DOWN THE LEGAL RABBIT HOLE

Okay, the great Sphinx has spoken, and assured us he will not speak again.

But what Mueller did say makes the brain reel. While it is true that everything in his nine-minute talk was in his 428-page report, this time he gave us the Mueller headlines as opposed to the fake news Barr headlines. Here are Mueller's main points:

1. The Russians screwed with our 2016 election, and they did it to screw over Hillary Clinton.

2. Mueller did not say there was no collusion. He said he did not uncover sufficient evidence under the Penal Law to charge any American with criminal conspiracy with the Russians. That, my friends, is a lot different, and leaves a lot of work for Congress. For example, while there may not be evidence of Penal Law guilt beyond a reasonable doubt of criminal conspiracy, is it okay for a candidate for President to know of the Russians’ helpful criminal conduct and just sit back and enjoy it, say nothing to the authorities, and maybe even lie about it to the public? That is a question for Congress to pursue.

3. Mueller did not say there was no evidence of Presidential obstruction of justice. To the contrary, he repeated: If we had found there was no obstruction of justice, we would have said so. We did not say so.

4.  Then listen to this piece of rabbit hole logic:  DOJ policy -policy-- not a statute, not a court decision--policy says we cannot indict a sitting President,  therefore even if we had found evidence of obstruction, we could not say so because, it would be "unfair" to the President, who, without an indictment and trial, would lack a forum in which he could prove he was not guilty!

Let me repeat that Mueller argument: Even if we had found the President was guilty of a crime, we couldn't say so, because since we could not indict him, it would be unfair to him to say he was guilty of a crime without indicting him, which we couldn't do under DOJ policy!

If you think that is absurd, you are not alone.

Furthermore, the same logic would apply to collusion. Mueller is saying that even if he had found evidence of Penal Law conspiracy between the President and the Russians, Mueller couldn't say so because he couldn't indict the President.

Kinda makes the whole idea of appointing a special prosecutor ridiculous, non? A eunuch-prosecutor who can not prosecute, and can't even opine on guilt. The only thing he can do is say "Not Guilty."

Finally, and you heard it here first: The entire DOJ policy is bullshit. It is based on two Office of Legal Counsel opinions, one in 1973 and the other in 2000.

For openers, let us not forget that the OLC is part of the Department of Justice, the leadership of which is appointed by the incumbent President.

The 1973 opinion was the result of the Agnew defense team asserting that a sitting Vice President was immune from prosecution. Our claim was based on Constitutional language that implied but did not explicitly say that.

The 1973 OLC opinion was corrupt. More on that later.

In 2000, the President was Bill Clinton, and the question was whether he could be indicted for perjury. You would be shocked to learn that the opinion writer in the Clinton Department of Justice opined the answer was "No." He relied, in part, on the corrupt 1973 OLC opinion.

Inasmuch as 1973 seems to the foundational document for this policy, it is worth some closer examination.  As earlier reported here, J.T. Smith, the Executive Assistant for Attorney General Elliot Richardson, recently revealed that the OLC lawyer assigned to the matter could not find a clear answer to the question of Veep immunity, so the opinion-writer asked what answer Richardson wanted. Smith told him the AG wanted him to conclude Agnew was NOT immune. Not surprisingly, that is what the OLC lawyer did, though he added to his opinion his dictum that President Nixon was immune!

Recently uncovered evidence adds to the proof that Richardson himself did not believe there was Constitutional language supporting the OLC conclusion. Neither did others in the White House. More on that in another chapter.

Bottom line, if we are going to let Presidents decide, via their political appointees, whether Presidents can be indicted, we are going to get absurd results like this one, every time.

Is that what the Founders foresaw? Appointing powerless Special Prosecutors whose only function is to oblige the President by declaring him "Not Guilty," thereby passing the buck to Congress, and then having the President adopt a broad policy of stonewalling and frustrating Congress's power to inquire?

Now my head is spinning as much as yours.

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

GAME OF TRUMPS?

