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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: Mueller

Rosenstein Assures Trump he is Not a Target of the Mueller Investigation — The News Cycle Repeats Itself

01 Friday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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bowman, deputy attorney general, donald trump, impeach, impeachable, Impeachment, investigation, Mueller, new york times, president, professor frank bowman, Robert Mueller, Rod Rosenstein, Special Counsel, subject, target, target v. subject, trump, united states

Trump said yesterday, during an interview with the New York Times, that Deputy Attorney General Rod Rosenstein informed him that he is not a target of the Mueller investigation. Trump also added that he is not a “subject” of the investigation, but it is unclear whether that is a word Rosenstein used or a descriptor Trump added. He seemed to use the words interchangeably saying first “he told the attorneys that I’m not a subject, I’m not a target,” and then added  “[t]he lawyers ask him. They say, ‘He’s not a target of the investigation.’”

Readers will recall that Trump already received the news that he is not a target of the Mueller investigation from Mueller himself in April of 2018. As Professor Bowman wrote then, what that could mean, according to the definition of “target” in the United States Attorneys Manual, is that DOJ policy prevents Trump from becoming an indicted defendant and therefore a target. However, if that is not what Rosenstein meant and Trump could be a target, then it is significant that he has not, in the past 10 or so months, become one. What is more significant is if Trump is indeed not a subject of Mueller’s investigation. That could mean that there is not enough evidence to continue investigating Trump or enough evidence to have exonerated Trump.  That, however, seems unlikely.

rosen.jpegAndrew Harrer | Bloomberg | Getty Images

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If When he Denies he Lies…

14 Monday Jan 2019

Posted by crosbysamuel in Articles, Uncategorized

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Conspiracy, denial, dishonest, donald trump, finland, impeach, Impeachment, interpreter, investigation, lies, lying, Mueller, president, public trust, Putin, russia, russian collusion, vladmir putin

President Trump today denied that he has worked for Russia in what has been described as his “most direct response” to the accusations of collusion. This denial came in the wake of a report that after a meeting he had with Russian President Vladmir Putin last summer in Finland, Trump took their interpreter’s notes and instructed him not to discuss the meeting with any other officials.

One theory is of course that Trump did work for, or at least with, Russia, which if true means that what he said today was a lie. Which begs the question, what consequences may come to a President for lying to the public? Professor Bowman has written at length on this subject, and his writings can be found here. However, in the way of summary, Prof. Bowman noted three kinds of lies which he believes could warrant impeachment: criminally indictable falsehoods,  unindictable official falsehoods, and chronic or pervasive falsehoods. The lie at hand is neither indictable or official, as it was not given under oath and is not a communication with Congress. However, the lie could fit in the third category if added to the pool of President Trump’s many other falsehoods, which, in aggregate, Bowman has suggested, are potentially impeachable. He wrote: “chronic presidential lies do not merely render the president himself ineffectual, but also damage every other branch and function of American government.” In essence, Trump’s constant lies are one of the things which make him unfit. For an in-depth analysis of this novel idea, the reader should check out Bowman’s article, which can be found here.

ap_19014539944750_wide-234bee0b5652fad844256e61c76821ab6b04c988-s1600-c85.jpgEvan Vucci/AP

 

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Resurrecting Justice Curtis’ Argument

26 Wednesday Dec 2018

Posted by crosbysamuel in Articles, Uncategorized

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Collusion, donald trump, Frank Bowman, harvard law school, high crimes without law, Impeachment, interpretation, joshua matz, justice benjamin curtis, lawrence tribe, Mueller, nikolas bowie, voter fraud

Nikolas Bowie, Assistant Professor at Harvard Law School, wrote in an article for the Harvard Law Review Forum, entitled “High Crimes Without Law,” a dissent to the popular view that impeachable offenses need not be violations of existing law. This argument was first made by Justice Benjamin Curtis, who left his post with the Supreme Court  in the wake of the Dred Scott decision, and subsequently agreed to represent President Andrew Johnson in his impeachment proceedings. Johnson was impeached, in part, for inflammatory speeches given in protest of Congress’ anti-slavery legislation.

Curtis argued that the “high crimes and misdemeanors” warranting impeachment are defined as high crimes committed against the United States, made illegal by laws of the  United States. He supported this argument with three points: “first, a textual argument that the phrase “high Crimes and Misdemeanors” refers to something analogous to treason and bribery; second, a structural argument that impeachment proceedings are criminal trials; and third, a structural argument that Congress could not use impeachment proceedings to subvert the constitutional prohibitions against ex post facto laws and bills of attainder.” Bowie explores these arguments in detail, and then proceeds to respond to modern counter arguments, such as those professed by Professors Laurence Tribe and Joshua Matz. The primary difference between Curtis’ interpretation and that of Tribe and Matz’s more expansive definition is in the way they define impeachment, as either a criminal or civil process; Tribe and Matz argue that impeachment is a civil proceeding not requiring the constitutional protections of a criminal proceeding. Interested readers should follow the link above for a more detailed overview of Bowie and Curtis’ argument.

