28 November 2018

NOTHING TO FEAR




Way back on October 31, 2017, I predicted that Paul Manafort "Had Nothing to Fear" because he knew his buddy and co-conspirator Donald Trump would pardon him. See my piece at http://time.com/5003107/paul-manafort-donald-trump-indictment/

How did Manafort know that? Because, as the NY Times disclosed a year ago, lawyers for Trump and Manafort had discussed [and agreed to?] a pardon, that's how.

But then Manafort and Trump surprised me. No pardon. Manafort went to trial facing 18 counts in a Virginia district his lawyers thought more likely to acquit, before a judge that seemed hostile to the prosecution. 

Manafort rolled the dice and crapped out: guilty on ten counts, hung jury (one holdout) on eight. In a cushy Virginia jail "suite", (phone, tv, email, lots of visitors) Manafort awaited sentencing. But he also faced a Mueller indictment on other charges in D.C., and pending that trial, was moved to a stark cell in a local D.C. jail. It was at that point that he surprised me again, and copped to two counts of a multi-count indictment. And he signed a plea agreement, in the hopes that his cooperation would yield a reduced sentence.

Now a third surprise, that brings me back to my original projection: Mueller now reveals that Manafort has repeatedly lied to him, with the result that Manafort not only has lost his effort to get a reduced sentence, but now may face prosecution on the eight hung counts in Virginia and the slew of dropped counts in D.C.  

Result: Manafort now faces life in prison. Duh, what's wrong with this picture?

You believe in coincidences? Just days before Mueller's announcement of Manafort's "crimes and lies," Trump launched a tirade at Mueller, saying because they have found no collusion, Mueller's people "have gone absolutely nuts. They are screaming and shouting at people, horribly threatening them to come up with the answers they want. They are a disgrace to our nation."

Hmm. How would Trump know that? Y'think there has been communication between Trump and Manafort, camps?  [After writing this piece last night, I saw a "Breaking News" report that Manafort's lawyers had been reporting all Manafort-Mueller conversations to Trump lawyers! The naifs at the Times suggested Manafort was doing this to induce Trump to pardon him. Nah, this was not an effort to persuade Trump. I have no doubt Manafort's decision to cooperate with Trump and not Mueller was Manafort's performance of his obligations under the Trump-Manafort cooperation agreement. The only thing I do not understand is why Manafort even bothered to sign an agreement with Mueller, in which he surrendered all his assets, including his $1.3 million wardrobe (including the ostrich vest) and his five homes. Ahh, it will all come out in the wash.]


So here is my conclusion: Manafort is not risking life in prison. Not even close. Mark your smartphone calendar: promptly after the 2020 election, win or lose, Trump will pardon Manafort, who will have spent a little over two years in federal jails and prisons. Those two years are the dues Manafort must pay because Donald Trump comes first, and Donald Trump ain't gonna pardon Paul Manafort before November 4, 2020.

Write it down. And make sure your note says, "London predicted this."

A bientot.

N.B.  And don't forget one other possible reason for Manafort's reluctance to tell all: He is literally a man who knows too much.

For years Paul Manafort represented Victor Yanukovych, the Ukrainian President who worked hand in glove with Vladimir Putin. How much does Manafort know?  However much or little it is, he is sufficiently prudent to fear that Mr. Putin will consider it "too much." The result is that if Manafort really told Mueller everything he knows, (as his plea agreement with Mueller required), he risked suffering the fate of Alexander Litvinenko, killed by radioactive poison in the tea he drank with some visiting Russians, and Serge Scripal, the Russian who spied for the Brits, who suffered a near-death experience from a lethal Russian poison applied to the front door knob of his U.K dwelling.  Trump, you will recall, not only refused to join the Brits in condemning Putin for the Scripal poisoning, he fired his Secretary of State who did! (See my blog of 14 March 2018, "Scary Thoughts.")

And in this case, how deeply would Trump mourn the passing of a key adverse witness?

Night, night, children.



17 November 2018

TRUMP'S THANKSGIVING MENU: TURKEY AND APPLESAUCE



Sigh, ten days ago I posted an essay commenting on Acting Attorney General of the United States Matthew Whitaker's statement that the worst decision in the history of the Supreme Court was Marbury v Madison.  To demonstrate what a troglodyte that made Whitaker, my inner-lawyer prompted me to discuss that case in the simplest terms I could muster, so that my non-lawyer readers could follow my reasoning.

Well, I failed. I received complaints, (including one from my wife), that my efforts to simplify were not good enough.

