Mark Weaver on Article II Powers

The Columbus Dispatch asked Mark Weaver from our firm to write an op-ed about the Article II power of the President to hire/fire Justice Department employees, including the special prosecutor.

Mark think's it would be a bad idea -- but manifestly legal -- to do so. Click here or read below.

Status of special counsel raises some issues

Presidents have power to appoint or fire anyone in executive branch

Mark R. Weaver

Ohio winters remind us that water has three forms — the hot liquid we drink, the steam we exhale and the ice we clear from the driveway. Federal government power is similarly constituted in three different ways, between the legislative, executive and judicial branches.

At the Constitutional Convention of 1787, the Founding Fathers wrestled with how to fairly distribute power among government actors. The notion of power resting in one entity evoked painful memories of the royal yoke these leaders had recently thrown off their countrymen. They resolved the problem by distributing federal lawmaking power to Congress, the execution of those laws to the president and the authority to resolve constitutional disputes to the courts.

Which leads to the question of whether a president has the authority to fire a special prosecutor or appoint an attorney general who may forestall a special prosecution. Some claim that “rule of law” prevents a president from doing so. Like the first glaze over a freezing pond, this position may seem substantial at first glance, but a few tentative steps reveal cracks in the support.

Unfortunately, amid the latest season of “Let’s All Fight About Trump,” calm discussions about presidential power get whipped into political catcalling.

These issues existed before the Obama and Trump follies and will continue thereafter. The Constitution gives all executive-branch authority to one person — currently, Donald Trump. All executive-branch officials, from the lowest file clerk to a four-star general, derive their power from the president’s will and can be stripped of that power on the president’s whim. Only the most limber of legal yoga practitioners can twist the straight iron rod of executive-branch power into the pretzel notion that such power belongs to someone other than the executive himself.

It may feel like a conflict to acknowledge that a president can fire an attorney general or a special prosecutor poking around in his political attic. Yet the Constitution permits it.

Indeed, other branches have constitutionally permitted conflicts. A congressman speaking on the House floor can defame and falsely ruin the reputation of a private citizen. Yet the Constitution protects that official from lawsuit or prosecution.

And when a legal dispute emerges surrounding the pay raises of the members of the Supreme Court, the justices themselves are permitted — indeed required — to resolve it. The conflict is manifestly constitutional.

Lest you think that a president’s decision to fire a special prosecutor would have no check or balance, it’s crucial to remember that, in constitutional physics, every government action has an equal and opposite reaction. In response to presidential powers of appointment and termination, Congress maintains the powers of confirmation, budgeting and even impeachment. And, for cases properly brought, the Supreme Court may judicially review.

Some suggest notions of propriety or long-held custom require us to find another way forward. But ignoring the express mandate of the Constitution to step around the pothole of a mere conflict trips the traveler into the adjacent abyss of anarchy.

One of history’s greatest Ohioans — Chief Justice William Howard Taft — wrote in a landmark decision about executive power, “the President is empowered by the Constitution to remove any executive officer appointed by him.” Yes, this includes firing Deputy Attorney General Rod Rosenstein or special counsel Robert Mueller.

I’ve worked as a special prosecutor in a dozen Ohio counties. I’m familiar with the political pressures that come with the territory. And, when I served as a presidential appointee at the Justice Department in Washington, I saw how the attorney general wields power. Yet the origin of that power is the president.

We can disagree and take political actions when a president exercises his powers. But we should not — and cannot — claim he lacks the power to do so.

After all, our founding document contains more than just helpful hints. These are the powerful and compulsory tenets of a nation of laws. In a republic such as ours, the Constitution is no parchment tiger.

Mark R. Weaver is a Columbus attorney and communications adviser. He was formerly deputy attorney general of Ohio. He is the author of the recently released book "A Wordsmith's Work." @MarkRWeaver

Mark Weaver's Op-Ed on Kavanaugh

Both the Daily Caller and the Cincinnati Enquirer published Mark Weaver's recent op-ed on the allegations against Judge Kavanaugh. Read below or click here for the link.

