Documents Flooding the House

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A large number of the 81 individuals subject to the House Judiciary Committee’s “friendly subpoenas,” requests for documents sent to President Trump’s organization, campaign team, transition team, inaugural committee, and his personal associates for documents having to do with the committee’s probe into the allegations of Trump’s obstruction of justice, have already complied and sent documents. These documents could be used to lay the foundation for impeachment proceedings in the House; however, recent remarks by Speaker of the House Nancy Pelosi, seem to indicate that said impeachment proceedings my never occur.

download (6).jpgMark Wilson/Getty Images

Criminal Prosecution of a President

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Can a sitting president be indicted? W. Burlette Carter approaches this question from a historical perspective in her forthcoming article Can a Sitting President be Federally Prosecuted? The Founders Answer. Carter asserts that the Founder’s answer would be one based on jurisdiction:

The Founders would have recognized that, before the formal issuance of Articles of Impeachment, courts of law have the power to stay their own proceedings against a President for good cause, just as English/British common law courts with concurrent jurisdiction always could. And they would have have accepted that courts of law can, in the first instance, decide evidentiary issues such as executive privilege for matters proceeding in their fora. Again, despite Parliamentary power over impeachment, common law courts had long done so in England and Great Britain, so long as they otherwise had jurisdiction.

For an in-depth examination of the British and early American view on jurisdiction to prosecute the president, follow the link above.

190311-donald-trump-ap-773.jpgAlex Brandon/AP Photo

The (first) Manafort sentencing

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By Frank Bowman

Yesterday, former Trump campaign manager Paul Manafort was sentenced to 47 months in prison by Judge T.S. Ellis III of the U.S. District Court in Alexandria, Virginia, for tax and bank fraud. A fair number of folks were surprised (and some disappointed) by the fact that the sentence was so far below the range of 235-293 months (roughly 19 – 24 years) recommended by the advisory Federal Sentencing Guidelines.

As someone who had a hand in shaping earlier versions of the white collar sentencing guidelines, and who has both prosecuted and defended federal white collar offenders, I have four observations about the Manafort sentence.

First, no one should be surprised that Manafort didn’t receive a sentence in the guideline range. From the advent of the Guidelines in 1987 through roughly 2003, the provisions governing high-end white collar crime underwent a steady mutation toward unyielding severity. In the beginning, they were a notable improvement over the often shockingly lenient sentences generally imposed in the previously unguided discretion of federal judges. The most common white collar sentence before the Guidelines, even for quite serious crimes, was probation. The original guidelines insisted that those who committed serious economic crimes should go to prison, albeit for relatively short periods — a few years perhaps.

However, in the years that followed, the U.S. Sentencing Commission, sometimes at the behest of Congress, sometimes responding to judges, and sometimes on its own initiative, steadily and inexorably increased the severity of white collar guideline sentences. This process climaxed from 2001 – 2003 when the Commission performed a major overhaul of the economic crime guidelines, which was followed by congressional directives issued in the wake of the Enron-era scandals that white collar sentences should be raised even higher.

The result was a set of white collar guidelines that recommends multi-decade sentences for virtually all defendants convicted of frauds involving large dollar amounts. The guideline sentencing levels for the most serious such cases are now so astronomically high that no one (including the Sentencing Commission itself) seriously contends that that they represent rational guidance for sentencing judges.

Once the Supreme Court transformed the Guidelines from a mandatory to an advisory system in the 2005 Booker case, most judges, who were already resistant to the guideline recommendations in high-loss cases, began to ignore them except in extraordinary instances. Accordingly, few knowledgeable observers expected Judge Ellis to give Manafort 20 years or anything approaching that figure.

Second, 47 months nonetheless seems low to me. In justifying his sentence, Judge Ellis alluded to the fact that other defendants convicted of the same kinds of crime – tax evasion and fraud – have often gotten sentences in the range he imposed on Manafort. He’s not wrong about that. But where he seems markedly off base is in impliedly comparing Manafort to a defendant convicted of a single (even if highly lucrative) scheme, and then adding the gloss that Manafort has lived “an otherwise blameless life.”

As the world knows, Manafort’s life has been so far from blameless as to leave some doubt that the judge was referring to the man in front of him. Manafort is a conscienceless grifter who grew rich by burnishing the public images of the most rancid assortment of thugs, demagogues, and dictators on the planet. His career has been one long outrage against honesty, fair dealing, and commitment to democratic values.

