By Deborah Ramirez and Greer Clem*
Draft: 13 Ne. U. L. Rev. (forthcoming Winter 2021)
Dedication
For Ralph Gants, a tireless advocate for justice and a fierce protector of the rule of law. His moral compass and legal brilliance were essential to this paper. May his legacy be an inspiration for all those on the quest for justice.
Introduction
The separation of powers—the hallmark of our governmental structure—was intended by the Founding Fathers to protect the Rule of Law1 by ensuring that governmental power is shared among three equal branches of government, thereby restricting the unaccountable exercise of government power. Each of the three branches of the United States government is granted authority to perform specific functions,2 as well as additional powers “to protect itself [from other branches’ encroachment] and to police the other departments.”3 In other words, the Founding Fathers envisioned the separation of powers to be a “separation of functions” and, simultaneously, a “balance of power.”4 Special Counsel Robert Mueller’s Report on the Investigation Into Russian Interference in the 2016 Election (the “Mueller Report” or “Report”) illuminates a dangerous imbalance in this system. The Mueller Report documents instances in which the Trump Administration attempted to obstruct Mueller’s efforts.5 Trump ultimately moved to hide the Special Counsel’s full report from Congress via his executive authority.6 Despite the obvious impropriety, the other branches failed to hold the executive accountable for these actions.
The release of the Mueller Report reveals fissures in our original separation of powers system that endanger the Rule of Law. It demonstrates how the existing infrastructure is inadequate to preserve the Rule of Law, especially in the face of our country’s most lawless President to date. President Trump’s multiple attempts to obstruct justice have shown a willingness to ignore and erode the traditional boundaries set by the separation of powers. Mueller’s analysis reveals a system with minimal repercussions for abuses of executive authority, one that requires significant bolstering if it is to truly protect the Rule of Law.
In particular, the Mueller Report revealed the absence of timely judicial oversight of the executive branch, the repercussions of being unable to indict a sitting President, and the danger of a legal system which does not have an affirmative duty to report foreign interference into our elections. These three issues stand as both cause and consequence of the imbalance of power among the three branches of government. The executive branch has a seemingly unlimited amount of power that is not adequately policed by the remaining branches. As the Mueller Report reveals, the judicial branch is absent in its role policing presidential misconduct.7 Between these two extremes is the legislative branch, which has attempted to hold the President accountable without the judiciary’s enforcement mechanisms.8 However, these attempts, too, have fallen short.9
This paper uses the Mueller Report, news reports, and other sources to identify weaknesses in our legal system laid bare by the Trump presidency and to propose additional infrastructure and architecture to protect the Rule of Law. We propose three solutions to fill these gaps: first, expedited judicial review where constitutional questions are concerned; second, tolling the statute of limitations to address the indictment of a sitting President; and third, creating an affirmative duty to report foreign interference in our electoral processes. These are initial proposals meant as catalysts for further discussion and rumination. We recognize that they may need to be revised or reconsidered. It is, however, the goal of this paper to begin to foster that discussion and to be a starting point for necessary change.
The Mueller Report’s thorough examination of President Trump’s campaign and early presidency reveals fundamental weaknesses within the Rule of Law. The Report examines the behavior of the Trump campaign leading up to the 2016 election, the aftermath of Trump’s victory, and, ultimately, President Trump’s attempts to use executive privilege to obstruct the Special Counsel’s investigation. Most significantly, the Report reveals fissures within the existing legal safeguards that have allowed Trump and his administration to effectively ignore the Constitution and to flout the safeguards of the separation of powers.
In Part I, the Report finds that Russia engaged in significant election interference in the lead-up to the 2016 presidential election. It further reveals that the Trump campaign was aware of this interference, that the interference benefited the Trump campaign directly, and that the Campaign failed to report it to the FBI or any law enforcement agency.10 Since Mueller found no evidence that Trump directly aided, assisted, helped, or counseled the Russians in their attempts to interfere with our election, Mueller found that there was insufficient evidence to charge Trump or his campaign staff with conspiracy.
In Part II, the Report chronicles ten attempts to interfere with the investigation. Mueller declines to opine on whether these attempts constituted obstruction of justice.11 He provides two reasons: a Department of Justice (DOJ) policy against indicting a sitting President and the belief that doing so would unfairly put President Trump in the position of being accused of a crime but unable to defend himself in court. Instead, Volume II of the Report notes, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”12 Finally, the Report declares that it provides facts, witness statements, and other evidence that could be used against President Trump if prosecutors pursued charges for attempted obstruction of justice once he has left office.13 Though Mueller himself declined to pursue an obstruction of justice indictment, a letter written by former federal prosecutors declared that the acts of the President do indeed constitute obstruction of justice.14 The letter states in part, “[t]he Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming.”15
What the Mueller Report laid bare was the fact that presidential misconduct, up until now, has been restrained, not by specific legal safeguards, but by traditions and customs. Perhaps more significantly, the Rule of Law has been protected in large part by the ethos, character, and understanding of prior presidents who shared the belief that there existed certain boundaries and restraints on their executive authority. This revelation speaks to the lawlessness of the Trump presidency. This lawlessness is unique in that it creates a new vision of executive authority that eviscerates the powers of Congress and the judiciary. In July, President Trump told a group at the Turning Point USA Teen Student Action Summit that the Mueller Report found “no collusion, no obstruction.”16 The President continued, “I have an Article II, where I have to [sic] the right to do whatever I want as president.”17 While it is not, in fact, true that the President is immune from legal or legislative restraints, the judicial and legislative branches of government have failed to sufficiently hold him accountable. The Mueller Report illuminates at least three gaps in the Rule of Law that must be filled in order to remedy this lack of legal accountability.
With President Trump touting his infamous stonewalling approach to judicial issues,20 there must be a mechanism by which to expedite judicial consideration of constitutional issues as they relate to special counsel investigations, interbranch relations, and executive oversight. In Section II.A of this paper, we propose a path for expedited judicial review by the Supreme Court. Without such a mechanism, the delays associated with constitutional litigation actually serve to strip the courts of their responsibility and authority to uphold the law and to act as an independent arbiter of it. An expedited review process would allow the courts to participate in Rule of Law controversies and fulfill their constitutional obligation to uphold the law, which is crucial to restoring the balance of powers and fortifying the Rule of Law.
Second, the insulation of the President from criminal indictment poses another threat to the Rule of Law. The danger this gap in legal accountability creates has become more apparent as an inflated executive branch has become increasingly authoritarian. President Trump’s perspective on executive power “is not unlike that of Richard Nixon, who famously said, ‘[w]hen the president does it, that means it’s not illegal.’”21 Referencing President Trump’s claim during the campaign that he “could stand in the middle of Fifth Avenue and shoot somebody . . . and [he] wouldn’t lose any voters,” the President’s lawyers infamously asserted that even if he shot someone, he could not be prosecuted while in office.22 Lurking behind these inflammatory statements is a legitimate gap undermining the Rule of Law: a sitting President may not be indicted for criminal conduct while in office.
As the Mueller Report illustrated, internal DOJ policy has shielded the President from legal accountability. In this paper, we propose tolling the statute of limitations to ensure that a sitting President can be prosecuted once they leave office. The DOJ would still retain the discretionary decision as to whether or not to bring charges against a sitting President, but the tolling would ensure that courts could hear the allegations once the President had left office. Under this proposal, a DOJ prosecutor beholden to the elected President is not the only means to hold them accountable.
Third, Presidential accountability is not the only fissure in the Rule of Law architecture. The Mueller Report also revealed the need for greater accountability of candidates for elected office, presidential or otherwise. The Mueller Report broached this topic in its analysis of Russian interference in the 2016 presidential election.23 The recent Ukraine investigation and subsequent impeachment proceedings have emphasized this issue’s significance. These incidents demonstrate that foreign interference in our democratic process has occurred24 and continues to be solicited.25 Trump campaign officials knew of Russian plans to influence the election but failed to report them.26
In his testimony before Congress, Mueller warned that accepting assistance from foreign officials could become “a new normal.”27 Unless action is taken to squash the quiet approbation of such insidious conduct, we risk Mueller’s prediction coming true. In order to protect our democracy from foreign interference, government employees and those involved in campaigns need to abide by an affirmative duty to report foreign interference in our elections. An affirmative duty to report would help maintain the integrity of American elections, preserve the separation of powers, and reinvigorate the Rule of Law.
The current President provides an example of the dangerous potential for presidential overreach left largely unimpeded by the current legal infrastructure. The Mueller Report did not result in concrete legal consequences, but it may, nonetheless, serve as an important warning of the widening fissures in our legal architecture. The rule of law has been weakened, and now it is incumbent upon all advocates of American democracy to actively address the gaps that have emerged. The three following proposals would help close these gaps, restoring important checks on presidential power.
A. Proposal I: Expedited Judicial Review
In order to effectively conduct his investigation into whether the Trump campaign had worked with Russia to meddle in American elections, Mueller needed President Trump’s testimony. Though he recognized that he had the authority to subpoena Trump, Mueller decided not to do so, saying that the process would have substantially delayed the investigation.29 Mueller explained the rationale behind this decision involved “weigh[ing] the costs of potentially lengthy constitutional litigation, with resulting delay in finishing [the] investigation, against the anticipated benefits for [the] investigation and report.”30 Mueller’s theory was that Trump would have challenged the subpoena all the way to the Supreme Court, delaying the investigation by months, if not years, due to the pace of judicial review.31 Consequently, the investigation proceeded without Trump’s oral testimony, with Trump declining invitations for in-person interviews. The Appendix to the Report notes:
We received the President’s written responses in late November 2018. In December 2018, we informed counsel of the insufficiency of those responses in several respects. We noted, among other things, that the President stated on more than 30 occasions that he “does not ‘recall’ or ‘remember’ or have an ‘independent recollection’” of information called for by the questions. Other answers were “incomplete or imprecise.” The written responses, we informed counsel, “demonstrate the inadequacy of the written format, as we have had no opportunity to ask follow-up questions that would ensure complete answers and potentially refresh your client’s recollection or clarify the extent or nature of his lack of recollection. We again requested an in-person interview, limited to certain topics, advising the President’s counsel that “[t]his is the President’s opportunity to voluntarily provide us with information for us to evaluate in the context of all of the evidence we have gathered.” The President declined.32
The lack of a timely judicial resolution of subpoenas presents a weakness in the current Rule of Law. When the time it takes to obtain a judicial resolution actively detracts from an investigation, justice is delayed, denied, or both. The delay allows relevant details of the subject of the investigation to remain concealed from the investigative efforts, actively hindering investigative abilities. Additionally, the complex and time-consuming processes the courts have in place prevent them from weighing in on important constitutional issues, rendering them voiceless.
