Tag Archives: Robert Mueller

Mueller’s Endgame: How a Failure to Indict the President Could Lead to Impeachment

31 Wednesday Jan 2018

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By Frank Bowman

Over the past few weeks, the interwebs have been teeming with confident declarations that this or that new tidbit of information amounts to the final proof — or at least another link in the chain of proof — that will allow Special Counsel Robert Mueller to conclude that Mr. Trump has committed the felony of obstruction of justice.  The problem with all this barstool lawyering, a problem sometimes acknowledged but more often ignored or glossed over, is that Mr. Mueller has no independent authority to secure an indictment against a sitting president.

A still more fundamental problem, at least if one hopes for Mr. Trump’s removal from office, is that even a felony conviction would not eject him.  Only impeachment performs that trick.  Therefore, all the fevered speculation about Mr. Mueller’s progress is futile unless there is a way for a prosecutor who cannot indict his most prominent potential target to place the case for that target’s criminality before congress, the only body authorized to determine whether criminality should mean impeachability.

There are at least two ways it could be done, and done in full compliance with both Mr. Mueller’s limited mandate and the internal rules of the Department of Justice.  First, Mueller could prepare a report and recommendation that Mr. Trump be indicted after he leaves office and trust that congress would find means of obtaining the report. Alternatively, Mueller could recommend immediate indictment, fully expecting rejection of that recommendation, and rely on the technicalities of the Justice Department’s own rules to ensure transmission of his recommendation and reasons to congress.

Let’s begin with a quick refresher on the limitations of Mr. Mueller’s office:

  • Mueller is a “special counsel” appointed under Department of Justice regulations, not an “independent counsel” of the Kenneth Starr sort appointed under the now-lapsed post-Watergate Ethics in Government Act of 1978.
  • An “independent counsel” exercised virtually the full powers of the Department of Justice and was not subject to supervisory control by the Attorney General.  Mr. Mueller has only the authority granted any United States Attorney. He remains subject to the chain of command of the Justice Department. In ordinary circumstances, he would answer to the Attorney General. Because Jeff Sessions has recused himself from this matter, Mueller answers to Deputy Attorney General Rod Rosenstein.
  • As special counsel, Mr. Mueller is subject to the “rules, regulations, procedures, practices and policies of the Department of Justice.” And while the regulations accord him an unusual degree of autonomy, his superior, here Mr. Rosenstein, can overrule him if he proposes doing something contrary to DOJ policy.

The “policy” of the Department of Justice, expressed in several legal opinions issued by the Office of Legal Counsel, is that federal prosecutors may not indict a sitting president. An OLC opinion is not “law” in the sense of binding anyone outside of the DOJ itself. But it does bind DOJ employees.  Therefore, if Mr. Mueller were to propose indicting Mr. Trump, that proposal would be contrary to Department policy. Deputy Attorney General Rosenstein could, and almost certainly would, order Mueller not to present the indictment to a grand jury.  Mueller would have to follow that order. Failure to do so would be an entirely proper ground for removing him.

Given this internal restriction on Special Counsel Mueller’s authority, one might ask whether Mueller has the power even to investigate whether Mr. Trump has committed any crime. The answer is plainly yes.  The letter commissioning Mueller charges him with investigating coordination between Russia and the Trump campaign and any crimes, such as obstruction, committed in an attempt to interfere with that investigation. It does not bar him from investigating the activities of persons who may be legally or practically immune from criminal prosecution. In this regard, Mr. Trump is no more immune from Mueller’s inquiries than Russians who might assert diplomatic immunity.

Mueller’s appointment letter also empowers him to prosecute any crimes discovered in the course of his investigation. The only question is whether DOJ rules restrict this authority in the case of a president.

Internal DOJ policy precludes prosecuting a president while he is in office. It does not claim that presidents cannot be prosecuted.  Indeed, any such claim would be untenable inasmuch as Article 1, Section 3, of the Constitution specifically provides that persons impeached “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.” At a minimum, this means that a president may be indicted after he leaves office (subject to any problems created by statutes of limitation, a tricky legal problem for another day).

Mueller’s appointment letter granting him prosecution authority does not require that he prosecute the crimes he discovers immediately. Accordingly, if the Mueller investigation yielded evidence that Mr. Trump committed a crime, Mueller would be entirely within his mandate to prepare a report setting out his findings and recommending that Mr. Trump be indicted as soon as he left office.