Those are factors a judge is entitled to consider when imposing a sentence. That Judge Ellis either didn’t see the obvious or chose to ignore it is cause for dismay. But the eccentricities of judges in their sentencing role is, in the end, simply part of the price we pay for the benefits of a life-tenured federal judiciary.

Third, it is at least possible that Judge Ellis was being strategic. He knew that Manafort is facing a second sentencing before Judge Amy Berman Jackson next week. He may have thought Manafort deserved more than 47 months, but did not want him to receive too much more than the maximum of ten years he faces in the second case. By keeping his own sentence low, Ellis gave Judge Jackson room to impose additional punishment, but also effectively capped the aggregate of the two sentences at just shy of fourteen years (47 months plus a possible ten years consecutive).

Finally, although it seems counterintuitive, by holding Manafort’s sentence down, Judge Ellis may have increased the odds that Manafort will have to serve it. A huge sentence of the order of magnitude suggested by the guidelines, particularly if supplemented with consecutive time from Judge Jackson, would allow President Trump to invoke the near-universal criticisms of the over-harshness of the white collar guidelines as a justification for pardoning Manafort. As matters stand, that would be a hard sell.

Let’s see what Judge Jackson has to say…

Trump, Antitrust and Impeachment

By Frank Bowman

Jane Mayer recently reported in the New Yorker that in 2017 President Trump ordered Gary Cohn, former director of the National Economic Counsel, to pressure the Antitrust Division of the Department of Justice to block the pending merger of AT&T and Time/Warner. Trump’s opposition has been widely ascribed to the fact that the AT&T deal would insure the continuing competitiveness of the Time/Warner family of companies, including CNN, which Trump famously reviles. It is speculated that Trump hoped blocking the merger would damage CNN and its parent financially, or even force CNN’s sale, perhaps to a more Trump-friendly owner.

George Conway, indefatigable Trump critic and half of the oddest marriage in contemporary American politics, tweeted that, “If proven, such an attempt to use presidential authority to seek retribution for the exercise of First Amendment rights would unquestionably be grounds for impeachment.”

While I don’t disagree with the constitutional sentiment, obtaining the necessary proof seems to me unlikely.

Let’s start with the constitution. The American founders inherited impeachment from their British parliamentary forbears. In England and America, its most important function has been to protect the constitutional order against executive abuses of power. The phrase “high crimes and misdemeanors” includes serious indictable crimes, but also non-criminal abuses of authority that undercut bedrock principles such as neutral enforcement of national law.

For example, the second article of impeachment approved by the House Judiciary Committee against Richard Nixon encompassed all the many ways he sought to misuse federal agencies to protect his friends and harm his political enemies. It charged that Nixon’s partiality violated his oath to defend the constitution and breached his constitutional duty to take care that the laws be faithfully executed.

A presidential attempt to use the antitrust laws to punish a media company for its unfavorable coverage would violate two constitutional imperatives — the general obligation of impartial enforcement of law and the First Amendment’s particular command that the freedom of the press not be impaired by government action.

The problem would be proving that Trump actually influenced DOJ decisionmaking, or even came seriously close to doing so, for constitutionally impermissible reasons.

On the suspicious side of the ledger is the fact that Trump loudly opposed the merger during the presidential campaign, and that shortly after Trump’s alleged directive to Cohn, the Antitrust Division filed suit to stop the merger. In itself, this need not have been objectionable. Antitrust enforcement is what the Antitrust Division is for. And there is nothing wrong with presidents having strong opinions about antitrust and seeking to implement them. Much of Teddy Roosevelt’s presidential reputation was based on his crusade as a “trust buster.”

What makes Trump’s position, and that of his Justice Department, peculiar is that Trump has no record of prior interest in antitrust policy and that the AT&T – Time/Warner merger was of a type that both modern antitrust law and conservative antitrust scholars have generally found unobjectionable.

To vastly oversimplify, the type of merger antitrust law finds most objectionable is a so-called “horizontal merger,” that is, a merger between companies that compete directly with other by selling the same type of good or service. Horizontal mergers are suspect because they are apt to reduce competition and harm consumers by reducing choice and increasing prices.

By contrast, a “vertical merger” joins companies that do not compete directly with one another, but operate at different points along the same supply chain. For example, an auto manufacturer might acquire a steel mill or an auto parts maker. Some observers believe that such mergers can be undesirable by concentrating too much economic power in a single entity, thus creating barriers to entry and other undesirable effects. Nonetheless, current orthodox antitrust law has generally looked benevolently on such mergers. More to the present point, tolerance of massive, vertically integrated corporate conglomerates is congenial to the generally corporatist position of the Republican Party.

