But let’s slow down a bit. Although Mueller has warned Trump’s lawyers that he might subpoena the president if he refuses to testify voluntarily, he might well elect not to. The two sides could compromise on a deal for testimony on limited subjects or only in written interrogatories. Or Mueller might see the risks, delay, and other costs of starting a subpoena battle as outweighing the benefits—especially if the evidence he has gathered does not clearly implicate Trump in any serious crime. Mueller’s risk in starting a subpoena fight is that he might win less in the Supreme Court than he could have gotten in negotiations, or even lose entirely.

This last possibility is something that Trump’s critics greatly underestimate. The popular analysis is that the Supreme Court’s decisions in U.S. v. Nixon (1974) and Clinton v. Jones (1997) require the president to obey a subpoena to testify before Mueller’s grand jury. Harvard’s Laurence Tribe exemplifies those who hold such presumptions. “The Supreme Court held in the Nixon Tapes Case that executive privilege cannot overcome a grand jury subpoena,” he told Business Insider in March. “So Trump would have to answer every question or be held in contempt—unless he takes the Fifth Amendment.”

We are far less confident in this reading of Nixon and Clinton and that the Supreme Court would award Mueller an unqualified win. If Mueller subpoenas Trump to testify, and Trump fights, then the Court may well decide to limit the questions that the president must answer, if not quash the subpoena altogether. It would have leeway to deal such a setback to the special counsel within the parameters set in the Nixon and Clinton decisions. And whatever the justices may think of this particular president, they will show more care for the needs of the presidency than have the analysts who favor a total victory for Mueller in any battle with Trump.

Let’s begin with U.S. v. Nixon, in which the Supreme Court rejected President Nixon’s assertion of executive privilege in the face of special prosecutor Leon Jaworski’s subpoena for tapes, documents, and other materials relevant to the criminal trial of the Watergate burglars. The Court unanimously ordered Nixon to turn over to Jaworski the secretly recorded Oval Office tapes that he had subpoenaed. While the Court recognized that executive privilege provides some protection for a president’s confidential communications, it also ruled that this protection must give way to the prosecutor’s need for evidence “demonstrably relevant” to the pending criminal trial of several indicted Nixon co-conspirators.

Analysts like Tribe construe this as a blanket rule enabling the special counsel to subpoena not just Nixon’s tapes, but also the current president’s testimony. “US v. Nixon (1974) held the president must comply with a grand jury subpoena for his Oval Office tapes,” Tribe tweeted recently. “There is no basis for treating a grand jury subpoena for the president’s live testimony any differently.” This ignores the key limits and nuances of the justices’ analysis in the 1974 case. The Court did not conclude that the criminal process always outweighs executive privilege; rather, it concluded only that “the legitimate needs of the judicial process may outweigh Presidential privilege” (emphasis added).

Nixon’s mistake was in asserting too categorical a privilege—too broad in scope and too far removed from the specific case at hand. The Court rejected his assertion of “an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of non-military and nondiplomatic discussion.” And it then struck a careful balance: Absent a showing of military or diplomatic need for executive confidentiality, a subpoena for documents for which there was a “demonstrated, specific need . . . in a pending criminal trial” must be obeyed.

It is not hard to see defenses that Trump’s lawyers could mount. They could attempt to distinguish the two investigations by stressing that the case against Trump actually involves diplomatic sensitivities. It is, after all, a Russia investigation. And they could argue that U.S. v. Nixon only requires them to disclose documents for which the special counsel can provide a “demonstrated, specific need” in a “pending criminal trial.” Requesting information for matters not directly tied to an already-filed indictment could fall short.

And whereas Tribe and others discount the difference between a trial subpoena for tapes and a grand jury subpoena for testimony, the distinction seems important to the Court’s own analysis in U.S. v. Nixon for at least two reasons. First, in 1974, the Court stressed that the president’s tapes were to be screened first by the trial judge in camera—that is, secretly—so as to minimize the risk of improper disclosure. Could today’s justices feel confident that presidential testimony would not be leaked by someone, no matter Mueller’s directives or promises? Second, the Court stressed that merely divulging tapes would not expose Nixon to a risk of “being harassed by vexatious and unnecessary subpoenas” by Jaworski or others. Again, could today’s Court feel so confident that Trump would not face a flurry of subpoenas? The ex-New York attorney general’s myriad legal actions against Trump—more than 100, as of last December—suggest otherwise, especially concerning at a moment when the president’s diplomatic and national-security burdens are every bit as sensitive as Nixon’s foreign-policy responsibilities in 1974.

And any president’s preparation for testimony before a grand jury on the broad range of topics allegedly proposed by Mueller’s team would be far more burdensome than simply requiring Nixon to hand over some tapes. The proc­ess of preparing for and giving sworn testimony under questioning by a special counsel who has already indicted Michael Flynn, Paul Manafort, and George Papadopoulos would be time-consuming and arduous.

If Mueller does subpoena the president’s testimony, we should expect a more nuanced outcome than the unqualified victory envisaged by Trump’s most confident critics. Perhaps Mueller would succeed in compelling the president to testify, but only if his questions are tailored narrowly, clearly justified in terms of his investigation’s specific needs, and constructed to minimize their impact on U.S. diplomatic or military sensitivities. It is worth remembering that, as former U.S. attorney Harry Litman observed recently on Lawfare, “no sitting president has ever been forced to provide testimony as a target of a criminal investigation.” Bill Clinton received a subpoena from independent counsel Kenneth Starr, but Starr eventually withdrew it after the two sides struck a voluntary deal for limited testimony.

* * *

Which brings us to Clinton v. Jones, the Supreme Court’s 1997 decision rejecting a presidential claim of immunity from civil suits while in office. Like Nixon, Clinton asserted a categorical privilege: “temporary immunity from civil damages litigation arising out of events that occurred before he took office,” in “all but the most exceptional cases.” Again, the Court rejected the absolutist approach. And again, it took care to define its ruling very specifically rather than giving prosecutors a blank check to subpoena presidents. Citing previous presidents’ cooperation with civil lawsuits, the Court reaffirmed that executive privilege cannot “bar every exercise of jurisdiction over the President” (emphasis added), but stressed that the courts must be cognizant of—and even give “utmost deference” to—the executive’s own responsibilities.

The justices struck a careful balance in 1997: “The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery.” It predicted that its decision, “if properly managed by the District Court,” would not “occupy any substantial amount of [President Clinton’s] time.”

In hindsight, the Court’s confidence can be justly mocked. But regardless of whether today’s Court would emulate the Clinton-era Court’s naïveté, we expect that the justices would at least announce a similar rule: If the president shows that the special counsel’s requests, and the threat of other actions against the president, “could conceivably hamper the President in conducting the duties of his office,” then the lower courts should “manage those actions in such fashion (including deferral of trial) that interference with the President’s duties would not occur.”

Again, the Court’s cautious approach in Clinton v. Jones seems to point towards its strictly managing Mueller’s demands for answers, as well as managing other legal proceedings brought against Trump. Justice Stephen Breyer was particularly sensible of these risks in 1997, which he stressed in an emphatic concurring opinion, and one trusts that he would reason from those concerns if the issue returned to the Court today.

Thus, when critics assert, as Loyola law professor Jessica Levinson recently did to Vox, that “I consider this case all but settled by Clinton v. Jones,” it is less careful analysis than wish fulfillment.

The facts of the current situation, moreover, might well reinforce the justices’ appreciation for the need to carefully calibrate rules governing the president’s susceptibility to legal process.

First, they will be aware that the risk of being indicted by a zealous prosecutor for perjury, even for what might in fact have been an unintentional misstatement of fact, is so great that criminal defense lawyers now routinely advise clients to invoke the Fifth Amendment. The president’s habit of telling bald-faced lies on an almost daily basis would make grand jury testimony especially perilous before a special counsel who has already indicted multiple Trump subordinates. If the Court required President Trump to testify, it would be setting the stage for an unprecedented and politically explosive invocation of his Fifth Amendment right not to testify.

Second, the justices may recognize that Trump’s recent statements and actions suggest a willingness to use his pardon power broadly, to preemptively immunize people within Mueller’s crosshairs—perhaps including his own self. Again, the justices might well act to avoid such a cataclysm.

Neither of us relish taking such considerations into account. The fact that Trump is a persistent liar and that there is genuine risk that he would wield the pardon power as a weapon of self-protection are sad reflections on the character of this president. The Court’s decisions in the Nixon and Clinton cases were emphatically contextual, and so likely would be any Trump-related decision. Such considerations might well incline at least some on the Court to see a decision to order Trump to answer Mueller’s questions as more dangerous to the president’s ability to do his job than anyone foresaw at the time of the Nixon and Clinton decisions.

