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Author: Sheldon Burshtein
ISBN: 978-1-988824-61-1 (Trade Paperback)
Page Count: 796
Publication Date: September 1, 2020
Regular Price: $49.95 (Paperback)
Excerpt: Preface and Chapter 12: The Rule of Law [footnotes omitted]
Writing about the presidency of Donald J. Trump is like building a sandcastle too close to the waves. Every few minutes, a powerful force interrupts. In the case of President Trump, the force is unlike any that we have witnessed. In the years since he announced his candidacy, and during his presidency, President Trump challenged or ignored almost every presidential convention. One of his most important tools has been Twitter.
This work had its origins as a section in my six-volume treatise on social media law. However, the work grew into a larger section, and then a draft new chapter. And, almost every time President Trump touched his phone, it kept growing – or, more accurately, was enlarged by his Tweets and the resulting law – until colleagues and friends said that the work should stand on its own as a window into the Trump presidency from a different perspective than many other books. How could I resist the temptation of addressing the legal issues posed by the Tweets of a “very stable genius” with “great and unmatched wisdom” who is the most powerful person in the world?
The book is a topic-by-topic discussion of the legal issues, laws and court decisions that flow from President Trump’s Tweets. But it also tells the story, often through his own words and those of the courts, of President Trump’s character and his profound impact on the Presidency, the law and America.
President Trump’s unique use of Twitter is, of itself, worthy of analysis. The President’s Tweets exemplify and magnify the numerous legal issues that can arise from Tweets by both a government official and a private citizen. The role of Tweets, as a presidential medium and as a basis for, and evidence in, lawsuits is also considered. A body of law relating to the Tweets of President Trump and those in his orbit has steadily developed and continues to build. Some aspects of this law are limited to the presidency or the United States government more broadly, while others are more broadly applicable. In either case, the interaction of the President, Twitter and the law is deserving of consideration by those with an interest in law, politics or their intersection.
The book addresses President Trump’s attitudes, statements, actions and battles as they relate to his businesses, women, the media, his opponents, elections, the rule of law, law enforcement, the judiciary, violence, race, abuse of power and the transition of power. The policies of the Trump administration, including those on diplomacy, trade, business, the military, the environment, healthcare, gun control and immigration, are also considered. President Trump’s passing relationship with the truth and his practise of cyberbullying are continuing threads. The President’s reaction to his impeachment and response to the Coronavirus pandemic are also treated.
I have attempted to balance clarity for lay readers with professional content for attorneys. Not all the Tweets addressed in this book, or even all the chapters, have legal significance. In some cases, statements made otherwise than in a Tweet are referenced. The content is current to the end of April 2020. As the first term of the Trump presidency is not yet complete – thousands of Tweets are yet to come, pending court cases will be decided, and new legal issues and lawsuits will emerge – this work cannot in any way be viewed as complete.
The comments in this book are exclusively those of the author and are not the views of the firm or any of the firm’s clients. Hopefully, this book answers the question asked by many in my circle: “If you are retired, why are you still working so hard?”
— Sheldon Burshtein
Chapter 12: Rule of Law
“…U.S.A. Constitution [is] a weak document written by fools in wigs. Very boring…but only Trump is brave enough to declare the US Con. is NO LONGER CANON!”
—Donald J. Trump, @realDonaldTrump, January 27, 2019
President Trump has criticized numerous laws and procedural rules. One ethics organization noted “that the Trump administration disregards ethics norms and the rule of law.” This chapter discusses the attacks on the rule of law by the President and some in his orbit, including:
(i) the rule of law;
(ii) criticisms of laws by the President;
(iii) The Hatch Act;
(iv) other examples of violations;
(v) military law; and
12.2 Rule of Law
The President of the United States takes an oath to preserve, protect and defend the Constitution. The Constitution requires the President to “take Care that the Laws be faithfully executed.” The rule of law, which is what distinguishes a democracy from a dictatorship. Some argue that President Trump has violated all of them. In Tweets and other statements, President Trump has consistently evidenced a disdain for the rule of law.
