Was Alabama an Aberration? Or Is It a Sign of a Blue Wave?

Now that we’ve celebrated Jones defeating Moore, was the Alabama election an isolated incident of insanity, or can we read something more nationally? Let me point to two recent polls that show a growing national backlash against Trump, plus a recent poll showing the tax plan is historically unpopular.
1. Two polls (Pew and Monmouth) show Trump down to 32% approval. That number is historically low — very low — and the trajectory is toxic. The Pew poll shows a staggering 63% disapproval rating, and Polling in Nixon’s era was not as reliable, but these numbers are far worse than Nixon’s, who was in the low 40s relatively late in the Watergate investigation. But Trump is not Nixon. He won’t resign. The question now is GOP self-preservation. I’d guess that the red-line panic number is in the high 20s. We’re not there yet, but if there are more indictments and guilty pleas…
2. The Pew poll shows danger for Trump on the Russia investigation. “A majority (59%) thinks [improper Russia] contacts definitely or probably occurred; 30% think they definitely or probably did not happen. In views of Mueller’s investigation, 56% are very or somewhat confident he will conduct the probe fairly. Only about a quarter of Republicans and Republican-leaning independents (26%) say Trump officials definitely or probably had improper contacts with Russia during the campaign… About two-thirds of Democrats (68%) and 44% Republicans say they are at least somewhat confident Mueller’s investigation will be conducted fairly.”
I actually think those two numbers on Republicans are big trouble for Trump. His political survival depends upon his base rallying to his defense. If 44% of Republicans somewhat trust Mueller, firing him will be disastrous, and a solid number of Republicans seem open to believing Mueller’s findings. And if 26% of Republicans are already willing to acknowledge improper contacts, that is a sign of significant erosion in Trump’s base, which I imagine could get a lot worse.
3. In today’s Monmouth poll, Dems have a massive 15% advantage on generic ballot, 51 to 36. Other polls, along with the actual numbers from Alabama, Virginia, and special elections, confirm a growing Dem wave in 2018. The average swing in these elections is +16 to the Democrats, and even if you drop Alabama, that swing is about +10, plenty big enough to overcome gerrymanders to win the House by a significant margin. All the Democrats need is to flip 25 seats, and a recent poll of those 25 districts also shows a significant swing of +9 towards Democrats.
My guess is that the Jones upset is forcing Republicans to look more nervously at these polls as they think about the tax bill. This Quinnipiac poll shows disastrously low support for the tax bill (55% disapprove, and only 26% approve, which is toxic). No bill has ever passed with anything close to these rock-bottom numbers. I’m guessing that California House Republicans get cold feet, and I’m guessing a couple of Senate Republicans might slow down this bill, too. The compromises worked out today include a repeal of the ACA individual mandate, and do not seem to include the guarantees Sen. Collins required. McConnell has announced he won’t seat Jones until January, but I can imagine one more Senator slowing down the bill enough in light of Jones’s win or other concerns, and that would make incoming Senator Jones’s vote decisive in January. (In 2009, McCain was vocal about seating Scott Brown before any votes on the ACA, and the Democrats accommodated McCain then).
4. Speaking of the Senate, the Jones upset is particularly important for winning back the Senate in 2018. This 51-seat goal was achievable by a) holding all the red-state incumbents (WV, MT, ND, MO, and IN), b) flipping both purple states (NV and AZ), and then c), according to a Democratic stratetist “An act of God.” Well, that act of God happened, and it wasn’t the divine intervention that Roy Moore was relying on. Even before Moore’s sexual predator scandals blew up, I had identified Alabama, Tennessee, and Texas as realistic shots, and people mocked me openly. Well, they were right to dismiss me then (because it now seems like Moore would have won by a few points without these scandals). But now, the Democrats have won Alabama, and their chances are surprisingly good in Tennessee, where former governor Phil Bredesen stands a solid chance to win an open seat due to Corker’s retirement, and in Texas, where Ted Cruz is about as popular as Roy Moore was in Alabama, as Matt Yglesias notes. Texas is much closer than Alabama.
I’m going to go on record and predict Congressman Beto O’Rourke knocks out Cruz, and Bredesen wins Tennessee. Not only does Senate control knock out Trump’s legislative agenda. It also think it prevents Trump from swinging the Supreme Court any further to the right. If Kennedy retires this June, I think the Jones win was enormous. Now two relatively moderate Republicans (Collins and Murkowski?) can use their influence to demand a moderate nominee. But I’m praying Kennedy does not step down.  

5. These polls also show remarkable numbers on Jerusalem move: The public does not like it. “Just 23% say it is a good idea compared to 39% who say it is a bad idea, with 38% registering no opinion. A majority (51%) think the move will destabilize the Middle East region.” Wow. I initially thought it was a crass but effective political move that would help Roy Moore win, but now it looks like Trump has the anti-Midas touch. He is making moves that otherwise would be popular, and he is tainting them with his malevolent incompetence.

Yes, the President can obstruct justice through official acts (Obstruction Part 2)

A president can be criminally liable for obstruction of justice, even for an official constitutional power like firing or pardons. Over the past week, Trump’s lawyer John Dowd, Alan Dershowitz, and others have argued that a president is chief law enforcement officer, and thus cannot be prosecuted for obstruction of justice for exercising a duty recognized by the Constitution. Yesterday, a Wall Street Journal op-ed took another shot at this argument.  This debate has become even more important over the weekend, as these arguments potentially immunize Trump for firing Mueller.