Again, a Supreme Court win for Trump does not seem to us likely, but it is far from impossible. And a split decision, with two or more justices siding with the president, might embolden Trump. The president might simply defy the order and direct U.S. marshals not to enforce it, setting up a risky constitutional standoff between the executive and judicial branches.

The president may also be immune to an actual indictment while in office, as the Justice Department’s Office of Legal Counsel concluded during both the Nixon and Clinton years. (Other experts strongly disagree.) To the extent that Mueller’s questions are aimed at the president’s own conduct, the Court might conclude that presidential immunity to indictment renders such questions superfluous and thus an unjustified burden on the president. It would further, probably, be deemed improper for a criminal investigator to gather evidence solely for possible use in a House impeachment proceeding.

* * *

For all these reasons, we doubt that the justices would without qualification order Trump to answer every question Mueller wishes to ask. The Court might well put a time limit on any questioning, which Trump could use to run out the clock before the prosecutors get to many of the questions that they want to ask. The president’s latest defense lawyer, Rudy Giuliani, suggested such a limit in his May 2 interview on Fox News: “Some people have talked about a possible 12-hour interview. If it happens, that’s not going to happen—I’ll tell you that. It’d be, max, two to three hours around a narrow set of questions.”

And the justices might limit the subject matter that Mueller could ask about. The president’s lawyers would surely argue that many or even most of Mueller’s proposed questions, especially those inquiring into Trump’s firing of former FBI director James Comey, should be ruled out if Mueller cannot give the Court a “demonstrated, specific need” for answers to those questions—the standard in U.S. v. Nixon.

Trump would no doubt tie his objections to questions about the firing of Comey—and threats to fire Mueller and deputy attorney general Rod Rosenstein—to his power under Article II of the Constitution to fire subordinates. It is so broad, some serious legal experts argue, that even an allegedly corrupt motive, such as firing a subordinate to squelch revelations of misconduct, cannot be obstruction of justice or any other crime.

This is a hotly contested topic. Scholars such as Josh Blackman of the South Texas College of Law in Houston have detailed the argument that the exercise of a core presidential power cannot be obstruction of justice. While others emphatically disagree, some lawyers who are no fans of Trump also caution that it might be unwise for the Court “to demand that any president account to a prosecutor for his intent in making a personnel change,” as William Taylor, a respected criminal-defense lawyer, told us. Taylor added that a “president might have good reason to fire a law enforcement official who persists in an investigation the president thinks is improper or politically motivated.” Indeed, even Comey himself noted to Trump during an early 2017 meeting “that he could fire me any time he wished.” Giuliani has raised this point in public.

In addition, there remains the controversy surrounding the propriety of the investigation itself. Deputy attorney general Rod Rosenstein’s extremely broad original grant of power to Mueller—to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”—has been assailed as improperly reaching beyond suspected crimes of the Trump campaign and beyond the terms of the Justice Department regulation that Rosenstein invoked. U.S. District Judge T. S. Ellis told Mueller aide Michael Dreeben during a May 4 hearing on the charges against former Trump campaign chairman Paul Manafort: “If I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals [or] anything the special prosecutor is authorized to investigate.” “You don’t really care about Mr. Manafort’s bank fraud,” Ellis added. “You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever.”

The composition of the special counsel’s team and the exposure of private anti-Trump comments by two former members have additionally spurred critics to accuse it of partisan bias. Might some justices share that suspicion? And is this the context in which the Court would take the unprecedented step of granting a special counsel unqualified power to subpoena the president’s testimony?

As the Supreme Court showed in the Nixon and Clinton cases, it knows well how to protect the president’s privileges and responsibilities without putting him above the law.

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Misinformation functions in a similar fashion, gaining traction as it’s repeated by increasingly high-profile individuals who venture ever further from the source material. In this manner, distortion about the facts of sexual assault has affected the training of judges, prosecutors, and other law enforcement officials. It is how misleading assertions become embedded in criminal and military law.

This is a story of how a theory without merit, derived from highly questionable statistics, imperils the most basic tenets of due process and risks turning every unproved accusation into a verdict of guilt.

The example discussed here began with a small study by an associate professor at a commuter college in Massachusetts. The 12-page paper describing the study barely created a stir when it was published in 2002. Within a few years, however, the paper’s principal author, David Lisak, a University of Massachusetts-Boston psychologist, began making dramatic statements that extrapolated far beyond the study’s conclusions. He created, virtually out of whole cloth, a theory that “undetected” serial rapists are responsible for 90 percent of assaults on college campuses, that they premeditate and plan their attacks, and that they are likely to have committed multiple acts of violence.

When speaking on campuses, to the military, and to law enforcement, Lisak started showing a highly disturbing video that he claimed was based on the transcript of an actual interview with a campus rapist to whom Lisak gave the name “Frank.” The authenticity of the video has been seriously questioned, raising grave doubts about Lisak’s contention that it illustrates the typical campus perpetrator—in his view, an unrepentant sociopath who cannot be reached or educated.

A news search for mentions of Lisak finds only a single one prior to 2009, in which he revealingly opined in an urban policy magazine about the Duke lacrosse rape hoax. He was interviewed again by CBS News in November 2009 about non-stranger rapes. He increasingly became the draw at conferences on sexual assault and his calendar filled with campus presentations. The media began to fawn over him, whether due to the drama of the notion of campuses being stalked by serial rapists or to the failure of campus administrators, blinded by the appeal of an identifiable villain, to point out the disconnect between Lisak’s portrait and their own observations. (A sociopath responsible for the majority of assaults can be removed from campus. The reality of college drinking and the still-developingadolescent brain, and the relationship of both to behavior fueled by poor judgment and peer pressure, provide no such easy fix.) By the end of 2010, Lisak’s status was on the rise. Within a few years, his was arguably the most high-profile name on the topic of sexual assault.

Lisak’s serial-rapist theory was reflected in the 2011 letter in which the Department of Education ordered universities to adopt specified, guilt-presuming disciplinary procedures for alleged sexual assaults and, in the process, gave credence to the probability of repeat offenders. Lisak’s theory also found its way into a January 2017 report by the White House Task Force to Protect Students From Sexual Assault, which simultaneously criticized a more recent, nationally representative study that had been subject to far more rigorous statistical analysis. Lisak was quoted so often as to make him a central figure in the pseudo-documentary “The Hunting Ground.” As his celebrity grew, the gap between documented facts and his status as an expert became almost inconsequential.

Criticism did eventually catch up to David Lisak. His serial predator model of campus rape has been compellingly debunked by scholarly researchers and well-regarded publications, including investigative articles and a book. His claims regarding the psychology of campus perpetrators were revealed to be based on nonexistent interviews. A key component of his presentations, an “unedited transcript” of an interview with a college rapist presented as timely and typical was revealed to be not only highly edited but based on an interview from three decades ago with a subject who was clearly an atypical outlier — as documented by Lisak’s own publications.

A 2008 paper, in which he linked “undetected serial rapists” with a propensity to commit serial and “crossover” acts of violence such as interpersonal attacks unrelated to sex, was shown to have provided no basis for such a generalization. His assertions, allegedly supported by a study he co-authored in 2010, that false accusations of sexual assault are exceedingly rare, have been shown to violate basic math by counting as true cases that didn’t qualify as sexual assault, had insufficient evidence to make a determination, or were referred for prosecution but about which the outcome was unknown.

As for Lisak’s vague statements about having interviewed “hundreds” of serial rapists (occasionally styled as “thousands” when others talk about him), in truth no evidence exists that Lisak has interviewed any “undetected rapists,” serial or otherwise, since his dissertation research 30 years ago.

His claimed years of research turned out to be a handful of actual research publications, reviews full of editorializing about others’ research, rehashing of the dissertation he completed in 1989, and a website that deceptively merges that dissertation’s 1980s-era research on 12 college students with unrelated data from the 2002 paper on repeat offenders.

Yet all of these devastating exposés have barely dented Lisak’s popularity. In spite of his own warning in that 2002 paper that the “non-random nature of the sampling procedures” precludes interpreting the data “as estimates of the prevalence of sexual and other acts of violence,” he has built a career doing exactly that. His original research—the ostensible basis of his expertise—fits on a single page of his curriculum vitae. In spite of this limited output, he continues to be a featured speaker and forensic witness based in large part on the very distortions that have been so convincingly exposed.

