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.

The Steele Dossier, the Clinton campaign, and Trump/Russia: Revisiting concerns with overly broad campaign finance law

This summer, I joined the debate about whether Donald Trump, Jr., committed a crime by soliciting a “thing of value” (opposition research) from a foreign national, under 51 U.S.C. 30121. Inititally, I agreed with many people suggesting that the statute applied to Don Jr., but after a day of reflection, I concluded such a broad interpretation was incorrect, I posted a correction and I went on PBS NewsHour to — gasp! — defend Don Jr.

Now the shoe is on the other foot. Did the Clinton campaign or the DNC solicit a thing of value from a foreign national?  Even before you get to Russians, this part of the statute is a problem for the Clinton campaign, because they allegedly solicited and paid Christopher Steele, who is British (a foreign national), to produce a thing of value.

Then there are questions if the Clinton campaign or the DNC knew Steele would be paying Russian sources.  This MSNBC report from March suggests that Steele “paid his key Russian sources.”  Let’s set aside the question of whether Steele ran afoul of the statute, because the statute arguably requires a certain mental requirement, an awareness of campaign law.  The main point is that if one accused Don Jr., Kushner or Manafort of violating this campaign law for their meeting in Trump Tower with Russian sources, then one should be prepared to acknowledge that the allegations against the Clinton campaign are as strong.

And thus, that question brings me back to my skepticism about whether this statute should be applied to speech and to legitimate research.  Here I am reposting my points from over the summer, with some additional questions and specifics added in:

First, how do we draw a line between an impermissible in-kind donation and information or investigation?  Campaigns often involve questions about events that happened overseas. Would all “opposition research” about those events on foreign soil be criminalized?  It seems that under the law, it might not matter if the campaign pays or doesn’t pay for the research. It’s still getting a “thing of value.” So essentially, a broad application of the statute could criminalize a campaign official talking to foreign nationals about anything related to the opponent or even their own candidate.

For example, in 2012, let’s say a newspaper or website published a document purporting to be a Kenyan birth certificate for Barack Obama. Obama knew this document was a forgery, but he would need help to debunk it. So let’s say an Obama campaign official traveled to Kenya to obtain that birth certificate. Would the certificate itself be a “thing of value”? What if that official talked to Kenyan officials about how to prove or disprove the authenticity of that birth certificate? Any conversation would be a “thing of value.” What if the campaign paid a Kenyan investigator to help navigate the research? Would that payment be criminal?

And here is what I wrote in my original post: “Similarly, let’s say in the summer of 2016, a Russian official contacted the Clinton campaign with information that the Russian government was behind the hacking. Such information would be a ‘thing of value’ to the campaign. Maybe the most appropriate reaction should be to direct the Russian informant to the FBI, but surely it would not be criminal for a Clinton official to meet with the informant to make sure to get the information as soon as possible.”

“Moreover, I cannot find any case that comes close to applying the campaign finance “thing of value” wording to information or opposition research from a foreign national. And there seems to be good reason for courts to avoid going so far.  I’m adding a note here about the rule of lenity: In construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.”

Now back to October 2017: What’s good for the goose is good for the gander. And it also means that campaign finance statutes have created some huge questions about foreign opposition research that would over-criminalize legitimate investigation. These statutes rightly seek to limit foreign influence, but Congress needs to be amend them to clarify these questions, or courts need to resolve these ambiguities in favor of free political speech.

One final note: If the information is actually illegally obtained itself, that’s an entirely different problem.  The bigger news this week is that Cambridge Analytica solicited more Clinton emails from Julian Assange for the Trump campaign — emails that could only be obtained by criminal hacking. That’s a pretty clear case for aiding and abetting/conspiracy to engage in computer hacking (a criminal violation of the Computer Fraud and Abuse Act of 1986) and to traffic in stolen goods. These are both federal and state crimes.  These allegations are far more serious than the Steele Dossier/DNC news.