I addressed some of those arguments here, and others recently have, too. I addressed the general case of obstruction of justice case against Trump here. In this post, I respond to a new narrower argument by focusing on a thought experiment with presidential bribery, pardons, and military action. I also address Supreme Court precedents that keep a door open for criminal prosecution based on official acts for improper obstructionist purposes. Please also keep in mind, as I and others have explained, “high crimes and misdemeanors” are not limited to statutory felonies, but applied to significant abuses of power that might not be felonies. But criminal liability informs and shapes the law and politics of impeachment, and it also affects the liability of those who aided and abetted Comey’s firing. Also note that the Nixon Articles of Impeachment basically included obstruction charges, for which Republicans voted, and during the Clinton impeachment, various Republicans charged Clinton with obstruction of justice, including then-Sen. Sessions, Sen. McConnell, and Sen. Grassley.

Alan Dershowitz initially made the broadest argument, that the president cannot be guilty of obstructing justice. He has since backtracked, acknowledging that the president “is not above the law,” and that a president could commit obstruction of justice in some circumstances. Now he makes a narrower claim: “My argument, unlike that of President Trump’s lawyer, is not that a president can never be charged with obstruction of justice. It is that he cannot be charged with that crime if his only actions were constitutionally authorized. This distinction is central to our system of separation of powers and checks and balances.” In a follow-up piece in the Boston Globe, Dershowitz argues, “[U]nder our constitutional system of separation of powers, the president cannot be charged with a crime for merely exercising his authority under Article 2 of the Constitution. This authority includes firing the director of the FBI, for whatever reason or no reason.”

Basically, Dershowitz is arguing that because the constitution gives the president the power to fire (or nominate, or pardon, or veto),  a president’s action in firing an executive official is immune from obstruction of justice charges. Today’s Wall Street Journal op-ed by David Rivlin and Lee Casey makes the same point, but with less analysis. (A few months ago, Rivlin and Casey used the Wall Street Journal to call on President Trump to pardon everyone involved, not the proudest moment in Wall Street Journal’s storied history.)

Josh Blackman and Andy Grewal fill in with more analysis and more nuance. Blackman then concedes:

But this does not mean that the president has unfettered authority over the administration of justice. Starting from first principles, the Constitution enumerates “bribery” and “treason” as explicit grounds for impeachment. If the president accepted a bribe in exchange for signing an executive agreement that gave aid and comfort to foreign belligerents—even though these are actions in his official capacity—the president could be removed from office by Congress. This otherwise lawful act amounts to both bribery and treason. However, the lawful exercise of an Article II power — whether signing an executive agreement or vetoing a bill — does not give rise to an impeachable offense.

This last sentence technically begs the question: what is “lawful” exercise? Of course, if an action is “lawful,” it is not a crime. But that’s the key question: Can criminal statutes restrict the president’s use of his constitutionally granted powers? Can a president use those powers for improper, corrupt, and criminal purposes with impunity?

Andy Grewal has offered several thoughtful posts on this topic.  But in line with the arguments by Blackman and Dershowitz, Grewal offered this exchange that shows their argument’s flaws:

This exchange is key to understanding how an official presidential act can in itself be the crime. Basically, Omri Marian was right. Here I explain why.

Let’s start with a bribery scenario: imagine if a president fired an FBI director (or the Attorney General, or a U.S. Attorney). Then let’s say investigators later discover a coded message from a billionaire to the president promising to pay him a million dollars to fire that official. And let’s say they find that the billionaire then attempted (but did not yet succeed) to send the million dollars through backchannels. The only evidence that the president agreed to the bribe was the act of firing the official. The firing itself was the actus reus (an act or conduct that is an element of a crime, as opposed to the mens rea, the mental state). Imagine that there is no other valid reason for firing the official (who, for the sake of argument, was excellent and shared the president’s policy priorities). Could the president be prosecuted on the basis of the firing itself as the actus reus (the bad act) and as circumstantial evidence of the mens rea, as evidence of illegal motive?  I am not necessarily arguing that this evidence would convince a unanimous jury beyond a reasonable doubt, but it surely would be enough for probable cause to bring a bribery charge.

Even though legislators and judges have immunity for official acts, they, too, can be charged with bribery. I am suggesting that a legislator’s official vote or a judge’s official decision, with no other evidence but in context where that official act indicates agreement to a bribe, could be the sole factual basis for the actus reus and evidence of the mens rea. It would not be as strong as a case with more communication, but it would be a valid case meeting the threshold of probable cause.

The same bribery scenario could apply to other official acts, like a pardon, a veto, a nomination, or the exercise of the commander-in-chief’s miltary power. The official act can be the evidence of the bribe. If the billionaire was being prosecuted for a crime, and sent a coded message that he’d pay a million dollars for a pardon, and then the president pardoned him, that official act itself could be the basis of a bribery prosecution. If not, then a president (or a legislator or a judge) would have an easy bribery loophole: just receive coded messages offering money for votes, and as long as the officer did not say anything, he could vote (or fire or nominate) and take campaign contributions with immunity from bribery prosecution. That cannot be right.

 

Now let’s try a different kind of crime. The president, as commander-in-chief, has the power to order the use of force. Now let’s say he ordered a military strike on a site, initially claiming that the site was a terrorist base. But it turns out that it was no terrorist base, but the home of a witness against him, who was in FBI witness protection program. Or it was a political rival. Or his spouse’s lover. The backstory does not matter. The point is that if a president ordered such a strike with intent to murder, the official act itself would be the bad act, the actus reus, of the crime. Other context would be necessary for the mens rea, but the order itself would be the basis for the murder prosecution.

Can a president or military official be charged with a war crime? What if a president ordered genocidal strikes? I am concerned that the consequence of the arguments from Dershowitz, Blackman, and Grewal are that presidents would be immune from war crimes, as long as the military orders were “official acts.” And of course such orders would be official acts with a textual constitutional basis.