In contrast, Elie Mystal’s article for The Nation argues that Mueller himself obstructed his own investigation by failing to subpoena Trump.33 The article posits that, despite the delays, Mueller should have subpoenaed Trump because there was no way of accurately predicting how Trump would have acted.34 However, this argument fails to take into account the extent of delays inherent in the judicial system. By the time the subpoena issue traveled from the district court to the circuit court, and from there to the Supreme Court, the judicial stalling would have taken so long as to impede the process of the entire investigation.35
By failing to secure Trump’s testimony under oath, the best evidence regarding intent to obstruct justice was not obtained. Much of the information that only President Trump could provide remains unknown. As a result, Mueller’s investigation remains unfinished and the Rule of Law continues to erode. Expedited judicial review would provide future oversight investigations with the means to compel the production of critical evidence and allow the courts to exert necessary balancing power between our three branches.
Existing Special Counsel regulations do not contemplate expedited judicial review.36 For a long-lasting solution to this problem, the Special Counsel authorizing regulations should be amended to ensure an independent judiciary is able to weigh investigation issues in a timely and meaningful manner. After factual findings have been completed by the trial courts, appeals should go straight to the Supreme Court for a final resolution on the matter. As such, 28 C.F.R. § 600, which delineates the general powers of the Special Counsel, should be amended to include the following:
The Special Counsel may request an expedited judicial review of any matter arising during the course of his or her investigation. The review process must include a trial level fact-finding procedure and then a direct appeal to the Supreme Court of the United States for a final resolution on the issue.
Including this provision would prevent legal stalling, enable proper fact-finding, strengthen the role of the judicial branch as a check on executive authority, and restore the Court’s role in resolving constitutional questions.
The need for expedited judicial review, however, goes beyond merely the role of the Special Counsel; expedited review of questions of constitutional significance must also be made available to both houses of Congress. This is not to say that any question remotely constitutional in nature should be granted expedited judicial review. Questions submitted for such a procedure should be related to the Rule of Law in that they address interbranch authority, executive oversight, or separation of powers, in addition to the role of the Special Counsel. While this paper in large part addresses unlawful executive overreach, the expedited judicial review process should also be made available to answer constitutional questions pertaining to the Executive; this solution is not meant to exclude that branch of our government but rather to restore the role of the judiciary in outlining constitutional limits. These issues within the Rule of Law speak so fundamentally to the construction of the Constitution as to warrant interpretation by none other than the nation’s highest court.
The Massachusetts Constitution provides the framework for a partial solution to the issue of expedited judicial review. It allows the legislative branches as well as the executive to report important questions of law directly to the Massachusetts Supreme Judicial Court.37 When directly asked to give advisory opinions, the justices of the Massachusetts Supreme Judicial Court answer “as individuals in their capacity as constitutional advisors of the other departments of government.”38 In this way, the judicial branch is enabled to act as arbiters of constitutional authority, interpreting the rights of each branch of the state’s government and acting as the rightful authority on questions of constitutional power. While the Massachusetts Constitution is silent as to the speed with which the court responds, the court usually seeks to do so within a few months.39 This provision could serve as a template for a federal analogue.
Of course, the Massachusetts direct review process was accomplished via constitutional amendment. While one solution would be to amend the federal constitution in a similar fashion, this solution is impractical. However, without a constitutional amendment, direct review by the U.S. Supreme Court would extend beyond the Court’s jurisdiction as an appellate court.40 Article III of the Constitution further limits Supreme Court review to “cases and controversies,” prohibiting the Court from granting pure advisory opinions.41 Thus, federal, legislatively enacted, expedited judicial review would be limited to appellate review of live cases or controversies and would not allow the hearing of pure advisory opinions as the Massachusetts Constitution allows. While the scope of a federal analogue would be more limited than the Massachusetts approach, it could still provide for expedited judicial review of a live controversy between a President and a special counsel or Congress regarding the scope of oversight authority.
Past instances of expedited judicial review lay the groundwork for our proposed approach. The Pentagon Papers cases were heard before the Supreme Court less than a week after Nixon’s Department of Justice advised the New York Times and Washington Post to cease publication of the Pentagon Papers.42 The Supreme Court granted certiorari and heard immediate arguments to decide whether the Nixon Administration was unduly restricting the papers’ First Amendment rights, ultimately deciding it was.43 This instance serves as an important reminder that the judicial branch exists, in part, to check unauthorized executive power. When the executive branch acts in violation of the Constitution, the Court needs the ability to curtail this behavior with expediency. Public servants and attorneys, Special Counsel or not, need the ability to access the expedited process and obtain a timeline for adjudication at the beginning of the case.
At the time of this writing, we are witnessing a continuing erosion of judicial authority under the Trump presidency. For example, high ranking Administration officials like former National Security Advisor John Bolton and former White House Counsel Don McGahn have refused to answer congressional subpoenas regarding the impeachment investigation and President Trump’s behavior towards Ukraine.44 The President himself has stonewalled Congress, refusing to comply with subpoenas or to turn over documents and necessary information, thus preventing full congressional oversight.45 Professor Laurence Tribe of Harvard Law School recently noted the importance of the House flexing its investigative authority:
When the House opens an impeachment inquiry, it wields extraordinary constitutional powers and serves as the ultimate check on a rogue president. It can therefore overcome virtually any executive branch privilege or immunity. Otherwise, the president could commit high Crimes and Misdemeanors and defeat accountability by simply defying all efforts to discover his wrongdoing.46
This is in essence what Trump has attempted to do thus far. While this is constitutionally indefensible, Professor Tribe has “[p]oint[ed] to the protracted litigation that is still underway to obtain the President’s tax returns” as “constitutionally indefensible.”47 He argued that, if past is prologue, “using the courts [to] enforce subpoenas [would] only [have] lengthen[ed] the process of impeachment unnecessarily.”48 Therefore, Tribe advocated an immediate vote on impeachment.49
Tribe’s position is reinforced by the result in recent litigation over the House Judiciary Committee’s April 2019 subpoena of former White House Counsel Donald McGahn.50 McGahn was subpoenaed to testify about potential obstruction of justice by President Trump but refused to comply and did not appear before the Committee.51 McGahn received the subpoena in April 2019, and the District Court ruled in favor of enforcement of the House subpoena on November 25, 2019.52 However, at the time of this writing, the case is still being litigated in the U.S. Court of Appeals.53 This timeline reinforces our position that there exists a desperate need for an expedited review process at the beginning of a case in which parties can request an expedited track and be given an estimated timeline.
Expedited review has been made available in the past when the imposition of a time restriction would impede the functions of the federal government. In Department of Commerce v. New York, the Supreme Court reviewed Secretary Wilbur Ross’s decision to add a citizenship question to the United States Census.54 After the District Court enjoined the Secretary from reinstating the citizenship question, “[t]he Government appealed to the Second Circuit, but also filed a petition for writ of certiorari before judgment, asking [the Supreme] Court to review the District Court’s decision directly because the case involved an issue of imperative public importance, and the census questionnaire needed to be finalized for printing.”55 The Court granted the petition pursuant to 28 U.S.C. §2101(e) and reviewed the case directly.56 The statute provides: “An application to the Supreme Court for a writ of certiorari to review a case before judgment has been rendered in the court of appeals may be made at any time before judgment.”57 Writs of certiorari under §2101(e) have been granted sparingly as the Court has limited acceptance under this provision to certain exceptional circumstances. These exceptional circumstances are set forth in Supreme Court Rule 11 which instructs that certiorari “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”58 Notably, one case which was accepted under the purview of 28 U.S.C. §2101(e) was United States v. Nixon, in which the Court unanimously held that Nixon was not entitled to absolute, unqualified immunity in the Watergate investigation and thus had to comply with a subpoena requesting Watergate tapes and documents.59 The information at issue in United States v. Nixon was the subject of a subpoena issued by the Special Prosecutor.60 The contrast between this example and the challenges outlined in the Mueller Report illustrate the need for expedited Supreme Court review when an investigation into the President requires the speedy answer of constitutional questions.
Our proposed solution is thus not revolutionary. As demonstrated above, the Court has acted in this way before in times of constitutional crisis or when an expedited timeline mandated immediate action. There is precedent for an expedited review process that does not involve amending the Constitution or expanding the jurisdiction of the Supreme Court. The certiorari before judgment process as it exists currently provides the foundation for our solution. We propose creating a procedural rule for issues of constitutional significance, a rule of civil procedure in which a special counsel, the legislative branch, or the executive branch could request an expedited review for important legal questions. Our proposal is thus more apt to address the issues underscored by the Mueller Report; the certiorari before judgment process is infrequently utilized: with rare exception it has only been granted at the executive branch’s request, and it contains no timeline for review.61 Our proposal sets forth an expedited timeline and is available to all three branches in addition to special counsels. The proposed solution moves beyond the demands of mere exigency and instead addresses more wide-ranging constitutional issues that may only be addressed by the Supreme Court.
