tag:theconversation.com,2011:/ca/topics/russia-investigation-40039/articlesRussia investigation – The Conversation2018-07-17T10:45:59Ztag:theconversation.com,2011:article/999972018-07-17T10:45:59Z2018-07-17T10:45:59ZIf the 12 indicted Russians never face trial in the US, can anything be gained?<figure><img src="https://images.theconversation.com/files/227888/original/file-20180716-44097-1lmyd2k.jpg?ixlib=rb-1.1.0&rect=82%2C23%2C2693%2C1652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Deputy Attorney General Rod Rosenstein announcing the indictments</span> <span class="attribution"><span class="source">AP/Evan Vucci</span></span></figcaption></figure><p>During the Cold War, the Soviet Union and the United States regularly exchanged accusations of espionage. The prototypical image of Cold War spies is etched in the minds of anyone who lived through that period or watched its movies – trenchcoat-wearing, <a href="http://toonopedia.com/spyvsspy.htm">“Spy vs. Spy”</a> caricatures exchanging packages in dark alleys.</p>
<p>Modern-day espionage has a different image. Instead of a grizzled Cold Warrior, we picture millennials behind a computer screen hacking <a href="https://www.federaltimes.com/civilian/2017/09/22/sec-under-fire-for-being-hacked-despite-warnings-on-security/">government agencies</a>, <a href="https://www.nbcnews.com/politics/elections/u-s-intel-russia-compromised-seven-states-prior-2016-election-n850296">state election systems</a>, <a href="https://www.americandefense.com/defense-contractors-face-aggressive-ransomware-attacks/">military contractors</a>, <a href="https://www.infosecurity-magazine.com/blogs/top-10-worst-social-media-cyber/">social network behemoths</a> and – as <a href="https://d3i6fh83elv35t.cloudfront.net/static/2018/07/Muellerindictment.pdf">alleged</a> last week – major political parties. </p>
<p>On Friday, the <a href="https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-remarks-announcing-indictment-twelve">Department of Justice announced the indictments</a> of 12 Russian nationals for hacking into emails and servers of the Democratic National Committee, party functionaries and state election officials as part of the investigation into interference with the 2016 U.S. presidential election. </p>
<p>As an <a href="https://www.sc.edu/study/colleges_schools/law/faculty_and_staff/directory/samuels_joel.php">expert on U.S.-Russian relations and the international rule of law</a>, I believe the indictments are an important step in the effort to establish what happened in the months leading up to the 2016 U.S. presidential election.</p>
<p>Democracy functions best when efforts to undermine it are brought into the open. Individual facts, when confirmed, become pieces to a puzzle that fit together to tell a story. In the end, even if the 12 Russians are never tried in the United States and this particular story cannot be uncovered fully, the example these indictments set will provide a road map for other countries facing similar challenges to their democracy. </p>
<p>But that positive example may be little solace for Americans who will feel frustrated if the facts behind Russia’s alleged role in election disruption are not fully uncovered.</p>
<h2>Extradition unlikely</h2>
<p>At the time of the alleged crimes, <a href="https://www.nytimes.com/2018/07/13/world/europe/what-is-russian-gru.html">all 12 indicted individuals were employed by the GRU</a>, the main intelligence agency for the Russian military and a Soviet-era remnant. They live and work in Russia.</p>
<p>Despite President Vladimir Putin’s promises to review the situation, no one expects that Russia will extradite the accused individuals. After all, if the indictments are true, those individuals were working <a href="https://d3i6fh83elv35t.cloudfront.net/static/2018/07/Muellerindictment.pdf">for the Russian government when they committed the alleged crimes</a>.</p>
<p>We have seen this very issue arise before, notably after Edward Snowden <a href="https://www.washingtonpost.com/world/snowden-departs-hong-kong-for-a-third-country-government-says/2013/06/23/08e9eff2-dbde-11e2-a9f2-42ee3912ae0e_story.html?utm_term=.29c75f860805&noredirect=on">fled to Moscow in 2013</a>. The United States accused Snowden of espionage and sought his extradition. </p>
<p><a href="https://www.washingtonpost.com/world/europe/russia-denies-that-it-could-have-handed-snowden-to-us-authorities/2013/06/25/3767d7b8-dd7d-11e2-948c-d644453cf169_story.html?utm_term=.192a6775f55b">Russia refused</a>, saying vaguely that Russia did not have grounds to arrest him. </p>
<p>The United States has similarly refused to extradite individuals to Russia, most recently <a href="https://www.npr.org/sections/thetwo-way/2013/08/07/209846990/3-extradition-cases-that-help-explain-u-s-russia-relations">Ilyas Akhmadov, a Chechen rebel leader</a> who was accused by Russia of terrorism and subsequently granted asylum in the United States in 2004. </p>
<p>So the tenuous path to extradition runs in both directions.</p>
<p>Russia is not legally bound to extradite any of the 12 men who were indicted. Indeed, there is some question whether the United States and Russia have an extradition treaty at all. </p>
<p>In 1893, <a href="https://archive.org/stream/jstor-27899926/27899926_djvu.txt">the Senate ratified an extradition treaty with the Emperor of Russia</a>. President Grover Cleveland signed it into law. But by 1974, the U.S. State Department called the treaty “<a href="https://www.nbcnews.com/news/us-news/how-would-u-s-put-indicted-russians-trial-n891581">obsolete</a>.” </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=891&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=891&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=891&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1120&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1120&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1120&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President Grover Cleveland signed an extradition treaty with Russia in 1893.</span>
<span class="attribution"><span class="source">Library of Congress</span></span>
</figcaption>
</figure>
<p>Even if the 1893 treaty is still in force, one provision states that both the United States and Russia “shall not be required to deliver up their own citizens or subjects.” </p>
<p>So the treaty would only apply to foreign nationals located in one of the two states – for example, to Germans in Russia, but not to Russians in Russia. In short, Russia will not be bound by the treaty to turn over any of the men indicted on Friday.</p>
<h2>Getting to the truth</h2>
<p>If the 12 men are unlikely to be extradited by Russia, there won’t be a trial for them in the United States.</p>
<p>What does this mean for establishing the truth of what happened from March through November 2016?</p>
<p>As the indictment itself makes clear, the Mueller investigation has already turned up a number of specific details outlining the source of hacks of both the DNC and accounts of <a href="https://d3i6fh83elv35t.cloudfront.net/static/2018/07/Muellerindictment.pdf">prominent individuals in the Democratic Party</a>. </p>
<p>As someone who has been involved in litigation for more than 20 years, I believe that the public dissemination of the indictments may lead to other sources who can verify the underlying alleged facts. It is in the nature of complex criminal investigations to seek <a href="https://www.vox.com/world/2017/7/24/16008272/robert-mueller-fbi-trump-russia-explained">indictments on many fronts</a> in the hopes of putting pressure on as many individuals as possible, knowing that not all indictments will lead to prosecution. </p>
<p>Failure to secure convictions or pleas will not be a sign of failure of the indictments. Instead, it can be used to put pressure elsewhere in the investigation that may lead to new information about what happened.</p>
<p>There are a couple of additional ways the truth may come out. All 12 of the individuals who were indicted will now face severe travel restrictions. The United States is likely to place them on the <a href="https://www.interpol.int/notice/search/wanted">Interpol wanted list</a>, and they would be subject to arrest and potential extradition if detained outside of Russia.</p>
<p>In a parallel case that involved the hacking of more than 100 million LinkedIn accounts, the <a href="https://www.justice.gov/usao-ndca/pr/yevgeniy-nikulin-appears-us-court-following-extradition">United States successfully secured the extradition of a Russian hacker</a> whom the Russian government had sought to protect from extradition. <a href="https://www.justice.gov/opa/press-release/file/904516/download">Indicted in 2016, that hacker, Yevgeniy Nikulin</a>, was arrested in the Czech Republic on an international arrest warrant and <a href="https://www.justice.gov/usao-ndca/pr/yevgeniy-nikulin-appears-us-court-following-extradition">extradited to the United States</a> in March of this year.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=362&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=362&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=362&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=455&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=455&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=455&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Screenshot from YouTube of Russian hacker Yevgeniy Nikulin.</span>
<span class="attribution"><span class="source">YouTube</span></span>
</figcaption>
</figure>
<p>An additional possibility is that one or more of the indicted individuals will voluntarily appear in the United States out of frustration with the travel restrictions that will now apply to them. Or, if one of them makes the mistake of leaving Russia, that person may end up providing information – either at trial or as part of a plea agreement – after being caught. </p>
<p>Just Monday, in his joint press conference with Donald Trump, Putin hinted at another path to the truth. </p>
<p>Putin noted <a href="https://www.congress.gov/treaty-document/106th-congress/22/document-text">a 1999 treaty between Russia and the United States</a> on mutual legal assistance in criminal matters and offered to allow use of that treaty to question the 12 indicted individuals. </p>
<p>Putin even offered to allow Robert Mueller and his team <a href="https://www.cnbc.com/2018/07/16/putin-asked-special-counsel-to-come-and-work-with-russia-trump-says.html">to come to Russia</a> to be present at the questioning (though not to ask the questions themselves). But Putin expressly noted a condition to such an offer – reciprocity – and specifically the right to do the same for his <a href="https://www.newsweek.com/who-bill-browder-694598">public enemy number one</a> and most vociferous critic, <a href="https://www.bbc.com/news/magazine-25190975">former American citizen Bill Browder</a>. </p>
<p>That type of condition smacks of Cold War politics – expel 10 of our spies, and we will expel 10 of yours. So, while Monday’s press conference may have offered a glimmer of hope, it is likely an illusory one. </p>
<h2>Other paths</h2>
<p>It may prove impossible to secure any of the 12 men indicted on Friday. </p>
<p>As the Cold War period demonstrated, individuals like these men are often <a href="https://www.wired.com/2010/12/russian-sleeper-agent-gets-a-golden-parachute/">hailed as heroes at home</a> and protected until the end of their lives. If that proves to be the case, the 12 indictments may not lead to any new witnesses or information. </p>
<p>In that event, the Mueller investigation will have to pursue other paths to concretely – and publicly – piece together the full story of what happened in the months leading up to the 2016 election. </p>
<p>The effort to find out what really happened during that period may offer important lessons – and prosecutorial models – for other nations. After all, efforts to influence elections are rampant around the globe, including recent reports that suggest large-scale hacking attempts by state-sponsored <a href="https://www.fireeye.com/blog/threat-research/2018/07/chinese-espionage-group-targets-cambodia-ahead-of-elections.html">Chinese hackers aimed at impacting upcoming national elections in Cambodia</a>. </p>
<p>As these new developments unfold, the path being laid out by the United States offers an important light that may guide other nations facing similar threats to their democracy.</p>
<p>But while these efforts may provide guidance for other nations, it is unclear whether Americans will get the clarity and satisfaction they seek – and their democracy needs – from this investigation.</p><img src="https://counter.theconversation.com/content/99997/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joel Samuels does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Will 12 Russians indicted for hacking the 2016 US election ever come to trial? They may not, but the indictments themselves are an important step in the effort to determine the truth of what happened.Joel Samuels, Professor of Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/991692018-07-03T10:33:48Z2018-07-03T10:33:48ZWill Trump’s Supreme Court justices show independence from him?<figure><img src="https://images.theconversation.com/files/225606/original/file-20180701-117430-1v5346z.jpg?ixlib=rb-1.1.0&rect=38%2C23%2C5105%2C2630&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Trump, Neil Gorsuch and wife Marie Louise and Justice Anthony Kennedy</span> <span class="attribution"><span class="source">AP/Alex Brandon</span></span></figcaption></figure><p>Supreme Court Justice Anthony Kennedy’s retirement has sparked much speculation about the court’s future decisions on <a href="https://www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-career.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer">abortion and gay rights</a>.</p>
<p>But what about the retirement’s effects on the future of a possible litigant before the court: President Trump himself? </p>
<p><a href="https://www.npr.org/2018/03/03/590616771/trump-and-the-parameters-of-executive-privilege">Several</a> <a href="https://www.usatoday.com/story/opinion/2018/06/05/executive-privilege-may-trump-all-editorials-debates/35730809/">possible</a> <a href="https://www.vox.com/policy-and-politics/2017/7/21/16007934/trump-president-pardon-himself-limits-power-constitution">constitutional</a> crises are brewing over Robert Mueller’s investigation into Russian interference, collusion and obstruction of justice, some of which – such as the president’s power to pardon himself – could raise legal questions that only the Supreme Court can answer. </p>
<p>An aspect of the president’s personality is relevant here. Trump, to use his own words, “<a href="https://www.politico.com/magazine/story/2018/03/06/donald-trump-loyalty-staff-217227">needs loyalty</a>.” It would not be an insult to say Trump <a href="https://www.ft.com/content/3148a4c6-7c51-11e7-9108-edda0bcbc928">views the world in a transactional way</a>. </p>
<p>So with Kennedy’s retirement, the question becomes, what will President Trump expect of his appointee once he’s the one before the Court?</p>
<h2>One good turn…</h2>