That brings us back to Trump firing Comey. Of course, the president had the power to fire Comey, but he doesn’t have power to do it for any reason. His reason cannot be illegal. Trump couldn’t fire Comey in return for a bribe, even when the firing is the only concrete act as evidence of an agreement to the bribe. So, too, the president cannot fire an FBI director to obstruct justice, even if the only overt act was the firing itself.

Dershowitz writes: “So, until and unless there is proof that Trump has committed an independent criminal act — beyond acts that are within his constitutional prerogative — it would be unconstitutional to charge him with obstruction of justice.” This is not right. My examples have demonstrated that one does not need proof the president committed some independent act. The president can be prosecuted for bribery for one act — the firing, or a pardon, etc., as the actus reus — if that act in context points to an improper purpose, as required by the obstruction statutes.

Dershowitz continues, “Now President Trump’s political opponents are seeking to have the special counsel psychoanalyze the president to determine whether his motives were pure, mixed or corrupt.”  True, when it comes to obstruction of justice, the biggest challenge is proving “corrupt” intent, as required by the relevant statute here, 18 U.S.C. 1512(c)(2).  Ordinarily, the intent element would have been an enormous obstacle. However, Trump has essentially confessed his intent, first on May 10th in the Oval Office talking to Lavrov, Kislyak, and an audience of witnesses recording his admission that he fired Comey because of the Russia investigation, and again on May 11th on national TV with Lester Holt. His tweet a week ago only confirmed that he believed Flynn had lied to the FBI when he was intervening with Comey to shift his investigation.

Some have turned to the Supreme Court for a claim of presidential immunity. In Nixon v. Fitzgerald, the Supreme Court heard a civil lawsuit against Nixon, as ex-president, for firing an official allegedly as retaliation for whistleblowing. The Supreme Court, in a 5-4 vote, recognized that the president had absolute civil immunity for official acts, even if those acts allegedly violated the law. Andy Grewal summarizes:

The majority responded to these allegations without any discussion of the President’s potential criminal liability. However, it emphasized that immunity for official acts would “not leave the Nation without sufficient protection against misconduct” by the President. Id. at 757. The Constitutional remedy (impeachment) remained, and various formal and informal checks applied to the President that did not apply to other executive officials, such as “constant scrutiny by the press,” “[v]igilant oversight by Congress,” a desire to earn re-election, and so on. Id. at 757.

Nixon v. Fitzgerald does not directly resolve whether the Constitution permits Congress to criminalize a President’s official act, because the case dealt with only a private suit for damages. But it should give pause to those who believe that the federal obstruction of justice statutes can constitutionally reach President Trump’s official acts related to the Russia investigation (i.e., the firing of James Comey). ‘

I agree with Grewal that Nixon v. Fitzgerald should give pause. Grewal is also right to concede that the Supreme Court decision never directly addressed immunity from criminal liability, but it isn’t entirely correct that the majority never touched on criminal liability (more on that below). The Supreme Court’s analysis was functional, not formal, turning on the practical purposes of immunity. The Court’s main concern was how civil litigation would be a “diversion of [the President’s] energies,” (p. 752) and secondarily, the Court discussed a need for the President to act “fearlessly” in executing official duties (id).

On the first point, “diversion” or distraction, one might have thought that if a President or other official is protected from civil litigation, all the more so he sould be protected from criminal prosecution, because the penalties are more severe. On the other hand, if the core problem is diversion, civil litigation by private plaintiffs is more likely to be decentralized harassment without political accountability and with less legitimacy. A prosecutor is more constrained in many ways. Civil liability is also far broader than criminal liability, with fewer protections, so a president’s opponents could exploit civil litigation more effectively than criminal prosecution. Moreover, this potential “distraction” problem can be reduced or eliminated by waiting to prosecute until after the President leaves office.

On this question, it turns out that the Court cited an important passage from Justice Joseph Story:

“There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability.”  3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833).

The topic is the President’s discharge of official duties, and Story concludes that the president must have “official inviolability” (or absolute immunity) from civil suits for those official duties. However, Story limits the President’s immunity for criminal liability: “The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.” First, it’s notable that Story himself — and the Supreme Court — suggested a lesser scope of immunity for criminal than civil litigation. Civil immunity is made permanent, but criminal protections are only time-bound by the office, and thus appear not be truly “immunity” in the traditional sense. Story is acknowledging a president could be arrested after leaving office, but can he be arrested and imprisoned for official acts?  This passage generally is about a President’s liability for official acts, so Story may be implying that the president can be prosecuted for official acts. Arguably, in the way the Supreme Court is using Story’s commentary, criminal immunity implicitly ends when the President is out of office. Story is offering a strong hint about another relevant question, whether a sitting president may not be indicted for official acts. Story mentions arrest and detention, not indictments, but I tentatively would go further to suggest that indictments must wait until the President is out of office.  In this section of his Commentaries, Story included other broad language about the president’s duties, so one could argue that Story intended broad immunity. Nevertheless, I’m struck by how the Supreme Court selected and edited down this passage more narrowly. In the only section of this decision relating to criminal liability, the Supreme Court seems to have selected a passage from Story opening the door to the notion that a president might be arrested and tried for official acts. The Supreme Court left open that possibility, and wrote that it was crucial for there to be powerful mechanisms to prevent a president from arrogating power to be “above the law.”

As for the second problem identified by the Supreme Court, on enabling a President to execute his duties “fearlessly,” the functional analysis of Nixon v. Fitzgerald is important. The Supreme Court explicitly seeks to balance the purposes of liability and immunity, speaking in terms of “public policy and convenience” (p. 746) and “varying scope” of immunity based on the “balancing” of interests (p. 747). The Supreme Court was willing to offer civil immunity, because civil liability is broader and more susceptible to exploitation. But criminal immunity arguably goes too far, to immunize the most lawless and dangerous behavior. Criminal liability offers more protections in terms of defendants’ rights, jury unanimity, and the requirement of guilt beyond a reasonable doubt. In a balancing test analysis, I would argue that absolute civil immunity is a stronger reason not to provide broad criminal liability, because then the President becomes too free to govern “fearlessly,” even recklessly and lawlessly. With absolute criminal immunity for official duties on top of civil immunity, the functional balance tips way too far, putting a president above the law.