We therefore propose a process that would build off the certiorari before judgment process utilized in Department of Commerce, skipping circuit court appellate review and moving directly to the Supreme Court. This process would utilize the Court’s jurisdiction pursuant to 28 U.S.C. § 2101(e) and would create a preset, expedited timeline and provide for a panel to review this particular kind of case. At the beginning of the case, a panel of three district court judges62 would determine whether or not the proposed question merits expedited judicial review. The three-judge panel is integral to reducing single-judge bias and creating a more equitable appellate procedure. Historically, three-judge panels have been tasked with such responsibilities when certain sensitive constitutional challenges are brought in federal court.63 If the issue is deemed worthy by the panel, then the case would proceed to a federal district court judge for adjudication. The judge would convene the parties, hold a series of hearings, and provide everyone with a timetable for expediting the case. Once the case is decided by the district court judge, the parties could apply for certiorari, utilizing the procedures set forth in § 2101(e), to have the case directly reviewed by the United States Supreme Court. The Supreme Court then has the power and authority to both review the three-judge panel’s determination that this is an important legal issue meriting expedited review and to accept or deny the petition for certiorari. If accepted, the Court would review the district court’s opinion and provide the parties with a tentative timeline for its decision-making process. After an opportunity for briefing and arguments, the Court would issue its own opinion. If not accepted, the case would return to the circuit level for traditional appellate review.
This solution enables the Court to be active arbiters of constitutional questions of interbranch overreach, a role which no other institution is meant to have. The determination of when the executive branch is acting unlawfully or what powers were delegated to Congress must fall to the judiciary if we are to preserve the separation of powers. Under this proposed solution, even at the district court level a petitioner could request expedited review and a tentative timeline. This would provide the petitioner with a meaningful assessment of how long the case would take to be adjudicated.
The unavailability of expedited review to Mueller sends a clear message: if we are to restore and fortify the Rule of Law, we must create a clear process that allows the courts to participate in Rule of Law controversies and fulfill their constitutional obligation to uphold the law. The lack of effective judicial oversight played out during the Special Counsel’s investigation and continued to loom during the House impeachment investigation. Without an effective ability to appeal constitutional questions directly to their elected arbiters, unlawful executive branches will continue to go unchecked. Expedited judicial review would provide litigants with a more effective means of resolving these questions, allowing the courts to fulfill their proper constitutional role.
The Mueller Report discussed the Office of Legal Counsel’s (OLC) contention that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”65 This position, which Mueller viewed as binding,66 stems from the findings of two memorandums published by unelected executive branch lawyers—first, in a 1973 memo written in response to the Watergate scandal and, second, in a 2000 memo following President Clinton’s impeachment.67 These memorandums served as the basis for subsequent OLC opinions adopting the non-indictment policy.68
As the Mueller Report recognized, “[OLC] issued an opinion finding that, ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’”69 This policy may sometimes permanently prevent presidential prosecution because the applicable statute of limitations (five years for most federal offenses) would have run by the time the President leaves office. By extension, a judge would be hard-pressed to toll the statute of limitations when the prosecutors could have pursued criminal proceedings but chose not to because of a DOJ policy.70 The policy, therefore, has two major inherent flaws. The first is that it unequivocally places the President of the United States above the law. A less obvious, but equally concerning issue is that the policy insulating the head of the executive branch from accountability was written by unelected executive branch lawyers. Those offering support for the OLC’s position contend that there are other methods of policing presidential conduct, namely impeachment.71
The impeachment process is the most notable check on lawless conduct of the President-the ultimate “check” on the executive branch. The impeachment provisions of the Constitution grant Congress the power to remove a President for “Treason, Bribery, or other high Crimes and Misdemeanors.”72 The impeachment power was granted to Congress for two primary reasons. First, impeachment addresses “specific ‘abuse[s] or violation[s] of some public trust,’” issues which are political in nature.73 These issues were considered beyond the scope of a trial court’s competency because they did not fall “within the sphere of ordinary jurisprudence [and impeachment proceedings] are directed to different objects.”74 Allowing Congress to handle impeachment proceedings was intended to keep the judicial route available to punish the same impeachable offense by trial at common law.75 Second, because Congress was designed with the American populous in mind,76 the responsibility of Congress to impeach the President is supposed to be reflective of the best interests of the nation. Thus, when the House formally charges the President with an impeachable offense and a trial occurs in the Senate, the governmental powers return to an equilibrium to the benefit of the country. However, to date, no President has been removed from office by impeachment and conviction.
Since impeachment has not proven to be an effective route to policing lawless conduct by Presidents,77 the DOJ should reexamine whether a firm stance against indicting a sitting President is reasonable and in the best interests of the nation. The policy advanced in its memorandums and adopted by the OLC insulates a sitting President from accountability for criminal conduct. Mueller’s application of OLC policy made this point clear.78 Despite identifying numerous instances where President Trump may have attempted to interfere with the investigation, Mueller ultimately provided no definitive conclusion as to whether President Trump obstructed justice.79 Mueller notes his reasoning for this decision in the report, stating “that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”80 This loophole highlights chasms within our justice system.
The Mueller Report underscores a concern for the judiciary’s ability (or lack thereof) to hold a sitting President accountable for their actions. Noting the limits of the OLC policy, Mueller emphasized the point that, while the OLC’s policy inhibits indictment during the President’s tenure, a President does not have immunity once his term ends.81 Mueller reiterated OLC’s position that, while a President may not be prosecuted while in office, a criminal investigation during his term is permissible.82 Such an investigation could, in theory, prove fruitful in the event that prosecution is pursued post-presidency.83 However, Mueller does not address the related statute of limitations issue; the statute of limitations for obstruction of justice and for most federal offenses is five years.84 If an investigated President is re-elected, the statute of limitations may have run by the time the President is out of office.
The statute of limitations provides a strong defense to presidential misconduct committed during a President’s time in office. A defense attorney could persuasively argue that the statute of limitations protects the President from prosecution since the DOJ had the power and authority to prosecute. If the decision not to prosecute rested on the OLC’s internal policy alone, the defense could argue that the DOJ had followed an internal policy of prosecutorial discretion. Tolling of the limitations period is unlikely since the prosecutors arguably could have moved forward in light of the fact that no federal law or court ruling prohibited prosecution.85 Tolling here would undermine the statute of limitations in all cases where prosecutors choose not to indict because of internal policies. Thus, the President can forever be immunized from criminal prosecution.
This gap in the Rule of Law has continued to present itself throughout the Trump presidency. President Trump’s apparent attempt to bribe or extort the President of Ukraine by withholding aid precipitated another controversy,86 yet he was not prosecuted criminally and the statute of limitations providing opportunity for prosecution may run if he is re-elected.87 This issue arose once again in a recent court hearing when Trump’s attorney argued that the President could not be investigated or prosecuted as long as he is in the White House, even if he were to shoot someone in the middle of Fifth Avenue.88 This directly violates the bedrock principle of the Rule of Law that no person is above the law.
The costs and consequences of this gap in the Rule of Law is of significant concern. The President’s counsel asserts that, as a constitutional matter, the President does not “obstruct justice by exercising his constitutional authority” over the executive branch’s own Department of Justice investigations.89 President Trump and his attorneys may feel emboldened to make such assertions since Mueller declined to bring charges against him. The dangerous precedent this sets is obvious: if an unlawful President believes they cannot be prosecuted while in office, and if statutes of limitations are allowed to run, that essentially gives them carte blanche to commit crimes while in office.
While the Special Counsel does concede that the Constitution grants the President broad discretion over obstruction of justice investigations under the Article II power of prosecutorial discretion, the Special Counsel is also quick to provide a limit to such authority.90 The investigation introduces the idea that Article I congressional power could be the limiting factor.91 Under Article I, Congress can “enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions.”92 These enactments are aimed to protect against anyone that might undermine such functions, even if that person is the President of the United States.93 It is for this reason that impeachment is built into the Constitution of the United States.94 However, to date, “no U.S. president has ever been removed from office through impeachment.”95 Consequently, a criminal could remain in the White House and never be prosecuted for their crimes.
It is imperative that these chasms found in the Rule of Law are accounted for and remedied. While solutions are not limited, one in particular is aimed at addressing the institutional root problem: the DOJ needs to examine its one-sided policy that a sitting president cannot be indicted because they cannot be prosecuted while in office. While the DOJ should retain its discretion about whether and when to prosecute a President while they are in office, we should turn to the legislature to revise the law, especially as it pertains to the statute of limitations that seemingly provides a sitting President with immunity from prosecution. A federal statute should be enacted to provide that, if a President is accused of committing crimes during their tenure, and if the DOJ chooses not to prosecute while the President is in office, the statute of limitations for such crimes shall be tolled until they leave office. This solution would ensure that a sitting President would, if appropriate, eventually be held liable for criminal conduct committed during their presidency, thus preserving the Rule of Law.
In his farewell address, President George Washington emphasized the importance of national security and safeguarding the founding principle of the Rule of Law, noting that the two biggest threats to American democracy were monarchical behavior and foreign interference.96 He stressed the importance of unity of the people and respecting the laws and form of government as ways of preserving the country’s vitality:
Respect for [the Country’s] authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty . . . . The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism. . . . The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern . . . . [L]et there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.97
He also emphasized that insulating the country from foreign interference is essential to maintaining the independence that America was founded on:
[N]othing is more essential than that permanent, inveterate antipathies against particular nations and passionate attachments for others should be excluded and that in place of them just and amicable feelings towards all should be cultivated. The nation which indulges towards another an habitual hatred or an habitual fondness is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead [the nation] astray from its duty and its interest. . . . The great rule of conduct for us in regard to foreign nations is, in extending our commercial relations, to have with them as little political connection as possible.98
Unfortunately, the import of President Washington’s words has faded. Until now, the Founding Fathers’ original infrastructure—the separation of powers—has held significance for those who have sat in the Oval Office. But what recourse is there when foreign interference is condoned by the executive office? The Trump administration has illuminated the need to address this very issue.
