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 with Ana Cabrera” at 5:40 p.m. ET Sundays.
Of all the norms – and arguably laws – that President Donald Trump has trampled during his time in office, few have done more damage than his habitual politicization of the Justice Department. Trump has made clear time and again that he views the Justice Department not as a beacon of truth and independence, but rather as a dedicated hit squad, tasked with carrying out his fleeting political whims and taking vengeance on his personal and political enemies.
As recently as Monday, Trump bizarrely exhorted the House Judiciary Committee to investigate former President Barack Obama’s book deal and “all the deals made by the Dems in Congress” – citing no violation of any law by the suggested targets (who happen to be his political adversaries).
Trump’s reaction to new sexual assault allegations against Supreme Court Justice Brett Kavanaugh, reported by the New York Times, sets a new low. (CNN is not reporting the details of the story, because it has not been able to independently verify them yet.) By beseeching the Justice Department to “rescue” Kavanaugh, Trump promotes an ignorant and dangerous view of what the Justice Department is, and is not, about. Meanwhile, Kavanaugh has always maintained his innocence, and a Supreme Court spokeswoman said Kavanaugh had no comment on the new allegation against the justice.
It is not clear what exactly Trump has in mind, but as a Justice Department alum, I know this: the Justice Department does not “rescue” people who have been repeatedly accused of sexual assault. Nor should the Justice Department throw its enormous power into partisan battles to settle a political score. And it is anathema to the Justice Department’s core mission to suggest that it use its breathtaking might to silence the media or to intimidate victims and witnesses who might have credible evidence relevant to an allegation.
The Justice Department’s highest function is the discovery of truth, without fear or favor to politics or power dynamics. In Kavanaugh’s case, that core truth-finding function may have been badly compromised from the start. Senator Chris Coons reportedly sent a letter – now obtained by CNN – to the FBI during its 2018 investigation of alleged sexual misconduct, urging the FBI to follow up with one particular alleged witness “who had key information about alleged misconduct by the nominee while at Yale,” according to CNN’s reporting.
According to The New York Times, that witness was never contacted, though an aide familiar with the letter told CNN that the FBI acknowledged receipt of Coons’ letter at the time, but the senator never heard more beyond that. And CNN has reported that the FBI took cues on its investigation from the White House, which – sources told CNN – directed the FBI to keep the investigation “as narrow as possible.”
Meanwhile, in October 2018, after Christine Blasey Ford testified and the FBI investigation was complete, Senate Judiciary Committee Chair Charles Grassley crowed in bold font on his webpage that “there is no corroboration of the allegations” of sexual assault against Kavanaugh. And a former Grassley staffer defended the truncated investigation in The Washington Post this weekend, claiming his office never heard from a man now raising a new allegation, and it would not have mattered if they did. Here’s a little something I picked up during my 14 years as a prosecutor: you’ll never find corroboration if you intentionally try not to look for it.
Kavanaugh almost certainly is not going anywhere (see below for more on this). He likely will sit on the Supreme Court for decades to come, certainly for as long as he wishes. But Kavanaugh’s deeply flawed confirmation process should stand as a reminder of the danger of turning the Justice Department, long fearless and proudly independent, into an institutional political operative.
Now, your questions:
Hunter, Minnesota: What specific steps can be taken to force the removal or impeachment of Kavanaugh?
Under our Constitution, all federal judges “shall hold their offices during good behavior” – meaning that a federal judge’s term can end in only three ways: the judge’s death, resignation or impeachment.
Indeed, although impeachment is commonly associated with presidents, other federal officials including judges can also be impeached. The requirements are the same for judges as for presidents: a majority vote to impeach in the House followed by a two-thirds vote in the Senate for conviction and removal. Fifteen federal judges have been impeached in US history, most recently in 2010 when district court Judge G. Thomas Porteous was impeached by the House and convicted in the Senate for bribery and perjury.