The Supreme Court rejected the idea that civil immunity would put the president “above the law.” The decision listed impeachment, but it did not rule out prosecution. (p. 758, n.41).

Is a President above the law? It turns out that another Supreme Court case entertained Nixon’s argument and rejected it. In U.S. v. Nixon, the Supreme Court required President Nixon to obey a crucial Watergate subpoena.  In Jones v. Clinton, the Supreme Court did not extended civil immunity to unofficial acts, and famously permitted civil lawsuits against President Clinton while he was in office. In the context of all three decisions taken together, the Supreme Court seems to strike a more careful balance to open the door criminal proceedings for presidential official acts after a president is out office.

On the one hand, the stakes of this debate may be lower than they seem. Congress can impeach and remove for “high crimes” that are abuses of power, even if they fall short of felonies. And there are good reasons to conclude a sitting president may not be indicted, because impeachment is the constitutionally prescribed remedy. On the other hand, the consequences of this legal question are actually enormous. Articles of impeachment are far more legitimate and persuasive if they allege statutory felonies, not just less concrete “abuses of power.” And because impeachment is ultimately a political act, the politics of persuasion and consensus matter deeply.

The most puzzling part of these exchanges for me is how all of these commentators balance their views with a tradition of checks and balances and with republican government. It’s hard not to see how their interpretation places a President above the law, in that they enable the president to manipulate and obstruct law enforcement for improper purposes as long as the president sticks to firing and pardoning. In this context, they are saying that there is no criminal liability for Trump firing Comey, then firing Rosenstein and Mueller together, and then firing whomever else Trump needs to fire to protect himself. Then somehow the fate of the republic is in the hands of 34 votes in the Senate? To wait four years for a presidential election that may or may not be a fair election that may or may not be hacked? These writers each seem to be all too comfortable with a president artfully using constitutionally granted powers to obstruct justice, immunize himself, and consolidate a regime. And if one branch — one person — can monopolize law enforcement with impunity, it is hard to see how their interpretation takes checks and balances, constitutionalism, and limited government seriously.

 

 

 

Yes, Trump can be guilty of obstruction

There is so much to say about John Dowd’s terrible-no-good-very-bad-weekend of legal malpractice.

First, let me address his assertion today that a President cannot commit obstruction of justice. Axios’s Mike Allen reports: “John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice. ‘[The] President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,’ Dowd claims.”

John Dowd is right that the President is the chief law enforcement officer, but that does not mean he is above the law. First of all, because the relevant question is impeachment at this stage, Dowd is obscuring a key point: when the Founders gave Congress the power to impeach for “high crimes and misdemeanors,” they intended the power to apply to the abuse of power broadly, even if a regular criminal statute had not been violated.  Some crimes are not high enough to be impeachable, and some acts are not regular statutory crimes but are still impeachable. In firing Comey, Trump has committed both an impeachable high crime and a statutory criminal act under 18 U.S.C. 1512(c)(2).

Moreover, this theory is not new. Nixon said, “When the president does it, that means it is not illegal.” This theory was rejected then, especially when the House Judiciary Committee listed obstruction of justice at the top of its Articles of Impeachment. The Republicans rejected Nixon’s theory again during the Clinton impeachment. Just because the president has a power, that does not mean the president can use that power any way he wants to. The president has a constitutional power to fire and to nominate officers, but if the president received a payment to fire Comey, quid pro quo, or to give his job to Christopher Wray, that would be felony bribery. The president as commander-in-chief has the power to order military strikes, but if his intent was to kill his wife’s lover in a strike, that would be murder. And if the president interferes or impedes an FBI investigation with “corrupt intent,” that’s obstruction of justice under 18 U.S.C. 1512(c)(2), as I’ve written before (and also explained on the Lawrence O’Donnell show The Last Word). Trump has essentially confessed three times to his corrupt intent in firing Comey: on May 10th in the Oval Office, on May 11th to NBC’s Lester Holt, and then in his tweet on Saturday (awareness that Flynn had committed a crime). Thus, Trump indeed obstructed justice by firing Comey, he should be impeached by the House for this “high crime” as abuse of power, convicted by the Senate, and prosecuted for a felony after leaving office.

The Saturday tweet is also mystifying.  Trump https://platform.twitter.com/widgets.js“>tweeted the following, which I term the “third confession”:

“I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

I’ve already mentioned the confessions to NBC’s Lester Holt and in the Oval Office in the day’s after Comey’s firing, in which Trump directly connected the firing to the Russia investigation. Now see my timeline in this Slate piece. Keep in mind that Flynn resigned on Feb. 13. Trump tells Comey to back off of Flynn on Feb. 14. Comey recorded that Trump had said to him that Flynn “hadn’t done anything wrong. He had to let him go because he misled the Vice President.” Misleading the Vice President is not a crime. But lying to the FBI is. If Trump knew Flynn had committed a crime, he attempted to cover up that crime and obstruct justice for a corrupt purpse by intervening on behalf of Flynn to influnce Comey, and then firing Comey.

This additional tweet is a legal disaster for the White House, and reports indicate that they know it. So the new excuse is that Dowd wrote the tweet. Even if Dowd wrote it, the tweet is formally a presidential statement under the President’s name. This is the way many confessions are written: a lawyer writes the confession, and then the defendant signs it. The fact that a letter helped draft this tweet makes it more damning, not less damning, because Trump had the benefit of counsel. It cannot be said to be a spontaneous error, blurting out in error.  Courts treat such statements as more deliberate, more reflective, more aware of legal consequences than when a layperson writes a statement alone.