The Mueller Report outlined several instances of contact between Russian officials and President Trump’s campaign which underscore the need to create an affirmative duty to report foreign interference in American elections. Trump campaign staff were informed of Russian efforts to publicly share damaging information about candidate Clinton in an effort to aid the Trump campaign.99 Mueller investigated whether the Trump campaign violated campaign finance or conspiracy laws in their interactions with Russian linked individuals, ultimately concluding that the evidence was not sufficient to charge Trump or his campaign staff under either law, signaling a gap in our legal system.100
In 2016, the Russian government committed itself to helping Trump’s campaign secure the presidency.101 Russia’s Internet Research Agency (“IRA”) carried out a social media outreach program with the intention of sowing political and social dissonance in the United States.102 Later, the IRA effort “evolved from a generalized program designed . . . to undermine the electoral system, to a targeted operation that by early 2016 favored candidate Trump and disparaged candidate Clinton.”103 The Mueller Report outlines several instances in which Russian officials informed Trump’s campaign staffers of Russia’s efforts to influence the outcome of the 2016 election.104 Although Trump campaign officials were aware of Russia’s attempts to interfere with the election and influence American voters to support Trump, they were not subject to a duty to report that foreign interference or contact.105
The Trump campaign’s understanding of Russian interference was described by Michael Cohen in his testimony before Congress on February 27, 2019.106 Cohen recounted how Roger Stone, a Trump friend and advisor, told Mr. Trump that WikiLeaks founder Julian Assange planned to release a “massive dump of emails that would damage Hillary Clinton’s campaign.”107 According to Cohen, Trump responded, “[w]ouldn’t that be great.”108 During Stone’s trial, prosecutors revealed the role he played in coordinating efforts with WikiLeaks to release damaging information about the opposition at strategic moments during the campaign.109 According to Cohen, Trump knew that WikiLeaks would publish Hillary Clinton’s emails.110 Numerous Trump campaign officials knew that Russian state actors had “dirt” on candidate Clinton and desired to use it in an effort to aid the Trump campaign.111 Instead of reacting with alarm, Trump campaign officials welcomed the foreign assistance.112
On June 9, 2016, Jared Kushner, Paul Manafort, and Donald Trump, Jr. met at Trump Tower with a group of individuals with ties to the Russian government and intelligence services where the parties discussed Russia’s findings that were potentially damaging to the Clinton Campaign.113 The meeting attendees also discussed U.S. sanctions imposed on Russia. Trump, Jr. suggested the sanctions would be reviewed if and when Donald Trump became President.114 None of this information was reported to the FBI nor were Trump or his campaign officials obligated to inform the authorities of this foreign interference. These extensive contacts between Russian officials and operatives and the Trump campaign illustrate the need for new legal safeguards.
The lack of legal consequences imposed on Trump campaign officials emboldened further attempts at interference. Later, as Trump faced impeachment inquiries surrounding his extortion of the President of Ukraine, President Trump demonstrated his willingness to exploit this gap in the law. In relation to the Ukrainian incident, prosecutors focused only on whether Trump had violated any campaign laws, determining that he had not and thus declining to investigate further.115 Notably, by limiting its inquiry to this question, the DOJ did not determine that no crime had been committed. However, the DOJ’s investigative trends set a disconcerting precedent, suggesting that the President had a hand on the scales of justice. The DOJ’s decision to open a criminal investigation into how the original Russian investigation began,116 action that suggests an attempt to dissuade future investigations of foreign influence, further emphasize this point.117 This issue must be addressed.
With the Ukrainian incident, Trump was, again, hoping to benefit from foreign intelligence designed to undermine his electoral opponent, this time Vice President Joe Biden.118 Significantly, if there were a legal duty to report attempts to solicit foreign interference in our elections, many of the people who knew about the President’s bribery scheme would have been required to report it or face criminal sanctions. However, without a change in the law, it is clear that there is insufficient incentive for candidates and campaign officials to report attempted interference, giving those willing to exploit this gap in the law free reign to knowingly benefit from illegal activity so long as they do not actively participate in the actions themselves.
The Mueller Report made clear that the current legal guardrails are inadequate to prevent this type of behavior. Under 18 U.S.C. § 371, conspiracy to commit offense or to defraud the United States, a conspiracy must be “willful,” meaning, the government must have proof of the defendant’s willing participation and agreement to commit an act.119 There is no evidence that President Trump had any involvement beyond mere awareness of Russian interference. Further, there is no law requiring campaign employees to report any criminal—or non-criminal—attempts by foreign governments to interfere with elections. Trump campaign officials knew that the Russian government was attempting to interfere in the election and knew or should have known that the emails hacked from the Clinton campaign were obtained illegally.120 With no duty to report, the actions of Trump campaign officials were difficult to punish and to prevent from happening again.
Lacking adequate evidence to support prosecution under a criminal statute, Mueller’s investigation focused on whether the Trump campaign violated campaign finance laws.121 The Report’s focus on potential campaign finance violations underscored that, despite benefitting from Russia’s criminal behavior, the campaign was not criminally implicated by Russia’s hacking.122 Here again, the lack of direct involvement in the Russian interference shielded Trump and his campaign from legal sanction.
Campaign finance law prohibits campaigns from receiving “thing[s] of value” from foreign entities.123 “Thing of value” is a term of art meant to be broadly interpreted.124 While damaging information regarding opposing parties would likely be considered a “thing of value,” the government lacked sufficient evidence to show that Trump campaign officials had general knowledge that their conduct was unlawful, a necessary element of the offense.125 As such, despite receiving something of value from Russia’s hacking efforts, Trump campaign officials were not prosecuted for campaign finance violations.126
In his testimony before Congress, Mueller warned that accepting assistance from foreign officials could become “a new normal.”127 President Trump has indicated that he would be willing to accept help from foreign officials in his 2020 re-election campaign128 and there is currently very little incentive for him not to. On June 12, 2019, President Trump told ABC News that “he would listen if a foreign government approached him with damaging information about a political rival.”129 President Trump’s apparent pressure campaign directed at Ukrainian officials suggests he may be willing to do more than just listen. Unless this gap in the law is addressed, an increase in hacking and social media manipulations may indeed become the new normal.
This problem is not a novel one; there is a history of foreign governments attempting to influence U.S. elections. In 1960, a Democratic presidential contender, Adlai Stevenson, was approached by Mikhail A. Menshikov, the then-Soviet ambassador to the United States. Ambassador Menshikov told Stevenson that Russian officials, including Soviet Prime Minster Nikita Khrushchev, supported his candidacy for President and hoped to provide assistance should he choose to run in the 1960 election.130 Stevenson, who had already decided not to run, responded to Menshikov’s offer by saying he “was not a candidate for the nomination and . . . [that] even if [he] was a candidate [he] could not accept the assistance proffered.”131 Stevenson dictated a memorandum capturing his exchange with Menshikov, in which Stevenson notes that he told Menshikov: “I considered the offer of such assistance highly improper, indiscreet and dangerous to all concerned.”132
In 2000, then Vice President Al Gore was preparing for a debate against candidate George W. Bush, with the assistance of Congressman Tom Downey.133 Congressman Downey “received an envelope containing a briefing book and a videotape,” the contents of which seemed to be candidate Bush’s debate preparation materials.134 Congressman Downey promptly turned over the materials to the FBI and recused himself from Gore’s debate prep team.135 Candidates running for President owe it to the American public to respect the country’s tenets of democracy while conducting their campaigns. Although Stevenson and Gore were not legally obligated to report these potentially criminal offers of aid, they did so. Norms, not laws, compelled their behavior. Conversely, President Trump has demonstrated a lack of respect for democratic norms, indicating that what were once campaign norms and ethos now need to be codified into law. A duty to report foreign election interference can revive this practice and begin to restore the democratic integrity of our election system.136
The evident gap in the rule of law—the absence of a duty to report foreign interference in our elections—can be remedied through legislation. To address this issue, Congressman Eric Swalwell and Senator Richard Blumenthal introduced The Duty to Report Act, which reads, in part:
The Duty to Report Act would impose a legal duty on federal campaigns, candidates, and PACs to report offers of assistance from foreign nationals, including material, non-public information, to the Federal Election Commission (FEC) and the Federal Bureau of Investigation (FBI). The legislation would also require disclosure of all meetings between candidates or campaign officials and agents of foreign governments, other than those held in a candidate’s official capacity as an elected representative.137
This legislation would mark a major shift in election laws, holding both candidates and campaign employees accountable to report foreign interactions with the election system.
The Foreign Influence Reporting in Elections Act (FIRE Act), an amendment to the Federal Election Campaign Act (FEC Act) of 1971, would impose even greater reporting requirements and sanctions.138 It requires a campaign to notify their respective committee (the Democratic National Committee or Republican National Committee, in the case of the major parties), the Federal Election Commission, and the Federal Bureau of Investigation of any offer made by a foreign national to assist the campaign via services, financial resources, or informational resources.139 Individuals associated with the campaign that knowingly and willfully fail to comply would be fined up to $500,000, imprisoned for not more than 5 years, or both.140 Those who knowingly or willfully destroy materials related to foreign contact would be subject to the same penalties, except that the fine could be as much as $1,000,000.141
The FIRE Act is laudable and thorough, but its reference to the definition of “foreign nationals” from the FEC Act may be underinclusive. The FEC Act defines foreign nationals to include foreign governments, foreign political parties, and all foreign citizens except those holding dual U.S. citizenship or permanent residents of the United States.142 This definition would seem not to include companies that offer political analysis and global research for campaigns.143 Due to the international scope of many companies, consulting firms, and businesses, this isn’t a surprising exclusion. However, distinguishing dealings between firms and their contractors can be a difficult task and is worthy of greater discussion by Congress before utilizing this definition for further legislation. Moreover, in light of the recent impeachment hearings, we suggest that the reporting requirements be triggered by any offer or solicitation of foreign interference in our elections, regardless of acceptance or encouragement by the recipient. Aside from this consideration, the FIRE Act seems well-reasoned and prudent in light of the foreign influence issues discussed.