<p>President Trump seems to operate under the <a href="https://www.justsecurity.org/41861/loyalty-quid-pro-quo-defining-themes-comeys-conversations-trump/">quid pro quo</a> principle: I do for you and then you do for me. He may thus view favorable votes by his Supreme Court nominees in any future dispute with Mueller as another perk of his power to nominate them. </p>
<p>Trump certainly views protecting the president as part of <a href="http://time.com/5316410/donald-trump-endorsements-loyalty/">his attorney general’s job description</a>. He has repeatedly expressed anger at Attorney General Jeff Sessions’ decision to recuse himself in the Russia investigation, saying that he <a href="https://www.nytimes.com/2018/01/04/us/politics/trump-sessions-russia-mcgahn.html">expected Sessions to protect him</a>.</p>
<p>There’s reason to think Trump views judicial appointments the same way. </p>
<p>As a candidate, Trump said that a <a href="http://thehill.com/blogs/ballot-box/presidential-races/282172-trump-doubles-down-on-judge-attacks-hes-a-mexican-were">Mexican-American judge ruled against</a> him in a lawsuit because he was planning to build a wall on the Mexican border. His reaction demonstrated a belief that <a href="https://blog.harvardlawreview.org/will-the-federal-judiciary-remain-a-check-and-balance-after-trump/">judges often rule on the basis of bias</a>.</p>
<p>Indeed, it seems the only point at which Judge Neil Gorsuch’s confirmation to the Supreme Court was at risk was when <a href="https://www.washingtonpost.com/politics/trump-reportedly-considered-rescinding-gorsuchs-nomination/2017/12/18/ad2b3b68-e1c7-11e7-9eb6-e3c7ecfb4638_story.html?noredirect=on&utm_term=.89d90d09bb48">he criticized President Trump’s statements about the federal judiciary in a meeting with a senator</a>. When Trump got wind of the critique, he was apparently tempted to pull the nomination altogether out of fears <a href="http://nymag.com/daily/intelligencer/2017/12/trump-nixing-gorsuch-wouldve-been-crazier-than-firing-comey.html">Gorsuch would prove himself disloyal</a>, though he declined to do so. </p>
<p>So the president won’t likely be a proponent of judicial independence. But what about the nominee? How can senators and the American public learn if he or she will put the law above loyalty to the president? </p>
<h2>How to find independence</h2>
<p>One place you shouldn’t look for clues about a nominee’s judicial independence are confirmation hearings. They are, almost every serious person agrees, <a href="https://www.washingtonpost.com/powerpost/plenty-of-drama-is-coming-on-the-next-supreme-court-nominee--but-not-in-senate-questioning/2018/06/29/caa8b3e6-7bbe-11e8-aeee-4d04c8ac6158_story.html?noredirect=on&utm_term=.eedf6631f396">a joke</a>. </p>
<p>Apparently, being a Supreme Court Justice is too good a job for nominees to introduce even a modicum of risk to their chances. That means the nominees don’t say anything whatsoever about what they really think. </p>
<iframe width="100%" height="330" src="https://www.c-span.org/video/standalone/?c4738401/elena-kagan-supreme-court-confirmation-hearing" allowfullscreen="allowfullscreen" frameborder="0"></iframe>
<p>For example, 15 years before her own nomination to the court, Justice Elena Kagan <a href="https://www.nytimes.com/2010/05/12/us/politics/12court.html">argued in a law review article</a> that confirmation hearings were a “farce.” She wrote that “it is an embarrassment that senators do not insist” that a nominee “disclose their views on important legal issues.” </p>
<p>During <a href="https://www.congress.gov/111/chrg/shrg67622/CHRG-111shrg67622.htm">her own Senate hearings</a>, when Sen. Herb Kohl – a Democrat – offered Kagan the chance to disclose her own views, she demurred, declining to answer the very questions she had said should be <a href="https://www.c-span.org/video/?294264-2/kagan-confirmation-hearing-day-2-part-1">put before nominees</a>. </p>
<p>In response to this kabuki dance, Sen. Kohl – a member of the same party as the nominating administration – laughed. He muttered an incredulous “My, oh my,” and moved on to <a href="https://www.congress.gov/111/chrg/shrg67622/CHRG-111shrg67622.htm">antitrust-related</a> questions that didn’t earn any real answers either. Despite Kagan’s previously stated views, once she was a Supreme Court nominee – and had the chance to choose substance over farce – she took farce. Other recent nomination hearings, including <a href="https://www.sfgate.com/politics/article/Alito-offers-few-hints-on-how-he-would-rule-2524302.php">Justice Samuel Alito’s</a> and <a href="https://www.yahoo.com/news/gorsuch-frustrates-democrats-at-confirmation-hearing-015048427.html">Justice Gorsuch’s</a>, were similarly substance-free.</p>
<p>So you should feel free to ignore questions and answers during the confirmation process about whether the nominee will be independent regarding any Trump-related issues that might come to the court. </p>
<p>This question — whether a nominee will be loyal to the president instead of the Constitution — is always asked. Only a nominee who didn’t want the job would say, “Well, I wouldn’t have the job without the president’s nomination. So of course I’m going to consider returning the gift when I get the chance.”</p>
<h2>The law is their master</h2>
<p>A more fruitful place to look is history. And the last time a president was fighting for his job in the Supreme Court, the justices he appointed chose loyalty to the law over loyalty to their nominator.</p>
<p>In 1974, President Nixon’s lawyers were in the <a href="https://constitutioncenter.org/blog/anniversary-of-united-states-v-nixon/">Supreme Court arguing</a> that tape recordings in Nixon’s office relating to the Watergate scandal were protected by executive privilege. </p>
<p>If Nixon had reason to bet on winning, it was because he had appointed four of the nine justices his counsel was arguing to — Justices Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist. In Nixon’s view, he had reason to be confident about his chances. As late as 1973, Nixon was referring to Burger, Blackmun and Powell <a href="http://nixontapeaudio.org/web/035-051.mp3">in a discussion with Burger as “my guys,”</a> calling them “great” and hoping to get yet “another one” on the court after Rehnquist. More disturbingly, they also discussed other cases then-pending before the court.</p>
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<img alt="" src="https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=416&fit=crop&dpr=1 600w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=416&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=416&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=523&fit=crop&dpr=1 754w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=523&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=523&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Warren E. Burger, right, with President Richard Nixon.</span>
<span class="attribution"><span class="source">AP</span></span>
</figcaption>
</figure>
<p><a href="http://www.washingtonpost.com/wp-srv/politics/special/watergate/kleindienst.html">Rehnquist recused himself</a> because he had worked in the Nixon Justice Department just before being confirmed. However, the other three justices voted unanimously, along with their colleagues, just 16 days after oral argument, <a href="https://supreme.justia.com/cases/federal/us/418/683/case.html">holding that Nixon’s tapes were not constitutionally protected</a>. The court found that even though executive privilege was important, allowing Nixon to invoke it to protect his recordings would “cut deeply into the guarantee of due process of law” that it was the court’s “basic function” to protect.</p>
<p><a href="http://www.latimes.com/politics/la-na-pol-gorsuch-confirmed-20170407-story.html">Justice Gorsuch</a>, Trump’s first appointee to the court, has obviously not yet had the opportunity to rule on a claim directly brought by his nominating president, as did Justices Powell or Blackmun or Chief Justice Burger. So we can’t know for sure how he would react in a similar case. At this early date we don’t even know who Gorsuch’s new colleague and fellow Trump nominee will be. </p>
<p>And because justices’ votes are more ideologically reliable in contested cases now, the Supreme Court is a much <a href="https://home.gwu.edu/%7Ebartels/Bartels%20Chapter%20-%20Polarization%20Volume%20FINAL.pdf">more political place than it was in the 1970s</a>. </p>
<p>But a political Supreme Court is not necessarily one that lacks independence. It would be wrong to assume that justices in general, or President Trump’s justices in particular, will eventually rule in his favor if the issue arises. </p>
<p>The Supreme Court has shown in the past that it is better than that. And if the current court winds up being worse, we will all be the worse for it.</p><img src="https://counter.theconversation.com/content/99169/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Enrique Armijo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With Justice Anthony Kennedy’s retirement, President Trump will appoint a second justice to the Supreme Court. Will his nominees be impartial if Trump ends up in the court because of the Russia probe?Enrique Armijo, Associate Professor of Law and Associate Dean of Academic Affairs, Elon UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/972002018-05-25T10:48:47Z2018-05-25T10:48:47ZInformants aren’t spies – they’re essential FBI tools<figure><img src="https://images.theconversation.com/files/220472/original/file-20180525-51102-5g97th.jpg?ixlib=rb-1.1.0&rect=36%2C15%2C3107%2C2153&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The FBI Building in Washington, DC</span> <span class="attribution"><span class="source">AP</span></span></figcaption></figure><p>President <a href="https://twitter.com/realDonaldTrump/status/998256454590193665">Donald Trump tweeted</a> this week that he would order the Department of Justice to investigate whether the FBI, under President Barack Obama, had “infiltrated or surveilled” his presidential campaign “for political purposes.” </p>
<p>Trump was referring to the FBI’s use of an informant to gather information in its probe of Russian interference in the 2016 election. </p>
<p>The president described this informant as a <a href="https://twitter.com/realDonaldTrump/status/999096011174924289">“spy” who was “placed”</a> in his campaign. Trump also framed the entire episode employing a Watergate suffix, calling it “spygate.” He has claimed it could be <a href="https://twitter.com/realDonaldTrump/status/999626347361206274">“one of the biggest political scandals in history</a>.”</p>
<p><a href="https://sites.psu.edu/dougsite/">As an FBI historian</a>, I believe an examination of how the FBI has handled and used informants in the past will shed light on this current controversy.</p>
<h2>Informants get the information</h2>
<p>Informants — an informal term for what the FBI really calls <a href="https://twitter.com/Comey/status/999286616744124416">Confidential Human Sources</a> — are, and always have been, one of the most basic sources of information in FBI and police investigations. As sources of information they are what counterintelligence professionals sometimes call “assets,” not spies.</p>
<p><a href="http://www.politifact.com/truth-o-meter/article/2018/may/22/informants-infiltration-and-spying-some-definition/">The FBI does not “place” or insert informants</a>, as it would do with undercover FBI agents. Informants are people who are already in a position to know or learn information and who willingly cooperate with the FBI. Most often, informants cooperate because they’re concerned with something they’ve seen or heard.</p>
<p>In writing my book <a href="https://kansaspress.ku.edu/978-0-7006-2119-4.html">“Hoover’s War on Gays: Exposing the FBI’s "Sex Deviates” Program,“</a> I <a href="https://cdn.theconversation.com/static_files/files/132/Donald_Webster_Cory_or_Edward_Sagarin_FBI_file.pdf?1527269830">uncovered the identities</a> of many FBI informants. Sometimes, they seek out the FBI and offer their services to an FBI agent handler out of concern for what they’ve seen. Such was the case with <a href="https://www.nytimes.com/1987/06/02/obituaries/alfred-a-gross.html">Dr. Alfred Gross</a>, who had previously worked with the FBI and who in 1952 regarded a gay civil rights group he met as threatening because he viewed them as mentally ill. </p>
<p>Others became informants because they were strong anti-communists during the Cold War, like <a href="http://www.outhistory.org/exhibits/show/hoovers-war-on-gays/essay">Warren Scarberry</a>, an informant I uncovered who believed he saw in the Mattachine Society of Washington the work of Communists. He called and visited the FBI about this. </p>
<p>Still others acted out of a personal sense of patriotism or <a href="https://www.washingtonpost.com/news/the-fix/wp/2018/05/22/4-surprising-facts-about-stefan-halper-the-professor-and-top-secret-informant-on-russia/?utm_term=.6d7e80fd0f2d">were criminal conspirators</a> looking for a deal with prosecutors. Informants run the spectrum of motivations, from selfless to selfish.</p>
<h2>A well-placed informant</h2>
<p>In President Trump’s self-described "spygate,” the FBI’s informant was a retired international affairs professor at Cambridge University named <a href="https://www.washingtonpost.com/politics/who-is-stefan-a-halper-the-fbi-source-who-assisted-the-russia-investigation/2018/05/21/22c46caa-5d42-11e8-9ee3-49d6d4814c4c_story.html?utm_term=.92546391bb2d&wpisrc=nl_fix&wpmm=1">Stefan Halper</a>. Halper had established GOP connections. He worked variously for Republican presidents including Richard Nixon, Gerald Ford, Ronald Reagan and George H.W. Bush. He was also a man who long served the U.S. intelligence community as a source. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/220393/original/file-20180524-51091-dqdvu6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/220393/original/file-20180524-51091-dqdvu6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/220393/original/file-20180524-51091-dqdvu6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/220393/original/file-20180524-51091-dqdvu6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/220393/original/file-20180524-51091-dqdvu6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/220393/original/file-20180524-51091-dqdvu6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/220393/original/file-20180524-51091-dqdvu6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Stefan Halper has been identified as the informant who helped the FBI’s Russia investigation.</span>
<span class="attribution"><span class="source">Wikipedia</span></span>
</figcaption>
</figure>
<p>It’s unsurprising, then, the FBI used Halper in its counterintelligence probe. Most significantly, he happened to have been in a <a href="https://www.washingtonpost.com/politics/secret-fbi-source-for-russia-investigation-met-with-three-trump-advisers-during-campaign/2018/05/18/9778d9f0-5aea-11e8-b656-a5f8c2a9295d_story.html?utm_term=.c92b386fb4fb">unique position where he had connections to Trump campaign officials</a> who all had different types of Russian contacts. These included Trump campaign co-chair Sam Clovis and Trump foreign policy advisers Michael Flynn, Carter Page and George Papadopoulos. </p>
