[EL] “The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well”

Mon Apr 22 14:57:54 PDT 2019

It’s important not to confuse the AG with the SDNY.  The AG has delegated his authority over legal interpretation to OLC and OLC opinions bind executive branch officials, including the SDNY – just as if the AG had issued that opinion himself.  But the AG can always reject an OLC view of the law, because the OLC exercises authority delegated from the AG in the first place.

The SDNY does not have any power to reject an OLC interpretation of the law.  There is nothing contested about this, it’s the law, because by statute the AG has the power to “direct” all US attorneys.  See 28 USC Sec. 519.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Sq. So.
NYC, NY 10012
212 998-6377

From: Josh Blackman [mailto:joshblackman at gmail.com]
Sent: Monday, April 22, 2019 5:41 PM
To: Rick Hasen
Cc: Pildes, Rick; Election Law Listserv
Subject: Re: [EL] “The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well”

The question of whether Mueller is bound by OLC opinions is separate from whether DOJ's litigating arms are bound by OLC.

My understanding is that the Federal Programs Branch, and by extension the U.S. Attorneys, are not bound by OLC.

In the Emoluments Clause litigation, DOJ has taken a position that is somewhat at odds with an OLC Opinion. Specifically, OLC has taken the position<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.justice.gov_sites_default_files_olc_opinions_2009_12_31_emoluments-2Dnobel-2Dpeace-5F0.pdf&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=AvM01F_2x1noaYpJ5i8Znpx5QJEfS0lVychY5Zd-vyk&s=ePlhdAOj8-dB5EkK-_X9hwHItXIOaUnSnp3vQTZtrNQ&e=> that the Foreign Emoluments Clause "surely" applies to the President. DOJ stated in SDNY that "the government has not conceded that the President is subject to the Foreign Emoluments Clause." They have maintained that position since 2017 in several courts.

http://joshblackman.com/blog/2017/10/25/doj-shifts-position-the-government-has-not-conceded-that-potus-is-subject-to-the-foreign-emoluments-clause/<https://urldefense.proofpoint.com/v2/url?u=http-3A__joshblackman.com_blog_2017_10_25_doj-2Dshifts-2Dposition-2Dthe-2Dgovernment-2Dhas-2Dnot-2Dconceded-2Dthat-2Dpotus-2Dis-2Dsubject-2Dto-2Dthe-2Dforeign-2Demoluments-2Dclause_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=AvM01F_2x1noaYpJ5i8Znpx5QJEfS0lVychY5Zd-vyk&s=MN19pa6bWh4mIgeu1IO_wkYaH63zWtyXe2F9Uu3R_xo&e=>

There is, at least here, some daylight between OLC and DOJ's litigation arms.

---------------------------------------------------------------------------
Josh Blackman
http://JoshBlackman.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__JoshBlackman.com&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=AvM01F_2x1noaYpJ5i8Znpx5QJEfS0lVychY5Zd-vyk&s=vOKrPFe5pDn46pgr5QqouLP9tBzb7z-ciDfvHu4cBQ8&e=>
Unprecedented: The Constitutional Challenge to Obamacare<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.amazon.com_gp_product_1610393287_ref-3Das-5Fli-5Ftf-5Ftl-3Fie-3DUTF8-26camp-3D1789-26creative-3D9325-26creativeASIN-3D1610393287-26linkCode-3Das2-26tag-3Djoshblaccom-2D20&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=AvM01F_2x1noaYpJ5i8Znpx5QJEfS0lVychY5Zd-vyk&s=k74FcOSS5fsY0XZhlEiPnryGe_xBKXErAR7XGdRR5Ok&e=>
Unraveled: Obamacare, Religious Liberty, & Executive Power<https://urldefense.proofpoint.com/v2/url?u=http-3A__amzn.to_2aqbDwy&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=AvM01F_2x1noaYpJ5i8Znpx5QJEfS0lVychY5Zd-vyk&s=0GSG59NdrrMUfG2vafGDlQFeRc8htlyFTHlRn-mJvnc&e=>

On Mon, Apr 22, 2019 at 4:32 PM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
I believe that this is somewhat contested

https://www.theatlantic.com/ideas/archive/2018/05/presidential-indictment/560957/<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theatlantic.com_ideas_archive_2018_05_presidential-2Dindictment_560957_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=AvM01F_2x1noaYpJ5i8Znpx5QJEfS0lVychY5Zd-vyk&s=d3YdL3yERcSQbJtfR16s96fEJZbHViCHbVfi7UAah6o&e=>

https://www.lawfareblog.com/mueller-bound-olcs-memos-presidential-immunity<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.lawfareblog.com_mueller-2Dbound-2Dolcs-2Dmemos-2Dpresidential-2Dimmunity&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=AvM01F_2x1noaYpJ5i8Znpx5QJEfS0lVychY5Zd-vyk&s=Qa1EYuZyI_vNDLSo3lFeGiyK7FxG4fPdxxZAnGDiiwA&e=>

Rick Hasen
Sent from my iPhone. Please excuse typos.

________________________________
From: Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Sent: Monday, April 22, 2019 2:26 PM
To: Rick Hasen; Election Law Listserv
Subject: RE: “The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well”

I was confused because OLC opinions are not guidance, they are legally binding on the executive branch, including SDNY.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Sq. So.
NYC, NY 10012
212 998-6377

From: Rick Hasen [mailto:rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Monday, April 22, 2019 5:21 PM
To: Pildes, Rick; Election Law Listserv
Subject: Re: “The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well”

I was referring to a situation where SDNY decides to indict despite the earlier guidance while Barr is still AG.  It was not clearly written. Sorry.

