Congress grows a notochord

By Frank Bowman

It has now been announced that the White House briefings on the supposed FBI “spy” on the Trump campaign will include the so-called “Gang of Eight” group of leaders from both parties who are customarily read in on security matters.  This rapid change from the original plan to brief only Republican congressmen Devin Nunes and Trey Gowdy was undoubtedly a response to yesterday’s post on this blog. Lord, I love the power of the press!!

But seriously, folks, the change is a teeny, tiny positive development.  Even if the quick switch was made mostly to improve the awful optics of a Republicans-only meeting, it appears that congressional leadership did squawk a bit at the insult to their institutional prerogatives.  And that’s something, I guess…

P.S. A notochord is the evolutionary precursor to the spine.

The Destruction of Congress

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By Frank Bowman

I have already remarked on the absurdity of Mr. Trump’s latest assault on the FBI and the Department of Justice — the claim that a “spy” was planted in the Trump campaign by nefarious anti-Trump deep state actors. The allegation is bad enough, but Trump’s demand that the Justice Department both investigate it and disclose confidential information about an ongoing investigation is worse.  That Mr. Trump would promote this pernicious nonsense is, sadly, unsurprising.  But dangerous though this behavior is, one might be able to console oneself with the thought that Trump is a uniquely twisted soul whom the country will have an opportunity to vote out of office no later than 2020.

The more troublesome aspect of this story has been the response of the Republicans in charge of Congress, particularly those in the House.  There is much to be said on this score, but today I’ll focus on just one point.

The White House has demanded that FBI Director Andrew Wray and a Justice Department representative produce material related to supposed FBI misconduct at a meeting to be attended by only two legislators — Republican Congressmen Devin Nunes and Trey Gowdy.  No senators were invited (although three Republican senators have requested to be included.)  And no Democrats from either house are to be allowed to be present or see the material.

In the era of Trump, we have so often had occasion to declare things “unprecedented” that the term is losing all effect.  But this is truly unprecedented.  Congress has investigated presidents and federal agencies many times.  Oversight is a key congressional function.  Some of those investigations have surely had partisan objectives.  But even when the majority party in one or both houses embarked on investigations it hoped would pay political dividends, congress acted as a body.  The majority party gets more members on the investigative committee and often more support staff.  But both parties participate in the investigation, have access to all the relevant materials, and have a full opportunity to debate the evidence, vote on any conclusions, and publicize disagreements with any final conclusions.

I am old enough to remember the spirited, but procedurally meticulous and scrupulously even-handed, debates in the Senate and House committees investigating Watergate.   The senators and representatives of that era demonstrated what it means for Congress to be a democratic, representative, deliberative body and their work stands in proud contrast to the tawdry behavior of the current Republican-dominated gaggle.

The spectacle we are witnessing here is the collapse of Congress as a co-equal branch of the American government.  It is not merely that a subset of Republican House members have eagerly signed on to protect Donald Trump by promoting conspiracy theories.  There will be unprincipled, intellectually dishonest, opportunists in any age and any party.  The horror is that the institutional leadership in both House and Senate has supinely acquiesced in this vicious foolishness.

I say foolishness because, even for the congressional Republican party, this is astoundingly shortsighted behavior.  Do Republicans imagine that they will retain their majority forever?  And do they imagine that Democrats, having been treated as, in effect, a party of traitors unworthy of viewing and deliberating on evidence of supposed law enforcement corruption, will not respond in kind when the wheel turns?  Forbearance by the Democrats would require more than human rectitude.

All of this is, or should be, achingly obvious to Republican congressional leadership.  But in neither house has the leadership done any leading whatsoever.  This should perhaps be no great surprise given that, in the Senate, majority leader McConnell has been an innovator in destroying the collaborative traditions of the Senate, and in the House, the Republican leadership since Dennis Hastert has effectively ruled out all cross-party legislative efforts.  But even these blinkered partisans should exhibit either some appreciation of the historical role a strong, deliberative congress plays in American government or at least some miniscule degree of foresight concerning the retribution their own party will inevitably suffer.

If and when the wheel does turn and Republican congressmen reap what their confederates have sown, I will not shed a tear for them.  They and their party will deserve every humiliation heaped upon them

But we should all weep for the lasting damage these thoughtless partisan Republicans are wreaking on Congress as an institution.  A congress in which distrust is so deep that legislators of one party are unwilling even to share information with the other party and debate with them openly on matters of public importance is a failed body.  And failure at that fundamental level will, in the most optimistic scenario, take many years to repair.  It may not be repairable.