The difficulty with this option from the perspective of those hoping to base an impeachment inquiry on Mueller’s work is that he has no independent authority to release such a report to Congress or the public.  And it seems quite likely that a Justice Department under increasing pressure from the White House would make every effort to keep the report secret.  On the other hand, there is nothing in the special counsel regulations or any applicable law that requires secrecy in such a case. If it were to become known that such a report existed, someone in congress would request it.  And if Democrats gained control of either house of Congress in 2018 — a precondition for impeachment in any case — they would also gain the power to subpoena the report.

Suppose, however, that Mr. Mueller were to decide that Mr. Trump has committed crimes and that Congress should know of that conclusion promptly. Suppose further that Mueller were not disposed to rely on the vagaries of midterm elections, and still less to wait for the expiration of the Trump presidency. In that case, there is another path.

DOJ’s special counsel regulations provide that, if a special counsel proposes an action that the Attorney General (here Deputy Attorney General) rejects because it would be “inappropriate or unwarranted under established Departmental practices,” then the Attorney General must notify both the chairs and ranking minority members of both the House and Senate Judiciary Committees of the special counsel’s proposed action and an “explanation” of the reason for rejecting that action.

Hence, Mr. Mueller would be operating entirely according to protocol if, while not actually presenting an indictment to a grand jury, he recommended to Mr. Rosenstein that Mr. Trump be indicted. He would, of course, realize that doing so would contravene an existing OLC opinion. However, there would be nothing untoward if he concluded, with the concurrence of the superb appellate lawyers on his staff, that the OLC opinion should be reconsidered.  OLC conclusions are subject to internal re-evaluation all the time.

Of course, we can fairly predict that Mueller’s arguments, however learned, for changing DOJ policy on this point would be rejected.  But rejection of Mr. Mueller’s recommendation for indictment on the ground that it contravened “established Departmental practices” would trigger the mandatory report to congress required by 28 C.F.R. 600.9. Et voila!  Member of Congress from both parties, and in due course, the public would know that Mueller believed Mr. Trump committed a crime.

As clean as this second approach seems, there are two potentially significant flies in the ointment. First, the mandatory reporting requirement of 28 C.F.R. 600.9 is triggered only “upon conclusion of the Special Counsel’s investigation.”  One reading of this language is that it applies only after the Special Counsel completely wraps up all his responsibilities.  Deploying that interpretation, a Trump-influenced Justice Department could justify withholding congressional notification until Mueller finished not only investigating, but trying, all pending cases. Given that at least Manafort and Gates remain untried, trials could delay things a long while. Alternatively, the reporting requirement could be read as arising once the purely investigative phase of Mueller’s work ends, without regard to the resultant litigation. But that interpretation would carry the day inside the Department only if the person making the call were principled, courageous, and more committed to institutional integrity and the rule of law than to protecting the president.

Regardless of how the reporting requirement were read, if Mr. Mueller thought it central to his mission that his conclusions about Mr. Trump be reported to Congress expeditiously, he could abandon or fast-track pursuit of smaller fry, close up shop, and insist that the Department’s own rules be followed.

The second potential obstacle to this gambit is one not of law, but personal psychology. Mr. Mueller, by reputation a man who operates strictly by the book, might not be willing to formally propose indicting Mr. Trump knowing that the proposal would be summarily rejected as violating existing DOJ policy.  On the other hand, as a lawyer of no mean talent, he might find considerable satisfaction in deftly employing the letter of the law in the service of the Republic.

I like to think that, as a both an undoubted patriot and a career public servant not unaccustomed to harnessing formalism to larger ends, Mr. Mueller would not be averse to engaging in a bit of bureaucratic Kabuki theater in the interests of revealing Mr. Trump’s conduct to congress while there is yet time to do something about it.

We shall see.

 

 

Much ado about titillating tidbits in the Mueller investigation

26 Friday Jan 2018

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By Frank Bowman

In the last week,  several items surfaced in relation to the Mueller investigation that set the media atwitter, in both the traditional and social media senses.