One principle of the rule of law is that no person, including the President, is above the law. President Trump has taken positions in Tweets and otherwise that the President is above the law, such as claiming in multiple Tweets that President Trump has the “absolute right” to do things, including pardoning himself for a criminal offence. A second principle is that a President cannot prosecute political opponents or critics. President Trump has, in Tweets, threatened to prosecute opponents and critics. For example, the President challenged the Attorney General to investigate individuals, including his prior and current political opponents, whom President Trump considers to be his enemies.
A third principle of the rule of law is that a President must be respectful of the judiciary. President Trump has regularly criticized the judicial system in his Tweets. A fourth principle of the rule of law is due process. The President has also evinced an intention to ignore due process, for example advocating in a Tweetstorm the deportation of immigrants who claim asylum “immediately, with no Judges or Court Cases.” This policy was partially implemented in a regulation by the Trump Administration. President Trump is reported to have orally instructed Customs and Border Patrol (the “CBP”) officers to break the law by prohibiting migrants from entering the United States and, if faced with a judicial order, to say “[s]orry judge, I can’t do that.”
President Trump said that the military “won’t refuse” to execute an illegal order of the President. President Trump announced that the military would kill not only Islamic State (the “ISIS”) terrorists but would also “take out their families,” even though the Geneva Convention mandates humane treatment for people who take no active part in hostilities. The consequence is that in 2020, for the first time ever, the United States fell out of the top echelon of countries in an index for adherence to the rule of law.
12.3 Criticisms by President
Despite the clear obligation of a President to defend the Constitution, President Trump has attacked it, for example saying in a Tweet that the:
…U.S.A. Constitution [is] a weak document written by fools in wigs. Very boring…but only Trump is brave enough to declare the US Con. is NO LONGER CANON! (capitalization in original)
The President threatened by Tweet to issue an Executive Order to end the right to United States citizenship on the basis of birth in the United States guaranteed by the Constitution (the “Birthright”) and then criticized the legal experts who said that the Constitutional right could not be repealed without a Constitutional amendment.
President Trump attacked numerous laws by Tweet, such as federal healthcare law, environmental laws and immigration laws as well as Congressional rules. As the President unsuccessfully struggled to repeal the ACA, the President referenced the law as “bad healthcare,” “broken,” “a complete and total disaster,” “dead,” a “disaster,” “failing,” “imploding fast,” “in a death spiral” and “torturing the American People,” among other things. President Trump has also criticized numerous immigration laws and policies. For example, the President attacked the Deferred Action for Childhood Arrivals Program (the DACA”) that protects against deportation of immigrants brought to the United States illegally as minors, by Tweet before the Trump Administration attempted to rescind the DACA. Despite various challenges to the rescission, the DACA Program exists.
President Trump has complained about state laws like California environmental laws, claiming that they cause forest fires to be more devastating. The President has also criticized a veto of a bill by a state governor. President Trump has also interfered with pending legislation by Tweet.
12.4 Hatch Act
An Act to Prevent Pernicious Political Activities, also referred to as the Hatch Act of 1939, prohibits employees in the Executive Branch of the federal government, except the President, Vice-President, and certain designated high-level officials, from using the power or resources of their government positions to engage in some forms of political activity. Reportedly, when warned by the President’s Chief of Staff that bringing cabinet members to a campaign rally could violate ethics rules, President Trump reportedly told top aides that “[the President] is in charge of the Hatch Act,” illustrating President Trump’s belief that the Trump Administration need not abide by the statute.
An ethics organization said that it has never seen as many repeated Hatch Act violations by senior officials as in the Trump Administration in so short a time. The abuse of official positions for political advocacy is widespread, ranging from Tweets from officials’ government accounts using President Trump’s campaign slogan, to diverting official travel to attend events to help Republican candidates. The pattern of blatant violations of the Hatch Act continues even after the Office of Special Counsel (the “OSC”) released more specific guidance for compliance, and reprimanded several Trump Administration officials for engaging in political activity in their official positions that violate the statute, mostly for posting partisan political messages on their Twitter accounts, in some cases multiple times. Complaints have also been filed against others. Ivanka is the subject of a complaint for her partisan political use of Twitter.
