Author Archives: crosbysamuel

The Consequences of Pardoning Manafort

18 Saturday Aug 2018

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Today marked the second day of jury deliberations for the trial of Paul Manafort, the former Trump campaign manager. Manafort is being tried for 18 criminal charges for bank and tax fraud related to the time he spent working for a Ukrainian political party. Manafort refused to cooperate with the Mueller investigation, and it has been theorized that this decision was based on a belief that President Trump would pardon him if he were convicted.

Whether Trump will pardon Manafort is unknown; however he has used his pardon power politically in the past, and his former lawyer, John Down, apparently broached the subject of a possible pardon with Manafort’s lawyers. When asked whether he would consider pardoning Manafort, the President refused to say, but did comment that  “the whole . . .  trial is very sad.”

In an article written for the American Constitutional Society, entitled Why President Trump Can’t Pardon His Way Out of the Special Counsel and Cohen Investigations, Noah Bookbinder, Norman Eisen, Caroline Fredrickson, and Conor Shaw write that “a prospective pardon of a witness in the Russia investigation might . . . constitute an obstruction of a criminal investigation . . . .” They are referring to section 1510 of title 18 of the the United States Code, which makes the “[willful endeavoring], by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator” a federal crime. If President Trump did, directly or indirectly, promise Manafort a pardon in exchange for his refusal to cooperate with Mueller, then he may not only be subject to criminal indictment but yet another article of impeachment as well.

5b3f9a219e2a102f008b47ed-750-375.jpgDrew Angerer/Getty Images

 

12 Agents, Butina, and Helsinki

17 Tuesday Jul 2018

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Good news! The Russian scandal now officially can be sung to the tune of the Twelve Days of Christmas: 12 Russian agents, Butina’s russian channel, election interference, PUTIN “STRONG AND POWERFUL!”  Which is good, because everything else is not sounding quite so festive.

The indictments of 12 Russian agents, for the hacking of the Democratic National Convention and the Clinton Presidential Campaign, and the filing of charges against Mariia Butina, a Russian woman who allegedly tried to broker secret meetings between President Putin and President Trump, further confirm  what the intelligence community already knew: that Russia interfered with the 2016 federal elections. As if that wasn’t frightening enough, our President doesn’t seem to mind. After meeting with Putin in Helsinki and asking him about the Russian meddling, Trump could only comment about the strength of Putin’s denial. Needless to say, Americans are feeling a bit miffed. But where does this leave us in the impeachment debate?

There are two arguments to be made here. The first and, most obvious, is that all this adds to potential charges of conspiracy to defraud the United States. The more certain we are that Russia interfered with the election, the stronger the case for collusion becomes. Of course to establish collusion, it would have to be shown that there was some agreement between Trump and Russia. To that point it helps that there are ties between the indicted Russians and members of Trump’s campaign. In addition, though Trump’s ongoing support of Putin is not direct evidence of conspiracy, it does have a suggestive quality and could indicate a more nefarious relationship between the two.

One may also consider Trump’s reaction as an example of his unfitness. It can be argued that a failure to reprimand the leader of a country which has taken action to defraud the United States is a failure of one of the most basic duties of the President: that of the Chief Diplomat. This can be added to the list of the President’s other shortcomings; however it is unclear how long a list is required to lead to removal.

download.jpgYURI KADOBNOV/AFP/Getty Images

 

Kavanaugh, Kavanaugh, Kavanaugh

10 Tuesday Jul 2018

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Have you heard? A new Supreme Court Justice has been appointed. His name is Brett Kavanaugh, he hails from the U.S. Court of Appeals, D.C. Circuit, and he’s got Democrats a little bit nervous. Why? Because they think he may try to shield Trump from the Mueller investigation.

