Supreme Court Sustains Compassion and Law by 5-4 Vote, for Now

By William Boardman, Reader Supported News

23 December 18

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

– US asylum law, statement of scope (8 US Code 1158 (a)(1)

nited States asylum law, duly enacted by Congress and the president of the United States, has remained unchanged and largely unchallenged since 2008. The clearly stated intent of the law is to allow any alien physically present in the US to apply for asylum, in a legal process consistent with both international and federal law. The unstated subtext of the law is that the US should be a compassionate country where people fleeing oppression, persecution, and violence may find a safe haven.

This one of America’s founding myths, that we are a country of immigrants, in the best sense of the word. Despite glaring violations, the myth has served as the basis of consensus national policy until very recently. And it has been the settled law of the land.

On November 1, 2018, in a provocative and less than honest speech on immigration, President Trump set out on a campaign to change all that, as he challenged the law of the land and the constitutional process by which law is created. Masking the constitutional challenge, Trump distracted attention with threats that US military would kill asylum seekers if they threw stones. Despite his deliberate demagoguery, Trump’s extreme language failed to have a discernible effect on the fall election.

On November 9, in the latest strike in his unrelenting war on immigrants, Trump issued a proclamation asserting that he, as president, had the unilateral authority to change any law passed by Congress – in this case, the asylum law. The proclamation implemented a 78-page “interim final rule” issued the previous day by the US Departments of Justice and Homeland Security. The Washington Post, adopting Trump’s false framing, disingenuously and falsely headlined this move as “Trump administration tightens immigration asylum rules as caravans continue to push for US border.” NBC News had a somewhat different take on the interim final rule:

The Trump administration expects to be sued over the draconian new immigration plan it unveiled Thursday afternoon, say two senior administration officials with knowledge of the discussions — but with Justice Brett Kavanaugh now on the Supreme Court, it expects to win.

Lawsuits followed, as expected. In San Francisco, the ACLU (American Civil Liberties Union) promptly filed suit on behalf of four organizations involved with immigrant rights.

On November 20, US District Judge Jon Tigar issued a temporary restraining order that barred the administration from implementing the interim final rule until it had been fully litigated. In his ruling, Judge Tigar wrote:

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA [Immigration and Nationality Act of 1965] and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.

The White House responded by attacking the judge for being appointed by President Obama. The White House also issued a statement falsely describing reality on the border and falsely representing the president’s authority. The White House appealed to the full 9th US Circuit Court of Appeals to stay Judge Tigar’s ruling. If granted, the stay would allow the White House to move forward with the interim final rule.

On December 8, a three-judge panel of the 9th Circuit upheld Judge Tigar and rejected the White House request. Writing for the unanimous court in a 65-page decision, Judge Jay Bybee (previously well known in the Bush administration for writing memos justifying torture) began by reiterating the legal and historical baseline for considering applications for asylum in the US:

For more than 60 years, our country has agreed, by treaty, to accept refugees. In 1980, Congress codified our obligation to receive persons who are “unable or unwilling to return to” their home countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Congress prescribed a mechanism for these refugees to apply for asylum and said that we would accept applications from any alien “physically present in the United States or who arrives in the United States whether or not at a designated port of arrival … irrespective of such alien’s status. [Emphasis in original]

Judge Tigar’s temporary restraining order lasted only until December 19, when he held a hearing on the White House appeal to let the interim final rule go into effect. After hearing argument from both sides, Judge Tigar concluded that “Plaintiffs [ACLU] have established an overwhelming likelihood that the new rule barring asylum is invalid.” The judge then granted a preliminary injunction barring the White House from implementing unlawful restrictions on asylum seekers.

The White House had already applied to the Supreme Court for a stay of Judge Tigar’s restraining order and allow the new rules to go forward. The Supreme Court rejected the request without comment on a 5-4 vote. The entire Supreme Court order reads:

The application for stay presented to Justice Kagan and by her referred to the Court is denied. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application for stay.

It’s not really news that Justices Thomas, Alito, Gorsuch, and Kavanaugh have no objection to the president rewriting Congressional legislation on his own, without review even by the judiciary. These men are all well known for their shaky adherence to constitutional law when the opportunity to support authoritarianism presents itself.

Nor is it really news that Justices Kagan, Ginsberg, Sotomayor, and Breyer come down in support of the rule of law.

The news – and it really looks like good news – is that Chief Justice John G. Roberts is the swing vote here in opposition to legislation by presidential diktat. As NBC News reported, the White House expected to win this in the Supreme Court. We should be grateful that their expectation was wrong, at least for now. The asylum case is far from over. The White House is almost surely going to go on trying to create a presidential dictatorship. But for now, we’re still one justice shy of the end of constitutional government.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

Bill Barr's Very Strange Memo on Obstruction of Justice

By Mikhaila Fogel and Benjamin Wittes, Lawfare Blog

23 December 18

he memo on obstruction of justice by Bill Barr, the once and future attorney general, is a bizarre document—particularly so for a man who would supervise the investigation it criticizes.