Were the damage wrought by David Lisak’s popularity confined to his college-circuit road show, there might be some hope that his toxic influence would be worn down by the critical thinking ostensibly prized by the academy.

Instead, that has not happened. The list of invited presentations, workshops, and media appearances in which he has hawked his unsubstantiated theories runs an additional 40 pages on his curriculum vitae. Among the most worrisome aspects of Lisak’s presentations and workshops is how they appear to be gaining influence among professionals close to the investigation and adjudication of sexual assault. His debunked serial predator theory and wildly extrapolated statistics on the false-accusation rate form the core of the training materials he has developed—and in some cases sold to law enforcement, prosecutors, judges, and the military.

Whenever Lisak presents his serial predator theory—invariably accompanied by his claims about the low rate of false accusations of rape–his toxic influence spreads. A small sampling shows its range:

• S. Air Force. Special training for the Office of Special Investigations: The Behavior and Characteristics of Non-stranger Rapists: Implications for Investigation and Prosecution.
  Joint U.S. Navy and Marine Corps Mobile Training Team conference, Naval Air Station Jacksonville. The Undetected Rapist.
  Delaware Judicial Education Retreat. Sex Offenders: Myths and Realities.
  S. Marine Corps. Special training for JAG officers: How Predators Pick Their Prey.
  California Administrative Office of the Courts. Handling Sexual Assault Cases: Sex Offender Characteristics and Evaluating Evaluations.
  Wisconsin Office of Justice Assistance Statewide Sexual Assault Response Team Conference. False Reports of Rape: What Do the Numbers Tell Us?
  Special Law Enforcement Training, State University of New York. The Behavior and Characteristics of Non-stranger Rapists.
  Prosecuting Attorneys Association of Michigan Sexual Assault Summit.Rapists: Myths and Realities.

Again, were the damage limited to misinforming attendees, it might not be so large as to warrant concern about the damage wrought by Lisak’s influence. Unfortunately, that’s not the case, either. For example:

A project funded by the U.S. Department of Justice compiled a list of 25 “facts” that judges who attended seminars offered by the National Judicial Education Program—a company for which Lisak has served as a faculty member and that continues to sell materials he created—said they wished they’d known before presiding over sexual assault cases involving adult victims. Although the fact list includes some reasonable and factual assertions, it also includes Lisak’s unfounded claims about serial predators and false reports. As part of its curriculum, NJEP advises judges to use voir dire to gauge prospective jurors’ familiarity with these “facts.”
Especially frightening was one judge’s conclusion that “when evaluating sex offender risk, actuarial assessments are more accurate than clinical assessments.” That is, a psychologist’s judgment of the danger the defendant represents should take a back seat to the statistical likelihood, based on Lisak’s “research,” that the defendant has committed other acts of “undetected” violence.
Lisak’s misinformation has been passed on to law students, practicing attorneys, and judges through a number of influential sources, including Cornell’s Law School, the Judicial Education Center, the Florida Court System, the National Center for State Courts, and the American Bar Association. In every case, the benefit is to the prosecution.
Even the National Academy of Sciences has used Lisak’s unsupported serial rapist theory to weigh in on “police mishandling” of rape accusations that “has allowed serial rapists like those in Lisak and Miller’s research to perpetrate again and again without detection.”
A 2016 amicus brief filed with the Supreme Court of Ohio made a similar charge but upped the ante by invoking Lisak’s (equally unsupported) claim that these serial offenders had a propensity for other violence as well.
Most troubling of all, Lisak’s material is being codified in law enforcement policies, legal precedents, and judicial guidelines at the local, state, and federal levels.

The Sexual Offense Bench Guide for judges in the state of Washington, for example, draws liberally from Lisak’s 2008 publication “Understanding the Predatory Nature of Sexual Violence.” His claims have been similarly incorporated into New Mexico’s Sexual Assault Bench Book, the Tribal Court Judges Bench Book on sexual assault, the Missoula County Attorney’s Office Policy and Procedure Manual, the Pennsylvania Crimes of Sexual Violence Benchbook, New York State’s Judicial Symposium, Wisconsin’s Prosecutor’s Sexual Assault Reference Book, and the Judge Advocate General Corps Criminal Law Desk Book.

The relationship between prosecutors, judges and the juries who will ultimately arrive at verdicts in criminal trials is further tainted by recommendations that prosecutors and judges incorporate into the jury selection process: namely, Lisak’s claim that false accusations are rare and his unsupported theory about serial offenses.

JAG guidelines for prosecutors, for example, advise that “myths” about the frequency of false reports be challenged “directly, in voir dire and in argument.” Prospective jurors whose information does not align with the (inaccurate) information provided in guidelines influenced by Lisak could then be dismissed and/or a seated jury could be told of the supposedly “true” facts. Recommendations from the NYU School of Law related to prosecuting sexual assault invoke Lisak to justify investing resources to pursue less credible cases because each represents “an opportunity to catch a serial rapist.” Prosecutors can, the recommendations continue, “uncover juror rape myth acceptance” via voir dire and “educate the jury pool about sexual assault.”

Once so codified in judicial and law enforcement guidelines, this toxic mixture of misinformation is extremely difficult to dislodge. Skewed jury pools, erroneous decisions at trial, and the weight of distortion have real consequences. A judge in Montana, for example, denied a request to have a case dismissed on the grounds of a Missoula police department requiring  officers to presume the guilt of the accused when investigating sexual assault. The judge stated that she based her ruling on Lisak’s (baseless, and thus misleading) testimony about the low rate of false reports. When such decisions are made, when presumptions of guilt are part of the training of judges and prosecutors, or reflected in jury instructions, innocent defendants are put in harm’s way.

Even those ostensibly in the business of impartial news coverage have been tainted by their own guidelines, as when the media have been fed the same misinformation, masquerading as insight. Their contribution to the problem is further amplified when they are further advised not to use the phrase “rape allegation” because “allegation is not a neutral term and strongly implies doubt,” and they fail to see that the alternative suggested—“reported rape”—implies an act that has, indeed, happened, distinguished only by the fact that it is on record.

Where does that leave those for whom accuracy, integrity, and truth matter?

The unfortunate reality is that the greatest potential harm of the current environment accrues to the accused. Therefore, defense attorneys already burdened with a state of affairs in which “accused” defaults to “perpetrator” and “accuser” defaults to “victim” need to equip themselves to take on not only expert witnesses citing bogus “research” but also the underlying studies.

This is not an easy assignment, but the use of good lawyering to dismantle bad “research” can be powerful, and good courtroom theater as well. When faced with a Lisakian claim that “only 6 percent of rape allegations are false,” the defense attorney can ask what percent, then, are true? David Lisak himself would have great trouble answering that question without being exposed as a statistical manipulator, because his writings have never even addressed it. Rather, he has used misleading language to imply that almost all rape accusations have been proven true. Indeed, a good defense lawyer could fairly ask: “Isn’t it a fact, Mr. Lisak, that the number of rape accusations that have been proven false may well be larger than the number that have been proven true?”

When the assertion about Lisak’s serial sociopaths is repeated, the defense attorney can point to the fact that Lisak’s study never established a single serial crime, nor that any of the rapists were undetected, and to Lisak’s own statement that his findings cannot be generalized beyond the limited scope of a single study. When Lisak’s “interviews” are invoked, the defense attorney can ask: How could anyone interview survey participants whom he never met and whose identities he never learned? Weren’t the only interviews Lisak actually did those with the 12 subjects of his three-decades-old dissertation research? And were not the highly impulsive subjects described in his dissertation wholly unlike the portrait he later painted of sociopaths with excellent impulse control who premediate and plan their crimes?

Lisak’s claims are wrong and the experts who tout them are vulnerable when asked direct questions. The discrediting of Lisak must become part of the court record, in case after case, before the far more difficult task of correcting the effects of his bogus claims on criminal justice policies can be accomplished.

The focus here has been on one particular—and particularly problematic—conveyer of misinformation. David Lisak’s high profile and willingness to depart from even his own published papers in service of an agenda makes him the embodiment of the attack on due process. But Lisak is not alone. He has recently been joined by other “experts” straying even further afield from verifiable data and often in direct contradiction of known science.

The difficulty of fighting the toxic distribution of misrepresentation and statistical sleight-of-hand is partially a function of high-profile purveyors and enablers. The codification of myths in law enforcement procedures; in the training of prosecutors and judges; and in policy at the town, county, state, and federal levels all but guarantees insidious and continuous regeneration. The roadmap such myths provide is wrong but concrete, offering up sociopathic villains in place of a continuum of offenders, permission to presume guilt in the absence of evidence, and a philosophy that accusers not only don’t lie but are never mistaken. Few combinations are more immune to objective inquiry than fear of monsters and the comfort of easy answers for taking them down.