Kavanaugh allegation wouldn't hold up in court

By Mark R. Weaver

Just when you thought the Supreme Court nomination process couldn’t get any more partisan or divisive, Washington pulsates with a new level of political pandemonium. Christine Blasey Ford now claims nominee Judge Brett Kavanaugh attempted to grope her at a drunken high school party in 1982. If she’s telling the truth, it was an inexcusable criminal act. If she’s not, it’s a despicable political smear. 

As a prosecutor, I’ve often reviewed allegations like this, to determine whether charges should be brought. Typically, filing a criminal case nearly four decades after an incident is all but impossible, either since the applicable statute of limitations bars prosecution or because of a scarcity of corroborating witnesses who can testify clearly and convincingly. If I do bring a case, I have a high burden of proof.

But the burden of proof in politics is largely amorphous in a polarized environment where tribal instincts overthrow logic and cool consideration. With the Kavanaugh allegation, you don’t need a weatherman to know that category five cognitive dissonance will bring a storm surge of partisan-driven conclusions. While we’re all entitled to have our own view about whether this stale accusation is true, spouting opinions is easy and discerning facts is hard. The latter is the arduous work of a prosecutor. 

When I prepare a case for indictment and trial, I must hew to the rules of evidence and the canons of ethics. These legal dictates sometimes hamper my mission and always limit my options. That’s why, when black letter law blends with the gray hues of distant memories, you can color me dubious about getting a conviction.

Obstacles to truth-finding abound here. For one, an attorney representing Ford steered her to a polygraph examiner, who deems the assault allegations genuine. While the lawyer certainly knows that notoriously unreliable lie detector data are almost always inadmissible in the court of law, political operatives recognize that polygraph results are exuberantly embraced in the court of public opinion.

Similarly, allegations in court must be made under oath, where the witness risks prison if she perjures herself. There are no so such constraints in media testimony. True or not, the more heinous the allegation, the more hyped the reporting. Clicks are acquired, ratings points are scored and public opinion begins to shift.

Claims brought to trial face a rigorous testing. After evidence is presented, the judge will tell the jury how to determine whether the assertions were proven. Jurors must use the same common sense they employ when making important life decisions like buying a car or taking a new job.

Given the court rules barring it, a jury reviewing Ford’s claim would never hear about the polygraph. And during deliberations, jurors would discuss the fact that Ford had been drinking at the time, to the point where she forgot how she got home. Common sense would lead many of them to believe that alcohol and the passage of time made her memory less reliable.

Ford’s account suggests that another young man saved her from the clutches of Kavanaugh. He specifically denies that the event ever occurred. Jurors would likely give his third-party account significant weight, changing what was a he-said, she-said narrative to a question of they said, she said.

Indeed, unless the facts, evidence, or witness list changes in the Kavanaugh conflict, a court case alleging sexual assault would probably fail. Of course, the U.S. Senate has a different standard and each senator is free to decide these issues of credibility and evidence differently. After all, advice and consent lie in the eye of the beholder.

No matter what the age or blood alcohol level, sexual assault is a heinous act. That’s why victims ought to report such crimes immediately. We should empathize with the reluctance of abused women to draw attention to an embarrassing and painful incident. Yet due process requires that claims brought forward decades later – particularly when rancorous politics is woven into the context – draw the highest level of skepticism.

Mark R. Weaver is the former deputy attorney general of Ohio. He is a lawyer and author of the book “A Wordsmith’s Work.” Twitter: @MarkRWeaver


Mark Weaver on Urban Myer Crisis

Mark Weaver from our firm was interviewed by several media outlets about the ongoing Urban Meyer crisis at Ohio State. Read below or click here.

Who is on the panel investigating Ohio State coach Urban Meyer?

