An apology to Tillman and Blackman

On Tuesday evening, I received the proposed response by Seth Tillman and Josh Blackman explaining their treatment of the Hamilton “Condensed Letter.” I am writing separately from my co-authors on our amicus brief to offer my appreciation for the hard work by Tillman and Blackman to produce these experts’ reports, and I write to offer them an apology.

I welcome amicus’s introduction of these scholars and their interpretations. I have great respect for their expertise and their analysis. I am satisfied that Tillman and Blackman have provided support for their perspective on these documents. I note that we found the “Condensed Letter” in the archives only six weeks ago, and I will continue to examine it in light of these experts’ reports. There is much more to the arguments about the Emoluments Clauses, and I look forward to engaging them in future briefs.

Most importantly, I offer them a public and personal apology for my public questioning of their claims. I was wrong to suggest that Tillman misused sources, and I was wrong to question his credibility. I take full responsibility for my Aug. 31st blog post, which was my work alone, and solely my error in judgment. Even if my questions were reasonable and posed in good faith, I regret that I did not ask these questions by email to give Tillman an opportunity to respond directly. Tillman is a diligent, creative, intelligent, and learned scholar who deserved more respect than the way I handled these exchanges. I’m sincerely sorry for any trouble or hardship I caused for Mr. Tillman and his family.    

The States Can Trump Trump’s Pardons: State Prosecutions for Money Laundering, Tax Fraud, Hacking Conspiracy, and More

[This piece is cross-posted at Slate and Just Security]

 

After President Donald Trump pardoned former Sheriff Joe Arpaio, observers feared that the president was just warming up his pardon pen for his inner circle who may be targets of criminal investigations. Many legal experts have said there would be no recourse other than impeachment, but at least these pardoned defendants would lose their 5th Amendment privilege against self-incrimination and, as a result, they’d be forced to testify against Trump in some forum.

Those experts are wrong on both counts. The Trump defendants, if pardoned by the President, do not lose their 5th Amendment privileges, precisely because Presidential pardons affect only federal criminal liability, but not state prosecution.  Based on what we know now, all of these defendants face state prosecution for many of the same alleged acts based upon violations of state criminal law. Individuals pardoned by Trump may thus still claim they cannot be forced to say anything to incriminate themselves and that they remain exposed to criminal prosecutions at the state level.   

Some legal experts have doubted that states have jurisdiction over crimes committed in a federal presidential campaign, but they miss the bigger and longer-term picture of the Russia investigation and they overlook the details of how that collusion likely happened.

I have argued before that in trying to block special counsel Robert Mueller’s investigation, Trump can’t escape the states. If Trump fires Mueller and his team, state attorneys general and state prosecutors can hire them. If Trump succeeds in pardoning the defendants or himself, state prosecutors can step in without violating the rule against double jeopardy because of the legal concept of “dual sovereignty”: the states and the federal government have overlapping but separate sovereignty, and each can bring their own prosecutions for the same acts as long as those acts violate both federal and state law. For example, in the Rodney King case, police officers were found not guilty in California state court, but they were later convicted in federal court for federal crimes that covered the same set of acts.

One major recent development is that Mueller and New York Attorney General Eric Schneiderman are talking and cooperating in their investigations. This legal background of dual sovereignty is what makes this news so important. In this article, I dive into the reasons why. First, I explain that there are complicated state laws about double jeopardy that Trump’s pardons could manipulate, but not if Mueller and state prosecutors coordinate on the timing of state indictments. Second, I provide a list of possible state crimes stemming from the campaign and conspiracy with Russia, ranking the relative strengths of each. Third, I identify some possible legal difficulties with state prosecutions and start to address them.

I. Double jeopardy under state law

Even if the Supreme Court’s interpretation of the 5th Amendment’s double jeopardy clause allows states to follow the feds with their own prosecutions, some states (including New York) have a special statute that can occasionally prevent a state from bringing its own prosecution after a federal prosecution has advanced to trial. In New York, a state statute prohibits separate prosecutions for “two offenses based on the same act or criminal transaction” in many cases, and the statute appears to apply to separate state and federal prosecutions, even though there are several exceptions. Some states have similar statutes (although it seems California does not).

The next question is when “double jeopardy” applies. You don’t need a full trial or conviction to count as a first prosecution. In 1978, the U.S. Supreme Court held that jeopardy attaches once a jury is sworn in (or for a bench trial, when the judge swears in the first witness). Of course those points in time are based on an interpretation of the U.S. Constitution, and states may interpret their statutes applicability differently.

These state statutes raise the possibility that Trump might, intentionally or unintentionally, issue pardons only after federal prosecutions have advanced to a certain stage. It is not hard to imagine his doing so with the defendants in those cases well aware in advance that he plans to pardon them (so they need not plea bargain or cooperate). Such scenarios can be  eliminated if Mueller coordinates with Schneiderman, and if New York prosecutors go first. Then Mueller’s team can coordinate with New York prosecutors to work out a deal for these defendants to cooperate. The same coordination can work with other state prosecutors, as well, because many states may have jurisdiction to prosecute many of the crimes listed in the next section.

II. Possible state crimes

What are the strongest kinds of cases that state prosecutors could bring against Trump’s circle? Let’s begin with the strongest one first and work our way down to the weakest, based on available information of the relevant actors’ behavior.

  1. Tax fraud. Other major Mueller news is that he is working with the IRS, suggesting that the special counsel may already be moving toward tax fraud prosecutions starting with Manafort, and probably Flynn and anyone with unreported income. Considering how many Trump campaign figures may have hidden foreign income, tax fraud cases may be relatively strong and straightforward. The key point here is that if one violates federal tax laws by not reporting income, then they have most likely violated state tax laws as well. In fact, Georgetown Law’s Greg Klass has already wondered if Donald Trump himself may have been violating New York tax laws for a long time in manipulating tax breaks.

 

  1. Money laundering: Trump entities have been fined repeatedly for lacking money laundering protections and for their involvement in money laundering. There are serious concerns that the Trump Organization may have used real estate deals with Russian oligarchs to launder their assets, and the Trump DOJ’s recent low-ball settlement in a case of Russian money laundering seems suspicious. Deutschebank, the only western bank that continued to loan Trump money, is infamous for its own money laundering links to Russia and former Soviet states. Manafort is reportedly a target of Mueller’s money laundering investigation, and he probably isn’t the only one suspected. Mueller and Schneiderman are reportedly cooperating already in their money laundering investigations into Trump officials.

