REICHSTAG FIRE?

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Short of another Reichstag Fire, or a Wag-the-Dog "police action," I do not see how Donald Trump can make it to the winner's circle on Wednesday, November 4, 2020.

The possibilities for his decline are manifold. The question is not whether he is a criminal, but how many counts there will be in the draft indictment and/or bill of impeachment. Even assuming Mueller abides by Justice Department policy and fails to indict the president, you can be sure that the prosecution team is working on a draft accusatory instrument that, one way or another, is going to be public.

 I can visualize Mueller's team adding to that document each day and storing it in the cloud. That way, the best efforts of whichever Trumpstooge may then be heading up the Justice Department, will fail to suppress the special prosecutor's findings. They will be made public, either by leak, court order, or pursuant to Congressional subpoena, most probably the latter.

Given the information gathered by Mueller, the SDNY prosecutors, and the New York State Attorney General, one could reasonably expect the Mueller document to include charges of conspiracy to violate the election laws, bank fraud, money laundering, obstruction of justice, tax fraud, and more.

And Donald Trump will not be the only name in the caption at the head of the instrument. It would be a surprise if we did not also find Donald Junior, Roger Stone, Jerome Corsi, perhaps Jared Kushner, Paul Manafort, Hope Hicks, and one or more banking institutions. (I am betting that the sealed subpoena fight now making its way to the Supreme Court involves a foreign bank, maybe one owned by the government of The Caymans, Russia, Germany, Qatar, etc.)

The similarity to the Nixon demise is remarkable:

 Nixon railed against the press, complaining it was misleading the public by means of "outrageous, vicious, and distorted" reporting. He accused the Washington Post of being "an agent of the Democratic Party." Trump labeled the press, "An enemy of the people,"and banned a CNN reporter from White House press conferences.

Under the mounting pressure of the several investigations (the Special Counsel, the Senate hearings led by Sam Ervin, and the House Judiciary Committee) Nixon's approval rating fell to the low 30s. Two recent polls put Trump's national  approval rating at either 39% or 33%.

Nixon's John Dean is Trump's Michael Cohen. Both presidents used the same language. Nixon called his lawyer an "opportunistic rat," and Trump called Cohen "a rat, looking for a lower sentence,"  Both lying presidents said their lawyer-accusers were liars. Both "rats" went to prison, but each provided evidence that their bosses were criminals.

Nixon obstructed justice by forcing out his Attorney General. Trump did that too, and has attempted to replace him with a Trumpian stooge. Nixon also forced out his Deputy Attorney General, and Trump threatened to fire his Deputy A.G., and did fire his Director of the FBI.

Nixon went a step further than Trump has gone so far. Nixon not only forced out his Attorney General and Deputy Attorney General, but also forced the firing of special prosecutor Archibald Cox. (In the be-careful-what-you-wish-for department, Solicitor General Robert Bork, who was directed by the president to fire Cox, replaced him with Leon Jaworski, whose subpoena ultimately was upheld by the Supreme Court and forced Nixon to resign!)

Trump has threatened to emulate Nixon by firing Rod Rosenstein and Mueller, and actually gave orders to do so, but his White House counsel refused to obey. Thus Trump was denied his own parallel to Nixon's Saturday Night Massacre. (Perhaps one of the restraints on the Trump team going forward is the recognition that after firing Cox, Nixon's national approval rating sank from 31 to 19!)

As the screws tightened, a White House observer called Nixon "unhinged." Sound familiar?

Both Nixon and Trump had, for some time in their presidency, an extraordinarily loyal base.

I cite one example of the extremes of Nixonian loyalty: When the Democratic-controlled House Judiciary Committee voted to impeach Nixon, it had before it incontrovertible evidence that i) the Watergate burglars had been hired by the White House, ii) a check made out to the order of the Nixon reelection committee was transmitted directly to one of the burglars, and, iii) Nixonian-produced transcripts of tapes were crafted to mislead. In effect, a tape-recorded "Yes" was transcribed as a "No."  (Compare the Trump-Cohen tape where Trump tells Cohen to "pay Pecker in cash," and Giuliani insists Trump said, "don't pay in cash"!). And most persuasive, the Committee had listened to the tape in which John Dean tells the president he doubts they could continue to buy the silence of the Watergate burglars because it would cost up to $1 million in cash, to which Nixon responds, "I can get that."

