Monday, December 10, 2018

It Cannot Stand

The release of the sentencing memos by the Southern District of New York for Michael Cohen has launched a flurry of data and expectations about what could or will happen to the people who surround Trump, and inevitably, what will happen to Trump himself.  Trying to summarize it all is very difficult, but I think Adam Davidson at The New Yorker has a pretty good handle on it.

Even if we never learn another single fact about Trump, his business and campaign, and any collusion with Russia, it is now becoming clear that Trump’s bid for the Presidency was almost certainly designed, at least in part, to enrich Trump, and that he was willing to pursue the political interests of a hostile foreign power in order to make money. This scheme was executed ineptly and in ways that make it highly likely that the intelligence agencies of Russia, as well as several other nations, have been able to ferret out most of the details. This means that Trump and the people closest to him have been at enormous risk of compromise.

We will learn more facts, no doubt—many of them. Mueller has revealed only a few threads of the case. He has established that Cohen spent the months between September, 2015, and June, 2016, actively engaging the Russian government to exchange political favors for money, and that, throughout this period, Cohen routinely informed Trump of his efforts (and presumably, though it’s unstated, received Trump’s blessing). This was the precise period in which Trump’s candidacy shifted from humorous long shot to the nominee of the Republican Party. Mueller’s filing also contains suggestions that people connected to the White House, possibly including the President, knew of Michael Cohen’s lies to Congress and federal investigators, and, also, that White House officials stayed in contact with Manafort, who had been revealed to be in close touch with a known Russian intelligence asset.

This is a lot. But it’s not the complete narrative. It is not clear what happened after the notorious Trump Tower meeting of June 9, 2016. Cohen appears to have been pushed aside, and no longer to have played the role of intermediary. Does this mean that Trump insisted that his team shut off all contact with Russia? Or did he hand the portfolio over to a more trusted staffer?

[…]

Mueller’s filings do mark a different sort of end. We are at the end of reasonable debate about whether Trump is hopelessly compromised. As Mueller’s filings encircle the President, the special counsel surely knows he is at ever-greater risk of being fired. Presumably, he wouldn’t have released memorandums as damning as these if he weren’t prepared to make a fuller case. Each filing fills in the over-all picture in ever more granular detail. It seems reasonable to assume that we haven’t yet learned the most disturbing facts. But, even if we learn nothing more, we are already in an unbearable condition. The President of the United States knowingly and eagerly participated in a scheme with a hostile foreign leader who he knew was seeking to influence the Presidential election. Trump sought to profit politically and financially, many of his closest subordinates executed this effort, and he then was aware of and, it seems likely, encouraged an illegal effort to hide these facts. His reckless, unpatriotic actions have left him compromised by at least one but likely many foreign powers and have left his election open to reasonable questions about its legitimacy. And, every day, he sets policies and makes decisions that have an impact on the lives of all Americans and the fortunes of the very autocrats who hold sway over him. It cannot stand.

The scary part of all of this is that we as a nation haven’t faced this sort of threat to the very foundation of our democracy in our collective lifetimes.  Watergate was big and dangerous, too, but at the least the central figure in it — Richard Nixon — still bore some allegiance to the system of our government and yielded to the rule of law, ultimately abiding by the rulings of the courts and the Supreme Court.  And when he went, he went without threatening to hole up in his office, daring armed officers to drag him out by his heels.

We can’t be that assured about Trump.  For one thing, he has an embedded media operation that will back him no matter what.  Second, we’re seeing that his supporters at various state and local levels are willing to cheat — albeit clumsily — to win an election, and of course he had an entire foreign government at his disposal to win the last one.

So dreaming about the chances of Beto O’Rourke or debating the ages and merits of Joe Biden and Bernie Sanders are nothing compared to the fact that we are about to embark on a presidential campaign that has all the earmarks of one that kept Robert Mugabe in office for generations.

Which means that we need to win the next election or face the real possibility that it will be the last real one we have.

Tuesday, December 4, 2018

Hanging By His Thumbs

As I noted last week, Trump may be in more trouble for trying to cover up his crimes than the crimes themselves.  Now it looks like his tweets could open the door to getting him on obstruction of justice and witness tampering.

Trump took to Twitter Monday morning, haranguing special counsel Robert S. Mueller III and witnesses to his ongoing Russia investigation. His tweets have become a common morning occurrence, particularly in recent weeks. But legal experts are calling Monday’s missives a newsworthy development that amounts to evidence of obstructing justice.

Trump’s first statement went out after Michael Cohen, his former personal attorney who pleaded guilty last week for lying to Congress about the president’s real estate project in Russia. In his tweet, Trump alleged that Cohen lied to Mueller and called for a severe penalty, demanding that his former fixer “serve a full and complete sentence.”

After the overt attack on Cohen came a tweet encouraging Roger Stone, a longtime adviser to Trump, not to become a witness against him:

“’I will never testify against Trump.’ This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about ‘President Trump.’ Nice to know that some people still have ‘guts!’”

Norman Eisen, a senior fellow at the Brookings Institution, said that the most striking thing about Monday was that there were two statements in proximity.

“It comes very close to the statutory definition of witness tampering,” he said. “It’s a mirror image of the first tweet, only he’s praising a witness for not cooperating with the implication of reward,” he said, adding that Trump has pardon power over Stone.