First, as my invaluable RA and blog co-author Sam Crosby noted, the New York Times reports that last June Mr. Trump ordered the firing of special counsel Robert Mueller, but backed down after White House Counsel Donald McGahn threatened to resign if he followed through with the order.  Since the story broke, commentators have tended to fall into three camps.  Mr. Trump himself called the report “fake news.” (Notably, neither Mr. McGahn nor anyone else from the White House has so far denied its veracity.)  Those who accept the report as true but are disposed to defend Mr. Trump have argued that he was just blowing off steam, which is no offense.  Those who view Mr. Trump less favorably have suggested either that this event is evidence of Mr. Trump’s state of mind in relation to obstruction of justice (i.e., it tends to prove that actions like firing James Comey were undertaken for the purpose of obstructing the Russia investigation), or that the rescinded order was itself an attempt to obstruct justice.

On this one, I’m more sympathetic than usual to the pro-Trump camp. Standing alone, Trump’s reported order is of no consequence.  NEWS FLASH: President decides to do something politically stupid and possibly illegal, but is talked out of it!  That’s not a crime. It’s not an impeachable offense. At most it demonstrates, as if more demonstration were needed, the extraordinary variability of our wayward chief executive’s brain.

As for the multiple commentators straining to make Mr. Trump’s almost-firing of Mueller part of the mosaic of evidence in a case of obstruction of justice, well, yeah, I guess it adds a teensy bit to the argument that Mr. Trump had a corrupt purpose in firing Mr. Comey.  But, let’s face it, not much.  Bob Mueller’s job, after all, is to be a highly public thorn in the president’s side.  The temptation to sack him would be intense, even for a president who was both entirely innocent and far more temperate than Mr. Trump.  Nearly yielding to that temptation, but pulling up short of actually doing it, just doesn’t prove much.

The week’s other big Trump-Mueller story was Mr. Trump’s apparently off-the-cuff declarations that he’d be happy to talk on the record, under oath, to Mueller’s investigators.  This was treated as earth-shaking news, perhaps signaling confidence by White House counsel and Mr. Trump’s private lawyers that the Mueller investigation would be winding up soon with nothing untoward to report about Mr. Trump.  This interpretation survived for a few hours — roughly the period it took for Mr. Trump’s lawyers to pick themselves up off the floor, swear colorfully at their client’s incorrigible refusal to listen to their advice, knock back a neat whiskey or two, and then get on the phones to start walking the story back.

Personally, I put Mr. Trump’s assertion that he looks forward to talking with the Mueller team, under oath or otherwise, in the same bin with his statements  during the campaign that he would release his tax returns once they were no longer under audit.  Mr. Trump’s whole life is a saga of promises blithely made and even more blithely broken.  His egotism may persuade him that he could dance nimbly through the minefield of an encounter with really good prosecutors.  But my bet is that his lawyers will dissuade him from a voluntary interview by Mr. Mueller, and that they will resist any effort to compel an appearance before a grand jury.

In short, nothing much of consequence happened this week on the Mueller front. Stay tuned.

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Obstruction of justice matters only in an impeachment inquiry

05 Friday Jan 2018

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For the past several days, the media has been ablaze with stories touting new details of Mr. Trump’s concern about the Russia investigation and his alleged efforts to quash it.  For example, Mr. Trump apparently believed that Attorney General Sessions could control the investigation and shield Mr. Trump, and therefore sought to prevent Sessions from recusing himself by sending White House counsel Donald McGahn to lobby Sessions against recusal.  Other bits and pieces are solidifying the proposition that Trump fired Comey in order to stop or impede the Russia investigation.

Unsurprisingly, many commentators have been declaring one or the other of these revelations definitive proof that Mr. Trump is guilty of obstruction of justice. The purpose of this post is not to assess the current state of the evidence.  Rather, I want to re-emphasize several points I made last summer:

1) While it is quite possible (contrary to the ill-considered declarations of folks like Alan Dershowitz) for a president to commit the crime of obstruction of justice, the official position of the Department of Justice is that a sitting president may not be criminally indicted.  Robert Mueller, whose appointment makes him subject to DOJ rules and regulations and subordinate to Deputy Attorney General Rod Rosenstein, has no authority to disregard that DOJ position.  Accordingly, no matter what evidence Mr. Mueller uncovers, it is vanishingly unlikely that he would even attempt to indict Mr. Trump for obstruction.

