29 January 2018

Can Trump Be Indicted?

“The President, Vice President and civil officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
— Article II, section 4, U.S. Constitution
“Judgment in cases of Impeachment shall not extend further than to removal from Office … but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”
— Article I, section 9, U.S. Constitution
These passages explain that, despite all the political rhetoric emanating from the White Housethe Capitol building and elements of the media, if the House impeached and the Senate convicted Donald Trump, the only result of that Congressional action would be his removal from the Presidency.
But what is equally important is what they don’t say. There is no language in the Constitution providing the President with any immunity from prosecution by the appropriate criminal authorities: he is subject to the ordinary criminal processes of “Indictment, Trial, Judgment and Punishment, according to law.” Furthermore, there is not one syllable directly putting the President beyond the reach of the criminal law even if Congress does not impeach.
The argument that the President is immune from the criminal laws is just that — an argument. It involves two issues:
First is the question of whether an obstruction of justice charge can be brought in this case. The President’s supporters argue that key elements of any such indictment could not support a conviction. If everything the President did was legal, they say, he could not possibly be convicted of a crime. And indeed the President was legally entitled to ask then–FBI Director James Comey to go easy on former National Security Advisor Flynn, and then to fire Comey for that or any other reason — just as he is legally entitled to fire Special Counsel Robert MuellerDeputy Attorney General Rosenstein or anybody else in the Department of Justice. But the law is clear: an otherwise legal act can be an obstruction of justice if undertaken for corrupt purposes. Yes, the President has the right to fire the head of the FBI. But there is no Constitutional support for the notion he can do so corruptly to immunize himself from “Indictment, Trial, Conviction, and Punishment” for money laundering (whether involving Russians or otherwise), obstruction of justice, a violation of the election laws or any other felony. An imperial Presidency was the worst fear of the Founders.
The second question is not whether, but when. Can the President avoid indictment while in office? But again, there is no language in the Constitution saying he enjoys any such protection. The Department of Justice itself has made this argument before with regards to Article I Officers. I saw it first-hand. During the then–Vice President Spiro Agnew bribery investigation, our legal team argued on behalf of the Vice President that because he was subject to impeachment under Article II, Section 4, he was immune from criminal prosecution unless and until he had been impeached by the House and convicted by the Senate. In effect, we argued that the Vice President had to be impeached and removed from office first — and then criminal charges could proceed. The Department vigorously rejected that claim. They insisted there was nothing in the Constitution that said impeachment was the exclusive remedy for crimes committed by Article I Officers: the Vice President and, by logical extension, the President could be subject to both impeachment and indictment, even if those proceedings were pursued simultaneously. Surprising no one, the Department was quick to nonetheless urge that President Nixon was immune yet Vice President Agnew was not. But that was based on derived argument — not on the hard Constitutional language that self-proclaimed “conservative” jurists insist is the only real guide to Constitutional interpretation. And the current president has certainly made clear that “conservative” judges are the only ones he will appoint.
A Nixon indictment for his evident criminal conduct in obstructing justice regarding the Watergate break-in and cover-up would certainly have produced an interesting legal battle. But the prosecutors dodged the question by naming him a co-conspirator and not a defendant. So the issue remains judicially undetermined.
Does the recent revelation that Trump went so far as to issue a directive to fire Mueller add weight to an obstruction count? Did the President add to the proof of obstruction by offering three absurd reasons for his decision? Does the President’s claim that he is absolutely immune from criminal process while in office offend the fundamental precepts of the Founders?
The answers to all three questions is “yes.”
If Special Counsel Mueller finds evidence to bring criminal charges against the sitting President, he should obtain a Grand Jury indictment and proceed. If the President wants to fight the legality of the indictment, he should do so in court — not by means of craven Congressmen publishing spurious claims about the integrity of Mueller and his team. That campaign is more than divisive. It smacks of political venality and is a threat to the architecture of our constitutional democracy.