Open and shut, huh? Not so fast: a majority of the Republican members of the Judiciary Committee voted "No" on that obstruction of justice impeachment count. One of them was quoted as saying he did not think the evidence against Nixon was as serious as an accusation of "spitting on the sidewalk."

But when the Supreme Court rejected the president's claim of executive privilege, and ordered full compliance with the Jaworski subpoena, Nixon was cooked. The so-called "smoking gun tape" revealed that Nixon had directed one of his aides to call the CIA and have them direct the FBI to drop the investigation. Doubtless, the likes of Giuliani and Dershowitz would make the absurd argument that is not obstruction of justice, but the publication of that tape breached the hull, water poured into the holds, and the Republicans in Congress abandoned the sinking ship. When the Republican leadership told Nixon they could no longer support him, he said, "I am not a quitter," and quit.

Does Mueller have the equivalent of a "smoking gun" piece of evidence? My bet is "yes." And even if he doesn't have a single torpedo that blows a giant hole in that already leaky Trumpian hull, Mueller surely has more than enough explosive material to pop the already softened golden rivets of the S.S. The Donald. When that happens, the theretofore loyalist red-tie passengers on that ship will scurry to the lifeboats.

So here is what my crystal ball shows:

1. The Mueller document will be made public, then

2.. The House will vote to impeach, then

3. A significant number of the Republican members of Congress who have staunchly supported this president will poll their constituents. The result will cause a wrecking-ball re-evaluation of their loyalty to the leader of their party, then

4. President Trump, that serious student of history, will then be faced with these options:

a) Make a deal and resign, a la Agnew, or

b) Resign without a deal, expecting his successor's pardon, a la Nixon, or

c) Set fire to the White House and blame Ecuadorian immigrants, a la you-know-who, or

d) Assert that a United States destroyer was attacked by a Chinese gunboat in the Gulf of Tonkin, a la Lyndon Johnson. This would justify a Trump declaration of a national emergency even more threatening to our survival than the "The Caravan," and would be the foundation for a presidential decision to call up all reservists who are not afflicted by heel spurs. 

e) Finally, in the event he is still president in the summer of 2020, Trump will order polling to be done in Wisconsin, Michigan, and Pennsylvania. Upon hearing Jared read the results to him, the president will tweet, "I am not a quitter, but for the good of the country, I hereby quit the campaign, and following the historic precedent of that great honorable statesman Lyndon Johnson, I will not be a candidate for reelection."

In any event, the Democrats will not be the only ones scrambling to find a candidate in the Fall of 2020.

You read it here first.

A bientot.
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THE "P" WORD

When I was a young grade-schooler, I asked my father why there was no sound to the letter "p" in the word "pneumonia." He  laughed, and said "in some words the 'p' is silent, like the 'p' in 'toilet'." I confess I didn't "get" that for a while, and when I did get it I didn't think it was very funny. But my father did, and that was good enough for me.

I am reminded of that "joke" by the Flynn sentencing the other day. Flynn, you recall, had been an uber supporter of Trump. He appeared at many of Trump's rallies, leading the audience in the offensive "Lock Her Up" chant, and was seen as a hard-right adviser to the President-elect. During the transition, he was directed to contact the Russian Ambassador and deliver several Trumpian messages. At least one of those messages, it is reported, was at the behest of Jared Kushner. The other details of who crafted the messages Flynn delivered are, at this time, muddy, at least to all of us outside of the Mueller team.