We should all remember that a functioning congress is the beating heart of American democracy.  If it devolves into nothing more than a venue for factional warfare, our form of government is genuinely doomed.

There’s an FBI Spy in My Soup: Trump’s Latest Attack on Law Enforcement

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By Frank Bowman

There is a certain twisted brilliance in the media strategies of Mr. Trump and his enablers.  By constant repetition, they’ve managed to inject into the daily national narrative an absolutely nonsensical, but deeply subversive, idea.  In the Trumpian universe, the fact that, before the 2016 election, the Federal Bureau of Investigation was investigating reports of foreign efforts to influence the election, perhaps in cooperation with the Trump campaign, is cause for concern, not about the foreigners or the Trump campaign, but about the FBI.

In Trump World, America’s intelligence and law enforcement agencies are apparently supposed to ignore reports of foreign efforts to influence elections and penetrate a presidential campaign.  In Trump World, the ever-growing mountain of evidence that the Trump family and its retainers were having highly unusual contacts with Russians (and now, it appears, Saudis and Emiratis) is simply brushed aside with the mantras “no collusion” and “witch hunt.”  In Trump World, we reason backwards.  Rather than examining evidence to determine whether anyone in Trump’s sphere did wrong, we must assume that Trump and all around him are blameless, and therefore we must conclude that anyone who inquires into the possibility that wrong was done must be a member of the nefarious deep state.  In Trump World, to oppose, or even to question, Trump is to be a traitor.

Back in the real world, the idea that the FBI is, or ever was, controlled by a nest of secret liberals hostile to Republican presidential candidates is comical.  The Bureau is, and always has been, deeply conservative.  Moreover, although somehow this fact no longer seems to matter, during 2016, the FBI was headed by James Comey, a staunchly orthodox Republican famous for his prickly sense of rectitude and willingness to resist political pressure who had served in high Justice Department positions in Republican administrations. Still more to the point, whatever the FBI may have discovered about Trump during 2016, it kept entirely secret.  As did the Obama appointees who ran the Justice Department. And therefore, nothing the FBI learned damaged the Trump campaign. Which, of course, was in marked contrast to how the unproductive investigation of Hillary Clinton was treated.

So we know that the FBI conducted investigations of both presidential candidates and behaved in a way that hurt one candidate (Clinton) by publicly smearing her reputation without actually charging her with a crime, while helping the other candidate (Trump) by keeping its investigation of him completely secret.

Thus, here in the real world, using normal logic, we would look at the evidence of the FBI’s behavior and conclude one of two things:  Either the FBI consciously set out to hurt Clinton and help Trump, or (and this is Jim Comey’s story) it was not trying to help or hurt either candidate, but made errors that happened to help Trump and hurt Clinton.

The one thing that no one using real world logic would deduce from the evidence is that in 2016 the FBI was engaged in a plot to harm the candidacy of Donald Trump.  What it was doing when it investigated Trump’s connections with Russia was its job — trying to protect the United States from foreign efforts to subvert the government and the democratic process.

That Mr. Trump would try to turn this reality on its head is unsurprising.  That Republican elected officials and once-respectable institutions of American journalism like the Wall Street Journal would abet him in his distortions is despicable, and a shame none them should ever be able to wash away.

A Deeper Conspiracy: Saudi Arabia and the United Arab Emirates Enter the Mix

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The New York Times reports that Donald Trump Jr. met with George Nader, an emissary for the princes of Saudi Arabia and the United Arab Emirates, and Joel Zamel, an Israeli social media specialist, 3 months before President Trump’s 2016 election. Supposedly, the main purpose of the meeting was to develop relationships among the parties, but there was also discussion of the potential for social media manipulation on behalf of the Trump campaign. Nader and Zamel met with the Trump team again after he was elected. These meetings are being investigated by the FBI.

The question which may spring to one’s mind is whether this meeting could constitute further conspiracy to defraud the United States. This question has been analyzed thoroughly by Professor Bowman in the context of the Russian Lawyer Meeting. The crime is composed of two basic elements: 1) an agreement to 2) defraud the United States. The United States can be defrauded of its right to a fair and honest election, and we will assume for the sake of this post that the manipulation of social media constitutes such a fraudulent taking (though that may in fact be a gray area). So what is left to be examined is whether the meeting between Trump Jr., Nader, and Zamel constitutes an agreement.