<p>Today’s FBI does not practice political espionage at the behest of presidents or anyone else, and informants are not part of anything like that. There are investigative guidelines and congressional oversight mechanisms to prevent it. That was not always true: During the tenure of FBI Director J. Edgar Hoover (1924-1972), the FBI conducted unchecked <a href="http://www.temple.edu/tempress/titles/2147_reg.html">political surveillance</a> operations. The Hoover FBI also used informants in these efforts to monitor, for example, FDR’s <a href="https://ohiostatepress.org/books/Book%20Pages/Charles%20Edgar.html">foreign policy critics</a>, civil rights leader <a href="https://www.npr.org/templates/story/story.php?storyId=129884068">Martin Luther King Jr.</a>, <a href="https://us.macmillan.com/books/9781250033383">student radicals and the anti-war movement</a>, and to keep tabs on the <a href="https://kansaspress.ku.edu/978-0-7006-2119-4.html">LGBT community</a>.</p>
<h2>Hoover’s abuses forced reforms</h2>
<p>Hoover’s actions were violations of Americans’ civil liberties and the trust placed in law enforcement. Precisely because of these Hoover-era abuses, special investigative regulations were put into place <a href="http://www.politifact.com/truth-o-meter/article/2018/may/22/informants-infiltration-and-spying-some-definition/">about the use of informants</a> in the 1970s. </p>
<p>If an FBI probe is particularly sensitive and potentially involves “<a href="https://www.documentcloud.org/documents/3416775-DIOG-Redactions-Marked-Redacted.html">a greater risk to civil liberties</a>,” then FBI agents are required to seek higher levels of authorization for their use. In the Hoover era, there was little to no oversight in the use of informants, let alone more intrusive investigative techniques. Today’s FBI is not the Hoover FBI.</p>
<p>Yet even during the Hoover years, informants were key to more standard FBI national security investigations. </p>
<p>The FBI captured Russian spy <a href="http://www.bbc.com/news/uk-england-tyne-34870934">Rudolf Abel</a> — who was portrayed in the 2015 Tom Hanks film “Bridge of Spies” — <a href="https://books.google.com/books/about/The_Bureau.html?id=Pnp6oNw13GAC">because an FBI informant</a> within Abel’s circle, named Reino Haynaham, talked. In 1965, the FBI quickly apprehended the murderers of civil rights activist Viola Liuzzo in Alabama <a href="https://yalebooks.yale.edu/book/9780300184136/informant">because it had a paid informant</a> within the Ku Klux Klan, Gary Thomas Rowe Jr.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/220394/original/file-20180524-51135-1fqj1jb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/220394/original/file-20180524-51135-1fqj1jb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=370&fit=crop&dpr=1 600w, https://images.theconversation.com/files/220394/original/file-20180524-51135-1fqj1jb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=370&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/220394/original/file-20180524-51135-1fqj1jb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=370&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/220394/original/file-20180524-51135-1fqj1jb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=464&fit=crop&dpr=1 754w, https://images.theconversation.com/files/220394/original/file-20180524-51135-1fqj1jb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=464&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/220394/original/file-20180524-51135-1fqj1jb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=464&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The FBI captured Russian spy Rudolf Abel with the help of an informant.</span>
<span class="attribution"><span class="source">Wikimedia</span></span>
</figcaption>
</figure>
<p>It is no surprise, then, that FBI officials used a confidential human source in its counterintelligence probe about Russian election meddling. </p>
<p>The informant was in a position to gather information early in the FBI investigation. That basic information undoubtedly was then further developed and enhanced with more traditional documented sources, as is evidenced by the fact that both <a href="https://www.nytimes.com/2017/12/01/us/politics/michael-flynn-guilty-russia-investigation.html">Michael Flynn</a> and <a href="https://www.nbcnews.com/news/us-news/trump-campaign-adviser-george-papadopoulos-pleads-guilty-lying-n815596">George Papadopoulos</a> pleaded guilty and are now cooperating with the Mueller investigation.</p>
<p>What we see in today’s example is less about spying than a glimpse into how FBI national security investigations operate and unfold – and how they can sometimes be politicized.</p><img src="https://counter.theconversation.com/content/97200/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Douglas M. Charles does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An informant gathered information from Trump campaign staffers for the FBI’s Russia probe. An historian writes that informants are one of the most basic ways the FBI and police investigate.Douglas M. Charles, Associate Professor of History, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/911402018-02-03T12:11:56Z2018-02-03T12:11:56ZTrump and Nunes torch tradition of trust between Congress and FBI<figure><img src="https://images.theconversation.com/files/204663/original/file-20180203-19948-pbsfuo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Trump with FBI Director Christopher Wray on Dec. 15, 2017.</span> <span class="attribution"><span class="source">AP Photo/Evan Vucci</span></span></figcaption></figure><p>President Donald Trump’s attacks on the FBI may have reached a climax.</p>
<p>In an apparent attempt to discredit Robert Mueller’s Russia probe, staff of the House Intelligence Committee on behalf of its chair Republican Devin Nunes of California, wrote and on Feb. 2 <a href="https://assets.documentcloud.org/documents/4365340/Read-the-GOP-memo.pdf">released a four-page memo</a> based on confidential information made available to them by the FBI. It outlines alleged improprieties in the FBI’s investigation, specifically the monitoring of Trump’s former campaign adviser Carter Page.</p>
<p>Nunes in 2017 was forced to <a href="https://www.nytimes.com/2017/04/06/us/politics/devin-nunes-house-intelligence-committee-russia.html">step aside</a> from the committee’s Russia investigation because he was seen as taking direction from the Trump White House. </p>
<p>Page was a foreign policy adviser to the Trump campaign and a <a href="https://www.wsj.com/articles/former-trump-aide-carter-page-was-on-u-s-counterintelligence-radar-before-russia-dossier-1517486401?mod=e2tw">person of interest</a> to the FBI beginning in 2013. He became the subject of a Foreign Intelligence Surveillance Act, or FISA, warrant in 2016.</p>
<p>As an <a href="https://sites.psu.edu/dougsite/">FBI historian</a>, I find the congressional effort to discredit the FBI’s investigation startling. Trump’s involvement reminds me of Nixon. Between 1972 and 1973, President Richard Nixon attempted to contain the FBI’s Watergate investigation as it zeroed in on top White House figures.</p>
<h2>Congressional committees and the FBI</h2>
<p>The behavior of congressional Republicans in this matter is unprecedented.</p>
<p>This view is shared even by GOP senators <a href="https://www.azcentral.com/story/news/politics/arizona/2018/02/02/john-mccain-and-jeff-flake-oppose-memos-release-but-other-gop-members-support-move/301178002/">John McCain and Jeff Flake.</a> The FBI has a long history, going back to the J. Edgar Hoover era, of providing congressional committees with sensitive FBI information and assistance – provided they keep that information and relationship confidential.</p>
<p>For example, the FBI <a href="https://kansaspress.ku.edu/978-0-7006-1345-8.html">provided information to</a> the House Un-American Activities Committee, singling out suspected communists and anti-communist witnesses – <a href="https://www.youtube.com/watch?v=saVnq3snkeI">like Ronald Reagan</a>. The FBI cooperated with the <a href="http://epublications.marquette.edu/dissertations/AAI9325678/">Senate Internal Security Subcommittee</a> between 1951 and 1954. And it even provided Sen. Joe McCarthy with information and advice to keep his anti-communist cause alive until he violated Hoover’s rules in 1953 by revealing his relationship with the FBI. </p>
<p>In the years after Hoover, the FBI behaved more properly in sharing sensitive information with Congress. It began restricting itself to sharing information with its congressional oversight committees to keep them abreast of FBI activity and in line with the Justice Department’s investigative guidelines. </p>
<p>In the current Congress, Nunes’ House Intelligence Committee was provided with sensitive FBI information about its Russia probe based on the understanding that the committee would not publicly reveal any of it without first asking the FBI to advise and redact classified information. </p>
<p>The committee didn’t wait for redactions, however, and instead chose to reveal select nuggets of the FBI’s intelligence in its four-page memo. Trump-nominated FBI Director <a href="https://www.washingtonpost.com/politics/trump-fbi-feud-over-classified-memo-erupts-into-open-conflict/2018/01/31/64362038-06c2-11e8-b48c-b07fea957bd5_story.html?utm_term=.e44f22696e70">Christopher Wray</a> publicly spoke out against Trump’s wishes about releasing the memo after he failed to convince the White House to block it. Wray <a href="http://thehill.com/policy/national-security/371636-fbi-warns-it-has-grave-concerns-about-material-omissions-of-fact-in">is concerned</a> the Nunes memo contains “material omissions of fact that fundamentally impact the memo’s accuracy.” </p>
<h2>Nixon asks CIA to stop FBI</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/204664/original/file-20180203-19952-oe95de.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/204664/original/file-20180203-19952-oe95de.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/204664/original/file-20180203-19952-oe95de.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/204664/original/file-20180203-19952-oe95de.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/204664/original/file-20180203-19952-oe95de.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/204664/original/file-20180203-19952-oe95de.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/204664/original/file-20180203-19952-oe95de.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/204664/original/file-20180203-19952-oe95de.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Nixon and Haldeman at the White House, 1969.</span>
<span class="attribution"><span class="source">AP Photo/File</span></span>
</figcaption>
</figure>
<p>While Congress’ behavior in trying to discredit the FBI is unprecedented, President Trump’s interest and efforts in stopping an FBI probe of the White House is not.</p>
<p>In June 1972, <a href="https://www.nixonlibrary.gov/forresearchers/find/tapes/watergate/trial/exhibit_01.pdf">Nixon discussed</a> with his chief of staff, Bob Haldeman, how to use the CIA to stop the FBI’s Watergate probe. The idea was to have the CIA director and deputy director assert that the FBI’s investigation threatened national security. Though he never explained his reasoning, Nixon thought CIA Director Richard Helms owed him and would comply. He also thought it was embarrassing enough to the agency that some of the Watergate burglars were <a href="https://www.politico.com/story/2009/06/watergate-burglars-arrested-june-17-1972-023799">connected to the CIA</a> for Helms to follow through. In the end, the effort failed.</p>
<p>Nixon had selected L. Patrick Gray as FBI director following the death of J. Edgar Hoover, and also <a href="https://www.abc-clio.com/ABC-CLIOCorporate/product.aspx?pc=B3523C">hoped that he</a> could maneuver the FBI away from Watergate. He was Nixon’s man at the FBI. Gray provided Watergate-related documents to White House Counsel John Dean, who monitored the FBI in the cover-up. In 1972, Gray destroyed Watergate-related documents that he had kept concealed for the <a href="https://www.penguinrandomhouse.com/books/225246/richard-nixon-by-john-a-farrell/9780385537353/">previous six months</a>. </p>
<p>Nixon’s Oval Office tapes <a href="https://www.nixonlibrary.gov/forresearchers/find/tapes/watergate/trial/exhibit_01.pdf">confirm his concerns</a>. In June 1972 Chief of Staff Haldeman told Nixon, “The FBI is not under control, because Gray doesn’t exactly know how to control them … their investigation is now leading into some productive areas, because they’ve been able to trace the money.” </p>
<p>After his 1972 re-election and as the Watergate investigation closed in, <a href="https://kansaspress.ku.edu/978-0-7006-2342-6.html">Nixon then said about Gray</a>, “I don’t believe that we oughta have Gray in that job … he’s too close to us.” </p>
<p>Incredibly, <a href="https://millercenter.org/the-presidency/secret-white-house-tapes/758-11">Nixon even pondered the idea</a> (listen at 21 minutes into the tape) of naming Associate FBI Director Mark Felt as FBI director because “he’s a good man” and would be, as Haldeman commented to Nixon, “your guy” who would know how to pull the levers at the FBI.</p>
<p>What Nixon and Haldeman didn’t know was that Felt was busy leaking Watergate information to various reporters, including to The Washington Post’s Bob Woodward and Carl Bernstein as “Deep Throat.” He hoped to undermine Gray and eventually take the top FBI job for himself. This effort backfired, and Nixon had no idea that he had briefly contemplated making Deep Throat his FBI director.</p>
<p>In Nixon’s day, interfering with the FBI happened out of view and behind the scenes.</p>
<p>Today, Trump’s concerns with the FBI’s investigations are blatantly public. He has allies in Congress who share his concerns about the FBI. Nixon had no such congressional committee backing him.</p>
<p>Where this ends, we do not yet know. Given FBI Director Wray’s pushback, will Trump seek a more compliant FBI director in the mold of Gray?</p>
<p>Will he fire Deputy Attorney General Rod Rosenstein? </p>
<p>Current events have the feel of a pending political and Constitutional crisis perhaps not too dissimilar from Watergate in the 1970s.</p><img src="https://counter.theconversation.com/content/91140/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Douglas M. Charles does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The FBI has long fed Congress secret intel. Trump and Nunes’ fight to release classified information may turn this dynamic on its head.Douglas M. Charles, Associate Professor of History, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/857192017-12-19T01:39:07Z2017-12-19T01:39:07ZWhy justice is more important than the rule of law<figure><img src="https://images.theconversation.com/files/199766/original/file-20171218-27557-ichvvx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Special Counsel Robert Mueller.</span> <span class="attribution"><span class="source">AP Photo/J. Scott Applewhite, File</span></span></figcaption></figure><p>The <a href="https://www.bloomberg.com/news/articles/2017-11-01/americans-are-officially-freaking-out">2017 Stress in America survey</a> has confirmed it: Americans are officially freaking out.</p>