2) Even if Mr. Trump were indicted and convicted of obstruction, such a conviction would not result in his removal from office.  Only impeachment can accomplish that end.  Only Congress can impeach and remove a president.  And therefore the real question is what Congress will choose to do with whatever Mr. Mueller uncovers. But before it could do anything, it would have to have access to Mueller’s results.

3) Absent a formal indictment, the most Mueller could do in the criminal context is name Mr. Trump as an unindicted co-conspirator in an indictment charging others with obstruction.  This was the tack taken against Richard Nixon by Watergate Special Prosecutor Leon Jaworsky, but it was controversial at the time and is disfavored by DOJ policy.  We cannot predict with any certainty whether Mueller might try this approach, or whether Deputy A.G. Rosenstein would approve it.  Should Trump be named as an unindicted co-conspirator, that designation would formalize a legal conclusion by the Mueller prosecution team and give that conclusion a grand jury’s stamp of approval.  Critically, in the course of litigating the case against those formally indicted, the facts regarding Mr. Trump’s involvement would be revealed.

4)  If Mueller’s team assembles a convincing case that Mr. Trump did commit the crime of obstruction of justice, but is unwilling either to indict him or name him as an unindicted co-conspirator, there is some uncertainty about whether, and if so how, Mueller’s conclusions and supporting evidence would become available to anyone outside the Justice Department. Ordinarily, out of concern for the privacy interests of persons not charged, the Department does not disclose the facts of investigations that don’t result in charges.  James Comey’s choice to discuss publicly the details of the Clinton e-mail investigation was contrary to DOJ policy and would have been a perfectly sound reason to fire him — if it had been the real reason. Moreover, DOJ regulations on the appointment of special counsel make no provision for reports to congress or the public.

All that being said, there is little, if any, doubt that a committee of the House of Representatives engaging in an impeachment inquiry could request, and if necessary subpoena, Mueller’s materials and secure his testimony about his conclusions.  But, as I have observed before, no such inquiry is at all likely to occur so long as Republicans control the House.  Only if Democrats flip at least the House of Representatives will any of this chatter about presidential obstruction of justice have any practical consequence.

Frank Bowman

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The Flynn guilty plea — don’t break out the champagne just yet

01 Friday Dec 2017

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When news broke this morning that Michael Flynn, former National Security Adviser, had pled guilty to lying to the FBI, was cooperating with the Mueller probe, and was prepared to testify that Trump ordered him to “contact the Russians,” the stock market dropped 350 points. Presumably  traders feared that Flynn’s cooperation would lead directly to impeachment proceedings and all the attendant governmental disruption and economic uncertainty.

After an hour or two, Wall Street’s pulse steadied and the market went back up. There is a lesson for the rest of us in this financial spasm.

First, Flynn’s decision to flip – to plead guilty to a felony violation of 18 U.S.C. 1001 and to enter a cooperation agreement with the government – is potentially a very big deal and potentially very bad news for Mr. Trump and those close to him.  Flynn was an early supporter of Mr. Trump, was a campaign insider, and was one of the first people to whom Trump publicly offered a position after the election. Flynn had extensive contacts with Russian officials, including Vladimir Putin, before he joined the Trump camp. We know, and Flynn has now officially admitted, that he had contact with high Russian officials such as Ambassador Sergey Kislyak after the election.

Therefore, if the Trump campaign was actively colluding with Russia to affect the 2016 election, it’s a fair bet that Flynn might know about such things. And that would be a big deal.

But this is the Trump campaign we’re talking about here.

In an ordinary presidential campaign, overtures to a traditionally hostile foreign power would be inconceivable. If such a thing  were to occur, it would only be after careful consultation by the candidate with his or her senior foreign policy advisers — which, for Trump, would have included Michael Flynn. But if we know anything about the “Trump campaign,” it is that it had none of the attributes of a normal campaign apparatus.  Little organization, no meaningful subject matter expertise, and no clear lines of authority. It was, at its core, just the Trump family and a ragtag of opportunistic second-raters, many of whom — notably Donald Trump, Jr., George Papadopoulos, and Carter Page — were prone to thoughtless freelancing in foreign policy matters far beyond their competence.

Therefore, even if some Trumpists were colluding with both hands, it’s entirely possible that Flynn would know nothing at all about it.