The U.S. Treasury Department describes three steps to money laundering:

Money laundering is the process of making illegally-gained proceeds (i.e., “dirty money”) appear legal (i.e., “clean”). Typically, it involves three steps: placement, layering, and integration. First, the illegitimate funds are furtively introduced into the legitimate financial system. Then, the money is moved around to create confusion, sometimes by wiring or transferring through numerous accounts. Finally, it is integrated into the financial system through additional transactions until the “dirty money” appears “clean.”

New York state statutes also criminalize money laundering for these steps in Penal Law Art. 470. Trump’s entities cross several state lines, making those states’ laws relevant too.

  1. Conspiracy in Computer Hacking (and Stolen Property): Did any members or affiliates of the Trump campaign solicit or conspire with Russians to hack the DNC computers and Podesta’s emails? Congress has criminalized computer hacking in the Computer Fraud and Abuse Act of 1986. New York has similar criminal statutes for computer tampering (Penal Laws 156.20, 156.25, 156.26, and 156.27, punishable by up to 15 years prison) and computer trespass (Penal Law 156.10, punishable by up to 4 yrs in prison). In June 2016 in Trump Tower, Donald Jr., Manafort, and Kushner met with Russians including the lawyer Natalia Veselnitskaya and Rinat Akhmethshin, a former Soviet counterintelligence officer, who allegedly brought opposition research material that may have been acquired through illegal hacking. Akhmetshin has already testified before a grand jury.

Many states could bring prosecutions for computer hacking, because their jurisdiction can be based on the residence of the victims. If someone conspires in Maryland to murder someone in Virginia, Virginia has jurisdiction based on the victim’s residence. The same is true if someone in New York conspired to hack computers, and the victims were foreseeably in Virginia and Maryland, as well as in many other states. Wild card: States also criminalize the solicitation, possession, receipt, and aiding in the concealment of stolen property, so there may be a basis for treating the theft of valuable personal information and company documents as a kind of stolen property.

  1. Conspiracy to Violate Privacy:

There is already a strong civil lawsuit against the Trump campaign, Cockrum v. Trump for President, for conspiring in the violation of privacy rights through Russian computer hacking and dissemination of emails. It’s important to keep in mind the role of private civil actions (like civil rights and torts claims by victims) in investigating and righting wrongs, but the immediate question is criminal liability. These same privacy allegations could be the basis for criminal enforcement of privacy protections, even though many states like New York have only narrow definitions of privacy violations under criminal law. Because the alleged conspiracy violated the privacy of so many victims in so many states, some states with more robust criminal protections of privacy rights will have jurisdiction.

5. Loan fraud and mortgage fraud. New York criminalizes loan fraud and mortgage fraud. Jared Kushner’s disastrous purchase of 666 5th Avenue for $1.6 billion in 2008 and his desperate effort to refinance it has generated enormous suspicion. One of the many questions: How did Kushner manage to secure a $1.6 billion deal with only $50 million down? All of these transactions and attempted refinancing arrangements raise suspicions of fraud and potentially quid pro quo bribery.

6. Quo Warranto powers: Every state attorney general has the power to investigate “ultra vires” wrongdoing by corporations in their state and to dissolve those corporations, as a modern extension of the English “quo warranto” writ. Delaware and New York can investigate the Trump Organization for emoluments, as the Trump Organization is incorporated in those states. Other states like California have the power to investigate other entities like Trump hotels (as limited liability companies). This power does not itself involve criminal enforcement, but it does empower the states to investigate frauds, which may turn into criminal prosecutions.

7. Witness tampering and obstruction of justice: Trump’s corrupt influence over the Russia investigation not only violates federal law. It also violates New York state law (Penal Law 195.05)  Perhaps a state prosecution for firing Comey is a stretch, but there may be other acts — like the destruction of evidence, witness tampering, or lying to investigators — that would be closer to obstruction in New York affairs or in other states. “Misprision of a felony,” which I have explained in this post is the federal crime that puts the Vice President in jeopardy, may also apply in Virginia, but such a state charge also may be a stretch of a criminal statute that already is obscure and rarely charged.

III. Legal hurdles

Finally, are there any legal obstacles to this approach?  One skeptic, Frank Bowman, suggested that the U.S. Constitution’s Supremacy Clause might be a barrier, but offers no case law to support such a stretched interpretation. The existence of the dual sovereignty doctrine and the precedents of federal and state prosecutions for the same act demonstrate that the Supremacy Clause has not limited these state powers. His questions are more about the politics and traditions of prosecutors, but if Trump is contemplating pardons to thwart justice, prosecutors in many states will have public opinion on their side, and many would find that the traditions of federalism and the rule of law more compelling than a tradition of deference to federal prosecutors. Sometimes federal preemption principles prevent a state from treading into federal territory, but I haven’t seen any evidence that Congress considered preempting state law in these areas.

Finally, there are questions about how state prosecutors can coordinate with federal prosecutors. In past cases of investigating and prosecuting organized crime, state and federal law enforcement often cooperated and coordinated closely. (And there may be ties to organized crime in this investigation). Grand jury testimony, even if it is kept secret from the general public, can be shared by federal prosecutors with state prosecutors. There is a general practice for state prosecutors to defer to federal prosecutors when the offense is primarily a federal one, and conversely, federal prosecutors have a general policy not to bring federal charges after a state has already prosecuted, called the Petite policy. But both sets of practices are based on norms and guidelines, with lots of exceptions.  

In these cases, if there is a question about Trump using federal pardons to impede the investigation, Mueller and Schneiderman (and perhaps other state prosecutors) have good reason to make exceptions here, and have justification for a very unusual step: a state prosecutor bringing the first charges involving the investigation of a U.S. president and his campaign.  