By Laura A. Bischoff

COLUMBUS — 

The six-member panel appointed to investigate Ohio State Head Football Coach Urban Meyer is loaded with insiders who have watched Buckeye football games from the university suite and traveled to bowl games.

The panel includes three current trustees — Columbus Partnership chief executive Alex Fischer, business attorney Alex Shumate and hospital administrator and consultant Janet Porter — as well as former trustee Jo Ann Davidson, a well-connected Republican leader. The other two members — Craig Morford and Carter Stewart — are former U.S. Department of Justice officials.

RELATED: Urban Meyer issues statement regarding handling of domestic violence allegations

Trustees and former trustees are invited to the university suite at Ohio Stadium for home games and to travel to bowl games. Records show that Davidson, Shumate and Fischer have traveled to multiple bowl games as part of the university’s official party over the past decade. Stewart was a guest in the university’s stadium suite in 2012, records show.

“Most people in Columbus are supportive of Ohio State at some level, some more, some less. It would be unusual and difficult to cobble together a group of people that didn’t have opinions about Ohio State as an institution,” said Mark Weaver, an attorney and crisis communications consultant. “So it’s no surprise that people of this caliber would already have some involvement with Ohio State.”

He added: “This feels like a good mix to me.”

Davidson: Appointed OSU trustee by then Gov. Bob Taft, Davidson served on the board 2001 to 2010. She served 10 terms in the Ohio House and was elected speaker in 1995 — the first and only woman to hold the top legislative leadership post in the Ohio General Assembly. She runs a political consulting firm, chairs the Ohio Casino Control Commission and founded a leadership institute for up and coming Republican women. She co-chaired the Republican National Committee 2005 to 2009.

Fischer: Appointed trustee in 2014 by Gov. John Kasich, Fischer has led the Columbus Partnership since 2002 and currently is chairman of Nationwide Children’s Hospital. Previously, Fischer was an executive at Battelle, a Columbus-based research and development organization. He holds bachelor and master’s degrees from the University of Tennessee.

Morford: A former U.S. Department of Justice official who supervised 93 U.S. Attorney’s offices, Morford now directs the legal, regulatory and compliance affairs for Columbus-based Cardinal Health, a drug distributor and health care service provider with 50,000 employees in 60 countries. He earned his law degree from Valparaiso University and a bachelor’s from Hope College.

Porter: Appointed OSU trustee in 2017 by Gov. John Kasich, Porter has 40 years of experience in hospital administration and public health. In 2012, she joined Stroudwater Associates, which consults academic medical centers, specialty hospitals, drug makers and others. She holds an MBA and doctorate from University of Minnesota and a bachelor’s and masters of health administration from OSU.

Shumate: Shumate is a managing partner at Squire Patton and Boggs where he counsels clients on businesses on regulatory and legislative issues. He has been off and on the OSU board since 1989. He holds a bachelor’s from Ohio Wesleyan University and a law degree from University of Akron.

Stewart: former U.S. attorney for the southern district of Ohio, Stewart now managing director of Draper Richards Kaplan Foundation, which funds social entrepreneurs. He holds a law degree from Harvard and a master’s in education policy from Columbia and a bachelor’s degree from Stanford.

The panel hired an investigator: Mary Jo White, former chair of the U.S. Securities and Exchange Commission, former federal prosecutor for the Southern District of New York and current chair of the national law firm Debevoise & Plimpton.

The investigation is expected to be completed within 14 days, the university said on Sunday. The panel will provide advice and consultation to the full board of trustees.

After the investigation, OSU President Michael Drake will make a decision in consultation with the trustees.

Mark Weaver's Op-Ed on the Kavanaugh nomination amid the 150th anniversary of the 14th Amendment. 

USA Today and the Cincinnati Enquirer recently published op-eds from Mark Weaver from our company. Topic: the Kavanaugh nomination amid the 150th anniversary of the 14th Amendment. Read below or click here.

Opinion: Will Kavanaugh act like a legislator or a judge?