<p>The survey, conducted by the Harris Poll, reports that what keeps many Americans up at night is genuine political anxiety. Rather than issues related to their work or families, respondents said they were most worried about the “future of the nation” and the “current social divisiveness.” Almost two-thirds of Americans think the nation is going through “the lowest point” in its history.</p>
<p>As evidence for these unusually dark times, pundits often point to the breakdown of social norms and the disregard for the rule of law. To be sure, these are real problems. Yet, as a scholar and teacher of political theory and literature, I have always been amazed how quickly my students turn to talking about the abstract <a href="https://theconversation.com/is-trumps-definition-of-the-rule-of-law-the-same-as-the-us-constitutions-77598/">rule of law</a>, rather than the concrete realities of <a href="http://www.palgrave.com/gp/book/9781403979865">law enforcement</a> and justice.</p>
<p>Are people perhaps so interested in the rule of law because they fear American society is no longer equal and just?</p>
<h2>Crisis</h2>
<p>Consider the sense of injustice among many Americans that still lingers after the <a href="https://www.penguinrandomhouse.com/books/218631/the-divide-by-matt-taibbi/9780812983630/">financial crisis</a> and <a href="https://www.routledge.com/Understanding-Social-Movements/Martin/p/book/9780415600880">the global bank bailout in 2008</a>. Or, consider that many politicians are incapable of addressing or unwilling to address the concerns facing many people, such as <a href="https://news.harvard.edu/gazette/story/2016/02/money-quality-health-care-longer-life/">inequality, poverty and health care</a>.</p>
<p>This disregard for “justice for all” and the unrest it has caused indicate a profound crisis in the United States. Public officials, it seems, can no longer adequately respond to a series of popular demands. Many people have also lost confidence that this darkness will soon pass, as my colleague George Edmondson and I recently discussed in the introduction to a co-edited book <a href="https://www.dukeupress.edu/sovereignty-in-ruins">“Sovereignty in Ruins: A Politics of Crisis</a>.”</p>
<p>An alternative vision for our society is nowhere in sight. Political observers cannot even agree on vocabulary to describe the bewildering phenomena that confront Western democracies such as <a href="https://link.springer.com/chapter/10.1057/9780230607477_12">terrorism</a>, <a href="https://www.diaphanes.net/titel/twelve-theses-on-populism-5121">populism</a> and the refugee crisis. The current unrest in the global order today has revived ideas about conflict, factionalism and <a href="http://www.sup.org/books/title/?id=25805">civil war</a> – what the ancients called <a href="https://mitpress.mit.edu/books/invention-athens">stasis</a>. They considered it the <a href="https://press.princeton.edu/titles/4559.html">worst calamity</a> that could befall a society, the dissolution of order and values.</p>
<p>But as ancient philosophers, and more modern thinkers like the Founding Fathers, have pointed out: In conflict resides hope and the potential for justice.</p>
<h2>Hope and justice</h2>
<p>The pre-Socratic philosopher Heraclitus once stated, “<a href="https://www.pdf-archive.com/2016/02/26/the-art-and-thought-of-heraclitus/">Conflict is justice</a>.” In this sense, justice emerges from concrete struggles and confrontation. Take, for example, Thomas Jefferson’s list of <a href="https://declaration.fas.harvard.edu/faq/how-many-grievances-are-declaration-independence">27 grievances</a> against the king of England in the Declaration of Independence. It is too early to know if recent movements such as Occupy Wall Street, Black Lives Matter, the Women’s March and the #MeToo campaign will have the same revolutionary force. But they likewise grew out contemporary conflicts that revitalize past struggles for justice.</p>
<p>The idea of conflict as justice was well-known to the ancient Greek philosopher <a href="https://www.hackettpublishing.com/philosophy/complete-works">Plato</a>. Contrary to the one-sided form of rhetoric by which the demagogue swayed the masses, the Socratic philosopher addressed his audience in dialogues. Insights into the question “What is justice?” often emerge during the course of bitter exchanges. In other words, justice is not an object to have, but a difficult journey to undertake.</p>
<p>The Founding Fathers understood that a contentious conversation on justice can prevent tyranny much better than the rule of law. James Madison <a href="http://avalon.law.yale.edu/18th_century/fed51.asp">once asserted</a>: “Ambition must be made to counteract ambition.”</p>
<p>According to <a href="https://www.uncpress.org/book/9780807844755/republics-ancient-and-modern-volume-iii/">Alexander Hamilton</a>, the United States needs economic diversity and a variety of competing interests, parties and religions in order to achieve this justice. In fact, the greater the mixture of opinions and passions in a society, James Madison <a href="http://avalon.law.yale.edu/18th_century/fed10.asp">observed</a>, the more it is “consonant with the public good.”</p>
<p>The robust exchange of ideas makes citizens forge a stronger bond. Like chess players who try to outmaneuver each other for many hours and feel, in that moment, closer to one another than to anyone else in the world. In short, justice consists of a balancing act among contrary powers that are more or less equal in strength.</p>
<h2>Divided we stand</h2>
<p>“United we stand” not despite the many divisions but <a href="https://origins.osu.edu/history-news/god-we-trust-or-e-pluribus-unum-american-founders-preferred-latter-motto">because of them</a>. This is Madison’s novel insight. Not to combat factions, but to redirect them to achieve unexpected outcomes, different from the type of justice each faction advanced by itself. After all, harmony comes out of tension, even discord, like the melody produced by string instruments.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/198801/original/file-20171212-9392-15pew21.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/198801/original/file-20171212-9392-15pew21.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/198801/original/file-20171212-9392-15pew21.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=633&fit=crop&dpr=1 600w, https://images.theconversation.com/files/198801/original/file-20171212-9392-15pew21.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=633&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/198801/original/file-20171212-9392-15pew21.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=633&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/198801/original/file-20171212-9392-15pew21.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=796&fit=crop&dpr=1 754w, https://images.theconversation.com/files/198801/original/file-20171212-9392-15pew21.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=796&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/198801/original/file-20171212-9392-15pew21.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=796&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">‘E pluribus unum.’</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/thumb/5/5b/Greater_coat_of_arms_of_the_United_States.svg/2000px-Greater_coat_of_arms_of_the_United_States.svg.png">U.S. Government</a></span>
</figcaption>
</figure>
<p>By contrast, contemporary American politics, on nearly every issue – whether gun control or immigration – has increasingly fallen within a binary logic. This logic comes from only two camps that are <a href="https://www.nytimes.com/2017/10/06/opinion/guns-soul-of-america.html">locked in a culture war</a>. Americans don’t live in 11 separate nations, as the journalist Colin Woodard <a href="https://www.penguinrandomhouse.com/books/306345/american-nations-by-colin-woodard/9780143122029/">claimed</a>, but only in two. </p>
<p>Economics professor Peter Temin recently <a href="https://mitpress.mit.edu/vanishing">explored this divide</a> in his book on the “dual economy.” He argues that the cultural divide between liberals and conservatives, or between people living rural and urban America, has also become an economic one: between the prosperous and the poor.</p>
<p>Social media has <a href="https://www.penguinrandomhouse.com/books/533937/world-without-mind-by-franklin-foer/9781101981115/">played a role</a> in shaping this divide. It trades an unpolitical vision of consensus – of “sharing,” “liking,” “friends” and “followers” – for genuine interrogation and discovery. Message-testing, data collection and focus-group engineering predict most of our opinions. People are fed only stories they are apt to read and moved to share. A variety of factions are gradually reduced to recognizable social types.</p>
<p>The framers understood the danger of conformism. They argued that the mixing and stirring among a variety of adversaries has an educational effect. It obliges everyone to learn honesty and temperance, and to view the disagreement not as an obstacle to just governance but as its enabling power.</p>
<p>So, contrary to the appeal that Americans must come together to achieve union, Hamilton and Madison advanced an idea that was unheard of before: that divided we stand. The current political problem might not be that the people of the United States are too divided, but that they are not divided enough. There is divisiveness only if there are too few factions.</p>
<p>What can be done? </p>
<p>Have the tenacity and patience to remain in the place of tension. Don’t look for confirmation. Instead, have the courage to sustain conflict, to stand out and be alone. Keep in mind that conflict animates politics and justice. As <a href="http://xroads.virginia.edu/%7EHYPER/WALDEN/walden.html">Henry David Thoreau</a> said, don’t follow the herd. </p>
<p>In other words, <a href="https://www.penguinrandomhouse.com/books/297276/amusing-ourselves-to-death-by-neil-postman/9780143036531/">turn off your devices and unplug</a>. Read books, think for yourself and <a href="https://www.penguinrandomhouse.com/books/558051/on-tyranny-by-timothy-snyder/9780804190114/">write in your own voice</a>, different from anyone else. Create new communities and work with people who want to amplify the growing calls for justice.</p><img src="https://counter.theconversation.com/content/85719/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Klaus Mladek received funding from the NEH, the ACLS and the Humboldt Foundation. </span></em></p>America’s understanding of justice may be compromised, which is a more fundamental issue than enforcing the law.Klaus Mladek, Associate Professor of German Studies and Comparative Literature, Dartmouth CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/885412017-12-04T03:05:12Z2017-12-04T03:05:12ZShould lying to the FBI be a crime?<figure><img src="https://images.theconversation.com/files/197476/original/file-20171204-5378-j6s6zl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former National Security Adviser Michael Flynn, center.</span> <span class="attribution"><span class="source">AP Photo/Andrew Harnik</span></span></figcaption></figure><p>On Dec. 1, Michael Flynn, former national security adviser to President Donald Trump, <a href="https://www.nytimes.com/2017/12/01/us/politics/michael-flynn-guilty-russia-investigation.html?_r=0">pleaded guilty</a> to the charge of lying to the FBI about his contacts and conversations with Russians. </p>
<p>Flynn admitted to violating the federal statute <a href="https://www.law.cornell.edu/uscode/text/18/1001">18 USC Section 1001</a>, which prohibits making “false statements” to government officials. </p>
<p>As someone who teaches a course called Secrets and Lies and has <a href="https://searchworks.stanford.edu/view/11382916">written about</a> how common it is for people to lie in their dealings with the government, I was not surprised to learn either of Flynn’s lies or the government’s response to them. However, I was surprised to read President Trump’s tweet on Saturday apparently acknowledging that he knew Flynn had lied to the FBI and fired him because of it.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"937007006526959618"}"></div></p>
<p>Despite the personal moral objections that most people have to lying, the law under which Flynn was charged by Special Prosecutor Robert Mueller is a <a href="https://repository.jmls.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1069&context=lawreview">controversial one</a>. It applies in a <a href="https://fas.org/sgp/crs/misc/98-808.pdf">sweeping manner</a> to “any matter within the jurisdiction of the executive, legislative, or judicial branch.”</p>
<p>Moreover, unlike the crime of perjury, the false statements statute means that a person can be punished for lying even if he was not under oath in <a href="https://www.law.cornell.edu/uscode/text/18/1001">an official proceeding</a>, and even if he was not warned that lying would be punished. </p>
<p>So, why is it against the law to lie to government officials?</p>
<h2>False statements and the right to remain silent</h2>
<p>American law generally is aggressive in criminalizing lying, in part because it offers citizens an alternative if they fear the consequences of telling the truth to a government official.</p>
<p>That alternative is found in the Fifth Amendment’s protection against compulsory self-incrimination. It affords individuals a right to remain silent and allows them to avoid speaking damaging truths. When it was added to the U.S. Constitution, the Fifth Amendment was partly a <a href="https://books.google.com/books/about/Origins_of_the_Fifth_Amendment.html?id=XLIVAQAAIAAJ">reaction to abuses</a> perpetrated by England’s Courts of Star Chamber, which operated from 1487 to 1681. Those courts were used to suppress opposition to royal policies, and they used torture to exact confessions from the King’s enemies.</p>
<p>It was also a recognition of the natural law principle that no person should be forced to become an instrument of his own demise.</p>
<p>However, as the late Justice Antonin Scalia <a href="https://supreme.justia.com/cases/federal/us/522/398/case.html">once explained</a>, “Neither the text nor the spirit of the Fifth Amendment confers a privilege to lie. ‘[P]roper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely.’” </p>
<p>Flynn did not invoke his Fifth Amendment right to remain silent. He chose to answer the questions posed by the FBI. </p>
<p>While we can never know exactly why he did so, we do know that silence is very <a href="http://press.uchicago.edu/ucp/books/book/chicago/T/bo3627888.html">hard to maintain</a>. This is especially true in the face of a question that might expose one to legal jeopardy. In such a situation, many people feel compelled to speak when they are asked to do so. They want to seem cooperative, or to try to exonerate themselves.</p>
<p>Silence <a href="https://cases.justia.com/california/supreme-court/2014-s202107.pdf?ts=1408035715">accomplishes neither</a> of those goals. Nonetheless, the law requires that if people choose to speak to government officials they must do so truthfully.</p>
<h2>Making lying to the state against the law</h2>
