//  5/17/17  //  Commentary

Yesterday, writing in the Guardian, I addressed a tough question: how should we think about legal inquiries that consider state of mind when dealing with President Trump, a man for whom "intent" is often ephemeral, incoherent, or seemingly non-existent.  As I noted, this problem has arisen in many contexts, from the Muslim Ban and sanctuary city litigation to debates over the Comey firing and sharing secrets with Russia.

Last night, a new context emerged: Trump's request that Comey terminate the ongoing FBI investigation into Michael Flynn.  Legal experts are now debating whether Trump violated the federal obstruction of justice statute—in particular, whether he acted with a "corrupt" state of mind within the meaning of federal criminal law.

In my op-ed, I cautioned against judicial "intent fatigue" and identified reliance on Congress as one way to keep intent inquiries front and center:

As some have warned, we face a creeping risk of “intent fatigue,” in which an endless flood of cases built around Trump’s state of mind sparks a judicial backlash. Federal courts have no interest in parsing every last Trump tweet for signs of illegality. When push comes to shove, some may prefer to pull up the drawbridge entirely, rather than pursue an expedition into Trump’s motive for the latest doubtful executive order.

If that occurs, there are several potential responses. One is to rely on doctrines, like the establishment clause “objective observer” test, that evade any need to consider subjective intent. Another route is to invoke rules like the foreign emoluments clause, which prophylactically bars a whole category of transactions to prevent any need for case-by-case analysis of corrupt intent. A third path is to present intent-based arguments to Congress and other actors, in hopes that they will intervene either publicly or behind the scenes.

Following yesterday's events, this "third path" will loom larger and larger.  

In assessing Trump's comments to Comey, courts are not likely to play an important role: it is improbable that federal prosecutors at the Department of Justice would bring criminal charges against President Trump for interfering with an ongoing investigation, even if they believed that they could prove their case beyond a reasonable doubt.  

Instead, the main action will be on the Hill.  By virtue of its oversight and investigatory powers, Congress has the capacity to obtain far more evidence of presidential intent than has yet been made public.  It also has the prerogative to check and balance the President, whether through impeachment proceedings or many other tools, and to do so on the basis of its own judgments regarding Trump's subjective motive.  Indeed, Congress could take action to control the President even without reaching definite conclusions about his motivations, if it determined that Trump's conduct is so harmful to the rule of law and our constitutional order that he must be stopped.

Put simply, Congress can check Trump—and impeach him—without agonizing over the vagaries of "corrupt intent" within the meaning of the obstruction statute.  If a thorough review of Trump's entire course of conduct with respect to Flynn, Russia, Comey, and the FBI leaves Congress with a clear impression that the President has acted contrary to the basic structure of our constitutional scheme, it can draw upon its formidable legal arsenal to remedy the situation.  

Of course, this is not to say I'm optismistic that Republicans in Congress will actually do anything.  Thus far, they have placed party above all else.  This is particularly galling behavior from a group that spent the past eight years obsessing over "tyranny" and promising "liberty."  But over the past 24 hours there have been reports that some Republicans now recognize that Trump is a problem they must face directly.

If and when they do, questions of motive will remain important—if not formally, then practically.  Trump's apologists will insist, however implausibly, that there are perfectly innocent explanations for anything and everything he's done.  That claim of good faith will anchor Trump's defense and must be squarely defeated to sink it.  Moreover, lawyers and journalists (and the public) will care about whether Trump has in fact violated relevant federal criminal statutes, all of which contain mens rea elements.  And while Trump's actions are plenty alarming even without reference to motive, the notion that he might have taken these actions with an evil or corrupt state of mind is so disturbing that we have no choice but to address the question directly.

In sum, while inquiries into motive need not control legal analysis of Trump's recent conduct, such questions will inevitably shape public (and legal) understanding in profound ways.  Sadly, that means we're all about to voyage still deeper into Trump's psyche.  This may be a path to madness, but there is no other way forward. 


Appoint a Special Prosecutor, not an Amicus, to Challenge Arpaio’s Pardon

9/12/17  //  Commentary

This would ensure that the novel constitutional questions surrounding the pardon receive full adversarial testing

Andrew Crespo

Harvard Law School

Uphold the Oath

9/7/17  //  Quick Reactions

Federal employees are publicly reaffirming their loyalty, patriotism, and commitment to the Constitution.

Jon D. Michaels

UCLA School of Law

Versus Trump: Versus DeVos (Re-Air)

9/7/17  //  Commentary

On this week’s episode of Versus Trump, as summer ends and a new school begins, we re-air Jason's interview with Toby Merrill, the director of the Project on Predatory Student Lending at Harvard Law School, about several lawsuits she's involved with against newly-confirmed Secretary of Education Betsy DeVos. We'll be back soon with new episodes.

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco