On this week’s Amicus with Dahlia Lithwick, my friend and colleague Andrew Kent and I talk about our article “Faithful Execution and Article II” (with Ethan Leib) on the historical meaning of the Take Care clause and oaths as fiduciary-like limits on the president, plus this week’s cases Gamble (double jeopard) & Gundy (non-delegation).
Here’s the first section of my op-ed today below. I’m also linking two podcasts I did for Slate: The first with Dahlia Lithwick (Amicus) two hours after the report was released, and a second with Virginia Heffernan (TrumpCast) the next morning in more detail. I started developing the point on that interview that I spell out here.
In his first letter after receiving the Mueller report, Attorney General William Barr accurately quoted it as saying that “the investigation did not establish” that the Trump campaign “conspired or coordinated with the Russian government in its election interference activities.”
But the opposite is also true: The Mueller report does establish that, in fact, members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.
How is this possible? It’s the difference between the report’s criminal prosecution standard of proof “beyond a reasonable doubt” and a lower standard — the preponderance standard of “more likely than not” — relevant for counterintelligence and general parlance about facts, and closer to the proper standard for impeachment.
There is confusion about the Mueller report’s fact-finding because he used the wrong coordination standard, obstruction probably obscured the evidence of crimes, and the summary was unclear about evidentiary standards. The report’s very high standard for legal conclusions for criminal charges was explicitly proof “beyond a reasonable doubt.” So the report did not establish crimes beyond a reasonable doubt. But it did show a preponderance of conspiracy and coordination.
The Mueller report is best understood as two reports, and not just in its organization of one volume on Russia and one on obstruction. Each volume is one report on facts, and another on applying criminal law to those facts. When the report explains its prosecution decisions and interprets the legal questions of conspiracy and coordination, it repeatedly clarifies that its standard is “whether admissible evidence would probably be sufficient to obtain and sustain a conviction.”
The “prosecution and declination decisions” part of the report uses proof “beyond a reasonable doubt” 10 times, particularly with respect to declining indictments for Russian contacts crimes for Paul Manafort and Donald Trump Jr.
UPDATE 4/29: I’m adding these key paragraphs five days later:
“Even without knowing what is redacted, the report offers “substantial and credible information” of the Trump campaign conspiring or coordinating with the Russian government. Under federal criminal law, “conspiracy” does not require direct proof or explicit words of agreement. It can be proven by action and circumstantial evidence from which the agreement may be inferred. And on campaign “coordination,” the Mueller report made a significant omission or oversight on this question when it stated that “‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement — tacit or express.”
As the election law expert Paul Seamus Ryan noted, Congress in its 2002 campaign finance law rejected that view: Federal law “shall not require agreement or formal collaboration to establish coordination.” The federal regulations followed this command: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement. Expenditures for coordinated communications are considered in-kind contributions, and foreign contributions — public or private — are illegal. In fact, the Federal Election Commission is reviewing a complaint along these lines.
The report states that Rick Gates, a campaign deputy, suspected that Mr. Manafort’s Russian associate, Konstantin Kilimnik, was a “spy,” a view that he shared with Mr. Manafort (and others). For months, Mr. Manafort informed Mr. Kilimnik about the campaign through internal polling data, even pointing out that Wisconsin, Pennsylvania, Michigan and Minnesota were target states. The Mueller report did not conclude their motives were criminal beyond a reasonable doubt, but by a preponderance in context, the motives were clearly campaign related and likely a coordination with Russia.
Despite being heavily redacted, the report seems to add context to Roger Stone’s indictment, implicitly suggesting that Mr. Trump may have directed officials to contact Roger Stone about WikiLeaks, and may have been in contact with Mr. Stone about WikiLeaks. It may not be proven beyond a reasonable doubt that they knew WikiLeaks was an extension of Russian hacking and a Russian campaign, but it is more likely than not a kind of indirect coordination with a foreign government prohibited by law. And Donald Trump Jr.’s continuing contacts with WikiLeaks in September and October 2016, long after the Trump Tower meeting and the July events made its connection to a Russian campaign clear, also were likely a coordination, even if not knowingly proven beyond a reasonable doubt.”
On Sunday, Attorney General William Barr introduced his letter to the Senate and House Judiciary Committees by saying: “I am writing today to advise you of the principal conclusions reached by Special Counsel Robert S. Mueller and to inform you of the status of my initial review of the report he has prepared.” This introduction does not fit his letter, though: If one wanted to advise of the report’s “principal conclusions,” one would expect that more of the “principal conclusions” actually be shared.