Rick Hasen
Sent from my iPhone. Please excuse typos.

________________________________
From: Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Sent: Monday, April 22, 2019 1:40 PM
To: Rick Hasen; Election Law Listserv
Subject: RE: “The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well”

In Rick’s piece, I’m confused about this paragraph – President Trump could only be indicted after he leaves office, in which case Barr will not be the AG.

Although SDNY has some independence, there is no reason to believe that a decision to indict the president would not go through Barr, especially given long-standing DOJ policy, relied upon by Mueller, that a sitting president cannot be indicted (or even accused directly of crimes). Barr cannot be trusted to be fair, and even if he were in a close case, he would side with the president.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Sq. So.
NYC, NY 10012
212 998-6377

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Monday, April 22, 2019 12:38 PM
To: Election Law Listserv
Subject: [EL] “The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well”

“The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well”<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D104789&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=fQVGAJuTXXxb6LGdpThD58zkS-5ekv4eisrkKgDN6t8&e=>
Posted on April 22, 2019 9:35 am<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D104789&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=fQVGAJuTXXxb6LGdpThD58zkS-5ekv4eisrkKgDN6t8&e=> by Rick Hasen<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fauthor-3D3&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=eIEeXf5Awjd3haXue0E5-H1Mb43i8ETJRtczvfLe3KU&e=>

I have written this piece<https://urldefense.proofpoint.com/v2/url?u=https-3A__slate.com_news-2Dand-2Dpolitics_2019_04_mueller-2Dreport-2Dhush-2Dmoney-2Dstormy-2Ddaniels-2Dtrump-2Dcohen-2Dsdny.html&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=ncGisj-mSq7c81EnaLxZHodhsoaHm7TSN67XaxqZ6Ss&e=> for Slate. It begins:

Since the announcement of special counsel Robert Mueller’s decision to not indict President Donald Trump for obstruction of justice or any members of Trump’s family, critics of Trump who still feel some of his actions may have amounted to crimes seem to have put all their eggs in a new basket: the Southern District of New York. These Trump opponents now seem to be hoping that the Justice Department’s branch in the SDNY, which secured a plea deal from Trump’s former personal lawyer Michael Cohen, will come after Trump’s family for financial improprieties and perhaps Trump himself for potential campaign finance violations. But based on what we have learned from the Mueller report, which was released on Thursday, and how it has been handled by Attorney General William Barr, it is time to lower expectations for the SDNY to act, at least as it pertains to the president’s potential criminal liability while in office….

Like the situation with Trump Jr., there might be questions about the president’s willfulness to violate campaign finance laws. Although Trump had tweeted <https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_realDonaldTrump_status_195584554290003969&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=dXRyHye4ntqnQXm_a3K7pF5MrrgakRGtFkdzosIRcaM&e=> about the similar John Edwards case at the time Edwards was on trial, that might not be enough for prosecutors to conclude that they might be able to prove to a jury beyond a reasonable doubt that Trump knew he was violating the law by making payments to a mistress during a campaign without reporting it. And just as Mueller’s team did not call Trump Jr. to the grand jury, it did not get to personally interview the president or get him before the grand jury. It relied on written answers from Trump, vetted through his lawyers. So it may be very hard to prove willfulness without getting more from the president himself.

And as with the foreign opposition research case against Trump Jr., the hush money payments case against Cohen—and thus Trump—relies upon a contested legal theory. It is true that the Edwards case is precedent for prosecuting this as a crime, but there is a reasonable counterargument that these payments should be treated as personal, and not campaign-related. Cohen might have pleaded guilty to these crimes rather than fight them raising these potential defenses because he was already pleading to other charges and saw no point in contesting these, which allowed him to attack the president as a co-conspirator in a criminal enterprise. At the very least, there is an argument that to avoid the problem of overzealous prosecutors, the better course<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D102839&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=SWtmtZxsSOU36eOGwSdT1D_9HCVoltMeyIWe1S6NaG0&e=> is to leave criminal prosecutions of politicians in political cases to the most clear-cut cases of criminal liability.
[Share]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.addtoany.com_share-23url-3Dhttps-253A-252F-252Felectionlawblog.org-252F-253Fp-253D104789-26title-3D-25E2-2580-259CThe-2520Mueller-2520Report-2520Makes-2520It-2520Clear-253A-2520Trump-2520Is-2520Off-2520the-2520Hook-2520in-2520SDNY-2520as-2520Well-25E2-2580-259D&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=Vhx6QJ_lmIjQKLyz5BFCSe6PPXPRq5BJvy2RgXzcW9s&e=>
Posted in campaign finance<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fcat-3D10&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=IlTjozldj3nT2mpPCTugRczp_1UIQjYRSuvH-fdwpek&e=>, campaigns<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fcat-3D59&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=r8MWrtquT1VdRcCkuoCQJIsnAbfvqJPcbeXFpiy0Fts&e=>, chicanery<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fcat-3D12&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=hkOcfcfmNZ2n_eHntKwAeJPds3hUgd07_iv8AekoUQ8&s=1zvsb4te0-8xvkdfaA42nboi1_rA6HHQBoLw-ZDOkU4&e=>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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