Pence and Obstruction of Justice

On Friday, news broke that Special Counsel Robert Mueller had obtained a draft letter written by President Trump and advisor Stephen Miller explaining Trump’s decision to fire FBI Director Jim Comey. They wrote the letter over the weekend of May 5-7, and then on May 8th, Trump distributed and read the letter to senior officials, including White House Counsel Don McGahn and Vice President Mike Pence. Then the letter was edited, and Trump fired Comey the next day.  On Friday, I suggested on Lawrence O’Donnell’s “The Last Word” on MSNBC that the most significant development was Pence’s potential criminal liability for his role in obstruction of justice (and I emphasize “potential,” because all we have at this stage are allegations in media reports and a lot more questions about the contents of the letter and Pence’s role in revising or editing it).

I have explained in other posts why Trump’s firing of Comey constitutes obstruction of justice under 18 U.S.C. 1512(c)(2), and arguably Sections 1503 and 1505. “(c)Whoever corruptly- (2)… obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” 18 USC 1515 defines “official proceeding,” and includes Congress and authorized government agencies. The 2d and 5th Circuits have held that an FBI investigation is an official proceeding (but a 9th Circuit case raises questions about that interpretation). But keep in mind that 1) Congress had already started its investigation (including having Comey testify about the Russia probe), and 2) prosecutors had already obtained grand jury subpoenas in the Flynn caseThese official proceedings had already begun, particularly in the Flynn investigation, which had been the focus of Trump’s questions to Comey in January through April. Firing Comey would impede those official proceedings, and Trump himself more or less confessed to trying to influence and impede the Russia investigation by firing Comey: first on national TV to NBC’s Lester Holt, then in the Oval Office to Kislyak and Lavrov on an official transcript.

In this new post, I explain Vice President Pence’s potential criminal jeopardy for conspiring to obstruct justice, aiding the obstruction of justice, and “misprision of a felony” in concealing the obstruction of justice.

First, I offer an extended quotation from The New York Times describing the events:

The letter, drafted in May, was met with opposition from Donald F. McGahn II, the White House counsel, who believed that its angry, meandering tone was problematic, according to interviews with a dozen administration officials and others briefed on the matter. Among Mr. McGahn’s concerns were references to private conversations the president had with Mr. Comey, including times when the F.B.I. director told Mr. Trump he was not under investigation in the F.B.I.’s continuing Russia inquiry.

Mr. McGahn successfully blocked the president from sending the letter — which Mr. Trump had composed with Stephen Miller, one of the president’s top political advisers — to Mr. Comey. But a copy was given to the deputy attorney general, Rod J. Rosenstein, who then drafted his own letter. Mr. Rosenstein’s letter was ultimately used as the Trump administration’s public rationale for Mr. Comey’s firing, which was that Mr. Comey had mishandled the investigation into Hillary Clinton’s private email server….

The New York Times has not seen a copy of Mr. Trump’s letter — which was drafted at the urging of Mr. Trump during a pivotal weekend in May at the president’s private golf club in Bedminster, N. J. — and it is unclear how much of the letter’s rationale focuses on the Russia investigation…

Mr. Trump ordered Mr. Miller to draft a letter, and dictated his unfettered thoughts. Several people who saw Mr. Miller’s multi-page draft described it as a “screed.”

Mr. Trump was back in Washington on Monday, May 8, when copies of the letter were handed out in the Oval Office to senior officials, including Mr. McGahn and Vice President Mike Pence. Mr. Trump announced that he had decided to fire Mr. Comey, and read aloud from Mr. Miller’s memo.

Some present at the meeting, including Mr. McGahn, were alarmed that the president had decided to fire the F.B.I. director after consulting only Ms. Trump, Mr. Kushner and Mr. Miller. Mr. McGahn began an effort to stop the letter or at least pare it back…

Mr. Rosenstein’s memo arrived at the White House the next day. The lengthy diatribe Mr. Miller had written had been replaced by a simpler rationale — that Mr. Comey should be dismissed because of his handling of the Clinton email investigation. Unlike Mr. Trump’s letter, it made no mention of the times Mr. Comey had told the president he was not under investigation.

Mr. Rosenstein’s memo became the foundation for the terse termination letter that Mr. Trump had an aide attempt to deliver late on the afternoon of May 9 to F.B.I. headquarters in Washington. The White House made one significant revision, adding a point that was personally important to Mr. Trump: “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau,” the letter said.

With those reports in mind, I address Pence’s potential criminal liability for obstruction of justice in terms of conspiracy, aiding and abetting, and misprision of a felony (18 U.S.C. 4).

  1. Conspiracy to obstruct justice and aiding obstruction of justice: If the New York Times account is correct, then Pence read the first draft of the letter, and the letter indeed had conveyed that Trump was focused on the Russia investigation. Pence is a lawyer, so he would be held to a higher standard for understanding the basics of obstruction of justice. And Don McGahn apparently raised his own legal concerns, so there is a strong basis for establishing Pence’s awareness that Trump’s letter may have established Trump’s “corrupt intent” to impede the Russia investigation. If Pence helped to edit and revise the letter, and supported the firing of Comey despite knowing Trump’s intent to obstruct, then he conspired to obstruct justice himself and aided in the obstruction. Conspiracy is covered by 18 USC 371, and aiding and abetting is covered by 18 USC 2. A helpful and concise article on federal conspiracy law, with a discussion of its relation to aiding and abetting is here.

The 9th Circuit has helpfully explained the basics of conspiracy and its relationship to aiding and abetting:

The difference between the classic common law elements of aiding and abetting and a criminal conspiracy underscores this material distinction, although at first blush the two appear similar. Aiding and abetting the commission of a specific crime, we have held, includes four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent to commit the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that the principal committed the underlying offense. As Lopez emphasized, the accused generally must associate[ ] himself with the venture … participate[ ] in it as something he wish[es] to bring about, and [sought by] his action to make it succeed. By contrast, a classic criminal conspiracy as charged in 18 U.S.C. § 371 is broader. The government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. Indeed, a drug conspiracy does not even require commission of an overt act in furtherance of the conspiracy. Two distinctions become readily apparent after a more careful comparison. First, the substantive offense which may be the object in a § 371 conspiracy need not be completed. Second, the emphasis in a § 371 conspiracy is on whether one or more overt acts was undertaken. This language necessarily is couched in passive voice for it matters only that a co-conspirator commit the overt act, not necessarily that the accused herself does so. In an aiding and abetting case, not only must the underlying substantive offense actually be completed by someone, but the accused must take some action, a substantial step, toward associating herself with the criminal venture. United States v. Hernandez-Orellana, 539 F.3d 994, 1006-1007 (9th Cir. 2008)(emphasis in the original).

