Category Archives: Articles

The Russians Influenced the Election — So What?

25 Tuesday Sep 2018

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The New Yorker writes today that Russian bots and trolls likely did influence the 2016 election; or rather Kathleen Hall Jamieson, author of  “Cyberwar: How Russian Hackers and Trolls Helped Elect a President—What We Don’t, Can’t, and Do Know,” asserted as much during her interview with the paper. She writes about how, through an online campaign, Russian hackers influenced voters to garner support for Trump. These trolls adopted pseudo-American-identities to better influence their audience, and, according to Jamieson, succeeding in swaying the vote.

Though this is an alarming proposition, it is worth noting that it is not one that needs to be established for a charge of conspiracy to defraud the United States. A showing of success is not necessary for a charge of collusion — all that is necessary is that there is a conspiracy with the aim of defrauding the U.S. and some overt act taken in pursuit of that goal. Whitfield v. United States, 543 U.S. 209, 214, 125 S. Ct. 687, 691, 160 L. Ed. 2d 611 (2005). As such, it would be sufficient if Trump were to have conspired with Russian hackers, the Russian hackers assumed American avatars, and then the whole plan went belly up. That being said, the idea that the presidency was handed to Trump by internet trolls could add fervor to impeachment efforts.

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Presidential Obstruction of Justice

20 Thursday Sep 2018

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This article from the California Law Review, written by Daniel J. Hemel and Eric A. Posner and entitled Presidential Obstruction of Justice, examines the standard for charging a United States president with obstruction of justice in light of his role as head of the executive branch and federal law enforcement. The authors assert that a president does violate the law when he obstructs justice with an improper purpose and explore what that improper purpose might be. They ultimately claim that when a president acts/obstructs justice to “take care that the laws be faithfully executed,” his purpose is proper, but that otherwise it is not.

This analysis is of course significant in light of President Trump’s firing of Former FBI James Comey which some believe was an act obstructing justice. The friction between Comey and Trump was brought to the forefront again on Monday when the President ordered that Comey’s communications be released to the public along with ” 20 pages of a 2016 surveillance application targeting former Trump campaign adviser Carter Page and Justice Department official Bruce Ohr’s notes related to the Russia probe.” Comey believes that Trump is trying to root out a procedural mistake made by the FBI, but is confident he will not find one.

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Losing a Two-Front War

16 Sunday Sep 2018

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This week has proven to be a difficult one for President Trump. As both civil and criminal investigations draw near and his tight spot becomes tighter, one can only begin to imagine his discomfort.

The world of Special Counsel Robert Mueller’s investigation has gotten a little brighter with the cooperation of Paul Manafort. Trump’s former Campaign chairman finally struck a plea deal last Friday and pleaded guilty to conspiracy to defraud the United States and obstruction of justice. Though Trump’s press secretary, Sarah Sanders, argues that the charges against Manafort have nothing to do with the President and could not incriminate him, Manafort apparently possesses information valuable enough for Mueller to agree to waive 5 of his 7 charges and argue leniency in his sentencing. Especially valuable is Manafort’s participation in the Russian lawyer meeting and any insight he may be able to give as to what happened there. Some theorize that Manafort’s cooperation promises the end of Mueller’s investigation.

On top of Mueller’s progress, Trump faces discovery requests pursuant to a civil suit in the U.S. District Court of Maryland. The suit alleges that Trump violated the Domestic and Foreign Emoluments Clauses of the United States Constitution through operation of the Trump International Hotel near the White House. Pursuant to those allegations, the plaintiffs, D.C. Attorney General Karl Racine and Maryland Attorney General Peter Frosh, are seeking communications between Trump and foreign and U.S. state government officials related to use of the hotel, records of the hotel’s business with foreign officials, records of cash transferred from the trust which collects the hotel’s funds to Trump, and documents from the General Services Administration and the U.S. Treasury Department which lease the hotel building to Trump.

