WHAT IF ... .

Ya don't have to be a lawyer to read statutes. And today, anybody with access to Google can find em easily enough. While not exactly beach reading, some statutes are really quite simple.

Title 18 of the United States Code is where one finds the statutes defining federal crimes. Each section makes clear: if you do the crime, you do the time. What could be simpler?

Take, for example, the section entitled "BRIBERY":

"Whoever ... being a public official ...directly or indirectly, corruptly demands ... anything of value personally ... in return for being influenced in the performance of any official act ... shall be fined ... or imprisoned for not more than fifteen years ... and may be disqualified from holding any office of honor ... under the United States."

Pretty clear, huh?

Judges and lawyers seek help in defining the reach of any law, or the validity of any argument, by testing the words against hypothetical fact situations. That exercise is not limited to legal discussions. We all resort to everyday hypotheticals. They begin with the words "WHAT IF."

So here is my hypothetical for your consideration:

i) WHAT IF both houses of Congress passed a law, signed by the President, directing that a $400 million aid package be given to a foreign power ally, and

ii) WHAT IF a "public official" thereafter blocked the legislated transfer of that money, and

iii) WHAT IF that official then "directly or indirectly" demanded from that ally something of personal value to him (e.g., help with his forthcoming election campaign,) "in return for" performing the official act of unblocking the transfer of the funds,

Then:

Wouldn't that public official, (and each person who conspired with him) be subject to conviction of BRIBERY in accordance with the plain language of the statute, and face a possible sentence of fifteen years in prison, and disqualification from public office?

And, an icing-on-the-cake hypothetical:

iv) WHAT IF we had, at the head of the Department of Justice, an Attorney General who was faithful to his oath of fealty to the Constitution, instead of craven loyalty to the public official who appointed him,

Then,

Wouldn't the DOJ launch a vigorous criminal investigation of the offenders, from the President on down? And wouldn't the subjects of that criminal investigation, at least for starters, be the public officials involved in this scandal, -- at least those we know of so far: Messrs. Trump, Pence, Mulvaney, Perry, and Sondland? Plus, of course, the civilian co-conspirators: the clown car full of Rudy Giuliani's  --- those already indicted and those not-yet indicted?

And while we are on the subject of statutes, here's another interesting one:

"Whoever, knowing that an offense against the United States has been committed, ... comforts or assists the offender in order to hinder ... his ... punishment, is an accessory after the fact,... and...shall be imprisoned for not more than one-half the maximum term of imprisonment ... prescribed for the punishment of the principal ... . "

Yup, that's what it says. And you, Mr. Attorney General, will likely never be charged under this statute, but you will never get rid of the stink.

A bientot.

.....................................

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

BE CAREFUL WHAT YOU WISH FOR!

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The recent revelations of the thuggish conduct of this President and his associates raise, once again, the President's susceptibility to criminal indictment while in office.

Earlier this year, Mueller gave the President a pass on obstruction of justice charges because of a DOJ policy barring criminal prosecution of a sitting President. While experts challenged the legal basis of presidential immunity and noted it had no judicial support, William Barr's DOJ nevertheless stuck with the policy, and Mueller concluded he was bound by it.

But now, at the urging of the President's own legal team, we do have a direct judicial examination of that DOJ policy. Conclusion: It is a misstatement of the law.

The court decision came about when the President challenged a subpoena issued by a New York grand jury examining into the question of whether state criminal laws were violated in the handling of the Stormy Daniels payoff during the 2016 presidential campaign. The touchstone of Trump's objection was the demand for his accountant's copies of his federal tax returns, which form the basis of his state tax returns.

The President's argument that he had "absolute immunity'' from criminal proceedings required the District Judge to make the first-ever judicial review of the DOJ immunity policy and the two DOJ Office of Legal Counsel memos on which it is based. After a detailed analysis, Judge Marrero concluded:

"Because the arguments the President advances are so substantially grounded on the supposed constitutional doctrine the DOJ memos present, a close review of the DOJ memos is called for. On such assessment, the Court rejects the DOJ memos' position... . The case law does not support the President's and the memos' absolute immunity argument ... ."

The first of the two OLC memos in question is referred to as the Dixon memo. Mea culpa: in 1973, on behalf of our client Vice President Agnew, I was part of the legal team that prompted the Dixon memo. During a criminal investigation of our client, we asserted that the Vice President had absolute immunity by reason of his incumbency. Attorney General Elliot Richardson disagreed. He told us it was his view that there was no conclusive constitutional language supporting executive immunity, and therefore the DOJ could prosecute. Nixon's Chief of Staff agreed. And Solicitor General Bork, while finding the question of executive immunity to be "difficult and momentous," nevertheless also concluded the Constitution did not support it. To buttress his decision to proceed with the criminal investigation, Richardson asked for an opinion by the OLC.

