Law, History, Emoluments, the Deep State (i.e., the Rule of Law)… plus some family fun. Twitter: @jedshug
Author: Jed Shugerman
Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.
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.
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?
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.
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.
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.
“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.
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.
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.
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.