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Why Justin Amash Should Be an Impeachment Manager

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I’m sitting about six blocks from one of Gerald Ford’s childhood homes. That means I live in a city with an outsized role in America’s history with impeachment. Since the time I’ve lived in this city, our Federal Building added a sign reading (over-optimistically), “Our Constitution works; our great Republic is a government of laws and not of men.”

It also means I’m a constituent of Justin Amash, who has an office in that Federal Building named after Gerald Ford.

And I’m solidly in support of the idea — floated by thirty freshman Democrats — for Amash to be among the Impeachment Managers presenting the case in the Senate.

I think Amash brings several things this impeachment effort could badly use.

First, Democrats missed an opportunity in the House Judiciary hearing on Constitutional issues behind impeachment to call someone like Paul Rosenzweig, a Republican who worked on the Whitewater investigation, who backs impeachment in this case. While a bunch of Democratic lawyers were testifying, Amash was and has continued tweeting to his colleagues about how important impeachment is to the Constitution. It is critical to have a voice making the conservative case for upholding the Constitution. Just this morning, a long time local Democratic activist I was speaking to was hailing how Amash has used his University of Michigan law degree to make the case for impeachment.

Meanwhile, even as the national press has spent countless hours interviewing demographically unrepresentative panels of voters from my county to understand how swing state voters feel about impeachment, Amash has risked his career in that swing state district. Well before queasy Democrats in swing districts came around to the necessity of impeaching President Trump, Amash left his party and took a stand to defend the Constitution. I think his courage may serve as inspiration for Republicans in the Senate who secretly recognize the necessity of impeaching Trump, even while they may worry they’ll ruin their political career. Amash also has close ties with (especially) Rand Paul and other libertarian leaning Senators (like Mike Lee and Ted Cruz), so might be persuasive with them, even if all of them have already basically opposed impeachment.

Finally, a point that some of the more hawkish people involved in impeachment (like Adam Schiff) may not understand, Amash works really well in bipartisan coalitions. He has long been a key member of the privacy coalition and currently serves as the “Republican” co-chair, with Zoe Lofgren as the Democratic co-chair, of the Fourth Amendment coalition. The cornerstone of that coalition, over more than a decade, has been honesty about where progressives and libertarians (and even traditional conservatives) share goals and where we disagree, sometimes dramatically. But with that cornerstone of shared understanding, and with a sense of responsibility for what each side can and should do to support the Constitution, he has been an invaluable member of a team. Some of the people who might also be considered as Impeachment Managers — like Jamie Raskin — would have experience with Amash in such a context. At the very least, Lofgren should be able to give Pelosi reassurances that Amash is utterly reliable when working as part of a bipartisan coalition. This is a topic, the President’s abuse of his authority, on which Amash took a Constitutional stand, which is precisely the kind of common foundation his past work with Democrats was built on.

I don’t get a vote. Speaker Pelosi gets to decide. But as an Amash constituent who has long found common ground with Amash on issues rooted in the Constitution, I think his involvement would be a tremendous value.

The Grand Rapids Gerald Ford Tribute Reporters Should Visit

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The President is coming to my town today.

Don’t worry. I’ll be fine. June Bug the Terrorist Foster Dog is out on sentry duty, so there’s no chance that Trump will stop by for a visit.

But the coincidence of the release of the Barr Memo spinning the Mueller report with Trump’s visit is leading to think pieces written by outsiders portraying activists on both sides of the Trump divide, as if Grand Rapids has suddenly become the measure of how the Mueller Report — once the actual report is released — will affect Flyover Country.

Predictably, the WaPo piece makes much of Gerald Ford’s ties to Grand Rapids as a way to suggest we’ll see a parallel moment of healing to one purportedly brought by Ford’s pardon of Nixon.

At the Gerald R. Ford Presidential Library, a husband and wife, both flight attendants on a 24-hour layover in Grand Rapids, looked at black-and-white photos of that earlier era. Usually they only talk politics, they said, when they are traveling overseas and the people they meet bring it up. Almost always, people want to know what’s gone so wrong with the United States.