Though we have no direct evidence of an agreement, a conspiracy may be established, at least in the context of antitrust, by parallel behavior accompanied by certain “plus factors” (those which add to the circumstantial possibility of agreement).  What we know is that Nader paid Zamel $2 million after President Trump was elected, the reason for which is unclear. We also know that Trump recently abandoned the Iran Nuclear Deal, a position Nader was known for advocating. This is probably not enough to establish a conspiracy, but perhaps further investigation will reveal more. There is also some evidence of ties between Nader and Zamel and Russia. Though it is very unclear as of yet, we may be dealing a conspiracy much larger than we first imagined.

20DC-INVESTIGATE-nader-superJumbo-v2.jpgRon Sachs/Picture-Alliance, via Associated Press

Trump won’t be Indicted

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Rudolph Giuliani claims that he has it on good authority that Mueller will not indict President Trump; and the Washington Post says that there is good reason to believe him, because the Justice Department guidelines say that he can’t.  This question has been examined by Professor Frank Bowman on this blog; and he pointed out that the question, as far as Mueller goes, is not whether an indictment will occur, but whether Mueller will recommend that Trump be indicted. Bowman proposed that this recommendation may come in two forms; that Trump be indicted after his presidency, or that he be indicted immediately. The latter recommendation, even if doomed to fail, will potentially have the same effect as the former recommendation: Mueller’s report will reach Congress and lead to impeachment.

180503095830-01-rudy-giuliani-file-exlarge-169.jpgCarolyn Kaster, AP

 

Video

Why Being a Dreadful President Is an Impeachable Offense: A (mostly) dispassionate analysis

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In April 2018, Professor Frank Bowman gave this lecture sponsored by the University of Missouri Chapter of the American Constitution Society explaining the impeachment clauses of the Constitution, the historical precedent for their use in the cases of Presidents Andrew Johnson, Richard Nixon, and Bill Clinton, and a view of impeachment as an essential tool in the case of a president who consistently violates legal and behavioral norms essential to the preservation of American constitutional order.

Greitens’ Criminal Case Dismissed: Be Careful What You Wish For…

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By Frank Bowman

Never a dull moment here in Missouri.  This afternoon brings the news that, on the third day of jury selection, St. Louis Circuit Attorney Kim Gardner has moved to dismiss the invasion of privacy prosecution against Governor Eric Greitens.  This is, at least in theory, what is a called a dismissal without prejudice, meaning that the case can be refiled.  And Ms. Gardner says she will seek to refile.

The stated reason for the dismissal is that the defense named Ms. Gardner as a defense witness, and the trial judge allowed them to do so.  Ms. Gardner claims that she cannot proceed with the trial in a situation where her subordinates would be in the position of cross-examining her.

Ms. Gardner says she is considering either seeking a special prosecutor to handle the case or refiling and asking one of her assistants to lead the prosecution.

I haven’t yet thought through the validity of Ms. Gardner’s assertions about her ethical position.  I may have some thoughts on that later.

For the moment, I have a sneaking suspicion that Governor Greitens’ trial team has been too clever by half, at least if their objective is to preserve Mr. Greitens in the governor’s office.  My own necessarily tentative assessment of the invasion of privacy criminal case has been that it’s a very tough one for the prosecution in the absence of the photograph, or at least forensic evidence that a photograph once existed.  From what can be gleaned from press reports, the government had neither the picture nor any circumstantial forensic evidence. Thus, the state’s entire case rested on the credibility of the victim, who, according to her own statement, was blindfolded at the time the supposed picture was taken. And the state had to prove its case beyond a reasonable doubt and secure votes of guilty from every juror.

Therefore, while the state could have won (and may yet win) this trial based purely on a favorable jury assessment of the victim’s credibility, my money would have been on an acquittal or at most a hung jury.  Politically, either is a great outcome for Greitens.

But the aggressiveness of trial counsel has just deprived the governor of a reasonably likely legal win.  Instead, the criminal trial will either never happen or will be delayed for months by further legal wrangling.  In the meantime, the action shifts to the legislature’s special impeachment session, where the governor is saddled by multiple handicaps:

  • The charges in the legislature probably won’t be limited to invasion of privacy, with the inherent weakness of the absence of the photo.  As noted in an earlier post, if one believes the former mistress victim, Mr. Greitens also arguably committed one or more forms of felony sexual assault.  And, of course, there are now allegations of campaign finance violations.
  • Even if the impeachment case were limited to allegations about Mr. Greitens’ encounters with his mistress, the report of the House special committee on that matter indicates plainly that the committee members unanimously believe her, not him.
  • The burden of proof in impeachment is lower than the “beyond a reasonable doubt” standard of criminal cases.  And those seeking impeachment don’t need a unanimous verdict.
  • The legislators, even in Greitens’ own party, seem not to like him.  The Republicans in particular plainly think he is a political millstone.  And unlike jurors, they can’t be challenged for political bias or for prejudging the case.

