My new piece in Slate:

…Barr warned, a “wrong-headed and atavistic” focus on legislative and judicial oversight has “smothered” the president’s traditional and proper authority. It is telling—and perhaps most significant—that Barr was particularly worried about subpoenas and oversight…

…When Barr argues for a maximalist, unaccountable unitary executive, he is not simply articulating a matter of theory or principle—he is defending himself from an investigation into his own work, especially his direct involvement in the Ukraine bribery-and-extortion plot.

In the July 25 call records with President Volodymyr Zelensky, Trump mentioned Barr five times, usually in tandem with Rudy Giuliani, as a key player in the president’s apparent bribery and extortion conspiracy. One particularly chilling passage: “Well, [Ambassador Marie Yovanovitch is] going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it.”

Barr’s own potential criminal jeopardy deepens with each day of new testimony. The criticisms of his handling of the Mueller report—that the attorney general was acting as the president’s personal lawyer—were prelude, and mild compared to the allegations now. The powers and protections he claims for Trump, in the name of skewed history and partisan analysis, are the powers and protections he needs to justify his own actions.

To attack the speech as a speech is to grant Barr the terms he would prefer. Barr’s words and theories are intellectually dishonest and inappropriate for any federal official, but the problem isn’t merely that his political self-expression is disagreeable. It’s that his remarks are the defensive tactics of an unindicted co-conspirator desperate for attention and clinging to power.

And so, as a politician in a political struggle, he sought to rally a gathering of his allies around their shared partisan mythology, or victimology. He is a criminal suspect, Trump’s fixer and enforcer, cloaking himself as both savior and martyr. Even though he probably sincerely believes in this Manichean culture war, he seems to have chosen the time, place, and vituperative manner to provoke an attack from “the Resistance” and “secularists” on his religio-political ideas. He is not only trying to distract. He also setting a trap to shift the debate from his alleged criminal involvement to his culture war terms.

But this trap can be flipped against him by emphasizing the speech’s legal content: His extreme-executive attack on congressional subpoenas clearly lines up with his conflict of interest as a likely criminal subject of those investigations…

More here.

Additional evidence of Barr’s involvement in the Whistleblower report here and here.

My piece in the Atlantic:

For those following along on many major news sites on Wednesday, President Donald Trump’s lawyer William Consovoy apparently told federal judges that if a president shot people on Fifth Avenue, not only could he not be indicted, but he could not even be investigated.

This was not, in fact, what happened: Consovoy immediately apologized for creating this impression for the judges, clarifying that state officials might investigate, but could not subpoena, a sitting president. Consovoy was raising a valid concern about a “proliferation” of partisan state prosecutions burdening a president. While his argument for total immunity from state process went too far, he was making an important argument for federal jurisdiction to review state subpoenas of a president, which should be sufficient to prevent abuses.

But it was earlier in Consovoy’s answers—overlooked by the media and the judges themselves—that his arguments backed into a more practical and immediate danger…

[Further down in the piece…]

This brings us to my surprise when I realized that Consovoy and his lawyers quoted a blog post I had written on this question in their brief, on page 7: “All you need is one prosecutor, one trial judge, the barest amount of probable cause, and a supportive local constituency, and you can shut down a presidency.” Trump’s lawyers actually cut off the end of that sentence without providing the required ellipsis. My sentence ended, “You can shut down a presidency with a criminal trial or two or two dozen.” They misleadingly left out my distinction between indictment and trial. But even so, I was wrong 18 months ago when I also suggested a sitting president “generally” could not be indicted absent a clear and present danger. It seemed like the Department of Justice was functioning under pressure. I was naive. A year ago, I retracted after more research on statutes of limitations.

Folks, this just is not so hard. Just read the transcript.

It contains an explicit quid pro quo for felony bribery.

Zelensky: “We are ready to continue to cooperate… buy more Javelins” ⁦

Trump⁩: “I would like you to do us a favor though.”

This is linguistically the same as “If you do us a favor…” or “However, you do us a favor…” It is a conditional phrase that creates a condition of exchange.

There are two basic elements of bribery. First, quid pro quo:

A: I would like to you to do me a favor.

B: “I would like you to do us a favor though…”

Check.

Second: Under the bribery statute, 18 USC 201, the “quo” must be “corrupt… influence,” “fraud,” or “a violation of lawful duty.” On page 4 of the transcript:

Trump: “The other thing, there’s a lot of talk about Biden’s son, that Biden stopped the prosecution…”

The quid pro quo from the top p. 3 moves immediately to Trump’s next point, at the bottom of p. 3/top of page 4: Zelensky should work with Giuliani and AG Barr “to find out about” “Biden’s son” & “Biden.” This is bribery as corrupt influence 18 USC 201(b)(1)(A) and a violation of lawful duties in terms of civil or criminal campaign laws (18 USC 201(b)(1)(C).

I have been critical of those who claimed that the Trump Tower meeting in June 2016 was a criminal campaign violation, because it cannot be criminal to talk to foreign nationals about candidates. The Clinton campaign indirectly investigating by having FusionGPS/Christopher Steele talk to foreing nationals cannot be criminal. But there is a world of difference between those conversations vs. pressuring a foreign government’s prosecution force to do your opposition research for you and potentially indict the family of your opponent (especially in context of withholding $391 million in aid).