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Not sure how I missed the epidemic, but in 2011 when HBO broadcast the first episodes of Game of Thrones, I was not infected with the virus. For the next eight years, I was bewildered by the attention paid, and when cocktail party conversation turned to the latest killing and/or change of power on the show, I was inclined to break in with, "How about those Mets!"

But the press and conversational hullabaloo about the finale of the new "greatest show on earth" piqued my curiosity, and yesterday, after sending out my latest blog piece about President Donald Trump, I was determined to see what I was missing, and spent three solid hours watching first three episodes.

I need to repeat: these episodes were aired in 2011. Watching them eight years later reveals the secret of the show's remarkable success. No, the series' popularity was not predicated upon in its unconventional imagery. It was not because of the dragons, the incessant public fornication, or the fact that despite the cold that required the men to wear layers of furs, the women walked around naked or wearing monokinis. Nope, the secret of success was hidden so deep in the script that the realization of its brilliance took half a decade to be born.

What am I talking about? The writers were fortune tellers, that's what. They saw into the future and wrote it into their play.

It was all revealed in Episode Three. When I saw it, I gasped, ran for my notebook, and replayed the scene again and again so I could make a note of the colloquy.

Here's the set-up for this one of the myriad of plot points: An obnoxious kid, the son of the King, is slated to make a politically advantageous marriage. One day, the snotty Prince happens upon a mock sword duel between two young sisters who are (I think) daughters of the King's right-hand man. The Prince intercedes and ends up being disgraced by his incompetence and cowardice. What's more he is bitten by the protective pet dog of one of the sisters. (It's actually a dia-wolf, but that's a distraction)  The sissy-Prince runs off. The King decrees the dog who bit his son must die, and the girls' father reluctantly does the awful deed.

In the next scene, the Prince's minor wound is being tended to by his mother, the Queen, whom we already know is bad. (Don't ask!).

The kid is whining to his mother about his poor showing in the sword-play contretemps, and this colloquy ensues:

Queen: You did well, my son. You killed that dog.

Prince: No, I didn't kill the dog. I ran away.

Queen: No, you killed the dog. SOME DAY YOU'LL SIT ON THE THRONE AND THE TRUTH WILL BE WHAT YOU MAKE IT!

Then the Prince whines about the plans for his future. He complains about the marriage in store for him.

Prince: I don't like her. Do I have to marry her?

Queen: Yes. All you have to do is just make a baby or two, and if you'd rather fuck painted whores, you'll fuck painted whores.

No, I cannot remember the name of the Prince -- the one in the show, that is.

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

TICK, TOCK, THE MOUSE RAN OUT THE CLOCK,...OR TRIED TO

President Trump has unabashedly announced a policy of stonewalling Congress on its demands for documents and testimony covering any subject, whether it is Russia, obstruction of justice, violation of the Emoluments Clause of the Constitution, ethical violations of fed statutes, financial fraud before and during his incumbency, whatever.

Congress has responded with subpoenas to protect and enforce its Constitutional right and obligation to monitor the Executive, learn facts necessary to enact legislation, and perhaps impeach the President or any other Article II "Officer."

Without writing an extensive legal brief here, I suggest the law is overwhelmingly clear that Trump's tactic will ultimately fail, unless the Supreme Court disgraces itself with a political ruling that rivals Bush v Gore for its abandonment of accepted legal principles.

The question is how soon will the dispute(s) be resolved. When will Congress get to expose the guts of Trump's disgraceful and arguably criminal conduct? Trump pushes for November 5, 2020, and the Democratic-controlled House pushes for tomorrow. Trump's risk is he wins early battles, but loses the war, i.e., he gains delay of the testimony and document production by McGahn, Mueller, Deutsche Bank, Trump's accountants, and the IRS production of Trump tax returns to June, 2019, only to see the dam burst in June 2020. Methinks Ms. Pelosi et al would accept that result.