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A copy of this blog has been published on Time.com at:


15 January 2018

Fire and Fury -- a Review



Observant readers may have noticed i) I am not an impartial observer of the Trump presidency, and ii) Steve Bannon makes my skin crawl. Now that that's out of the way, this is as impartial a book report as I can muster.

First, I read the Kindle version, and didn't bother to bookmark favorite passages.  The Bannon quotes about the "treasonous" Donald Jr., and the "dumb as a brick" Ivanka need no reminding. But though it was the Bannon bombs that made the headlines, the best part of the book is the fine milling of the daily give and take among an ever-changing, ever-warring White House staff -- especially the turf wars between the Bannon clan, and what the Bannon and the author referred to as Team Jarvanka. This is logical, fascinating, important dirt that no one has denied. Even the Bannon semi-apology was not only unconvincing, it in effect confirmed the accuracy of his reported condemnations and criticisms.

Remember Scaramucci, the ten-day wonder? The description of how the Mooch came to be appointed is bizarro. But the best is his contribution to what I thought was the funniest anecdote in the book. At some point in the middle of his brief tenure, the Mooch called a reporter from the New Yorker, and boasted how, unlike others, he had accepted a post in the Trump administration on account of patriotic duty, not self interest: "I'm not here to build my own brand, I'm not Steve Bannon, I'm not trying to suck my own cock." Doncha love the "established" media?  No fake news tolerated: A fact checker for the magazine called Bannon and asked if it were true he sucked his own cock.

While the internecine turf battles are fun to read about, the real scary part is the portrayal of our Commander in Chief. The book is the syntheses of all of the stuff we have seen dribbling out in the press over the past year. The man not only does not (cannot?) read, he does not (cannot?) listen either. Briefers are left with hanging jaws when the President simply leaves the room after five minutes. No subject is too important to overcome his chronic inattentiveness. North Korea, Iran, Afghanistan? Position papers are ignored, and oral briefings cut short by his attention-deficit prompted exclamations of pre-conceived simplistic notions. All we have heard about his fabulism appears to be deadly accurate, and more. The man is totally disconnected from facts, and everyone around him knows it and tries to "manage" around it. Trump not only constructs his own reality that he is incapable of dismissing, but resents anyone who corrects him or appears to be smarter than he is. He has surrounded himself with Generals Kelly, McMaster, and Mattis, and dislikes all three intensely. (The only one he liked was Flynn!)

Wolff concludes with Bannon's prognosis for the Trump presidency: (and this, of course, before Bannon was kicked out of Breitbart):

On third likelihood of impeachment, one third likelihood of an Article 25 incapacity, and one third likelihood of serving out a single term.

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Bottom line:  Lost in all the hype is the fact that this is a well-written book and bears indicia of accuracy. (I liked his description in the Acknowledgement: his meetings with the publisher's libel lawyers were like visits to the dentist). All in all, a fun read.  Even if you like Trump, you should buy this book. (And there must be lots of people out there who like Trump because, after all, but for the 3 million illegals who voted for Hillary, Trump won the popular vote and had the largest inauguration crowd in history.)

Now, a return to duty: I expect Chernow's Grant is going to go down a bit easier with my feet buried in the warm sand of Gouvernour Beach!


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A bientot.

06 January 2018

Where's My Roy Cohn?

"Where's my Roy Cohn?"

That's the question a frustrated President Trump asked when he learned that Jeff Sessions could not protect the president from the pending Russia inquiry because the Attorney General had recused himself from the matter after making misleading statements to the Senate Committee that confirmed him.

Where was his Roy Cohn, the crooked lawyer who protected Trump, and helped him screw over countless adversaries? He was long gone, of course, but before he died, Cohn left behind a trail of lies, deceptions, and downright thefts. He stole from clients, forged signatures, lied to courts and government agencies, and otherwise disgraced his family and the Bar of which he was a member.

