14 March 2018

Random Scary Thoughts

1.  A brilliant friend who is a former federal prosecutor told me the other day that he thought Paul Manafort, though facing an effective potential sentence of life imprisonment, would never plead out and cooperate because he knows way too much about Victor Yanukovich, the deposed President of Ukraine, and his dealings with his ally Putin.  My friend suggested the purpose of the recent poisonings in the U.K. was to send a message to Mr. Manafort about the vulnerability of his personal safety and that of his family.

A day after that conversation, another lawyer friend sent me a note that he saw a reader's comment to the same effect in the Washington Post. 

It's scary that we have come to a point where we hear these comments and we don't say "Impossible, it can't happen here." But it is not impossible at all. Stop and think. While the UK imposes reprisals on Russia for the attack in London, and Rex Tillerson, (while he was still the US Secretary of State!) said the deed clearly was done by the Russians, Trump adamantly refused to criticize Putin. Ask yourself, what would Trump do if Manafort were killed by a USSR-developed nerve gas on the eve of an appointment to tell all to Robert Mueller?  Is there any evidence, any evidence at all, that suggests Trump would take punitive action against Russia?

Scary scenario #2.  

The House Intelligence Committee has wound up its inquiry. It has subpoenaed no documents, failed to press Trumpian witnesses who declined to answer questions, and the report drafted by the Republican majority does not even say that which all U.S. intelligence agencies have reported, i.e., that the Russian interference was designed to aid Trump. The pathetic failure of the Republican members of the Nunes Committee to live up to their sworn oath of utmost fealty to our country and its Constitution is beyond scary. It is clear this House, under the direction of Paul Ryan, has cast aside reality and has demonstrated unequivocal fealty to Donald Trump, whose support the members count on to keep their well-financed seats. And this at a time when fair questions are being asked about to whom Donald Trump owes fealty.  We can impeach a President for conduct inimical to our Democracy, but what is the remedy if Congress commits such an offense? The answer is, NUN, "Nothing Until November."

3. Scary scenario #3.

We have endured a long list of Trump's failures to condemn Russia's military and cyber aggression, but the latest is a humdinger. As I understand it, the chronology is as follows:

1. A former Russian official who was caught spying for the U.K., but freed from a Russian prison and sent to the U.K. in a 2010 spy swap, was attacked by Russian nerve gas while sitting with his daughter on a park bench in London. The former spy, his daughter, and a policeman who came to their aid, are in critical condition.

2. Theresa May, the U.K. Prime Minister, then announced her government's inquiry had led to the almost certain conclusion the Russian government sponsored the attack, and publicly demanded Russia explain. Putin ignored her request.

3. Trump's press secretary, Sarah Huckabee Sanders, then announced that President would not join in May's criticism of Russia.

4. Secretary of State Rex Tillerson nevertheless, after speaking with British officials, told NBC the attack "clearly" came from Russia.

5. Six hours later, Trump, without contacting Tillerson, tweeted the announcement of his firing.

A coincidence of timing? This "last straw" has caused some to wonder anew if indeed Putin doesn't indeed have something on Trump. The leading candidates are sex tapes and money laundering.

My bet would be on the latter. Trump is, by now, virtually immune from sex scandals. While a photograph or a tape would be more explosive than a mere verbal report (think the picture of Robert Porter's ex-wife's black eye, and the tape of NFL star Ray Rice clocking his fiance and then dragging her from the elevator), I estimate that Trump is not much afraid of that stuff anymore, except maybe for some family issues that money can resolve.  Moreover, if Putin had a sex tape, it's like a gun with one bullet. The only influence it brings to bear is if he does not pull the trigger. Once he shoots, pouf, Putin is powerless.

But money, ahh, that's an AK47 with a full magazine. Lots of bullets. Putin could let out a sample, a single shot, on the target or a near miss, a message that there's lots more ammunition, lots more evidence, lots more transactions. Money laundering and bribery are not just material for social, political, or matrimonial scandals: they are crimes that could put Donald and his family in jail, whether during or after his presidency. Jeff Sessions will not be Attorney General forever.

Methinks that is the real source of Trump's fear. Of course, it is not only Putin that scares him, but Trump's other arch enemy, Robert Mueller.  And that's why I fear for the latter's "safety.'' This House of Representatives has given Trump every signal that it would take no action were Trump to fire Mueller, pardon Manafort, and then invite Putin to the White House for brunch.


If you are not frightened, you are not paying attention.

A bientot.

25 February 2018

Editorial Coincidence Department

In my piece entitled Mueller's Wall, posted on February 14, I said it looked to me like Gates was going to plead, and if that happened,

the pressure on Manafort will dramatically increase. ..... Manafort was not somebody who can be dismissed by the White House as some lowly gofer.

On February 24, Peter Baker in the New York Times, in a "News Analysis" piece, wrote that Gates had just pleaded, and

The guilty plea by Rick Gates raised the pressure on Manafort,... In the current case, the targets so far have included not just a “coffee boy,” ...  but the president’s top two campaign officials. 

And in my piece I made liberal use of my favorite metaphor, -- the one I used effectively in a trial described in my 2017 memoir. My February 14 blog entry said:
This prosecutor is patiently building a wall, and each piece of evidence is but one brick. ....


 If Gates flips,... Another brick in the wall.

In a telephone conversation involving Trump and Hope Hicks, Mark Corallo ... feared he was listening to a plan for document destruction. ...  and has now accepted an invitation to spill all to Mueller's team. More bricks in Mueller's wall.

Ten days later, Baker wrote: 

With each passing day, Robert S. Mueller ... seems to add another brick to the case he is building.

Do I think Mr. Baker was substantively influenced by my post? Nah. I have no reason to believe he even saw it, though he is more than welcome to check it out. But I did get a kick out of his eventually tumbling not only to what I had said, but how I said it.

Oh, yeah, one more point. Mr. Baker doesn't publish an  email address, and I ain't a bird that tweets, so if anyone out there does get in contact with him, please suggest he consult the venerable New Yorker series called "Block that Metaphor:''  One  adds a brick to a "wall."  Adding a brick to a "case" stimulates no mental picture, which is what metaphors are all about.

So there.

A bientot.

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!