But objective inquiry is called for and those who put obstacles in its way must be confronted. Neither law enforcement nor the courtroom should be a conducive environment for misinformation. It should not be intentionally introduced or passively tolerated. For now, a disproportionate burden will fall to defense attorneys. The battle against misinformation starts one case at a time.

Linda LeFauve is a college administrator and a contributor to Reason.
Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

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Last September, DeVos publicly called for fairness to both sides in campus adjudications. About two weeks later, the Education Department withdrew the Title IX “guidance” that the Obama administration had imposed to specify guilt-presuming procedures for the nation’s colleges and universities to use. DeVos has also ended the Obama practice of turning every allegation of sexual harassment into a sweeping, publicized federal investigation of all allegations university-wide over the past three years.

But these actions will only begin to undo the damage done by the previous administration. And to date, DeVos has had little impact on the deeper problem of systematic discrimination by universities against the accused. (Almost all students accused of sexual assault are male.)

In this #MeToo era, it might seem counterintuitive to suggest that campus systems have prioritized the interests of accusers over the need to achieve a just outcome. But in the context of student-on-student accusations, at least, college campuses are unlike the workplace, due both to campus ideology and to the effects of the Obama administration mandates. In 2011, 2014, and 2015, the Education Department’s Office for Civil Rights (OCR) issued “guidance” documents in the name of interpreting Title IX that effectively required more than 7,000 universities and colleges to use specified, guilt-presuming procedures to respond to sexual misconduct allegations. Announced with no public notice or opportunity for comment, these decrees resulted in procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” as 28 Harvard law professors wrote in an eloquent indictment in 2014. More than 70 judges have issued rulings (some of them preliminary) against schools for violating accused students’ rights.

Most schools executed the Obama-era guidance so zealously as to be even more unfair to accused students than OCR explicitly required. But now virtually all have refused to implement provisions of the DeVos OCR’s interim guidance. (After scouring the country, a trio of accusers’ rights organizations was able to find only one school—the University of Houston—that was even considering changing its campus adjudication policies along the lines that DeVos had proposed.) And the pattern of injustice, which continues unabated, will almost certainly go on indefinitely unless and until the federal government takes much more forceful corrective action than anything DeVos has done so far.

Fortunately, the education secretary may be preparing to do just that, and make campus Title IX proceedings far more just, through a necessarily protracted and complicated “notice and comment” rulemaking process that she announced last September. It is designed to produce by 2019 new regulations for enforcing Title IX that will seek fairness for both complainants and accused students.

DeVos has committed to a two-step process to create a fairer campus Title IX system. First, in September, OCR issued new “interim guidance” containing several promising policy changes. Among other components, the interim guidance tells schools to: avoid “sex stereotypes or generalizations” and give accused students detailed, timely written notice of the allegations against them; use the same standard of proof in sexual misconduct cases that “the school applies in other student misconduct cases,” reversing the Obama demand that schools use the lowest possible standard of proof in sexual misconduct cases, even if they use a higher standard in other disciplinary cases; ensure that the investigator(s) be “free of actual or reasonably perceived conflicts of interest and biases for or against any party,” which seemingly excludes Title IX coordinators (whose powers the Obama administration sought to expand greatly) from the adjudication process, a provision that the final rules should make explicit; produce a written report “summarizing the relevant exculpatory and inculpatory evidence,” rather than simply looking for evidence that would support the accuser’s version of events.

Finally, the interim guidance placed “the burden . . . on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred.” While this wording strongly implied that the accused student was entitled to a presumption of innocence, final regulations should make that implication clear-cut.

As the Supreme Court has stressed, effective due-process protections in noncriminal cases are most critical when the impact and “risk of an erroneous deprivation” is great. Yet even these modest steps toward fairness drew frenzied denunciations from virtually every Democratic politician who has spoken publicly about them and a hostile or cool reaction from almost all university officials who have commented.

As a result, DeVos has not yet been able to change things very much on the ground.

Notice and Comment Rulemaking

DeVos foreshadowed more important, detailed, and lasting regulatory changes when she vowed in September that “we will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way,” as provided in the Administrative Procedure Act of 1946 (APA).

She stressed that just as one rape or one “aggressive act of harassment” is one too many, “one person denied due process is one too many.” The primary reference to due process for accused students in Obama-era OCR guidance, by contrast, was to caution that “steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”

DeVos has eschewed what she calls Obama’s “rule by letter” approach. “We want to build a rule that’s enduring and seen by all as fair,” a top DeVos aide explains. “It’s a steady, thoughtful process, not a rush.”

The DeVos OCR initially has focused on developing detailed proposed rules for campus disciplinary proceedings involving alleged student-on-student sexual misconduct. After being finalized, approved by DeVos, and reviewed by the Office of Management and Budget and other agencies, the proposed rules will be published in the coming months. Interested parties then would have several weeks to file public comments.

The APA requires that agencies such as OCR respond in detail to the comments, which could take months; make any appropriate revisions in the proposed rules; seek input on those from OMB, the Justice Department, and perhaps other agencies; and issue final rules.

Accusers’ rights groups doubtless will criticize any new regulations, and court challenges are inevitable. But the final rules will have the force of law unless and until provisions are struck down by the courts or overhauled by the next administration, in another protracted rulemaking, or (less likely) by Congress.

Proposed Procedural Rules for Campus Sex Cases

The final regulations seem likely to include all the promising elements (presumption of innocence, requirement to document exculpatory evidence, avoidance of sex stereotypes, notice of allegations, prohibition of conflicts of interest and bias, elimination of a separate, lower standard for sexual assault cases) contained (and implied) in the interim guidance. But the interim guidance omits three requirements—two of them endorsed by federal appeals courts—that are absolutely critical to fairness.

First, the regulations should require schools to tell both complainants and accused students at the outset of the process that they have a right to have a lawyer at their own expense, or another advocate, represent them at every stage of the process.

They also should require schools to give every complainant and accused student a hearing before a panel of impartial adjudicators, with a right to meaningful and non-disruptive direct cross-examination of all witnesses, including the opposing party, on all contested issues of fact. The questions may be asked by the party’s lawyer, or by another chosen advocate, except that a complainant who objects to a personal, face-to-face confrontation with an accused student’s lawyer or advocate has a right to answer his questions on video if she so requests.

(Many schools now forbid lawyers from cross-examining the complainant or other witnesses or even speaking on their client’s behalf. These restrictions make it difficult for innocent students to present an effective defense.)

These changes would reverse the Obama-era OCR’s strong opposition to meaningful cross-examination of accusers, which the overwhelming majority of schools now prohibit.

That prohibition flouts both the Supreme Court’s description (quoting a legal scholar) of cross-examination as “the greatest legal engine ever invented for the discovery of truth” and the decision of the U.S. Court of Appeals for the Sixth Circuit, in a case filed by an accused student from the University of Cincinnati, recognizing that “cross-examination takes aim at credibility like no other procedural device.” The unanimous three-judge Sixth Circuit panel castigated the university for assuming that cross-examination only benefited the accused student: “In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused.” That’s because “few procedures safeguard accuracy better than adversarial questioning.”

Second, the regulations must specify that procedures that are structurally unfair to either party—not just to the accuser—constitute gender discrimination under Title IX. From 2011 onwards, the Obama administration employed Title IX on behalf of a victims’ rights viewpoint, contending that campus policies it perceived as insufficiently tilted toward the interests of accusers constituted gender discrimination in violation of Title IX—even though not all complainants are victims and not all victims are female.

The logical corollary of this approach is that if a campus system that tilts too far in favor of the accused violates Title IX, a system that tilts too far in favor of accusers also constitutes gender discrimination. But the majority of courts that have addressed this issue have concluded (as a district judge in a case filed against Rider University recently did) that bias, even overwhelming structural bias, “in favor of the alleged victim of sexual assault . . . is not the equivalent of demonstrating bias against male students.” The more compelling view, which the regulations should adopt, is that of a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit.

It refused in July 2016 to dismiss a student’s Title IX claim against Columbia University for anti-male discrimination. It ruled that a “university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”

Even assuming for the sake of argument that discrimination against accused students does not violate Title IX, an obscure provision of the Higher Education Amendments adopted by Congress in 1992 appears to provide an independent source of authority for Education Department regulations designed to ensure fairness in campus adjudications of sexual assault. This provision requires colleges and universities to adjudicate all accusations of student-on-student sexual assault as part of their disciplinary systems. And that seems a sufficient basis for Education Department regulations to ensure that the adjudications be fair.