Kavanaugh was confirmed by the Senate in October 2018 by a 50-48 vote, including 49 Republican votes for confirmation. That means that even if the Democratic-majority House votes to impeach Kavanaugh, at least 19 Senators who voted to confirm him last year must change their minds and vote to convict and remove him now. The odds of that happening are infinitesimal.
That said, there are important issues that Congress can and should explore about Kavanaugh’s confirmation process and the investigation of various sexual assault allegations. Most importantly: who made the decision to limit the FBI’s investigation, and why?
John, California: Does the House Judiciary Committee’s recent resolution give the committee any additional legal authority to compel witnesses and evidence?
On a surface level, the House Judiciary Committee’s resolution establishes procedures for an impeachment inquiry. And the very existence of the resolution itself should strengthen the committee’s legal hand in court battles over disputed witnesses (including former White House counsel Don McGahn) and other evidence. For example, in the ongoing court battle over grand jury materials from special counsel Robert Mueller’s investigation, House Democrats must establish that they need the evidence pursuant to a “judicial proceeding;” now Democrats can point to their impeachment inquiry to satisfy that legal requirement.
The Trump administration, however, has turned House Democrats’ own public indecisiveness against them. In the Mueller grand jury case, the Justice Department has argued that the impeachment effort remains “hypothetical,” citing in support of its argument House Speaker Nancy Pelosi’s public statements that the investigation is not a true impeachment proceeding and that Democrats recently were “nowhere close” to such a move.
So, while the Judiciary Committee’s impeachment inquiry resolution could and should help its cause in legal proceedings, the lack of a consistent, coordinated public message could blunt any impact, and might even ultimately undermine the efforts of House Democrats to compel necessary witnesses and evidence.
William, Virginia: What does it mean when a judge finds that a person does not have “standing” to bring a lawsuit?
“Standing” is the fundamental notion in our legal system that a person or entity can bring a lawsuit only if it holds an actual, direct interest in a dispute. In other words, people cannot sue simply because they have some academic interest in a case or are displeased with something that is happening in public life. Rather, a plaintiff must be able to show what the law calls an “injury in fact” – for example, some physical injury, financial loss or contractual violation.
Several lawsuits challenging the Trump administration’s actions have stumbled over the standing hurdle. For example, a federal Court of Appeals in Washington DC recently dismissed an emoluments lawsuit brought by several state attorneys general who argued that hotels in their states lost business to the Trump International Hotel because foreign government officials and other state leaders choose to stay there to appease the President. The court found this argument too attenuated, and the alleged financial harm too far removed from the attorney generals who brought the suit, to satisfy the standing requirement.
But a different federal Court of Appeals based in New York last week reinstated a separate emoluments lawsuit brought by a private ethics organization and a group of restaurant and hotel owners, which previously had been dismissed for lack of standing. This court found that the injury suffered directly by the hotel and restaurant owners – loss of business to a Trump-owned hotel – was direct and concrete enough to sustain the lawsuit.
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There is some, but not much, daylight between the Washington DC and New York decisions. There is a legally significant difference between attorneys general (who cannot allege any direct harm to them) and restaurant and hotel owners (who can). But it also could be that the two court of appeals decisions cannot be reconciled – after all, the job of state attorneys general is to protect and if necessary sue on behalf of the citizens of their states, so what’s the difference between a restaurant owner suing or an attorney general suing on his behalf? If so, then the cases could wind up before the ultimate arbiter: the US Supreme Court.
Three questions to watch:
1) When former Trump campaign chair Corey Lewandowski testifies in Congress on Tuesday, will he offer firsthand evidence of obstruction of justice by Trump or will he expose Mueller’s investigation as a “witch hunt,” as he has vowed to do?
2) Will we see the Justice Department Inspector General’s report on the origins of the Russia investigation, which reportedly is in the final phases of internal review?
3) Will the National Football League take action towards Patriots wide receiver Antonio Brown after meeting this week with a woman who has accused Brown of sexual assault? (Brown has denied the allegations.)