Flynn thereafter lied about the substance of his conversation with the Russian Ambassador. He lied about it to the press, he lied about it to the Vice President, and to other people in the administration. And when the FBI called and asked if they might pay him a visit in his west wing office, (Flynn was at that time the National Security Adviser) he said, "Sure, come ahead, happy to speak with you." So the FBI paid him a visit and he lied to them too.  

There are a number of mysteries involved in Flynn's conversation with Ambassador Kislyak. Not only are we in the dark about precisely who instructed him to talk to the Russians about the subject of sanctions, it is a great mystery as to why Flynn thereafter lied about that, especially since, as the former head of the Defense intelligence agency, he had to know that his telephone conversation with the Russian Ambassador was recorded by the FBI. But but lie he did.

When confronted with his crimes of lying to the FBI (and failing to register as a foreign agent for Turkey) Flynn folded, signed a cooperation agreement, and pleaded guilty to one count of lying to the FBI. That count had a maximum sentence of five years, but carried a sentencing guideline recommendation of six months.

At the time of sentencing, Flynn had fully flipped. His cooperation was described as being "almost 100% complete." And he must have given the Mueller team lots of good stuff because Mueller praised his cooperation to the sentencing judge and recommended a no-jail sentence. 

But then a bizarre thing happened. Flynn's lawyers submitted a pre-sentence memorandum in which they suggested that Flynn had been deceived by the Feebs in the manner of their questioning of him. Futhermore, they complained that the agents failed to warn this three-star general and former top security official that lying to the FBI was a crime. In other words, Flynn's lawyers trashed the Mueller team and the FBI.

How remarkable! What a coincidence! President Trump was desperately trying to escape from his own criminality by trashing the Mueller team and the FBI too.

Strange, huh?

The District Judge did not react kindly to Flynn's weaseling attack on the FBI. In fact, he was furious. He put Flynn under oath and made him admit that the FBI did nothing wrong, he did lie to them, and he knew it was a crime to do so. The judge indicated that Flynn's crimes were very serious, bordering on treason, and he was inclined to give him jail time. Flynn accepted the judge's offer for a 90-day delay to give the General the opportunity to "complete" his cooperation with Mueller. 

The press has largely focused on the judge's demeanor as a rebuke to Trump's attack on the FBI. It certainly was that.

But I saw no discussion in the print medium or on television about the apparent gross misjudgment by Flynn's lawyers to attack the FBI. They already had "no jail" in the bag, yet the NYTimes headlined the story as the lawyers' effort to secure "leniency" for their client. Were the lawyers really so dumb? Did they think they could do better than the "zero" Mueller had recommended?

Nah. The Flynn lawyers, though in court, were not playing to the judge, but to the Big Cheese. By publicly supporting Trump's attack on the FBI, they were doing the same thing that Manafort had done: cooperating with Mueller openly, but one way or another, giving aid to a Trumpian cause. 

Hmm. While Trump had only foul things to say about his former lawyer Michael Cohen for flipping, (he suggested that "flipping" was so evil it ought to be against the law, and he called Cohen a "rat," for doing so), Trump nevertheless praised flipper Flynn as being a fine person and wished him good luck at his sentencing!

So we are back to the "P" word.

No, Flynn's lawyers were not trying to reduce Flynn's court-imposed sentence: they were making nice-nice to the boss, sending a message reinforcing the pardon discussions earlier had with Trump's lawyers.

Did they miscalculate? Yup. In the end, Flynn will sing some more, and probably escape jail or perhaps get a 30-day sentence. 

But there is no way, I suggest, that Trump dares to pardon Flynn before November 3, 2020, if then. In the Trump world, loyalty flows only uphill, and Donald is going to have to issue a satchel-full of pardons to his crime family. And who knows, maybe to himself!

Then, if there's room, maybe Manafort and Flynn. Maybe.

A bientot.

NEW YORK, NEW YORK, IT'S A WONDERFUL TOWN!

The latest revelations from Mueller, by means of the Manafort and Cohen sentencing memoranda, strongly suggest that in a short while it will become clear beyond a reasonable doubt that i) our president is a criminal, ii) his son is a criminal, iii) his son-in-law may be a criminal, and iv) his former campaign manager, a convicted criminal who has lied about his connections to Russian operatives, is facing a very long prison sentence.