<p>The prohibition of false statements traces its origins to the Civil War, when Congress <a href="https://repository.jmls.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1069&context=lawreview">reacted to</a> a “‘spate of frauds’ submitted by military con artists scamming the United States War Department.” It forbade people in the military from making fraudulent requests for payments from the government. Soon, however, the <a href="http://www.law.msu.edu/king/2008/Avsharian.pdf">law was broadened</a> to include similar requests when made by any person or corporation.</p>
<p>To successfully <a href="https://supreme.justia.com/cases/federal/us/270/339/case.html">prosecute someone</a> for making a false claim, the government had to show that that the accused cheated the government out of money or property. In the 1930s, Congress <a href="https://supreme.justia.com/cases/federal/us/312/86/">removed the requirement</a> that there had to be a resultant financial harm. This constituted a substantial departure from what the legal commentator Giles Burch calls the <a href="http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4688&context=uclrev">traditional view</a> that “police authority does not… include the power to punish suspects who lie.”</p>
<p>Since the 1930s, the statute used against Flynn <a href="https://www.lawfareblog.com/law-lying-perjury-false-statements-and-obstruction">has experienced</a> a “creeping expansion.” As a result, it has become a powerful tool that criminalizes what someone says even in cases, like that of <a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/03/06/AR2007030600648.html">Scooter Libby</a>, longtime aide to former Vice President Dick Cheney, when the government cannot prove any other wrongdoing. </p>
<p>Critics argue that 18 USC Section 1001 now has <a href="http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4688&context=uclrev">too broad</a> a reach. They worry that it gives prosecutors what United States Supreme Court Justice Ruth Bader Ginsburg <a href="https://supreme.justia.com/cases/federal/us/522/398/case.html">once called</a> “extraordinary authority…to manufacture crimes.” Yet despite the expansive use of the false claims statute, American law sometimes has looked the other way when lies are told. Thus prosecutions for perjury have been <a href="https://www.jstor.org/stable/1142605?mag=why-is-perjury-so-rarely-prosecuted&seq=1#page_scan_tab_contents">quite rare</a> and courts have generally <a href="http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4615&context=flr">been reluctant</a> to enforce section 1001.</p>
<p>Moreover, they sometimes <a href="http://caselaw.findlaw.com/il-court-of-appeals/1410085.html">invoked a doctrine</a> called the “exculpatory no” to excuse individuals who falsely denied guilt in response to an investigator’s question. In 1998, the Supreme Court put an end to this practice. As <a href="https://supreme.justia.com/cases/federal/us/522/398/case.html">Justice Scalia explained</a> at the time, “Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function.”</p>
<h2>The harm of Flynn’s lies</h2>
<p>I’d argue that in Flynn’s case, 18 USC Section 1001 was used correctly and to good effect. What Justice Scalia said in his 1998 opinion helps us identify the harm Flynn did. His lies indeed “perverted the function” of the FBI and impeded it from doing what it must do in a nation governed by the rule of law – prevent government officials and those seeking power from subverting our system of government.</p>
<p>The philosopher Immanuel Kant long ago <a href="https://www.amazon.com/Kant-Critique-Practical-Reason-Immanuel/dp/1452801347">noted that</a> lies like Flynn’s threaten the foundations of organized society and “vitiate the source of law itself.” Never has Kant’s insight been more pertinent than it is in the United States today.</p><img src="https://counter.theconversation.com/content/88541/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It hasn’t always been, writes legal expert.Austin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/869722017-11-06T23:12:54Z2017-11-06T23:12:54Z‘DO SOMETHING!’ Trump, Pericles and the art of deflection<figure><img src="https://images.theconversation.com/files/193471/original/file-20171106-1011-11w6hfn.jpg?ixlib=rb-1.1.0&rect=0%2C45%2C4280%2C2806&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A statue of Pericles outside Athens City Hall. Like Trump, Pericles used war to deflect from bad news.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>It nearly goes without saying that war has often been a useful distraction for leaders in trouble. </p>
<p>On the weekend before the world learned that two people in U.S. President Donald Trump’s circle had been indicted — Paul Manafort and Rick Gates — and that a third, George Papadopoulos, had already pleaded guilty and apparently sung like a canary, he tweeted an extraordinary plea: </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"924641278947622913"}"></div></p>
<p>As usual, pundits condemned Trump’s social media comment as, at best, unbecoming of the commander-in-chief and, at worst — by mobilizing a compliant Congress and his legions of Twitter followers — a challenge to the Constitution itself. </p>
<p>We will have to wait to see the extent of the president’s response to the latest developments in Mueller’s Russia investigation, but the classical Athenian democracy provides a troubling parallel of a leader beset by his political enemies and backed into a corner.</p>
<h2>An ancient war hawk</h2>
<p><a href="http://www.history.com/topics/ancient-history/pericles">Pericles</a> is considered by many to be the supreme practitioner of ancient statecraft who broadened the Athenian democracy to include more citizens than ever before and brought Athens to unprecedented heights of influence and glory. </p>
<p>He did, after all, champion a massive building project that included the Parthenon, and his famous <a href="http://hrlibrary.umn.edu/education/thucydides.html">Funeral Oration of 430 BC</a> has been required reading for Western Civilization students for generations. </p>
<p>There is a much darker side to Pericles’ legacy, however. For one, he narrowed the group eligible for Athenian citizenship, requiring both parents to be Athenian citizens — a requirement, ironically, that his own children did not meet. </p>
<p>And, as is increasingly the view among ancient historians, he bore perhaps more responsibility than anyone else for the outbreak of the <a href="https://www.britannica.com/event/Peloponnesian-War">Peloponnesian War</a>, a ruinous 27-year conflict between Athens and Sparta that ended in Athens’ defeat and the temporary overthrow of the world’s first democracy. </p>
<p>A frequent criticism of Pericles among his contemporaries was that he took a hard line against Sparta and pushed his city toward war not due to any higher principle or strategic goal, but to deflect charges brought against his closest friends and political allies.</p>
<h2>Thucydides and Pericles</h2>
<p>Why has Pericles benefitted from such a stellar reputation? We can blame Thucydides, the famous historian of the Peloponnesian War who recorded (or largely invented) the Funeral Oration and treated Pericles like a hero, the last true leader of Athens before the state devolved into demagoguery.</p>
<p>Thucydides has been popular as of late, especially in the use and abuse of the so-called “<a href="https://www.belfercenter.org/thucydides-trap/overview-thucydides-trap">Thucydides Trap</a>” coined by Harvard’s Graham Allison, which implies that conflict between the United States and China might be inevitable just as war was between Athens and Sparta. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/193479/original/file-20171106-1041-1rs40ij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/193479/original/file-20171106-1041-1rs40ij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/193479/original/file-20171106-1041-1rs40ij.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/193479/original/file-20171106-1041-1rs40ij.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/193479/original/file-20171106-1041-1rs40ij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/193479/original/file-20171106-1041-1rs40ij.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/193479/original/file-20171106-1041-1rs40ij.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A statue of Thucydides.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>The problem with the “Thucydides Trap” is that, as many scholars of Thucydides, including Donald Kagan of Yale, point out, the Peloponnesian War <a href="https://www.bloomberg.com/view/articles/2017-06-25/can-an-ancient-greek-win-america-s-wars">was not nearly as inevitable</a> as Thucydides implies. Rather, Thucydides proposed his thesis of inevitability — and forever changed the practice of history and political science — in order to exonerate Pericles of blame for the war.</p>
<h2>A leader in trouble</h2>
<p>Thucydides was really fighting against the attitudes of his fellow Athenians, which survive only in fragments preserved by other authors, especially <a href="http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A2008.01.0055%3Achapter%3D31">Plutarch</a>.</p>
<p>Plutarch maintained that Pericles was a hawk because he wanted Athens to go to war, if only because the city would therefore need his leadership.</p>
<p>This leadership was under threat because several of Pericles’ associates faced serious legal trouble.</p>
<p><a href="https://www.britannica.com/biography/Phidias">Phidias</a>, the artistic director of the Parthenon project, was charged with embezzlement; <a href="http://penelope.uchicago.edu/%7Egrout/encyclopaedia_romana/greece/hetairai/aspasia.html">Aspasia</a>, Pericles’ foreign mistress and mother of his children, was accused of impiety, just the sort of charge that later led to the execution of <a href="https://www.biography.com/people/socrates-9488126">Socrates</a>; and Pericles’ association with the philosopher <a href="http://www.iep.utm.edu/anaxagor/">Anaxagoras</a> was threatened by a motion that all those who didn’t believe in the gods should be publicly censured.</p>
<p>To deflect these charges, Pericles refused to budge on several reasonable demands made by the Spartans, including lifting a cruel embargo against Athens’ <a href="http://www.livius.org/articles/concept/megarian-decree/">tiny neighbour and ally of Sparta, Megara.</a></p>
<p>Pericles claimed that he had to stand on principle, insisting that any concessions would only encourage snowballing demands from Sparta. Most Athenians, though, suspected that Pericles really had the charges against his friends in mind when he precipitated a war through his hardline position.</p>
<p>It was this common belief against which Thucydides pressed his alternate theory that Pericles was heroic.</p>
<h2>Avoiding the Thucydides Trap</h2>
<p>Trump has already shown his willingness to deflect criticism and galvanize his base with sabre-rattling speeches, especially against the enemy du jour, <a href="https://www.usatoday.com/story/news/politics/2017/11/06/ahead-seoul-visit-trumps-aggressive-rhetoric-north-korea-inflames-protesters/834973001/">North Korea.</a> </p>
<p>After his speech at the United Nations, in which he mocked Kim Jong-un as the “Little Rocket Man,” evangelical pro-Trump stalwart <a href="https://www.theatlantic.com/politics/archive/2017/05/franklin-graham/527013/">Franklin Graham</a> said that Trump’s words made him <a href="https://www.facebook.com/FranklinGraham/posts/1652083208181187">proud to be an American</a>. </p>
<p>A decade-and-a-half ago, historians Barry Strauss and David McCann edited a<a href="https://www.routledge.com/War-and-Democracy-A-Comparative-Study-of-the-Korean-War-and-the-Peloponnesian/McCann-Strauss/p/book/9780765606945"> book </a>comparing the Korean War with the Peloponnesian War, two conflicts separated by millennia but demonstrating remarkable parallels.</p>
<p>Let’s hope Trump doesn’t react to the current crisis by forging another parallel between classical Greece and modern America. I, for one, don’t think that a new war with North Korea (let alone China) need be any more inevitable than it was between Athens and Sparta.</p><img src="https://counter.theconversation.com/content/86972/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matthew A. Sears has received funding from the Harrison McCain Foundation. </span></em></p>Does ancient Greek war hawk Pericles provide clues to a besieged Donald Trump’s next move? War has always been a helpful distraction for cornered world leaders.Matthew A. Sears, Associate Professor of Classics & Ancient History, University of New BrunswickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/849652017-10-16T00:31:30Z2017-10-16T00:31:30ZWhy are Russian media outlets hyping the Mueller investigation?<figure><img src="https://images.theconversation.com/files/190201/original/file-20171013-3520-1vwwctj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It seems that Russian state media is starting to chip away at Trump's burnished image.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/moscow-russia-5-january-2017-russian-550642471?src=KfaMMYf1EZI8MLkvwzXAiw-1-0">Maxim Apryatin</a></span></figcaption></figure><p><a href="http://www.pbs.org/newshour/rundown/russia-investigations-explained/">Four major Russia investigations</a> are underway in Washington, along with <a href="http://www.npr.org/2017/06/08/531940912/there-are-many-russia-investigations-what-are-they-all-doing">at least six</a> related federal inquiries. </p>
<p>Anxiety currently swirls around the Kremlin’s manipulation of popular social media platforms <a href="http://foreignpolicy.com/2017/10/13/russia-has-invented-social-media-blitzkrieg/">Facebook, YouTube and Instagram</a>. Cybersecurity sleuths claim Russia <a href="https://www.theverge.com/2017/10/12/16466418/russia-pokemon-go-election-meddling-black-lives-matter">used Pokemon Go</a> to inflame racial tensions and <a href="http://www.politico.com/story/2017/10/13/twitter-russia-data-deleted-investigation-243730">accuse Twitter</a> of deleting crucial data detailing Russian efforts to sow discord during the 2016 presidential election. </p>
<p>“Russia, Russia Everywhere,” <a href="https://www.nytimes.com/2017/10/13/technology/farhad-and-nicoles-week-in-tech-russia-russia-everywhere.html">read</a> The New York Times Oct. 13 “Week in Technology” review. </p>
<p>But as a cultural historian, I’m interested in how Russia’s media outlets – many of which are state-controlled – are covering these same stories. </p>
<p>It’s no secret that for years the Kremlin has claimed Washington possesses a knee-jerk, anti-Russian bias. Moscow officials have cast recent U.S. charges that Russia has been acting to “<a href="https://www.dni.gov/files/documents/ICA_2017_01.pdf">undermine the U.S.-led liberal democratic order</a>” as simply part of this same phenomenon, albeit one that has blossomed, of late, into full-fledged <a href="https://www.rt.com/op-edge/404121-rt-ban-us-media/">hysteria</a>. </p>