My principal contact with Cohn occurred in 1982 when I signed a petition to have him disbarred.  I had been appointed by the Appellate Division of the New York Supreme Court to chair the Disciplinary Committee that prosecuted unethical lawyers in Manhattan and the Bronx which had 40,000 registered lawyers at the time. Upon taking over the committee, I discovered a molding file on Cohn that was not being pursued because the staff was overworked, and its Chief Counsel feared that devoting time to the well-defended Cohn would eat up too many scarce resources. I fired the Chief, brought on a felony prosecutor from Brooklyn, and we went to work.

In the end, we prosecuted Cohn on four counts.

First, Cohn had represented a woman seeking a divorce from her husband and when the matrimonial matter was settled the husband paid him a $60,000 fee for all services rendered to his wife. Cohn accepted the payment, and then several months later wrote out a check to himself for $100,000 from his client's checkbook, flew to Paris where she was staying, told her he needed to borrow some money, and persuaded her to sign the check, which, on its face, said "Loan." He also gave her a 90-day promissory note in that amount. For ten years he put her off, making some small payments, signing more than 20 documents referring to the "loan," but when she finally sued, Cohn's swore in court that the payment was not a loan at all, but some kind of loose fee arrangement, though neither he nor his law firm had a single document or record to support that claim.  It took seventeen years for his client to get her money back. In the subsequent disbarment proceeding, the Appellate Division concluded his defense had been total and complete perjury.

Second, when a yacht company's assets were frozen by the SEC, Cohn, representing the company, suggested he take all the assets and hold them in escrow for the benefit of the creditors. When the court agreed, Cohn proceeded to pay most of the escrowed assets to himself and his partners, and was held in contempt by federal judge Palmieri. When Cohn tried to explain that away at his disbarment hearing, the court found his testimony to be "incredible."

Cohn was apparently quite comfortable stealing from clients.  Perhaps the most brazen assault on the duty of good faith a lawyer owes to his client involved multimillionaire philanthropist Lewis S. Rosentsteil, whom Cohn had represented in a divorce. While the 84-year old Rosensteil lay dying in a Miami hospital, Cohn and a colleague visited the client, and ignoring the orders of hospital personnel that Mr. Rosenstein was in critical condition and "almost comatose," Cohn put a pen in the patient's hand and "helped him sign" a document he told Rosensteil was just an administrative detail to complete the divorce.  In fact, it was a document that appointed Cohn as an Executor to Rosensteil's estate. Upon his departure, Cohn told hospital administrator he "wasn't there to get any signatures of the patient, it was just a visit!" The Appellate Division noted the document's signature line contained "a number of squiggly lines which in no way resemble any letters of the alphabet," and found Cohn's twisted explanation of the incident to be perjurious.

While these three charges were pending, Cohn had the brass to apply for admission to the District of Columbia Bar, and, on his sworn application, denied that any charges were pending against him except for the "usual crackpot complaint letters."

Before the Appellate Division finally decided the disbarment case we had brought, Cohn told a Washington Post reporter that his accusers (i.e., me and the Committee staff) were "Simply left wingers, deadbeats, and a bunch of yo-yos just out to smear me up." I was honored.

Bottom line, all four charges were sustained, and the unanimous five judge court (of which Cohn's deceased father had been a member) found the "evidence so compelling ... as to leave us no recourse but to order disbarment."

One last note to this seedy tale. At the hearing before the Committee, Cohn scared up character witnesses who were willing, under oath, to attest to Cohn's good character and to testify that he "possesses the highest degree of integrity." One of those witnesses was a young real estate developer named Donald Trump.

Mr. President, that you would choose Roy Cohn as your mentor is no surprise to your critics. The stuff he taught you may well lead to your undoing.
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This piece may also be found at 
https://contributor.huffingtonpost.com/cms/post/5a50e2fce4b0f9b24bf317a
It is derived from a chapter in my memoir, The Client Decides, published in 2017.