That’s not an explicit order, but at least two federal courts of appeals have found that “I hope” statements, when spoken by a defendant with potential sway over the statement’s target, can constitute obstruction of justice.

Moreover, as one federal court has put it, “specific incidents which do not amount to obstruction of justice when viewed individually can constitute obstruction when viewed in their entirety.” And we have learned more this month about the entirety of the president’s conduct. First, the Washington Post has reported that the president had asked Director of National Intelligence Daniel Coats in March if Coats could press Comey to pull back the FBI’s investigation of Flynn. The president’s request, according to the Post, came in a private meeting with only Coats and CIA Director Mike Pompeo in the room.

And second, under questioning from Senate Intelligence Committee ranking member Mark Warner last week, both Coats and National Security Agency Director Mike Rogers refused to say publicly whether Trump had requested that they intervene in the FBI’s Russia probe. Coats and Rogers both said that they did not feel “pressured” to influence the FBI investigation, but neither man would deny that Trump had asked him to step in.

All this comes against the backdrop of what was already in plain sight: that Trump fired Comey on May 9 and then indicated in an interview with NBC News’s Lester Holt that the firing was connected to the FBI’s continued inquiry into the “Russia thing.” With the Comey firing and the Holt interview, the president sent a not-so-subtle message to Acting FBI Director Andrew McCabe that he might not keep his job for long unless he shut down the bureau’s Russia probe. (As it happened, Mueller took over the investigation last month. McCabe was a finalist for the FBI directorship, but Trump ultimately nominated Atlanta attorney Christopher Wray for the post.)

So whether or not the president’s request that Comey “let Flynn go” would be obstruction of justice in its own right, the appropriate question is whether that request — along with Trump’s requests to Coats and possibly the CIA and NSA chiefs as well, plus the firing of Comey and the subsequent remarks to Holt — all combine to constitute an endeavor that was reasonably likely to influence the direction of the FBI’s inquiry.

To be sure, it might not be improper for the president to tell the FBI director to back off an investigation if the president thought it was a misallocation of bureau resources. The president, after all, is the head of the executive branch, and he has a duty to make sure that federal law enforcement agencies are performing their functions efficiently. President Trump might argue that he asked Comey to back off the Flynn investigation because he knew Flynn was innocent and thought that the dead-end investigation of his former adviser was consuming too much of the FBI’s time and energy. (My colleague Eric Posner and I have set out this argument in more detail here and here.)

But this defense becomes less persuasive if indeed Trump asked intelligence officials to intervene in the FBI’s inquiry. If Trump’s request to Comey was motivated purely by FBI resource allocation concerns, then it is hard to understand why the president would have enlisted other intelligence chiefs in the effort. It is also hard to understand why the president would have cleared the Oval Office before asking Comey to back off the Flynn probe. Certainly, the circumstantial evidence suggests that Trump’s attempt to influence the FBI investigation was not motivated by a concern for preserving the bureau’s crime-fighting or counterterrorism capabilities.

Indictment — or impeachment?

In a May 10 memo to all federal prosecutors, Attorney General Jeff Sessions said that Justice Department attorneys “should charge and pursue the most serious, readily provable offense.” That instruction applies to special counsel Robert Mueller, who must comply with all Justice Department policies unless Deputy Attorney General Rod Rosenstein allows Mueller to deviate from department norms. (Rather ironically, Rosenstein’s decision not to give Mueller the same independence as the special prosecutor in the Bush-era CIA leak inquiry means that the Sessions memo’s aggressive charging policy applies with full force to the new special counsel.)

But of course, the president is not an ordinary criminal suspect. Even if President Trump did commit obstruction of justice, it is far from clear that a sitting president can be indicted. The Constitution does not explicitly bar the prosecution of a president, but the Justice Department’s Office of Legal Counsel has concluded that “a sitting President is constitutionally immune from indictment.” Mueller might well take the view that the Office of Legal Counsel’s conclusion trumps the Sessions memo on this point.

That still leaves the question of impeachment. Article II of the Constitution provides for impeachment and removal in the case of “Treason, Bribery, or other high Crimes and Misdemeanors.” And while then-Representative Gerald Ford famously quipped that “[a]n impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” that is not the same as saying that impeachment is a standardless exercise. (One could just as easily say that the Constitution means whatever five justices of the Supreme Court consider it to mean at a given moment.)

