Today the House Judiciary Committee announced two articles of impeachment. The first article alleges that President Donald Trump abused his power by asking Ukrainian President Volodymyr Zelensky to publicly announce investigations into one of his political opponents, Joe Biden, and into a “discredited theory” that Ukraine, not Russia, had interfered in the most recent presidential election. The second article charges that President Trump obstructed Congress by refusing to comply with impeachment-related subpoenas. In opting for these two offenses—and in excluding three others that had all been plausible—House Democrats have narrowed their charges to the allegations that are the easiest to see, if you see the world, and this presidency, as they do.,
What didn't make the cut? First, Congress chose not to include articles of impeachment based on the foreign and domestic emoluments clauses. Democratic members of Congress have long alleged that President Trump is illegally profiting from his business entities that cater to foreign and state governments. Indeed, more than 200 members of Congress have sued the president in federal court, arguing that his conduct is unconstitutional. (I have filed a series of amicus briefs arguing that Trump's conduct amounts to poor policy, but is lawful.) Yet, the House has not even held a hearing on these once obscure provisions of the Constitution. It would have been very difficult to make the case for impeachment based on a nonexistent record.
Second, Congress chose not to include articles of impeachment based on allegations in the Mueller report. For nearly two years, the special counsel titillated the Beltway with the prospect of potentially impeachable conduct. Robert Mueller’s voluminous report dispelled allegations of Russian collusion, but strongly hinted that President Trump engaged in obstruction of justice—that the President used his official power to stymie the investigation. Attorney General Bill Barr disagreed, and independently concluded that there was no criminal activity worth charging.,
Instead of settling on charges that relate to statutory crimes, with clear, concrete criteria, the Democrats have instead released two articles of impeachment in which the misconduct exists largely in the eye of the beholder.,
Of course, the House could have picked up the mantle and charged the president with obstructing justice. Indeed, Mueller’s report provided what many dubbed a “road map” for impeachment. But an article on impeachment based on obstruction of justice was not included. Why? I suspect the House realized that the president had a legitimate constitutional defense. Many of the alleged obstructive acts, such as firing FBI Director James Comey, are authorized by Article II of the Constitution. No, that provision does not give Trump the “right to do whatever” he wants. But it does allow him to supervise and control his administration. Most articles of impeachment based on obstruction of justice would have gotten bogged down in very difficult constitutional questions. (I wrote a four-part series discussing these issues.) I think at least one of the claims, in which President Trump asked his White House counsel to prepare a false record, could have been viable. Yet, the House left obstruction of justice, and its messy separation of powers issues, on the cutting-room floor.
Third, Congress chose not to include articles of impeachment based on bribery. The Constitution specifically lists bribery, as well as treason, as grounds for impeachment. Three of the four law professors who testified before the committee agreed that President Trump solicited a bribe: the benefit from the proposed investigations by Ukraine into the family of presidential candidate Joe Biden would be personally valuable to the president. As the Maynooth University law professor Seth Barrett Tillman and I have written, such an article would be tough to prove; the technical elements of bribery have not been satisfied. The University of Michigan law professor Barbara McQuade, who supports impeachment, recommended dropping the bribery charge. She wrote that the House should avoid “trying to satisfy technical statutory requirements such as ‘quid pro quo,’ and allowing Republicans to quibble over legal definitions.” Once again, the House Judiciary Committee took the path of least resistance, and excluded an article based on bribery.
Why did the House choose to include only abuse of power and obstruction of Congress? These two articles, in theory at least, are very easy to prove. Instead of settling on charges that relate to statutory crimes, with clear, concrete criteria, the Democrats have instead settled on articles in which the misconduct exists largely in the eye of the beholder.