Is the Foreign Emoluments Clause only a “Political Question” for Congress?

On Wednesday, Judge Daniels of the Southern District of New York heard arguments in CREW v. Trump, the first Emoluments case, on the Department of Justice’s motion to dismiss. The case is its own self-contained course in constitutional law and civil procedure, covering a dizzyingly broad range of subjects and methods of interpretation. The primary debates so far have been on whether the plaintiffs have standing and on the meaning of the word “emolument.”  

Meanwhile, a secondary question has been in the background: Is the Foreign Emoluments Clause solely a question for Congress, not the courts? If so, it would be a “non-justiciable” political question. This clause has never been addressed in the courts, so it is a new question. I think most observers were surprised that Judge Daniels spent so much time on this possibility and seemed so sympathetic to the argument that his court could dismiss the case by punting it to Congress.

This argument starts with the clause’s text: “No person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” 

(Let me note here that there is a second emoluments clause, prohibiting the federal government or the states from giving the President emoluments, with no exception granted to Congress to consent, so Judge Daniels can’t punt this entire case on the basis of possible congressional consent).

Judge Daniels asked, and I’m paraphrasing here, “Why doesn’t the political question doctrine apply? The clause assigns the power to Congress to consent or not. If the President is taking emoluments from foreign governments, let Congress weigh in.”

CREW’s Deepak Gupta gave a clear answer: “Because that approach would flip the clause on its head. The structure is a clear rule, with exceptions given to Congress. It’s a ban, but Congress can create exceptions to the ban. If you say it is non-justiciable, then you flip the script: you turn it into a broad permission to accept emoluments, unless Congress says no. That’s the opposite of the text and the Framers’ purpose.”

Judge Daniels replied: “Congress has the power to prevent emoluments if it wants to.”

Gupta replied that the default rule is that clauses are justiciable unless they are clearly and fully assigned to another branch, and if there are no manageable rules. He emphasized that the DOJ (through the Office of Legal Counsel) has crafted manageable rules over decades of cases and OLC opinions.

I was struck by Judge Daniels’s resistance to CREW’s arguments. The problem is that this is the first time courts have addressed this clause, so there is no direct precedent to answer this specific question.

However, this Emoluments clause is certainly not the only place in the Constitution that uses a similar structure: a prohibition against some act, but a grant of a power to Congress to make exceptions. In fact there are two other examples in the Article I, Section 10, immediately after the Foreign Emoluments Clause (Art. I, Sec. 9). They are prohibitions on state power with the same language, “without the Consent of Congress.”

Art I, Sec. 10, Clause 2: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”

The argument here would be the same: Because Congress can always declare or legislate its non-consent, this clause is a political question for Congress, not a justiciable question for the courts.  In fact, this clause has a double measure for congressional authority, adding that these state laws are “subject to Revision and Controul of the Congress,” so the possibility that this clause is only a “political question” is even stronger than the Foreign Emoluments Clause.  However, I can find about two dozen Supreme Court cases ruling on this clause, treating it as clearly justiciable. See, e.g., Chief Justice John Marshall’s decision in Brown v. Maryland, 25. U.S. 419 (1827).

The next clause is similar. Clause 3: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

It has the same structure: a general prohibition plus an exception for congressional consent. Is this clause nonjusticiable because it is a political question for Congress? The Supreme Court has ruled on tonnage duties under this clause at least a dozen times. It has ruled on the troops provision, and there are countless cases on interstate compacts.

Moreover, the same section that includes the Foreign Emoluments Clause also offers a prohibition on the executive branch, with grant of power to Congress:

Art I, Sec. 9, cl. 7: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Is this clause a political question? Its structure is similar to the Foreign Emoluments Clause: it is a prohibition, unless Congress consents (by passing an appropriations measure). But I have found half a dozen Supreme Court cases that treated the clause as justiciable.