  1. Misprision of a felony

“Misprision of a felony” is found in 18 U.S.C. 4, right after the “aiding and abetting” and “accessory after the fact” statutes:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Misprision sounds overly broad and seems to create a risk of criminalizing too many omissions. The statutes originated from England in an era without police forces or even public prosecutors, so law and order depended upon the public reporting crimes. The Supreme Court explained in 1980:

Concealment of crime has been condemned throughout our history. . . . Although the term “misprision of felony” now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship. This deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself. Unless his silence is protected by the privilege against self-incrimination . . . the criminal defendant no less than any other citizen is obliged to assist the authorities. See Roberts v. U.S., 445 U.S. 552, 557-58 (1980)

But one should also read Justice Marshall’s dissent concerns about the breadth of misprision and the danger of its aggressive use.  In our modern era, as this need for the public’s participation has lessened and as our concerns for civil liberties have grown, courts have rightly limited the scope of misprision in two important ways:

1) to require active steps, either concrete or verbal, to conceal; and

2) to hold public officials to a higher standard than private individuals.

Misprision convictions are appropriately rare. Prosecutors often rely on conspiracy, aiding or abetting, and/or being an accessory after the fact. But as part of a compromise in a plea bargain, prosecutors will sometimes drop those charges in exchange for a defendant to plead guilty to misprision. Nevertheless, misprision remains in use, and its elements may apply to Pence’s conduct, though we need to know more about his actions and the contents of the first letter.

For this discussion, I chiefly rely on Christopher Mark Cureton’s recent article, “The Past, Present, and Future of 18 U.S.C. Section 4: An Exploration of the Federal Misprision Statute,” 55 Ala. L. Rev. 183 (2003).

The elements of American misprision of felony are that: “(1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal.” United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988).

Cureton explains that active concealment can be physical or verbal. Courts “almost uniformly” treat physical acts of concealment as sufficient for misprision. Verbal concealment is harder to prove. Mere silence is insufficient to support a conviction for misprision. At the other extreme, knowingly providing the police with completely false information will constitute concealment. In United States v. Hodges,  the underlying offense was a kidnapping in which the defendant misrepresented to FBI agents that he had never seen the kidnapping victim. The court held that lying to authorities about a crime is an act sufficient to constitute concealment. In contrast, making truthful but incomplete statements may not amount to concealment. The Ninth Circuit’s rationale for this is that a partial, truthful disclosure does “not result in any greater concealment of the crime than would” result if the defendant said nothing at all. (citing United States v. Hodges, 566 F.2d 674, 675 (9th Cir. 1977); United States v. Pittman, 527 F.2d 444, 444-45 (4th Cir. 1975); United States v. Ciambrone, 750 F.2d 1416, 1418 (9th Cir. 1984).

In 1996, prosecutors charged a corporation with misprision of felony for the first time. Daiwa Bank, Ltd. executives had discovered that one of their traders “had lost over $1.1 billion through unauthorized trading in United States government securities” and that the trader then sold other customers’ securities to cover the losses. Daiwa avoided reporting the crime, and instead:

committed numerous crimes in its effort to hide these losses. In particular, DAIWA made extensive false entries in its books and records, prepared and sent false account statements, filed a false report with the Federal Reserve, explored plans to hide the loss permanently by moving it off-shore, secretly replaced the missing $377 million of customer securities, and engaged in a fictitious transfer of $600 million worth of nonexistent securities. (Press Release, U.S. Attorney, Southern District of New York, Announcement of Daiwa Guilty Plea and Sentence (Feb. 28, 1996) (WL 1248 PLI/Corp 197, 245)).

Daiwa pled guilty to misprision of a felony, as well as fifteen other federal felonies, and paid a $340 million dollar fine, the largest ever paid in a criminal case at that time. (Curenton at p. 190).

In this case, if Pence heard the letter, (and perhaps heard McGahn’s concerns), and provided any feedback to editing and revision to conceal the obstructive purpose, and/or provided support for the decision to fire Comey, he provided an affirmative act as part of crime. (These acts could also be part of conspiracy and aiding obstruction).

Moreover, we already know that, on May 10, a day after Trump fired Comey, Pence publicly denied that the Russia investigation factored into the decision (full video here):

Question: “But did the President fire Comey to impede the Russia investigation?”

Pence first answered by saying the Trump “is not under investigation.”

A reporter followed up, “But intelligence officials have said there is an investigation into potential ties between campaign officials and Russia…

Pence: “That was not what this is about.”

A different reporter asked, “What about the president’s dissatisfaction with the Russia probe. Did that play into this, sir?”

“Let me be very clear that the President’s decision to accept the recommendation of the deputy attorney general and the attorney general to remove Director Comey as the head of the FBI was based solely and exclusively on his commitment to the best interest of the American people and to ensuring that the FBI has the trust and confidence of the people of this nation.”

If Pence had read Trump’s letter, and if the letter’s “screed” in fact focused on the Russia investigation, Pence’s answers would be a combination of lies, misrepresentation, and concealment. If the allegations are true, then the combination of Pence’s participation in the letter revision and his lies afterward would constitute the affirmative acts necessary for misprision.

  1. Public officials are held to a higher duty

Historically, courts have held public officials to a higher duty for misprision. Blackstone himself seemed to indicate that English statutes placed higher duties on public officials, relative to private individuals, to report crimes. Blackstone, Commentaries, Vol II, P. 85 See Carl Wilson Mullis III, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1113-14 (1974); P.R. Glazebrook, Misprision of Felony: Shadow or Phantom?, 8 Am. J. Legal Hist. 189, 194 (1964). See also Curenton at 191-92.

