LAUNDRY DAY IN THE SWAMP

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In the 1990's, my client was sued by a reptilian trader whom the judge ultimately found to be guilty of "document laundering." I am not kidding.

The culprit had gained illicit access to CFTC documents that were stamped "confidential," but he couldn't use them at trial without revealing his illegal means of acquisition. The swamp creature thought he had solved his problem by bribing a Commission lawyer to let him "borrow" the documents, whereupon he slithered to Kinkos, made copies without the "confidential'' stamp at the top, and returned the scrubbed set to the agency files. 

During the trial, this criminal mastermind served a subpoena on the CFTC, which responded by producing the newly cleansed documents, some of which the plaintiff then offered in evidence!

Clever, huh? Well, not exactly. In the discovery process we learned the original documents had been marked "Confidential." Duh, did this genius think we had forgotten that, and he could fool the court?

When we exposed plaintiff's fraudulent scheme, the judge called it "document laundering," and said he would think about making a criminal reference to the U.S Attorney. The plaintiff asked for an adjournment, got a new lawyer, and in the ensuing negotiation, the question was how much the plaintiff was going to pay the defendant. A triumph for Article III.

Now back to our favorite subject, the Trump Swamp. There are few survivors of Trump's original coterie. So far, 17 high government officials have left the Administration, including a clutch of reptiles who departed under a cloud, e.g., Flynn, Zinke, Sessions, Scaramucci, Pruitt, and Price, to name a few. 

One of the Trump Swamp survivors (so far) is Secretary of Commerce Wilbur Ross, who yesterday was savaged by a masterpiece of judicial fact-finding and reasoning. Makes me proud of my profession.

It was raining hard yesterday, and I actually read the operative sections of the 277-page opinion in which SDNY Judge Jesse Furman struck down Wilbur Ross's March, 2018 directive to add a question about citizenship to the 2020 Decennial Census.

About two dozen states, cities, counties, private groups and individuals sued to strike the Ross directive on the ground that it would suppress census responses from immigrant families who housed one or more undocumented aliens. The areas with the largest Hispanic populations would be most seriously affected.

That is important because the Constitution mandates the counting of all residents, not just citizens, and those population counts affect Congressional representation, intra-state districting, and the disbursement of some $900 Billion in federal grants in connection with scores of programs involving health, education, poverty grants, etc. Surprise, surprise, the states most seriously affected would be California and New York. The impact could be huge.

Judge Furman blocked the Ross directive on the ground that it violated numerous federal statutes, but I want to focus here on the illicit scheme that most represents the nature of this administration.

The Supreme Court has held that administrative rulings like the one involved here must be based on "reason." The reason must be disclosed and it must be real. No hidden agendas. 

Wilbur Ross announced his ruling to add a citizenship question to the 2020 census form in March, 2018. Soon afterward, he testified before Congress that the sole rationale, the real reason, for his citizenship-question decision was a request from the Department of Justice, received in December, 2017, stating that the citizenship question would be helpful to DOJ's enforcement of the federal Voting Rights Act.

Ross swore that neither he nor any of his staff had any discussion on the citizenship question with the White House, or anybody in the Trump administration, before receiving the December, 2017 DOJ letter. Over and over again, he said the December 2017 letter from DOJ was the only reason for his decision to add the question in the 2020 census, and the receipt of that letter was the first time he considered the issue. 

 In the ensuing litigation before Judge Furman, Ross's congressional testimony was revealed to be a flat-out lie!  Was this swamp creature so arrogant that he felt he could simply tell a fairy tale to Congress and get away with it? While Ross, a creature of Article II, could count on the Article I Republican Congress to abandon its duty to issue subpoenas and otherwise investigate the accuracy of his testimony, he underestimated the power and dedication of an Article III court to dig out the truth.

The trial before Judge Furman exposed the scheme. Contrary to Ross's testimony that he had not considered the census citizenship question before receipt of the December, 2017 request from the Department of Justice, the truth was that Ross himself raised the citizenship question issue long before that. Indeed, promptly after he had been confirmed, Ross had told White House officials, including Steve Bannon, that he wanted to find a way to add that question to the 2020 census. 

When it became clear that Census Bureau personnel were firmly opposed to the question because of the negative effect it would have on the accuracy of the census, Ross requested officials at the Department of Justice to request Ross to add the question, but nobody there was willing to leave a fingerprint on such a patently fraudulent device.

Ross was persistent: Judge Furman found that after DOJ officials refused to participate, Ross then tried to "launder" the request by requesting the Department of Justice to request the Department of Homeland Security to request Ross to add the question!

Can you believe the arrogance, ignorance, and chutzpah of this swamp creature?

DHS would have nothing to do with it, and sent the soiled suggestion back to DOJ. Ultimately, Ross skipped over the DOJ officials who had turned him down, and went directly to swamp creature Sessions, who was happy to comply. He immediately directed some functionary to write the December Voting Rights Act letter to Ross.

Judge Furman found the "Voting Rights Act"

justification ultimately put forth by Ross in March 2018 was a laundered "pretext" (judicial-speak for "lie"). To repeat, while Ross told Congress and the public that the DOJ letter containing Voting Rights Act justification was the sole basis for his citizenship directive, the fact was that Ross had made up his mind to add the question long before he finally received the pretextual letter he worked so hard to get.

The law required Ross to make an honest disclosure of the real basis for his decision. He did not do so. As Judge Furman wrote, "His stated rationale was not his real rationale." 

At bottom, Ross had tried to get away with a new fraud: Agency-request laundering.

The result: Furman struck the citizenship question from the 2020 census form.  

 Let's hear it for Article III.

So, "document laundering," now "Agency-request laundering," and next on the list, the Trump Crime Family  "money laundering." Stay tuned!

A bientot.