LETHAL CONNECTIONS: A CURE

Okay, so these last two weeks, I have been following the launch of the documentary film "Where's My Roy Cohn," which opened in NY and LA last week. I appeared briefly in that film, talking about my role in disbarring the monster, even after he beat three SDNY/Morgenthau criminal prosecutions. I'm proud of the fact I spearheaded his disbarment prosecution and that the court gave me the honor of signing the petition that brought an end to Cohn's career at the bar.

After seeing the film, I focused again on the wretch in a brief appearance on MSNBC last week.

https://www.msnbc.com/msnbc/watch/new-documentary-details-roy-cohn-s-influence-on-donald-trump-69619781513/

So the late Roy Cohn is very much with me these days. And the more I think about Cohn, the more parallels I see between Cohn and Trump. Roy lives on in Donald. Ugh.

Perhaps that is what brings to mind a connection that, so far, others have not yet cottoned to:

While visiting the UN the other day, in defending himself, (and shocking his audience of US diplomats) Trump attacked the whistleblower. He did this despite that the fact that Trump's appointed Acting Director of  National Intelligence testified to Congress that the whistleblower did the right thing!

The nature of Trump's attack was absolutely creepy: a not so veiled threat.  Here what he said about the people in the Trump White House who gave the whistleblower information that the Intelligence agency Inspector General said was "credible and urgent information":

"You know, what we used to do in the old days, when we were smart, with spies and treason, right?"

Sure, Mr. President, some of us were recently reminded. What "we used to do" is what Roy Cohn did: He not only prosecuted the Rosenbergs, but even though the evidence against Mrs. Rosenberg was very thin, Cohn used every tactic, including illicit ex parte conversations with the judge, to bring about the execution of both defendants.

That's what we did with "spies and treason" in the old days. Let that be a lesson to you whistleblowers, the law be damned.

Yesterday, Trump announced a $10 million campaign, funded by the Republican Party, to strike back at the Democratic impeachment inquiry. The focus will be two points: i) Don't believe what you see: the Zelensky conversation was harmless, and ii) Biden and his son acted corruptly in the firing of a Ukraine prosecutor.

The first point is so counter-rational it reminds me of the joke involving the errant husband, being caught by his wife who enters their bedroom and finds him in bed with another woman. The husband's defense: "Woman?" he blusters, "What woman?"

The second point is the old saw about the big lie: Tell it often and loudly. The facts are really not in dispute. Vice President Biden did go to Ukraine and work to rid that country of a corrupt prosecutor. He went on behalf of the United States, (he was not a candidate for anything.) Not only President Obama and our State Department,  but a large group of countries were demanding the Ukraine president fire the prosecutor because he was totally corrupt. The bad guy was not investigating Hunter Biden, and further inquiry by the Ukrainians made clear that Hunter Biden had nothing to do with corruption.

Nevertheless, Trump's extraordinary conduct vis-a-vis the Zelensky call, and Trump's effort to switch the electorate's focus onto a vicious slander of his chief political rival for 2020, calls for an extraordinary response. I know there are many who fear that, no matter what the truth is, the Dem's leading candidate, the one who currently scores the highest rating in the most-likely-to-beat-Trump polls, will be damaged, perhaps irreparably, by Trump's poisonous smoke screen.

Let's see how many patriots the Democrats can muster. Because extraordinary challenges call for extraordinary measures, I offer up this admittedly pie-in-the-sky program. In the next Democratic debate, ten of the twelve candidates make a powerful statement, in his or her own words, to the following effect:

"This is not the time for division. Our country's future hangs in the balance. I deplore what this President has done and is doing, and the most important thing, the vital thing, we must do is unite to defeat him. I hereby withdraw from the race for the Democratic nomination. I think we must put forward our best and strongest ticket. I pledge to speak out every day and help in every way I can to bring about the election of the Biden/Warren team on November 4, 2020. God Bless America."