Indeed, among the many notable features of Flynn’s plea agreement and the accompanying statement of offense is the complete absence of any reference to any event prior to the November 2016 election. Flynn pleads guilty only to lying about contacts with the Russian ambassador in December 2016.  Additionally, in the statement of offense he admits to lying about December 2016 contacts with foreign officials (including Russians) concerning an Egyptian effort to secure UN Security Council condemnation of Israeli settlements, and about his lobbying work for the Turkish government.

Moreover, the report that spooked Wall Street — that Flynn will testify that Trump directed him to “contact the Russians”  — doubtless seemed earthshaking because people read it to mean that Trump directed Flynn to contact the Russians about influencing the election.  But that reading is not supported by the plea documents. Flynn admits that “a very senior member of the Presidential Transition Team” (later reported to have been Jared Kushner) directed Flynn to meddle in diplomacy on the Egypt-Israel Security Counsel resolution, after the election and before Trump took office.  If true, and even if Trump himself passed the instruction on to Flynn through Kushner (which seems quite probable), that’s extremely poor form in a president-elect, but without more I can’t see how it is either criminal (except under the never-enforced Logan Act) or impeachable.

So, if Flynn’s plea is to matter to anyone other than himself, it will be because he has tales to tell Robert Mueller that none of us yet know about.  Despite all the feverish speculation, no one other than Mueller’s people and Flynn himself has any real idea what those tales may be. Moreover, the fact that, even though Flynn’s plea had been foreshadowed for weeks, Mr. Trump took no dramatic step like firing Mueller or pardoning Flynn speaks volumes.

An ordinary president, one who felt constrained by traditional norms of American political life, might refrain from doing such things even if he knew that Flynn could damage him severely.  Mr. Trump, one need scarcely say, is not an ordinary president.  He is rarely even aware of presidential norms and he violates those he is aware of with positive glee.  Moreover, he is a congenital risk-taker.  So fear of the sort of backlash that followed Nixon’s Saturday Night Massacre firing of Archibald Cox will worry him less than it would an ordinary man.  In the last two years, he has violated every rule of American political life and ignored every warning about the probable catastrophic consequences of such behavior.  And yet, here he is, President of the United States.

Consider for just a moment this question: If Flynn has a smoking gun that could plausibly bring down the Trump presidency or produce major criminal indictments against anyone Trump really cares about — a tiny circle, I agree, but one that surely includes himself and perhaps his natural children — do we really imagine that Mr. Trump would not long since have reacted spasmodically to news of Flynn’s impending cooperation?  Is it realistic to think that if Trump genuinely believed Flynn to present a deadly danger that he would not have gambled on a Mueller firing or a round of pardons?

General Flynn surely does have tales to tell, or Robert Mueller would not have made so favorable a plea agreement with him.  And what he will say will doubtless help unwind the Russia story and do no good to the reputation of Mr. Trump and his intimates. But Mr. Trump’s forbearance strongly suggests that Flynn’s revelations will not be of the explosive variety so many are confidently predicting.

If there is a road to Mr. Trump’s removal from office, it is going to be a long and tortuous one.  The Flynn plea is but one waystation, and will likely provide no shortcut to the ending many crave.  In short, until we know more about exactly what Mr. Flynn will say, people should moderate their expectations.

Frank Bowman

The Russian collusion investigation: Bumbling grifters & the risks of keeping it all in the family

12 Sunday Nov 2017

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Earlier this week, I had the pleasure of doing an interview with Canada’s CTV network on developments in, and speculations about, the progress of the Mueller investigation.  The anchor wanted to talk about the testimony of  former Trump campaign foreign policy advisor, Carter Page, to the House Select Committee on Intelligence, Attorney General Session’s upcoming appearance before the House Judiciary Committee, and the rumor that an indictment of former Trump National Security Advisor Michael Flynn (and possibly his son) will soon be forthcoming.

I can’t say that I had anything particularly novel to tell Canada’s TV audience about any of these subjects, but reflecting on the interview has provoked a couple of observations.

First, as I have had occasion to observe before, passionate opponents of Mr. Trump who confidently expect (or even fervently hope) that the Mueller investigation of Russia-Trump campaign collusion in the recent election will produce some smoking gun that will lead naturally to articles of impeachment should moderate their expectations.  So far, at least, the picture is not one of sophisticated, nefarious, high-level Trump operatives working hand-in-glove with agents of the Russian government, but of something altogether murkier and more ambiguous.