As a note, even if Curtis’ interpretation is correct, and impeachment only applies to crimes enshrined in law, that does not necessarily let President Trump off the hook. The voter fraud for which he has been very nearly implicated by Mueller’s investigation, may well be a criminal violation. Professor Bowman weighed this possibility in his latest post, though he would disagree with Bowie and argues that violations of existing law are not necessary for impeachment. Said post can be found here.

5bb929d6200000c70101ea90.jpegKean Collection/Getty Images

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The Moscow Project Looms

29 Thursday Nov 2018

Posted by crosbysamuel in Articles, Uncategorized

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charge, cohen, Collusion, conspiracy to defraud, false statements, felix sater, fixer, guilty, house of representative, House of Representatives Permanent Select Committee on Intelligence, Impeachment, individual 1, individual 2, Lawyer, Michael, Moscow Project, Mueller, president, russia, Senate, Senate Select Committee on Intelligence, Special Counsel, trump, Trump Tower

Michael Cohen, President Trump’s former lawyer, pleaded guilty earlier today to a charge of “false statements,” for lying to Congress about the extent of his and President Trump’s involvement in plan to build a “Trump Tower” in Moscow, Russia. Cohen falsely represented, in a letter sent to the Senate Select Committee on Intelligence and House of Representatives Permanent Select Committee on Intelligence, that 1) “The ‘Moscow Project’ ended in January 2016 and was not discussed extensively with others in the Company;” 2) “Cohen never agreed to travel to Russia in connection with the Moscow Project and ‘never considered’ asking [President Trump] to travel for the project;” and 3) “Cohen did not recall any Russian government response or contact about the Moscow Project.” In fact Cohen communicated with Felix Sater, a real estate developer with Russian ties, about the project; told Sater he would travel to Russia; addressed Trump about the possibility of Trump traveling to Russia; and communicated directly with Russian officials about the project.

Obviously this looks bad for Trump. The evidence of these ongoing communications with Russian agents strengthen the case for collusion/conspiracy to defraud in that it helps to establish, at least, that Trump’s confidant and fixer had strong ties to Russia while Trump was campaigning for office, and goes a long way towards establishing that Trump had such ties as well. While that doesn’t get us all the way to conspiracy to defraud, it certainly helps to bring us closer. One email written by Sater in November 2015 about the project may be damning. It read in part: “our boy can become President of the USA and we can engineer it.”

e201bbe0-4806-4aef-a7f0-0a873d9738b7-AP_Trump_Lawyer_Party_Switch.jpgMary Altaffer, AP

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Will the Investigative Torch Pass to the House?

13 Tuesday Nov 2018

Posted by crosbysamuel in Articles, Uncategorized

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acting attorney general, Adam Schiff, attorney general, Collusion, Committees, donald trump, House appropriations committee, house intelligence committee, House of Representatives, investigation, Jeff Sessions, matt whitaker, midterms, Mueller, nancy pelosi, nita lowey, president, russia, zoe lofgren

With Jeff Sessions gone as Attorney General and Matt Whitaker positioned as acting AG, one has to wonder how much longer Mueller will be able to carry on his investigation unhindered. It may be the Special Counsel will have to pass his baton over to the House. But will  House Democrats vigorously investigate?

This article from Vox, written by Ezra Klien, correctly points out that because Democrats took the House but not the Senate, they will have trouble passing legislation into law. Much of what power is left to them is in the  investigation of President Trump. With their new found majority, Democrats are taking over vital investigative committees in the House. New York Democrat Nita Lowey, will chair the Appropriations Committee, and has “a laundry list of potential areas for inquiry. . . . [including the] family separation policy and hurricane relief in Puerto Rico.” California Rep. Adam Schiff will lead the House Intelligence Committee, which has already been engaged in the Trump investigation.

However, Democrats may be reluctant to shift their focus to investigation. Nancy Pelosi, House Democratic Leader, has said that any investigations will be “strategic” aimed at “seek[ing] the truth.” And Rep. Zoe Lofgren, a Democrat from California, expressed a similar sentiment, stating: “if Mueller sends us an exploding bomb, we may have an obligation to deal with that. But absent that, I don’t think the country will be on board with impeachment, and nor should we.” She feels that focusing on the investigation will distract from what “really matters to people.” It may be Democrats are unwilling to focus their energy of uncovering a truth that, even if it leads to impeachment in the House, will fail to cause removal by the Senate.

pelosi.jpgJ. Scott Applewhite

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Stone and WikiLeaks

30 Tuesday Oct 2018

Posted by crosbysamuel in Articles, Uncategorized

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conspiracy to defraud, donald trump, election fraud, Impeachment, investigation, Mueller, president, Robert Mueller, roger stone, russia, russian collusion, Special Counsel, trump, wikileaks