By Mark R. Weaver

Although Brett Kavanaugh was nominated to be a Supreme Court justice, he’ll actually have his choice of two different jobs – a judge who resolves legal disputes or a legislator who makes policy. The approach he selects will be driven by his view of the 14th Amendment, which was added to the Constitution 150 years ago this week.

Ratified amid the gusts of national changes following the Civil War, the portion of the amendment known as the equal protection clause was essentially intended to guarantee equal rights to newly freed slaves. There are academic tussles about this idea, but nearly everyone agrees federal judges have gone much further than that.

Some jurists who prefer a different policy outcome, shall we say, liberally use the amendment to strike down laws passed by state legislatures. In fact, federal judges invoke it as often as dads employ bad jokes. But while dad humor can be amusing, there’s nothing funny about how misuse of the equal protection clause has shifted power from the people to the unelected federal judiciary. 

Since the high court is largely split over how to apply the 14th Amendment, this debate is timely. As the court’s last term ended, some claimed justices “weaponized” the First Amendment. I disagree. A stronger case can be made that the 14th Amendment has been used that way. In a constitutional framework of checks and balances, this particular provision is a check – a blank check.

Kavanaugh certainly understands that the Constitution was drafted to strike a careful balance between state and federal power – the relationship better known as federalism. The term relationship is apt. On minor issues, federal and state leaders quarrel like siblings, and, on major ones, they fight like ex-lovers. If it’s misused by a Justice Kavanaugh, the equal protection clause will exacerbate those disputes and weaken our republic.

To a cloistered judge, it’s no doubt intoxicating to have this or that social movement praise you as their savior. Just ask Justice Anthony Kennedy, whose retirement tributes include fulsome thanks for giving constitutional support to same-sex marriage, after wielding – you guessed it – the equal protection clause. We saw similar farewell toasts to Justice Harry Blackmun, who, as the author of Roe v. Wade, unpacked the clause and discovered a pair of forgotten socks, some loose change, and a constitutional right to an abortion.

My argument is not that those two results are necessarily bad policy. Rather, in a representative democracy, thorny issues like gay marriage and whether women can legally abort their unborn children are best left to the elected, accountable representatives of the people – not to judges. Policies passed with such democratic accountability are more likely to be accepted by the nation than policy conjured by judges using the 14th Amendment as a magic wand.  

This became clear to me in grad school where I spent an entire semester discussing the meaning, application, and history of the 14th Amendment. That class convinced me that local governance by state lawmakers is better governance than that offered by black-robed intervenors in Washington. This notion is more than just common sense – it’s a floor joist of American government, firmly parallel to other foundational concepts like separation of powers and rule of law. 

In 1835, French author Alexis de Tocqueville toured our nascent nation. He showed aptitude for both observation and prophecy when he remarked that, in America, every political issue ultimately becomes an issue for the courts. He pronounced this 33 years before the 14th Amendment would make his reflection truer and the proof of it more commonplace.

Political questions belong in state legislatures, where, as a voter, you can toss out the rascals who pass laws you oppose. When policy issues come before unelected, life-tenured federal judges, the delicate balance of American law and government tilts against accountability. 

In his confirmation hearing for the Court of Appeals, Kavanaugh endorsed using the equal protection clause to get the right result yet, he has yet to employ judicial fiat to substitute his own policy choices for those of state legislators. These mixed views are worthy of discussion.

The president made his choice. Kavanaugh now has a choice: will his role on the Supreme Court be the toadying showmanship of a lawmaker or the quiet reflections of a judge? An expansive reading of the amendment we remember this week could make Kavanaugh a giver of laws while an interpretation more in line with separation of powers and federalism will make him a guarantor of justice.