“We’re so used to President Trump transgressing norms in his public declarations,” Eisen said, “but he may have crossed the legal line.”

[…]

Attorney George Conway, husband of White House counselor Kellyanne Conway, referenced the federal statute most likely to create legal liability for Trump: 18 U.S.C. §§ 1512, which outlines the crime of witness tampering.

What is the law?

Tampering with a witness is obstruction of justice.

It’s a federal crime for an individual to intimidate, threaten or “corruptly persuade” another person with the goal of influencing or preventing his or her testimony.

Did Trump break it?

Historically, there are plenty of cases where similar statements were used as part of an obstruction-of-justice prosecution, according to former acting solicitor general Neal Katyal.

Even if Mueller could technically satisfy the statute, few prosecutors would make a congressional referral based on tweets from the president alone.

Instead, Monday’s slew of tweets probably will be used to evaluate whether Trump’s intent was “corrupt.” They will also be used to show a pattern by Trump to interfere with law enforcement to serve his personal end, Katyal said.

I can’t decide if Trump is unaware of the liability he’s exposing himself to, doesn’t care (“Neener, neener, I’m the president and you can’t touch me!”), or he’s fully aware of it and is doing it on purpose in the mistaken belief that somehow his tweeting will damage the Mueller investigation and make it impossible for the prosecutors to empanel a jury.  Or, maybe, as the article suggests, he’s just melting down.

In any case, it makes you wonder where the hell his lawyer is in all this.

Friday, November 30, 2018

Seeing A Pattern Here

Josh Marshall may be on to something.

Sometimes it’s worth stepping back and stating the obvious. Over the course of these thirty months of cover-ups, every player in the Trump/Russia story has lied about their role in the conspiracy. And not hedging and spinning fibs but straight up lies about the core nature of their involvement, their overt acts. Most – though here what we know is a bit more tentative – seem to have lied under oath, whether to congressional committees or a grand jury. Not a single one of them told a story that wasn’t eventually contradicted and disproved. Not a single one.

Who? Well, let’s see. Donald Trump, Jr., Michael Cohen, Michael Flynn, George Papadopoulos, Donald Trump, Jerome Corsi, Roger Stone, Paul Manafort, Rick Gates, Carter Page, Jared Kushner. These are ones who lied, the ones we can state definitively. I’m not including the marginal players, folks like Dutch lawyer Alex van der Zwaan. I’m not including those who just never spoke at all – at least not in public.

His inevitable conclusion is that they’re all guilty.  Perhaps not of a crime, but an innocent person doesn’t risk criminal charges by lying.

Then again, there’s Trump who lies about everything without even thinking about it.  It’s not even to cover up suspicious activity; it’s just his natural state.  Does that mean he’s guilty?  That’s a bit harder to prove, but it does mean that convicting him of a crime, whether it’s collusion with a foreign government to win an election or taking a lot of money from unsuspecting and gullible people for a fictional university degree, is a lot harder because you have to prove criminal intent.  And it’s hard to prove that for someone who lies by nature, the same way some people fart.

So I think this is how it’s all going to end: Trump will be convicted — or at least indicted — for serial lying, not for the actual thing he’s lying about.  Trump’s defenders have already come up with a way to dismiss it, but those were the same folks who went after Bill Clinton and demanded his head for lying about his affairs, so take that for what it’s worth.  It’s an old song; it’s what’s been the downfall of just about everyone else who’s had scandal or questions arise about their behavior: the lying is what does it.

Thursday, November 29, 2018

In And Of Itself

Offering a pardon to a defendant sure sounds — at least to me — like an attempt to obstruct justice.

He’s never discussed a pardon for Paul Manafort, President Trump said Wednesday — but it’s “not off the table.”

“It was never discussed, but I wouldn’t take it off the table. Why would I take it off the table?” the president said during an Oval Office interview.

He ripped special counsel Robert Mueller’s probe and charged that Manafort, former political adviser Roger Stone and Stone’s associate Jerome Corsi were all asked to lie by the special counsel.

“If you told the truth, you go to jail,” Trump said.

“You know this flipping stuff is terrible. You flip and you lie and you get — the prosecutors will tell you 99 percent of the time they can get people to flip. It’s rare that they can’t,” Trump said.

“But I had three people: Manafort, Corsi — I don’t know Corsi, but he refuses to say what they demanded. Manafort, Corsi and Roger Stone.”

“It’s actually very brave,” he said of the trio. “And I’m telling you, this is McCarthyism. We are in the McCarthy era. This is no better than McCarthy. And that was a bad situation for the country. But this is where we are. And it’s a terrible thing,” Trump added.

It all comes down to the simple fact that if there was no crime committed, then these people would have no reason to negotiate a plea deal and there would be no reason for Trump to offer a way out of this for his minions.  But dangling a pardon in front of Manafort is basically saying, “Hey, no matter what they do to you, I’ll take care of you.”

Actually, that would apply only if Trump had the same moral scruples as Michael Corleone.  But he doesn’t.  Trump has screwed people out of all kinds of deals and his word isn’t worth shit.  So one of the reasons Manafort and the rest are coming up with deals is because they know they’re dealing with an honest broker in Robert Mueller.