Let’s start with abuse of power. Here, the Committee asserts that the president asked a foreign government to investigate his political rival. Chairman Jerry Nadler explained, “The first article is for Abuse of Power. It is an impeachable offense for the President to exercise the powers of his public office to obtain an improper personal benefit, while ignoring or injuring the national interest.” What exactly is an abuse of power? The term is not defined in the Constitution, and indeed it resists a simple definition. This is a crime that exists in a person’s subjective judgment: One person’s abuse of power is another’s diplomacy. Now, the Democrats’ articles of impeachment insist, is not the time to argue about the specific contours of Trump’s conduct; there is plenty of time for that debate. But the deliberations over whether Trump committed an amorphous, malleable offense will not get bogged down in difficult constitutional or factual questions, as obstruction of justice would. The inquiry is fairly straightforward and streamlined, exactly as the House wants it.
The second article of impeachment, in the abstract, is also very easy to prove. The House issued subpoenas to the Trump administration to assist its impeachment inquiry. In turn, the Trump administration categorically refused to comply with all of those subpoenas. The House of Representatives then asked the courts to enforce those subpoenas. And the Trump administration asserted various privileges, mirroring arguments they have made in prior court cases. That litigation proceeds separately. But now the House contends that Trump’s refusal to comply with the subpoenas is itself an impeachable act. Is that theory correct? Trump will likely counter that asserting a privilege in lieu of responding to a subpoena is a well-worn executive practice, not grounds for removal. Who is right? The Senate will decide. But like with abuse of power, the factual issues will not be in dispute. All that is left to decide is whether doing so is sufficient for impeachment.
The Senate is heading into uncharted territory. Once articles of impeachment are completely decoupled from any clearly articulated offenses, the burden of charging a president with “abuse of power” is significantly reduced. Moreover, any president who refuses to comply with what he sees as an improper investigation can be charged with “obstruction of Congress.” This one-two punch can be drafted with far greater ease than were the articles of impeachment presented against Presidents Andrew Johnson, Richard Nixon, or Bill Clinton.
Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president’s duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and an adjunct scholar at the Cato Institute.
Justice Department Inspector General Michael Horowitz’s long-awaited report on the FBI’s “Crossfire Hurricane” investigation is finally out, and notwithstanding furious efforts from all quarters to claim otherwise, it fails to neatly validate anyone’s favored political narrative. Contra the hopes of Donald Trump’s more ardent admirers, it fails to turn up anything resembling a Deep State cabal within the FBI plotting against the president, or deliberate abuse of surveillance authorities for political ends. Yet it also paints a bleak picture of the Bureau’s vaunted vetting process for warrant applications under the Foreign Intelligence Surveillance Act (FISA), documenting a host of material omissions or misrepresentations in the government’s case for wiretapping erstwhile Trump campaign advisor Carter Page, whose privacy was invaded for nearly a year on disturbingly thin grounds. Though it does not describe an investigation motivated by political bias, it is a textbook account of confirmation bias that should raise disturbing questions about the adequacy of the FISA process—and not just in this investigation.,
The heart of the Horowitz report deals with the Carter Page FISA application, and documents a progression that ought to sound familiar to anyone who’s studied the history of the intelligence community: An investigation begins with a kernel of reasonable suspicion, and facts are marshaled to support a theory. As it gathers momentum, those initial suspicions congeal into assumptions. New information that fits the original theory is added to pile of evidence—while a growing body of contradictory of information is overlooked. It’s possible to read the Horowitz report and think that the initial 90-day wiretap of Page was justified, but far harder to rationalize intrusive surveillance that carried on for nearly a year, through three separate renewals, even as evidence mounted that should have undermined the basis for the warrant.