A legal obligation to report attempted assistance by foreign actors should be enshrined in our laws in order to ensure that only the will of the American people is expressed in our elections. While the Constitution does not mandate candidates and their staff to do so, history displays an understanding that attempts by foreign powers to influence elections challenge the integrity of the United States electoral system. Allowing such interference is antithetical to the nation’s principles and poses an existential threat to the continued functioning and legitimacy of our democracy. As previously mentioned, members of both chambers of Congress have introduced bills to address these problems.
The reality that these bills will not pass before the 2020 election cannot be ignored; at time of writing we are mere weeks away from the next presidential election. Leading up to the 2020 election, Senate Majority Leader Mitch McConnell categorized legislative attempts to strengthen the integrity of elections as premature.144 McConnell had previously voiced concerns about the validity of U.S. intelligence conclusions that the Russian government had interfered in the U.S. presidential election in 2016, in direct conflict with the findings of the Mueller Report.145 Senator McConnell has historically opposed federal involvement in election security, arguing that election matters should be left up to the states.146 Given the make-up of Congress and the stagnated discussion of electoral security infrastructures, any viable and substantial legislative solution to this issue appears to hinge on the composition of Congress.
Given this partisan stalemate, Democrats’ ability to pass significant election security measures depends, in part, on electoral outcomes in the Senate. Control of the Senate is uncertain,147 but even if Democrats take control after the upcoming election, they would face the potential of a Republican filibuster of major election security legislation.148 The political realities of federal election security legislation highlight the importance of ensuring other safeguards are in place. The onus is thus on state legislatures who are largely responsible for enacting and administering election law.149 Many states are considering bills that would require presidential candidates to publish their tax returns.150 These bills, in the majority of states where they have been proposed, would require that candidates release their tax returns in order to be put on the state’s ballot.151 This proposed legislation represents a movement calling for transparency and accountability in our elections.152 If states decide to pursue analogous legislation imposing a duty on presidential candidates and their campaign officials to report foreign interference, pressure will build on Congress to follow suit.153 State laws alone may provide significant benefits, but the goal is to enact federal legislation that redresses the issue.
The Mueller Report revealed that President Trump and his campaign officials knew about Russian meddling and benefited from it.154 The Report, in explaining why Trump would not be indicted for accepting this help, painted a larger picture that highlighted gaps in our legal system. Mueller testified that Russia aims to meddle in the 2020 election, and that the United States electoral system is vulnerable to interference by foreign adversaries.155 As such, the Rule of Law in the United States is under attack and needs to be fortified. Democracy was manipulated and invalidated through foreign interference in the 2016 election, and without additional safeguards, the past may become prologue. State and federal steps to protect against such attacks would be a step towards remedying this problem.
The Founding Fathers created the separation of powers to ensure that each branch would check the power of the others, thereby shaping the infrastructure of our Rule of Law.156 Unfortunately, recent events have revealed fissures in the Rule of Law infrastructure that must be addressed in order to constrain unchecked executive branch overreach. The political tenure of President Trump has repeatedly challenged our existing system, from Russian interference in the 2016 presidential election and the attempted extortion of Ukraine to assertions that he is above the law and his categorization of his impeachment as a “hoax.”157 Though this paper focuses on the presidency of Donald Trump and uses the Mueller Report as a primary source, the issues identified and solutions proposed herein transcend the current presidency.
First, the judicial branch’s costly and time-consuming procedures have weakened its authority, rendering it a disabled arbiter of separation of powers disputes. The diminished state of the judicial branch is especially problematic because its current structure and architecture leaves crucial constitutional questions regarding executive authority and separation of powers unanswered. The Mueller investigation highlighted how the lengthy judicial processes hampered the ability of the Special Counsel to uncover the truth and enforce the law. In particular, Mueller cited procedural lag as the reason for not subpoenaing the President, thus forcing Mueller to rely on inadequate written responses. Mueller was criticized for this strategic decision, but this choice is not reflective of his faults as Special Counsel; instead, his decision demonstrates how the current state of affairs is undermining the Rule of Law.
Without a strong judiciary appropriately interpreting constitutional powers, the three branches of government are unable to adequately check each other’s power. To strengthen the judiciary’s role policing the separation of powers, we suggest an expedited review process for issues involving the Rule of Law and the separation of powers. This proposal is promising, as it is modeled on a successful Massachusetts practice that allows the executive and legislature to submit constitutional questions directly to the state’s highest court. Unlike Massachusetts, which has amended its constitution to include this procedure, we suggest that the Federal Rules of Civil Procedure be updated to allow cases including issues of similar constitutional significance (separation of powers, interbranch authority, the Rule of Law, and special counsel issues) to be placed on an expedited track for judicial review by the Supreme Court. This new federal rule would take the Massachusetts example a step farther by being available beyond the three branches. It would also differ because the United States Supreme Court’s involvement with such questions is restricted to live cases or controversies, whereas the Massachusetts Supreme Judicial Court is permitted under the Massachusetts Constitution to publish advisory opinions. By creating a procedural rule that outlines an expedited review system, the procedure will allow the Supreme Court to answer important legal questions while remaining within existing constitutional constraints.
The existing criminal justice system is unable to restrain the lawless, criminal conduct of a sitting President. While impeachment is always an option for handling a lawless President, the remedy alone has proven to be insufficient.158 The DOJ opinion stating that a sitting President cannot be indicted raises impediments to holding a President accountable for criminal activity. The DOJ opinion was written by unelected executive branch lawyers and, in many cases, completely insulates a sitting President from criminal prosecution. These rules may inadvertently prevent prosecution even after the President leaves office because they fail to address the statute of limitations. While prosecutors should determine whether to indict a sitting President for criminal conduct, the determination as to whether a sitting President can be prosecuted should be left to the courts. This is because the issue is a constitutional one about whether the DOJ’s prosecution of a sitting President would unconstitutionally disable a duly elected President from exercising his Article II executive powers. While the DOJ has the power and authority to indict a sitting President while in office, the courts should ultimately determine whether or not such an indictment is valid. In order to ensure that the DOJ does not abuse their prosecutorial discretion, the statute of limitations should be tolled when the DOJ declines to prosecute. Tolling the statute of limitations would grant prosecutors the ability to bring these charges after a presidential term is complete, removing potential interference with Article II powers and sufficiently preventing presidents from acting as unchecked authorities.
Finally, the Mueller Report revealed a need for greater accountability during electoral campaigns, especially with respect to the involvement of foreign actors. We therefore suggest creating an affirmative duty to report foreign attempts to influence American elections. President Trump’s nonchalant reaction to potential foreign interference in the 2016 presidential election, and his evident willingness to welcome foreign manipulation of our democratic processes, reveals that action must be taken now to prevent such behavior from permeating presidential campaigns and becoming “a new normal.”159 As a means of fortifying the integrity of American democracy, we propose a legal duty to report foreign interference in American elections. Notably, this is a duty for all government officials, extending this responsibility beyond those directly involved in campaigns.
There are currently two legislative solutions pending in Congress, and regardless of their success, the issue can also be addressed at the state level. States can protect their elections from foreign interference by way of state criminal law. Attaching state criminal penalties to foreign interference matters can further protect our elections and maintain the integrity of the election process at multiple junctures. Regardless of whether the additional protection is provided at the federal level, created at the state level, or both, an affirmative duty to report foreign interference would help maintain the integrity of the American government and the Rule of Law.
The framing of the Constitution sets forth the separation of powers doctrine as a means of protecting the Rule of Law. Throughout our nation’s history, there have been instances where this protection was insufficient, but never more so than now. We are being forced to face the shortcomings of the separation of powers doctrine and being tasked with the necessary challenge of fortifying the Rule of Law. The three problems identified, and solutions proposed, by this paper aim to further encourage legislators, academics, and reformers to pursue these avenues of research towards positive change. This paper includes a number of suggestions but cannot be the endpoint; “[e]ternal vigilance is the price of liberty.”160
* Deborah Ramirez is a professor of law at Northeastern University School of Law. Greer Clem is a candidate for Juris Doctor at Northeastern University School of Law. Special thanks to contributors: Emily Kaiser, Claudia Morera, Alicia Chouinard, Amanda Gordon, Janki Viroja, Patrick Reynolds, Jacob Kelly, Matheus Dos Reis, and Jessica Bresler. In particular, thank you to Dylan O’Sullivan, our editor at the Northeastern University Law Review, for his tireless assistance. Special thanks also to Judge Richard Stearns and Judge Nancy Gertner for their invaluable feedback.
1 The Rule of Law is the principle that no man is above the law, and, in fact, all of society—“persons, institutions, and entities” alike—are bound to laws that are “[p]ublicly promulgated[, e]qually enforced[, i]ndependently adjudicated[, a]nd consistent with international human rights principles.” Overview – Rule of Law, U.S. Courts, https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law. We capitalize Rule of Law to distinguish this democratic principle from an individual rule of law.
2 U.S. Const. arts. I–III.
3 M. Elizabeth Magill, The Real Separation in Separation of Powers, 86 Va. L. Rev. 1127, 1130 (2000).
4 See id.
5 1 Robert S. Mueller, III, U.S. Dep’t of Justice, Office of Special Counsel, Report on the Investigation into Russian Interference in the 2016 Presidential Election 191 (Mar. 2019) [hereinafter Mueller Report Volume I], https://www.justice.gov/storage/report.pdf; Mueller Report Findings: Mueller Rejects Arguments That Trump Is Shielded From Obstruction Laws, Wash. Post (Apr. 18, 2019), www.washingtonpost.com/politics/mueller-report-russia-investigation-findings/2019/04/18/b07f4310-56f9-11e9-814f-e2f46684196e_story.html#MANAFORTTWEET.