While the meaning of “high Crimes and Misdemeanors” is endlessly debated, there is broad bipartisan consensus that obstruction of justice qualifies. The House of Representatives voted 381-0 to impeach Texas Federal District Court Judge Samuel Kent for obstruction of justice in 2009. (Kent resigned before the Senate could convict.) Obstruction of justice was also one of the grounds on which President Clinton was impeached in 1998, as well as the first article of impeachment filed against President Nixon in 1974. Notably, the charge against Nixon was based on his efforts to interfere with the FBI’s investigation of the Watergate break-in — suggesting that even if obstruction of an FBI probe does not violate section 1505, it nonetheless amounts to a high crime or misdemeanor under Article II.

None of this is to suggest that indictment or impeachment is imminent. What this does suggest is that the Valentine’s Day request to Comey — combined with Trump’s reported request that Coats intervene in the Flynn investigation, Coats’s nondenial of that report, and his remarks to Lester Holt — form a plausible though not open-and-shut case of obstruction. Mueller’s decision to look into the question seems like a relatively easy one. Whether ultimately to recommend charges against Trump — either while he is in office or after he leaves the White House — will be a much more difficult judgment call.

Daniel Hemel is an assistant professor at the University of Chicago Law School.

Free Robert Mueller: here’s how to make his investigation truly independent

2017-05-29T08:39:21-04:00

Deputy Attorney General Rod Rosenstein, the man who will decide the rules under which the Trump administration is investigated. | The Washington Post / Getty

Deputy Attorney General Rod Rosenstein should take a page from the playbook of the man whose firing he recommended: former FBI Director James Comey. Comey once stood in Rosenstein’s shoes: He served as deputy attorney general from 2003 to 2005. And Comey’s handling of the investigation into the CIA leak scandal that rocked the George W. Bush administration holds valuable lessons for the current inquiry into the Trump campaign’s ties to Russia.

There are strong similarities between the challenges facing Rosenstein and the ones that Comey previously encountered. Today, the possibility of political interference hangs over the investigation by Robert Mueller, a former FBI director selected by Rosenstein to serve as special counsel. Similar doubts swirled around Patrick Fitzgerald, a US attorney from Illinois whom Comey picked to investigate the CIA leak in 2003.

Much to his credit, Comey recognized that regulations laid out by the prior attorney general, Janet Reno, failed to give the special counsel sufficient independence from higher-ranking officials at the Justice Department. So Comey implemented a more robust set of safeguards to shield his special prosecutor.

Rosenstein has thus far failed to follow Comey’s lead. That’s unfortunate, because it leaves Mueller’s investigation vulnerable to interference by political appointees. A few simple changes would raise the confidence of the American people that Mueller is free to follow the evidence where it leads.

Kenneth Starr’s excesses led to the creation of a not-so-independent special counsel

To understand the limits on Mueller’s independence, let’s rewind to the middle of 1999, when then-Attorney General Reno put forth the regulations that now govern Mueller’s investigation. The context was the imminent demise of the independent counsel law. At the time, independent counsel Kenneth Starr’s investigation of the Clintons was about to enter its sixth year. What started as an inquiry into the Whitewater land deal had morphed into a probe of President Clinton’s extramarital affair with White House intern Monica Lewinsky — and there was a widespread sense, especially but not exclusively among Democrats, that the independent counsel had gone too far.

Starr was indeed independent from the Justice Department in virtually every sense of the term. Under the independent counsel statute, the scope of his authority was determined by a three-judge panel of the US Court of Appeals for the DC Circuit, and he had “full power and independent authority to exercise all investigative and prosecutorial functions” of the attorney general with respect to all aspects of the probe. Starr did not have to report to the attorney general or anyone else at the Justice Department, and the attorney general didn’t have veto power over Starr’s investigative and prosecutorial decisions. The attorney general could remove Starr for “good cause,” disability, or any condition that “substantially” impaired the performance of his duties, but apart from that, Starr was his own man.

The statute authorizing the appointment of independent counsels was set to expire at midnight on June 30, 1999, and there was little appetite for extending it. (Starr himself agreed it should be allowed to lapse.) But Attorney General Reno knew that it was important to have procedures in place for investigations of high-ranking administration officials. And so she issued a new set of rules creating the “special counsel” position — rules that govern the position today.

Under the Reno rules, the decision to appoint a special counsel is made by the attorney general (or by the deputy attorney general when the attorney general is recused from the matter, as in the Trump situation). The special counsel must be a lawyer with relevant prosecutorial experience who has “a reputation for integrity and impartial decision-making.” Unlike the independent counsel, the scope of the special counsel’s authority is defined by the attorney general (or the deputy in the event of a recusal) rather than by a court. And whereas the independent counsel had all the investigative and prosecutorial powers of the attorney general, the special counsel has the more limited powers of a US attorney.