In fact, in my own research, I have found that federal officials already have a duty under federal regulation to report crimes they have observed. The Code of Federal Regulations includes a section on “Basic Obligations of Public Service”: with a specific duty to disclose not only crimes, but also abuse and corruption: “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

Curenton also suggests that, when the defendant is a public official, misprision should not require even an affirmative act of concealment (Curenton at 191-92):

A better alternative would be to remove the requirement of an affirmative act of concealment when dealing with people in positions of trust, such as government officials. In these situations, requiring an affirmative act makes little sense because such officers are usually already under an affirmative duty to report illegal activities.This change would be consistent with the common law tradition of misprision because the term misprision itself was thought to have been “especially appropriate to the misconduct of public officers.” Further, such an alteration may be advisable because “(p)ublic officers voluntarily seek this special position of trust, and expecting them to report crimes does not place an onerous burden upon them.” Thus, it may be appropriate to not only maintain the current misprision of felony statute that requires affirmative acts of concealment as well as a failure to report, but also to develop a second version that punishes a public figure’s mere failure to report. This same approach could also be used in the corporate realm, where disclosure is an expected and (increasingly) recommended business practice. Curenton at 191-92 (citing Carl Wilson Mullis III, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1113-14 (1974); P.R. Glazebrook, Misprision of Felony: Shadow or Phantom?, 8 Am. J. Legal Hist. 189, 194 (1964).

Even if one does not go as far as Cureton’s proposal, the established law and precedents  on misprision would put Pence in legal jeopardy for his combination of affirmative acts of concealment before and after the firing, plus his higher duties of reporting crimes as a public official.

The bottom line:

If the reports are correct that Pence heard Trump read his draft letter, a “screed” emphasizing Comey’s handling of the Russia probe, that he may have participated in feedback or revision to conceal that intent, then Pence is in legal jeopardy for obstruction of justice, either as conspiracy, aiding and abetting, or misprision of a felony.

Questions about the Emoluments Amicus Brief on Behalf of Trump UPDATED

Update 9/22: please see my apology for this post here. I’m not deleting this Aug. 31 post because it’s important to acknowledge my error, not to erase it. 

The amicus brief filed on behalf of President Trump in CREW v. Trump (the first Emoluments suit) by Seth Barrett Tillman and Josh Blackman has some serious problems with how it represented its historical sources. The brief argues that the Foreign Emoluments Clause does not apply at all to the president, because the presidency is not “an office under the United States.” No court has ever adopted this interpretation, and their only historical document that supports their claim is one letter by Alexander Hamilton to the Senate in 1793 (because that letter did not include the President). However, it turns out that a second Hamilton letter to the Senate on the same day shows the opposite (because it included the President). Their amicus brief buries this second letter in a footnote and, in order to bury it even deeper, it makes incorrect factual claims about it (that it was undated, unsigned, and written by an unknown Senate functionary). This post examines this scholarship more closely to understand how these irregularities happened and to correct the record.

On July 6, Brianne Gorod raised important questions about how their brief treated these sources and how Tillman was less than forthcoming in prior work about the contrary evidence.  On July 17, Gautham Rao and I addressed more broadly the substance of Tillman’s claims, after he and Blackman published an op-ed in the New York Times(It’s important to note that last November 2016, Tillman published an earlier New York Times op-ed asserting the same point relying heavily on his preferred Hamilton letter, but failing to mention the contrary Hamilton letter).

On Aug. 1st, Brianne Gorod posted an image of the second letter from the National Archives, explained that Tillman and Blackman’s brief misstated the facts about its most important document, and noted other irregularities, omissions, and mistakes in earlier publications. Our colleague Rebecca Brenner followed up with her own visit and took photos of every document in the archival box. We posted them online here on a website to offer to the public images of all of the contents of the archival box. Then we noted these concerns briefly in a footnote in our amicus brief, filed on Aug. 11th.

In the meantime, we had hoped for some kind of explanation or acknowledgement of these concerns in the two weeks that have passed. Instead, Professor Tillman continues to promote this argument without admitting error. Waiting in vain, I started seeking an explanation myself, reading Tillman’s work trying understand what was going on. I don’t have any answers, but only more questions. I am going to try to go very carefully through Tillman’s publications in which he offers this “office under” argument and where he cites the Hamilton letters. Far too often, he cites only his preferred letter that fits his thesis, with no acknowledgement of the second letter that undercuts his thesis. Even more troubling, when he cites that second letter, he has either avoided acknowledging that it contradicts his argument, or later, he mischaracterizes the letter to delegitimize it without factual support. And perhaps most oddly, he eventually produced an image from the archives of the original letter that supported his thesis, but instead of producing an image of the other letter, he continued to cite only its printed reproduction and continued to rely on that reproduction, which enabled him to continue mischaracterize it… even though the two published sources told readers where to find the original manuscript in the same archives.

Before I dig into these details (and I’m sorry, this post is surely too detailed in the weeds of footnotes), I want to acknowledge that Josh Blackman lives in Houston. I send my best wishes to him and everyone else in Houston for health, safety, and recovery. I certainly don’t expect him to reply to any of these questions directed mainly towards his co-author Tillman and Tillman’s  primary research.

        First, here is a link to Tillman and Blackman’s brief on behalf of Trump.  On p. 19, the amicus brief provides an image of one Hamilton letter (which we’ll call the “Tillman letter”) and offers this description:

Alexander Hamilton sheds more light on the scope of the Foreign Emoluments Clause. In 1792, the Senate directed President Washington’s Secretary of the Treasury, Hamilton, to draft a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States.” The Foreign Emoluments Clause’s language is limited to offices of profit or trust under the United States. The broader language used in the Senate order, however, includes all offices under the United States, without the “of profit or trust” limitation. Hamilton took more than nine months to draft and submit a response, which spanned some ninety manuscript-sized pages. In it, he included appointed or administrative personnel in each of the three branches of the federal government, including the Legislative Branch (e.g., the Secretary of the Senate and Clerk of the House). But Hamilton did not include the President, Vice President, Senators, or Representatives. In other words, Hamilton did not include any elected positions in any branch. Like Washington’s acceptance of Ternant’s gift of the framed portrait of Louis XVI, the Hamilton document is another probative Executive Branch construction of the Constitution’s office under the United States-language, which was established during Washington’s first term (and so contemporaneous with the ratification of the Constitution). This official and meticulous correspondence is not consistent with Plaintiffs’ claim that the Foreign Emoluments Clause’s “office . . . under the United States” language encompasses the presidency.