6 Rachael Bade et al., Trump Asserts Executive Privilege over Mueller Report; House Panel Holds Barr in Contempt, Wash. Post (May 8, 2019), https://www.washingtonpost.com/politics/barr-to-trump-invoke-executive-privileged-over-redacted-mueller-materials/2019/05/07/51c52600-713e-11e9-b5ca-3d72a9fa8ff1_story.html.
7 See infra Part I.
8 During the House’s impeachment proceedings, critical executive branch witnesses repeatedly refused to comply with subpoenas for documents and testimony. Peter Baker, The Impeachment Witnesses Not Heard, N.Y. Times (Nov. 21, 2019), https://www.nytimes.com/2019/11/21/us/politics/impeachment-witnesses.html. Fearing a drawn-out process in the courts, House leadership chose to move forward without pursuing the matter in the courts. Id.
9 Despite serious abuses of power, the Senate failed to convict President Trump. Peter Baker, Impeachment Trial Updates: Senate Acquits Trump, Ending Historic Trial, N.Y. Times (Feb. 6, 2020), https://www.nytimes.com/2020/02/05/us/politics/impeachment-vote.html.
10 Mueller Report Volume I, supra note 5, at 5.
11 See generally 2 Robert S. Mueller, III, U.S. Dep’t of Justice, Office of Special Counsel, Report on the Investigation into Russian Interference in the 2016 Presidential Election (2019) [hereinafter Mueller Report Volume II], https://www.justice.gov/storage/report.pdf.
12 Id. at 182.
13 Id. at 1.
14 Statement by Former Federal Prosecutors, Medium (May 6, 2019), https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-8ab7691c2aa1.
15 Id.
16 Michael Brice-Saddler, While Bemoaning Mueller Probe, Trump Falsely Says the Constitution Gives Him ‘the Right to Do Whatever I Want’, Wash. Post (July 23, 2019), https://www.washingtonpost.com/politics/2019/07/23/trump-falsely-tells-auditorium-full-teens-constitution-gives-him-right-do-whatever-i-want/.
17 Id.
18 Mueller Report Volume II, supra note 11, at 13.
19 Robert S. Mueller, III, U.S. Dep’t of Justice, Office of Special Counsel, Report on the Investigation into Russian Interference in the 2016 Presidential Election app. C, at C-2 (2019) [hereinafter Mueller Report app. C], https://www.justice.gov/storage/report.pdf.
20 In an interview with MSNBC, Harvard law professor Laurence Tribe cited the protracted litigation in New York to obtain President Trump’s tax returns as evidence of Trump’s intention to interfere with congressional oversight. Tribe describes Trump’s pattern of behavior and his clinging to Article II as protection as “basically inviting the country to kick him out of office so that he can be held accountable to the law.” Laurence Tribe on Trump’s Desperate Legal Filing and Whistleblower, MSNBC: Last Word (Sept. 19, 2019), https://www.msnbc.com/the-last-word/watch/laurence-tribe-on-trump-s-desperate-legal-filing-and-whistleblower-69435461887.
21 Timothy Egan, Opinion, If Donald Trump Does It, It’s Not a Crime, N.Y. Times (Sept. 27, 2019), https://www.nytimes.com/2019/09/27/opinion/trump-ukraine-call.html.
22 Trump’s Lawyer Argues President Can’t Be Prosecuted for Shooting Someone on Fifth Avenue, NBC N.Y. (Oct. 23, 2019), https://www.nbcnewyork.com/news/local/trump-fifth-avenue-shooting-no-prosecution/1994970/.
23 See Mueller Report Volume I, supra note 5, at 182–83.
24 See Abigail Abrams, Here’s What We Know So Far About Russia’s 2016 Meddling, TIME (Apr. 18, 2019), https://time.com/5565991/russia-influence-2016-election/; see also Mueller Report Volume I, supra note 5, at 1, 9.
25 See Devlin Barrett et al., Trump Offered Ukrainian President Justice Dept. Help in an Investigation of Biden, Memo Shows, Wash. Post (Sept. 26, 2019), https://www.washingtonpost.com/national-security/transcript-of-trumps-call-with-ukrainian-president-shows-him-offering-us-assistance-for-biden-investigation/2019/09/25/16aa36ca-df0f-11e9-8dc8-498eabc129a0_story.html.
26 See Mueller Report Volume I, supra note 5, at 5–7; Chris Megerian, Mueller Finds No Conspiracy, but Report Shows Trump Welcomed Russian Help, L.A. Times (Apr. 18, 2019), https://www.latimes.com/politics/la-na-pol-mueller-report-trump-russia-collusion-20190418-story.html; Jo Becker et al., Russian Dirt on Clinton? ‘I Love It,’ Donald Trump Jr. Said, N.Y. Times (July 11, 2017), https://www.nytimes.com/2017/07/11/us/politics/trump-russia-email-clinton.html.
27 Nicholas Fandos, What We Learned from Mueller’s 7 Hours on Capitol Hill, N.Y. Times (July 24, 2019), https://www.nytimes.com/2019/07/24/us/politics/mueller-testimony-takeaways.html.
28 Mueller Report Volume II, supra note 12, at 13.
29 Id.
30 Mueller Report app. C, supra note 19, at C-2.
31 See David Willman, Mueller Decided Not to Subpoena Trump to Avoid a Lengthy Court Fight, L.A. Times (Apr. 18, 2019), https://www.latimes.com/politics/la-na-mueller-subpoena-20190417-story.html.
32 Mueller Report app. C, supra note 19, at C-1–C-2 (internal citations omitted).
33 Elie Mystal, Robert Mueller Obstructed His Own Investigation as Much as Donald Trump, Nation (Apr. 18, 2019), https://www.thenation.com/article/mueller-report-obstruction-trump/.
34 Id.
35 See Charlie Savage, Trump Vows Stonewall of ‘All’ House Subpoenas, Setting Up Fight Over Powers, N.Y. Times (Apr. 24, 2019), https://www.nytimes.com/2019/04/24/us/politics/donald-trump-subpoenas.html.
36 See 28 C.F.R. § 600 (2019).
37 Mass. Const. pt. II, ch. III, art. II (“Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”).
38 Op. of the Justices to the Senate and the House of Representatives, 167 N.E.2d 745, 750 (1960) (citing Commonwealth v. Welosky, 177 N.E. 656, 658 (1931)).
39 See, e.g., Op. of the Justices to the House of Representatives, 363 N.E.2d 652, 288 (Mass. 2015) (noting that the question was submitted to the Supreme Judicial Court by the legislature on May 22, 2015 and an answer was provided on June 15, 2015); see also Op. of the Justices to the Senate, 363 N.E.2d 652, 654 (Mass. 1977) (noting that the question was submitted to the Supreme Judicial Court on March 11, 1977 and an answer was provided on May 31, 1977).
40 In Marbury v. Madison, 5 U.S. 137, 173–76, 178 (1803), the Supreme Court established judicial review in declaring Section 13 of the Judiciary Act of 1789 in conflict with the Constitution because it attempted to expand the situations in which the Supreme Court had original jurisdiction. The matter brought before the Court in Marbury should have been brought before it on appeal. As such, even though the Court found that Marbury had a right, that Madison violated said right, and that there was an adequate remedy, the remedy was not one that the Supreme Court could provide by virtue of the Constitution. The Court’s role was solidified as one of appellate adjudication, not that of a trial court.
41 Muskrat v. United States, 219 U.S. 346, 356 (1911).
42 Steven Robertson, New York Times Co. v. United States (1971), Free Speech Ctr.: First Amend. Encyclopedia, https://www.mtsu.edu/first-amendment/article/505/new-york-times-co-v-united-states (last visited Aug. 17, 2020); see N.Y. Times Co. v. United States, 403 U.S. 713, 743 (1971).
43 Robertson, supra note 42.
44 Peter Baker, Ruling Will Not Lead John Bolton to Testify Soon, Lawyer Says, N.Y. Times (Nov. 26, 2019), https://www.nytimes.com/2019/11/26/us/politics/bolton-testimony.html.
45 See Seung Min Kim & Rachael Bade, Trump’s Defiance of Oversight Presents New Challenges to Congress’s Ability to Rein in the Executive Branch, Wash. Post (Oct. 7, 2019), https://www.washingtonpost.com/politics/trumps-defiance-of-oversight-presents-new-challenge-to-congresss-ability-to-rein-in-the-executive-branch/2019/10/06/59fb7cc0-e6c3-11e9-a331-2df12d56a80b_story.html.
46 Laurence H. Tribe, If the House Is Going to Impeach Trump, It Better Have a Plan, Bos. Globe (Sept. 30, 2019), https://www.bostonglobe.com/opinion/2019/09/30/house-going-impeach-trump-better-have-plan/dvZz0I3oWobrQs0g0jimfO/story.html.
47 Jerry Lambe, Harvard Law Professor: Trump Administration’s Stonewalling Is ‘Constitutionally Indefensible,’ Law & Crime (Oct. 9, 2019), https://lawandcrime.com/high-profile/harvard-law-professor-trump-administrations-stonewalling-is-constitutionally-indefensible/.
48 Id.
49 Id.
50 Alison Durkee, “Presidents Are not Kings”: Federal Judge Destroys Trump’s “Absolute Immunity” Defense Against Impeachment, Vanity Fair (Nov. 26, 2019), https://www.vanityfair.com/news/2019/11/mcgahn-testify-subpoena-absolute-immunity-ruling.
