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What is this Florida International University Constitutional Law Professor saying?

Posted in Law & Justice, Social & Political with tags , , , , , , , on June 11, 2017 by xaipe

Er, perhaps I should correct that to simply say, “What the Fuck?!”

This is Professor Elizabeth Foley Price on MSNBC Live , which aired Sunday, June 11, 2017. To be as accurate as possible, I want to transcribe the part of her statement that contains the central argument offered in answer to the question posed by Ms. Witt regarding whether or not the POTUS can order the FBI to back off an investigation of Michael Flynn because Flynn is the President’s friend, i.e. that POTUS obstructed justice:

“To the extent people want to make this obstruction of justice, there’s a million reasons why this is not technically obstruction of justice, either as a statutory matter or a constitutional matter. But this point in particular about corrupt intent is even worse because, think about it, the President also has the authority, under Article II of the Constitution, to pardon people. But we don’t say, for example, that the President can’t pardon cert…er…a certain person because he has a corrupt intent. ‘He, he likes the guy, he’s known him for a long time; therefore, he can’t pardon him.’ The pardon power, like the power to head the investigative, or, er, rest of the executive branch, like the FBI, like the DOJ, is a plenary discretionary authority of the President. He can pardon anybody for any reason he wants to, ‘corrupt motive’ or no. And he can direct the investigation or non-investigation of anyone, ‘corrupt purpose’ or no.”

Wow. I’m going to state immediately that I am not a lawyer of any kind. Even our host only seemed to be able to attempt a rebuttal, making an honorable effort. Because I find this whole thing to be laden with words that sound like specific legal jargon, I’m going to look for terminology that could have a particular meaning within the law. I want to make sure that I don’t conflate any jargon-laden meaning with the plain meaning of the colloquial language, so I’m going to post the relevant material I find that might lead to understanding.

Obstruction of Justice: there’s a well covered federal statute that defines this legal term, 18 USC sec. 1505. Stated in the most simplistic manner, the first part of this statute deals with anyone withholding or destroying or concealing or lying about information requested in compliance with an investigation or proceeding. The second part deals with the act of interfering, by any means or manner, with the administration of the law, sought through inquiry or investigation, by any federal judicial or congressional proceeding.

Corrupt Intent: this one is pretty simple. Committing an act despite knowing it is illegal is corrupt intent. This is a broad definition, however. It should be noted that the above referred 18 USC sec. 1505 also contains language that suggests that anyone who seeks, “corruptly or by threats of force,” etc,  to impede said proceedings, is obstructing.

Plenary Power: again, this seems pretty straight forward. A plenary power gives complete authority over a particular area. Cornell University Law chooses an example from the Constitution, Article I, Section 8, Clause 3, which grants Congress authority over Interstate Commerce. The courts have viewed this as a plenary power, holding that State’s do not have the right to pass laws governing interstate commerce without the consent of Congress. Prof. Price is also correct that Presidential Pardon is considered a plenary power. There is some argument surrounding this; however, it has nothing to do with the POTUS’ power to direct the Offices of the Executive Branch.

(As an aside, here is an interesting article in the William & Mary Law Review that argues that it might be time to restrict the pardon power, giving an extensive history that begins with the concept in English Law. Of course, the paper does not argue that pardon power currently has limits. It just suggests that pardon power ought to be limited.)

Let’s take all that we’ve discovered so far & see if we can’t state her argument in syllogistic form.

Premise 1: POTUS cannot commit obstruction of justice with regard to directing FBI investigations because obstruction in this sense requires corrupt intent.

    Sub 1: The POTUS has “plenary power” to pardon people.

    Sub 2: The power to head the Executive Branch of government, including the FBI, is like the power to pardon, i.e. it’s a plenary power.

    Sub 3: Therefore, POTUS has plenary power to head the FBI.

Premise 2: Because POTUS has plenary power to head the FBI, he can direct investigations in any manner he sees fit, regardless of motive.

Conclusion: The POTUS cannot commit obstruction of justice with regard to directing FBI investigations. 

    It’s a fairly neat argument. Her assertions seem all to be represented, & the order I have given her premises seem to follow the logic…
    Who am I kidding? I can’t possibly take this seriously. Logic was thrown out the window the second she started down her “plenary” road.

    If we simply examine that singular statement about plenary authority, we’ll find the flaw as well as one of the most insane statements I’ve ever heard a lawyer utter. 

    First, she provides no relevant citation from the text of the Constitution or any legislation demonstrating that any plenary power to direct the Executive Branch en bloc exists. She speaks only generally to “Article II of the Constitution,” indicating no specific section or clause. Article II is concerned with establishing the Office of the President & delineating the powers of the Office in general, but the Constitution is mute on the subject of the FBI & its director.