That last distinction turns out to be a big one. There are 93 US attorneys, all of whom report to Justice Department higher-ups. Under the Reno rules, the special counsel likewise reports to the attorney general (or whomever is filling a recused attorney general’s shoes). The special counsel must abide by most of the Justice Department guidelines that apply to US attorneys. And if the special counsel violates those guidelines, he may be fired.

The Reno rules go on to state that the special counsel must follow specific Justice Department requirements known as the “Urgent Reports” procedures. Under those procedures, a US attorney — or here, the special counsel — must notify top Justice Department officials at least three days in advance of any “major development” in a case. “Major developments” include not only arrests and criminal charges but also any execution of a search warrant or interview with a significant witness that is “likely to receive national media coverage or Congressional attention.” The attorney general then has the opportunity to block the US attorney or special counsel from moving forward with the proposed action.

In ordinary investigations, these procedures help maintain an orderly chain of command and surprises for managers. In a potentially explosive investigation of White House officials, they could play a more pernicious role. They mean that top political appointees will get a heads-up at every step of the inquiry — and an opportunity to meddle with the special counsel’s work.

The Reno rules also state that before the start of each federal fiscal year (October 1), the special counsel must request reauthorization from the attorney general (or in the event of a recusal, the deputy). The attorney general then decides whether the investigation should continue for another year and, if so, how much money the special counsel should have. The attorney general thus can bring the special counsel’s inquiry to a halt, or bleed it dry.

At the end of an investigation under the Reno rules, the special counsel submits a confidential report to the attorney general, who in turn must report to the chair and ranking member of the House and Senate Judiciary Committees. The attorney general must tell those lawmakers whether he blocked the special counsel from pursuing any investigative or prosecutorial step. But note that the lawmakers learn this only at the end of the special counsel’s tenure. The attorney general also decides what parts, if any, of the final confidential report should be made public.

James Comey came up with a better alternative to Janet Reno’s system

Before last week, the Reno rules had been invoked only once before — in September 1999, when Reno named former Republican Sen. John Danforth to lead an inquiry into the deadly 1993 fire at the Branch Davidian compound in Waco, Texas. Danforth’s investigation ended in November 2000 with a report, which Reno released to the public, in which Danforth cleared federal officials of responsibility for the fire.

Pressure to appoint a second special counsel mounted in 2003, when two senior Bush administration officials anonymously leaked the name of a CIA operative to a Washington Post columnist. The attorney general at the time, John Ashcroft, recused himself from the investigation, because he was viewed as being too close to the White House; that left his deputy, James Comey, in charge.

Rather than following the Reno rules, Comey devised a new set of principles to govern the CIA leak investigation. He recognized that under the relevant statute, he could confer much broader authority on the special counsel than the Reno rules provided: No law prevented him from vesting the special counsel with additional independence. And so upon naming Fitzgerald, then the US attorney for the Northern District of Illinois, to pursue the probe, Comey delegated to Fitzgerald “all the authority of the Attorney General” with respect to the investigation. Comey explained at the time that unlike a special counsel under the Reno rules, Fitzgerald would have “the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals.”

Fitzgerald’s inquiry ultimately led to the conviction of I. Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney, on charges of perjury, obstruction of justice, and making false statements to FBI investigators. Libby was sentenced to 30 months in prison, though President Bush later commuted Libby’s prison term. All in all, Fitzgerald’s probe lasted 45 months and cost taxpayers a relatively modest $2.58 million.

Fitzgerald’s investigation did not lack for controversy. From the left, David Corn argued in the Nation that was not truly independent because he remained the US attorney for the Northern District of Illinois; Corn thought Comey should have named a lawyer from outside the Justice Department, just as Rosenstein has done in the current case.

Libby himself argued, conversely, that Fitzgerald was too independent. According to Libby, Fitzgerald’s broad powers made him a “principal officer” for purposes of the Constitution’s Appointments Clause — he was effectively serving as a proxy for the attorney general. If that were true, Fitzgerald would have to be appointed by the president rather than by Comey. But a federal district court rejected that argument, relying on a 1988 Supreme Court case holding that independent counsels did not have to be presidentially appointed.

