ELLIOT D. COHEN FOR BUZZFLASH AT TRUTHOUT
On Friday, February 9, President Donald J. Trump blocked release of the Democratic Party’s ten-page Russia memo that attempts to rebut the Republican Russia memo, and sent it back to the House Intelligence Committee for redaction. The President has alleged that the memo contains sensitive information that cannot be released. However, the President has a conflict of interest that arguably legally disqualifies him from making such a decision in the first place.
Trump released the Republican memo even though the FBI warned that it contained sensitive information that could jeopardize national security. In fact, he announced that he would release it apparently before he even read it. Then, after releasing it, he tweeted that it “totally vindicated” him and showed that there was “no collusion” between him and Russia during the 2016 presidential election. Now, Trump refuses to release the Democratic memo which attempts to refute the validity of the Republican memo, alleging that it contains sensitive information that could jeopardize national security. However, Trump can’t have it both ways. His impartiality in deciding against releasing the Democratic memo can therefore be reasonably questioned in light of his double standard. It is not remarkable, therefore, that the question may be raised as to whether permitting a sitting president such authority is even legal. In fact, there is federal law that may disqualify Trump from attempting to make a decision involving even the appearance of such a conflict of interest.
According to paragraph (a) of 28 U.S. Code § 455 (‘Disqualification of justice, judge, or magistrate judge”), “any…magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Further, the President of the United States serves as the nation’s “Chief Magistrate.” The president is the chief magistrate of the United States just as the governors are the chief magistrates of their respective states. A Chief Magistrate is “the head of the executive department of government of a nation, state, or municipal corporation.” Indeed, this judicial, discretionary authority to make judgments within the confines of the Constitution was adopted from English law and asserted from the nation’s very inception by Alexander Hamilton and George Washington.
There is no doubt that in deciding whether it would even be lawful to release the Democratic memo, and if so, in what form, Trump would be exercising judicial discretion in his capacity as Chief Magistrate. This is because any decision to release the memo presupposes the judgment that it is lawful to do so. However, pursuant to the aforementioned federal law, magistrate judges whose impartiality might reasonably be called into question must disqualify themselves.
True, according to 28 U.S. Code 451, “the term ‘judge of the United States’ includes judges of the courts of appeals, district courts, Court of International Trade and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior.” However, this definition clearly states what the term includesbut does not exclude the application of the term to the Chief Magistrate. The legal argument that it cannot be so appropriately applied would therefore require convincing case law, and the burden of proof would be on those who made this claim to produce such case law.
It is also true that the President has broad constitutional powers to classify and declassify information that bears on national security. According to Department of the Navy v. Egan, 484 U.S. 518 (1988), “the authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.” However, the Court clearly refers to the power of the president to protect such information for national security purposes, not to protect it for self-serving purposes. The Trump conflict of interest therefore makes a mockery of the rule of law, using the Constitution as pretext to protect himself at the expense of potentially obstructing justice. After all, the information in question (FISA warrants obtained on a former Trump campaign advisor, Carter Page) has bearing on the Mueller investigation into whether Trump was participating in collusion with the Russians during the 2016 presidential election, and possibly prior to it. It is not plausible to think that the framers of Article 2 of the United States Constitution had such nefarious purposes in mind when they framed it. The oath of office pursuant to Article 2 Section 1 states that the president swears to “preserve, protect, and defend the U.S. Constitution,” not himself. Using the U.S. Constitution as a pretext to allow a sitting president to protect himself from a criminal investigation eviscerates the very spirit of the document and the rule of law itself.
The logistical problem now is that the President sent the memo back to a committee controlled by the Republican majority chaired by Devin Nunes, a principle author of the Republican memo. Effectively, this creates a further conflict of interest since it now falls to the drafters of the opposition memo to determine what the final Democratic memo will exclude. Inasmuch as the President’s original action to send the memo back to Committee is itself illegal, the current situation of having the memo rest with those who have a further conflict of interest is itself both legally (as well as ethically) suspect. The clear ethical and consistently legal solution would be to have the Democratic minority of the Committee led by Adam Schiff work exclusively with the FBI and Justice Department to repair any potential national security issues concerning the memo.
Pursuant to 28 U.S. Code § 144, “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” Following this line of argument, another magistrate should be assigned in lieu of the Chief Magistrate. While a strict letter interpretation of 28 U.S. Code § 144 and § 455 would find otherwise, we now appear to be in unchartered legal waters where a sitting president appears (and appearances matter legally here) to be using his constitutional powers to obstruct a criminal investigation into himself. A broader interpretation of the legal grounds suggested here for reinterpreting presidential authority would be a far more consistent interpretation than a strict letter approach. The latter only makes a travesty of the Constitution and the rule of law.