<p>Russia’s <a href="https://www.kp.ru/online/news/2886226/">most popular media outlets</a> compare the investigations to those of the McCarthy era, calling them “<a href="https://www.pri.org/stories/2017-03-21/russia-agrees-trump-hacking-investigation-witch-hunt">witch hunts</a>” focused on a “<a href="https://www.rt.com/usa/404947-neeson-calls-blow-whistle-trump-russia-collusion/">phantom menace</a>.” </p>
<p>However, I’ve noticed something surprising. Amid all the emphasis of “Russophobia run wild,” Russian media coverage seems to have become more positive in regard to one issue: the Justice Department’s investigation led by Special Prosecutor Robert Mueller. </p>
<p>While state-sponsored outlets continue to deny any possible collusion between the Trump campaign and the Kremlin, they’ve begun to applaud Mueller’s efforts to look into the past business deals of the U.S. president and his team.</p>
<p>How to explain this development? After all, didn’t the Kremlin originally <a href="http://www.esquire.com/news-politics/news/a52079/russian-officials-cheered-trump-win/">want Trump to win</a>? </p>
<h2>Robert Mueller…hero?</h2>
<p>On Oct. 4, U.S. Senators Mark Warner and Richard Burr held a news conference to announce that their investigation into Russian meddling had expanded to include the use (and misuse) of social media. </p>
<p>Many U.S. news outlets covered the event as if it were a sign the Senate inquiry was shifting into high gear. “Top Senators Hint the Russian Investigation is Heating Up,” <a href="http://www.businessinsider.com/trump-russia-investigation-update-senate-intelligence-committee-2017-10">Business Insider proclaimed</a>. </p>
<p>Russian media, on the other hand, sniffed. They reported on the event as if it were an admission that the charges were unfounded, and the scandal was over. (“Coming Up Empty Handed,” one headline read.) </p>
<p>Compare this, however, to the way Moscow’s three largest, government-controlled television stations reacted when news broke of a federal raid on the home of Donald Trump’s former campaign manager Paul Manafort. Gone was the mocking language that generally accompanies “Russiagate” coverage. Instead, they produced substantial stories on former FBI Director Mueller’s background, experience and methods. </p>
<p>Two major outlets used near-identical <a href="https://www.vestifinance.ru/articles/91434">headlines</a> to claim the Mueller probe was “gaining momentum.” Mueller has experience dealing with corruption, <a href="https://www.vestifinance.ru/articles/91434">wrote the broadcast agency Vesti</a>, and his investigation appears to involve issues “more serious than what the American mass media is writing about.” </p>
<p>Reports not only mentioned Manafort’s alleged 15 bank accounts and 10 registered businesses in Cyprus, but they also implied such scandals could be just the tip of the iceberg. Mueller, <a href="https://www.mk.ru/politics/2017/08/09/v-ssha-nabiraet-oboroty-rashageyt-myuller-delaet-rezkiy-khod.html">one outlet reported</a>, “will likely dig deep, investigating the finances of Manafort (not to mention the finances of Trump himself).”</p>
<p>Because Manafort <a href="https://www.theatlantic.com/politics/archive/2017/10/emails-suggest-manafort-sought-approval-from-putin-ally-deripaska/541677/">has done business</a> with at least one oligarch close to Russian President Vladimir Putin and <a href="https://www.nytimes.com/2016/08/15/us/politics/paul-manafort-ukraine-donald-trump.html">earned millions of dollars lobbying</a> for a former pro-Russian president of Ukraine, encouraging the U.S. to “dig deeper” into shady deals might seem at odds with Kremlin PR goals. </p>
<p>But this slant makes sense if the intent is to cast Trump in a negative light. Indeed, it appears to be part of an evolving Russian media strategy designed to highlight a stark opposition between the U.S. and the Russian leader – with talk of Trump’s weaknesses serving as a foil to Putin’s supposed stability and strength. </p>
<h2>Crafting a contrast</h2>
<p>This approach became particularly noticeable after Trump began to mock North Korean leader Kim Jong Un on Twitter, <a href="https://www.newyorker.com/news/daily-comment/no-laughing-matter-why-trumps-words-on-north-korea-matter">calling him</a> “Rocket Man” and threatening to “totally destroy” his country. </p>
<p>Since then, Russian state media has portrayed Trump and Kim as two of a kind. Branding Trump’s comments “shocking” and “provocational,” Foreign Minister Sergei Lavrov <a href="https://bloknot.ru/politika/lavrov-nazval-detskim-sadom-vzaimny-e-ugrozy-ssha-i-severnoj-korei-560058.html">condemned both men</a> for behaving like “children in kindergarten.” Russian journalist <a href="https://newrepublic.com/article/118438/dmitry-kiselev-putins-favorite-tv-host-russias-top-propogandist">Dmitry Kiselev</a> <a href="https://www.vesti.ru/doc.html?id=2938497">accused them</a> of “pouring fuel on a fire” and thereby threatening to destabilize the world.</p>
<p>Meanwhile, the Russian press <a href="https://amp.kp.ru/daily/26741.7/3769022/">celebrated Putin’s birthday</a> on Oct. 7 by highlighting his intellect, daring and (supposed) popularity at home and abroad. The Russian News Agency tweeted a video of a mural of Putin, claiming that “graffiti has appeared in Barcelona and Paris” praising the Russian president. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"916608840573079552"}"></div></p>
<p>Such admiration apparently extends beyond Europe; “President of South Korea Compares Soul of Vladimir Putin to Bravery of an Amur Tiger,” <a href="http://newokruga.ru/prezident-yuzhnoy-korei-sravnil-duh-vladimira-putina-s-hrabrostyu-amurskogo-tigra/">read another recent headline</a>. </p>
<p><a href="https://www.vesti.ru/doc.html?id=2938497">Russian pundits</a> argue that Trump, in contrast, has shown himself to be “utterly ineffective in resolving conflicts…. Besides threats, insults and one-sided sanctions, it turns out he’s got nothing.”</p>
<p>Outlets continue to mock what they claim are exaggerated Western fears of Russian power. But it’s done in a way to remind Russians that these fears, however imaginary, nevertheless testify to their country’s growing clout. </p>
<p>In a September press conference, Putin twice referred to the current U.S. administration as full of people so ignorant that they “can confuse Australia with Austria.” <a href="https://www.youtube.com/watch?v=zRhVKmkx3YY">He later quipped</a> that – talk of Oval Office collusion with Russia to the contrary – Trump wasn’t actually his bride. In October, the newspaper Kultura <a href="https://twitter.com/bbcstever/status/916568187587710976">parodied</a> the tendency of Western leaders to see Putin’s “Almighty hand” in events ranging far beyond Trump’s victory, including Brexit and Catalonia’s push for independence from Spain.</p>
<h2>A weak, withering West</h2>
<p>Stories of Russia’s global reach are juxtaposed against reports of recent U.S. diplomatic and military failures in places like Afghanistan, Syria and Iran. For example, the recent story of North Korean hackers stealing U.S.-South Korean war plans, while reported in the U.S. press, <a href="https://www.rt.com/news/406255-north-korea-hack-south-us-war-plans/">was amplified</a> in the Russian media to suggest American impotence overseas.</p>
<p>While stories critical of Washington aren’t new in Putin’s Russia, casting U.S. foreign policy as deteriorating under Trump – a leader whom Kremlin officials once praised as a <a href="https://www.rferl.org/a/kremlin-aide-peskov-says-putin-trump-both-pragmatists-problem-solvers/28111616.html">promoter of pragmatic diplomacy</a> – marks a change. </p>
<p>Speaking recently to U.S. political scientists, Putin’s foreign minister went so far as <a href="https://twitter.com/mfa_russia/status/914414010627448833">to term</a> Trump’s election an “anomaly,” and to imply that Russia “is perfectly aware” that White House actions shouldn’t be considered typical of U.S. politics as usual. In that same appearance, he praised the many Americans who, he claimed, do not share the administration’s points of view. </p>
<p>Responding to what it called the unlawful U.S. “seizure” of a Russian consulate in San Francisco on Oct. 2, the Russian Embassy in Washington made a similar point, tweeting that “an ordinary American stopped by and apologized for his government, saying that it’s not right to violate international law and he is very ashamed.” </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"914933822181003264"}"></div></p>
<p>The overall tone of such official pronouncements is one of ostensible compassion for all the “good” U.S. citizens who are currently suffering under a “bad” commander-in-chief.</p>
<p>Such growing condemnation of Trump also serves to shore up Putin’s domestic position in the run-up to another Russian presidential election in March 2018. </p>
<p>Opposition leader Alexei Navalny has long tried to draw attention to the issue of Kremlin corruption. <a href="https://www.youtube.com/watch?v=9MHqpyN6iAk">In his most recent YouTube video</a>, he accused Russia One journalist Vladimir Solovyov of helping prop up the Putin regime through sycophantic reportage, and he showed drone footage of properties Solovyov allegedly owns in Moscow and Italy, implying they were rewards for political loyalty. </p>
<p>But Navalny – along with opposition newspapers like <a href="http://www.ng.ru/politics/2017-10-13/100_trampiran.html">Nezavisimaia Gazeta</a> – are also <a href="https://www.theguardian.com/world/2017/apr/29/alexei-navalny-on-putins-russia-all-autocratic-regimes-come-to-an-end">deeply skeptical of U.S. leadership</a>. </p>
<p>In affirming the U.S. investigation into Trump’s business practices, Kremlin strategists can co-opt the charges of Putin’s critics and direct them at Trump. They can argue that the U.S. is neither more virtuous than Russia nor more efficacious. </p>
<p>And they can do so without having to acknowledge that a Mueller-style investigation into top-level government malfeasance would never be allowed in their own country today.</p><img src="https://counter.theconversation.com/content/84965/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cynthia Hooper does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The country’s state-run media outlets have been quick to denounce any election meddling talk as anti-Russian hysteria. So what’s behind the shift in tone?Cynthia Hooper, Associate Professor of History, College of the Holy CrossLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/820372017-08-04T01:57:41Z2017-08-04T01:57:41ZMisleading statements on Russia meeting recall Clinton’s impeachment<p>According to <a href="https://www.nytimes.com/2017/08/02/us/politics/those-calls-to-trump-white-house-admits-they-didnt-happen.html">a biographer</a> of Donald Trump, “He’s been lying his whole life, almost reflexively.”</p>
<p>Now, President Trump may be lying to his <a href="https://www.nytimes.com/2017/07/05/magazine/all-the-presidents-lawyers.html">team of private lawyers</a> who are <a href="https://apnews.com/a697419bde6e4688bf1536d8608d1a12">handling issues</a> relating to the investigation into <a href="https://www.nytimes.com/2017/07/14/us/politics/ty-cobb-trump-legal-team.html">Russian meddling</a> in the election. Last month, Trump’s personal lawyer, <a href="https://www.nytimes.com/2017/06/19/us/politics/jay-sekulow-trump-lawyer.html">Jay Sekulow</a>, told <a href="http://www.nbcnews.com/feature/meet-the-press-24-7/meet-press-july-16-2017-n783491">“Meet the Press</a>,” “the president was not involved” in drafting a misleading statement describing a meeting at Trump Tower between campaign members and a Russian lawyer in June 2016. </p>
<p>But when the <a href="https://www.washingtonpost.com/politics/trump-dictated-sons-misleading-statement-on-meeting-with-russian-lawyer/2017/07/31/04c94f96-73ae-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.e2a44bdb6eb3">Washington Post reported</a> that the president had “personally dictated” the statement, the <a href="https://www.nytimes.com/2017/08/01/us/politics/trump-was-involved-in-drafting-sons-statement-aide-confirms.html">White House confirmed</a> that Trump “was personally involved” in drafting it.</p>
<p>Failure to be truthful with his private lawyer is what led to former President Bill Clinton’s impeachment. At the heart of the Articles of Impeachment brought against Clinton was <a href="http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/articles122098.htm#full1">the charge</a> that he gave “perjurous, false and misleading testimony” and <a href="http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/articles122098.htm#full1">allowed his attorney</a> to make “false and misleading statements” in a sexual harassment lawsuit brought by Paula Jones. </p>
<p>As a <a href="http://clarkcunningham.org/Cunningham-LegalEthics.html">scholar of legal ethics</a>, I teach my law students that if Clinton had been truthful with his lawyer, it’s likely he never would have been impeached. Like Clinton, Trump badly needs advice from lawyers who are fully informed of the truth. In the opinion of <a href="https://www.vox.com/2017/8/2/16075404/donald-trump-jr-russia-investigation-mueller-obstruction">many legal experts</a>, the pattern of misleading statements about the Trump Tower meeting has already increased <a href="http://www.cnn.com/2017/08/02/opinions/trump-russia-mueller-opinion-rangappa/index.html">Trump’s exposure to criminal prosecution</a> or impeachment. The stakes have just been raised with news that Special Counsel Robert Mueller <a href="http://www.reuters.com/article/us-usa-trump-russia-subpoena-idUSKBN1AJ2V0">has obtained grand jury subpoenas</a> in connection with the Trump Tower meeting.</p>
<h2>Clinton’s impeachment</h2>
<p>When Clinton was forced to testify in the Jones lawsuit, his personal lawyer, Robert Bennett, <a href="http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/6narritxiv.htm#L131">attempted to block questioning</a> about Monica Lewinsky. Bennett showed the judge an <a href="http://www.washingtonpost.com/wp-srv/politics/special/pjones/docs/lewinskyaffidavit.htm">affidavit</a> in which Lewinsky stated, “I have never had a sexual relationship with the president.” Clinton’s lawyer described the affidavit as “saying that there is absolutely <a href="http://www.washingtonpost.com/wp-srv/politics/special/pjones/docs/clintondep031398.htm#lewinsky">no sex of any kind</a> in any manner, shape or form, with President Clinton.” Bennett then <a href="http://www.washingtonpost.com/wp-srv/politics/special/pjones/docs/clintondep031398.htm#lewinsky">asked Clinton</a> if “never had a sexual relationship with the president” was “a true and accurate statement as far as you know it?” </p>
<p>Clinton <a href="http://www.washingtonpost.com/wp-srv/politics/special/pjones/docs/clintondep031398.htm#lewinsky">answered under oath</a>: “That is absolutely true.”</p>
<p>In a later court filing, Bennett admitted the <a href="http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/jones100998.htm">Lewinsky affidavit was false</a>. But in his autobiography, Bennett insists when he told the judge there was “absolutely no sex of any kind” between Clinton and Lewinsky, “I believed it with all my heart.” </p>