Kavanaugh argued in an article written for the Minnesota Law Review in 2009 that sitting presidents should be immune from civil suit and criminal indictment. He cited the investigation of Clinton as a reason for this view, and has implied “that the Starr investigation distracted Clinton from focusing on Osama bin Laden.” Some find this view alarming — however, take a deep breath. As Noah Feldman points out, in an article published by Bloomberg Law, what Kavanaugh actually suggests is that Congress should pass a law that would protect the President. Inherent in that suggestion is an admission that the Supreme Court does not have the power to immunize the President itself. So worries that the Justices may, for instance, enjoin Mueller’s invesitgation, are probably unfounded.

That being said,  that doesn’t mean Kavanaugh cannot be of use to the President in other ways. Kavanaugh may rule that the President can pardon himself, as Trump has suggested in the past. Alternatively, Congress may just take Kavanaugh up on his suggestion and pass a law immunizing Trump. Much remains to be seen.

1200x-1.jpgAl Drago/Bloomberg

Trump and Stone can’t be Sued in D.C.

04 Wednesday Jul 2018

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U.S. District Court Judge Ellen Huvelle, of Washington, D.C., decided yesterday that her court lacks personal jurisdiction, or alternatively that it constitutes improper venue, to entertain a suit brought against the Trump Campaign and Roger Stone by members of the Democratic National Convention (“DNC”). The suit alleged that Stone and the Campaign conspired with unidentified Russian Agents and Wikileaks to hack the DNC’s emails, a tort amounting to conspiracy to violate their privacy rights, to inflict emotional harm,  and to  interfere with their right to support the candidate of their choice. The judge ruled that D.C. lacked sufficient contacts with the allegations to make it a viable place for suit, but avoided making any ruling on the sufficiency of the Plaintiff’s evidence.

So what’s this result mean? We keep holding our breath, while hoping they can find a place to bring their suit. Should these Plaintiffs manage to find a court willing to entertain their action, then they will be able to bring the power of liberal civil discovery procedure against the Trump campaign, and perhaps expedite the collusion investigation. Fingers crossed. Interested readers can find the opinion here.

BCWin17_F_Huvelle_Slide2-690x414.jpgJudge Ellen Huvelle, Picture taken from lawmagazine.bc.edu

The Travel Ban, Constitutionality, and Impeachment

28 Thursday Jun 2018

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The Supreme Court held, yesterday, that the Trump Administration’s travel ban had “sufficient national security justification to survive a rational basis review,” and that therefore it would reverse the preliminary injunction granted by the District Court. This is an indication that the travel ban is constitutional, and allows it to go forth unhindered, at least for the time being. Because the travel ban has been cited in at least Representative Green’s impeachment resolution as evidence of the President’s “bigotry,” one might wonder what effect this decision will have on the President’s chances of impeachment.

While it could be argued that the Supreme Court decision could set some, perhaps ethereal, precedent, it is still Congress that decides whether the President will be removed. And while the Supreme Court’s decision could in some way be construed as an endorsement of the executive order, so too can Justice Sotomayor’s dissent remind Congress of the reason the travel ban was cited as an impeachable offense in the first place:  “[the] appearance of discrimination that the President’s words have created.” Though Trump’s “muslim ban,” may have been rolled back enough to be constitutional, it can still evidence the  President’s bigotry, and therefore could still contribute to his impeachment.

ap_18115517534302_custom-de2433708c26b21f70c27b24fa1da4764a5b7a5d-s1600-c85.jpgAndrew Harnik/AP

Terribly Charitable Trump

15 Friday Jun 2018

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The New York State attorney general’s office is suing the Donald J. Trump Foundation for “violating campaign finance laws, self-dealing, and illegal coordination with the presidential campaign.” The suit alleges that the charity used its funds to help Trump curry political favor, and seeks to dissolves the charity, to ban Trump and his three children from serving on non-profit organizations, and to collect $2.8 million in restitution (“the amount raised for the foundation at a 2016 Iowa political fund-raiser.”). Interested readers can find the petition here.

These election law violations are just the latest on a laundry list of unfit behavior, including conspiracy to defraud the United States,  inappropriate pardons, obstruction of justice, and generally dishonest behavior; however, these charges seem especially important. It may be a local’s bias, a sort of impeachment ethnocentrism, but it feels significant that these charges are brought so soon after the resignation of  Missouri Governor Eric Greitens, who was alleged to have illegally used his charity to raise campaign finance funds. In a country where the removal of executive officials is so rare, it may be that Greitens’ resignation could act as a sort of precedent. Is using a charity to raise campaign funds the line one must not cross?

