25 February 2018

Editorial Coincidence Department


In my piece entitled Mueller's Wall, posted on February 14, I said it looked to me like Gates was going to plead, and if that happened,

the pressure on Manafort will dramatically increase. ..... Manafort was not somebody who can be dismissed by the White House as some lowly gofer.

On February 24, Peter Baker in the New York Times, in a "News Analysis" piece, wrote that Gates had just pleaded, and

The guilty plea by Rick Gates raised the pressure on Manafort,... In the current case, the targets so far have included not just a “coffee boy,” ...  but the president’s top two campaign officials. 


And in my piece I made liberal use of my favorite metaphor, -- the one I used effectively in a trial described in my 2017 memoir. My February 14 blog entry said:
\
This prosecutor is patiently building a wall, and each piece of evidence is but one brick. ....

and,

 If Gates flips,... Another brick in the wall.


 and,
In a telephone conversation involving Trump and Hope Hicks, Mark Corallo ... feared he was listening to a plan for document destruction. ...  and has now accepted an invitation to spill all to Mueller's team. More bricks in Mueller's wall.


Ten days later, Baker wrote: 


With each passing day, Robert S. Mueller ... seems to add another brick to the case he is building.



Do I think Mr. Baker was substantively influenced by my post? Nah. I have no reason to believe he even saw it, though he is more than welcome to check it out. But I did get a kick out of his eventually tumbling not only to what I had said, but how I said it.

Oh, yeah, one more point. Mr. Baker doesn't publish an  email address, and I ain't a bird that tweets, so if anyone out there does get in contact with him, please suggest he consult the venerable New Yorker series called "Block that Metaphor:''  One  adds a brick to a "wall."  Adding a brick to a "case" stimulates no mental picture, which is what metaphors are all about.

So there.

A bientot.


14 February 2018

Mueller's Wall




A Wall the President Does Not Want to See Built:

While CSI viewers are accustomed to wait for the "smoking gun" to be revealed at the end of the program, in real life many criminal convictions result from the subtler circumstantial evidence the prosecutor amasses to show motive and criminal intent. We don't yet have a device that can scan the brain to ascertain intent, so we use evidence from which reasonable people can draw reasonable inferences about a party's state of mind -- things like when a person suppresses material information, or conspires to create a knowingly false narrative, or makes false statements about material facts, or endeavors to hide material documents, or makes corrupt efforts to spike a prosecutorial inquiry, etc. Stuff like that. Each of these things would lead a reasonable juror to conclude they evince a consciousness of guilt. This is persuasive stuff to courts and juries in both criminal and civil cases.

The substantial quantity of circumstantial evidence of this president's corrupt intent to obstruct the Russia investigation is piling up: No one piece of evidence is conclusive. This prosecutor is patiently building a wall, and each piece of evidence is but one brick. That's the way it is done in real life. And Mueller's wall gets higher and stouter with each passing week.

Recent news reports reveal that Rick Gates has fired his lawyer, has new counsel, and may be cooperating with Mueller.  Gates was Manafort's partner for many years, and has had lots of contact with the Russians, going back to 2013. He and Manafort have been indicted by Mueller for money laundering, false statements and a host of other offenses, many involving their Russian contacts. If Gates flips, the pressure on Manafort will dramatically increase. And Manafort was Trump's campaign manager, not somebody who can be dismissed by the White House as some lowly gofer. Another brick in the wall.

And we now have a report of a telephone conversation involving Trump, Hope Hicks, and Mark Corallo, a spokesman for the Trump legal team. Their tripartite telephone conversation concerned the earlier release of a statement under Donald Jr.'s name, describing his meeting with the Russians on June 9, 2016. The written statement, drafted by President Trump with the aid of Hicks, reported that the meeting with the Russians basically was about adoption. That was false, and it is clear Trump, Hicks, and of course Donald Jr., knew it was false. When Corallo told the president and Hicks that he was concerned the statement would backfire because the true purpose of the meeting would be revealed by the emails among the president's son, son-in-law, and campaign manager, Hicks is alleged to have responded to the effect, "That's not a problem because those emails will never get out." Corallo, doubtless out of desire to maintain his view of Mueller's wall from the outside, not the inside, surely feared he was listening to a plan for document destruction, and immediately advised Hicks and the president to talk to their lawyers, hung up, made a contemporaneous memorandum of who said what, told three other people about the conversation, and then quit his job!  Apparently, he has now accepted an invitation to spill all to Mueller's team. More bricks in Mueller's wall.

The higher this wall gets, the greater the pressure on this presidency. The greater the pressure on this presidency, the more risks the president and his supporters will take to spike Mueller's efforts.

The astonishing conduct of the Nunes Committee and the White House in declassifying and releasing a partisan and misleading memo over the stern objections of the FBI is a fair measure of how great that pressure has become. It's certainly more than reasonable to infer this whole episode is a preparatory tactical strike to create an equally flaccid public relations defense for a forthcoming announcement:

A prediction: Our president, who has said over and over again, i) there is "no collusion," ii) he has nothing to fear and is eager to talk to Mueller, iii)and he is even eager to do so under oath, will eventually announce his refusal to meet with Mueller.  He will say his decision is based upon the evident bias of the FBI as revealed in the Nunes memo. He will tweet "witch hunt," and may even fire Mueller and Rosenstein. But the truth is, of course, he will decline to meet with Mueller's team because such a meeting might end his presidency well before 2020.

For sure, the President's turnabout rejection of a Mueller meeting would produce a tsunami of criticism, but his lawyers will persuade him to accept the risk, and the risk of a subsequent subpoena.  Mueller's wall is getting too high, and I have little doubt it would be a lot higher were the President to sit down with the Mueller team. And in an effort to prevent a subsequent Grand Jury subpoena, Trump may even fire Rosenstein and Mueller. A Saturday Night Massacre to the second power.


Now, an interesting question: Would his refusal to talk to Mueller constitute official misconduct? I suggest it would. Consider, please, that the President is not an ordinary citizen. He alone has a Constitutional duty to "take Care that the Laws be faithfully executed." Mueller is conducting a legal inquiry into whether, among other things, Trump or members of his family, have violated various Penal Law provisions, and that includes the obstruction of justice by his bad faith firing of Comey and otherwise obstructing the Comey/Mueller investigation. It is hard to see how a bad faith refusal to cooperate with Mueller, or worse, a bad faith firing him, would be consistent with the Constitutional command to see to it the laws are faithfully executed.

Would the Congress be so offended at the president's bad faith refusal to meet with Mueller, that they would finally act? Would they impeach this president? This Congress? Does a bear poop in a tree?
...................
N.B.  This article was written on a rainy Saturday, February 3, 2018, two days before the NYTimes reported the scoop that Trump's lawyers were urging the President not to meet with Mueller. For various weather and other non-substantive reasons, the author of this piece, who actually has another life not entirely focused on The Donald's attempt to end the world as we know it, didn't get around to posting it until now!

And now a bonus: Time.com has just published a subsequent essay of mine discussing in some greater depth my theory that the mandatory obligation imposed upon the President by the Constitution to "Take Care that the Laws be Faithfully Executed" means what its says and requires Trump to cooperate with Mueller. Nevertheless I predict Trump will disregard his Constitutional duty and refuse to speak with Mueller, and that Paul Ryan and his team will abandon their Constitutional obligations and give The Don a pass.  Hope I am wrong. 

Don't pass this one up. It even contemplates The Don taking Five! Here's the cite. Check it out:

http://time.com/5137773/donald-trump-russia-congress-impeach/

 A bientot!