It sure looks to me like the governor’s lawyers have outsmarted themselves.

Impeachment in the States: Missouri Governor Edition, Part 11 (More on suspension after impeachment)

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By Frank Bowman

Jason Hancock, a diligent reporter from the Kansas City Star, alerted me to a Missouri constitutional provision that kicks up even more dust on the question of whether Governor Greitens could be suspended from office following impeachment by the House, but before conviction by the panel of seven “eminent jurists” appointed by the Senate.

Article IV, Section 11(a) of the Missouri constitution states:

On the death, conviction or impeachment, or resignation of the governor, the lieutenant governor shall become governor for the remainder of the term.

Candidly, this language is almost impenetrable.

It says that the Lt. Gov takes over for “the remainder of the term” upon “the death, conviction or impeachment, or resignation of the governor.”  But it is entirely unclear about what “conviction or impeachment” means.  “Impeachment” could mean just a vote by the House on articles of impeachment, which is usually the technical meaning of that term.  But that can’t be right in this context because that would mean that the Lt. Gov. becomes the governor, and stays governor until the end of the term, as soon as the House votes and regardless of what the judges do.

Which leads one to think that the drafters intended “impeachment” in this context to mean completion of the whole process – the House vote and then the “eminent jurist” vote.

But if so, that leaves unexplained the word “conviction” in the odd phrase “conviction or impeachment.”  Does conviction here refer solely to the impeachment setting and thus to the verdict of the eminent jurists?  That would make logical sense, but it makes no grammatical sense because of the word “or” connecting conviction with impeachment.  In other words, one cannot have an impeachment conviction without first having a House impeachment vote, but one can have a separate criminal conviction regardless of whether there is an impeachment proceeding.

In which case, does conviction refer to some kind of conviction independent of an impeachment proceeding?  But that makes no sense because the term “conviction” doesn’t seem to have a definition.  Presumably, outside of the impeachment context it would have to refer to a criminal conviction.  But absent any other qualifier, it would include every kind and degree of criminal conviction from murder to jaywalking.  And that can’t be right.

Here’s my best guess:  The sensible way to read this is that the governor stays governor until the impeachment process – House vote and judge vote – produces a final result.  At which point, if the governor is impeached and convicted, the Lt. Governor takes over as governor for the remainder of the governor’s term.  But this sensible reading is not necessarily required by the text.

In addition, as explained in my last post, the governor could be suspended from exercising his official powers in the interval between the House impeachment vote and judicial vote on the articles of impeachment if the “eminent jurists” vote to suspend him.  Presumably, the Lt. Governor would take over the powers of governor during the suspension, to return them if the governor were acquitted, but keep them until the end of the governor’s term if the governor were convicted.

 

Impeachment in the States: Missouri Governor edition, Part 10 (Suspension after impeachment)

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By Frank Bowman

I have been asked by several media outlets about what happens in the period after a state official is impeached by the House of Representatives, but before the matter is tried by the “seven eminent jurists” appointed by the Senate.  So here’s the scoop:

There is a Missouri statute that purports to automatically suspend a state officer upon impeachment by the House, RSMO 106.050.  However, in a 1994 decision involving the impeachment of Missouri Secretary of State Judith Moriarty, the Missouri Supreme Court found that suspension cannot be automatic.  Rather, the judges charged with trying the impeachment can, but need not, vote to suspend the impeached officer during pendency of the impeachment proceedings.

To be candid, I find this decision quite peculiar.  The statute is plainly meant to mandate automatic suspension.  It makes no reference to a discretionary choice by the judiciary panel charged with trying impeachments. Nor does it state or imply that some kinds of impeachable offenses merit suspension while others do not. Yet the Moriarty decision necessarily means that there are suspendable and non-suspendable offenses, and does so without specifying how one would tell the difference.

Some indication of the court’s thinking on the latter point can be gleaned from this passage in the opinion:

Here, the offense alleged went to a claim of misconduct regarding the core responsibilities of the office of the Secretary of State, certification of a candidate for public office. Here, also, a general election was scheduled to occur prior to the trial of impeachment. The charges cast doubt as to the ability of Ms. Moriarty to properly carry out her supervisory responsibilities. There was no possibility of clearing away that doubt until after Ms. Moriarty’s impeachment trial was completed. This was a matter of such unique importance and sensitivity that suspension pending trial was required to uphold the sanctity of our election process.