The conduct of Counselor to the President, Kellyanne Conway, is indicative of the attitude of the President and the Trump Administration to the rule of law. Conway was twice reprimanded for violating the Hatch Act, and received ethics counseling over her use of her official position to promote Ivanka’s now-defunct clothing line. Despite these decisions, Conway is alleged to have violated the statute at least 50 times in the first nine months of 2019 alone. Conway’s repeated violations were so egregious that the OSC issued a scathing report detailing the violations and took the unprecedented step of recommending that Conway be removed from federal service. When asked about the OSC report, Conway responded “[i]f you’re trying to silence me through the Hatch Act, it’s not going to work…Let me know when the jail sentence starts.”
No action was taken by the Trump Administration in response to the recommendation. In fact, President Trump supported Conway’s decision to ignore a request from Congress to testify about the violations. The House then issued a subpoena to Conway. Only three days after the OSC recommended that Conway be removed, Ivanka posted a Tweet about the Trump 2020 Campaign, in violation of the Hatch Act. The ethics organization mentioned above filed a lawsuit against the OSC, alleging that the OSC failed to file complaints against violations of the Hatch Act by Conway and others in the Trump Administration.
A group of lawyers requested the Attorney General to appoint a Special Counsel to investigate President Trump for an alleged violation of the Hatch Act by allegedly commanding a federal employee to engage in political activity with an approaching election by gratuitously placing the President’s signature on the memo line of tens of millions of United States Treasury checks disbursed to eligible citizens under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (the “CARES Act”). The CARES Act does not except President or Vice President, unlike other Hatch Act provisions.
The President used @realDonaldTrump to call a new book by his son a “great new book that [the President] highly recommend[ed] for ALL to read” and to “[g]o order it today!” That kind of promotional Tweet would be a violation of ethics rules if it had come from any federal employee other than the President.
12.5 Other Examples
A few other examples illustrate the disdain for the rule of law by President Trump and other senior members of the Trump Administration. The President purported to order American companies to immediately start looking for an alternative to China, using “hereby ordered” language in a Tweet, later claiming by Tweet that the President has the “absolute right” to make the order. By Tweet, President Trump also ordered all carriers, including FedEx, Amazon, UPS and the USPS, “to search for and refuse all deliveries” of fentanyl from China. Some CBP officers declined to obey court orders issued in response to the President’s Muslim-focused travel ban executive order (the “Travel Ban”). A cabinet member has been held in contempt of a court order.
After Congress appropriated almost $400 million for security assistance to Ukraine as part of the Ukraine Security Assistance Initiative (the “USAI”), the withholding by the Office of Budget and Management (the “OMB”) of amounts was held by the GAO to be a violation of the Congressional Budget and Impoundment Control Act of 1974 (the “ICA”) The GAO said that faithful execution of the law does not permit the President to substitute the President’s own policy priorities for those that Congress has enacted into law. The events relating to the withholding of these funds were the basis of the Impeachment Inquiry and the Impeachment Trial of President Trump. The President immediately posted a Tweet saying that “[i]t’s exactly the opposite. The Constitution does not allow Congress to substitute its own priorities for the foreign policies of the President.”
President Trump wants to eliminate the Foreign Corrupt Practices Act (the “FCPA”), which prohibits United States companies from bribing foreign officials to obtain or retain business, because it is a “horrible rule” and it is “so unfair” that American companies cannot bribe foreign officials. The FCPA, which was enacted in 1977 and has been the subject of increased enforcement by the DOJ and the Securities and Exchange Commission (the “SEC”) for about the last 15 years, has become a major factor in corporate decision-making about operations abroad. Although only Congress can repeal or amend legislation, the President instructed the drafting of an executive order to repeal the law.
Immediately after signing the CARES Act into law, the President released a statement that the President Trump intends to handle oversight and will disregard the statutory provisions that provide for Congressional oversight of the payments made pursuant to the law.
12.5.1 Department of Justice
President Trump has used the DOJ as a key tool in the war on the rule of law. One example is the President’s attack on the ACA. In a suit by about 20 states with Republican governors that seeks to invalidate the statute, including the prohibition against refusing to cover people with pre-existing conditions, the DOJ has disregarded a longstanding bipartisan commitment to defend federal statutes enacted by Congress whenever a non-frivolous defense can be made by indicating that the DOJ would not defend the statute. The position of the DOJ provoked three of its lawyers on the case to withdraw. A group of Democratic-led states argue in favor of the law. The suit is discussed in detail in Section 26.2.2.