Instead, Barr distributed parts of four of Mueller’s sentences throughout his letter—three of which offer any kind of conclusions, and none of which even appear to be complete sentences from Mueller’s text. Those sentences are obviously helpful for Trump legally and politically, but Barr’s short letter—one page on Russia, one page on obstruction—raises more questions than it even tries to answer.
What Barr put out on Sunday was not Mueller’s summary, nor a summary of Mueller. It literally contains more of Barr’s legal conclusions—after just 48 hours of review—than of Mueller’s own conclusions over almost two years of investigation. In contained zero details of the evidence that led to either man’s conclusions. Mueller surely wrote an executive summary of his findings for Barr, and it clearly would have been easier for Barr simply to give Congress and the public Mueller’s summary than to write this letter himself. The question is why Barr didn’t… [For more, follow the link]
My op-ed in the New York Times on Monday, March 11 is here. I am happy to report that the New York attorney general later that day issued a series of crucial subpoenas to DeutscheBank related to the fraud Michael Cohen reported in his House testimony, and also related to older loans which may or may not address long-standing suspicions of money laundering of illegal Russian assets through DeutscheBank (the only western bank that would continue loaning money to Trump after his many bankruptcies, and a bank that has been criminally fined for laundering enormous amounts of illegal Russian money).
I note that Attorney General James had only been in office for about two months, and surely been working on those subpoenas before my op-ed, so I am not suggesting a causal link, just noting my appreciation that she is making up for former and disgraced Attorney General Eric Schneiderman’s dereliction of duty on many of these matters. It is, um, concerning that Eric Schneiderman did not take this step in his time in office, and that delay – while Congress was held by Republicans blocking such investigations – may have permanent consequences. Barbara Underwood had only a short time as Acting AG, and to her credit, she also did something that Schneiderman failed to do: file for the Trump Foundation’s dissolution with state supervision of its assets. This move succeeded and sets the stage for further investigation. These steps by Underwood and James are important pieces of larger process of bringing Trump to justice.
My op-ed is behind a paywall. I am going to focus on a few main points:
“The public record establishes probable cause for campaign finance felonies, and a potential case for criminal tax fraud, bank fraud, insurance fraud and suborning perjury to hide shady business dealings — a staggering mix of state and federal crimes implicating a range of Trump Organization officials.
State attorneys general — especially New York Attorney General Letitia James — should not wait for any Justice Department official to hold Trump accountable for potential crimes. They also do not need to wait to build a case for criminal indictments. The appropriate immediate path is a special state civil proceeding against the Trump Organization and its officials.
Legal status as a corporation endows businesses like the Trump Organization with great powers, and with those powers come specific responsibilities. To police these privileges, almost every state in the country has a statute that gives its attorney general the power to bring civil actions to investigate corporations for fraud and to go to court to dissolve the ones that persistently break the law. This statutory power descended from an old English proceeding called “quo warranto,” meaning “by what authority do you exercise legal power?” The question in this case is whether the Trump Organization has so abused its privileges that it has lost this legal authority.
The Trump Organization is incorporated only in New York and Delaware, so New York officials have a unique role and responsibility. New York attorneys general have not used their power to dissolve corporations often, but as recently as 1994, they brought a civil action leading to the dissolution of a fraudulent entity. New York’s highest court has described this remedy of civil dissolution as a “judgment of corporate death,” and for the state to invoke such a corporate death penalty, the corporation’s “transgressions” must not be merely incidental, but “material and serious; and such as to harm or menace the public welfare.”
If a state civil investigation turned up more evidence of criminal fraud, state and federal prosecutors could use these findings to indict the Trump Organization and its officials, including Mr. Weisselberg.
In addition to allegations of campaign finance felonies, Mr. Cohen also alleged that Mr. Weisselberg, along with the Trump Organization officials Mr. Lieberman and Mr. Calamari, engaged in insurance fraud, bank fraud and tax fraud by dishonestly inflating and then deflating the valuation of Trump assets for insurance, banking and tax advantages. Keep in mind that the Southern District of New York, when it was headed by Rudolph Giuliani in 1988, indicted a state legislator for overvaluing property and submitting false financial statements…
Mr. Weisselberg is more likely to cooperate if the New York attorney general and state prosecutors have already begun to investigate his conduct. President Trump cannot use a pardon to rescue Mr. Weisselberg from state prosecution; presidential pardons do not affect state criminal liability. Moreover, unlike federal prosecutors at the Southern District of New York or in Robert Mueller’s office, Mr. Trump cannot fire or interfere with them.
The window for these prosecutions to move forward is closing. The states are a complementary law enforcement system, and they can do what Mr. Mueller might not be able to do: Send a message that the president is not above the rule of law.