    The FBI exists simply by force of will. In 1908, Attorney General Charles Joseph Bonaparte, just decided to hire his own team of DOJ investigators without request, without permission, & without objection. With tacit congressional & executive consent, his successor dubbed this new investigative arm the Bureau of Investigation.

    The FBI is organizationally under the Department of Justice (it was created out of whole cloth by an Attorney General, after all), & so far as I can tell the original directors were simply appointed by the Attorney General with no oversight or consent from any other governmental party required. It was in response to Hoover’s extremely long reign, & the incredible amount of power he had amassed from the information he’d gathered through often illegal or questionable means, that on his death the President & Senate assumed the authority for appointment & consent of the Director of the FBI respectively.

    It isn’t until 1976 that Section 203 of the Crime Control Act establishes that the person who fills the position of the Director of the FBI will serve a term of ten years & is appointed by the President with the advice & consent of the Senate. While the legislation doesn’t specifically state its purpose for creating this ten-year term, it didn’t arise in a vacuum.

    I refer here to a really fantastic piece in LawfareBlog by Andrew Kent, Susan Hennessey, & Matthew Khan, a brief history of the Crime Control Act of 1976. Essentially, it comes down to these small paragraphs:

    “When recommending enactment of the ten-year term, the Senate Judiciary Committee wrote a comprehensive report of its rationale, including:

    ‘The purpose of this bill is to achieve two complementary objectives. The first is to insulate the Director of the Federal Bureau of Investigation from undue pressure being exerted upon him from superiors in the Executive Branch. The second is to protect against an FBI Director becoming too independent and unresponsive.’

    As Chairman of the Judiciary subcommittee overseeing the FBI, Senator Robert Byrd said during a hearing on the ten-year term legislation that the FBI director must not use the Bureau as ‘a political action agency for the President,’ but cannot be allowed to turn the Bureau into a personal ’empire.’”

    I’m not sure I could or should add anything. It seems exceedingly obvious that this particular legislation was intended, as evidenced by the clear and convincing statements of the Judiciary Committee & its chairman during the crafting of the bill, to act as an affirmative check on the power of the POTUS to “direct” the FBI in any regard.

    Ultimately, Prof. Price’s point was to say that we really want to avoid thinking of indicting the POTUS in the usual way of criminal indictments. She wanted to alarm us about the Court having to “constrain the power of the POTUS,” though that is, ostensibly, the very role of the Courts in the practice of Judicial Review, a cornerstone principle unique to American jurisprudence (you might think a Con-Law Prof would know that).

    While I don’t disagree that criminally prosecuting a sitting President in courts of law is problematic at best & potentially unconstitutional, I have to again fault her for her words.

    Rather than point out the liquefied ground on which such a prosecution might rest–who would arrest & detain a sitting President, who would prosecute, & who would adjudicate?–she again retreats to language that belies her assertion by later stating that it would somehow be problematic for the Courts to perform their integral function of constraining the powers of the POTUS as a co-equal branch of government, especially given she believes these powers to be plenary, an assertion she also fails to prove as her premises fail to establish her conclusion.

    This is enough for me to question her fitness as a Professor of Law & a Juris Doctor, but I’m not quite finished.

    Let’s revisit the clear, plain language meaning of what Professor Elizabeth Foley Price of Florida International University said:

    “The pardon power, like the power to head the investigative, or, er, rest of the executive branch, like the FBI, like the DOJ, is a plenary discretionary authority of the President. He can pardon anybody for any reason he wants to, ‘corrupt motive’ or no. And he can direct the investigation or non-investigation of anyone, ‘corrupt purpose’ or no.

    Her final affirmative statement says, without equivocation, that the POTUS has absolute, unchallenged authority to command the FBI to investigate or not to investigate any person for any reason whatsoever, even if the motivation for ordering the commencement or cessation of the investigation is itself known to be illegal, immoral, or unethical!

    I’m going to rephrase that in case it stunned you into a fugue state: an American professor of American Constitutional Law at an American university apparently believes that the United States Constitution gives our POTUS the unassailable authority to use the FBI as his personal Gestapo!

    I’m not sure that a more clearly stated paraphrase can be cobbled together from any other language. Frankly, I’m pretty sure anyone stopping on a blog about “political & social philosophy” would have easily discerned this meaning immediately. I’m sure the one individual reading this already gleaned for him- or herself exactly what the professor was saying.

    Still, it is important to recognize that the reduction to absurdity isn’t The only thing fatal about her argument. The fact that her entire assertion reduces to, “POTUS can use FBI indiscriminately & without remorse or consequence, so he can’t obstruct justice” is a bonus to me. Her argument fails, both on its merits & on the fact that it renders an absurd subconclusion, i.e. that the power of POTUS over the FBI is plenary. Either way, she makes a case that she might not be fit to train young minds in the vagaries of United States Constitutional law.

    Does anyone have an email address for the President of Florida International University? I’d really like to ask him or her, “What the fuck?!”