51 Elliot Setzer, House Submits En Banc Brief in House Subpoena Case, Lawfare (Apr. 16, 2020), https://www.lawfareblog.com/house-submits-en-banc-brief-mcgahn-subpoena-case.
52 Recognizing the separation of powers implications, the district court found in favor of the House’s subpoena authority. Comm. on Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 215 (D.D.C. 2019), rev’d, 951 F.3d 510 (D.C. Cir. 2020), reh’g en banc granted sub nom. U.S. House of Representatives vs. Mnuchin, No. 19-5176, 2020 WL 1228477 (D.C. Cir. Mar. 13, 2020), and aff’d en banc in part, remanded in part sub nom. Comm. on Judiciary of the U.S. House of Representatives v. McGahn, 968 F.3d 755 (D.C. Cir. 2020), rev’d by panel and remanded for dismissal, No. 19-5331, 2020 WL 5104869 (D.C. Cir. Aug. 31, 2020). The district court recognized that “when a duly authorized committee of Congress issues a valid subpoena to a current or former executive branch official, and thereafter, a federal court determines that the subpoenaed official does, as a matter of law, have a duty to respond notwithstanding any contrary order of the President, the venerated constitutional principles that animate the structure of our government and undergird our most vital democratic institutions are preserved.” Id.
53 The case has undergone extensive litigation in the D.C. Circuit. A three-judge panel originally reversed the district court and dismissed the case on Article III standing grounds. McGahn, 951 F.3d at 531. The court sitting en banc reversed the panel, finding Article III standing but remanding to the panel for a decision on whether the House had a cause of action to bring suit. McGahn, 968 F.3d at 788. On remand, the panel again dismissed the case, finding that the House lacked a cause of action. McGahn, No. 19-5331, 2020 WL 5104869 (D.C. Cir. Aug. 31, 2020). It is likely the House will appeal to the full bench of the D.C. Circuit yet again. Elliot Setzer, D.C. Circuit Panel Rules Against House in McGahn Case, Lawfare (Aug. 31, 2020), https://www.lawfareblog.com/dc-circuit-panel-rules-against-house-mcgahn-case. For an in-depth discussion of this circuitous appellate litigation see The Lawfare Podcast: A Busy Week at the DC Circuit, Lawfare (Sept. 4, 2020), https://www.lawfareblog.com/lawfare-podcast-busy-week-dc-circuit.
54 Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2562–63 (2019).
55 Id. at 2565.
56 Petition for a Writ of Certiorari Before Judgment at 2, 13, Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) (No. 18-966), 2019 WL 338906, at 2, 13.
57 28 U.S.C. § 2101(e) (2018).
58 Sup. Ct. R. 11.
59 United States v. Nixon, 418 U.S. 683, 690, 707 (1974).
60 Id. at 687–90.
61 See Kevin Russell, Overview of the Supreme Court’s Cert. Before Judgment Practice, SCOTUSblog (Feb. 9, 2011), https://www.scotusblog.com/2011/02/overview-of-supreme-court%E2%80%99s-cert-before-judgment-practice/.
62 Single justice panels for issues of expedited judicial review would leave too much discretion to the judge and would encourage corruptness and judge-shopping. The three-judge district court panel stems from Ex Parte Young, in which a single federal district court judge was able to enjoin enforcement of an unconstitutional state law. See Ex parte Young, 209 U.S. 123 (1908). Congress moved these cases to a three-judge panel to prevent direct control by a single judge; the resulting legislation was 28 U.S.C. § 2284 (2018), which provides, “[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” However:
Congress also may provide that cases under particular federal legislation must be heard by three-judge courts; examples include the Bipartisan Campaign Finance Reform Act of 2002, the Communications Decency Act of 1997, and the Voting Rights Act. Judgments of three-judge district courts are immediately and mandatorily reviewable by the Supreme Court, without having to pass through the courts of appeals.
Howard M. Wasserman, Argument Preview: Is a Three-Judge Court “Not Required” When a Pleading Fails to State a Claim?, SCOTUSblog (Oct. 19, 2015), https://www.scotusblog.com/2015/10/argument-preview-is-a-three-judge-court-not-required-when-a-pleading-fails-to-state-a-claim/. We posit that issues of constitutional significance, including interbranch authority, separation of powers, rule of law, and special counsel investigations should be afforded the three-judge panel rule as well.
63 See, e.g., 28 U.S.C. § 2284 (2018) (providing for three-judge panel review for constitutional challenges to the apportionment of congressional districts or apportionment of state legislative bodies).
64 A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 222, 241 (2000), http://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf; John P. Carlin, Sitting Presidents Can’t Be Prosecuted. Probably., Wash. Post (June 8, 2017), http://www.washingtonpost.com/posteverything/wp/2017/06/08/sitting-presidents-cant-be-prosecuted-probably.
65 Mueller Report Volume II, supra note 11, at 1 (quoting A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 222, 241).
66 The issue of whether these memos are binding has been contested. “Jack Goldsmith and Marty Lederman take the view that they ‘almost certainly’ are. The New York Times, by contrast, has twice indicated that the issue may not be so clear cut.” Andrew Crespo, Is Mueller Bound by OLC’s Memos on Presidential Immunity?, Lawfare (July 25, 2017), https://www.lawfareblog.com/mueller-bound-olcs-memos-presidential-immunity. However, Mueller treated the DOJ rules as binding. See Ramsey Touchberry, OLC Opinion Explained: Why Robert Mueller Couldn’t Indict Trump Despite 10 Obstructions, Newsweek (July 24, 2019), https://www.newsweek.com/olc-opinion-mueller-doj-memo-indict-trump-sitting-president-1450896 (“Charging the president with a crime was . . . not an option we could consider . . . .”).
67 Touchberry, supra note 66.
68 Walter Dellinger, Indicting a President is Not Foreclosed: The Complex History, Lawfare (June 18, 2018), http://www.lawfareblog.com/indicting-president-not-foreclosed-complex-history.
69 Mueller Report Volume II, supra note 11, at 1 (quoting A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 222, 260).
70 Jordan S. Rubin, Statute of Limitations, DOJ May Prevent Trump Ever Being Charged, Bloomberg News (Apr. 29, 2019), https://news.bloomberglaw.com/us-law-week/trump-2020-win-could-run-out-clock-on-obstruction.
71 See Brief for Petitioners at 44–45, Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020) (No. 19-715), 2020 WL 528039, at *44–45.
72 U.S. Const. art. I, §§ 2, 3; id. art. II, § 4.
73 See Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 14 (1989) (quoting The Federalist No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed. 1961)).
74 Id.
75 See id.
76
See id. at 15–16 (“The delegates saw the Senate as composed of well-educated, wealthy, virtuous citizens who would be sure to have the Nation’s welfare at heart. The delegates viewed the House as more subject to factions and more prone to hasty and intemperate action than the Senate. The Senate was structured to counterbalance the bad tendencies of the House and, when acting alone, to carefully deliberate the most important political questions.”).
77 Before President Trump’s impeachment by the House, “[o]nly two presidents [had] been impeached — Andrew Johnson in 1868 and Bill Clinton in 1998 ¬— and both were ultimately acquitted [by the Senate] and completed their terms in office. Richard M. Nixon resigned in 1974 to avoid being impeached.” Charlie Savage, How the Impeachment Process Works, N.Y. Times (Sept. 24, 2019), https://www.nytimes.com/2019/09/24/us/politics/impeachment-trump-explained.html. President Nixon’s resignation is the only exception to the inability of impeachment to force a President out of office. While he was never formally impeached, impending impeachment instigated President Nixon’s resignation. The Nixon Impeachment Proceedings, Legal Info. Inst., https://www.law.cornell.edu/constitution-conan/article-2/section-4/the-nixon-impeachment-proceedings (last visited Sept. 14, 2020).
78 See Mueller Report Volume II, supra note 11, at 1.
79 Id.
80 Id. While unable to reach a judgment due to considerations of fairness and upholding the structure of government, the report emphasizes that if they “had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, [they] would so state.” Id. at 2 (emphasis added).
81 Id. at 1.
82 Id.
83 See id. at 2.
84 18 U.S.C. § 3282 (2018).
85 Rubin, supra note 70.
86 Bess Levin, Rudy Giuliani Freely Admits to Key Aspect of Ukraine Extortion Plot, Vanity Fair: Levin Report (Dec. 17, 2019), https://www.vanityfair.com/news/2019/12/rudy-giuliani-donald-trump-impeachment-marie-yovanovitch.
87 See 18 U.S.C. § 3282.
88 Trump's Lawyer Argues President Can't Be Prosecuted for Shooting Someone on Fifth Avenue, supra note 22.
89 Mueller Report Volume II, supra note 11, at 159.
90 Id. at 168–69.
91 Id.
92 Id. at 168.
93 Id. at 176; see Watkins v. United States, 354 U.S. 178, 187 (1957) (acknowledging Congress’ power to “probe[] into departments of the Federal Government to expose corruption, inefficiency, or waste”).
94 Neil J. Kinkopf & Keith E. Whittington, Common Interpretation, Article II, Section 4, Nat’l Const. Ctr., https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/349.
95 See Mueller Report Volume II, supra note 11, at 1.
96 See generally George Washington, Washington’s Farewell Address (1796), reprinted in Featured Senate Publications, S. Pub. No. 115-5 (2017), https://www.govinfo.gov/content/pkg/GPO-CPUB-115spub5/pdf/GPO-CPUB-115spub5.pdf.
97 Id. at 10–16.
98 Id. at 18–19, 21.
99 Mueller Report Volume I, supra note 5, at 5–7.
100 See id. at 174, 191–98.
101 Id. at 5.
102 Id. at 4.
103 Id.
104 Id. at 5–7, 66.
105 Eric Swalwell, Reporting Foreign Meddling in Elections Shouldn’t Be Optional, Atlantic (June 7, 2018), https://www.theatlantic.com/ideas/archive/2018/06/reporting-foreign-meddling-in-elections-shouldnt-be-optional/561767/.