Deputy Attorney General Rod Rosenstein’s role remains a cause for grave concern

Fast forward to May 2017. President Trump has removed Comey from the FBI directorship after asking Comey to end the bureau’s investigation of former aide Michael Flynn’s dealings with Russia. Attorney General Jeff Sessions has recused himself from the investigation into the Trump campaign’s Russia connections after misleading the Senate about his own meetings with the Russian ambassador. Deputy Attorney General Rosenstein has appointed Robert Mueller, the highly regarded former FBI chief, to serve as special counsel and to carry out the Russia inquiry that Comey started.

Rosenstein’s appointment of Mueller is a welcome development. Everything we know about Mueller makes us think that he won’t be a rubber stamp for the Trump administration. But Rosenstein’s decision to follow the Reno rules rather than the more robust protections created by Comey in the CIA leak case remains a cause for concern.

This is so for two reasons. First, Rosenstein has done little so far to demonstrate his independence from the president — indeed, his remarkably flimsy memo justifying the Comey firing suggests just the opposite. And recall that under the Reno rules, Mueller must tip off Rosenstein at least 72 hours before taking virtually any step of significance. That means Rosenstein can stop Mueller in his tracks at every step of the way — or, less confrontationally, alert the White House to impending developments in the case. It’s hard to conduct a solid investigation when someone so close to your target knows your every move well in advance.

Defenders of Rosenstein will respond that the deputy attorney general, who was a well-respected career prosecutor before his Trump administration stint, would never do anything to intentionally impede Mueller’s inquiry. That’s likely right, but it still shouldn’t assuage our concern about his role. There is a second, more significant, reason why Rosenstein’s oversight over the special counsel’s investigation remains problematic: Rosenstein himself is now a dramatis persona in the Russia affair.

Rosenstein’s letter appointing Mueller instructs the new special counsel to continue the FBI’s investigation into ties between the Trump campaign and Russia, but also to investigate “any matters that arose or may arise directly” from the FBI’s inquiry. One of these matters is whether President Trump’s firing of Comey was an attempt to interfere with an FBI investigation — and thus constituted obstruction of justice.

And Rosenstein played an important role in President Trump’s firing of Comey. He is certainly a material witness in Mueller’s incipient inquiry. Though likely not a target of the probe, he is at the very least a subject — a fact he essentially acknowledged when briefing the House of Representative last week. For him to have veto power over Mueller’s every step puts the special counsel’s investigation under a cloud.

How to free Robert Mueller

Ideally, Rosenstein would recuse himself from matters related to the Mueller inquiry, leaving the Justice Department’s No. 3 official, Rachel Brand, in charge of the probe. Department rules require recusal when an attorney is too close to individuals or organizations “substantially involved in the conduct that is the subject of the investigation.” That description fits Rosenstein.

But while the case for Rosenstein’s recusal is, I think, overwhelming, there are still other steps that Rosenstein (or Brand, if Rosenstein steps out of the way) can take to insulate the special counsel. And in doing so, Rosenstein can draw several lessons from Comey’s handling of the CIA leak inquiry.

First, Rosenstein (or Brand) should waive the Justice Department’s “Urgent Reports” requirement for Mueller. Mueller should have discretion as to whether and when he informs the deputy attorney general in advance of major investigative and prosecutorial steps. If Mueller thinks that giving advance notice might compromise his inquiry, he should have the power to hold his plans close to the vest.

Second, Rosenstein should promise that he will inform the chair and ranking member of the House and Senate Judiciary Committees immediately if and when he blocks Mueller from taking any investigative or prosecutorial step, rather than waiting until the end of Mueller’s tenure to do so. It does little good for Congress to learn years after the fact that the deputy attorney general interfered in the probe.

Third, Rosenstein should make clear — as Comey did in the CIA case — that the special counsel, not the deputy attorney general, will decide when the investigation will be over. Fitzgerald did not need Comey’s reauthorization every October 1 to press forward with his probe. Mueller, too, should have the authority to pursue his inquiry to its logical conclusion.

In the end, what matters most is that Robert Mueller can conduct his inquiry without political actors at the Justice Department casting a shadow on the process. James Comey recognized more than a decade ago that an unfettered investigation into the CIA leak required more insulation than the Reno rules provided. Mueller’s inquiry is, if anything, even more politically sensitive and more significant to the nation than the CIA leak probe. Let’s hope Rosenstein will realize that, once again, we deserve an investigation that’s truly independent.