“You don’t want people to think of your country that way,” the husband said.

“There’s too much anger,” his wife replied. “We try to keep aloof from it all.”

In the background, the speech Ford delivered from the Oval Office on Sept. 8, 1974, pardoning Nixon, played on a loop, echoing through the empty rooms. Etched nearby on a wall was a line from Ford’s autobiography explaining the decision that would lead to his election defeat in 1976. “America needed recovery, not revenge,” Ford wrote. “The hate had to be drained and the healing begun.”

The passage makes an error. Ford’s Presidential Library is not in Grand Rapids. His papers — along with Dick Cheney’s earliest records of how to exploit a bureaucracy as Chief of Staff — are on the campus of University of Michigan, two hours from here. What the parachute-in journalists were visiting was the Ford Museum, which features an exhibit that (in my opinion) stretches to claim some kind of accomplishment from Ford’s half term.

The monument to Ford I find more salient, however, is a glass sign that has been put up outside our Federal Building, also named for Ford, since I moved to town less than a decade ago. The sign quotes just one line of the most famous passage in Ford’s speech on being sworn in. Not the “our long national nightmare is over.” But this line:

Our Constitution works; our great Republic is a government of laws and not of men.

Even with Nixon’s pardon, Watergate was the last time that flunkies of the President did real time for actions that served the man and not the Constitution.

But Barr’s memo seems to eliminate all possibility that will happen again (if his Iran-Contra intervention didn’t already). That’s because he effectively permitted the President to float pardons to systematically obstruct an investigation, and then usurped Congress’ role in determining whether in doing so the President had violated his oath of office.

We don’t know what the will happen when the actual Mueller Report is released. We don’t even know what it says.

But if you want to take a lesson from Grand Rapids’ most famous resident, it’s that even Ford’s overly optimistic victory lap may no longer hold.

By “Secret Law” Did They Mean “Not Written Down”?

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For years, Ron Wyden and Mark Udall have been calling the secret interpretation of Section 215 “secret law.”

I’ve always thought they meant that figuratively. The law got made by the FISA Court in secret, but there’s an opinion there somewhere, laying out the interpretation of the law. It’s just secret.

Ever since the release of the first documents responsive to the EFF/ACLU FOIAs, I’ve begun to wonder. What we’ve seen include:

Neither of those were comprehensive. And the “supplemental opinion” would seem to suggest it supplemented … something.

Yesterday, we got what appears to be a (shoddy) comprehensive opinion.

That opinion cites an earlier opinion from the FISA Court that is not, however, cited in either the 2006 or 2008 opinions. That earlier opinion examines how bulk collection affects the Fourth Amendment.

Here, the government is requesting daily production of certain telephony metadata in bulk belonging to companies without specifying the particular number of an individual. This Court had reason to analyze this distinction in a similar context in [redacted]. In that case, this Court found that “regarding the breadth of the proposed surveillance, it is noteworthy that the application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy.” Id. at 62. The Court noted that Fourth Amendment rights are personal and individual, see id. (citing Steagald v. United States, 451 U.S. 204, 219 (1981); Rakas v. Illinois, 439 U.S. 128, 133 (1978) (“‘Fourth Amendment rights are personal rights which … may not be vicariously asserted.,) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))), and that “[s]o long as no individual has a reasonable expectation of privacy in meta data, the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.” Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.

[snip]

Furthermore, for the reasons stated in [redacted] and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. [my emphasis]

Note while this pertains to metadata, there’s no indication it addressed phone metadata.

Later, it cites two earlier FISC cases.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”  [my emphasis]

Both, apparently, relied on the Pen Register statute, not Section 215, and one was fairly recent (2010 — perhaps that’s the geolocation one?).

But it appears not to reference an earlier Section 215 phone metadata case, not even to lay out the rationale for relevance and bulk collection.

In addition to references to these earlier apparently non-215 phone data precedents, Eagan also cites the government’s 2006 Memorandum of Law.