If Dowd in fact wrote this tweet all by himself, then obviously he would have been fired by Saturday night. He has not been fired. Maybe he should be fired anyway, but this was no rogue tweet by a lawyer-saboteur.

Amazingly enough, on Sunday night, Dowd made this problem even worse. Dowd re-confirmed the damning Trump tweet from Saturday that confessed to obstruction of justice, that Trump understood Flynn had committed a crime when he fired Comey:

“Trump’s personal lawyer [Dowd] said on Sunday that the president knew in late January that then-national security adviser Michael Flynn had probably given FBI agents the same inaccurate account he provided to Vice President Pence about a call with the Russian ambassador.”

Dowd is confirming the key fact: Trump had reason to believe Flynn had committed a felony when he was trying influence the FBI investigation. The only way Trump’s defense can claw back from this particular confession is to prove with some kind of contemporaneous notes, documents, or corroboration that Trump did not understand likely Flynn’s crime. It is highly unlikely that any such explicit document or notes exist. So essentially, the only other defenses are: Dowd hacked Trump’s twitter account, Dowd is a secret Democratic operative, Dowd is lying, and he has committed gross legal malpratice (well, he basically has, but only by being seemingly too truthful).

Or Trump’s counsel would have to argue later that President Trump, as a legal matter, was mentally incompetent when he wrote that tweet. I am not being cheeky or snide. Those are, more or less, the only defenses available to undo the third confession.

Keep in mind, the two previous confessions corroborate this third confession, and you can’t blame Dowd for those. And the Holt and the Oval Office confessions were immediately after the firing. So there really is no way to claw back this Third Confession (TM).  Like many who sign up for this Faustian/Trumpian bargain to help this administration, Dowd will never recover his reputation. Ever. And in all likelihood, Trump will have a hard time recovering as well, now that Mueller has a third confession.

 

The Conservative Court-Packing Plan and the Facts about their Fictional “Caseload Crisis”

Federalist Society co-founder Steven Calabresi, writing with Shams Hirji, dropped a bombshell before Thanksgiving. They proposed a massive expansion of the federal judiciary by 33% or even 50%. Linda Greenhouse and Dahlia Lithwick have criticized this proposal. As Ron Klain explained in the Washington Post:

“If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325)…”

At times, Calabresi and Hirji are forthright about their motives. On the first page of their memo, the first header trumpets: “Undoing President Obama’s Judicial Legacy.” But the rest of their memo, from page 5 through 38, emphasizes an unprecedented “crisis” in judicial workload. “Caseloads have reached unprecedented levels.” (6). “[A] crisis in volume.” (6) Apparently, the sky is falling, and they just happened to notice. The Calabresi-Hirji memo is misleading about the facts of the federal judiciary. There is no workload crisis whatsoever.

First, it’s notable that Calabresi and Hirji only suddenly noticed this apparent crisis in 2017, even though their memo searches for — and purports to find — evidence of a workload crisis going back for years, even decades. Somehow conservatives did not suggest increasing the size of the judiciary under Obama. In fact, Senate Republicans did the opposite: they blocked Obama’s nominations to leave those seats open for Republicans. Klain writes, “The Garland-to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Due to GOP obstruction, ‘the number of [judicial] vacancies . . . on the table when [Trump] was sworn in was unprecedented,’ White House Counsel Donald McGahn recently boasted to the conservative Federalist Society. Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure, he nominated 20 judges to the federal trial and appellate courts; in Trump’s first nine months, he named 58.”

Second, there is no “judicial workload crisis.” As I will show below, trial and appellate workload have been flat for years.

Third, Calabresi and Hirji have been shifting their argument to “what about Jimmy Carter?” In their “full-court press” for their plan, if you will, they have written more recently:

In fact, [our proposal] is a court-unpacking plan. It counteracts Democratic court-packing under President Carter and a Democratic Congress in 1978, which increased the size of the federal courts by 33 percent… This [workload crisis] is a national scandal of epic proportions, which Congress should and could address by increasing the size of the federal courts of appeals and district courts by 33 percent, as Jimmy Carter and a Democratic Congress did in 1978. If what Carter and the Democrats did in 1978 was permissible, then what we propose is permissible as well.

This is misleading “whatabout-ism.” Richard Primus addresses part of their argument with details of the passage of the 1978 statute. I write here to show that the litigation statistics reflect a huge increase in the 1970s, but no crisis today.

The Federal Judicial Center, the research and education agency of the judicial branch, tracks judicial workload over the past century.  Here is what their actual records show: A dramatically sharp increase in appellate cases from the 1960s to the early 2000s, and then a drop over the last decade: Court of Appeals Caseloads, 1892-2016

Civil suits rose steadily from the 1960s through the 1990s, and then have leveled off since then.

Total non-bankruptcy filings increased rapidly starting in the late 1960s through the late 1980s, and also leveled off to a flat steady line.

The bottom line of these charts and statistics is that in the late 1970s, there actually was a workload crisis, and Congress responded with a bipartisan solution. Again, Primus explains that the 1978 Act was designed primarily to address the dramatic population expansion in the 9th Circuit (California and the west) and in the 5th Circuit (mostly Texas):

“[T]he statute was not a partisan or ideological power play. In both Houses of Congress, most Republicans supported its passage. (Or, strictly speaking, we know for sure that that was true in the House, where there was a roll-call vote. In the Senate, the measure passed by voice vote, which suggests that it wasn’t a highly contested question.) The point here is just that although it’s true that a prior bill passed by a majority-Democratic Congress and signed by a Democratic President expanded the number of circuit judgeships by 36%, it would be a mistake to infer that that bill, like the one Calabresi and Hirji propose, was an effort to seize ideological control of the lower courts.”