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

If you want to know more about my personal experiences in bringing about the disbarment of Roy Cohn, (or my experience in opposing and defeating a meritless lawsuit brought by Donald Trump, see my memoir, "The Client Decides," available at Amazon and Kindle.

WHERE'S MY BARRY GOLDWATER?

When we assert that the intensity of partisanship today is far worse than anything in recent history, are we  correct? Is it really worse than ever before in our lifetimes?

It wasn't that long ago that Richard Milhous Nixon was President of the United States, and was a subject in the criminal investigation for possible conspirators in the "third rate burglary" of the Democratic Headquarters at the Watergate complex. There was circumstantial evidence of a White House conspiracy, but none of what a lawyer might consider "direct" evidence of complicity.

The partisanship was so severe, that even in the face of powerful evidence of Nixon's obstruction of justice, the Republican stalwarts chucked their pledge of fealty to the Constitution, overlooked Nixon's obvious criminality, and stood by their man. The most startling example of this blind partisanship occurred with the revelation of a conversation between White House Counsel John Dean and his boss. Dean told the President that he did not believe they could sustain the silence of the convicted burglars because it might require payoffs of up to a million dollars. Nixon's view of his Constitutional duty to "faithfully execute the laws" was to tell Dean, "We could get that."

Hard to imagine more powerful evidence of obstruction of justice, and the Democrat controlled House Judiciary Committee voted to add an impeachment count based on that obstruction. But in an extraordinary example of extreme partisanship,  a majority of Republican members of the Committee voted "NO."  One Republican member told the press he did regarded this overwhelming evidence of obstruction of justice as "not as serious as spitting on the sidewalk."

Nixon was unbowed. He knew he still had the support of the  Republicans in the Senate to prevent a 2/3ds vote for conviction in that chamber.

Then came Nixon v US,  in which the Supremes required Nixon to comply with the Special Prosecutor's subpoena for White House tapes. That collection included the famous "smoking gun tape" in which Nixon told Haldeman to get the CIA to tell the FBI to abandon the Watergate inquiry. That direct evidence of obstruction of justice was too much even for the most right-wing Republicans, and a delegation headed by Barry Goldwater, the most conservative Republican in the Senate, went to the White House and told Nixon that he no longer had the support of the Senate Republicans. Facing certain impeachment and conviction, Nixon quit.

But unfortunately the facts do suggest that partisanship is indeed much more tribal today.

The Mueller Report listed a score of instances of obstruction, including this parallel to the smoking gun tape: Trump told his Director of National Intelligence to tell the FBI to drop the Russia investigation!  But Moscow Mitch is no Barry Goldwater, and to their everlasting disgrace, the Republicans did nothing but continue their full throated support of this President.

But the Mueller report was not the end of the Trump story. This President has not the faintest idea of what the Constitution requires of him, so he doesn't scruple to trash it at every turn.

Recall, please, that the primary goal of the Mueller appointment was to determine whether the 2016 Trump campaign cooperated with the Russians to influence the way Americans voted. It is a felony solicit or accept foreign aid in a federal election. Mueller found conclusively that the Russians did indeed provide substantial aid to the Trump campaign, but he gave Trump and his team a pass because he found no persuasive evidence that they "cooperated" with the Russians. While the issue was generally described as a search for "collusion," Mueller read that to mean "conspiracy," and found no direct evidence of an agreement or solicitation that would be a key element of that crime.

But in Ukrainegate, Trump has supplied that missing ingredient. Though he has thus far (illegally) blocked supplying to Congress the whistleblower's report, and he has so far not responded to the Congressional demand to turn over the transcript of his conversation with the President of Ukraine, Trump has now admitted that he did talk to the Ukrainian President about Joe Biden's son Hunter, and urged him to listen to Trump lawyer Rudy Giuliani who admits visiting Ukraine for the purpose of urging the Ukrainian government to conduct an investigation into possible corruption by Hunter Biden, who had been elected to the Board of Directors of a Ukrainian gas company five years ago.