Here is the brief’s footnote citing this letter:

See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (“PAH”), 157, 157–59 (1969), perma.cc/49RT-TTGF. The editors of PAH marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The original Hamilton-signed document, on which the PAH reproduction is based, remains in the vaults of the National Archives & Records Administration (Record Group #46). An excerpt of the original Hamilton-signed document is available at bit.ly/2rQCDxX. Amicus notes that an entirely different document (but bearing a similar name) can be found in American State Papers (“ASP”). See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834). The document in ASP was not signed by Hamilton. The undated ASP document was drafted by an unknown Senate functionary. Unlike Hamilton’s manuscript, the record in ASP includes the President and Vice President. Both documents are probative of the legal meaning of Office . . . under the United States as used in the Senate order. But the two documents are not equally probative. There is no reason to favor a document of unknown provenance over the Hamilton-signed original which was, in fact, an official communication from the Executive Branch responding to a Senate order.

I have bolded the statements in the footnote that turn out to be untrue or are unfounded assertions.  Tillman uses the acronyms PAH and ASP. For clarity, I’ll call the first letter “Tillman/PAH” and the second letter “ASP.”  Tillman provided an image only of the first letter. You can see an image of the original manuscript printed in the ASP here at image 12. But I also post the image here as a JPG and a PDF:

  1. ASP Hamilton Letter 
  2. PDF:

ASP Hamilton letter image

The ASP’s letter was in the same box as the Tillman/PAH letter, in the folder immediately next to the folder holding the Tillman/PAH preferred letter. Their brief claims that it was undated and unsigned, but you can see plainly (in both the original above and in the ASP print below) that this letter was in fact dated Feb. 26, 1793, and signed by Hamilton (note Hamilton’s distinctive curls in “A” and in the middle of the “H.”) It’s not obviously clear whether Hamilton drafted it, but there is no basis to suggest that it was drafted by an unknown Senate functionary.  The “A” in Adams looks like the same hand that signed the “A” in Alexander and the same “A” Hamilton uses elsewhere. It was most likely drafted by Hamilton.

There is a second letter in the same folder with “the ASP letter” dated Feb. 27th, and written and signed by Hamilton.  (Here at image 9).  It appears that this letter, probably also drafted by Hamilton, accompanied the ASP letter.

Here is an image from the American State Paper’s printed version of that original manuscript. Note that the print includes the president and vice president, and also includes a date, a printed version of Hamilton’s signature, and no indication that it was drafted by a “Senate functionary” or anyone else other than Hamilton.

ASP print image

My first thought was that Tillman started with and was relying upon the published Papers of Alexander Hamilton (Syrett and Cooke, eds.). I wondered if maybe Syrett and Cooke had a note about why they published one letter (omitting the President) rather than the other (including the President). Or perhaps Syrett and Cooke didn’t mention the ASP letter at all. So I checked. In fact, Syrett and Cooke note the existence of the ASP letter in a footnote.  They explain that they did not publish the enclosure of 90-page manuscript pages listing the salaries, but at note 3, they then point to the ASP: “For an abbreviated version of it, see ASP, Miscellaneous I, 57-68.” Here is an image of the Syrett and Cooke notes (see note 3):

img_0372

Syrett and Cooke offered no reason to doubt the provenance of this abbreviated version, but only reason to see it as a legitimate source. Syrett and Cooke chose to publish the letter that accompanied the 90-page manuscript, rather than the abbreviated list, which is understandable.

But therein lies the explanation for why that first letter did not include the president and vice president, offered by Brianne Gorod and with which I agree:

“Those 90 pages reflected documents that the Treasury Department had received from different departments across the federal government.  Many contained a listing of every officer in their department—from the head of the department to the lowliest clerk.  One of the documents provided the compensation of every lighthouse keeper in the country.”

The “Tillman/PAH” letter is the summary of those 90 pages of reports. There was no outside report on the salary of the President or Vice President, because none was necessary. But that 90-page document was more than Congress needed, and so Hamilton put together an abbreviated version, a list only of the relevant salaries, rather than a list summarizing the many documents. Because the President’s and Vice President’s salaries were relevant but not documented separately, they show up on Hamilton’s cover letter for the abbreviated version (the ASP letter), not the cover letter for the long summary of separate documents (the Tillman/PAH letter). The abbreviated list was a shorter document, but it was actually a more complete list.

Once I saw that the Syrett and Cooke volume noted the existence and location of the ASP document in the National Archives, and gave reason to treat the ASP as a legitimate document, I then tried to figure out whether Tillman offered any other reasons for dismissing it and overlooking it. After all, he had gone to the trouble to provide a digital photograph in his brief of his preferred Hamilton letter (the Tillman/PAH letter).

My next step was to see how Tillman cited these letters in the past. His treatment of these two letters is inconsistent, but he never describes the ASP letter accurately or justifies why it is less legitimate a Hamilton source.  I will proceed step by step through his publications on this topic:

  1. As far as I can tell, Tillman first published the argument that the President is not an “office under the U.S.” in 2008. In a debate with Steven Calabresi, Tillman relies on other arguments, but mentions neither Hamilton letter. (“The Great Divorce,” 157 U. Pa. L. Rev. PENNumbra 134 (2008)). Calabresi replies, “Seth Barrett Tillman has made an ingenious argument for an utterly implausible proposition. He claims that Presidents of the United States can serve simultaneously in Congress as senators or representatives.” Id. at 142. Calabresi concludes that Tillman’s argument is inconsistent with plain meaning, original public meaning, and with centuries of history.

2. In 2009, Tillman returned to the same argument, but still had not yet cited either of the Hamilton letters. (“Why Our Next Preisdent May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause,” 94 Duke J. Const. L. & Pub. Pol’y 107 (2009)).

3. In April 2012, he cited the Hamilton letter for the first time in a Northwestern Law Review Colloquy. He cited Syrett and Cooke’s PAH as the source, but did not mention the ASP letter at all. (“Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle,” 107 Nw. U. L. Rev. Colloquy 1 at 14 (2012).

4. In a conference paper posted in 2012 and presented in 2013, Tillman again cites only the Syrett and Cooke papers and does not mention the ASP letter. Tillman does add to the footnote: “For the reader who would like to explore the original Hamilton-authored document and its subsequent reproductions, see Seth Barrett Tillman, Hamilton, the Secretary of the Senate, and Jefferson (2011), https://works.bepress.com/seth_barrett_tillman/203/.”