So, for the purpose of this note, let me reduce Marbury to its core. The Supreme Court held two things:

1) If a statute [or an Executive Branch decree] is contrary to a Constitutional provision, the latter prevails because the Constitution is supreme. Neither the Congress nor the President can legally enact or declare a law or rule that is contrary to any provision of the Constitution. If they want to overrule a  Constitutional provision, they must follow the Constitution's provisions for amendment of the document.

Got that?

Therefore,

2) When a court is presented with a challenge to the validity of a statute [or a decision by a member of the Executive Branch], the court is obliged to decide the case pursuant the above principle.  If it finds that a statute or decree is at odds with a provision of the Constitution, it must say so, and declare the statute or decree to be illegal and unenforceable.

Marbury is famous because it is the first, and the definitive Supreme Court decision establishing and explaining this now universally accepted doctrine known as Judicial Review.

Whitaker thinks courts are an inferior branch of the government, and ought not have the power of Judicial Review. That would, of course, mean that the President or the Congress could totally ignore the Constitution and we would have no remedy short of violent revolution. We did that in 1776, but that was to get out from under the thumb of a foreign King, not our own President.

Ok, now back to  Trump's appointment of Whitaker. He is clearly a Trump loyalist, and while that is troublesome because it threatens the independence of the Department of Justice, (a branch of which is conducting a criminal investigation involving Mr. Trump, his family, and colleagues,) I want to focus back on Marbury v Madison.

Many lawyers, conservatives and liberals alike, have attacked the Whitaker appointment because it has not been confirmed by the Senate and therefore violates Article II of the Constitution, which reads:


"The President... by and with the 

Advice and Consent of the Senate, shall appoint ... Officers of the United States ... .

History and precedent have in effect modified that language so that not every federal employee needs Senate confirmation. Only "Principal Officers" do.

What is a "Principal Officer?" The Supremes tell us that means a person with "significant authority." That means, says the Court, we look to
 i) the importance of the issues in his portfolio,
ii) the finality of his actions, and
iii) the amount of discretion he has on reaching his or her determinations.

So to look at Whitaker's power visa-a-vis his control of the Mueller investigation, for example:

i) Absent recusal (which ain't gonna happen) few things in his portfolio at the Department of Justice are more important,

ii) Because he is at the top of the department, his decisions are not reviewable by anybody in the department. He reports only and directly to the President, and

iii) He has total discretion to reject any proposed Mueller subpoena, indictment, or expenditure.

The Administration argues the Whitaker appointment is authorized by a statute permitting "interim" appointments of Principal Officers, and the Justice Department's Office of Legal Counsel argues that Whitaker is not really a Principal Officer because his appointment expires in 240 days!  Moreover, it says, the government has, for many years, made interim appointments without Senate approval more than one hundred times!

All bullshit. I would love to see Anton Scalia's response. He would say,

 "Look he either is or he is not a Principal Officer, whether for a day or a year. If he is, then he needs Senate confirmation, and if a statute says otherwise, read Marbury v Madison. The Constitution is supreme and the statute fails. And if past administrations have violated the Constitution by applying this interim appointment statute, that certainly does not amend the Constitution. No statute, of whatever vintage and how often utilized, trumps Article II. Any contrary argument advanced by the Office of Legal Counsel is just plain applesauce."

A bientot.

15 November 2018

"SHOCKED!,!" EXCLAIMED THE PRINCE


On 17 October, 2018, I had this to say in my blog about the disappearance of Mr. Khashoggi,


 "The Prince will come up with some bullshit claim that a lower level Saudi asshole developed the brilliant idea of secretly killing Khashoggi, cutting him up, and departing the country with the body parts in their luggage. The Prince will claim he knew nothing, and after a few days will "discover" the culprit and order the beheading of the hapless security official who was following orders but now needed to sacrifice his life for the Crown ... ."


 I concluded:

 "Some poor schmuck who was proud of the fact that he was a loyal servant to His Royal Highness will have to be killed. My guess: he will confess while his head is still attached, and his wife later will get a winning ticket to the Saudi version of Power Ball and a driver's license so she can get around in her new Mercedes Benz."


On 15 November, 2018, the New York Times ran this headline:


Saudi Arabia said it was seeking the death penalty for five people suspected of involvement in the killing of the dissident Jamal Khashoggi.

The Times article went on to say:
"The statement from the Saudis on Thursday also sought to reinforce previous claims that the team in Istanbul had acted without the consent of the kingdom’s top leadership, meaning King Salman and his son Crown Prince Mohammed bin Salman."
Well, I guess I underestimated. Five people, not one.  But wait, we'll have to see how many confess, how many heads roll into the sawdust, and how many Benzes the Prince will need to give away.

