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General News    H2'ed 2/8/18

Trump Disqualified from Judging Democrat's Russia Memo?

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President Donald J. Trump is presumed to have five days to decide whether the Democratic Party's ten-page Russia memo, responding to the Republican Russia memo, is to be declassified, with or without redaction, or blocked. However, the President has a conflict of interest that appears to legally disqualify him from making such a decision in the first place.

After all, the Democrat's Russia memo, as well as the previously released Republican memo, concern matters related to the Mueller investigation, which is investigating Trump himself. Trump's impartiality can therefore be reasonably questioned just as can the judgment of a judge presiding over a criminal case involving himself. In fact, there appears to be applicable federal law that disqualifies Trump from even attempting to render such a judgment.

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. Indeed, this judicial, discretionary authority to interpret the law 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. However, pursuant to the aforementioned federal law, magistrate judges whose impartiality might reasonably be called into question must disqualify themselves.

Evidence of Trump's lack of impartiality is obvious, and was manifest in the case of his decision to release the Republican memo composed by House Intel Chair Devin Nunes, when Trump said he would release it even before he read it. Therefore, Trump's impartiality can be reasonably questioned, which means he must disqualify himself pursuant to U.S. law.

Democratic Representative Adam Schiff has expressed concerns that Trump might redact portions of the memo that could embarrass Trump himself. The problem here is with the blatant conflict of interest that Trump confronts in this case. If there was ever a case for a president to recuse himself from exercising his official powers, this is, arguably, a very obvious one.

If Trump refuses to disqualify himself, the House can still override his decision by a floor vote. If it comes to it, this is what law and ethics may require.

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Elliot D. Cohen, Ph.D. is a political analyst and media critic. His most recent book is Technology of Oppression: Preserving Freedom and Dignity in an Age of Mass, Warrantless Surveillance(Palegrave Macmillan, 2014.) He is a Fellow at the (more...)

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