I add to Primus’s account that there was indeed a workload explosion from the FJC’s statistics. From 1968 to 1978, the number of non-bankruptcy cases almost doubled (100,000 non-bankruptcy cases to about 180,000), and the number of appeals almost quadrupled.

But I also want to note what is so striking about these charts: after such a dramatic increase in caseload over the late 20th century, this problem has been solved. And Congress probably way over-solved it. We have overcorrected one problem, and we have created another. Federal statutes have made it far too difficult for prisoners to assert their constitutional rights through habeas corpus. Congress has “fixed” the workload problem by making it far harder for criminal defendants and immigrants to get into court. Congress and the Supreme Court is cutting back on access to justice through civil procedure reforms, including limits on class action litigation. Consumers have always had a difficult time challenging big banks and big business, and Congress just made it a lot harder.

So there are several ways Calabresi and Hirji have it all backwards. There is no judicial workload crisis. They conveniently manufacture one in 2017, but conservatives acted as if there were too many judges on the bench in the Obama years. And the problem in America is not too much access to justice, but far too little. Beneath a fiction of a “caseload crisis,” Calabresi and Hirji actually want to help Trump make access to justice even worse for average Americans.

 

Carter Page Adds Fuel and Fire to Oil Deal

Last night, the House Intelligence Committee released the testimony of Carter Page, the Trump campaign’s Russia adviser. It was bizarre and explosive. It corroborated major parts of the Steele Dossier and allegations that the Trump campaign engaged in a massive bribery scheme over the sale of 19% of Russia’s largest oil company Rosneft.

Natasha Bertrand at Business Insider had the best early summary of the Page/Russia testimony here. In this post, I am connecting the dots to the bigger scandal over the Rosneft deal and how it implicates more Trump officials — and the name I am adding to the mix (beyond the ones journalists have focused on) is Jared Kushner.

This past June, I posted about a key event that has gone unnoticed that connects the dots: “The Largest Oil Deal in Russian History” in December 2016, which occurred in the middle of the key Kushner/Flynn events. The sale was right after Trump’s victory but before the inauguration, and also right after Kushner’s push for a secret communications link to the Kremlin through the Russia embassy that U.S. intelligence couldn’t access, and right before Kushner’s meeting with Putin’s banker/confidant Gorkov, who controls billions in assets.

, The Steele Dossier alleges that Russians made a deal with Carter Page in the summer of 2016 to sell “19% of Rosneftgaz,” a mutli-billion dollar deal, and secretly transfer benefits to Trump officials. The dossier indicated that Page was Manafort’s intermediary to meet personally with Russians, and that Igor Sechin (the CEO of Rosneft and a close Putin ally) and Page had held a “secret meeting” to discuss “the issues of future bilateral energy cooperation and prospects for an associated move to lift Ukraine-related western sanctions against Russia.” The dossier alleged that Sechin offered Page the brokerage of a 19% stake in the company in exchange for the lifting of US sanctions on Russia.

Coincidentally, on Dec. 9th, 2016, Russia made a deal with Qatar to sell “19% of Rosneftgaz.” After the December oil deal, reports indicated that the assets were being transferred through shady channels to unknown new stakeholders.

Sechin is strictly limited by U.S. sanctions, and the Steele dossier indicated that Page and Sechin discussed lifting sanctions on Russia over its 2014 annexation of Crimea. Page denied these allegations. Page testified he actually met with Andrey Baranov, one of Rosneft’s other executives. “I had a brief lunch with Andrey Baranov,” Page said.

“Mr. Sechin is under sanctions, is he not?” Schiff asked. “And as someone working on investor relations for a CEO who is under sanctions, would it be advantageous for that head of investor relations to see those sanctions go away?”

Page first said nothing Baranov “said to me ever implied or asked for anything related to sanctions. Again, there may have been some general reference.”  So Page first denies a link, but in the next breath confesses “there may have been some general reference” to sanctions.

Now I am quoting directly from Bertrand’s piece on Page’s testimony:

Page also said he met with an investor relations official at Gazprom while in Moscow in both July and December.  Asked whether he and Baranov discussed “a potential sale of a significant percentage of Rosneft” in July, Page said, “He may have briefly mentioned it.”

“Did you ever express support for the idea of lifting US sanctions on Russia with Mr. Baranov?” Schiff asked.

“Not — not directly, not directly,” Page said.

There is no evidence that Page played any role in the Rosneft deal. But Page returned to Moscow one day after the Rosneft deal was signed on December 8 to “meet with some of the top managers” of Rosneft, he told reporters at the time. Page denied meeting with Sechin, Rosneft’s CEO, during that trip, but he said it would have been “a great honor” if he had.

From there, Page traveled to London, where he met with his “old friend” Sergey Yatsenko — a former mid-level Gazprom executive — to discuss “some opportunities in Kazakhstan.”

Asked whether he had ever met the overseas professor who told Papadopoulos about the Kremlin’s dossier of incriminating Clinton emails, Joseph Misfud, Page at first said “No.”

But he then seemed to backtrack: “I — you know, there may have been a greeting,” he said. “I have no recollection of ever interacting with him in any way, shape or form…I have no personal relationship with him.”

To recap, Page confirms the key elements of the dossier and new details:

1) He had meetings with Rosneft officials in July 2016 in which those officials discussed both the massive sale of Rosneft AND the Trump administration lifting sanctions on Russia.

2) Page’s testimony and his emails confirm that Page got advance approval from high-ranking Trump officials like Sam Clovis to go to Russia in July 2016, and he communicated with Trump officials immediately after the trip congratulating them for a stunning pro-Russia change in the Republican Party platform on Ukraine policy.