I can't take too much credit here.This one was easy.

A bientot.



11 November 2018

WHITAKER: A RISK BEYOND TRUMP'S COMPREHENSION


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The appointment of Matthew Whitaker to be acting Attorney General of the United States is far riskier than our twittering President can understand. Reading the fake news print media, I have learned all about Whitaker's i) preconceived notions that the Russians did not interfere in the election that gave us President Trump, ii) stated opinion that Mueller needs to be constrained,  and iii) history of abusing his power as a former US Attorney to threaten commencement of criminal proceedings against those who complained of being cheated by a fraudster corporation of which he was a board member. And the press has also reported on both sides of the legal argument concerning the legality of his appointment.

And finally, we know how he answered the question, "What, in your opinion, was the worst decision ever by the Supreme Court of the United States?"

It is to the latter point that I address these comments.

38% of the members of the House of Representatives, and 55% of the Senators are lawyers.  Among the latter, even Messrs. Grassley. Hatch, and the newly opportunistic and bombastic Lindsay Graham must have been rocked by Whitaker's answer. Whitaker passed over Dred Scott (U.S. born children of freed slaves are not citizens,), and Plessy v. Ferguson (racial segregation of public schools is okay because it meets the "separate-but-equal" test.)

Nope, our new head of the United States Department of Justice said the worst decision in U.S. history was Marbury v. Madison.

For readers who are not lawyers, and for those of us who are but have forgotten the details of the very first case we were taught in the first week of Constitutional Law 101, I offer up this brief refresher:

Mr. Marbury was a "midnight judge," appointed in the last days of the Adams administration and confirmed by the Senate. But when hyperpolitical Thomas Jefferson beat the Federalists in the next election, he directed his hyperpolitical Secretary of State James Madison, to refuse to give Marbury a copy of the Commission evidencing his appointment. Madison, under the banner, "Politics Uber Alles," or something like that, obeyed his boss.

"Judge" Marbury was pissed, and brought a petition before the Supremes seeking an order directing Madison to fork over his Commission. 

Marbury lost his case.

Why? Technical, but important stuff. Courts can decide only those cases over which they have jurisdiction. For example, if your neighbor steals your copy of the morning newspaper, you can't start a lawsuit against him in the U.S. Supreme Court because that court has no jurisdiction to hear that claim. Its jurisdiction is limited by the document or documents that created that tribunal.

That was Marbury's problem. Except for irrelevant exceptions, Article III of the Constitution gave the Supreme Court appellate jurisdiction only.

But the Judiciary Law that Congress passed in 1789 gave the Supremes original jurisdiction as well, and that is undoubtedly why Marbury started his suit in that court.

Which rule to follow, strictly appellate jurisdiction granted by the Constitution, or the original jurisdiction granted in the subsequent statute?  Seems like an easy one to answer now, but that's only because more than 200 years ago, Chief Justice John Marshall laid it out for us.

He started out with the oft-quoted principle, "The government of the United States has been emphatically termed a government of laws, and not of men." 

Marshall clearly enunciated the principle that we teach all law students, (as well as fourth graders in Civics class): he said the Constitution is "fundamental" and its principles are "supreme."

He then applied that rule to reach a reasoned result. He wrote, (speaking of Congress), "What good is the Constitution if the people restrained by the Constitution can ignore its restraints at will?"

and therefore

"It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it ... ."  Otherwise, he reasoned,  "the legislature [or the President!] could simply "alter the Constitution by any ordinary act."

Therefore, it "must be that an act of the legislature repugnant to the Constitution is void."

When a court has two contradictory laws before it, it must decide which one "governs the case." If one law is a legislative act, and the other a Constitutional proviso, the Court must rule that the latter prevails.

Thus kiddies, is born the concept of Judicial Review, which the esteemed Acting Attorney
General of the United States has just peed upon.

Marshall went on to give some examples that Trump acolyte Whitaker might chew on:

The Chief Justice noted that Article I restrains the Legislature from passing any "Bill of Attainder or Ex Post Facto law." He argued that if such a bill nevertheless were passed by the Legislature, "must the Court condemn to death those victims whom the Constitution endeavors to preserve?"

Otherwise, were the Legislature to discover a drawerful of theretofore hidden documents proving  Trumpian misconduct, and were those legislators to then ignore the Constitution and enact a bill imposing a sentence of life imprisonment upon Messrs. Whitaker, Trump, and all of the latter's descendants, it would be orange jumpsuits for the whole gang.

Sigh, as satisfying as that result might now seem on some level, even an unread lawyer like Whitaker could get them all off by going to a federal court and citing Marbury v Madison.

A bientot.