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:


 A bientot!

29 January 2018

Can Trump Be Indicted?

“The President, Vice President and civil officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
— Article II, section 4, U.S. Constitution
“Judgment in cases of Impeachment shall not extend further than to removal from Office … but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”
— Article I, section 9, U.S. Constitution
These passages explain that, despite all the political rhetoric emanating from the White Housethe Capitol building and elements of the media, if the House impeached and the Senate convicted Donald Trump, the only result of that Congressional action would be his removal from the Presidency.
But what is equally important is what they don’t say. There is no language in the Constitution providing the President with any immunity from prosecution by the appropriate criminal authorities: he is subject to the ordinary criminal processes of “Indictment, Trial, Judgment and Punishment, according to law.” Furthermore, there is not one syllable directly putting the President beyond the reach of the criminal law even if Congress does not impeach.
The argument that the President is immune from the criminal laws is just that — an argument. It involves two issues:
First is the question of whether an obstruction of justice charge can be brought in this case. The President’s supporters argue that key elements of any such indictment could not support a conviction. If everything the President did was legal, they say, he could not possibly be convicted of a crime. And indeed the President was legally entitled to ask then–FBI Director James Comey to go easy on former National Security Advisor Flynn, and then to fire Comey for that or any other reason — just as he is legally entitled to fire Special Counsel Robert MuellerDeputy Attorney General Rosenstein or anybody else in the Department of Justice. But the law is clear: an otherwise legal act can be an obstruction of justice if undertaken for corrupt purposes. Yes, the President has the right to fire the head of the FBI. But there is no Constitutional support for the notion he can do so corruptly to immunize himself from “Indictment, Trial, Conviction, and Punishment” for money laundering (whether involving Russians or otherwise), obstruction of justice, a violation of the election laws or any other felony. An imperial Presidency was the worst fear of the Founders.
The second question is not whether, but when. Can the President avoid indictment while in office? But again, there is no language in the Constitution saying he enjoys any such protection. The Department of Justice itself has made this argument before with regards to Article I Officers. I saw it first-hand. During the then–Vice President Spiro Agnew bribery investigation, our legal team argued on behalf of the Vice President that because he was subject to impeachment under Article II, Section 4, he was immune from criminal prosecution unless and until he had been impeached by the House and convicted by the Senate. In effect, we argued that the Vice President had to be impeached and removed from office first — and then criminal charges could proceed. The Department vigorously rejected that claim. They insisted there was nothing in the Constitution that said impeachment was the exclusive remedy for crimes committed by Article I Officers: the Vice President and, by logical extension, the President could be subject to both impeachment and indictment, even if those proceedings were pursued simultaneously. Surprising no one, the Department was quick to nonetheless urge that President Nixon was immune yet Vice President Agnew was not. But that was based on derived argument — not on the hard Constitutional language that self-proclaimed “conservative” jurists insist is the only real guide to Constitutional interpretation. And the current president has certainly made clear that “conservative” judges are the only ones he will appoint.
A Nixon indictment for his evident criminal conduct in obstructing justice regarding the Watergate break-in and cover-up would certainly have produced an interesting legal battle. But the prosecutors dodged the question by naming him a co-conspirator and not a defendant. So the issue remains judicially undetermined.
Does the recent revelation that Trump went so far as to issue a directive to fire Mueller add weight to an obstruction count? Did the President add to the proof of obstruction by offering three absurd reasons for his decision? Does the President’s claim that he is absolutely immune from criminal process while in office offend the fundamental precepts of the Founders?
The answers to all three questions is “yes.”
If Special Counsel Mueller finds evidence to bring criminal charges against the sitting President, he should obtain a Grand Jury indictment and proceed. If the President wants to fight the legality of the indictment, he should do so in court — not by means of craven Congressmen publishing spurious claims about the integrity of Mueller and his team. That campaign is more than divisive. It smacks of political venality and is a threat to the architecture of our constitutional democracy.

A copy of this blog has been published on Time.com at:

15 January 2018

Fire and Fury -- a Review

Observant readers may have noticed i) I am not an impartial observer of the Trump presidency, and ii) Steve Bannon makes my skin crawl. Now that that's out of the way, this is as impartial a book report as I can muster.

First, I read the Kindle version, and didn't bother to bookmark favorite passages.  The Bannon quotes about the "treasonous" Donald Jr., and the "dumb as a brick" Ivanka need no reminding. But though it was the Bannon bombs that made the headlines, the best part of the book is the fine milling of the daily give and take among an ever-changing, ever-warring White House staff -- especially the turf wars between the Bannon clan, and what the Bannon and the author referred to as Team Jarvanka. This is logical, fascinating, important dirt that no one has denied. Even the Bannon semi-apology was not only unconvincing, it in effect confirmed the accuracy of his reported condemnations and criticisms.

Remember Scaramucci, the ten-day wonder? The description of how the Mooch came to be appointed is bizarro. But the best is his contribution to what I thought was the funniest anecdote in the book. At some point in the middle of his brief tenure, the Mooch called a reporter from the New Yorker, and boasted how, unlike others, he had accepted a post in the Trump administration on account of patriotic duty, not self interest: "I'm not here to build my own brand, I'm not Steve Bannon, I'm not trying to suck my own cock." Doncha love the "established" media?  No fake news tolerated: A fact checker for the magazine called Bannon and asked if it were true he sucked his own cock.

While the internecine turf battles are fun to read about, the real scary part is the portrayal of our Commander in Chief. The book is the syntheses of all of the stuff we have seen dribbling out in the press over the past year. The man not only does not (cannot?) read, he does not (cannot?) listen either. Briefers are left with hanging jaws when the President simply leaves the room after five minutes. No subject is too important to overcome his chronic inattentiveness. North Korea, Iran, Afghanistan? Position papers are ignored, and oral briefings cut short by his attention-deficit prompted exclamations of pre-conceived simplistic notions. All we have heard about his fabulism appears to be deadly accurate, and more. The man is totally disconnected from facts, and everyone around him knows it and tries to "manage" around it. Trump not only constructs his own reality that he is incapable of dismissing, but resents anyone who corrects him or appears to be smarter than he is. He has surrounded himself with Generals Kelly, McMaster, and Mattis, and dislikes all three intensely. (The only one he liked was Flynn!)

Wolff concludes with Bannon's prognosis for the Trump presidency: (and this, of course, before Bannon was kicked out of Breitbart):

On third likelihood of impeachment, one third likelihood of an Article 25 incapacity, and one third likelihood of serving out a single term.

Bottom line:  Lost in all the hype is the fact that this is a well-written book and bears indicia of accuracy. (I liked his description in the Acknowledgement: his meetings with the publisher's libel lawyers were like visits to the dentist). All in all, a fun read.  Even if you like Trump, you should buy this book. (And there must be lots of people out there who like Trump because, after all, but for the 3 million illegals who voted for Hillary, Trump won the popular vote and had the largest inauguration crowd in history.)

Now, a return to duty: I expect Chernow's Grant is going to go down a bit easier with my feet buried in the warm sand of Gouvernour Beach!

A bientot.