To be sure, there exists nearly irrefutable evidence that the Kremlin was working hard through every means at its disposal to harm the Clinton campaign and help Mr. Trump. Mr. Putin’s repeated denials that Russia was meddling and Mr. Trump’s on-again–off-again acceptance of those denials may convince his endlessly credulous base, but outside those blinkered precincts it merely prolongs the bizarre spectacle of an American president siding with the dictator of a hostile foreign power against the conclusions of his own intelligence agencies.

(As an aside, when I began drafting this post, Mr. Trump had just said that he accepted as sincere Putin’s denial of meddling.  Mere hours later, Trump straddled the question, saying that he accepts both the findings of U.S. intelligence and Putin’s sincerity.  This waffling is either: (a) Yet another example of Mr. Trump’s persistent tendency to say whatever he thinks will please the audience immediately in front of him, with no thought for either truth or how today’s effort to ingratiate will affect his own or the country’s interests tomorrow; (b) Yet another example of Mr. Trump’s seeming inability to engage in rudimentary critical thinking — the idea that the Russian government could engage in a wide-ranging effort to influence the American presidential election without the knowledge or approval of Vladimir Putin is laughable, and thus it is impossible for U.S. intelligence to be right and for Putin to be sincere; or (c) Just another manifestation of Mr. Trump’s knee-jerk rejection of any fact, however firmly established, that might suggest his election victory was due to anything other than his own personal merits. My best guess is that all three factors were at work.)

But it is not a crime or an impeachable offense merely to be the unwitting beneficiary of foreign efforts to damage one’s political adversaries.  What must be shown to prove a crime is that affiliates of the Trump campaign consciously aided or sought to aid the Russians’ subversion and violated some statute in the process.  What must be shown for any of this to amount to an impeachable offense is that Mr. Trump himself approved, was aware of and failed to stop, or later tried to cover up culpable conduct by his subordinates.

It is too early to assess the ultimate question about whether culpable collusion occurred.  But the emerging (though far from complete) evidence suggests at least three points about the Trump campaign’s Russian contacts:

  • Repeated claims by Mr. Trump and his subordinates that there were no contacts between persons associated with the Trump campaign and Russian officials or agents were simply untrue.  As the Chicago Tribune summarizes, at least nine people in the Trump orbit had Russian contacts during the campaign or transition.
  • At least some of those contacts involved persons high up in the campaign hierarchy or personally close to Mr. Trump, people like Donald Trump, Jr., Jared Kushner, Paul Manafort, and Jeff Sessions.  Others, like George Papadopoulos and Carter Page, had impressive-sounding titles like “foreign policy adviser,” but  were in reality on the fringes of what was always a barely coherent campaign organization. Nonetheless, it is now clear that campaign higher-ups, like Senator Sessions, Stephen Miller, Hope Hicks, J.D. Gordon, campaign manager Cory Lewandowski, and national campaign co-chair Sam Clovis, knew about the Page and/or Papadopolous contacts.
  • Whether contacts between Trump surrogates and Russian actors ever produced concrete results, such as the direct transfer to the Trump campaign of negative information about Secretary Clinton or her team, remains unclear … and frankly seems doubtful.  What is clear is that multiple members of the Trump entourage were willing and eager to receive that kind of material — even when it was plain that the source would have to have been Russian intelligence services, and that the means employed to obtain the material would likely have involved violations of American law. The first proof of their eagerness was the now-famous Donald Trump Jr. – Kushner – Manafort meeting with the Russian lawyer.  Now Mr. Papodopoulos admits to having received a purported Russian offer of “dirt” on Secretary Clinton in the form of emails, and to have passed the offer along to Trump campaign officials.
  • If, in the end, Trumpists and Russian emissaries never quite did a deal that produced active cooperation or transmission of opposition research “deliverables,” efforts to cover up all the active flirtation could nonetheless amount to criminal obstruction of justice and even impeachable conduct.  That’s the thing to watch for in coming months.

