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---------- Forwarded message ----------
From: "Chuck Searcy" <chucku...@gmail.com>
Date: May 18, 2017 3:28 AM
Subject: Marjorie Cohn: Did Trump Commit High Crimes and Misdemeanors?
To: "Chuck Searcy" <chucku...@gmail.com>

Legal scholar Marjorie Cohn can be counted on to provide clear and precise
explanations for unfolding legal dramas, in an accurate, complete, and
unbiased way.  The article below details considerations related to the
appointment of a special counsel yesterday.  CS

Essays and articles on a range of topics are shared with a select group of
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Did Trump Commit High Crimes and Misdemeanors?
Wednesday 17 May 2017
edited by Dave Rodkey
JURIST Contributing Editor Marjorie Cohn
<http://www.tjsl.edu/directory/marjorie-cohn>, Professor Emerita at Thomas
Jefferson School of Law <http://www.tjsl.edu/>, discusses the legal
framework of a potential Trump impeachment...
[image: I'm not a crook, either]
*©  WikiMedia (Doug Coulter)

*D*eputy Attorney General Rod Rosenstein has responded to the crescendo of
outrage by appointing former FBI director Robert Mueller
special counsel to investigate "any links and/or coordination between the
Russian government and individuals associated with the campaign of
President Donald Trump'' and "any matters that arose or may arise directly
from the investigation'' as well as any other matters within the scope of
the Department of Justice (DOJ) regulation on special counsel appointments.

"In my capacity as acting attorney general I determined that it is in the
public interest for me to exercise my authority and appoint a special
counsel to assume responsibility for this matter,'' Rosenstein stated.

"My decision is not a finding that crimes have been committed or that any
prosecution is warranted. I have made no such determination. What I have
determined is that based upon the unique circumstances the public interest
requires me to place this investigation under the authority of a person who
exercises a degree of independence from the normal chain of command,''
Rosenstein added.

Independent counsel Kenneth Starr thought he had "substantial and credible"
President Bill Clinton in 1998. Starr turned over the results of his
investigation to the House of Representatives, who then initiated
impeachment proceedings.

*Evidence of a Cover-up by Trump*

As evidence of President Donald Trump's malfeasance emerges, the old adage
that the cover-up is worse than the crime may once again prove true.

There is circumstantial evidence of improper contact between members of the
Trump administration and Russian operatives during the presidential
campaign. At this point, however, we have seen no concrete proof of
criminal conduct.

But evidence of a cover-up continues to mount. Trump has admitted
Russia investigation motivated him to fire FBI director James Comey.
Trump asked
Comey to end the investigation
former National Security Advisor Michael Flynn. Trump made veiled threats
to Comey
<http://www.cnn.com/2017/05/12/politics/donald-trump-james-comey-threat/> about
possible tapes of their conversations. Trump demanded that Comey pledge
loyalty to him, but Comey refused. And Trump defensively fixated on Comey
telling him three times
Trump was not an object of the investigation.

These acts constitute probable cause that Trump engaged in obstruction of
justice and witness tampering.

Both of these crimes are felonies. They are "high crimes and misdemeanors,"
the constitutional standard for impeachment.

In addition, according to the Washington Post
Trump revealed "highly classified information" to Russian Foreign Minister
Sergey Lavrov, Russian ambassador to the US Sergei Kislyak, and Russian

Although this may not amount to criminal behavior, it could still
constitute a high crime and misdemeanor for impeachment purposes.

*What are High Crimes and Misdemeanors?*

Alexander Hamilton wrote in The Federalist No. 65
<http://avalon.law.yale.edu/18th_century/fed65.asp> that offenses are
impeachable if they

proceed from the misconduct of public men, or, in other words, from the
abuse or violation of some public trust. They are of a nature which may
with peculiar propriety be denominated POLITICAL, as they relate chiefly to
injuries done immediately to the society itself.

When the president obstructs justice or tampers with a witness, that
violates the public trust and injures society's right to the fair
administration of justice.

The New York Times reported
Trump revealed to Lavrov and Kislyak classified information he learned from
Israel. The president does have the power to declassify classified
information. But CIA whistleblower John Kiriakou told Democracy Now!
the proper procedure for a president to declassify information is that

it goes back to the CIA, to the originating office. The CIA will pull the
relevant information out of the report, put it on a new blank sheet of
paper and then type at the top, 'Secret releasable to Russia.' That way,
nobody gets in trouble, no sources and methods are revealed, everybody's
happy, and we can establish something of a liaison relationship to the
Russians. That's not what the president did.

Former CIA director Michael Hayden cautioned in the Washington Post

The information reportedly derived from another country's intelligence
service, so its revelation would have violated the near-sacred third-party
rule of intelligence: Information from one country cannot be shared with
another without the agreement of the originator. Break that rule often
enough and your intelligence begins to dry up.

Indeed, US intelligence officials told the Post that the "disclosures
jeopardized a critical source of intelligence on the Islamic State."