Special Counsel Robert Mueller’s investigators are looking into comments Roger Stone, an adviser to President Trump and self-proclaimed “ultimate political insider,” made to those who called on his political insight. Stone said he knew of WikiLeak’s plans to release information which would affect the 2016 election, apparently referring to the Democratic National Convention emails which were hacked by Russian Intelligence Officials. Roger Stone also claimed to have a relationship with the founder of WikiLeaks, Julian Assange. The natural conclusion to be drawn here, is that a connection between Stone and WikiLeaks is a connection between Stone and Russia, which is ultimately a connection between Trump and Russia. Though Stone has yet to be indicted, he did admit in August that such a thing is possible. The possibility now is greater than it was then, and with Stone’s indictment may come a plea deal and cooperation.

roger_stone_ap_file.jpgANDREW HARNIK/ASSOCIATED PRESS/FILE

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Mueller’s Questions Exclude Obstruction

14 Sunday Oct 2018

Posted by crosbysamuel in Articles, Uncategorized

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donald, Elie Honig, impeach, investigation, Jonathan Turley, Mueller, Obstruction of Justice, president, questions, robert, russian collusion, Special Counsel, trump, written answers

Special Counsel Robert Mueller sent President Trump and his lawyers questions this week regarding collusion between the Trump Campaign and Russian officials. This represents a breakthrough in negotiations between the parties as to the scope of questioning of the President; however it is limited. The President’s answers will only be written. Given Trump’s history of contradictions this may be a safeguard against perjury. Commentators have noted that the series of questions leave out obstruction of justice.

Jonathan Turley, in an opinion piece written for The Hill, has theorized that the absence may indicate Mueller is not pursuing an obstruction charge. His supports his opinion by pointing out that obstruction of justice is a bad fit for the President’s alleged crimes, since the charge is normally applied to the obstruction of some kind of judicial proceeding. Elie Honig, a former federal prosecutor from New York, disagrees with Turley. He theorizes that if Mueller is presenting questions about collusion that must be because he is focused on specific conduct and doesn’t see “wiggle room” for the President in his answers. In his mind, the fact that Mueller isn’t giving questions about obstruction does not mean that he has given up on the charge, but rather that he is preparing for a legal battle that could go to the Supreme Court.

Regardless of Mueller’s motivation, readers would do well to remember that the crimes of obstruction and collusion are intimately involved. If it could be established that President Trump was involved in the Russian election interference, that would go a long way in establishing the mens rea required to convict the President of obstruction of justice — his corrupt influence, if you will.

trumpfirst_opi2jd.jpgKevin Lamarque/Reuters

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Was Mueller’s Appointment Constitutional?

01 Monday Oct 2018

Posted by crosbysamuel in Articles, Uncategorized

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Andrew Milller, donald trump, Impeachment, investigation, marine medvin, Mueller, Obstruction of Justice, paul kamenar, president, robert muelller, roger stone, russian collusion, Special Counsel, Washington D.C.

Marina Medvin, a contributor to Forbes.com, wrote today about a constitutional challenge which has been brought against the authority of Special Counsel Robert Mueller. The challenge was brought by counsel for Andrew Miller, an aide to Roger Stone, who was subpoenaed by Mueller. It comes in three parts: 1) that according to the Constitution, short of a presidential appointment, Congress must create a law empowering the Attorney General to appoint a special counsel and no such law exists; 2) even if such a law does exist, Attorney General Sessions’ recusal is not sufficient to empower Deputy Attorney General Rosenstein to make such an appointment; and 3) the powers which Mueller has utilized are far beyond those appropriate for a Special Counsel and are equivalent to those of a “super U.S. attorney.”

Miller’s argument lost in the district court and he has taken it up on appeal. Mueller filed a brief in response (interested readers can find it here). It is unclear what would happen to Mueller’s investigative findings should his powers be invalidated. The searches and subpoenas he has executed so far, if not backed by constitutional authority, are sure to equate to violations of the 4th amendment rights of his subjects. That being said, the invalidation of his power seems an unlikely result. As Mueller pointed out himself, there is strong precedent for his power, dating back to 1870.

download (1).jpg AP Photo

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Losing a Two-Front War

16 Sunday Sep 2018

Posted by crosbysamuel in Articles, Uncategorized

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campaign chairman, civil suit, conspiracy to defraud, constitution, domestic emoluments, donald trump, foreign emoluments clause, impeach, Impeachment, investigation, Manafort, maryland, Mueller, Obstruction of Justice, paul manafort, plea deal, president, Special Counsel, trump, trump internation hotel, two-front war, u.s. district court of maryland

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

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Getting to Know Jane Raskin

12 Wednesday Sep 2018

Posted by crosbysamuel in Articles, Uncategorized

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bloomberg, defense, donald, donald trump, impeach, investigation, jane raskin, Lawyer, Mueller, president, rudy giuliani, Special Counsel, trump, white collar

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.”

raskin.jpgraskinlaw.com

 

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
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