Daniel Hemel is an assistant professor at the University of Chicago Law School. Twitter: @DanielJHemel

How the states can make President Trump’s taxes public

2017-05-08T09:42:54-04:00

Demonstrators in New York, on April 15, demand that Donald Trump release his taxes | Pacific Press / Getty

The Trump administration’s release of a tax plan — or, at least, a one page summary of its goals for tax policy — has drawn renewed attention to the president’s refusal to release his own tax returns. How much would the president personally benefit from his proposal to abolish the Alternative Minimum Tax? How much does he stand to gain from a reduced 15 percent rate on certain business income?

House Democrats have proposed a number of measures that would make the president’s tax returns public, but the Republican majority has blocked these efforts (despite defections by two of their members). With the president unlikely to release his returns and Congress unlikely to force him to, state lawmakers are looking for creative ways to compel disclosure of the president’s tax filings.

One such strategy, which state lawmakers in New York are pursuing, would lead to the immediate release of President Donald Trump’s state tax returns. A bill pending in Albany leverages the Empire State’s unique position as the sitting president’s lifelong home. It would require the state’s tax authority to publish any New York state returns filed by the president, the vice president, and all statewide elected officials. That bill would apply to returns filed in the past five years as well as all New York state returns filed by those officeholders in future years.

New York’s “immediate release” bill is not the only effort at the state level to force the disclosure of the president’s tax information. Another approach is to require presidential candidates to release their federal returns if they want their names on a given state’s 2020 ballot. Lawmakers in at least 30 states have introduced ballot access bills along these lines.

One disadvantage to the ballot access approach is it would not produce any information until the next presidential election. Another potential flaw is that Trump might choose not to go along. If these bills become law only in deep blue states, Trump might decide not to place his name on those states’ ballots, given that he expects to lose there anyway. New York’s immediate release strategy, by contrast, would take effect without a three-year time-lag, and there would be no way for President Trump to escape its operation. And while Trump’s New York state returns do not contain all of the information we would find in his federal returns, they come close.

Why it matters whether Trump’s tax returns are made public

Breaking with longstanding tradition, President Trump has so far successfully stonewalled all requests to get him to reveal his tax returns. First, he claimed that he’d been advised not to release his returns while he was under audit. But an IRS audit didn’t stop President Nixon from releasing his returns.

Now, President Trump says that voters don’t care about his taxes, but that’s demonstrably false as well. Surveys show that a majority of voters believe the president should release his returns — indeed, one recent poll found that 64 percent of self-identified Republicans think Trump should make his tax filings public.

Voters have good reasons for demanding disclosure of the president’s tax filings. In a tax system that relies on voluntary compliance, disclosure of the president’s tax returns shows citizens that their elected leader is paying taxes too — that taxes aren’t only for the “little people,” as Trump’s fellow New York real estate tycoon Leona Helmsley notoriously said. Disclosure also demonstrates to taxpayers that the president isn’t receiving favorable treatment from the IRS even though the agency is part of the executive branch.

A further function of presidential tax transparency is to allow voters to see how much the president would benefit from his own tax proposals, and so to assess whether the president is serving the public interest or his own self-interest. And while the president’s tax returns might not reveal all his business dealings, they could shed light on financial entanglements that potentially affect his decision-making in office.

A few pages of Trump’s tax filings — his 1995 state tax returns and the first two pages of his 2005 federal returns — have leaked already. These leaks reveal that Trump has used questionable claims of loss deductions to offset income and reduce his tax bill. But these drips and drabs from the past are no substitute for comprehensive and current tax filings.

Why the states can, and should, take the lead on this

For nearly a half century, presidents have abided by a norm of tax transparency without needing a law to force them. In theory, Congress could obtain and release the president’s returns if the president won’t release them himself. But if the Republican-controlled Congress refuses to act, our system of federalism allows states to intervene. As James Madison wrote in Federalist No. 51, the whole point of having distinct federal and state governments is to achieve a “double security”: If the federal government won’t stand up for the rights and interests of the people, the states can and should.

New York has an additional reason to release the president’s state returns: New Yorkers will spend as much as $60 million a year protecting President Trump’s wife and son while he is in the White House. New Yorkers deserve to know whether the president is paying a portion of these costs through New York state and city taxes.

Where the various bills stand now

So far, no state has enacted a law that makes ballot access in 2020 conditional on a candidate releasing his or her tax returns. Lawmakers in New Jersey passed a bill that would have done so, but Gov. Chris Christie vetoed it May 1.

Prospects for enactment are brighter in places like California and Hawaii — states with Democratic governors and overwhelming Democratic majorities in the state legislature. But these are also states where Hillary Clinton won by a landslide last November, and where President Trump stands little chance of prevailing in 2020. That’s why President Trump might decide not to place his name on those states’ ballots next time rather than releasing his returns.