Put aside, please, just for the moment, i) the damning circumstantial evidence that, while pressuring Ukraine, Trump was illegally withholding a $250 million foreign aid grant earlier approved by Congress and ii) the Ukraine President has confirmed he was being pressed by Trump to investigate Biden despite the fact "there was nothing there," and  if he failed to investigate he might lose his promised military aid, and iii) Trump has supplied zero evidence that Hunter or Joe Biden did anything wrong.  The "smoking gun" fact is the incontrovertible evidence that Trump has solicited a foreign government to attack the son of his leading 2020 election adversary. Trump has admitted soliciting foreign assistance in his 2020 campaign for re-election. That is a crime. It is the piece of the puzzle missing from the Russia investigation. That Trump used his power as President of the United States to induce the illegal foreign assistance just makes the felony even more reprehensible and more corrosive to our Constitutional norms.

Yet, aside from a few tepid questions, we hear nothing but more slander of Biden and more support of Trump from Republican elected officers and appointees.

Where is our Barry Goldwater?

Conclusion:

I am now persuaded the Dems should no longer pussyfoot around the impeachment question. Start a formal impeachment inquiry. NOW. Put a professional legal team in charge of the effort and replace the incompetents who have managed the insipid effort thus far. I suggest adopting a calendar whereby the House votes on impeachment resolutions before the year is out, or possibly as late as February 28, 2020. Full court press. Damn the torpedoes, full speed ahead.

Let the Republicans find their Barry Goldwater, or pay the price.

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

TRUMP TAX RETURN CIRCUS

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Whether the number of Trump lies is 12,000 or 20,000, is irrelevant.  We can endure a lying President, but we cannot endure a President who successfully attacks what the Founders have wrought.

We elected a con artist. We knew who he was when we voted him into office. Whether he would have won without Russian help is now unknowable and therefore irrelevant.

Three aspects of the Trump campaign are prominent today:

1. His refusal to turn over his tax returns,

2. His statement that he was so popular, he could shoot a bystander on Fifth Ave in broad daylight, and no prosecution would ensue,

3. In the matter of pre-election funding of the Stormy Daniels payoff to dissuade her from publicly revealing her adulterous liason with Trump, Trump was subsequently named by the SDNY as a conspirator.

Now, a New York County Grand Jury, under the direction of District Attorney Cyrus Vance, is pursuing an investigation into whether state laws were violated respecting the record keeping and the tax treatment of that criminal payoff. Accordingly, Vance has subpoenaed documents and tax returns from the Trump organization and the accounting firm that prepared tax returns for Trump and his  company. One subpoena specifically asks for Trump's tax returns. All events under inquiry are related to a time period before Trump was sworn in as President.

Surprise, surprise, Trump has sued to block the subpoena. The grounds? His lawyers filed a 20-page tract asserting i) a sitting President is immune from State prosecution, and ii) therefore he is immune even from being investigated by a state prosecutor who, after reviewing the evidence, may decide not to prosecute, and iii) therefore no state grand jury can subpoena a third party who may have evidence of a pre-inauguration crime committed by a sitting President. 

A crime is a crime, and it follows that the President now asserts that no grand jury may even inquire about the existence of evidence of a president's pre-inaugural murder of a bystander on Fifth Avenue in broad daylight.

How low have sunk?

What legal theories do the President's lawyers advance for this bizarre proposition?

First, they argue the Constitution bars criminal indictment of a sitting President. This is manifestly false. The Constitution says no such thing, and scholars have debated the issue for years.

Small world. My colleagues and I raised the issue for the first time in our representation of Spiro Agnew, who was being investigated by a federal grand jury in Maryland for alleged bribery and tax violations. We recognized there was no Constitutional language that was dispositive, but asserted that the Constitutional structure implied there could be no indictment of a sitting Vice President. Robert Bork, the presiding Solicitor General, called the issue "momentous and difficult." Attorney General Elliot Richardson sent the question to the DOJ's Office of Legal Counsel for an opinion.