I have checked this link a few times in August, and it is only a cover page, the title, and a blank page that simply says “[Text starts here].”  There are no documents or reproductions on this site.

[UPDATE Sept. 8: Tillman has pointed out that even though the downloaded document is blank, if one scrolls down to the bottom of this page, there are links to seven images, and one of those documents is the ASP manuscript. I was expecting the downloadable document to include any sources, and I did not realize I needed to look further on the site for links. I sincerely apologize for the oversight. This site’s inclusion of an image of the original now raises more questions and answers. If Tillman had possession of the original manuscript around 2010 or 2011, why did he continue to cite only the ASP printed version thereafter, including in the amicus brief? He produced an image for the amicus brief of the favorable PAH letter, but no mention of an original manuscript of the unfavorable ASP letter].

5. In another 2012 draft posted on SSRN, called “Either/Or” or “Contradictions,” Tillman cited both Syrett and Cooke’s letter and the ASP letter, but note that when Tillman describes the ASP letter, he claims that Senate staffers, not Hamilton, wrote it, and they added the President and Vice President, without support for this claim. He claims that it may have been produced “a generation later,” when the ASP print provides the same date, Feb. 26, 1793, and gives no reason to doubt that it was written then. It is a claim manufactured out of thin air:

Footnote 117: Hamilton’s ninety page return was unwieldy. Unnamed and unknown Senate staff wrote an amended version. They added in line entries for the President and Vice President, but not for members of Congress. This amended version also left in the line entries for congressional staff. It is unclear when the Senate produced this document. It may have been produced contemporaneously with Hamilton’s reply or it may have been produced a generation later for incorporation in American State Papers. See Alexander Hamilton, List of Civil Officers of the United States, except Judges, with their Emoluments,for the Year Ending October 1, 1792 (Feb. 26, 1793), in MISC. VOL. 1 AMERICAN STATE PAPERS, supra note 45, at 57-68 (Class X, Doc.No. 34).

So when Tillman first cited the ASP letter, he mischaracterized it and made unfounded claims about it.

6. Later, in another round in his debate with Teachout in a 2013 Northwestern colloquy, Tillman simply cited the earlier 2012 Northwestern colloquy, with no cites directly to any of these documents. “Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout,” 107 Nw. U. L. Rev. Colloquy 180, 187 n.15 (2013).

7. In a different 2013 piece, he offers the same general interpretation about “office under the U.S.,” but with no reference to any of the Hamilton letters. “Interpreting Precise Constitutional Text,” 61 Clev St. L. Rev. 285 (2013).  So both Hamilton letters had suddenly disappeared from Tillman’s thesis. 

8. Then in 2014, he brought back only his Tillman/PAH letter to his thesis, but did not mention the ASP letter. “Originalism and the Scope of the Constitution’s Disqualification Clause,” 33 Quinnipiac L. Rev. 59, 81 n.63

9. In 2016, in “Who Can Be President of the United States,” 5 Br. J. Am. Leg. Studies 106 n.25, Tillman returned to citing the ASP document, but for a completely different purpose (only to list the salaries of various offices), with no acknowledgement that this document creates a basic problem for his argument later:

Footnote 25: See Alexander Hamilton, List of Civil Officers of the United States, Except Judges, with their Emoluments, for the Year Ending October 1, 1792 (Feb. 26, 1793), in 1 American State Papers: Miscellaneous 57, 57–68 (Walter Lowrie & Walter S. Franklin eds., Washington, Gales and Seaton 1834) (listing compensation of government officials, including the President, who made $25,000 per year, and Morris and Pinckney, who each made $9,000 per year, and also received $9,000 for “outfit”), http://tinyurl.com/z6h9u23. (A reproduction of Hamilton’s original document appears in The Papers of Alexander Hamilton. See infra note 33.)

Two pages later, Tillman returned to the argument from his preferred Hamilton letter, citing the Syrett/Cooke source, and then mischaracterizes the ASP print again, calling it “nearly identical,” not mentioning the fact that it was not identical in the most important way: it lists the President and Vice President! But he hid that obviously crucial difference – the fact that contradicts his thesis and his evidence — from the reader:

Footnote 33: See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton: February 1793–June 1793, at 157, 157–59 (Harold C. Syrett & Jacob E. Cooke eds., 1969), http://works.bepress.com/seth_barrett_tillman/203/3/download; supra note 25 (reporting a nearly identical document in AmericanState Papers). [Citation to the Senate request document from 1792]. It should go without saying that Hamilton’s list encompassed no (appointed or elected) state positions.

First, that link is the same one that turns out to be blank. But then here’s the whopper: “It should go without saying”?  It’s ironic, because Tillman also goes without saying that the inconvenient source he hides in his “supra note 25” actually lists the President and Vice President.

In the meantime, Tillman has offered these arguments to the general public, on the Constitution Center website, and (as noted above) twice in the New York Times, only mentioning his preferred Hamilton letter from the PAH, and never acknowledging the other Hamilton (from the ASP) that contradicts his conclusion. These three public pieces were misleading, and that’s putting it generously.  

Then this summer, their amicus brief repeated all these same factual errors and mischaracterizations about the ASP letter: that it wasn’t signed or dated, and that it was drafted by a Senate functionary.  As Brianne Gorod noted, these descriptions have no basis in the printed sources, even if one hadn’t seen the original manuscript. Again, the American State Papers include the date (Feb. 26, 1793) and indicate that it was signed by Hamilton. Nothing in the Syrett and Cooke’s PAH raises any doubts about its authenticity.

First, Tillman has some questions to answer about these repeated irregularities. Whether by omission or commission, his treatment of the Hamilton letters has been misleading in each of his publications or posted papers on this topic since 2012.

Second, Tillman has some questions to answer about why he decided to post an image from the archives only of his preferred PAH letter in his amicus brief, but not an image of the ASP’s letter in the same box, one file folder away, that contradicted his broader argument and contradicted his assertions about that particular document. Again, both Syrett and Cooke and the American State Papers told him where to find it. Rather than make unfounded assertions about that document, why not find it, especially if you’re already examining the same box?  Tillman cited both Syrett and the ASP in 2012, so he has known where to find it for five years.