3) Page for some reason went back to Russia a day before the Rosneft megadeal to meet with Rosneft executives, and then went to London to talk to Gazprom officials about sudden new investment opportunities

Here are links to the stories on this shady megadeal between Qatar and Russia on Dec. 9:

“Russian state holding company Rosneftegaz on Saturday signed a deal with the Qatar Investment Authority and commodities trader Glencore to sell a 19.5 percent stake in state-owned oil major Rosneft, Rosneft said. The privatization deal, which Rosneft Chief Executive Igor Sechin called the largest in Russia’s history, was announced by Rosneft in a meeting with President Vladimir Putin on Wednesday. Its success suggests the lure of taking a share in one of the world’s biggest oil companies outweighs the risks associated with Western sanctions imposed on Russia over the conflict in Ukraine. Rosneft had been under pressure to secure a sale of the 19.5 percent stake to help replenish state coffers, hit by an economic slowdown driven by weak oil prices and exacerbated by sanctions.”

More recent reports have focused on the shadiness of the deal and its subsequent transactions: “More than a month after Russia announced one of its biggest privatizations since the 1990s, selling a 19.5 percent stake in its giant oil company Rosneft, it still isn’t possible to determine from public records the full identities of those who bought it. The stake was sold for €10.2 billion to a Singapore investment vehicle that Rosneft said was a 50/50 joint venture between Qatar and the Swiss oil trading firm Glencore.”

The Dec. 9th deal falls in the middle of the shadiest events in the Kushner/Flynn/Kislyak timeline, which connects the dots on a mix of known illegal non-disclosures, corruption, potential espionage, and Logan Act violations. They certainly explain why Kushner advised Trump to fire Comey (obstruction of justice).

Dec. 1: Just 8 days before this oil mega-deal, Flynn & Kushner met Ambassador Kislyak at Trump Tower, and proposed secret communication link with the Kremlin through the Russian Embassy. The parties admit that the idea was to avoid any detection of these communications by U.S. authorities.

Dec. 8: Carter Page (as he confirms in his testimony) meets with Rosneft executives, and then flies to London to discuss new business opportunities in Kazakhstan with Gazprom officials.

Dec. 9: The Largest Oil Deal in Russian History

Dec. 13: At Kislyak’s urging, Kushner meets Gorkov, who chairs Russia’s government-owned VE Bank and is Putin’s close confidante. Journalists describe VE Bank (VEB) as Putin’s slushfund, a source of money independent from official Russia budgeting. VE Bank is under strict US sanctions.  Here is good commentary on these events.

Dec. 14: Gorkov immediately flies to Japan to meet with Putin.

Dec. 29, Obama orders new Russian sanctions for election hacking and interference. On the same day: Flynn calls Kislyak five times about Russian sanctions. Trump tweets to Putin, calling him “very smart” for not responding, effectively saying, “Don’t worry, I’ve got your back.”

Jan. 4: Flynn reveals to Don McGahn, chief attorney for the transition effort, that he’s under FBI investigation. (He is still appointed and receives security clearance, and he resigns on Feb. 13, long after Sally Yates reveals incriminating details about Flynn on Jan. 26-30).

Jan. 9: Trump transition team announces that Kushner will join the administration as a senior adviser.

Jan. 15: Pence denies that Flynn and Kislyak discussed sanctions.

Jan. 18: Kushner applies for top-secret security clearance, omitting many meetings with foreign officials, including the relevant ones with Kislyak and Gorkov in December. Those omissions are potentially criminal, from my reading of security experts.

The two Rosneft sales may have been related. Was there an initial negotiation with the Trump campaign for the Rosneft stake, as the dossier claims? It just happened to be 19% in the alleged dossier, the same number in the December deal (19.5%!). A friend pointed out that the 19.5% in both the dossier’s Russia/Carter Page deal and the Qatar Dec.9 deal might not be directly connected, because there may be a 20% legal threshold rule for reporting financing and investors. But the fact that each of these deals is under that 20% threshold suggests that the dealmakers are unusually focused on secrecy, so that it dictates the scope of the deal.

Did that turn into the December Qatar deal, which in turn was laundered into a deal for Trump Associates, through a Singapore firm? Was Kushner negotiating that deal? Lots of shell companies and the Cayman Islands are involved, perhaps as a way to hide the beneficiaries.

And everyone should listed to this TrumpCast (Slate’s chair and host Jacob Weisberg) interviewing Tim O’Brien of Bloomber Business News. O’Brien explains how, 10 years ago, a 26-year-old Jared Kushner made a terrible bet on Manhattan real estate. His father had just been released from prison, and Jared had taken over the family real estate business. He was looking to make a big splash, so he sold off his family’s holdings in New Jersey in order to purchase a huge building in midtown Manhattan (666 5th Ave., I am not making that up) for $1.8 billion. It was 2007, the peak before the crash. Suddenly, Jared had a financial disaster on his hands. He negotiated a deal to save the project from bankruptcy with a 10-year loan, but the creditors were set to call in their debts in 2017 or 2018.  About a year ago, Kushner had a deal with a Chinese bank in place to re-structure the deal with a huge windfall of $500 million, but journalists at Bloomberg found out, and their story blew the deal (because it was a corrupt deal). And once again, Kushner’s real estate business is heading towards disaster… unless he can find another authoritarian state bank to bail him out.

Guess what happens next? O’Brien explains that Kislyak arranged this December meeting between Kushner and Gorkov (the chair of the Putin-affiliated Russia bank VEB).