Third, the rules should require colleges both to make public all materials used to train investigators and adjudicators in campus Title IX tribunals and to ensure that the training does not discriminate against either complainants or accused students, including by generalizing about truthfulness. Federal regulations have required training disciplinary panels in all Title IX cases, even though no such requirement exists for other campus disciplinary offenses. Almost all schools now cloak their training materials in secrecy, even from accused students. As we have reported, the materials currently used by many schools stack the deckagainst the accused by suggesting without a scientific foundation that false allegations of rape are very uncommon; that any internal inconsistencies in the complainant’s account or contradictions of other evidence should be attributed to “the effects of trauma”; and that rigorous questioning of complainants is forbidden as “blaming the victim.”

Beyond these three critical components, Title IX regulations that seek to ensure a fair process rather than a pre-conceived result must:

Remind colleges that Title IX does not trump the Constitution’s protection of free speech or a professor’s right to academic freedom. Such a disclaimer would safeguard against notorious cases such as that of Northwestern University Professor Laura Kipnis, who— in the guise of policing “sexual harassment”—was subjected to a harrowing Title IX investigation for writing an article that criticized how Northwestern handled Title IX complaints.
Specify that the notice of allegations that must be provided to accused students before they are asked to respond must include copies of any written complaint by the accuser or witness statements and a detailed written summary of any verbal complaint or witness statement.
Accommodate criminal investigations by affording accused students a right to remain silent and requiring schools to defer campus proceedings for a reasonable time if so requested by police.
Prevent investigators from also serving as adjudicators and prevent both from deciding appeals in the same case.
Guarantee accused students a right to a meaningful appeal of any adverse finding for insufficient evidence, procedural violations, excessive sanctions, and newly discovered evidence.
Permit schools to mediate between parties and help them settle cases on an informal basis (a practice forbidden by OCR since 2001).
Reaffirm that OCR has no interest in limiting schools’ ability to provide counseling, medical, academic or housing accommodations, or other services to alleged victims of sexual misconduct.
The new regulations also should reverse one of the most troubling elements of the Obama-era guidance—a double-jeopardy requirement that schools with appeals processes (as virtually all do) must allow accusers to appeal not-guilty findings.

As could have been predicted, this provision has resulted in institutions using dubious reasons to overturn panel decisions in favor of accused students. Unlike the civil justice system, in most campus Title IX tribunals the accused student faces not only the accuser, but also a college employee of some type who functions as investigator or even de facto prosecutor, followed by an adjudicator trained with one-sided material. Forcing a student who overcomes all these obstacles to then obtain a second finding of innocence is deeply unfair.

The Need and Legal Justification for the Proposed Rules

“Any school that uses a system biased toward finding a student responsible for sexual misconduct . . . commits discrimination,” DeVos has said.

Congressional Democrats critical of DeVos, by contrast, too often appear to have viewed such bias as an irrelevant concern. In this pernicious framing—most recently offered by Rep. Jackie Speier (D-Calif.), the House Democrats’ point person on campus sexual assault policy—campuses need not much worry about fair procedures, since between 92 and 98 percent of accused students are guilty. Yet the studies referenced by Speier indicate that the evidence in more than half of allegations is ambiguous, demonstrating why in many cases, even a careful, unbiased, fair, professional fact-finding process cannot reliably separate the innocent from the guilty.

It’s undeniable that some schools, especially in cases involving allegations against high-profile athletes who bring in money to their schools, have made it difficult or impossible for student victims to achieve justice. Nonetheless, overwhelming evidence exists in the public record of campus procedures that have the effect, if not the intent, of denying accused students a fair opportunity to defend themselves. As Harvard Law professors Elizabeth Bartholet, Nancy Gertner, Janet Halley, and Jeannie Suk Gersen noted in a white paper titled “Fairness for All Students,” filed with OCR in August:

Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter. . . . The procedures for enforcing these definitions are frequently so unfair as to be truly shocking. . . . Title IX officers have reason to fear for their jobs if they hold a student not responsible or [fail to impose] a harshly punitive sanction.
The prevalence of discrimination against accused students has been detailed by myriad journalists and scholars as well as by our 2017 book, “The Campus Rape Frenzy,” and books by Laura Kipnis and Robert L. Shibley. The journalists include Emily Yoffe, Cathy Young, Ashe Schow, and Robby Soave. The scholars include the 24 Harvard law professors mentioned above; 16 Penn Law School professors who issued a similarly reasoned open letter; and law professors Aya Gruber, Tamara Lave Rice, R. Shep Melnick, and Ben Trachtenberg, who have written individually on the issue. The nation’s leading campus civil liberties group, the Foundation for Equal Rights in Education (FIRE), for several years has cautioned that the implementation of Title IX has threatened fair treatment for accused students.

Finally, schools should voluntarily distinguish among allegations of (1) violations of the criminal law as defined by the state where the campus is located; (2) sexual harassment as defined in these rules; and (3) any lesser form of sexual misconduct specified in the school policies. (For DeVos to make these distinctions mandatory would arguably conflict with existing Clery Act regulations.) As DeVos has said, many schools enforce “ambiguous and incredibly broad definitions of assault and harassment.” Trivializing what is a felony in all 50 states serves the interests of no one.

These proposed rules may strike many as too prescriptive for a conservative administration that has vowed to cut back on federal regulation. And we wish we could think of a better way to protect the constitutional rights of independent-minded college students and professors.

But we can’t. The courts, limited to case-by-case decisions, cannot do it on a broad scale. And Congress, never a champion of the rights of accused people, will not do it. Nor will the states.

The paradox is that nothing short of muscular federal regulation will stop our politically correct universities from trampling the liberty of students and faculty.

Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

“KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books, 2017).”

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The December 1 guilty plea of former national security adviser Michael Flynn will have only intensified Trump’s fears that the special counsel is focused on his family. Trump’s lawyers continue to claim that the president has nothing to fear from Mueller, but on December 3, Christopher Ruddy went on ABC’s This Week and said, “Robert Mueller poses an existential threat to the Trump presidency.” Ruddy heads the conservative media outlet Newsmax and is a close Trump confidant. Back in June, just after visiting the White House, he claimed on the PBS NewsHour that the president was “weighing” firing Mueller. Trump and his aides never explicitly disputed the claim, and proxies like Newt Gingrich and Rush Limbaugh called for Mueller’s firing at the same time.

Flynn admitted lying to the FBI—a federal crime—about his phone conversations last December 29 with Russian ambassador Sergey Kislyak. He falsely denied that he had talked to Kislyak about Russia’s refraining from responding to the sanctions being imposed by the Obama administration and about help with delaying or defeating a pending U.N. Security Council resolution about Israel’s settlements program. In his plea agreement, Flynn promised to cooperate fully with the special counsel.

Signs that Jared Kushner may be next in Mueller’s sights include reports that he was involved in telling Flynn what to say to Kislyak about the sanctions and was the “very senior member of the Presidential Transition Team” who, according to the court papers, “directed Flynn to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.” Mueller’s investigators interviewed Kushner last month about Flynn’s contacts with the Russian government and a December 2016 Kushner-Flynn-Kislyak meeting.

Trump can certainly pardon Kushner if it came to it—and Don Jr.—but experts disagree on whether a president can constitutionally pardon himself. A self-pardon would provoke a bigger backlash and louder clamor for impeachment than any effort to fire Mueller. Trump seems unlikely to go the self-pardon route before the waning days of his administration. It is groundwork for firing Mueller that many think is being laid.

Since May, Trump has repeatedly trashed the criminal investigation into his campaign’s suspected collusion with Russia as a “witch hunt,” a “made-up story,” and a “hoax.” In recent days, conservative media outlets and politicians and various Trump allies have also begun asserting that Mueller and the FBI are biased against Trump and that they, along with the Justice Department, have dodged subpoenas by congressional Republicans that would have turned up such discrediting documents as anti-Trump texts from a top FBI investigator on the Mueller probe, Peter Strzok. (Adding to the conspiracy theories is that Strzok was previously one of the top figures in the FBI investigation of Hillary Clinton’s email server.) Mueller removed Strzok from his team last summer to avoid accusations of partisan bias. But the suspicions among Trump supporters are growing. In its lead editorial on December 5, the Wall Street Journal claimed that the special counsel “is too conflicted to investigate the FBI and should step down in favor of someone more credible.” The same day, Fox News’s Sean Hannity, one of the most vehement critics in the media of Trump’s perceived enemies, called Mueller “a disgrace to the American justice system” and said his team was “corrupt, abusively biased, and political.”