As the Wall Street Journal first reported, Barr, whom the president has nominated to succeed Jeff Sessions as attorney general, sent the unsolicited memo—dated June 8, 2018—to Deputy Attorney General Rod Rosenstein to offer his view of Special Counsel Robert Mueller’s investigation into possible obstruction of justice by the president. The document elicited questions over whether Barr would need to recuse himself from overseeing the investigation as attorney general, along with outrage from congressional Democrats: both Senate Minority Leader Chuck Schumer and Sen. Mark Warner, the ranking member on the Senate intelligence committee, have demanded that Trump withdraw Barr’s nomination. Sen. Dianne Feinstein of the Senate Committee on the Judiciary described the memo as “troubling.”

But the legal quality of the memo itself is a different question. Over at Just Security, Marty Lederman has what he describes as a “first take” on Barr’s memo, which is to say a detailed critique of it on both constitutional and statutory grounds. On National Review’s website, by contrast, Andrew McCarthy declares the memo a “commendable piece of lawyering” and “exactly what we need and should want in an attorney general of the United States.”

Whatever Barr’s memo is, it is not that. Because whether one agrees with his view of the law (as does McCarthy) or recoils at it (as does Lederman), one thing attorneys general of the United States should certainly not do is make up facts. And ironically for a memo laying out the argument that Bob Mueller has made up a crime to investigate, the document is based entirely on made-up facts. Lederman mentions this point at the outset of his analysis:

the first huge and striking problem with Barr’s memo is that he unjustifiably makes countless assumptions about what Mueller is doing; about Mueller’s purported “theory” of presidential criminal culpability; about Mueller’s “sweeping” and “all-encompassing” “interpretation” of the statute and Constitution; about “Mueller’s core premise[s]”; . . . about “unprecedented” steps Mueller is proposing to take; about “Mueller’s proposed regime”; about “Mueller’s immediate target”; about Mueller’s presumed failure to “provide a standard” for what constitutes “corruptly” trying to impede proceedings; about Mueller’s “demands” that the President submit to interrogation; etc.

To read this memo, you’d think Barr were replying to a legal brief that Mueller had submitted in support of a prosecution of the President for obstruction of a federal proceeding. Yet as Barr concedes at the outset, he was “in the dark about many facts.” Indeed, he presumably was “in the dark” about virtually everything he wrote about. From all that appears, Barr was simply conjuring from whole cloth a preposterously long set of assumptions about how Special Counsel Mueller was adopting extreme and unprecedented-within-DOJ views about every pertinent question and investigatory decision—and that Deputy Attorney General Rosenstein was allowing him to do so, despite the fact that Mueller is required to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice” and to “consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department.”

Indeed, it is not an exaggeration to say that Barr’s entire memo is predicated on two broad assumptions: first, that he knows Mueller’s legal theory, and second, that he understands the fact pattern Mueller is investigating. “It appears Mueller’s team is investigating a possible case of ‘obstruction’ by the President predicated substantially on his expression of hope that the Comey [sic] could eventually ‘let ... go’ of its investigation of Flynn and his action in firing Comey,” Barr writes in his second paragraph.

Neither assumption is, in our judgment, warranted. Unlike Barr, we don’t purport to know what Mueller’s obstruction theory is. It’s a subject about which one of us has been puzzling over a long period of time and in a number of articles. We also don’t purport to know what fact patterns Mueller he is focusing on. But here’s a limb onto which we are prepared to venture: the reality is more complicated than the facts Barr has “assumed” for purposes of predicating nearly 20 pages of legal analysis. In fact, it’s a lot more complicated.

Barr assumes for the purpose of his memo that Mueller is only interested in presidential conduct sanctioned by Article II, specifically that his investigation revolves around Trump’s actions toward Comey. “As I understand the theory,” he writes, Mueller’s team has built their case on a novel and, in his view, unsupported interpretation of 18 U.S.C. § 1512(c)(2), the “residual clause” of § 1512, which prohibits witness tampering. § 1512(c)(2) holds that, “Whoever corruptly … otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction”—and Barr is concerned that Mueller is interpreting it to sanction an overly broad range of behavior.