The harder question here is that of course some quid pro quo exchanges with foreign governments are lawful and valid: Ukraine should pay for the Javelin missiles, and of course Trump could say, “You need to pay for the missiles, though.” If a president thought a terrorist or spy was on American soil, a president could offer arms deals or other support to encourage cooperation. That’s not bribery.

So the key is that asking a foreign government to investigate or prosecute a rival or his family is corrupt in this context. This might be true in any corruption case against any rival (no clear and present danger. Hunter isn’t going to kill anyone). But it seems clear when the case is apparently so weak.

This is unlawful foreign solicitation/coordination. It doesn’t matter if it rises to the level of a criminal violation. It is a civil violation of campaign finance law in itself to solicit a foreign government to conduct opposition research for your campaign, especially given the record of Trump’s 2016 campaign (which I documented here as criminal by Manafort and Gates, and would at least be a civil violation by the campaign).

Key reminder: “High crimes and misdemeanors” for impeachment ARE NOT limited to felonies. The Framers purposely used the English phrase for abuse of power, not felonies. If people argue this transcript is bad but not criminal, they are missing the point and moving goalposts.

In terms of evidence of consciousness of guilt:

The call took place on July 25, with Trump saying AG Barr & Giuliani were in on this plot. A week before: Trump order Mulvaney to block $391M from Ukraine. 3 days after: Trump forces out the uncooperative DNI Coats for his hack in the House, Congressman Ratcliffe. Many officials are implicated.

5) Emoluments! It’s not just the felony quid pro quo… There is also an explicit and sad #Emoluments suck-up by Zelensky on p 4-5:

“The last time I traveled to the United States… I stayed at the Trump Tower.”

Courts: take note of this causal nexus for plaintiffs’ standing and corruption.

Bonus: is this what Giuliani and Trump meant when they said the Take Care clause gabe the president a duty to outsource prosecution to the Ukrainian government?

September 15, 5:00 – 6:30:

League of Women Voters:

Is our Constitution working?

How is our Consitution holding up?  Is there still a balance of powers among the three branches of government? Is the Supreme Court still an independent branch of government or should structural changes be made? What about the independence of the Fed, the Attorney General, and the Department of Justice?  Are we near a constitutional crisis? See details here.

Just linking to three podcasts I was honored to be a part of over the last few weeks. I love the podcast format because it allowed each story to go into more depth and analysis. And I was particularly impressed with the depth and engagement of each of these hosts and producers.

“Which Volume of the Mueller Report are you?”: TrumpCast with Virginia Heffernan on Mueller’s testimony here.

NPR’s Embedded “Worse than Willie Horton” on Judicial Elections here.

NPR’s Throughline on Mass Incarceration here with Khalil Gibran Muhammed, John Pfaff, and Emily Bazelon.

In Politico, I wrote a piece calling for one or two expert lawyers to ask the questions at the Mueller hearing, rather than the members of Congress. That model worked in Watergate and Iran Contra. In that piece, I put together some of the errors in the Mueller Report.

Here is a concise list all in one place:

Error #1: Campaign Coordination. The DOJ assigned him to investigate “coordination.” His report stated “‘Coordination’ does not have a settled definition in fed criminal law. We understood coordination to require an agreement—tacit or express.” Wrong.
Congress explicitly rejected such a permissive interpretation. In 2002, Congress passed a statute declaring that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination,” and any knowing and willful violations are criminal.  The FEC followed through accordingly: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” w/o any requirement to prove agreement. And the Supreme Court validated these rules in 2003: “Expenditures made after a wink or nod often will be as useful to the candidate as cash.” And the Supreme Court also explained that this was a long standing rule: “An agreement has never been required under §315(a)(7)(B)(i), which uses precisely the same language as the new provision to address coordination with candidates, and which has survived without constitutional challenge for almost three decades.”

Error #2: Mueller’s failure to clarify which legal standards he was using: Beyond a reasonable doubt? This created a lot of confusion,  which enabled Barr and Trump to mislead. By preponderance or by “substantial credible” evidence, Mueller found conspiracy and illegal coordination. See my New York Times op-ed on this problem.

Continue reading “The Mueller Report’s Errors”

My piece in Politico:

“If recent history is any guide, Robert Mueller’s much-anticipated Capitol Hill appearance on Wednesday will fizzle into a mix of political grandstanding by the questioners and frustratingly narrow answers from the star witness. Congress’s biggest public chance to highlight the links between the Trump campaign and Russia, and the president’s acts of obstruction, will become a chance for members to showcase their wit, score politcial points and maybe even go viral with a dramatic exchange. This one was originally scheduled for last week, and a main reason for its delay is that the junior members of the Judiciary committee wouldn’t have enough time to get their own questions in.

So far, the solution has been to expand the hearing time. Here’s a better one: None of the members should ask the questions at all.

Their expert staffers should ask all the questions—not just to resolve the battle of egos, but to give Congress its only chance to make any real progress on the issues…

For more, follow this link.