Flynn’s plea bargain and cooperation with Mueller suggest the possibility that the special counsel is developing allegations of criminality—such as complicity in Flynn’s alleged lies to the FBI—against figures at or near the highest levels of the Trump transition.

Trump fired Flynn as his national security adviser on February 13. The purported reason was Flynn’s false statement to Vice President Mike Pence that he had not discussed the sanctions with Kislyak in December. But Flynn’s “resignation” did not come until after the Washington Post had reported his discussion with Kislyak and not until 17 days after acting attorney general Sally Yates had warned White House counsel Don McGahn—who in turn told Trump—that Flynn had lied to Pence and was vulnerable to blackmail by Russia. Trump’s personal lawyer, John Dowd, has admitted that the president knew by late January that Flynn’s account of the Kislyak interview to the FBI had probably been false.

On February 14, Trump had an Oval Office meeting with FBI director James Comey. According to Comey’s sworn testimony (which Trump has contradicted), the president said to him: “I hope you can see your way to letting this go, to letting Flynn go. He is a good guy.”

Trump fired Comey in May and later told Russian officials in an Oval Office meeting that this had relieved “great pressure” from the Russia investigation. On December 3, Trump touched off renewed accusations of obstruction of justice when he tweeted that he had fired Flynn because “he lied . . . to the FBI” as well as to Pence. This amounted to an admission that Trump knew Flynn had lied to the FBI before the president’s alleged request to Comey about “letting Flynn go” and before Trump said in a February 16 news conference: “I don’t think [Flynn] did anything wrong.” Bizarrely, defense lawyer Dowd later claimed that he had drafted the self-damaging tweet for Trump.

* *

If Trump comes to feel threatened enough to try to fire Mueller and weather the backlash, he will find it much trickier as a legal matter than it was to fire Comey.

Comey served at Trump’s pleasure. But Mueller was appointed by acting attorney general Rod Rosenstein under a 1999 Justice Department regulation that limits the president’s power to remove him. (Attorney general Jeff Sessions has recused himself from the Russia investigation.) The regulation provides that a special counsel can be removed only by the attorney general— not the president—and only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

Mueller is also protected by a much older general principle—reaffirmed by the Supreme Court in 2010—that when Congress has empowered a department head, such as the attorney general, to appoint his own subordinates, “it is ordinarily the department head, rather than the President, who enjoys the power of removal.” The president clearly could order Rosenstein to fire Mueller and could claim that the special counsel has a conflict of interest because of his longstanding, close professional relationship with Comey. But Rosenstein knew about that relationship and saw no conflict when he appointed Mueller. And he has assured Congress that absent “good cause,” he would refuse a Trump order to fire Mueller.

Such a refusal would end with Rosenstein resigning or being fired by the president. In that event, under the order of succession provided by Congress, associate attorney general Rachel Brand would become acting attorney general. It’s quite possible that Brand, an experienced Washington hand, would also refuse to fire Mueller. Trump could then proceed on down the Justice Department chain of command in the hope of finding someone willing to violate the regulation and fire Mueller—and, in the process, to do grave damage to his or her own professional reputation. This embarrassing charade would amplify calls for Trump’s impeachment.

Trump’s other option, perhaps better suited to his self-image, would be to tell Mueller personally, “You’re fired.”

But that, too, would be contrary both to the 1999 regulation and to the principle that only department heads can fire their own subordinates. Trump might avoid the first problem (but not the second), noted Neal Katyal in an op-ed for the Washington Post, if he ordered the special-counsel regulations repealed and then fired Mueller himself. (Katyal headed the Justice Department working group that wrote the 1999 regulation.)

Putting aside the resulting outcry and impeachment efforts in Congress, would that be the end of the criminal investigation? Legal experts have offered differing opinions.

Marty Lederman, a Georgetown law professor who held a high-level position in the Justice Department’s Office of Legal Counsel under President Obama, stressed on the Just Security blog that “the President himself cannot remove Mueller.” He cited both the principle that only department heads may remove their own appointees and the 1999 regulation, dismissing as weak the argument that the Constitution empowers the president to abrogate the regulation and then fire Mueller.

There’s a Watergate parallel here, with the famous firing of special prosecutor Archibald Cox—the “Saturday Night Massacre” of October 20, 1973. Lederman suggested that the reason “why Richard Nixon did not try to personally remove Archibald Cox” was that the president knew he lacked the power to do so.

Instead, Nixon ordered attorney general Elliot Richardson to fire Cox; Richardson refused and resigned; this made deputy attorney general William Ruckelshaus the acting attorney general; he, too, refused and resigned; and finally solicitor general Robert Bork, the next in the line of succession as acting attorney general—who unlike Richardson and Ruckelshaus had not promised Congress that he would protect the special prosecutor—fired Cox. Bork then appointed Leon Jaworski to replace him.

Josh Blackman of the South Texas College of Law argued on the Lawfare blog that, contrary to Lederman, Trump has the constitutional authority to “revoke the regulation itself and in so doing obliterate Mueller’s whole office. . . . The protection against removal is ultimately a political one, not a regulatory or legal one.”

Blackman argued that the detailed history showed that Richardson, Ruckelshaus, and Bork all assumed that Nixon had the constitutional power to fire Cox personally, despite the regulation then in force that Cox could be fired only by the attorney general and only for “extraordinary impropriety.” That said, Blackman acknowledged that to the public at large, “the termination of Mueller would amount to an admission of guilt and obstruction of justice.”

Jack Goldsmith, who headed the Office of Legal Counsel under President George W. Bush, wrote on Lawfare that there are “good constitutional arguments” both for and against the idea that Trump has the power to “blow through the regulation and fire Mueller himself.”

In any event, thought Goldsmith, if Trump did that, “I would predict massive resignations within the DOJ and White House. . . . Congress would rise up quickly to stop the President, and the pressure on the cabinet would be enormous as well. If I am naïve in thinking this, then we are indeed in trouble.”

Amidst the political firestorm, would Mueller take Trump to court to challenge the legality of the firing? The answer is unclear. But he would be strongly urged by many colleagues and friends that it was his duty to the rule of law to fight Trump in court—especially if Trump tried to fire Mueller’s entire staff, leaving allegations of presidential criminality hanging over the nation with no resolution in sight.

Purely as a legal matter, a Mueller lawsuit would get little help from the 1999 regulation, which states that it “may not be relied upon to create any rights, substantive or procedural, enforceable [in court] by any person or entity.” In other words, the regulation is not judicially enforceable. Mueller might thus base any lawsuit mainly on the older principle that because an attorney general appointed Mueller, only an attorney general can remove him.

* *

The high stakes of any Mueller-Trump lawsuit, together with the legal uncertainties debated by Lederman, Blackman, and Goldsmith, might well propel the case quite rapidly through the federal district and appeals courts and into the Supreme Court.

It could lead to a historic decision, reminiscent of United States v. Nixon in 1974 or Clinton v. Jones in 1997. The former ordered President Nixon, by an 8-0 vote, to turn his White House tapes over to Watergate special prosecutor Leon Jaworski and doomed his presidency. The latter, a unanimous decision in the Paula Jones sexual harassment lawsuit, rejected Clinton’s claim that he could not be sued while he was president. It would indirectly force him to testify about what he did with Monica Lewinsky and lead, in turn, to his impeachment in 1998 for lying under oath and obstructing justice.

Fueling the detailed arguments in a Mueller-Trump battle would be a longstanding dispute pitting conservative scholars and jurists who believe the Constitution empowers the president to fire any federal prosecutor or other executive branch official at will against more liberal jurists who see restrictions on the firing power as essential to presidential accountability.

In a third historic win for champions of presidential accountability, the Court upheld in Morrison v. Olson the 1978 Ethics in Government Act provision sharply restricting presidential power to remove court-appointed “independent counsels.” (The 1988 decision was 7-1, with the late Antonin Scalia offering a passionate dissent.) But the 1978 provision lapsed in 1999, amid a bipartisan consensus that it had created incentives for overzealous prosecution. The 1999 Justice Department regulation under which Rosenstein appointed Mueller is less potent. But the regulation is not nothing. And the Court might reinvigorate, as a valuable check on presidential arbitrariness, the principle that a chief executive who cannot persuade his own political appointees to fire a subordinate may not go over their heads and do the firing himself.

How might the Court rule in a Mueller-Trump case?