The AT&T – Time/Warner deal is, at least predominantly, a vertical merger. Time/Warner provides media content. AT&T owns content delivery services like cable networks and DirectTV. The last time DOJ sued to stop a vertical merger was over forty years ago. Moreover, the head of the Antitrust Division at the time suit was filed, Makan Delrahim, was on record before Trump’s election as viewing the merger as unobjectionable. His views seemingly changed only after a stint as Deputy White House Counsel and his subsequent appointment to head Trump’s Antitrust Division.

All of this is certainly suspicious, particularly given Trump’s rabid hostility to CNN. But opposition to the AT&T – Time/Warner merger was not self-evidently wrong. Indeed, many voices on the left, including Bernie Sanders, Al Franken, and Elizabeth Warren urged DOJ to stop it. From the point of view of many Democrats, therefore, if Trump tried to get DOJ to block the merger, it would have been a case of doing the right thing for the wrong reasons.  Moreover, the nub of the Mayer story about Trump’s order to Gary Cohn was that Cohn walked into the hallway with White House Chief of Staff John Kelly and said, “Don’t you f–ing dare call the Justice Department. We are not going to do business that way.”

It’s possible, of course, that someone made the call anyway, or that Makan Delrahim didn’t need a call to know what the president wanted and why.  And that, knowing the president’s wishes, he pursued the case for political reasons and against his better legal judgment. But at this point, that’s all speculation.  In any event, DOJ lost in both the trial and appellate court and the merger will now almost certainly proceed.

When a president tries to commit a constitutional wrong, the fact that he is thwarted doesn’t necessarily exonerate him from blame or even impeachment. The House Judiciary Committee pointedly observed that successful resistance by federal officials and agencies to Nixon’s improper commands was not a defense. Nonetheless, if all we have is a president raging around the White House demanding that DOJ do something, but no proof that those demands were ever conveyed to DOJ, still less that they formed a part of the motivation for the Antitrust Division’s actions, what we have is further confirmation of Trump’s authoritarian impulses, but not much in the way of solid evidence for an impeachment case.

There are a host of potentially impeachable behaviors those opposed to Mr. Trump should be pursuing. Absent stunning new revelations, this merger should probably sit low on the list.

Reflections on Michael Cohen’s testimony

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By Frank Bowman

I tuned in and out of Michael Cohen’s testimony before the House Oversight Committee on Wednesday. By the end, my reactions were pretty much in tune with what has become the general consensus.

Cohen told us very little we didn’t already know. Mostly he confirmed from an insider’s perspective that Trump is the man he appears to be. A liar. A bigot. An adulterer. A cheat. A narcissist to the marrow who, unlike the mythical Greek who gave obsessive self-regard its name, will not pine quietly away staring at his own reflection in a sylvan pool, but has found in the modern media an endless river of print and digital pools in which he daily and desperately schemes to be reflected.

In his portrait of Trump, Cohen was entirely believable. Not because he is himself notably honest. Nor because his claimed epiphany about Trump’s flaws and his own foolishness in following such a man is particularly credible. To the contrary, what makes Cohen on Trump so obviously true is that he is just the kind of guy attracted to the Trumps of the world. A second-rater, endowed with only modest talents and unburdened by any noticeable moral code. But hungry for money and respect and happy to abase himself before a seeming bigshot and do his twisted bidding to swim in the bigshot’s wake.

Just as guys like Cohen are drawn to Trump, so too does Trump instinctively surround himself with Cohens. He needs servility and moral bankruptcy and avarice in his servants. And he recognizes and draws those with these traits into his orbit. In this respect, Trump is like the mob bosses he obviously admires and seeks to emulate. There are no honest men or women in his circle, at least none who stay for long. Most either come to him bent or become so by association. Those who retain their ethical grounding either leave when resurgent self-respect compels them or are cast out when Trump realizes that they resist corruption.

Cohen’s testimony rings true in its essence to me in part because I’ve prosecuted and sometimes flipped (and occasionally defended) enough guys just like him. Most members of criminal enterprises are not comic book villains. They are customarily just greedy and weak and amoral. When caught, they often have precisely Michael Cohen’s sort of self-pitying charm. But their flawed humanity makes them no less blameworthy. Still less does it excuse the actions of the bigshots who use them.

All that said, Cohen’s testimony really doesn’t advance the ball very much for those who hunger for Trump’s political demise. The essential problem, often remarked upon, is that Trump’s base in the right-wing media echo chamber, in red state America, and, sadly, in the congressional Republican Party knows who he is and just doesn’t care.