Mark R. Weaver is the former deputy attorney general of Ohio. He is a lawyer and author of the book “A Wordsmith’s Work.” Twitter: @MarkRWeaver

Mark Weaver's Philadelphia Enquirer Op-ed on The Separation of Powers

Mark Weaver from our firm often writes op-ed columns for major newspapers in cities across America. Here's his latest, featured in the Sunday edition of the Philadelphia Inquirer. Topic: separation of powers. Click here or read below:

Are charges in Amtrak crash about justice or headlines?

By Mark R. Weaver

Playing childhood soccer in the fields of Montgomery County, one thing quickly became clear: the younger the players, the more likely they are to follow the ball around in an eager clump of arms, legs, and colorful jerseys. Children all want to kick the ball, so the notion of patiently staying in their assigned positions is often elusive. In time, they learn that the goals of the game are better achieved when players stay in their lane to wait for the ball or defend against the other team.

If Municipal Court Judge Marsha Neifield better understood this concept, she wouldn't have resurrected the criminal case against Amtrak engineer Brandon Bostian, the key figure in the May 2015 derailment that left eight passengers dead and hundreds more injured.

The public is justly outraged at Bostian's apparent negligence, given that the train accelerated to 106 mph on a 50-mph curve. Many no doubt applauded the judge's decision. But, like a jumble of youthful soccer players, the judge was playing outside her designated position. She substituted her own judgment for the prosecutorial discretion of the elected district attorney, who had determined that there wasn't enough evidence to prove Bostian acted with the "conscious disregard" the law requires for a prosecution.

While a judge overruling a prosecutor — particularly one under indictment like Seth Williams – might seem like justice to some, it creates troubling issues with the separation of powers inherent in our government.

Our founding fathers spent quite a bit of time in Philadelphia discussing how to protect their new nation from the abuses of power by the British monarchy. Indeed, 230 years ago this week, delegates began to arrive here to start deliberations that would result in the approval of the Constitution.

It's not hard to imagine Virginia's James Madison and Philadelphia's own James Wilson strolling down Market Street, discussing the ideas of Aristotle, John Calvin, and John Locke — all proponents of separating governmental power.

Wilson, who later served as a U.S. Supreme Court justice and was the first professor of law at what would become the University of Pennsylvania, saw a king who brandished the powers available to him in a way that created (in the words of the Declaration of Independence) "a long train of abuses and usurpations." Madison, Wilson, and their fellow delegates to the constitutional convention resolved to avoid the corruption that comes when too much power rests in any one office.

Their solution was as easy as the timeless childhood frolic of rock, paper, scissors. Everyone who plays this game quickly realizes that none of the symbols is all-powerful on its own. The same basic principle is the underlying reason why American checks and balances are fair. No branch has more power than the other.

Some judges don't like this notion much. They think the judicial branch gets the last word. They're mistaken.

Unlike judges, prosecutors are bound by rules of ethics that require them to only bring charges when they have good reason to believe they can prove each element of a crime. When that evidence is insufficient, they are ethically bound to decline prosecution. Indeed, Pennsylvania ethics rules give district attorneys a special role in the commonwealth's judicial system. They must not seek to simply prosecute and convict. They must, rather, be a "minister of justice." Sometimes, that means not bringing charges despite public demands.

In the criminal court system, district attorneys propose and judges and juries dispose. A judge has enough to worry about without taking on the responsibility of another player.

To the delight of the plaintiff's attorneys seeking millions of dollars for their clients, the victims of this horrific crash, Pennsylvania Attorney General Josh Shapiro has played along and agreed to prosecute. Keystone state residents ought to wonder whether that decision was more about achieving justice in the court of law or, more worrisome, achieving headlines in the court of public opinion.

When an Amtrak engineer derails a train, it can cause a lot of damage. But when a judge derails the separation of powers that keeps corruption and tyranny at bay, other types of damage ensue. We'd be wise to be concerned about both.

Mark R. Weaver, a native of Abington, formerly served as the deputy attorney general of Ohio and is the author of "A Wordsmith's Work" He teaches at the Ohio State University College of Law. @MarkRWeaver