What about Congress’s role in accepting new states?  Art. IV, Sec. 3:

[N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Presumably if California tried to split into two states, perhaps a Democratic Senate decided to seat an extra two Democratic Senators, though a Republican President and a Republican House rejected the creation of a North California and a South California. What if they sent an extra pair of electors to the Electoral College, too?  Surely the courts would have something to say about such shenanigans. This question would be justiciable (though the question of standing would be separate).

For another example, turn to the appointment power in Art II, Sec. 2:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

Let’s say President Obama decided that Congress’s silence on his nomination of Judge Garland to the Supreme Court or his nomination of Elizabeth Warren to head an agency was tantamount to implicit consent. Could these appointments be challenged in court? Surely if Justice Garland tried to rule on a case or if agency head Warren tried to regulate a bank, a plaintiff would have a day in court to challenge the legitimacy of those appointments. The fact that Congress has a role in permitting a president to act does not make its silence establish consent, nor does its potential role make the question non-justiciable.

I should add that this interpretation that silence equals consent would be particularly problematic in our current debates about individuals and their consent, from the domains of contract law and sexual contact.

The bottom line is that the framers drafted several provisions in the Constitution that the structure of a broad prohibition, but also carved out a power for Congress to make exceptions, twice with the exact same language of “without the consent of Congress.” The courts have treated those clauses as justiciable from Chief Justice Marshall through contemporary cases. Thus, the Foreign Emoluments Clause is justiciable, an appropriate and manageable question for the federal courts.

The Iran Deal Revisited

Reports indicate that Trump plans to “de-certify” the Iran deal, which would set in motion steps to reimpose American sanctions on Iran. Regardless of what you think of the Iran regime, isolated sanctions by the U.S. alone, without international cooperation, will be ineffectual. As I wrote in 2015 (and re-posted this February), this is actually the reason why the Iran deal made sense from the beginning: Russia, China, and Germany were preparing to end their participation in sanctions once Iran demonstrated that it was not pursuing a military nuclear program. At that point, the Obama administration had two choices: 1) symbolically support its own sanctions while the rest of the world ended their sanctions and allowed a weak inspection program (result: we make ourselves feel good, but no real world effect on Iran’s nuclear capability); or 2) make a deal to end sanctions for a stronger inspection program (result: taking a political hit from the right, but making a real world impact on Iran’s nuclear capability).

Obama chose #2 wisely. Trump is choosing #1 to score empty political points, in a counterproductive move that could make Iran more dangerous, and would make Iran’s moderates weaker.

Trump SoHo Fraud and Manhattan DA Cyrus Vance: Another reason why electing prosecutors is terrible

Propublica is reporting today that in 2012, New York prosecutors were on the verge of indicting Ivanka and Donald Trump, Jr., for fraud related to inflating numbers to generate sales of Trump SoHo units.  Propublica’s timeline shows how Trump lawyer Marc Kasowitz used large political donations to influence DA Cyrus Vance, and coincidentally Vance thwarted the indictments.

I note that Vance is up for re-election in November 7, 2017 and already won the Democratic nomination unopposed. I would love to know more about his Republican opponent.

Excerpt here:

“In 2010, when the Major Economic Crimes Bureau of the D.A.’s office opened an investigation of the siblings, the Trump Organization had hired several top New York criminal defense lawyers to represent Donald Jr. and Ivanka. These attorneys had met with prosecutors in the bureau several times. They conceded that their clients had made exaggerated claims, but argued that the overstatements didn’t amount to criminal misconduct. Still, the case dragged on. In a meeting with the defense team, Donald Trump, Sr., expressed frustration that the investigation had not been closed. Soon after, his longtime personal lawyer, Marc Kasowitz entered the case.

A view of the Trump SoHo hotel and condominium building. (Drew Angerer/Getty Images)

Kasowitz, who by then had been the elder Donald Trump’s attorney for a decade, is primarily a civil litigator with little experience in criminal matters. But in 2012, Kasowitz donated $25,000 to the reelection campaign of Manhattan District Attorney Cyrus Vance Jr., making Kasowitz one of Vance’s largest donors. Kasowitz decided to bypass the lower level prosecutors and went directly to Vance to ask that the investigation be dropped.

