WHITHER TRUMP?

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It will not surprise any of my readers that I have come to the following conclusions:

1. This president is corrupt. He has mis-used his Constitutional authority and threatens to do material damage to our Republic. There is simply no defense for his use of executive power to influence a foreign country to interfere for his personal benefit in our electoral process. And more than that, he illegally used that executive power to contravene the national interest, which had been declared and firmly established by the enactment of an aid bill voted by Congress and signed by the president.

2.  This was not a small slip of the tongue, a minor procedural error. People in the government raised warning flags. Others resigned. To accomplish his abuse of power, Trump formulated an elaborate conspiracy that included the Vice President of the United States, the Secretary of State, the Secretary of Energy, the Office of Management and Budget, the Acting Chief of Staff, segments of the United States Foreign Service, and a trio of thugs led by his personal attorney. They were "all in the loop." And the drivers of the get-away van, the team, charged with covering up the evidence, included the White House Counsel's office and the Department of Justice.

And true to his "obstruct, obstruct, obstruct" game plan, Trump has tried to seal the entire enterprise from public view by directing witnesses not to appear before Congress, on the preposterous ground that anyone who worked in his administration is "immune" from the reach of legislative inquiry!

How scary is that?

3.  Trump's supporters in the White House, in Congress, and on Fox News, have never once offered up a substantive defense on the merits. Instead, they have offered up absurd excuses, such as i) the Democrats were tilting the proceedings by using the procedures established by a former Republican-led House, ii) nonsense talk about nerds, bow-ties, hearsay, no quid pro quo, Clinton did it, disloyal witnesses, and iii) "alternative reality" conspiracy theories that the 2016 election interference was accomplished by Ukraine and not Russia. This latter argument is offered up despite explicit and uncontroverted statements by our country's major intelligence and foreign service experts, that not only is this theory totally without substance, but its continuous promotion is contrary to our national interest.

So what happens now?

4.  The president will surely be impeached by a majority vote in the House of Representatives. As I pointed out in a previous blog, he is guilty of felony bribery because he demanded something of personal value (help in Trump's re-election campaign) in return for Trump's official act of releasing the blocked aid funds. And aside from the criminal laws, he is guilty of outrageous abuse of his Constitutional authority. My guess is that the Articles of Impeachment will include the guts of the Ukraine conspiracy, as well as Trump's obstruction, perhaps before the Ukraine revelations (Mueller), but certainly his more recent obstruction of Congress's oversight and impeachment inquiry.

5. The Senate trial will make all good men grind their teeth. There is not an iota of good faith in the McConnell Republican caucus--not a hint of fealty to that part of their oath of office that obliges them to protect and defend the Constitution, not President Trump. There is little reason to expect anything but  a unanimous Republican vote in what they see as in their personal electoral interest. They will cower and vote to acquit. And then we will need to endure presidential tweets and proclamations that again add the word "exoneration" to the existing lexicon that includes "witch hunt," "hoax," and "shifty Schiff." Trump is Trump.

6. But hold on. Nobody realistically expected Trump to be removed by a 2/3 vote in the McConnell-led Senate. The House did what it had to do pursuant to the demands of the Constitution. And the impeachment, the public hearings, the public attention to Trump misdeeds, will all have some effect on what happens  on November 3, 2020.

The Senate acquittal, probably sometime in January or February, will not be the last event to have a significant effect on that November election, which I firmly believe will be won by the Democrats unless they do something stupid like nominating Sanders or Warren.

For sure, this president will find some way to make matters worse for himself between now and November 3. It is his history and his nature.

But there is another voice to be heard from. We are back to Article III. The Republican theft of the Garland seat, followed by Kavanaugh's succession to the Kennedy seat, leaves us with a very conservative five-justice majority on the Court. And putting aside the question of whether the Court will timely reach a decision on the witnesses like McGahn who have refused to testify before Congress, there are two elephants waiting patiently in a corner in the Supreme Court conference room: i) a Second Circuit decision rejecting Trump's assertion of immunity from a New York County grand jury subpoena for Trump's income tax records, especially surrounding his tax treatment of the pay-off to Stormy Daniels, and ii) a D.C. Circuit decision also rejecting Trump's immunity claim respecting a House Oversight Committee subpoena seeking even more Trump tax documents. There is, I suggest, dynamite in those documents.

Respecting the Vance grand jury subpoena, there is already substantial evidence in the public record that Trump, conspiring with his then personal attorney Michael  Cohen, arranged for Cohen to make the pay-off out of his personal funds, and then the Trump organization reimbursed Cohen under the guise of paying legal fees under a retainer agreement that did not exist. My guess is that a pay-off to Stormy was not what State and Federal tax authorities would consider an "ordinary business expense," while legal fees to Michael Cohen would so qualify. The whole thing stinks of tax fraud that could conceivably involve Trump and his family members. And in addition, New York has statutes criminalizing the making false entries in the books of a business.

The Second Circuit decision on the subpoena was a unanimous affirmance, so that all four judges who looked at the question rejected Trump's arguments.

The congressional subpoena is even broader than the Vance subpoena, and has a different jurisdictional basis. That was a 2-1 affirmance so that the vote of judges looking at the question was 3-1 against Trump.  Moreover, Trump appealed to the entire Circuit bench to review that panel decision. He was turned down.

It is difficult to find a lawyer who considers the Trump position on these tax subpoenas to be anything but frivolous, yet the Supreme Court agreed to stay enforcement of both subpoenas pending a determination of whether to grant a writ of certiorari to take up the matters and consider them on the merits. To some Court-watchers, the stay is not surprising being "administrative" in nature. To others, it suggests that the required minimum of five voted for the stay and the others just went along.

The big question is the Court's next decision. The petitions for cert are fully briefed. Grant or no grant?

December 13. That is the day the elephants come out of their corners. That's the day the Justices are scheduled to confer, at least for the first time, on whether to grant one or both writs. It takes only four votes to grant.

If the Supremes grant the writs (a bad day for the judiciary), the cases could be decided as late as June, 2020.

(One interesting fact: only one Amicus brief was filed. It was in the New York County grand jury subpoena case, and the advocate, for Trump, was the "Christian Family Coalition of Florida." Hmmm.) I did not read the brief so I do not know what God has to do with this issue.

If Trump doesn't get four votes, his returns will be released to Cyrus Vance and to Congress. I suggest the details of his tax crimes will fill the media to the bursting point during the 2020 campaign. Even the likes of Kellyanne Conway will have trouble building an alternate reality to explain why it was okay for Trump to effectively steal money from the taxpayers. And the twenty-five Republican Senators up for re-election in November will be on the campaign trail talking about the coming football season ...  or something.

One of the first acts taken by the Executive in a country where democracy is in decline, is to seize ownership of and effectively nullify the independence of the state's judicial machinery.

Can it happen here?

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