Accompanying the government’s first application for the bulk production of telephone company metadata was a Memorandum of Law which argued that “[i]nformation is ‘relevant’ to an authorized international terrorism investigation if it bears upon, or is pertinent to, that investigation.” Mem. of Law in Support of App. for Certain Tangible Things for Investigations to Protect Against International Terrorism, Docket No. BR 06- 05 (filed May 23, 2006), at 13-14 (quoting dictionary definitions, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), and Fed. R. Evid. 4012°).

Normally, a judge would cite a precedential opinion, showing that another judge had agreed with such definitions. Not here. Eagan cites the government’s own memorandum for the definition for relevant. (She cites that memorandum at least two more times in her opinion.)

Which seems to suggest this 2013 opinion — one written after widespread leaks of the program — constitutes the first opinion systematically rationalizing this program.

Well over 7 years after it started.

There’s one more detail that seems to support this conclusion. The White Paper describes how the Administration shared significant FISC materials with the Intelligence and Judiciary Committees.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.

So in 2007 DOJ started providing “all significant pleadings.” By the end of the following year — perhaps not coincidentally, the same month Walton wrote his supplemental opinion — the committees got “the initial application and primary order.”

The initial application (including, presumably, that same 2006 Memorandum of Law cited by Eagan) and the primary order, the same order we got last week. No mention of the initial opinion.

It appears there is no initial opinion.

One more detail that I’ve mentioned, but bears mentioning again. The judge that appears to have allowed the government to start collecting the phone records of every American without laying out his legal rationale for allowing them to do so, Malcolm Howard? He served as Deputy Special Counsel in the Nixon-Ford White House, when a young Dick Cheney was learning the ropes as Assistant to the President and then Chief of Staff.

Perhaps they learned the ropes together?

Update: Remember how the White Paper had to dig up an outdated version of the OED to support its definition of “relevant”?

the Administration decided to use a 24-year old edition of the Oxford English Dictionary for this definition.

Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon, connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561 (2d ed. 1989).

Note, that appears to be the same one used in the 2006 Administration Memorandum of Law. There’s nothing that surprising about that — I suspect substantial parts of the White Paper were lifted from that Memorandum.

But it is the kind of thing both Malcolm Howard and Claire Eagan might have challenged — and an adversary probably would have.

It appears neither did. Which is just one measure of the degree to which those judges simply rubber stamped whatever the government put before them.

The Only Picture on Dick’s Wall

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I hate to keep harping on Politico’s blowjob for Cheney. But I’ve been obsessing all morning by this picture accompanying the story, showing the sole picture hanging on the wall of Cheney’s office (click to enlarge; the other Politico pictures show a lot of family pictures on furniture, but this appears to be the only one on the wall).

How odd, first of all, that an article trying to redeem the Bush-Cheney failed presidency gives pride of place to an earlier historically unpopular President, Gerald Ford. And how odd that this picture accompanies this statement–highlighted by Peterr. 

Not content to wait for a historical verdict, Cheney said he is set to plunge into his own memoirs, feeling liberated to describe behind-the-scenes roles over several decades in government now that the “statute of limitations has expired” on many of the most sensitive episodes. [my empahsis]

See, I’m interested in Cheney’s focus on statute of limitations and on that picture for several different reasons.

Cheney talks about statutes of limitations going back decades. But of course, the ones that would be expiring now would be those for crimes he committed (he seems to be admitting) during the Bush Administration–those crimes committed about five years ago, in many cases.

A number of smart lawyers have been reminding me via email of late that, while the statute of limitations on things like FISA violations may be expiring in the coming weeks, the statute of limitations on any conspiracy to cover up those crimes would not expire until the conspiracy to cover-up those crimes was over. 

Except.

Except that that is only true for as long as Bush and Cheney tried to hide their crimes from law enforcement. You know–from people over at DOJ like Alberto Gonzales and John Ashcroft. If, for example, Cheney ordered the future AG to go to then-current AG John Ashcroft and tell him they were going to violate FISA even though Jim Comey told them not to, then they couldn’t very well be accused of covering up the crime from DOJ, could they? Keeping DOJ in the loop at each stage of the process seems to innoculate the White House–to some degree–from this kind of cover-up charge.

Maybe the smart lawyers can explain in comments how this works. Read more →