We all make mistakes, of course.  Every historian has overlooked an important document, even when other historians told us where to find it. Every historian has erred in describing or quoting a document. Every historian has faced tough choices about when to travel to an archive to check a source and when to rely on printed volumes, and how to interpret those editors’ choices. I have made such mistakes — some I found out soon after, and some I haven’t yet discovered.  For example, in the amicus brief, we referred to one Syrett/Cooke letter from Hamilton as the “1792 letter,” because we used an initial shorthand for the two letters, but that shorthand was confusing. Both letters were written in 1793, and in the future, we will refer to it differently, perhaps as the “condensed Hamilton letter” or “ASP letter.”

Perhaps Tillman had inferred that Syrett and Cooke included one letter and not the other because they thought it was more reliable. Perhaps he had some reason to doubt the American State Papers, although I haven’t heard any basis for those doubts. Perhaps there is a good explanation for how someone missed the second letter while looking for the first.  The question isn’t about blame for mistakes. The question is what we as historian do after we have discovered our mistakes.  

The troubling aspect of the past few weeks is that, after Brianne Gorod, Gautham Rao, and I raised a list of concerns and then posted images of the original documents and all of the box’s contents, Tillman has continued to promote the same argument. In fact, on August 24, he has just posted a preview for a conference presentation in September on the same argument, and for it, he posted his amicus brief. The abstract of his talk dismisses the opposing side as liberals who are only fitting the Emoluments clause into their preconceived assumptions. He hasn’t acknowledged that he has selectively interpreted one source — and mischaracterized or ignored a contrary source — in order to force it to fit his own idiosyncratic assumption. Moreover, it’s proudly his “pinned tweet,” as of Aug. 31st.  Instead of addressing the mounting questions about his research, he marches forth his erroneous and uncorrected brief.

One might expect that when a brief before a court contains significant factual errors or misleading interpretations of evidence, the authors of that brief will offer to correct their briefs or retract the sections if they are no longer supported by the evidence. Fortunately, Professor Tillman still has ample time to address these questions and correct the record.  As the Emoluments cases progress, I look forward to continuing to engage with his legal and historical arguments. However, it is vital that we all describe our historical sources clearly, accurately, and openly, and that we are careful to make sure our arguments are fairly supported by the historical evidence.

Dramatis Personae of potential indictments (or cooperating witnesses)

I’m keeping a list of all the people who could be indicted (or could be flipped into cooperating witnesses against others). It’s a long list, so I thought I’d start keeping track of them with handy links for background, highlights, and potential crimes.

Michael Flynn: So much trouble. Failure to disclose foreign contacts on SF-86. Failed to disclose payments from foreign governments. Failed to file as a foreign agent.

Carter Page: potentially a foreign agent for Russia while working for the Trump campaign as a foreign policy adviser.

Michael Cohen: The “Says who?” guy. One of Trump’s long-time lawyers, with alleged ties to Ukrainian and Russian organized crime. Emails surfaced between Sater and Cohen in 2015 about building a Trump Tower in Russia.  Talkingpointsmemo.com is all over this guy here and here. Update: “Donald Trump discussed a proposal to build a hotel and condominium tower in Moscow on three occasions with his company’s lawyer, who emailed the press secretary for Russian President Vladimir Putin to ask for assistance on the project. The Trump Organization weighed the “Trump Tower Moscow” proposal from September 2015 to January 2016, attorney Michael Cohen told the House intelligence committee.”

Felix Sater: shady business partner turned FBI informant, with ties to Ukrainian and Russian organized crime. Wrote to Michael Cohen in 2015: “Our boy can become president of the USA and we can engineer it… I will get all of Putins team to buy in on this, I will manage this process.”  Talkingpointsmemo.com was all over this guy in August 2016, while the mainstream media was talking Hillary’s emails, and has more now.

Jeff Sessions: perjury, false statement, probably more Russia trouble with Kislyak.

Paul Manafort: Money laundering, millions in corrupt deals, failed to file as a foreign agent. The pre-dawn FBI raid in July 2017 means a judge or magistrate already found probable cause for crimes.  There are so many damaging stories here, here, and more.

Jared Kushner: Shady June 2016 meeting with Russian lawyer and hacker. Tried to set up insane direct line from Russian embassy in DC to the Kremlin to avoid any American surveillance. In big trouble for a disastrous real estate purchase — the most expensive building purchase ever in the U.S. at the top of the market just before the 2008 crash — of 666 5th Ave in NY (that number is no joke), which threatens to destroy Javanka’s fortunes. I speculated that the secret direct line to the Kremlin was Jared’s bid to bargain an end of sanctions against Russia (worth billions to Russia) in return for getting bailed out by a sweet Russian loan in the multi-millions.

Don Trump, Jr.: Same shady June 2016 meeting. Keep in mind that he first said it was about Russian adoptions, and then the truth came out that it was about Kremlin assistance. The “Russian adoption” line was really a bumbling confession that the meeting may have been quid pro quo: American sanctions led to the Kremlin retaliating with ending Russian adoptions, so the adoption issue was probably part of a deal to lift sanctions in return for Kremlin campaign/hacking help.

 

Roger Stone: hacking conspiracy, direct contacts with Assange and WikiLeaks, and perhaps other hackers.

Chris Collins: former congressman turned Trump transition adviser, alleged insider trading.

Mainstream Media’s Incompetence Produced the Trump Victory

Are you shocked by today’s “breaking” news, the Washington Post’s “scoop” that the Trump Organization was actively engaged in negotiating a deal for a Trump Tower in Moscow in the middle of the 2016 presidential campaign?  You shouldn’t be, and it’s not your fault.  The amazing Talkingpointsmemo.com, a part of new media doing more serious investigative work and posting deep political commentary, broke this story LAST AUGUST in the middle of the general election.  Why didn’t the Washington Post and other mainstream papers or cable news report this news to connect the Russia dots in the middle of Trump’s deeply suspicious pro-Putin behavior then? Why? Because they were too busy with both-sides-ism, Hillary’s emails, the “basket of deplorables” (newsflash, Hillary was dead right, no pun intended), Hillary fainting…

Talking heads and reporting the horse-race is easy and cheap. Investigative reporting is hard. But it’s also their job.  It turn out that Trump is half right about “fake news.” Superficial news coverage gave us President Trump. Media, stop freaking out about Trump mocking you, and just do your job.