Moreover, Hayden noted, "Reportedly, National Security Council staffers
were concerned enough about the revelations that they felt compelled to
warn the CIA and the National Security Agency. Clearly, someone in
government was concerned about potential damage."

Trump's revelation to the Russian officials endangers the future security
relationship between the US and one of its allies, which is a significant
purveyor of intelligence about the Middle East. That could injure US
national security, and thereby, the society itself. Trump "revealed more
information to the Russian ambassador than we have shared with our own
allies," a US official told the Post.

The Judiciary Committee's impeachment inquiry staff during the Nixon
impeachment wrote in 1974 that impeachment "is to be predicated only upon
conduct seriously incompatible with . . . the proper performance of
constitutional duties of the presidential office." Under the Constitution,
the president has a duty to "take Care that the laws be faithfully

There is strong evidence that Trump committed high crimes and misdemeanors
to support an impeachment investigation. Mueller will undoubtedly uncover a
great deal more. The new special counsel should send the results of his
investigation to the House of Representatives, where impeachment
proceedings take place.

*Obstruction of Justice*

The articles of impeachment in the cases of both Nixon and Clinton
contained allegations of obstruction of justice.

The federal obstruction of justice statute
<https://www.law.cornell.edu/uscode/text/18/1505> punishes anyone who
"corruptly, or by threats or force, or by any threatening letter or
communication influences, obstructs, or impedes or endeavors to influence,
obstruct, or impede . . . the due and proper exercise of the power of
inquiry under which any inquiry or investigation is being had by either
House, or any committee of either House or any joint committee of the

A conviction of obstruction of justice requires "acting with an improper
purpose, personally or by influencing another." Trump asked Vice President
Mike Pence and Attorney General Jeff Sessions to step out of the Oval Office
the president requested that Comey drop the investigation of Flynn. The
president didn't want Pence or Sessions to hear what he had to say to
Comey. This is evidence that Trump made the request to Comey for an
improper purpose.

If Trump did fire Comey because the latter's investigation was getting too
close to incriminating Trump, it would be a cover-up, and strong evidence
of obstruction of justice.

*Witness Tampering*

The federal witness tampering statute
<https://www.law.cornell.edu/uscode/text/18/1512>punishes anyone who
"knowingly uses intimidation, threatens, or corruptly persuades another
person, or attempts to do so, or engages in misleading conduct toward
another person, with intent to influence, delay or prevent the testimony of
any person in an official proceeding"

A person also engages in witness tampering if he "otherwise obstructs,
influences, or impedes any official proceeding, or attempts to do so" or
"intentionally harasses another person and thereby hinders, delays,
prevents, or dissuades any person from attending or testifying in an
official proceeding."

Comey reported that Trump asked him for his loyalty. Although the FBI
requires its officials to pledge fealty to the Constitution, not to any
individual leader, Trump sought to elicit a personal loyalty oath from the
FBI director. This may be evidence of intimidation to prevent Comey from
testifying against Trump.

And Trump's veiled threats to Comey about tapes of their conversation,
ostensibly to keep Comey quiet, may also amount to witness tampering.

*Regulations on Appointment of Special Counsel*

The attorney general (AG) has the authority to appoint and remove special
counsel to investigate top government officials. The AG exercises power
over indictments and other prosecutorial actions. The special counsel
remains accountable to the AG, who can block "any investigative or
prosecutorial step" he deems "inappropriate or unwarranted."

In March, Attorney General Jeff Sessions recused himself
the Russia investigation because during his confirmation hearing, Sessions
had failed to disclose contacts he had with Russian officials. Thus the
authority to appoint a special independent counsel falls to Deputy Attorney
General Rosenstein.

DOJ regulations <https://www.law.cornell.edu/cfr/text/28/600.1> call for
the appointment of an outside special counsel when (1) a criminal
investigation of a person or matter is warranted, (2) the investigation or
prosecution of that person or matter by a US Attorney's Office or
litigating division of the DOJ would present a conflict of interest for the
Department, and (3) under the circumstances it would be in the public
interest to appoint an outside Special Counsel to assume responsibility for
the matter. When these three conditions are satisfied, the AG must select a
special counsel from outside the government.

Mueller, a former government official, is expected to resign from his law
order to serve as special counsel in this investigation.

*Marjorie Cohn is professor emerita at Thomas Jefferson School of Law,
former president of the National Lawyers Guild, and deputy secretary
general of the International Association of Democratic Lawyers. Her most
recent book is "Drones and Targeted Killing: Legal, Moral, and Geopolitical
Issues." Visit her website at http://marjoriecohn.com/
<http://marjoriecohn.com/> and follow her on Twitter @MarjorieCohn.*

*Suggested citation:*Marjorie Cohn, *Did Trump Commit High Crimes and
Misdemeanors?*, JURIST - Forum, May 17, 2017, http://jurist.org/forum/2017/0
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