The court seems to say that suspension is warranted in a case where the nature of the charges “cast[s] doubt as to the ability of [an officeholder] to properly carry out” the responsibilities of office.  But that is, at best, a political judgment, and a highly speculative one at that.  Yet this is the same court that in its later decision convicting and removing Secretary of State Moriarty piously declared that, “this Court must assume that our role is as a court, not as a substitute political body.”

Regardless, for the present it appears that, should Governor Greitens be impeached, he would continue to exercise his gubernatorial powers until such time as the panel of eminent jurists appointed by Senate voted to suspend him.

Michael Cohen cashes in…. Somewhere Robert Mueller smiles

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By Frank Bowman

I have been extremely reluctant to speculate about whether the investigations by Special Counsel Robert Mueller and other federal law enforcement authorities will produce results that could present a real danger to the Trump presidency.  I retain that reluctance.  But tonight’s reports that over the past year or so multiple corporations, including one associated with Russian oligarch  Viktor Vekselberg, deposited large sums in an account held by a shell company controlled by Michael Cohen, Trump’s personal lawyer, have a different feel than anything that’s come before.

In sum, Cohen created a company called Essential Consultants LLC.  One or more bank accounts in the name of that company were used to make the 2016 hush payment to “adult entertainer” Stormy Daniels.  In addition, during 2017 and early 2018, the same account(s) received the following deposits:

  • $500,000 from Columbus Nova, an investment firm in New York whose biggest client is a company controlled by oligarch Viktor Vekselberg, a Putin associate who recently became the subject of American sanctions.
  • Roughly $400,000 from Novartis Investments S.A.R.L., a subsidiary of Novartis, the multinational pharmaceutical company Switzerland.
  • $150,000 from Korea Aerospace, which “has partnered with the American defense contractor Lockheed Martin in competing for a multibillion-dollar contract to provide trainer jets for the United States Air Force that is expected to be awarded this year.”
  • $200,000 from AT&T

Columbus Nova claimed that the money was for an investment consulting arrangement commenced shortly after the Trump inauguration, but later terminated.

AT&T has said that, “Essential Consulting was one of several firms we engaged in early 2017 to provide insights into understanding the new administration,” adding that, “[t]hey did no legal or lobbying work for us, and the contract ended in December 2017.”

There are two important threads here.

First, this presents perhaps the first link between a very close Trump associate and a high-level Russian actor where the connection is not merely a meeting or solicitation with debatable objectives and uncertain results. The money is real and undeniable, and not even Russian billionaires pay people half-a-million dollars without some expectation of return on the investment.  Exactly what the money was for remains to be seen, but it will have to be explained.

Moreover, this story should be seen in conjunction with the excellent reporting over the past few days by both the Washington Post and the New York Times about the finances of both the Trump Organization and Michael Cohen.

The Post details the Trump Organization’s sudden shift in around 2006 from financing acquisitions through debt to making huge purchases totaling in the hundreds of millions of dollars, with cash.  It is possible, as Eric Trump has claimed, that the change occurred because other Trump properties were generating so much cash that debt financing was no longer necessary. But given Trump’s career-long failure to achieve that level of profitability, that explanation seems at least questionable.  Although it is far too early to reach any conclusion, the speculation that the cash may have come from sources like Russian oligarchs and others looking to park shady money is not far-fetched.  After all, back in 2014, before Trump became a candidate and the Russia connection became politically hazardous, Eric Trump bragged that the Trumps had access to huge quantities of Russian money.

The Times maps what it calls Cohen’s “shadowy business empire,” in which connections to Russians and Ukrainians of doubtful probity seem disturbingly common.

The more the connections between Trump’s people and Russia are measurable in dollars and cents, the harder it will be for Republicans who retain any measure of intellectual honesty to dismiss the Russia investigation as a “witch hunt.”  And that in turn should give Mueller and the Southern District both more time and solid legal reasons to perform a full analysis of the Trump Organization’s entanglements with Russia, and perhaps other questionable sources of financing.

Second, the other side of the story is the fat paychecks for Cohen from corporations with an obvious interest in currying favor with Cohen’s client, the newly minted president of the United States.  Those companies are going to have to answer a lot of pointed questions about what they thought they were buying.  And I suspect either Mr. Mueller or the U.S. Attorney’s Office in the Southern District of New York are going to dig deeply into the question of what Cohen was selling.

The results of those inquiries are quite likely to add to the growing legal pressure on Cohen. Moreover, the existence of large payments to Cohen by corporations with obvious interests in influencing the White House will put pressure on Trump to disavow his former lackey.  Which should in turn increase the likelihood that an abandoned Cohen will agree to cooperate against his faithless boss.

This is getting interesting.