That request produced the Dixon memo, which agreed with Richardson's and Bork's opinion about the lack of Constitutional language supporting the notion of executive immunity. But while  concluding the Vice President therefore had no immunity, Dixon answered a question he was not asked: he opined that the President did have full immunity from criminal investigation or prosecution!

The second OLC memo (the "Moss memo") was issued in 2000 and dealt with the susceptibility of President Clinton to criminal prosecution. That memo, while relying on and agreeing with the Dixon memo's conclusion about Presidential immunity from prosecution, disagreed with Dixon's conclusion that the president enjoyed immunity from the investigation (as distinguished from prosecution) of a sitting president.

In the end, Judge Marrero held that both memos lacked any clear constitutional basis and were based upon "abstract doctrine":

"Because the constitutional text and history on point are scant and inconclusive, the DOJ memos construct a doctrinal foundation and structure to support a presidential immunity that substantially relies on suppositions, practicalities, and public policy, as well as on conjurings of remote prospects and hyperbolic horrors ... ."

While Judge Marrero's opinion basically shreds both OLC memos, the court could have gone even further: i) the very existence of the Mueller investigation is a direct refutation of so much of the Dixon opinion that bars even a criminal investigation of the President, and more importantly, ii) the Dixon memo is corrupt: There is unrefuted reported evidence  https://time.com/5541213/donald-trump-michael-cohen-indictment/  https://londonsbh.blogspot.com/2019/05/ that before finalizing his conclusion, Dixon informed the Attorney General's office that the historical evidence was "inconclusive" and asked, "How do you want this to come out?" He was instructed on the Attorney General's views, and he obeyed!

After reviewing Supreme Court decisions involving Aaron Burr, Bill Clinton, and Richard Nixon, Judge Marrero concluded that in connection with criminal proceedings,

"[The] Supreme Court would reject an interpretation and application of presidential powers and functions that would sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances ... ."

Further, the court noted that the case for presidential immunity is even weaker when it comes to state proceedings i) because of federalism and comity considerations and, ii) because arguments offered in support presidential immunity, such as Executive control of the prosecutorial function and the President's pardon power have no application to state criminal proceedings.

Bottom line, the President's propensity to sue has left him worse off than he was before. The District Court's powerful analysis torpedoes the DOJ immunity policy with respect to both state and federal investigations and prosecutions of sitting presidents.

Now, if we only we had a real Department of Justice ... .

IT NEVER RAINS ... .

IT NEVER RAINS ... .

Okay, I cannot seem to stop quoting myself. In my September 10, 2019 blog, I concluded with this paragraph:

 All who have been attached to this [Trump] administration and have responded to this President's directions are indelibly stained. They bear the scarlet letter "T" on their breasts and are forever disgraced.

Recent letter-bearers include Pompeo and Barr. And just this week, our ever-obliging Vice President has also taken to wearing the scarlet "T" on his breast. But while the Secretary of State and the Attorney General have lied and otherwise trashed their oaths of office, (they are numbers four and seven on the Presidential succession list) they are politically well outside the "cone" of impeachment probability. Pence, on the other hand, is right up there. Number two.

The House impeachment inquiry is focusing on whether Trump's effort to get Ukraine to help him in the 2020 election is "shakedown" --  a violation of law and an abuse of Constitutional power. And good old reliable Pencey, counting his 2024 chickens, has volunteered to drink the Kool Aid and do some of The Don's dirty work in Ukraine. The ugly details are set out in today's press. Just today, the impeachment committee has demanded his documents re Ukraine.

Now, were the House to impeach Trump for the Ukraine affair, and Pence were to be proven to be a co-conspirator in that effort, it follows the House might reasonably conclude to impeach both of them. Not sure they would, but they could. Not sure the Senate would convict, but that's today, and there was a "today" when Nixon too was sure he was safe, -- but then tomorrow arrived.

This is not the first time in history when both the President and the Vice President were under attack, and a pair of impeachments/resignations was a reasonable possibility. What happens then?

You can read all about that here, in my piece just published in Time.com

A bientot.

......................................

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.

More on this subject of this blog can be found in my memoir "The Client Decides," available on

 Amazon and on Kindle.