Monday, June 26, 2017

Trump, Mueller And Arthur Andersen

Did the president act ‘corruptly’? Not from what we know—but then neither did the accounting firm.


By Michael B. Mukasey
The Wall Street Journal
June 26, 2017

What exactly is Special Counsel Robert Mueller investigating? The basis in law—regulation, actually—for Mr. Mueller’s appointment is a finding by the deputy attorney general that “criminal investigation of a person or matter is warranted.”

According to some reports, the possible crime is obstruction of justice. The relevant criminal statute provides that “whoever corruptly . . . influences, obstructs or impedes or endeavors [to do so], the due and proper administration of the law under which any pending proceeding is being had,” is guilty of a crime. The key word is “corruptly.”

President Trump’s critics describe two of his actions as constituting possible obstruction. One is an alleged request to then-FBI Director James Comey that he go easy on former national security adviser Michael Flynn, who was under investigation for his dealings with Russia and possible false statements to investigators about them. According to Mr. Comey, Mr. Trump told him, “I hope you can see your way clear to letting this go, to letting Flynn go,” because “he is a good guy.”

An obstruction charge based on that act would face two hurdles. One is that the decision whether to charge Mr. Flynn was not Mr. Comey’s. As FBI director, his job was to supervise the investigation. It is up to prosecutors to decide whether charges were justified. The president’s confusion over the limits of Mr. Comey’s authority may be understandable. Mr. Comey’s overstepping of his authority last year, when he announced that no charges were warranted against Hillary Clinton, might have misled Mr. Trump about the actual scope of Mr. Comey’s authority. Nonetheless, the president’s confusion could not have conferred authority on Mr. Comey.

The other is the statutory requirement that a president have acted “corruptly.” In Arthur Andersen LLP v. U.S. (2005), the U.S. Supreme Court accepted the following definition: that the act be done “knowingly and dishonestly, with the specific intent to subvert or undermine the integrity” of a proceeding. Taking a prospective defendant’s character into account when deciding whether to charge him—as Mr. Comey says Mr. Trump asked him to do—is a routine exercise of prosecutorial discretion. It is hard to imagine that a properly instructed jury could decide that a single such request constituted acting “corruptly”—particularly when, according to Mr. Comey, Mr. Trump also told him to pursue evidence of criminality against any of the president’s “ ‘satellite’ associates.”

The second act said to carry the seed of obstruction is the firing of Mr. Comey as FBI director. The president certainly had the authority; it is his motive that his critics question. A memorandum to the president, from the deputy attorney general and endorsed by the attorney general, presented sufficient grounds for the firing: Mr. Comey’s usurpation of the prosecutor’s role in the Clinton matter and his improper public disclosure of information unfavorable to Mrs. Clinton. But the president’s detractors have raised questions about the timing—about 3½ months into the president’s term. They have also cited the president’s statement to Russian diplomats days afterward that the firing had eased the pressure on him.

The timing itself does not suggest a motive to obstruct. Rather, coming a few days after Mr. Comey refused to confirm publicly what he had told Mr. Trump three times—that the president himself was not the subject of a criminal investigation—the timing suggests no more than an understandable anger. The statement to Russian diplomats, which might have been intended to put the Russians at ease, collides with the simple fact that an investigation—conducted by agents in the field—proceeds regardless of whether the director continues in office, and thus hardly suggests the president acted “corruptly.”

One of Mr. Mueller’s early hires among the dozen-plus lawyers already aboard has a troubling history with the word “corruptly.” Andrew Weissmann led the Enron prosecution team that pressed an aggressive interpretation of “corruptly,” which permitted a conviction even absent the kind of guilty knowledge the law normally associates with criminal charges. As a result, the accounting firm Arthur Andersen was convicted. By the time the conviction was reversed on appeal to the Supreme Court in 2005—in large part due to the erroneous application of “corruptly” in the statute at issue—Arthur Andersen had already ceased operation.

What if—for some reason not apparent to the public now—Mr. Mueller were to conclude that the president did act “corruptly”? Could he initiate a criminal prosecution? The Office of Legal Counsel at the Justice Department, which sets policy for the department and other agencies of government, has already opined more than once—starting in 1973, during Watergate—that the answer is no. It would offend the Constitution for the executive branch to prosecute its head.

What else might Mr. Mueller do? Some have suggested that if he finds criminal activity occurred he could report his findings to the House so as to trigger an impeachment proceeding, as Independent Counsel Kenneth Starr did in 1998. But the law under which Mr. Starr was appointed has lapsed, and the regulations governing the special counsel provide for only two kinds of reports—either to Justice Department leadership when some urgent event occurs during the investigation, or to the attorney general to explain the decision to prosecute or not. Reports of either type are to be treated as confidential.

Mr. Mueller could simply take the bit in his teeth and write a public report on his own authority, or write a confidential report and leak it to the press. If he did either, he would be following Mr. Comey’s lawless example.

Or if, as appears from what we know now, there is no crime here, Mr. Mueller, notwithstanding his more than a dozen lawyers and unlimited budget, could live up to his advance billing for integrity and propriety and resist the urge to grab a headline—not necessarily his own urge but that of some he has hired.

Hold fast. It may be a rough ride.


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