The performance by Republican congressmen in the Cohen hearing cemented this point. With perhaps one exception, the Republican members of the Oversight Committee asked no questions about any of Cohen’s general or specific allegations. They were ostentatiously uninterested in discovering whatever the facts may be on any point. Indeed, they did not even attempt to challenge Cohen on the particulars of his testimony. Their entire effort was repeated variations of the playground taunt “Liar, liar, pants on fire” — which incredibly they put on a poster in the hearing room. The most astute thing Cohen said the whole day was that the Republicans on the committee had transformed themselves into publicly elected versions of himself.

This leads to two reflections:

First, if any doubt lingered, there will be no repetition of the Watergate experience in which, although there was partisan wrangling aplenty, members of Congress of both parties worked together most of the time to discover the facts about President Nixon’s behavior. At a bare minimum, in public hearings members of Nixon’s party (and their staff) felt it necessary to seem interested in the truth and thus asked questions aimed at acquiring information. For example, it was minority counsel for the Senate Watergate Committee who discovered and then publicly exposed the existence of Nixon’s White House taping system. In the Cohen hearing, with the possible exception of Cong. Justin Amash (R-MI), not a single Republican congressman asked a question aimed at discovering facts.

Second, if Democrats in Congress hope to get to whatever the truth may be about Trump’s various possible misbehaviors, they are going to have shoulder the responsibility themselves. And they are going to have to do a better job than they did on Wednesday. If Cohen’s testimony confirmed the existing sad portrait of Trump’s general character and modus operandi, it added little by way of detail or corroborating evidence.

On Russia, as Republicans gleefully noted, Cohen had little or nothing to add. Indeed, he denied the claim in the Steele dossier that he’d been to Prague doing something nefarious.

The check from Trump to Cohen reimbursing him for paying off the mistresses for their silence was a nice touch, but no one seriously doubts that Trump arranged those payoffs. And it’s pretty plain that Trump is not going to be indicted on that ground during his presidency or impeached for it either.

The Trump financial statements produced in tandem with Cohen’s allegation that Trump made false statements to Deutsche Bank in connection with an effort to obtain a loan to buy the Buffalo Bills are certainly suggestive. It may well prove that Trump committed bank fraud in various transactions predating his presidency, but Cohen’s testimony does nothing more than suggest avenues of further investigation.

If Republican members merely demonstrated their blind fealty to Trump, Democrats demonstrated their lack of preparedness to serve as serious investigators. There was precious little indication of a coordinated Democratic strategy for interrogating Cohen or of individual Member preparation to explore the evidentiary clues Cohen provided. It was political theatre and little more.

In my next post, I will consider whether the House Democrats’ allocation of investigative authority for matters Trumpian suggests a serious effort to build a case for impeachment, or a disposition to create a continuing series of spectacles like the Cohen hearing.

An Obligation to Impeach?

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House Democrats are reportedly shying away from impeachment, even in light of Michael Cohen’s testimony, which may have implicated President Trump in acts of tax fraud, insurance fraud, and campaign finance violations. The New York times characterized the Dem’s approach to the impeachment inquiry as “a thousand cuts over a swing of the ax;” meaning a drawn out investigation has a greater chance of injuring Trump, by lowering his chance of reelection, than impeachment does, which could energize his base. However, the unwillingness to, at least doggedly, pursue impeachment, begs the question “is there an obligation to impeach?” Constitutional scholars have said no. Akhil Reed Amar wrote in his article On Impeaching Presidents, published in the wake of the Clinton Impeachment, about prosecutorial discretion in administering impeachment:

Article I, Section 2, of the Constitution gives the House the “power” to impeach, but imposes no duty to impeach. The Framers knew how to use the word “duty”–indeed they used it twice in Article II–and so there is no ambiguity here. House impeachment is about power, not duty–about choices, not obligations. Impeachment is never reducible to one question: Is the conduct in question impeachable? Instead it always also implicates a second question: Is it worth it? Just as a grand jury can legitimately decline to indict and a prosecutor may legitimately decline to prosecute as a matter of discretion– fairness concerns, resource constraints, bigger fish to fry, avoidance of undue harm to third parties–so too the new House may decide that the President and, more importantly, the nation have suffered enough. . . . The new House must be free to use this power as it sees fit. It is not a potted plant, and indeed enjoys greater democratic legitimacy than the lame-duck House that voted to impeach, contrary to the spirit of the people’s verdict in the November congressional election.