Another example is immigration. After an appellate court reversed a decision of the Board of Immigration Appeals (the “BIA”), which reversed an immigration judge, the appellate court effectively said that the BIA acted in contempt of the Court’s order at the urging of the Attorney General:
What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary [of the Department of Health and Human Services (the “DHHS”)] has the sole power to issue U visas and therefore should have the sole power to decide whether to waive inadmissibility. The Board did not rely on any statute, regulation, or reorganization plan…In sum, the Board flatly refused to implement our decision.
We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that [the immigrant applicant] has not asked us to hold them in contempt with all the consequences that possibility entails.
The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the latter. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government…Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.
…The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistaken – though it has been followed… But they are not free to disregard our mandate in the very case making the decision.
12.5.2 Other Departments
Other Departments have taken a cue from the President. For example, the Secretary of Education ordered a freeze on the application of rules that provide relief to students against the enforcement of debt incurred to attend private colleges who were misled or defrauded by private colleges of those rules to permit enforcement of debt collection. In one case, the Secretary was threatened with the possibility of imprisonment after a judge deemed that she was violating a court order for continuing to collect repayments of debts from students at a defunct bankrupt school after a court order prohibited collection.
In a contempt motion, the Secretary and the DOEd were fined. The Court said that it was “really disturbed” by what it said was a lack of action by the Trump Administration in trying to comply with the order. The Court said that “at best, it was gross negligence” and “at worst, intentional flouting of the order.”As a result, both Houses passed a resolution to overturn the Secretary’s rule but the President was expected to veto the resolution. The Secretary settled another similar action. The Secretary proposed a rule to reverse the student relief protection.
The Government Accountability Office (the “GAO”) is investigating the Secretary of Transportation for assisting the application of, and delivering a major government contract to, a business in the state in which her husband, the Senate Majority Leader, is running for re-election.
12.6 Military Law
President Trump’s criticism and disregard of laws relating to the military and war are discussed in Section 23.2. The President’s interference in a court martial is addressed in Section 13.2.2.
The Constitution vests in a President the “power to grant Reprieves and Pardons for Offenses against the United States.”A pardon is an act of grace from the power entrusted to the President by the Constitution to execute the laws. The pardon power is unlimited. The power does not extend to state offences. Congress can neither limit the effect of a President’s pardon nor exclude from its exercise any class of offenders. The only appropriate remedy for the abuse by a President of the pardon power is impeachment. A pardon may be issued before an individual is convicted; for example, President Richard Nixon was pardoned by President Gerald Ford without a conviction. President Trump has said that “the power to pardon is a beautiful thing.” The President been said to be “infatuated” and “obsessed” with the pardon power.
The Attorney General is obligated to review each petition for a pardon. For more than a century, the Attorney General delegated this obligation to the Office of the Pardon Attorney (the “OPA”) in the DOJ to serve as the key advisor on clemency. The OPA applies a series of documented standards in considering a petition for a pardon. However, President Trump has used and offered political pardons in a non-conventional way. The President has bypassed the well-established advisory process of the OPA for supporting a President’s consideration of pardons. Instead, in 2019, President Trump set up his Clemency Task Force (the “CTF”) headed by Kushner to vet petitions for a pardon. The CTF has also considered the abolition of the OPA A public advocacy group sued the President, Kushner and the Office of the President for the alleged violation of the Federal Advisory Committee Act to obtain records of the CTF that were denied in a request to Kushner.
President Trump has used Twitter to announce pardons and to communicate his views about pardons. It has been said that the President’s pardons have been granted for political purposes. For example, President Trump announced that pardons to a former state governor and a television personality were under consideration. The President refuted by Tweet a report that President Trump would pardon government officials if they break the law to expedite the building of a wall at the Southern Border (the “Wall”) by ignoring contracting procedures and environmental requirements. The President also denied the offer of a pardon through a former Congressman to Wikileaks founder Julian Assange in exchange for Assange’s denial of any involvement in the DNC leak of emails, as revealed by Assange’s lawyer in a British court proceeding. The House Judiciary Committee issued a subpoena to the DHS for documents that could shed light on the alleged offer of pardons.