But here's the shocker: The OLC opinion writer reported back the issue was so close it could go either way, and he wanted to know which answer the Attorney General wanted!  Richardson's Executive Assistant told him, and he obeyed: he opined the Vice President was not immune, (and while no one was then accusing the President of criminal conduct) he then tacked on the view that the President was immune.

The issue arose again during the Clinton Administration, and, duh, Clinton's OLC, relying largely on the earlier corrupted Agnew OLC opinion written by Nixon's appointee, also concluded the President was immune. The result was that each President's DOJ adopted a policy barring the indictment of the Constitutional officer that appointed its leadership!

William Barr and Robert Mueller, relying on the same two tainted OLC opinions, adhered to the DOJ policy and barred the indictment of Donald Trump for obstruction of justice.

And it's worth noting that even if one concludes that the Constitution does bar a federal indictment, state prosecutions are independent matters. Federal criminal immunity granted because of a federal pardon or federal double jeopardy protection does not bar a state prosecution for the same crime. There could not be, and there is no mention in the OLC opinions of a Constitutional bar of state prosecutions.

Second, Trump's lawyers have built their defensive wall on a foundation of loose mud: they assert there cannot even be a state inquiry into pre-election criminality. Even assuming a conclusion that the Constitution bars a state indictment, there is zero legal basis for claiming the state may not even investigate whether a state crime has been committed, and if so, by whom. If immunity from prosecution barred investigative inquiry, that doctrine would have barred Mueller from even investigating the question of presidential collusion and obstruction, the issues Trump's Department of Justice appointed him look into.

Trump's legal argument is based on the alleged burden a criminal investigation imposes upon the busy chief executive. This notion was flatly rejected by the Supreme Court in Clinton v Jones. While that was a civil case, the unanimous court ruled the sitting President was not immune from suit because of the burden of litigation, and left it to the District Court to adjust the discovery and trial demands of the President's direct participation.  And in Nixon v US, the Supremes enforced a criminal subpoena against the President. No great burden on the busy President: All he was required to do was turn over some tapes!

In the current matter, there is nothing this President needs to do. The subpoenas are directed to i) the Trump Organization, which is in a trust managed by his children, and ii) an accounting firm. The President is not the subpoenaed party and the matter need trouble neither his tee times nor tweet traffic.

The third and last argument advanced by the Trump complaint is that the Vance subpoenas are consistent with Congressional subpoenas, and therefore the prosecutor's motive is "political." Judge Leval in the Second Circuit Court of Appeals dealt with the "political" issue last week in his majority opinion reinstating an Emoluments Clause case against Trump. He said the argument was irrelevant. A political motive cannot save a defective cause of action, and it cannot defeat a valid one.  Either Trump has Constitutional immunity from criminal investigation or he does not. That is a purely legal question. Whether or not Vance has a political motive for issuing the grand jury subpoena is irrelevant.

Of course, the merits of this dispute are not the real issue. The Trump claim is a sham, and just one more component in this President's strategy of delay, delay, delay. If Trump can keep all these balls in the air, and keep the courts chewing on this and the other questions about his presidency until November 5, 2020, he wins.

So, we are presented with another test for the legal system. This particular legal question has been brewing for months. Both the Trump team and the Cyrus Vance's prosecutors have, I am sure, extensive memos and briefs polished and ready to go. Indeed, the Trump complaint, filed within 48 hours of Vance's tax subpoena, is really a 20-page brief replete with legal argument and citations to Law Journal articles and court decisions. All both sides need do is push the "send" button and their briefs will be submitted to the court. There is no need for delay, and the court should not countenance any request for time. If Trump wins the stall, he effectively wins the case.

And the Founders lose.

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

If you want more details about the Agnew immunity argument and the OLC opinions, see my memoir "The Client Decides" available on Amazon and Kindle, and see my blog at https://londonsbh.blogspot.com/search?q=legal+rabbit+hole