Second, the overriding impression, reinforced by each new revelation, is that both the inner circle of the Trump campaign and the outer rings of staff, consultants, and advisers consisted primarily of pathetically ill-informed amateurs like the Trump children and in-laws, eccentrics like Carter Page, desperate wanna-be‘s like George Papodopoulos, or outright scoundrels like Paul Manafort.  Even those with long government resumes and conventional credentials, like Trump’s short-tenured National Security Adviser Michael Flynn and Senator Jeff Sessions, gravitated to Trump because, in Flynn’s case, he had been expelled from the circles of power for persistent bad judgment, and in Sessions’ case, he was a fringe player in the Senate, with views on many subjects too extreme even for for a caucus edging steadily to the right, and no path to any meaningful leadership role.

Moreover, the one character trait common to virtually all of this ill-assorted crew is greedy opportunism. The Trump family, from the paterfamilias on down, has profited by skating on or over the edge of legality for decades and has been monetizing its connection to the presidency ever since the election.  Manafort’s long career as apologist for thugs and dictators should have disqualified him from a role in any American presidential campaign, and predictably has both embroiled Trump in controversy and produced an indictment founded in part on money laundering and tax evasion. Page reportedly combined his Russian overtures for Trump with efforts to secure private deals for himself.  Michael Flynn is under investigation for an array of dodgy, but potentially lucrative, deals, as well as illegal failures to report work on behalf of authoritarian regimes like that of ascendant Turkish dictator Recip Erdogan.

The mix of incompetence, bad judgment, blithe disregard of normal legal and ethical boundaries, and personal greed in the Trump campaign is both a gift and an impediment to any effort to impeach Mr. Trump.

On the one hand, it is increasingly obvious that people high and low in the Trump campaign were trying quite hard to collude with a hostile foreign power to win a presidential election.  On the other hand, it may prove that the Russians simply didn’t trust these escapees from the Island of Misfit Toys enough to enter into any active collaboration, preferring to feed toxic misinformation to the American electorate indirectly through Wikileaks and directly through social media.  Now that Mr. Trump has shed virtually all of the primary actors in the Russian contacts — with the notable exceptions of his family members — he can disavow former staffers’ conduct as the inconsequential bumbling of fringe nobodies.

BUT — having foolishly chosen to ignore settled norms against nepotism in the White House, Mr. Trump is probably stuck with whatever the kids have done or may yet do. Even an ordinary father would shrink from throwing his children overboard and into the clutches of waiting prosecutors, but in Mr. Trump’s case, ordinary considerations of paternal affection are infinitely complicated by the fact that the Trump campaign was, and the Trump Organization remains, a family business … and the kids, notably including son-in-law Jared Kushner, are privy to their secrets.  Perhaps Ivanka or Don Jr. might be willing to take a fall for dear old dad.  Were I Mr. Trump, I would not bet that, at the last extremity, young Mr. Kushner would do the same.

Thus, Mr. Trump will never be able to make a clean break from the Russian meddling investigation. Some of its central figures will remain close to him.  He will continue defending them.  And as in Watergate, it may prove that the cover-up, rather than the original wrong, will be his undoing.

Finally, it would be easy to dismiss the near-universal obsession of those around the Trumps with self-enrichment through politics as a side issue.  For two reasons, it’s not.

First, as Mr. Manafort recently discovered, the United States has a web of laws that regulate, and often criminalize, aspects of the “deals” he and his ilk are so eager to make.  Those laws are a tool box for Robert Mueller’s prosecutors, and the questionable financial motives and maneuvers of those involved in contacts with Russian representatives will provide legitimate grounds for inquiring deeply into financial matters the Trumps would surely prefer remain hidden.

Second, to the extent Mr. Mueller’s investigation or other sources reveal that Mr. Trump and family have used the presidency for personal profit, such disclosures implicate at least two grounds for impeachment.  The most obvious of these is violation of the emoluments clauses.  But I would go a bit further.  I do not believe that a technical violation of, for example, the foreign emoluments clause of Article I, Section 9, is required to make out an impeachable offense if it could be shown that, as James Madison put it, the president “pervert[s] his administration into a scheme of peculation.”

I will expand on this latter point in later posts.  Stay tuned.

Frank Bowman

 

 

 

The Manafort Indictment & Impeachment

30 Monday Oct 2017

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The internet is buzzing with the news that former Trump campaign manager, Paul Manafort, and his associate, Rick Gates, have been indicted for conspiracy to defraud the United States, money laundering, and a variety of other federal crimes. Of perhaps equal significance, former Trump campaign foreign policy advisor, George Papadopoulos, pleaded guilty to making false statements to the FBI in denying contacts with Russian agents.