But the law can drag. The rules designed to give litigants time to prepare and prove their cases, their adversaries time to respond, the judge's (and sometimes Juries') time to decide, and then the appellate courts  time to review lower court rulings, can take years

Are the courts up to the challenge? The judiciary system worked with great efficiency when it took but ninety days for the Supreme Court to affirm a District Court order directing President Richard Nixon to turn over tapes that ended his presidency, but a court dispute over a congressional subpoena served on Attorney General Eric Holder was resolved only after seven years of court and party foot-dragging.

We are off to a good start. There are two subpoena enforcement cases pending now.

I.

Chairman Elijah Cummings of the House Oversight Committee, served a subpoena on Trump's accounting firm, seeking documents, tax returns, etc. On April 22, 2019, Trump sued to prevent compliance, and asked for a temporary injunction. That is, he asked D.C. District judge Amit Mehta. to block the firm from transmitting the documents to Congress until after the trial, when the validity of the subpoena would have been finally decided on the merits. The parties agreed the accountants could delay production until seven days after the District Court's final ruling.

The issue? Trump argued there was no valid "legislative purpose" supporting the subpoena. The House responded that Cohen's testimony and other information it had received raised legitimate questions whether Trump

i) Engaged in illegal conduct before and/or after his inauguration,

ii) Had undisclosed conflicts of interest that might motivate official conduct

iii) Complied with the Emoluments clause in the

Constitution

iv) Accurately reported his finances as required by the Ethics Act of 1998.

The House argued it legitimately needed information about those subjects so that it might pass necessary curative legislation, and make impeachment decisions about the President's possibly illegal conduct before inauguration (Clinton investigation) and after inauguration (Nixon investigation.)

The District Court ruled that the House demands for information (which were consistent with House Rules extant in both Republican and Democratic majority Houses) were "facially legislative in character," consistent with legislative and judicial precedent. Therefore he was neither empowered nor inclined to second guess the Congress.  Citing precedent, he wrote: "This court is not going to roll back the tide of history."  Bottom line: the court ordered the accountants to give the documents to Congress.

Now for some technical but important legal stuff. The court did what, I am proud to say, I predicted it should:

1. Because there is no discovery available to the plaintiff because of the Speech and Debate clause, and given applicable legal principles, the court used a provision of the Federal Rules of Civil Procedure to consolidate the preliminary injunction hearing with the final trial on the merits, and entered Summary Judgment dismissing Trump's claim on the merits.

2. Trump immediately moved for a stay pending appeal. The District Court denied the stay principally because of the requirement  that the applicant for a stay must demonstrate he is "likely to succeed on the merits," and Trump failed that test.

Now we will see if the D.C. Circuit Court grants a stay and expedites the appeal, or if courts employ the same procedure they did in the Nixon case and move the case directly to the Supremes.

II.

The second pending case is in the Southern District of New York, pending before Judge Edgado Ramos. In that case, Trump and his family sued to block compliance with a House subpoena seeking Trump documents from Deutsche Bank . The Trump complaint was filed on April 29, and this court too moved with a sense of urgency. The normal timetables were scrapped, and pursuant to a scheduling order signed by the judge, plaintiffs moved for a preliminary injunction four days after filing their complaint, on May 3; the defendants responded a week later on May 10, plaintiffs' replied five days later, on May 15, and the court set the matter down for hearing for tomorrow, May 22. Obviously, the Mehta decision --41 pages of legal analysis -- will be of some influence.

Question: will the appellate courts act with comparable attentiveness? Assuming Judge Ramos acts with speed and efficiency equal to Judge Mehta, no matter which way Ramos decides, will the appellate tribunals act expediently? Ideally, will they consolidate these cases for appellate purposes so that they are taken up by the Supremes no later than the October 2019 term?

Once upon a time a unanimous Supreme Court scorched a Republican President because that's what the law required. Have today's tribal politics "trumped" the rule of law, and infected our judicial system?

Our respect for the third branch of government hangs in the balance.

A bientot!

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com