Of course, if Trump cared about winning the popular vote, he would want to compete in all 50 states. But despite his hunger for public approval, he has already demonstrated quite clearly that he can lose the popular vote by a substantial margin and still win the presidency.

What are the chances of New York’s quite different strategy succeeding? Democrats occupy the governor’s mansion, 106 out of 150 seats in the State Assembly, and a slim majority of 32 spots in the 63-member State Senate. But in an “only in New York” twist, nine Democratic state senators have broken ranks with their own party and reached a power-sharing agreement with the Republicans. As a result, the Senate majority leader is a member of the Republican minority, and Republicans fill many key committee chairs as well.

The push to publish the president’s state tax returns received a boost late last month when the Independent Democratic Conference, which includes eight of the crossover Democrats, came out in favor of the proposal. The bill is now before a nine-member committee made up of five Republicans and four Democrats. Its fate could depend on a first-term Republican state senator, Elaine Phillips, who represents a heavily Democratic district in Nassau County, Long Island. If she joins her Democratic colleagues to support the measure, then the chances for passage increase significantly.

Note that New York almost certainly isn’t the only state where President Trump files tax returns. He also owns apartment buildings, golf courses, and hotels in a number of other states — including California, Connecticut, Hawaii, and Illinois — and so probably files nonresident returns there as well. Those won’t be as comprehensive as his New York resident returns, but they will show what he reports as income from in-state and out-of-state sources. These states, too, could demand release of Trump’s state tax forms, though there is little action on this front so far.

Will these laws hold up in court?

If a state passes a law requiring candidates to release their returns in order to have their names on the 2020 ballot, President Trump would almost certainly challenge that law in court. His strongest argument would be based on a 1983 Supreme Court case, Anderson v. Celebrezze, which limited the ability of states to take actions that affect national elections. Specifically, the court struck down an early filing deadline in Ohio that put third-party candidates at a disadvantage.

But notably, the court in Anderson did not say that all ballot access requirements were unconstitutional. Rather, it recognized that a state’s “important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” A tax-disclosure requirement that applies to all presidential candidates from 2020 onward would likely meet that test.

President Trump also would likely challenge New York’s immediate release plan, if it passes. President Trump’s lawyers might argue, for instance, that the publication of his state tax returns infringes on his right to privacy, and so violates the 14th Amendment.

But at the time the Fourteenth Amendment was ratified in 1868, there was a broad understanding that tax information is a matter of public record. (Indeed, from 1862 to 1870, the names and liabilities of individual taxpayers were posted on courthouse doors.) More recent case law from the US Court of Appeals for the Second Circuit, which has jurisdiction over New York, holds that the constitutional right to privacy does not prevent a state or local government from requiring public officials to make detailed disclosures of their personal finances.

New York state and New York City already require such disclosures from many public employees. President Trump might further contend that publishing his tax returns from the past five years violates the Constitution’s limits on retroactive laws. He might say it is unfair to reveal returns from five years ago that he thought would be kept private at the time he filed them.

But the Constitution only prohibits states from enacting retroactive criminal laws. On civil matters, the test articulated by Justice Anthony Kennedy is “whether in enacting the retroactive law the legislature acted in an arbitrary and irrational way.” It’s entirely rational for New York to want its citizens to know whether their elected leaders have been paying taxes in recent years — and whether those leaders have financial conflicts of interest that might affect their performance in office.

What will we learn from these returns?

President Trump’s federal and state tax returns will reveal important information about his personal finances and his taxpaying past. We will learn, for instance, the income that he receives from all sources and the deductions he claims for charitable contributions and various other expenses. We will also learn whether he has been contributing to the cost of government over the years, or whether he has been leaving others to pay the bill.

What’s harder to say is whether Trump’s returns will reveal business ties to foreign governments. He certainly won’t include a line on either set of returns that says “$X received from Vladimir Putin for services rendered.” But if he holds financial accounts in foreign countries, he must disclose those to federal and state tax authorities alike. While we won’t know the full extent of the information in Trump’s tax returns until we see them, we can be confident that Trump’s tax returns will give us a more comprehensive view of his business dealings — though still not a complete picture.

But that’s a lot more than we know now.

Daniel Hemel is an assistant professor at the University of Chicago Law School. His essay, “Can New York Publish President Trump’s State Tax Returns,” is forthcoming in the Yale Law Journal Forum.