Most of the pardons granted by President Trump have been to well-connected offenders who had not even filed petitions with the OPA or, if they did, did not satisfy the requirements. For example, President Trump pardoned a conservative author of books targeting former Presidents Clinton and Obama after the author pleaded guilty to making illegal campaign contributions. President Trump also pardoned a media mogul who was convicted of embezzlement and obstruction of justice after he authored a book supporting the President. President Trump granted a pardon to a man sentenced to 27 years for money laundering, whose advocates were Kushner and one of the President’s counsel.
President Trump issued a slew of pardons to high-profile individuals who are connected to friends or donors of the President and who had been convicted of bribery, corruption, securities and tax fraud, obstruction and lying offenses, such as the former Governor of Illinois who tried to sell the vacant federal Senate seat that Barack Obama gave up to run for the Presidency. The President complained that the Governor “paid a big price” because the seat was not sold; the Governor was arrested before any transaction could be consummated.
To emphasize President Trump’s policies on immigration, the President pardoned police sherrif Joe Arpaio for criminal contempt of court after Arpaio was convicted of disobeying a court order to stop racial profiling by continuing to detain individuals only because they were suspected of being in the United States illegally. Arpaio was one of the first people to endorse Mr. Trump during the 2016 Campaign. A number of law professors described that pardon as troubling and unusual and as undermining the rule of law. The judge who found Arpaio guilty did not vacate the conviction, ruling that a pardon eliminates the punishment but not the crime. That decision was affirmed on appeal. Arpaio sued multiple broadcasters and publishers for alleged defamation in stories about the events. In one suit, Arpaio unsuccessfully sued publishers against whom he had failed in an earlier suit.
President Trump pardoned a soldier who was convicted of murder in a war zone. The President has also strongly considered pardoning a veteran who was found guilty of murder while a contractor in Iraq.
President Trump ignored advice from top DOD officials to pardon three other service members, two of whom were convicted, and one of whom had not yet been tried, for war crimes. The President restored the rank of one of them, a Navy SEAL, who was acquitted of murdering civilians but was convicted of posing with a corpse. President Trump had earlier intervened to cause the SEAL to be moved to more comfortable confinement. The SEAL’s counsel are friends of President Trump and a Fox News commentator actively advocated for the SEAL. In response to criticism, the President posted a Tweet denying that the Navy would strip his status as a SEAL.
After President Trump reversed the SEAL’s demotion, the military launched a formal review. The Director of the Navy suggested to the White House that the SEAL be allowed to keep his status in exchange for allowing the review to proceed. However, the Director was forced to resign because he could not, in good conscience, obey the President’s order. The Secretary of Defense said that he acted under an order from the President in requesting the Director’s resignation. The White House then said that it would not intervene in the review.
These pardons were seen by many in the military as an erosion of the rule of law in the military, evidencing a sign of disregard for the decisions of military juries and, in the case of the pardon issued before a trial, the judicial process itself. Where the United States Navy awarded a medal of achievement to military prosecutors for their work in one of the convictions, the President announced by Tweet an order to revoke the awards.
Many expect President Trump to grant pardons to his close allies who have been convicted, particularly for offenses relating to lying under oath or to investigators or other obstruction of justice in the Mueller Investigation or the Impeachment Inquiry. For example, the President posted a Tweet that he is considering a pardon to the convicted former NSA in the Trump Administration.
With the number of investigations, potential criminal charges and other legal issues that President Trump faces, the President has repeatedly claimed in Tweets and otherwise that President Trump has “the absolute right to PARDON” himself. In one Tweet, the President wrote:
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? (emphasis added by the author).
This issue of a self-pardon has not yet been addressed by a court. It is even unclear as to whether Congress may enact legislation governing pardons. Some argue that a President cannot pardon himself or herself because it is a fundamental rule of justice that one cannot be a judge in one’s own case. Others argue that there is no language in the pardon power that limits who may or may not be the subject of a pardon. It has been suggested that the pardon power could not be limited by the courts but that the only appropriate remedy for its abuse would be impeachment. The state of New York introduced a bill that would allow state prosecutors to institute proceedings against individuals who receive a pardon from the President of the United States.