<p>If Bennett is to be believed, at the time of Clinton’s testimony he was unaware that Lewinsky had engaged in oral sex with Clinton. We can also infer he did not know, as <a href="http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/articles121898.htm">Clinton explained</a> in later grand jury testimony, that his client was interpreting the affidavit’s phrase “never had a sexual relationship” as not including oral sex.</p>
<p>If Clinton had told his lawyer the full truth, Bennett could have advised against Clinton’s disastrous word game about the meaning of “sexual relationship” – advice that if taken would probably have prevented Clinton from committing perjury, thus avoiding later impeachment.</p>
<p>As explained by the American Bar Association, there is an <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html">ethical rule</a> that would require Trump’s lawyers to treat everything he tells them with complete confidentiality. <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6.html">Trust is</a> “the hallmark of the client-lawyer relationship” so that a client can “communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.”</p>
<p>In my view, Trump should learn from Clinton’s mistakes to never put his lawyers in the position of making statements in his name that later turn out to be false. Clients who don’t tell lawyers the full truth not only lose the benefit of wise advice. Even worse, as Clinton found out, inadequately informed lawyers may inadvertently do their clients great harm.</p><img src="https://counter.theconversation.com/content/82037/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If Trump is lying to his own lawyers about Russia, he is risking Bill Clinton’s fate.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/812962017-07-20T01:49:53Z2017-07-20T01:49:53ZCan Trump use the presidential pardon to thwart the Russia investigations?<p>Speculation is mounting that President Donald Trump could issue a pardon to members of his family and close associates who are suspected of colluding with Russia in the 2016 campaign.</p>
<p>Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee, <a href="https://www.vox.com/policy-and-politics/2017/7/13/15966866/donald-trump-jr-russia-mark-warner-senate-intelligence-interview">recently cautioned</a> about “the possibility of presidential pardons in this process.”</p>
<p>The <a href="https://www.reuters.com/article/us-usa-trump-russia-agent-idUSKBN19Z189">June 2016 meeting</a> of Donald Trump Jr., Paul Manafort, Jared Kushner and Russian go-betweens promising dirt about Hillary Clinton raises the specter of criminal liability under campaign finance laws. Those laws <a href="https://www.law.cornell.edu/cfr/text/11/110.20">prohibit foreign nationals</a> from “directly or indirectly” making “a contribution or a donation of money or other thing of value … in connection with any Federal, State, or local election.” Damaging information on an opponent could certainly be considered a “thing of value” during a campaign.</p>
<p><a href="https://www.forbes.com/sites/jacobfrenkel/2017/07/17/what-charges-special-counsel-mueller-will-consider-involving-donald-trump-jr/#7fba16d82da3">Not everyone agrees</a> that Trump’s son, son-in-law and Manafort committed crimes. We are a long way from knowing whether there will be criminal prosecutions in these matters. But the mere possibility of a criminal prosecution could lead the president to invoke <a href="https://constitutioncenter.org/interactive-constitution/articles/article-ii#commander-in-chief">his authority</a> under Article II, Section 2 of the Constitution to grant “Reprieves and Pardons for Offences against the United States.”</p>
<p>My <a href="http://press.princeton.edu/titles/8018.html">research on clemency</a> shows how chief executives have used this power, in particular the power to pardon, to halt criminal prosecutions, sometimes even before they begin. </p>
<h2>‘For any reason at all’</h2>
<p>The pardoning power, as Founding Father Alexander Hamilton <a href="http://avalon.law.yale.edu/18th_century/fed69.asp">explained</a>, is very broad, applying even to cases of treason against the United States. As <a href="http://avalon.law.yale.edu/18th_century/fed74.asp">Hamilton put it</a>, “the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”</p>
<p>Throughout our history, courts have taken a similarly expansive view. In 1977, Florida’s State Supreme Court <a href="http://campuspress.yale.edu/capitalpunishment/files/2014/12/Class-13-Part-2-Clemency-Execution-w0pt0n.pdf">said that</a> “An executive may grant a pardon for good reasons or bad, or for any reason at all, and his act is final and irrevocable.”</p>
<p>In 1837, the <a href="http://caselaw.findlaw.com/us-supreme-court/71/333.html">United States Supreme Court held</a> that the president’s pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their <a href="http://www.dictionary.com/browse/pendency">pendency</a>, or after conviction and judgment.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=378&fit=crop&dpr=1 600w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=378&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=378&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=475&fit=crop&dpr=1 754w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=475&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=475&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Gerald Ford on Sept. 8, 1974 grants former President Richard Nixon ‘a full, free and absolute pardon.’</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<p>Yet <a href="http://www.slate.com/articles/news_and_politics/explainer/2008/07/preemptive_presidential_pardons.html">prospective pardons</a> are quite rare. The most famous prospective pardon in American history was granted by President Gerald Ford in September 1974. He <a href="http://www.presidency.ucsb.edu/ws/?pid=4696">pardoned former President Richard Nixon</a> after he was forced to resign in the face of the Watergate scandal. Ford pardoned Nixon for “all offenses against the United States which he… has committed or may have committed or taken part in” between the date of his inauguration in 1969 and his resignation. </p>
<p>In other cases, presidents have halted criminal proceedings immediately after they began. President <a href="http://articles.latimes.com/1992-12-25/news/mn-2472_1_iran-contra-affair">George H.W. Bush</a> pardoned former Defense Secretary Caspar Weinberger just after Weinberger had been indicted for lying to Congress about the sale of arms to Iran by the Reagan administration.</p>
<p>Those pardons evoked public outcry against what was perceived to be an arrogant interference with the legal process. Ford’s action may have contributed to his defeat in the 1976 presidential election against Jimmy Carter. And Bush’s pardon of Weinberger prompted accusations that he was engaging in a cover-up. Critics said that <a href="http://www.nytimes.com/books/97/06/29/reviews/iran-pardon.html">his action demonstrated</a> that “powerful people with powerful allies can commit serious crimes in high office – deliberately abusing the public trust without consequence.”</p>
<h2>Rule of law</h2>
<p>Given such controversies about pardons and the the fear of being labeled soft on crime, presidents have been <a href="http://www.pewresearch.org/fact-tank/2017/01/20/obama-used-more-clemency-power/">increasingly reticent</a> about using their clemency power before or after conviction. Thus, while President Nixon granted clemency to more than 36 percent of those who sought it during his eight years in office, the comparable number for George W. Bush was 2 percent. President Obama <a href="http://www.pewresearch.org/fact-tank/2017/01/20/obama-used-more-clemency-power/">reversed that trend</a>, granting more pardons and commutations than anyone since Harry Truman.</p>
<p>Given President Trump’s commitment to being a <a href="https://www.usatoday.com/story/news/politics/elections/2016/11/09/donald-trump-criminal-justice/93550162/">law-and-order president</a>, it seems unlikely that he will follow Obama’s lead. Yet he may make an exception to shield Donald Jr., Kushner and Manafort from criminal liability. </p>
<p>Congressman Adam Schiff <a href="https://vimeo.com/225757422">predicted a negative public reaction</a> if Trump grants pardons. He said: “The impressions the country, certainly, would get from that is the president was trying to shield people from liability for telling the truth about what happened in the Russia investigation or Russian contacts.”</p>
<p>However, his prediction offers little comfort at a time when many venerable norms and rules of political life are being rewritten or ignored. No matter what explanation he might offer, any move by President Trump to pardon Donald Jr., Kushner or Manafort would not only hamper the Russia investigations, it would also deliver another serious blow to <a href="https://theconversation.com/is-trumps-definition-of-the-rule-of-law-the-same-as-the-us-constitutions-77598">America’s increasingly precarious hold</a> on democracy and the rule of law.</p><img src="https://counter.theconversation.com/content/81296/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Presidents past have used this nearly limitless power to halt criminal prosecutions before. What’s to stop Trump?Austin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/775312017-06-27T01:03:58Z2017-06-27T01:03:58ZIs Putin’s Russia the critical threat Americans believe it to be?<figure><img src="https://images.theconversation.com/files/175714/original/file-20170626-29085-bzo4b8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Russian President Vladimir Putin attends a wreath-laying ceremony at the Tomb of the Unknown Soldier in Moscow.</span> <span class="attribution"><span class="source">AP Photo/Pavel Golovkin</span></span></figcaption></figure><p>At least four U.S. intelligence agencies <a href="http://www.politifact.com/truth-o-meter/article/2017/jul/06/17-intelligence-organizations-or-four-either-way-r/">agree that evidence shows</a> the Russian government hacked the Democratic National Committee and waged a campaign to influence voters in 2016.</p>
<p>Although no evidence of collusion between U.S. citizens and Russia has been proven yet, <a href="http://www.cnbc.com/2017/02/16/president-donald-trump-says-getting-along-with-russia-is-a-good-thing.html">President Donald Trump</a> and Secretary of State Rex Tillerson’s attempt to improve relations with Russia has been hobbled.</p>
<p><a href="https://theconversation.com/did-sessions-and-trump-conspire-to-obstruct-justice-79388">The cloud</a> <a href="https://theconversation.com/was-trumps-hope-comeys-command-we-asked-a-language-expert-79540">hanging over</a> <a href="http://www.pbs.org/newshour/rundown/explainer-jared-kushners-attempted-back-channel-russia-treasonous-typical/">the White House</a> seems to be growing, with Congress <a href="http://www.cnn.com/2017/06/15/politics/russia-sanctions-senate-trump/index.html">considering sanctions</a> against Russia. A majority of Americans view Russia unfavorably and believe it represents a threat, <a href="http://www.gallup.com/poll/1642/russia.aspx">according to Gallup</a>. Russia is depicted daily as a major menace to the United States. The slightest concession by an American to a Russian overture has become suspicious and <a href="https://www.vox.com/2017/6/13/15794976/sessions-wyden-senate-testimony">smells of capitulation</a>.</p>
<p>As a historian who has watched and <a href="https://global.oup.com/academic/product/russias-empires-9780199924394?cc=us&lang=en&">written about</a> the rocky ride <a href="https://global.oup.com/ushe/product/the-soviet-experiment-9780195340556?cc=us&lang=en&">Russians have experienced</a> since the collapse of the USSR, I offer a look at the broader context of U.S.-Russia relations.</p>
<p>While Russia has certainly caused mischief for <a href="http://www.newsweek.com/russia-jet-after-us-plane-europe-aircraft-shot-down-syria-627665">Washington and Europe</a>, I don’t believe we should consider negotiation and compromise with Putin as appeasement – as we did during the Cold War. Careful consideration of how Russia views its own vital interests may help us see past the noise. </p>
<h2>How big a threat is Russia?</h2>
<p>In reality, the most powerful country in history and on the globe at the moment, the United States, faces a considerably weaker adversary in Russia. </p>
<p>The Kremlin spends about 10 percent of what the <a href="http://www.pgpf.org/chart-archive/0053_defense-comparison">United States spends</a> on defense (US$600 billion). The United States spends more on defense than the next eight countries combined. </p>
<p>Putin <a href="http://www.salon.com/2017/03/19/so-much-for-the-russian-threat-putin-slashes-defense-spending-while-trump-plans-massive-buildup/">slashed military spending</a> a few months ago by 25.5 percent, just as Trump plans to <a href="http://www.npr.org/2017/03/16/520305293/trump-to-unveil-hard-power-budget-that-boosts-military-spending">increase American defense spending</a> by more than $54 billion.</p>
<p>Russia’s economy pales in comparison to America, Europe, Japan and China. It has an economy roughly the <a href="http://www.nationmaster.com/country-info/stats/Economy/GDP">size of Italy’s</a>, but must provide for a larger population, territory and defense budget.</p>
<p>It’s true that a somewhat weaker power can annoy, pressure or even harm a stronger power. And while Russia has a huge nuclear arsenal and impressive cyber capabilities, it is seriously outmatched by the United States in terms of influence and power. Obama <a href="https://www.washingtonpost.com/world/national-security/obama-dismisses-russia-as-regional-power-acting-out-of-weakness/2014/03/25/1e5a678e-b439-11e3-b899-20667de76985_story.html?utm_term=.3cdab72637fc">referred to Russia</a> as “a regional power,” and Putin <a href="https://www.washingtonpost.com/world/national-security/obama-dismisses-russia-as-regional-power-acting-out-of-weakness/2014/03/25/1e5a678e-b439-11e3-b899-20667de76985_story.html?utm_term=.3cdab72637fc">thinks of America</a> as a “global hegemon.” There are important truths in both of their statements.</p>
<p>Both Putin and his predecessor, the late Russian President Boris Yeltsin, repeatedly complained about the expansion of NATO into Eastern Europe, and even into countries formerly part of the Soviet Union – the <a href="https://www.britannica.com/place/Baltic-states">Baltic republics</a> of Estonia, Latvia and Lithuania. The Kremlin made its opposition clear in 2008 when it launched a devastating incursion into Georgia, a country that <a href="http://www.nato.int/cps/es/natohq/topics_38988.htm">hoped to join NATO</a>. In 2014, Russia, Europe and the United States maneuvered for dominance in Ukraine – this time Russia lost. Moscow exacted its revenge by annexing Crimea in March 2014, which only <a href="https://www.brookings.edu/testimonies/ukraine-russia-and-the-u-s-policy-response/">drove Ukraine</a> deeper into the arms of the West.</p>