As the report recounts, “Crossfire Hurricane”—the FBI’s codename for its probe of potential links between Russia’s election interference operation and the 2016 Trump presidential campaign—originated in the summer of 2016 with a tip from the Australian government (a “friendly foreign government” in the report): Trump campaign aide George Papadopoulos had been drunkenly repeating an academic acquaintance’s startling assertion that the Russian government had thousands of potentially damaging e-mails related to Democratic candidate Hillary Clinton. The intelligence community was already seeing the outlines of an unprecedentedly brazen, multi-pronged effort to meddle in the presidential election benefit: Now here was an indication that the Trump campaign might be not just an unwitting beneficiary of Russian efforts, but a knowing participant. The FBI quickly focused on four individuals in Trump’s orbit with ties to Russia: Page, Papaodopolous, campaign chair Paul Manafort, and national security advisor Michael Flynn.,
Though it does not describe an investigation motivated by political bias, it is a textbook account of confirmation bias that should raise disturbing questions about the adequacy of the FISA process—and not just in this investigation.,
While FISA surveillance of Page and Papadopoulos was apparently contemplated in August, Justice Department attorneys determined investigators lacked probable cause to establish that either was acting as an “agent of a foreign power,” the critical showing they’d need to make to the Foreign Intelligence Surveillance Court. That changed in September, when the FBI got wind of former British intelligence officer Christopher Steele’s research into Trump’s Russian ties—opposition research indirectly commissioned by the Democratic National Committee, and now notorious under the collective moniker “The Steele Dossier.” Steele’s reporting, gathered from a network of sources and sub-sources, purported that Page was a key figure in a “well developed conspiracy of cooperation” between the Trump Campaign and the Russian government. The FBI would lean heavily on Steele’s reporting in its petition to the FISA Court for a warrant authorizing electronic surveillance of Page.
As the Horowitz report documents, even that first application, submitted in October 2016, contained a series of notable omissions or misstatements, though whether they would have made a difference to the FISA Court’s assessment of the evidence is anyone’s guess. Among the most significant:
These omissions matter because FISA applications typically remain secret forever—indeed, the Page application is the first to ever become public even in part. That means not only does the FISA Court rely on the government to present it with a complete picture, including facts that might call the reliability of government sources into question (something that’s true of every wiretap application) but there’s typically little risk that an agent who submits a tendentious affidavit supported by cherry-picked evidence will have to defend their work in the harsh light of an adversarial proceeding, such as a criminal trial. If the government isn’t forthright about presenting evidence that cuts against a finding of “probable cause,” as well as the evidence for it, they’re unlikely to be held to account.
It’s worth emphasizing, though, that the picture Horowitz paints remains fundamentally at odds with claims that FBI or DOJ leadership conspired to mislead the FISA Court, plotting to use surveillance of a peripheral campaign advisor as the lynchpin of some Rube Goldbergian scheme to undermine the Trump Administration. Each of these gaps represents information that lower-level case agents failed to recognize as material to the application—and in at least one case, an agent providing an erroneous response when a DOJ attorney asked for clarification about precisely when Page had been a source of information for CIA.
What they do show, however, is that the much-ballyhooed Woods Procedures, designed to ensure that representations to the FISA Court match the information in the FBI’s case files, are no guarantee that the Court is getting a complete picture. Woods review will catch a claim that’s unsupported, but it won’t reliably ferret out information weakening the government’s case that’s not flagged as relevant by the agents working the case. (The report does identify a handful of facts that passed through Woods review without apparent documentary support, though the instances in the initial application, at least, are trivial.) One exception, perhaps ironically, concerns the charge that the FBI had deceived the court about the politically-motivated funders of Steele’s research: A lengthy footnote discussing just that was added to the application at the urging of DOJ attorneys, though in keeping with the general practice in FISA applications, specific American people and groups (such as “Donald Trump” or “the Democratic National Committee”) were not mentioned by name.
It’s with the renewal applications, however, that the omissions start to get truly egregious:
Horowitz also faults the Bureau for some omissions that seem less problematic: DOJ official Bruce Ohr had characterized Steele as “desperate” to prevent Trump’s election, which if Steele believed his own reporting seems entirely natural, not suggestive of preexisting bias. And though the Bureau did eventually learn the DNC was the ultimate source of funding for Steele’s research, it did not add this to its original footnote indicating a likely political motive for the assignment—a detail that seems both immaterial and redundant: Any judge with the minimal wit needed to identify the unnamed Candidate referenced in the application could presumably also deduce the identity of his political opponents if it mattered.