On May 16, 2012, Kasowitz visited Vance’s office at One Hogan Place in downtown Manhattan — a faded edifice made famous by the television show, “Law & Order.” Dan Alonso, the chief assistant district attorney, and Adam Kaufmann, the chief of the investigative division, were also at the meeting, but no one from the Major Economic Crimes Bureau attended. Kasowitz did not introduce any new arguments or facts during his session. He simply repeated the arguments that the other defense lawyers had been making for months.

Ultimately, Vance overruled his own prosecutors. Three months after the meeting, he told them to drop the case. Kasowitz subsequently boasted to colleagues about representing the Trump children, according to two people. He said that the case was “really dangerous,” one person said, and that it was “amazing I got them off.” (Kasowitz denied making such a statement.)

Vance defended his decision. “I did not at the time believe beyond a reasonable doubt that a crime had been committed,” he told us. “I had to make a call and I made the call, and I think I made the right call.”

Just before the 2012 meeting, Vance’s campaign had returned Kasowitz’s $25,000 contribution, in keeping with what Vance describes as standard practice when a donor has a case before his office. Kasowitz “had no influence and his contributions had no influence whatsoever on my decision-making in the case,” Vance said.

But less than six months after the D.A.’s office dropped the case, Kasowitz made an even larger donation to Vance’s campaign, and helped raise more from others — eventually, a total of more than $50,000. After being asked about these donations as part of the reporting for this article — more than four years after the fact — Vance said he now plans to give back Kasowitz’s second contribution, too. “I don’t want the money to be a millstone around anybody’s neck, including the office’s,” he said.






Our correction and apology to Professor Tillman

Today our lawyers sent a letter (linked here) to Judge Daniels acknowledging an error in footnote 82 of our amicus brief in CREW et al., v. Trump.  In addition to correcting this error, we would like to take this opportunity to apologize to Seth Barrett Tillman, to whom this footnote refers.  Although we acted in good faith, we now recognize that we were wrong to cite blog posts criticizing Professor Tillman’s research without undertaking more extensive due diligence to determine whether those criticisms were justified.  On the issue of Hamilton’s signature on the so-called Condensed Report, we now believe that Professor Tillman is likely correct, and his critics—including us—were mistaken.

In addition, we wish to acknowledge that footnote 82 makes several imprecise and unwarranted statements about Professor Tillman’s amicus brief.  First, we wrote that Professor Tillman’s brief “overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material,” when we should simply have observed that, in our judgment, his brief does not clearly identify a key archival manuscript that bears on its thesis.  Second, we wrote that a footnote (fn. 76) in Professor Tillman’s brief “incorrectly described the ASP print as ‘undated’ and ‘unsigned.’”  In fact, Professor Tillman’s footnote did not use the words “ASP print” or “unsigned” but instead characterized the “ASP document” as “undated” and the “document in ASP” as “not signed by Hamilton.”

Finally, we wish to apologize to Professor Tillman for the manner in which we took issue with his findings and arguments in our amicus brief.  Under the circumstances, a more appropriate way to proceed would have been to approach him directly and ask for clarification about his interpretation of the Condensed Report.  Each of us would hope for more generous treatment from another scholar who criticized our own work in this fashion, so it was unfair not show the same level of respect to Professor Tillman.

We regret these errors and extend our apologies to Professor Tillman, whose diligent research we admire. We appreciate his long-standing position on how to interpret the Constitution’s reference to “Office of Profit or Trust under [the United States],” regardless of who is holding the office of President, and we respect his commitment and creativity in pursuing that interpretation. We look forward to continuing to engage the many important historical questions raised by this lawsuit.


Jed Shugerman

John Mikhail

Jack Rakove

Gautham Rao

Simon Stern