Moreover, Barr takes the view that a facially lawful action taken by the president under his Article II authority cannot constitute obstruction as a matter of constitutional law. He expresses concern that allowing this interpretation to proceed could have “disastrous implications” for the executive branch and the presidency, potentially opening the door to criminal investigations of “all exercises of prosecutorial discretion.” He also writes, “if a [Justice Department] investigation is going to take down a democratically-elected president it is imperative… that any claim of wrongdoing is solidly based on a real crime—not a debatable one.” (All emphases in original).

It’s not clear why Barr adopts such a simplistic understanding of Mueller’s operating theory, but the sequence of events leading up to his submitting the memo in early June may offer some insight. At some point, probably in March or April of this year, the president’s legal team received a list of subjects that the special counsel’s office wanted to discuss with Trump in an interview. In late April 2018, the New York Times published a condensed list of those questions.

Several weeks later, on June 2, the Times published a letter from Trump’s then-lawyer, John Dowd, to Mueller, in which Dowd responded to Mueller’s request to question the president regarding 16 areas of interest—which essentially mirrored the reported list of questions. In that letter, Dowd explained to the special counsel why he is advising against the president granting the interview, including that he does not believe there is a cognizable offense for an obstruction investigation under 18 U.S.C. § 1505, which prohibits tampering with evidence and impeding legal “proceedings.” Dowd argued both that the president’s actions were authorized by Article II of the Constitution and that an FBI investigation does not count as a “proceeding.” His letter was mocked by a number of commentators on this latter point; Charlie Savage at the Times pointed out that by citing § 1505, instead of § 1512, Dowd was making things easy for himself. § 1512, unlike the statute Dowd cited, does not require that a proceeding be pending.

The Dowd letter, despite its flaws, sparked a certain amount of speculation in conservative media that Mueller lacked an actual crime to investigate—at least as to the obstruction cone of his investigation. A few days after the Times published the Dowd letter, for example, the National Review stated in an editorial that “The letter implies that these two events [the request to Comey regarding Flynn and his subsequent firing] remain the gravamen of the special counsel’s obstruction probe. If that is so, there is no obstruction case.” The editorial goes on to say that, “a prosecutor may not charge obstruction based on the president’s exercise of his constitutional prerogatives.” And it asserts that, in both instances, the president was acting within his constitutional authority:

In short, unless there is a smoking gun against the president that is lurking unseen even in the private jousting between Trump’s team and Mueller, the special prosecutor should be wrapping up the obstruction aspect of his probe rather than extending it via a court fight over the president’s testimony.

In was against this backdrop, on June 8, that Barr sent his memo to Rosenstein and Assistant Attorney General for the Office of Legal Counsel Steven Engel, a memo that shifts the discussion from § 1505 to § 1512 but also adopts the working understanding of the obstruction theory from Dowd’s letter. 

The problem is that the facts are almost certainly more complicated than that.

Looking back at the New York Times list of subjects Mueller sought to discuss with Trump, many of those topics go well beyond core Article II-authorized management of the executive branch. For example, Mueller wanted to ask about what Trump knew “about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016.” Why Flynn lied about his communications with Kislyak is one of the key questions at issue in the case. And Barr himself makes clear that if a president induces someone to lie, that’s not an act protected by Article II.

Analysis of Trump’s inducing Flynn to lie would, of course, involve facts not in evidence, and it would almost certainly involve a different statute. But that’s precisely the point. How does Barr know what conduct Mueller is focused on or under what law?

There are other such examples—a number of them, in fact. Mueller wants to discuss “efforts . . .  made to reach out to Mr. Flynn about seeking immunity or possible pardon.” That sounds more like a witness tampering investigation than a broad theory of obstruction under § 1512(c)(2). Mueller appears to want to discuss Trump’s efforts to get intelligence community leaders to lean on Comey to drop the Flynn matter and his “reaction to the news that [Mueller] was speaking to” those leaders. He’s also interested in the public bullying of Sessions and FBI Deputy Director Andrew McCabe, both fired. Again, why is Barr so sure this is all a broad “residual” § 1512 theory of obstruction?

It may well be that Mueller’s theory of the case involves a narrower conception of what Article II permits the president to do than that which Barr holds. But our suspicion is that Mueller is looking not narrowly at the specific acts on which Dowd and Barr focused, but on a broader pattern of activity, some but not all of which involves facially valid exercises of Article II powers.

At a press conference today, Rosenstein declared that the Mueller investigation “is being handled appropriately.” When asked to weigh in on the memo, Rosenstein said that, “Bill Barr was an excellent attorney general during the approximately 14 months that he served in 1991 to 1993” and he predicted that he “will be an outstanding attorney general when he is confirmed next year.” But he added that the department’s handling of the obstruction matter has been “informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have.”

We suspect those “actual facts” will complicate the Article II analysis—both the facts under investigative scrutiny and the facts as to the range of statutes against which that evidence is being considered.