<p>Putin occasionally overreaches, as he did in Crimea. Yet the Russian president usually plays his comparatively weak hand rather shrewdly. In Syria, for example, Putin supports the Bashar al-Assad government, a <a href="https://www.pri.org/stories/2014-09-24/8-reminders-how-horrible-syrian-president-bashar-al-assad-has-been-his-people">truly vicious regime</a> that is prepared to kill hundreds of thousands of its citizens to hold on to power. Here the United States tried regime change, but Putin and <a href="http://www.aljazeera.com/news/2017/04/russia-iran-vow-continued-military-support-assad-170408184313230.html">Iran’s backing of Damascus</a> made that impossible. As both the <a href="http://foreignpolicy.com/2016/12/29/obama-never-understood-how-history-works/">Obama</a> and Trump administrations struggled to formulate a policy in Syria, Putin effectively marginalized the United States by forging a common front with Turkey and Iran. </p>
<p>And while the United States and Russia might disagree about the Syrian regime, they do have some common ground. Both powers have decided that the first priority is to combat the Islamic State. Both countries have found reliable allies against IS in <a href="https://www.crisisgroup.org/middle-east-north-africa/eastern-mediterranean/syria/syria-s-kurds-struggle-within-struggle">the Syrian Kurds</a>, which my research suggests is <a href="https://global.oup.com/academic/product/russias-empires-9780199924394?cc=us&lang=en&">a distinct nation</a> prepared to fight for their autonomy or independence. Despite Russia’s first priority to defend Assad’s government, both the United States and Russia appear at the moment to be working together with the Syrian Kurds to contain IS, the most immediate danger to the Middle East and by extension <a href="http://www.cnbc.com/2017/06/20/russian-threat-to-target-us-aircraft-in-syria-seen-as-more-bluster.html">much of the world</a>.</p>
<p>The crises over Syria, Ukraine and Georgia, as well as Russia’s blustering threats against the Baltic republics, all are responses of a relatively vulnerable, less-than-superpower. Russians feel threatened, humiliated by the West’s military expansion eastward. American troops regularly exercise in what was <a href="https://www.usnews.com/news/politics/articles/2016-03-30/us-to-beef-up-military-presence-in-europe">once the Soviet Bloc</a>. American rockets have been placed in the Czech Republic and Poland. Russian and American <a href="https://www.nytimes.com/2017/06/21/world/europe/russia-nato-jets-baltic-sea.html?_r=0">planes buzz each other</a> near the Russian enclave of Kaliningrad. </p>
<p>Although it is unable to reestablish the kind of dominance in Eastern Europe that it enjoyed during the Cold War, the Kremlin is determined to retain an influential position in the part of the world closest to its borders. What we are watching, in my view, is an uneven struggle between a real superpower and global hegemon, the United States, and a regional hegemon, Russia, that feels it has been backed into a corner.</p>
<h2>Common interests</h2>
<p>More than anything else, in my opinion, Russians wish to be taken seriously. </p>
<p>Putin still refers to the United States not as an adversary but as a partner, as <a href="https://qz.com/1008284/oliver-stones-the-putin-interviews-reveal-a-cynical-brooding-and-oddly-optimistic-leader/">he did repeatedly</a> in interviews with film director Oliver Stone. At the same time, unwilling to accept American global dominance without challenge, he fails to face the effects his policies have on Western leaders and the broader public. He repeatedly declares he is perplexed by the hysteria in America that demonizes Russia. </p>
<p>While investigations into Russian hacking and Trump’s campaign ties must continue, the <a href="http://www.aegee.org/general-overview-of-the-south-caucasian-conflicts/">major hot spots</a> mentioned above will continue to smolder and may suddenly flare up. The stakes are high and Russian and American interests coincide in many areas. There are few that can not be ameliorated, if not fully resolved, through negotiation.</p>
<p>Yet, the distance between the two countries grows wider by the day. Wrangling inside the Beltway – one of the signs of a healthy democracy – continues. But above the din, few voices can be heard calling for a more sober and farsighted evaluation of our strategic interests. In my years as a historian, I have found that it is precisely in such moments of heightened confrontation and deafness to the interests of others that unpredictable and destructive conflicts break out. As impossible as it seems at the moment to deescalate inflammatory rhetoric, I believe only discussion and negotiation offer a way forward.</p>
<p><em>This article has been updated to correct the number of intelligence agencies investigating Russian interference in the 2016 presidential election.</em></p><img src="https://counter.theconversation.com/content/77531/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ronald Suny does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A historian takes us beyond the noise in Washington and examines how US and Russian power and interests compare.Ronald Suny, Professor of History and Political Science, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/795372017-06-23T01:15:19Z2017-06-23T01:15:19ZWhat happens if Trump’s White House invokes executive privilege?<p>Donald Trump’s presidency has been defined by a central theme: Trump’s belief that ordinary rules and laws do not apply to him.</p>
<p>Trump has made clear that he believes it is up to his <a href="http://www.businessinsider.com/trump-james-mattis-override-torture-2017-1">personal discretion</a> to order torture – even though torture is <a href="https://www.counterpunch.org/2008/05/06/under-u-s-law-torture-is-always-illegal/">illegal under all circumstances</a>. In ordering a <a href="https://www.usatoday.com/story/opinion/2017/04/07/syria-attack-legal-only-congress-can-say-column/100163700/">military strike against Syria</a> in April, Trump brushed aside constitutional requirements that Congress approve such action unless the U.S. faces imminent attack. And he has defended his presidency by <a href="http://www.huffingtonpost.com/brianne-j-gorod/can-courts-hold-trump-accountable_b_13306772.html">falsely claiming</a> that the <a href="http://www.msnbc.com/rachel-maddow-show/trumps-new-boast-the-president-cant-have-conflict-interest">president is incapable of having conflicts of interest</a>.</p>
<p>I have argued in the past that Presidents George W. Bush and Barack Obama showed there is reason to be concerned about post-9/11 presidents testing the <a href="https://www.kirkusreviews.com/book-reviews/chris-edelson/power-without-constraint/">legal limits of their power</a>. The stakes are even higher now with Trump. He has demonstrated <a href="https://www.nytimes.com/2016/12/16/opinion/sunday/is-donald-trump-a-threat-to-democracy.html">authoritarian tendencies</a> and <a href="http://www.marketwatch.com/story/trumps-kleptocracy-could-be-turning-the-us-into-a-banana-republic-2017-05-03">contempt for the rule of law</a> that goes beyond anything Bush or Obama did. </p>
<p>The issue may be coming to a head with investigations into Russian interference in the 2016 election and possible obstruction of justice. As the nation has watched witnesses appear before congressional committees and read Trump’s tweets about Department of Justice officials, the key question to ask now is whether Trump <a href="http://talkingpointsmemo.com/edblog/a-very-very-dangerous-situation">will refuse</a> to let any investigation continue. If he does so successfully, Trump will effectively place himself <a href="https://lawfareblog.com/disabled-executive-special-counsel-investigation-and-presidential-immunities">beyond the reach of the law</a>.</p>
<h2>The rule of law</h2>
<p>The various ongoing investigations are all, in theory, governed by legal rules. <a href="https://www.documentcloud.org/documents/3726385-Order-3915-2017-Special-Counsel.html#document/p1">Special Counsel Robert Mueller’s task</a> is to speak to witnesses, review documents, gather evidence and decide whether there is any basis for prosecution under federal law. Congressional committees, meanwhile, hear from witnesses who testify under penalty of perjury if they lie under oath. </p>
<p>But such legal rules are not self-enforcing. When the rules are violated or flouted, someone has to act in order to give them force and meaning.</p>
<p>Attorney General Jeff Sessions’ recent testimony before the Senate Intelligence Committee is a case in point. Sessions refused to answer a number of questions about communications he’d had with the president. By itself, that is not extraordinary. If the communications were protected by executive privilege or involved classified information involving national security matters, there may have been a legitimate basis for Sessions to decline to answer senators’ questions. After all, the Supreme Court has recognized that <a href="http://markrozell.gmu.edu/wp-content/uploads/2014/05/Presidents_Executive_Privilege_Rozell_and_Sollenberger.pdf">the Constitution implicitly allows</a> the president to invoke executive privilege in some circumstances in order to protect the confidentiality of discussions with close advisers in the executive branch. </p>
<p>But Sessions, the top lawyer for the U.S. government, <a href="http://www.salon.com/2017/06/14/trump-sessions-and-the-executive-privilege-paradox-did-the-president-leave-his-most-loyal-follower-out-to-dry/">did not point to any legal grounds</a> for his refusal to respond. He simply said he <a href="http://www.salon.com/2017/06/14/trump-sessions-and-the-executive-privilege-paradox-did-the-president-leave-his-most-loyal-follower-out-to-dry/">could not speak about private conversations</a> he’d had with the president, and that he was <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">protecting Trump’s ability to claim executive privilege</a>, if he later decided to do so.</p>
<p>Sessions was not the first. A week earlier, <a href="https://www.washingtonpost.com/blogs/right-turn/wp/2017/06/07/outrageous-contempt-of-congress/?utm_term=.c4864e548194">Director of National Intelligence Dan Coats similarly declined</a> to answer questions involving conversations he’d had with the president. Like Sessions, Coats did not invoke privilege, conceding that he <a href="https://www.usnews.com/news/national-news/articles/2017-06-07/lawmakers-challenge-officials-refusal-to-talk-trump-comey">wasn’t sure there was any legal basis</a> he could rely on.</p>
<p>As <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">Sen. Martin Heinrich noted</a> during the hearing, that’s not the way executive privilege is supposed to work. If the administration wants to invoke the privilege, it must do so expressly. In that case, the matter would be worked out either in <a href="http://www.libertylawsite.org/2012/07/12/the-constitution-and-executive-privilege/">negotiations between the executive and legislative branches</a> or (less frequently) through review by the federal courts. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Richard Nixon points to the transcripts of the White House tapes.</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<p>The most famous example of a court weighing in on executive privilege was the <a href="https://www.law.cornell.edu/supremecourt/text/418/683">Supreme Court’s 1974 decision in U.S. v. Nixon</a>. President Richard Nixon’s administration refused to hand over Oval Office tapes, claiming recorded conversations were protected by executive privilege, as defined by the president. The court rejected this view, observing that constitutional separation of powers depends on checks and balances that prevent any one branch from self-policing. The court found, in this case, the need for checks on power outweighed the executive branch’s interest in keeping discussions confidential. With the <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/16/the-missing-18-12-minutes-presidential-destruction-of-incriminating-evidence/?utm_term=.98bae4cd1030">specter of impeachment looming over him</a>, Nixon was forced to hand over the tapes. He resigned from office a few weeks later.</p>
<p>At the close of Sessions’ testimony, Sen. Richard Burr <a href="http://www.politico.com/story/2017/06/13/full-text-jeff-session-trump-russia-testimony-239503">instructed Sessions</a> to “work with the White House to see if there are any areas of questions that they feel comfortable with you answering…” That’s not good enough: If the legislative branch is to enforce the rule of law, witnesses must be compelled to answer legitimate questions under oath. </p>
<h2>Will Congress act?</h2>
<p>Special Counsel Mueller may be investigating the president to determine whether his actions amount to <a href="https://theconversation.com/did-sessions-and-trump-conspire-to-obstruct-justice-79388">an obstruction of justice</a>. Trump has already fired former FBI Director James Comey, and <a href="https://www.lawfareblog.com/if-trump-fires-mueller-or-orders-his-firing">there is speculation</a> that he might also fire Special Counsel Mueller in an effort to bring the investigation to a close. Sen. Ron Wyden has warned that, if Trump fires Mueller, it would be an <a href="https://twitter.com/DavidWright_CNN/status/876813652183187456">attack on the rule of law</a> itself. The onus would fall squarely on Congress to <a href="https://newrepublic.com/article/143293/trump-fires-robert-mueller-impeached">either initiate impeachment proceedings</a> or else acquiesce in a presidential power grab.</p>
<p>As Sen. Heinrich noted, when witnesses refuse to answer questions but fail to provide any sufficient legal reason for doing so, they are <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">obstructing investigation</a> – preventing Congress from carrying out its inquiry. If other senators agreed, they <a href="https://www.vox.com/2017/6/14/15796078/jeff-sessions-testimony-russia-donald-trump-comey-fbi">could vote to cite the witness(es) for contempt</a>, which could lead to criminal prosecution.</p>
<p>Congress could also threaten to hold up Trump’s nominations to key positions such as federal court judges, or refuse to move on the administration’s legislative priorities like tax cuts for high earners (it <a href="http://markrozell.gmu.edu/wp-content/uploads/2014/05/Presidents_Executive_Privilege_Rozell_and_Sollenberger.pdf">took some similar actions</a> in response to Nixon). Congress could even begin impeachment proceedings if it decided presidential misconduct rose to the constitutional level of “high crimes and misdemeanors” – for instance, if Mueller’s investigation concluded that there is evidence to support this conclusion.</p>
<p>Of course, since Republicans are members of the same party as the president, none of this is likely – yet. But if Trump administration officials continue to make investigation difficult, and if Trump escalates an already tense situation by continuing to question Mueller’s legitimacy or even by firing the special counsel, Republicans may face <a href="http://talkingpointsmemo.com/edblog/a-very-very-dangerous-situation">a crucial test on behalf of American constitutional democracy</a>.</p><img src="https://counter.theconversation.com/content/79537/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Edelson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Laws that limit presidential power won’t enforce themselves – Congress must act.Chris Edelson, Assistant Professor of Government, American University School of Public AffairsLicensed as Creative Commons – attribution, no derivatives.