Regardless, Democrats should consider the value of precedent. Even if harming Trump’s chances of reelection has the same effect as his removal, it fails to set an example for future congressmen.

aeb39ce2-3c72-4653-8f31-900ad2bcbd3f-AP_Trump.jpgEvan Vucci, AP

House Democrats Targeting Trump’s Finances

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Democrats of the House of Representatives, specifically the House Financial Services and Intelligence committees, are planning to use their subpoena power to uncover President Trump’s dealings with Deutsche Bank, a German bank which has funded Trump’s real estate ventures over the years. The dealings are viewed with scrutiny because the bank previously played a role in Russian money laundering. Investigation into this area could determine whether the Trump Organization was also engaged in money laundering, and, if confirmed, strengthen the case for Russian collusion.

download (5).jpgSusan Walsh/AP Photo

Is Mueller Almost Finished?

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CNN Reported today that Special Counsel Robert Mueller may conclude his investigation as early as next week. Their information apparently came from sources familiar with Attorney General Bill Barr’s plan to announce the completion. But! Don’t get too excited. Though Mueller’s report may be finished soon, that doesn’t mean the public or Congress will get to see it.

The regulations which govern Special Counsels are contained in part 600 of title 28 of the Code of Federal Regulations. 28 CFR 600.8 says that when Mueller gets done, he needs to send his final product off to the Attorney General, Bill Barr. 28 CFR 600.9 says that Barr only has to tell Congress 1) that Mueller is done; and 2) if he disagreed with any of Mueller’s suggested actions because they were “inappropriate and unwarranted,” and an explanation of that conclusion. So what we’ll find out is, for the most part, at Barr’s discretion. However, Barr told Congress during his confirmation hearing that he intends to release his own summary of the report, and will be as transparent as possible within the confines of the law (for a thorough analysis of Barr’s statements, click here). If Barr releases less than what Congress would like, their remedy is a subpoena.

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The National Emergency; He’s Done It

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President Trump has declared a national emergency to help fund the construction of his border-wall between the United States and Mexico. The move could potentially increase funds from the $1.35 billion authorized by Congress to $8 billion, in part borrowed from Defense spending. Trump has simultaneously categorized the emergency as necessitated by the “invasion” from the south and admitted that he just wants to get the job done faster. Mixed signals such as these, as well as the general nature of what has been dubbed the President’s “vanity project,” have caused many to label Trump’s action as an abuse of his authority.

Professor Frank Bowman previously considered and wrote about the impeachability of Trump in light of such a flagrant declaration of national emergency. His post should be read in full and can be found here. However, to borrow from his conclusion, he wrote that whether such an action is impeachable depends in part on signals of its unconstitutionality. These signals can come in two forms: 1)  a majority vote in both houses of Congress to undermine Trump’s declaration; and 2) a decision by the Supreme Court that Trump’s action is unconstitutional.

Though both high hurdles, neither signal is impossible. It should be noted that several Republican Senators and Representatives have already spoken out against Trump’s declaration. Additionally, the first suit to challenge the constitutionality of the decision has already been filed by Public Citizen.

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President Trump and International Consequences

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Many of the positions President Trump has taken on important foreign policy issues and agreements have been unorthodox, even radical, and have caused public concern. Professor Bowman has argued they may even be impeachable. In fact, Trump’s foreign policy decisions have been so varied and strange, they can be difficult to account for.

Jack Goldsmith and Shannon Togawa Mercer have compiled an account of President Trump’s attack on international law in their forthcoming article International Law and Institutions in the Trump Era. They examine Trump’s decisions on trade, investment, climate, arms control, diplomacy, war, human rights, and his performance at international conferences, and write about their likely effect. Here is an excerpt:

President Trump has altered the United States stance toward international law and institutions in the first two years of his presidency in the following ways: He has verbally assaulted or threatened many of the major international institutions to which the United States belongs (most notably, the UN and several of its agencies, NATO, the WTO, NAFTA, and the G7); he has withdrawn from, or begun the process of withdrawing from, at least six international treaty regimes, including the Paris Agreement, the Iran Deal, and the INF Treaty; he has ceased negotiations for, or announced an intention not to conclude, at least two important trade agreements; he has begun a global trade war in possible violation of WTO rules; he twice attacked the Assad regime in probable violation of the Charter of the UN (UN Charter); and he sharply redirected United States human rights law policy along several dimensions and might have violated United States treaty commitments with his immigration policies.

For a comprehensive and academic review of Trump’s (possibly impeachable) foreign policy, check out the link above.

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