It would not be surprising to see the four more liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) side against Trump. It’s also quite possible, if less likely, that all four of the more conservative justices (John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch) would side with Trump. That would leave Justice Anthony Kennedy in his accustomed role of casting the deciding vote. Not many Kennedy-watchers would bet on his siding with Trump.

But it’s also quite possible that the justices—especially if they were closely divided on the question—might dust off the so-called “political question doctrine” to rule that the Court should leave the fate of the Mueller investigation, and its impact on the Trump presidency, to the political process. That would of course include the impeachment process, which would be well under way by the time any Trump effort to fire Mueller came before the Supreme Court.

* *

Robert Mueller has surely long since begun drafting the confidential report that the 1999 regulation requires him to provide at the conclusion of his work to the acting attorney general. Political pressure will likely see it then shared with Congress and the public.

If it comes down to little more than ordering or encouraging Flynn to lie to the FBI, and gratefully welcoming Russian hacking and dissemination of dirt about Hillary, then the Mueller investigation will probably end with no blockbuster prosecutions and the calls for impeachment will fade.

If, on the other hand, the evidence revealed by Mueller and congressional investigators were ugly enough to turn even most Republicans against Trump, he might be on his way out, by impeachment and removal. Then it would be time to ponder the constitutionality of the self-pardon.

Stuart Taylor Jr., a Washington, D.C.-based writer and lawyer, is the coauthor, with KC Johnson, of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities .

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Both parties in the case had credibility issues; he had violated a no-contact order, she had withheld from the university the bulk of their text messages. But the accused student possessed strong exculpatory evidence. He produced the full record of their communications, which included texts from the accuser to him discussing the encounter in a highly positive fashion and referencing a “plan” to have sex again. Further, a friend of the accuser, who saw her shortly after the incident, recalled her raving about her “really hot” experience.

Nonetheless, Brown’s disciplinary panel returned a guilty finding by 2-to-1. The decisive vote came from Besenia Rodriguez, the university’s associate dean for curriculum.

In subsequent court testimony after the accused sued Brown, Rodriguez admitted that she had not considered the accuser’s text messages or other post-incident behavior as having any bearing on the case. The reason, she said, was the hours of training that Brown had provided to prepare her to adjudicate the complaint—training required by the federal government. Rodriguez was specifically told that the impact of trauma on sexual-assault victims often causes them to behave in counterintuitive ways, such as not being able to recount a consistent set of facts or choosing to communicate with (rather than to avoid) the alleged assailant. “I felt like it couldn’t—I couldn’t really put myself in her shoes to understand why she was representing it that way,” explained Rodriguez, “so best not to attempt to judge her behavior.”

But judging the accuser’s behavior, noted U.S. District Judge William Smith, “was precisely her job as a panel member: to interpret the evidence and make factual determinations about it.” He added, “It appears what happened here was that a training presentation was given that resulted in at least one panelist completely disregarding an entire category of evidence”—evidence severely damaging to the accuser’s credibility.

Smith invalidated the university’s decision, noting, even apart from Rodriguez’s dereliction of duty, the overall process was far from equitable. The Brown official who designed the training Rodriguez received, Alana Sacks, did not respond to a request for comment.

Since 2011, the federal government has required all universities that receive federal money to provide “training or experience in handling complaints of sexual harassment and sexual violence” to adjudicators and investigators. Since nothing in the experience of most academics prepares them to competently investigate an offense that’s a felony in all 50 states, it makes sense to train those who are assigned to investigate campus sexual-assault allegations. But the ideological regimes used on many campuses are designed more to stack the deck against accused students than to ensure a fair inquiry. The risk of injustice is enhanced by the fact that, to the best of our knowledge, no school discloses the contents of its training materials to accused students before commencing the disciplinary process. The contrast between this training regime and the instructions given by judges to jurors in criminal trials—most obviously, that they should presume defendants innocent until proven guilty—is stark.

“In a criminal trial,” says former Baltimore state’s attorney Gregg L. Bernstein, “we ask jurors to use their common sense and apply their own life experiences to determining questions of credibility and guilt or innocence. We do not ‘train’ jurors at the expense of considering equally plausible factors as to why [an alleged] victim’s testimony might not be credible.” Bernstein, who during his term in office created a special unit to handle sexual-assault cases, believes a balance “can be struck in which the victim’s account is given credence and she is respected, while at the same time, the alleged assailant has the right to test the story. We should ask for no less when a person’s reputation can be altered for life by these types of [campus] allegations.”

The training mandate originated with the Obama administration’s 2011 “Dear Colleague” letter, which dictated campus procedures for sexual-assault allegations that dramatically increased the chances of guilty findings. Expanded guidance in 2014 from the Department of Education’s Office for Civil Rights ordered that the training include “the effects of trauma, including neurobiological change”—a phrase pregnant with hidden meaning. The Obama training requirements (without the “neurobiological change” part) were then formalized in a binding federal regulation in 2015.

While Secretary of Education Betsy DeVos has rescinded the 2011 and 2014 Obama commands, the 2015 regulation keeps most of the Obama training mandate in place. All the while, the secrecy of almost all the training materials has enabled them largely to escape public scrutiny.

“The biggest problem with these training materials,” says Justin Dillon, a Washington, D.C., lawyer who has defended dozens of students accused of sexual assault, “is that if the accuser comes in, contradicts herself and the evidence, all that gets explained away because of ‘trauma.’ Junk science like that makes it extraordinarily hard for students to defend themselves effectively. Schools cherry-pick studies without actually understanding anything about them; they just take this chicanery at face value. Students would need to first pay a lawyer, and then pay that lawyer to find a neuroscience expert who is both willing and qualified to take on this issue. And if you think lawyers are expensive, wait until you see how much experts charge.”

Middlebury College’s training, for instance, urges adjudicators to “start by believing” the accuser, while asking themselves whether the accused student is “who he said he is.” The training materials twice feature a hypothetical campus rapist announcing: “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.”

The college further orders that in order to be “objective,” investigation reports must not use the word “alleged” before “victim” or “sexual assault” and must avoid passages such as “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect” or the “victim has inconsistencies with her story.”

The role of the investigative report is especially important at Middlebury because, like more and more schools, it has abandoned disciplinary hearings on sexual-assault claims in favor of a single-investigator system. This was designed to shield the accuser from cross-examination, but also empowers a school-appointed official to serve as “detective, judge and jury,” in the words of Greg Lukianoff, president of the Foundation for Individual Rights in Education. In the specific system used at Middlebury, a college administrator renders the final decision based primarily on a report prepared by the investigator. The accused student and his representatives have no opportunity to cross-examine the accuser or the investigator. The training’s restrictions on the content of the investigator’s report thus have a direct effect on the final outcome.

After we wrote about the Middlebury training, the firm that conducted it, Margolis Healy, removed the associated material from its website. The company did not respond to a request for comment.

Eric Rosenberg, an Ohio lawyer who has represented accused students in both state and federal lawsuits, says that the “systemic bias” in training materials extends to essentially “mandating adjudicators shield accusers from exculpatory evidence” as it might “re-victimize the victim.” A state or federal judge, Rosenberg explains, “would undoubtedly find [that any] jury pool members who promise not to re-victimize a party who alleges an injury should be stricken for cause.”

Beyond putting a thumb on the scale towards guilt, campus-training materials are permeated by highly debatable psychological theories, spawned in part by the Obama administration’s requirement of training about “neurobiological change.”

Emily Yoffe’s blockbuster September article in the Atlantic on “The Bad Science Behind Campus Response to Sexual Assault” uncovered widespread use of a concept called “tonic immobility.” Yoffe explored the pervasive influence of Rebecca Campbell, a Michigan State psychology professor, who claims that as many as half of all sexual-assault victims experience tonic immobility and that this condition, along with other neurological effects that occur during an assault, renders them unable either to resist or to recall the alleged attack accurately later. Campbell has done no empirical research on tonic immobility, and there is no clear evidence that the phenomenon—in which some prey animals go into a type of temporary paralysis when threatened—occurs in humans.

Training at Harvard Law School in 2014 borrowed heavily from Campbell’s ideas about tonic immobility, according to an article by Harvard Law professor Janet Halley. She said the school provides its tribunals with “a sixth-grade level summary of selected neurobiological research,” which claims that rape victims’ trauma causes neurological changes, which can result in tonic immobility. This “can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and ‘flat affect’ [so that her statements] can be ‘[m]isinterpreted as being cavalier about [the event] or lying.’ ” The Harvard training, Halley wrote, is “100% aimed to convince [disciplinary panelists] to believe complainants, precisely whenthey seem unreliable and incoherent.”