Nevertheless, the gaps and inaccuracies in the renewal applications are clearly hugely more serious than those in the first. It is not hard to imagine the first warrant being granted even if FBI had included in its application all the information available to it at the time; it is almost impossible to believe the same of the last one. Yet it remains, if anything, still more incoherent to suppose that, in June 2017, the FBI was seeking to prolong increasingly fruitless surveillance of a former campaign advisor—surveillance long since known to the target—as part of an attempt to somehow harm Trump.
Instead, the picture that emerges from the Horowitz is not so much sinister as banal: The government asked the court for “one more go” essentially out of inertia. Case agents weren’t motivated to think terribly hard about whether the most recent piece of information they’d uncovered contradicted a claim they’d made to the court months earlier. Higher level attorneys reviewing renewal applications focused almost exclusively on vetting the new information in each filing, never going back to reexamine earlier assertions and test whether they were still defensible. Verification meant checking the files to validate fresh data, but not to take a fresh look at early assumptions. After all, someone had checked that already, right?
This picture is, in its own way, and for very different reasons, as disturbing as the image of a Deep State cabal with a vendetta against Trump: Vendettas are at least specific. Whereas the grave defects in the surveillance of Page seem more likely to be symptoms of a more apolitical, and therefore more systemic, form of bias. Their underlying causes—reliance on sources whose claims are hard to directly check, imperfect information, case agents making judgments about which facts in a vast sea of data might be legally material—aren’t peculiar to elections but endemic to intelligence.
The investigators working Crossfire Hurricane well understood they were charged with a Sensitive Investigative Matter—one destined to draw a level of scrutiny unprecedented in the history of FISA. Under the circumstances, you might expect them to operate with especially scrupulous exactitude. If the Horowitz report reflects what we find when we start turning over rocks under those conditions, what kind of errors and omissions might we expect to uncover in the case files of FISA targets less likely to inspire congressional hearings? It's past time to find out.Julian Sanchez is a senior fellow at Cato and focuses primarily on issues at the busy intersection of technology, privacy, civil liberties, and new media — but also writes more broadly about political philosophy and social psychology.
Altera Part I: IRS Becoming Less Exceptional in Admin Law
“IRS exceptionalism” continues its slow bleed.
For reasons that escape me, the White House and federal courts historically have treated the IRS differently than other executive branch agencies when it comes to administrative law and regulatory process. But that’s changing.
For example, the IRS no longer escapes OIRA review, as it had since the 1980s. Last year, the OMB won a power struggle with the Treasury Department; now, IRS rules are subject to the same White House regulatory review process that other executive branch agencies must undergo.
Judicial review, too, is becoming more “normal” for the IRS, as the agency increasingly becomes beholden to the same administrative law doctrines that courts long have employed in reviewing other agencies. Let’s call it “hardening look review.”
The latest sign is the Ninth Circuit’s denial last month of an en banc rehearing in Altera v. Commissioner.
“Altera is a big deal for tax administration” writes Professor Kristin Hickman, because “even as individual judges in the Altera litigation have disagreed over how administrative law doctrines apply in the case, no judge has questioned whether those doctrines apply in the tax context.” According to Prof. Hickman, “[t]hat would not have been true ten years ago.”
Altera Part II: Judge Milan Smith Rings Death Knell for Auer
Administrative law doctrines develop in lower courts within the “markers” set from above by the Supreme Court. Accordingly, this blog has been paying close attention to the fate of the Court’s schizoid opinion in Kisor v. Wilkie.
On the one hand, Justice Kagan’s plurality opinion upheld the Auer doctrine, which requires courts to give binding judicial respect to an agency’s reasonable interpretations of regulatory ambiguities. On the other, her opinion “reinforced” and “expanded on” the doctrine’s limits, so much so that Justice Gorsuch claimed that Auer deference emerges “enfeebled” and “maimed.”
So, which is it? Did Kisor affirm or enfeeble Auer deference? Some scholars claim that the doctrine lives. Others, including me, argue that Kisor effectively killed Auer deference by imposing so many conditions on its use.