This state investigation might turn up evidence that President Trump committed crimes himself. If the Justice Department will not indict a sitting president, we must ask what is worse: the potential distraction of states indicting presidents, or the crisis for the rule of law of presidential immunity, especially during a re-election when those crimes may recur with the goal of four more years of impunity. If the specter of state indictments is unsettling, that is a reason to allow federal prosecutors to bring indictments instead, perhaps building on state officials’ findings.
Indictments, even if trials are long delayed, at least serve an important message from law enforcement to society about legal norms. Even if justice is delayed, no one will be above the law.”
I’m stuck in bed with some kind of unpleasant bug this morning, so if my approach here is nuts, chalk it up to the bug. And I had a hard time sleeping last night, not only because of the bug, but because of this outrageous story:
“President Trump has gone to extraordinary lengths to conceal details of his conversations with Russian President Vladimir Putin, including on at least one occasion taking possession of the notes of his own interpreter and instructing the linguist not to discuss what had transpired with other administration officials, current and former U.S. officials said.”
There is a robust debate about whether the House or Mueller can subpoena the translator or whether Trump could invoke executive privilege. On the one hand, the Supreme Court in U.S. v. Nixon clearly approached executive privilege as a balancing test, not a blanket rule.
On the other hand, dicta in U.S. v. Nixon indicate a special protection of diplomatic/foreign executive communication, and Eric Columbus flagged this remarkable twist: an OLC opinion recognizing this concern was written by AG nominee Bill Barr. See Eric’s thoughtful thread here. The counterargument is that these circumstances are so extraordinary, and the basis for suspicion of criminal conduct are so valid, that the normal rules no longer apply.
I have thought about the balance of these two positions, and how to make sense of them through the lens of separation of powers. I think one answer is to think four-dimensionally about the three branches, meaning that they work out stages over a sequence of time back-and-forth.
Ok, so after helping my wife and kids get onto the ski hill on Christmas, I’m back in our rental condo, listening to podcasts while walking the dog and reading about old English writs that might apply to Trump. Seriously. I’m having the most fun: using English legal history as a strategy to hold the madness of King Donald accountable.
I listened to Rachel Maddow’s podcast “Bag Man” on the rise and fall of Spiro Agnew, and it’s absolutely a must-listen. Spoiler: Agnew resigned in 1973. Second spoiler: he pleaded no contest, served no jail time, and kept his bribes. But I was particularly intrigued in Episode 6 by the interview with George Washington Law Professor John Banzhaf, famous for activist public-interest litigation, and the students from his class (John McMillan, Reina Chassy and Suzanne Saul) who brought a private citizen taxpayer lawsuit against Agnew and two co-conspirators in 1976 (third spoiler…) and won. In 1982, in Agnew v. State, 51 Md.App. 614, 446 A.2d 425, a Maryland appellate court upheld the lower court order for Agnew to repay the state of Maryland about $250,000. (Bonus trivia: Diana Motz was on the brief for Maryland as the assistant attorney general, before she became esteemed and Honorable Judge Motz on the 4th Circuit). Here are two Washington Post stories here and here. If you read that Agnew might get a tax deduction for these repayments, note that he did not get a big state tax refund for these repayments.
The Maddow podcast explains that these student/taxpayers used an old civil proceeding from English law, but understandably doesn’t specify on the podcast. NBC provides sourcing here (but some of it is pay-walled). The available court records and news reports don’t provide such details – perhaps because that old English proceeding was codified into statute. But I have a feeling they are talking about qui tam. Should we start talking about it again?
I’ve been connecting the dots between Kushner’s $1.8 billion crisis called 666 5th Ave., the Russian sale of Rosneft to Qatar, and his dealings with Qatar, Apollo, and Brookfield.
New news: Brookfield, the Canadian real estate giant with links to Qatar and UAE, lacked the cash to complete its implausibly generous purchase of 666 5th Ave. Guess who is providing the cash?
Apollo Global Management, the firm with Qatar ties that gave the Kushners a massive $184 million loan in Nov. 2017, months after the Saudis and UAE lifted a dangerous blockade from Qatar. Story here. They are assisting Kushner’s deal with over $300 million in a mezzanine loan.
Much more on this below. First, some background.
Here is a brief timeline:
Russia’s sale of Rosneft Gas is the key event in the Steele Dossier’s quid pro quo allegation. On June 2016, Russians allegedly offer Trump associates a massive payout derived from the commissions on Russia’s sale of 19.5% of state energy giant Rosneft ($11 billion), in return for lifting sanctions.
Dec. 1st, 2016, a month after the election: Flynn and Kushner seek to create secret backchannel with Kislyak to the Kremlin in contact with Russian officials.