The likely result of these two investigations is that allegations of impeachable offenses committed by Trump, conspiracy to defraud the American people, obstruction of justice, and violation of the emoluments clauses, will soon either be substantiated or refutable. And with midterm elections looming, this information could not have come at a better time. Soon there will be a Congress that can transform all of this discovery into articles of impeachment.

GettyImages-578331186-trump-manafort-2016-1120.jpgBill Clark, CQ Roll Call, Getty Images

Getting to Know Jane Raskin

12 Wednesday Sep 2018

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Readers might be interested in an article published by Bloomberg today entitled “Trump’s Little-Known Lawyer on the Front Lines Against Mueller.” It details the background of Jane Raskin, a white-collar defense lawyer from Florida. Though she is less talked about than Giuliani, Raskin has been working as President Trump’s lawyer since April, shortly after John Dowd left the position. She has gone head-to-head with Special Counsel Mueller’s deputy, Jim Quarles, over permissible communications with President Trump, conducted much of the research behind Trump defense, and is the lead writer of a report meant to counter Mueller’s eventual findings. Interestingly the lawyer has personal ties to Mueller: “both lawyers were prosecutors in Boston early in their careers — Raskin tried organized crime and racketeering cases for the Justice Department while Mueller investigated financial fraud, terrorism and money laundering for the U.S. attorney’s office.”

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The Anonymous Letter

06 Thursday Sep 2018

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The nation is abuzz with talk of the anonymous op-ed piece published by the New York Times. The writer is apparently a senior official in the Trump Administration and names him-or-herself  as part of the “quiet resistance.” The piece describes efforts taken by its author and others to walk-back, avoid, and otherwise subvert the President’s more rash decisions. In essence, it paints Trump as an out-of-control child. Some readers will wonder how this is news; however the piece is significant for several reasons. 1) It corroborates other, similar accounts of the Trump administration, such as those leaked by aides and those written in “Fear,” Bob Woodward’s book; 2)  it simultaneously bolsters and rebuffs the 25th amendment theory of removal. The author of the piece wrote that Trump’s cabinet considered removing the President for incompetence, but ultimately decided against it because “no one wanted to precipitate a constitutional crisis.” This confirms both that at some point use of the 25th amendment was a real possibility and also that it will likely never happen. That being said, confirmation of the President’s incompetence could add strength to other removal proceedings, such as through impeachment in the House; 3) perhaps most importantly, it helps to resolve the mixed relationship the Trump Administration has with Russia. The author wrote that though Trump has complained about Russian sanctions, the ‘resistance’ has worked to ensure it sanctioned and otherwise punished the nation for stepping out of line. Trump has boasted in the past that “there’s never been a president as tough on Russia as I have been.” Now we know that the punitive steps that the Trump Administration has taken towards Russia may very well have had nothing to do with Trump or have been done in spite of him. Though it may seem a small thing in light of evidence mounting elsewhere, this strengthens the case for collusion and could perhaps help to usher in impeachment.

920x920.jpgSusan Walsh, AP

The Value of Weisselberg

25 Saturday Aug 2018

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This Bloomberg article, written by Justin Sink, accounts for each of the Trump associates which are now helping to build a case against the President. Interestingly, included among their numbers is Allen Weisselberg, the chief financial officer of the Trump Organization. Information from Weisselberg could prove especially threatening to Trump.  He has been the C.F.O of the Trump Organization for years,  has worked with the Trump family in some capacity since 1970, serves as treasurer to President Trump’s personal foundation, and is the only non-family member that serves as a trustee to the trust that owns the Trump Organizations business interests. This is significant, because investigators have been previously unable to access Trump’s financial records. Now they have the next best thing. Weisselberg, with his intimate knowledge of the President’s finances, could provide the information previously sought from the records, such as evidence of Russian dealings or violations of the foreign emoluments clause. Even if this information is not sufficient to build a case, it could very well be sufficient enough to get a subpoena for the President’s records.

im-23399.jpgThe Wall  Street Journal

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