106 Michael Tackett, Five Takeaways from Cohen’s Testimony to Congress, N.Y. Times (Feb. 27, 2019), https://www.nytimes.com/2019/02/27/us/politics/cohen-testimony.html.
107 Id.
108 Id.
109 See Spencer S. Hsu et al., Roger Stone Guilty on All Counts of Lying to Congress, Witness Tampering, Wash. Post (Nov. 15, 2019), https://www.washingtonpost.com/local/public-safety/roger-stone-jury-weighs-evidence-and-a-defense-move-to-make-case-about-mueller/2019/11/15/554fff5a-06ff-11ea-8292-c46ee8cb3dce_story.html.
110 Tackett, supra note 106.
111 Mueller Report Volume I, supra note 5, at 66, 81; Swalwell, supra note 105.
112 Mueller Report Volume I, supra note 5, at 81; Swalwell, supra note 105 (“Instead of reacting with concern or alarm that a foreign power was trying to manipulate a United States election, Trump, Jr. said he would ‘love’ to get his hands on [information that would be damaging to the Clinton Campaign].”).
113 See Mueller Report Volume I, supra note 5, at 116-20; Mark Mazzetti, G.O.P.-Led Senate Panel Details Ties Between 2016 Trump Campaign and Russia, N.Y. Times (Aug. 18, 2020), https://www.nytimes.com/2020/08/18/us/politics/senate-intelligence-russian-interference-report.html.
114 Id. at 118.
115 Barrett et al., supra note 25 (“Prosecutors reviewed the rough transcript and . . . declined to investigate, concluding that the president had not violated campaign laws.”).
116 See Julia Ainsley & Phil Helsel, Justice Department Review of Russia Probe Turns into Criminal Investigation, NBC News (Oct. 24, 2019), https://www.nbcnews.com/politics/justice-department/justice-department-review-origins-russia-probe-turns-criminal-investigation-n1071731.
117 See id. (“That the administrative review into the origins of the Mueller probe has turned into a criminal investigation could raise alarms that Trump is using the Justice Department to go after his perceived enemies, the Times reported.”); see also Ryan Lucas & Phillip Ewing, Democrats Say White House Is Interfering as Russia Review Becomes a Criminal Case (Oct. 25, 2019) (“‘If the Department of Justice may be used as a tool of political retribution or to help the president with a political narrative for the next election, the rule of law will suffer new and irreparable damage,’ [Reps. Jerry Nadler of New York and Adam Schiff of California] said.”), https://www.npr.org/2019/10/25/773358670/doj-review-of-russia-probe-now-is-criminal-case-dems-charge-wh-interference.
118 Articles of Impeachment Against Donald John Trump, H.R. Res. 755, 116th Cong. (2019); Laurence Arnold & Billy House, What You Need to Know About Trump, Ukraine and Impeachment, Wash. Post (Dec. 18, 2019), https://www.washingtonpost.com/business/heres-the-story-on-trump-ukraine-and-impeachment-quicktake/2019/12/13/0b9e554a-1ddf-11ea-977a-15a6710ed6da_story.html.
119 See, e.g., United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004) (identifying an agreement to commit an offense and willing participation by the defendant as two necessary elements of a conviction under § 371); United States v. Dolt, 27 F.3d 235, 238 (6th Cir. 1994) (“Conspiracy involves an agreement willfully formed between two or more persons to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy.”).
120 See Mazzetti, supra note 113.
121 See Mueller Report Volume I, supra note 5, at 183–91.
122 Mazzetti, supra note 113.
123 52 U.S.C. §§ 30121(a)(1)(A), (a)(2) (2018).
124 Mueller Report Volume I, supra note 5, at 186.
125 Id. at 187–88.
126 The Mueller Report also cited difficulties establishing the value of the Russian assistance provided as a further reason to decline prosecution of Trump campaign officials for criminal campaign finance violations. Id. at 188.
127 Fandos, supra note 27.
128 Kevin Liptak, Trump Says He Would Accept Dirt on Political Rivals from Foreign Governments, CNN: CNN Pol. (June 13, 2019), https://www.cnn.com/2019/06/12/politics/donald-trump-abc-political-dirt-foreign-country-rivals/index.html.
129 Id.
130 John Barlow Martin, An Immodest Proposal: Nikita to Adlai, Am. Heritage (Aug. 1977), https://www.americanheritage.com/immodest-proposal-nikita-adlai.
131 Id.
132 Id.
133 Carter Eskew, What Donald Trump Jr. Should Have Learned From the 2000 Gore Campaign’s Hot Potato, Wash. Post (July 13, 2017), https://www.washingtonpost.com/blogs/post-partisan/wp/2017/07/13/what-donald-trump-jr-should-have-learned-from-the-2000-gore-campaigns-hot-potato/.
134 Id.
135 Id.
136 See Swalwell, supra note 105.
137 Press Release, Eric Sallwell, Congressman, U.S. House of Representatives, Swalwell and Blumenthal Introduce Legislation to Protect Elections from Foreign Interference (Apr. 30, 2019), https://swalwell.house.gov/media-center/press-releases/swalwell-and-blumenthal-introduce-legislation-protect-elections-foreign.
138 Foreign Influence Reporting in Elections Act, S. 1562, 116th Cong. § 2(a) (2019).
139 Id.
140 Id. § 4.
141 Id.
142 Foreign Nationals, Fed. Election Comm’n (June 23, 2007), https://www.fec.gov/updates/foreign-nationals/.
143 See, e.g., James Doubek, Conservative Website Initially Hired Firm That Later Produced Trump Dossier, NPR (Oct. 28, 2017), https://www.npr.org/sections/thetwo-way/2017/10/28/560544607/conservative-website-initially-hired-firm-that-later-produced-trump-dossier.
144 See Heather Caygle et al., Dems Clash with Republicans over Election Security, Politico (July 10, 2019), https://www.politico.com/story/2019/07/10/mcconnell-obama-russia-election-security-1405742.
145 While it has been reported that McConnell expressed doubts about Russian interference, he denies having done so. Id.
146 Editorial, What Will It Take for Congress to Protect America’s Elections?, N.Y. Times (July 27, 2019), https://www.nytimes.com/2019/07/27/opinion/election-security-mueller-trump.html?action=click&module=Well&pgtype=Homepage§ion=Editorials.
147 See Carl Hulse, Battle for Control of Senate Takes Shape as Both Parties Seek Firewall, N.Y. Times (Mar. 1, 2020), https://www.nytimes.com/2020/03/01/us/senate-control-democrats-republicans.html.
148 Even if Democrats do take control of the Senate, it is highly unlikely they will win enough seats to control the 60 votes needed to break a Republican filibuster. See id.
149 See Election Security: State Policies, Nat’l Conf. St. Legislatures (Aug. 2, 2019), http://www.ncsl.org/research/elections-and-campaigns/election-security-state-policies.aspx.
150 Dan Diorio, A Taxing Presidential Issue, Trends in State Policy News, Nat’l Conf. St. Legislatures (May 1, 2017), http://www.ncsl.org/bookstore/state-legislatures-magazine/trends-in-state-policy-news.aspx.
151 Donna Borak, State Lawmakers Move to Require Tax Returns From Presidential Candidates — Including Trump, CNN (Apr. 24, 2019), https://www.cnn.com/2019/04/24/politics/presidential-tax-returns-states-2020-trump/index.html.
152 See Dylan Lynch, Some States Give Big 10-4 to Candidates Releasing 1040s, Nat’l Conf. St. Legislatures: NCSL Blog (Apr. 16, 2019), https://www.ncsl.org/blog/2019/04/16/some-states-give-big-10-4-to-candidates-releasing-1040s.aspx.
153 Although there may be legal impediments to state laws requiring mandatory disclosure of tax returns, see, e.g., Patterson v. Padilla, 451 P.3d 1171, 1191 (Cal. 2019) (striking down a California law requiring the public disclosure of tax returns as invalid under the California Constitution and the U.S. Constitution’s Qualification Clause), the creation of a duty to report foreign interference is different for two reasons. First, the Elections Clause of the U.S. Constitution gives states the power to choose “[t]he Times, Places and Manner of holding Elections for Senators and Representatives[.]” U.S. Const. art. I, § 4; see also Karen L. Shanton, Cong. Research Serv., R45549, The State and Local Role in Election Administration 1 (2019) (“The administration of elections in the United States is highly decentralized. Elections are primarily administered by thousands of state and local systems rather than a single, unified national system.”). Second, historically, states have had almost unfettered discretion to use their policing powers to determine what conduct or omissions constitute crimes under state law. Bowers v. Hardwick, 478 U.S. 186, 197 (1986) (Burger, J., concurring) (“This is essentially not a question of personal ‘preferences,’ but rather of the legislative authority of the State.”).
154 Mueller Report Volume I, supra note 5, at 66.
155 What Will It Take for Congress to Protect America’s Elections?, supra note 147.
156 See The Federalist No. 51 (James Madison).
157 Elizabeth Thomas, A Day After Being Impeached, Trump Calls House Vote a ‘Phony Deal’ and a ‘Hoax,’ ABC News (Dec. 19, 2019), https://abcnews.go.com/Politics/day-impeached-trump-calls-house-vote-phony-deal/story?id=67829619.
158 While President Trump’s impeachment hearings are attracting tremendous media attention, it is important to remember that no resident has ever been removed from office through the impeachment process. See supra, note 77 and accompanying text.
159 Fandos, supra note 27.
160 Fareed Zakaria, Here's Why I Support the Impeachment Inquiry, CNN (Oct. 11, 2019), https://www.cnn.com/videos/tv/2019/10/11/exp-gps-1013-fareeds-take.cnn.