A still-pending case led U.S. District Judge John Padova to suggest that the University of Pennsylvania’s training of campus adjudicators is so biased that it may violate Title IX by discriminating against males. In a September 13, preliminary ruling, Padova cited the university’s training materials as a basis for rejecting Penn’s motion to dismiss a Title IX claim in a lawsuit filed by a student the school had found guilty of sexual assault.

Penn used a training document, “Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators,” disseminated by Legal Momentum, a women’s advocacy group that has harshly assailed Betsy DeVos’s efforts to make the handling of campus sexual-assault complaints more fair. The 17 “tips” about accusers include:

“The fact that a complainant recounts a sexual assault somewhat differently from one retelling to the next may reflect memory processes rather than inattentiveness or deceit.” Legal Momentum provides no guidance on how adjudicators should identify “memory processes,” “inattentiveness,” or “deceit.” The implication that inconsistencies are irrelevant to assessing credibility is contrary both to our legal traditions and human experience.

“Victim behaviors during and after a sexual assault may appear counterintuitive to those unfamiliar with sexual assault.” The Legal Momentum document goes on to offer examples suggesting that virtually any conduct or statement by an accuser—resisting or not resisting the alleged assaulter; subsequently contacting or subsequently avoiding the alleged assaulter; testifying emotionally or listlessly; recalling or not recalling events—is consistent with the guilt of the accused.

“False allegations of rape are not common” and “research places the [false rape report] rate in the general population between 2% and 10%.” But this research defines “false” extremely restrictively and excludes a great many cases in which the accused is clearly not guilty of sexual assault and many more in which the available evidence leaves unclear the veracity of the accuser’s account.

As for accused students, Penn’s training material seems designed to sow skepticism about their claims of innocence. The “typical” campus rapist, according to the document, might possess many “apparent positive attributes such as talent, charm, and maturity [and] a deep commitment to community service.” But such traits are “generally irrelevant.” Campus rapists “[p]lan and premeditate their attacks, using sophisticated strategies to groom their victims for attack and isolate them physically.”

Bernstein, the former top Baltimore prosecutor, expressed concern that the Penn training did not meet the “standards” necessary for an “objective process” that could determine the truth of allegations. Most of the tips, he notes, “leave a clear presumption of guilt in the investigator or adjudicator’s mind and provide a victim-centric explanation for otherwise inconclusive, inconsistent, and exculpatory testimony to the exclusion of other factors.” Legal Momentum did not respond to a request for comment.

The training materials and practices that have surfaced from other institutions are equally one-sided.

George Mason’s training plan contains a lengthy section instructing investigators and adjudicators to “avoid an implication of blaming a complainant,” such as by holding “the belief or expressing an opinion that a person who is alleging sexual assault was in some way responsible, whether wholly or in part, for what happened.” Testing an accuser’s truthfulness by asking about her pre-incident behavior with the accused student or why she waited for months to file a report or why she did not go to the police would all constitute blaming the victim. If even considering asking any such questions, the adjudicator is ordered by the training to adjourn the meeting and consult with fellow panelists before proceeding. There is no comparable caution regarding questions asked of accused students.

A University of Texas blueprint for sexual-assault investigations recommends reducing “the number of reports prepared by investigators,” so as to frustrate defense lawyers’ efforts to point out contradictions among an accuser’s statements. This recommendation belies any pretense that the university’s investigators are neutral fact-finders.

The training at Ohio State tells disciplinary panelists that as many as “57 percent” of college males “report perpetrating a form of sexual[ly] aggressive behavior,” among other points seemingly designed to prompt guilty findings. We are aware of no reliable study that makes such a statistical claim. The judge who cited the 57 percent did not say where Ohio State got it, and the school’s full training materials remain sealed.

Cooper Union’s training program describes a “typical” sexual-assault case as the work of a scheming predator: An upper class male who meets a freshman female at a party, accompanies her alone back to her room, and “pours ten shots out of a bottle he pulls out of his backpack” for her to drink. The accuser can later recall nothing, but believes that they had sex.

At SUNY-Plattsburgh, the school’s Title IX coordinator trains the members of sexual-assault hearing panels. In a recent appellate hearing in New York state court, it was revealed that she had misstated the university’s own definition of consent to make a guilty finding more likely, by ruling out “consent by conduct” to sex. SUNY’s lawyer conceded to the appellate judges that the coordinator’s explanations of Plattsburgh policy to the tribunal members were “admittedly confusing.”

The head of a Title IX disciplinary panel at the University of North Carolina, Charlotte, testified in federal court that his institution’s training prompted him to deny the accused student a chance to present friendly, post-incident text messages the accuser sent to him, even though they contradicted her claim that she had come to fear him after they had sex. The panel chair said that the training allowed the tribunal to consider only any messages that “directly answer[ed] the question of consent, to consent to sexual acts.” A federal judge called this exclusion of exculpatory evidence “troubling” and denied the university’s motion for summary judgment.

Such training regimes are the norm across the country, according to four lawyers we talked to and to public statements by two others who have through lawsuits obtained the training materials adopted by many schools. The training materials used by the vast majority of colleges still remain secret.

The new regulations that Betsy DeVos has promised to issue regarding campus proceedings—probably next fall, after publishing proposed rules and considering public comments—will likely continue to require training of some kind, which, at least for investigators, is sensible if it is done well.

Meanwhile, the training materials we have seen are flatly contrary to the Trump administration’s interim guidance for colleges on campus sexual-assault allegations, which provides that “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations may violate Title IX.” DeVos has repeatedly called for colleges to make their processes fair to accused students as well as their accusers.

The time is ripe for some of the accused to file complaints with the Department of Education’s Office for Civil Rights challenging these training programs as violating Title IX’s prohibition on sex discrimination. Such complaints would encourage the Education Department to require that schools make public the contents of their training for sexual assault investigations and tribunals. The accused—many of whom have wrongly assumed that they would be treated fairly and the truth would set them free—would then know what they are up against.

KC Johnson and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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Not surprisingly, DeVos was immediately attacked. From her poor performance at her Jan. 17 nomination hearing to her preference for charter schools over public education and her Oct. 2 decision to rescind 72 policy documents on the rights of students with disabilities, DeVos has been a lightning rod. The campus sexual-assault speech was another opportunity for opponents to strike. On a call with activists convened in response to her speech a day later, former Vice President Joe Biden weighed in. Biden, who had been the force behind the Obama regulations, called supporters of the DeVos approach “culturally Neanderthals,” and told the activists they needed to stand up against people like “those Nazis marching” in Charlottesville.

Less predictable was the support DeVos received from other, traditionally liberal quarters. She won cautious applause from the editorial boards of the Washington Post, the Boston Globe and USA Today. Even more surprising, she is making common cause with some respected feminist law professors, major organizations of lawyers and even California Governor Jerry Brown, a progressive Democrat. On Oct. 15, Brown vetoed a bill designed to perpetuate the Obama regulations in his state, citing some “colleges’ failure to uphold due process for accused students.”

Most important, universities seeking to comport with the 2011 orders, which were adopted without the usual vetting by public notice and comment, have fared poorly when sued. Since 2011, accused males who say they were wrongly punished have been on the winning side of 69 judicial decisions–mostly preliminary rulings–and fewer than 50 have lost, according to my co-author, professor KC Johnson of Brooklyn College, an expert on campus due-process debates, who keeps a tally of lawsuits by students who say they were wrongly accused.

The Obama Administration’s actions on campus sexual assault were a textbook example of regulatory overreach. In the name of enforcing Title IX, it ordered thousands of universities to find an accused student guilty even if the evidence tipped only slightly (as by 51% to 49%) against innocence, impose sharp limitations on cross-examination of accusers and adopt “training” rules for campus courts.

AFT President: Betsy DeVos and Donald Trump Are Dismantling Public Education

After DeVos’ agency formally rescinded the Obama mandates with a stroke of a pen on Sept. 22, the Education Department announced that it would develop detailed replacement regulations for campus sexual-assault cases, publish them, invite public comments and then adopt final rules, probably by next fall. In the interim, it announced less-than-forceful guidance for schools on Title IX. In August, four feminist Harvard Law School professors wrote a joint letter to the Education Department urging reforms similar to those DeVos seems to be planning. But changing things on the ground will be a challenge at the many campuses that are steeped in presuming guilt.

Taylor co-authored, with KC Johnson, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books 2017)

This appears in the November 06, 2017 issue of TIME.

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