 

Bloomberg reports that the Kushners are buried in debt to Chinese lenders on a New Jersey deal. NBC has followed up on this story on the links between Kushner’s 666 5th Ave. real estate disaster and potentially using the “backchannel” to find a Russian banker to bail him out.

The bottom line is that Page just confirmed major pieces of the Steele Dossier, made all of these allegations far stronger, and also strengthened Mueller’s case against a slew of Trump officials (and as I am suggesting here, including Kushner).

Mueller charges are “enigmatic” and “mystifying”? No, he is strategizing around Trump’s pardons.


       Some have wondered: “Why is Mueller bringing so few charges against Papadopoulos and especially Manafort?”

Papadopoulos is easy. Mueller has charged him with one charge of false statement, even though there are a dozen other felonies clearly suggested by the plea stipulations. The quick answer is that Papadopoulous has agreed to be a cooperating witness in exchange for a very short sentence. The maximum sentence for false statement is five years. If Papadopolous cooperates, Mueller can ask for a short sentence, but if he doesn’t, Mueller can add new charges.

Manafort’s case is less obvious. Andrew McCarthy at the National Review is puzzled about Mueller’s charges for Manafort, calling it “mystifying and enigmatic” that he leaves out so many possible charges, including tax fraud and other forms of fraud. After reading the Papadopoulos plea agreement, and knowing that Manafort is the unnamed “high ranking campaign official” in a series of incriminating emails, one might imagine a dozen other charges Mueller might be mulling.

McCarthy speculates that Mueller did not charge federal tax fraud because those prosecutions require the involvement of the DOJ Tax Division, which would have been an extra bureaucratic hurdle. I’d add that Mueller might have worried that any contact with main DOJ carried a risk of leaks or obstruction. But for the other potential charges, McCarthy writes, “These [other] omissions do not make sense to me.” 

Mueller’s moves may make strategic sense because of a shadow hanging over the entire investigation: the presidential pardon power. 

Mueller knows that Trump can pardon Manafort (or any defendant) in order to relieve the pressure to cooperate with Mueller and to keep them quiet. But Mueller also knows that presidential pardons affect only federal crimes, and not state crimes. On the one hand, “double jeopardy” rules under the Fifth Amendment prevent a second prosecution for the same crime, but the doctrine of dual sovereignty allows a state to follow a federal prosecution (and vice versa). So in theory, Manafort and Papadopolous can’t rely on Trump’s pardons to save them, even after a conviction or a guilty plea.

But in practice, state rules can expand double jeopardy protections and limit prosecutions. In fact, New York is such a state. New York is the key state for Mueller, because New York has jurisdiction over many Trump/Russia crimes (conspiracy to hack/soliciting stolen goods/money laundering, etc.), and Attorney General Eric Schneiderman and NY district attorneys are not politically constrained from pursuing charges.

New York’s Criminal Procedure Law 40.20 states, “A person may not be twice prosecuted for the same offense.” The issue is that New York defines “prosecution” broadly. As William Donnino explains in his commentary on the law, jeopardy attaches (i.e., state prosecutors may not bring charges) when earlier charges “(1) terminate in a conviction upon a plea of guilty, or (2) if the action proceeded to trial by a single judge, that a witness is sworn, or (3) if the action proceeded to trial by jury, that a jury has been impaneled and sworn. See Willhauck v. Flanagan, 448 U.S. 1323, 1325-26, 101 S.Ct. 10, 12, 65 L.Ed.2d 1147 (1980) (federal constitutional jeopardy attaches when a jury is empanelled and sworn, or in a single judge trial, when the first witness is sworn); Crist v. Bretz, 437 U.S. 28, 37 n.15 and 38, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978). … Thus, jeopardy attaches prior to a final judgment. Even with respect to a plea of guilty, jeopardy attaches upon the plea; it does not await imposition of sentence [see also CPL 1.20(13) defining “conviction” to mean the entry of a plea of guilty].”
The bottom line: If Mueller starts a trial on all of the potential charges, and then Trump pardons Manafort, Mueller will not be able to hand off the case to state prosecutors. And thus he would have lost leverage at the time of the indictment if he seemed headed towards losing the state prosecution as a back-up. Instead, Mueller wisely brought one set of charges (mostly financial crimes that preceded the campaign), and he is saving other charges that New York could also bring (tax fraud, soliciting stolen goods, soliciting/conspiring to hack computers). Mueller also knew that his indictment document on Monday would include a devastating amount of detail on paper, without relying on any witnesses to testify, showing Mueller had the goods on a slam dunk federal money laundering case. Then he dropped the hammer with the Papadopoulos plea agreement, showing Manafort and Gates that he has the goods on far more charges, both in federal and state court. Manafort is the unnamed “high ranking campaign official” in various incriminating emails discussed in the Papadopoulos plea stipulations. Once Papadopoulos conceded that Russian representatives told him they had “dirt,” in “thousands” of Clinton’s emails in April 2016, it is clear that prosecutors could start building a case of conspiracy and solicitation of illegal hacking and trafficking in stolen goods against campaign officials Papadopoulos may have informed, as well.

I discuss some of the parallel state felony charges in this Slate piece (also published in Just Security). In August, sources revealed that Mueller was already coordinating with Schneiderman, likely to work out this strategy. I also note that all of this legal background is relevant to solve an additional problem: If Trump fires Mueller, state prosecutors can carry on with his investigation and prosecutions based on parallel state laws (trafficking stolen goods, soliciting/conspiring in computer hacking, money laundering, tax fraud, etc.).

This same strategy adds an explanation for the single Papadopoulos charge. I explained above that a single charge is a classic part of plea deal for cooperation. But Mueller can be saving a number of other charges, both in his own back pocket to incentivize cooperation, and also for the front pocket of state prosecutors in case Trump gives Papadopoulos a blanket pardon. Mueller is a stone-cold professional.