by Michael C. Dorf
In my Verdict column this week, I discuss the prospects for holding corrupt government officials accountable in the wake of the Supreme Court's unanimous decision in Kelly v. United States reversing federal convictions for the "Bridgegate" officials. I obliquely suggest that the Court has gone overboard (in this and prior cases) in narrowing acts of Congress that aim at corruption, even as I acknowledge a risk of over-criminalization. Here I want to briefly tie my observations on the Kelly case to yesterday's arguments in the Trump financial records cases.
In my column yesterday, I worried about the dangers of corrupt bullies being left unchecked by the law. Needless to say, I was referring not only to past acts in support of former NJ Governor Chris Christie but to present conduct by President Trump and his administration. In a response on Twitter, NYU Law Professor Rick Hills pushed back a little against my skepticism of the judicial decisions narrowing the federal statute that criminalizes deprivation of "honest services" as a form of corruption. Professor Hills warned of "the risk of Presidents’ pressuring federal prosecutors to bring 'honest services' and analogous cases against their political enemies." I countered that given the breadth of the criminal law, a vindictive administration will be able to target its political enemies with or without any particular provision of the criminal code. Professor Hills thought that nonetheless the "honest services" provision posed particular dangers.
Rather than attempt to resolve that debate, I now want to use it to note an analogy to the Trump financial records cases argued yesterday. In both arguments, Trump's lawyers pressed the point that whatever rule the Court establishes will be available against future presidents as well as Trump, which is, of course, true.
Indeed, for that very reason, one might think that the political stakes in the financial records cases are unclear. If Trump loses in the New York case, grand jury secrecy will almost certainly mean that his financial records do not become public until after the election. If Trump loses in the House committee cases, there will likely be further procedural wrangling over just which documents have to be turned over and a good chance that public disclosure there would not occur until after the election. Thus, most or all of the political damage could be to a future president rather than to Trump.
Could a future Republican-controlled chamber of Congress or local GOP prosecutor from the home state of a future Democratic president use a decision against Trump in the financial records cases as the basis for a campaign of harassment? That is a not-at-all hypothetical question.
To be sure, there is something infuriating about Trump's lawyers saying that Democrats should be denied a power that Republicans will abuse. But that's often the way one needs to think about constitutional law. It's what my former colleague Professor Vince Blasi has called the "pathological perspective." Professor Blasi argued that First Amendment doctrine ought to be fashioned in such a way that provides maximal protection against periods in which censorship is popular, but the point can apply more broadly to constitutional doctrine across the board.
I'll close by noting that one sometimes needs to balance competing pathological perspectives. The danger of a future Republican committee of Congress or local prosecutor using subpoena power to harass a Democratic administration is a real pathology. Benghazi, anyone?
But there's pathology in the other direction as well--the danger of giving Congress (or a local prosecutor) too few tools to oversee a corrupt and vindictive president. That's why Justice Breyer, who worried about a future Senator McCarthy in yesterday's oral argument, also worried about whether, under Trump's view of the case, the Senate Select Committee during Watergate lacked subpoena power.
Indeed, one need not look back to Watergate to see the dangers of a corrupt vindictive administration insufficiently checked by Congress. That particular pathology is all around us.