In prior posts, I’ve described how the Ninth Circuit seemed to be applying an anti-Auer gloss to Kisor. Last month, my analysis was strongly supported by Judge Milan Smith’s powerful dissent to the denial of an en banc rehearing in Altera, which was joined by Judges Consuelo Callahan and Bridget Bade.
Judge Smith observed that “Treasury does not ask for Auer deference,” even though “some amici suggest it could.” I find it quite telling that the agency would leave this argument on the table.
But there’s more! Judge Smith continued, “it is clear that such deference would not be available even if not disclaimed,” due to “the very detailed limitations on Auer deference spelled out in Kisor.”
Altera Part III: Judicial Disqualification
Remarkably, 10 active judges recused themselves from considering the petition for an en banc rehearing in Altera.
They were (year confirmed): Judges Margaret McKeown (1998), Kim Wardlaw (1998), Jay Bybee (2003), Carlos Bea (2003), Paul Watford (2012), John Owens (2014), Michelle Friedland (2014), Eric Miller (2019), Collins (2019), and Lee (2019).
For comparison’s sake, consider that the average circuit court (excluding the Ninth Circuit) has about twelve judges.
As it turns out, recusal is regulated by statute. Under 28 U.S.C. § 455, “a justice, judge, or magistrate judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Furthermore, in Liteky v. United States, the Supreme Court set forth the general rule that, to warrant recusal, a judge’s bias must have originated in a source outside the case itself.
In fact, there’s an entire case book given to the subject of judicial disqualification, and it’s on its second edition! I’m always awed and humbled whenever I discover whole swaths of law about whose existence I’d not known.
Another Cri de Coeur for Reforming Chevron
As I saw it back then, the court’s error was doubly dire because it contravened prevailing circuit law. Twice before Szonyi, Ninth Circuit panels had adopted interpretations contrary to that advanced by the Board of Immigration Appeals. Nevertheless, the split Szonyi panel determined that the statute is ambiguous, and, under Brand X, sided with the agency over its own best reading.
Last month, however, my disappointment abated somewhat, upon learning that at least two judges agree with me.
Judge Collins’s dissent sets the tone with its first sentence: “This case well illustrates why Chevron v. NRDC has become the subject of so much recent criticism.” And it only gets better from there.
Ultimately, his point is that Chevron raises constitutional concerns, so courts must be rigorous in its application. In his opinion, the Szonyi panel had demonstrated the sort of “reflexive” deference that gives Chevron a bad name.
Judge Collins’s dissent bears a strong resemblance to other criticisms of Chevron in the Federal Reporter, including opinions from then-Judge Gorsuch in Gutierrez-Brizuela v. Lynch and also Judge Kent Jordan in Egan v. Delaware River Port Authority.
Ninth Circuit Again Sounds Alarm on Unworkability of CIMT Framework (SCOTUS, Are You Listening?)
In a per curiam opinion, a Ninth Circuit panel did something curious last month in Fugow v. Barr.
Fugow involved a hot-button topic in the administration of immigration law—namely, how to discern a “crime involving moral turpitude” (CIMT) in the deportation context.
The court started by observing that neither it nor the agency has been able “to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.”
Having admitted that judicial review would be “incoherent,” the court then proceeded to conduct judicial review, as is its duty.
As I’ve observed repeatedly, the court routinely calls out the nonsensical nature of the prevailing CIMT framework in immigration law. It’s well past time for the Supreme Court to step in and clean up this confusion.
Court KOs Class Action
On November 21st, a unanimous panel affirmed the district court’s dismissal of class actions brought by spectators against boxers and the promoters of the 2015 Mayweather-Pacquiao fight.
Judge Jacqueline Nguyen’s opinion threw above its weight, and she kept it clean of undue boxing jokes. In pulling her “pun”ches, she showed considerable ring savvy, unlike the author of this post.
On a serious note, I bought that fight, and empathize with the putative class.William Yeatman is a research fellow at the Cato Institute.