This leads to frequent discussions in the press and elsewhere about both the likelihood and the consequences of a federal pardon for all members of the Trump Crime Family.

And that leads to a discussion of the rights of a state to prosecute members of the TCF for conduct that violated state law.

Likelihood of a Pardon:

First things first. There cannot be much doubt about the likelihood of presidential pardons here. There is no way The Donald is going to let Junior go trial, no less go to prison. And the same is true with respect to his daughter's husband. As to Paul Manafort, it is clear i) his lawyers already have had pardon discussions with Trump emissaries, ii) Trump is a strong supporter of Manafort, and iii) Manafort apparently has information that is highly prejudicial to Trump's claim of "no collusion."

This leads ineluctably to the conclusion that members of the TCF will be pardoned before the termination of Trump's presidency in January, 2021.

Consequences of a Pardon:

Here we have signs of mass confusion. The press has done a terrible job explaining a few unambiguous legal principles.

First principle: a federal pardon has no effect on state prosecutions. The president does not have the power to pardon a defendant accused of a state crime.

Second principle: The Double Jeopardy Clause of the federal Constitution does not prevent a state prosecution for violation of state law, even if it is for the identical conduct that was the subject of a federal prosecution. (That has been the historic interpretation of the Double Jeopardy clause. A case challenging that result was argued in the Supreme Court earlier this week. From statements made by the Justices during the argument, it would appear that the Court is unlikely to reverse its prior rulings. In any event, no result there would affect any conclusions in this post.)

Third principle:

Even in states such as New York, where a statute bars "double jeopardy" prosecutions, the prohibition applies only where the elements of the state and federal crimes are identical. In other words, if the federal prosecution was based on a statute that required proof of an element, such as specific intent, conspiracy, etc., that is absent from the state statute, the crimes are not the same, and the state's double jeopardy rule does not apply.

Fourth principle:

Even if the elements of a charged crime are identical, and a state statute forbids double jeopardy, there is no double jeopardy defense for the second prosecution unless the accused has actually been put "in jeopardy" in the earlier case. As a matter of both federal and state law, a defendant does not suffer jeopardy unless he is actually put on trial, a jury has been sworn, and a verdict has been reached. For example, Manafort was tried in Virginia on 18 counts including money laundering and bank fraud. He was convicted on 8 counts, and there was a hung jury on ten counts. Courts have held that a mistrial does not result in "jeopardy" attaching, so that Manafort may be tried again on those ten counts. He can be tried by Mueller, or, in the event he is pardoned by Trump, he can be indicted and tried by New York (or Virginia) on any of those counts that involve a violation of state law. And in the D.C. case, Manafort's plea deal covered only two counts, and Mueller agreed not charge many others.  All those other crimes could be charged by the feds, as well as any state that can find applicable state criminal statutes.

Summation:

A federal pardon does not proscribe all state prosecutions.  New York state would be free to prosecute Trump Senior and all other members of the TCF who received federal pardons, except for those federal defendants who were actually convicted, or acquitted at trial, of federal crimes. But even as to those, the state prosecutions would be barred only if the elements of the state criminal statutes were identical to the elements of the federal statutes that were the basis of those convictions.

Bottom line, a federal pardon is not going to help any Trumpians escape New York justice unless Trump is willing to let the members of his family i) be indicted by the feds, ii) go to trial in which a jury is sworn, (and if the trial goes to verdict, the jury convicts or acquits), and iii) the NY State indictment is for an identical crime as the federal indictment,

Conclusion: Manafort made a bad call all the way around. He is now screwed whatever he does, though he may have helped the members of the TCF by withholding evidence of their complicity -- for a while.

As to the other members of the TCF, their best strategy now might be for Jared to be the point man for negotiating a family-wide relocation to Israel or Saudi Arabia.

A bientot!