It is natural to wonder what effect these developments might have on a potential impeachment case against Mr. Trump.  Nonetheless, perhaps the main point to keep firmly in mind is that it is far too early even to make informed speculations on that ultimate point.  For the moment, I’d offer only these tentative observations:

First, as a former federal fraud prosecutor, I am impressed with the speed at which the Mueller investigation is moving.  The Manafort / Gates indictment describes a very complex set of international and domestic transactions.  Cases like this commonly take years to put together.  Mueller’s team sewed up this first indictment in five months.

Second, I’m also impressed with the apparent solidity of the case against Manafort and Gates.  Defense counsel will have their say, but on the face of it, this is a stout case.  It is very hard to see how Manafort and Gates beat this.

Third, the charges are very serious.  Manafort in particular is facing serious prison time.  It is, of course, a fool’s game to predict what sentence a white collar defendant will ultimately receive, but the Federal Sentencing Guidelines provide at least a yardstick for the kind of sentence a judge would consider upon conviction.

A reasonable guesstimate of the guidelines calculation for Manafort would put him at over ten years in prison.  A glance at the indictment suggests that the money laundering guideline would probably drive the calculation.  That guideline, 2S1.1, is notoriously tricky, but one could reasonably, if not certainly, assume a base offense level of 8  + 20 levels from 2B1.1 for $18 million laundered.  If you add 2 for 3C1.1 obstruction (false statements) and 4 for aggravating role under 3B1.1, that yields an offense level of 34.  Which equates to a guideline range of 151-188 months, or 12 ½ to 15 ½ years.  There are a variety of other factors that could push this number up or down considerably, and judges are not obliged to sentence within the guideline range, but as I say, Mr. Manafort and his attorneys will certainly have to take the guidelines as a serious benchmark of the kind of sentence an ill-disposed judge could impose.

Fourth, many commentators have observed that the point of indicting Manafort and Gates first is to pressure them into cooperation against others, potentially including Mr. Trump. Without presuming to read the minds of Mr. Mueller and his colleagues, this seems a reasonable hypothesis.  That said, it is interesting that Manafort and Gates let themselves be indicted rather than working out a pre-indictment plea agreement as Mr. Papadopoulos apparently did.  This is not to say that Manafort and Gates will never “flip,” but it does mean that they are resisting for now, and could persist in refusing cooperation no matter what happens.  At a minimum, Mueller may have to go to trial and convict one or the other or both before they agree to cooperate.  Which could take a long time.

Fifth, the subject matter of the Manafort / Gates indictment is not collusion of the Trump campaign with Russia. Rather, it is Mr. Manafort’s sleazy, but very lucrative, relationship with corrupt Ukranian politicians. Of course, Mr. Trump and his supporters have already been quick to note the absence of a “collusion” angle in this indictment.  But what I find interesting, and very suggestive, is that the indictment makes a point of describing the Ukranian group paying Manafort as pro-Russian.  Legally, that point is irrelevant.  Politically, it has two obvious points: It helps rebut any claim that, in indicting Manafort, Mr. Mueller’s team is going beyond the scope of its charge, which is to investigate Russian efforts to influence the American election and any collusion by the Trump campaign with those efforts.  If challenged, Mueller can point out that Manafort, Trump’s campaign manager, had a long history of dodgy, and in some respects criminal, connections with a pro-Russian party in a former Soviet republic, a point plainly relevant to the larger investigation.

My second, and far more speculative, reaction to the indictment’s pointed insistence on the Russian connection is that it is a direct signal to those around Mr. Trump who have Russian connections, but have not yet faced indictment — don’t get comfortable, we’re coming for you.

Finally, the other message in this indictment that I suspect is sending chills down the spines of Mr. Trump and many of his associates and family members stems from the nature of the charges themselves.  This indictment demonstrates both the incredibly broad reach of the federal criminal law in the area of financial crime and the professional competence of Mueller’s team.  Mr. Trump, his family, and retainers may not have engaged in the precise forms of financial shenanigans revealed in this indictment, but given Mr. Trump’s long history of skating on or over the edge of legality, it would be surprising indeed if at least some had not infringed on federal criminal law in analogous ways.

With the Manafort indictment, Mueller and his team have sent a blunt warning.  If the Trumps have financial skeletons, they will be found.

Frank Bowman