Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.
As a federal organized crime prosecutor, I learned that the mafia uses a practice known as “kicking up” or “paying tribute” to the boss. Essentially, all members of a mafia family must make sure that some of their earnings end up in the boss’ pocket. From the member’s point of view, “kicking up” is a way to show respect, curry favor, and reinforce the hierarchical power structure. From the boss’s point of view, it’s a way to get rich.
The “kicking up” model works well for the mafia, and now a political version of it seems to be catching on within the Trump administration. Vice President Mike Pence has decided to stay at Trump’s golf resort in Doonbeg, Ireland, during an official visit to Dublin (over a one-hour flight away, so not particularly close or convenient). On Tuesday, Pence’s chief of staff remarked that the decision was made on Trump’s suggestion. The Vice President’s office later stated, “at no time did the President direct our office to stay at his Doonbeg resort.”
Pence reportedly will personally pay all expenses for family traveling with him, and the United States government will use taxpayer money to pick up the costs for Pence and his security detail. No matter how you cut it, Pence’s decision to stay at Trump’s hotel will put money in Trump’s pocket.
Not to be outdone in the “posterior osculation” category (as Paul Begala colorfully put it), Attorney General William Barr reportedly will spend more than $30,000 of personal money to throw a private holiday party at the Trump International Hotel in Washington DC. Barr’s defenders argue that he first tried to book two other DC hotels. But, of course, there are dozens of luxury hotels in DC that Barr could have chosen instead of one owned by Trump’s company. Apologists can nibble at the margins, but there is no escaping that Barr’s choice to patronize a Trump property, like Pence’s, will put thousands of dollars in Trump’s pocket.
This trend of high-ranking federal officials choosing to pay thousands of dollars to use Trump’s private properties is problematic on two levels. First, the payments could violate the Emoluments Clause of the Constitution, which prohibits federal government officials from accepting (1) “any present, emoluments, title or office” from any foreign country or (2) any income beyond official salary from any American state or the federal government. There already is pending litigation under the Emoluments Clause over Trump’s receipt of revenue from foreign leaders who have stayed at Trump properties. Trump’s receipt of income directly from the federal government to cover Pence’s stay at the hotel presents another potential violation of the Emoluments Clause.
Second, the decisions by Pence and Barr to patronize Trump’s private business raise vexing precedent and serious ethical questions. Do other high-ranking federal officials need to take notice and follow suit? Will they be punished or disfavored if they don’t throw a couple bucks Trump’s way? Is there some implicit understanding that Trump will favor those who pay? Even if the answer to all of these questions is “no,” the appearance itself is terrible; the American public rightly will wonder if ethical lines have been blurred, and that in itself is problematic.
Barr’s decision is particularly baffling. The attorney general is supposed to be independent and stand above politics, but Barr looks weak and sycophantic to Trump. While Barr sought the advice of DOJ ethics experts, at a minimum this creates a terrible appearance of him currying favor with Trump – the person who appointed Barr, and the only person who can fire him. When I worked at the Justice Department, employees were trained not to sell a child’s Girl Scout cookies in the office, to prevent even the appearance of mixing personal finance with Justice Department business. Compare that to Barr cutting a personal check for reportedly $30,000 to a Trump business and you can see the magnitude of the ethical problem.
Both Pence and Barr had plenty of options available. Yet they both conspicuously chose to go with Trump properties. Trump will get a little richer, and the integrity of our government will take another loss.
Now, your questions:
Mike (New York): How can James Comey fairly be castigated for exposing President Trump’s efforts to interfere with the criminal investigation of Michael Flynn?
The recently released Justice Department OIG report concludes that Comey “set a dangerous example for the over 35,000 current FBI employees” by disclosing to the media sensitive issues about the then-ongoing criminal investigation of Flynn and the broader investigation of Russian election interference to create public pressure to appoint a special counsel. I agree with this conclusion. Simply put, Comey knowingly broke the rules of the very organization he led.
Comey and his defenders counter that by, essentially, arguing he had no choice. The President potentially had obstructed justice, and certainly had violated fundamental norms about the independence of the Justice Department, and Comey had to expose that conduct, the argument goes.
But, as the OIG report notes, Comey had various options available to disclose Trump’s deeply troubling conduct within established FBI rules: he could have provided the information within the chain of command at the Justice Department, to the OIG, or to Congress. Comey even could have gone directly to the media, taking care not to reveal sensitive information, the OIG report notes. Instead, he gave sensitive information to a friend (outside the Justice Department) to leak it to the media, which Comey had to have known was against established Justice Department and FBI rules.
The OIG report convincingly rejects Comey’s explanation that he felt compelled by some higher, unstated moral duty, concluding that “were current or former FBI employees to follow (Comey’s) example and disclose sensitive information in service of their own strongly held personal convictions, the FBI would be unable to dispatch its law enforcement duties properly.” Yes, Trump put Comey in a tough spot. But Comey owed a duty to the FBI to react within the established rules. “Rule of law” does not mean “break the rules as you wish, so long as you feel deeply about the issue”; it means “do the best you can within established laws and procedures.”
Gregory (Missouri): You say that nothing in the OIG report vindicates Trump, but why would Trump need to be vindicated or exonerated by this report? It appears Trump was being set up.
The OIG report lends no support at all to the notion that Trump had been vindicated or was being “set up.” Trump tried to obstruct justice and Comey mishandled his documentation of those efforts. Both are true.
Yes, Comey broke the FBI rules in how he handled and disseminated memos about his conversations with Trump. But the OIG report says nothing whatsoever about Trump’s actual conduct as described in those memos. The report does not, for example, conclude that Trump did not make the improper requests of Comey, or that Comey’s account of Trump’s obstructive conduct was inaccurate. In fact, Special Counsel Robert Mueller credited Comey’s account of Trump’s efforts to shut down the Flynn investigation and the Russia investigation more broadly.
Comey improperly handled his memos. But that does not cancel out or even mitigate the fact that Trump’s conduct, as described in those memos, violated the Justice Department’s independence and likely constituted criminal obstruction of justice. Both Comey and Trump did wrong, but Trump’s misconduct was orders of magnitude more serious.
Get our free weekly newsletter
Steven (New Jersey): Is it true that if Congress brings an impeachment case to the Senate, and the Senate delivers a “not guilty” verdict, then upon leaving office, Trump cannot be prosecuted criminally, due to double jeopardy?
No, that is not true – although House Speaker Nancy Pelosi suggested it is true when she reportedly told House Democrats, “I don’t want to see [Trump] impeached. I want to see him in prison.”
In fact, impeachment and criminal prosecution are two entirely distinct processes, serving different purposes. Impeachment is a political process prescribed by the Constitution to remove the president or other federal official from office, separate and apart from criminal charges. A president can be impeached by the House, convicted by the Senate, but then never charged criminally. Conversely, a president can be impeached by the House, acquitted (found not guilty) by the Senate, and then later indicted after leaving office. Either way, double jeopardy would not prevent prosecution, because impeachment is not a criminal process, and hence does not qualify as a “first” jeopardy, so to speak.
Three questions to watch this week:
1.) Will we see the DOJ Inspector General’s report on the origins of the Russia investigation?
2.) Will we see new charges against Jeffrey Epstein’s co-conspirators?
3.) Will Congressional hearings on gun safety lead to new legislation?