15trumpfoundation-01-jumbo-v2.jpgDamon Winter/The New York Times

The G-7 plus 1?

09 Saturday Jun 2018

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President Trump, at the annual summit meeting, suggested that Russia be readmitted into the G-7, the group of 7 nations (Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States) which meet to discuss world-economic policy. Russia was ousted from the then G-8 in 2014 for seizing parts of the Ukraine. Trump defended his suggestion, stating as follows:

“You know, whether you like it or not — and it may not be politically correct — but we have a world to run. And in the G-7, which used to be the G-8, they threw Russia out. They should let Russia come back in. Because we should have Russia at the negotiating table.”

President Trump acted antagonistically at the summit meeting, rendering himself an outsider, and causing some to refer to it as “G-6 plus 1.”  For some this is a cause of concern: Trump treating allies as enemies and enemies as allies. And it could further bolster the theory that there was and is collusion going on between Russia and Trump; however, it is unclear that that rejoining the G-8 is actually on Putin’s agenda. In response to the news, the Kremlin spokesman, Dmitri S. Peskov, said that “we are putting emphasis on different formats,” insinuating that Russia is not particularly interested in rejoining the G-7. Russian officials made similar comments in 2014 when they were removed: Russian Foreign Minister Sergey Lavrov said that Russia was “not attached to this format and we don’t see a great misfortune if it will not gather.” So if Trump is acting on behalf of Russia, it is the result of some very coy maneuvering. Regardless of the reason for his stance, however, it betrays more of the same peculiar friendless we have seen since the beginning of Trump’s presidency. We will find out exactly what it means in due time.

g7-summit-trump-may-merkel-macron-809690.jpgexpress.co.uk

The Foreign Emoluments Clause: an Analysis and History

31 Thursday May 2018

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Erik M. Jensen, Coleman P. Burke Professor Emeritus of Law of Case Western Reserve University, wrote a journal article published in the Elon Law Review titled the Foreign Emoluments Clause. That article examines the definition of emoluments, the history of the emoluments clause, and debate as to whether the clause applies to Trump and his businesses.  He sums up the problem of the Trump Hotels as follows:

[S]uppose a foreign diplomat is paying the same rate as the guest in the next room, but he is occupying a room that would otherwise have been empty for the night.Or suppose the diplomat, in selecting sleeping quarters, chooses an otherwise unoccupied luxury suite over an otherwise unoccupied, but substantially less expensive, room. In those cases, whatever is paid for the room, or the extra that is paid for the luxury suite, is mostly gravy for the hotel’s owners. Why is that not a potential problem under the Foreign Emoluments Clause (at least if we assume that the presidency is an “office of profit or trust”)? By any standard, the arrangement is unseemly, and by its terms the clause has no de minimis exception.

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Limiting the Removal Power

28 Monday May 2018

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Qualified Tenure: Presidential Removal of the FBI Director is an article written by Leah A. Hamlin which was published in the Ohio Northern University Law Review. It addresses the question of whether the President’s power to remove an FBI director is limited by the 10-year term instituted by Congress, and whether it may, constitutionally, be further limited by Congress. Hamlin ultimately concludes:

that the ten-year term does not limit the president’s ability to remove the director at will, and that, given the importance of the FBI director to the effective functioning of a unitary executive, Congress may not limit the president’s removal power without infringing on the separation of powers limits laid out in case law.

This question is especially significant, of course, in light of the firing of James Comey which was met with such outrage, and which some believe could constitute obstruction of justice.  Though Hamlin concludes that Congress cannot not interfere with the President’s removal power, it is doubtful that her conclusion would extend so far as to suggest that Congress could not wield its impeachment power in wake of a removal which constitutes a high crime or misdemeanor.

gettyimages-694398560.jpgThe Washington Post/Getty Images