Dec. 8th, 2016: Russia sells a 19.5% stake in Rosneft in a concealed deal, eventually revealed to be with Qatar (and Glencore). Immediately after the deal, a Qatari diplomat allegedly met with Cohen and Flynn at Trump Tower.
In January 2017, the Dossier is published. In the next few months, Kushner sought money directly from Qatar to bail out his real estate problem, but Qatar declines. It is possible that Qatar was backing off of the deal, wary of its exposure from the Dossier. In April 2017, Kushner reportedly escalated a Gulf state crisis against Qatar with a blockade and a risk of regional war.
Nov. 2017: the Qatar-backed Apollo Group delivered $184 million to Kushner, and a real estate fund linked to Qatar is in negotiations to bail out Kushner’s $1.8 billion disaster at 666 5th Ave.
May 2018: Kushners have a deal with Brookfield to purchase 666 5th Ave. Qatar is the largest outside investor in Brookfield, often with subdeals in which Qatar takes on more control and risk. Brookfield has ties to UAE. The terms of the deal are implausibly favorable, considering that there was no market for the 666 Albatross. Some analysis for why it’s so generous to Kushner here and here.
I’ve discussed Brookfield’s links to Qatar and UAE here. Wendy Siegelman has detailed how BPY structures some deals to give Qatar more control and risk.
Here is the new reporting I’m pulling together:
First, Brookfield’s 666 deal is being financed by $300 million from Apollo.
Second, Apollo has apparent ties to UAE (Abu Dhabi), as well as Qatar:
Apollo chief says sold nine percent of firm to Abu Dhabi. Reuters, November 7, 2007: “In November 2007, Apollo was able to realize additional value from the sale of a 9% ownership interest in its management company to the Abu Dhabi Investment Authority(ADIA).
Third, here is reporting from August 2017 on the financial ties between Apollo and Qatar in Manhattan real estate deals:
Qatar’s sovereign wealth is quietly backing Michael Stern and Kevin Maloney’s supertall condo development at 111 West 57th Street, The Real Deal has learned. The wealthy Middle Eastern country’s investment arm, the Qatar Investment Authority, holds $161.5 million in mezzanine debt on the under-construction luxury project.
The QIA investment comes to light as the developers are locked in a high-stakes legal dispute with their equity partner, Ambase Corporation. But the investment itself dates back to 2015: In June of that year, the developers landed a $400 million senior construction loan from AIG and a $325 million mezzanine loan from Apollo Commercial Real Estate Finance, a real estate investment trust managed by private equity firm Apollo Global Management. In the fourth quarter of 2015, the Apollo-controlled REIT sold off a $50 million portion of the mezzanine loan to other Apollo debt funds and a $200 million portion to an Apollo fund managing QIA’s money, keeping $75 million on its own books, according to sources familiar with the moves and public records. The deal made QIA the second-biggest investor in the project behind AIG…
The mezzanine loan is out of balance, and the developers are trying to raise additional capital to pay for what sources said were cost overruns.
QIA’s involvement in the tower underscores Qatar’s emergence as a major New York real estate investor. The sovereign wealth fund also owns a stake in Brookfield Property Partners’ Manhattan West project and last year bought $622 million worth of shares in Empire State Realty Trust. Meanwhile a former QIA head, Sheikh Hamad Bin Jassim Bin Jaber al-Thani, is an investor in Harry Macklowe’s condo conversion project One Wall Street and the retail portion of 432 Park Avenue. The billionaire, known as HBJ, also reportedly came close to investing $500 million in Kushner Companies’ planned redevelopment of 666 Fifth Avenue.
In 2015, QIA said it planned to invest $35 billion in the U.S. over the next five years. Qatar is now in the midst of a diplomatic crisis with its neighbors in the Gulf, including Saudi Arabia and the United Arab Emirates, that could threaten the health of its economy.
Fourth, here is a Bloomberg story on Qatar backing Apollo in 2015:
Qatar’s sovereign wealth fund, which plans to invest $35 billion in the U.S. in the next five years, is backing a commercial real estate investment trust run by a subsidiary of Leon Black’s Apollo Global Management LLC.
The Qatar Investment Authority bought 8.82 million common shares of Apollo Commercial Real Estate Finance Inc. on Sept. 18, according to documents filed on Monday with the U.S. Securities and Exchange Commission. The REIT announced on Sept. 21 that it sold these shares at $17 each for a total of $150 million, and that it raised another $198 million from the same unidentified investor through preferred stock sales.
Fifth, here is a 2015 SEC filing showing Apollo’s purchase agreement with Qatar Investment Authority, and a related article in Reuters.
Sixth, here is a $5.6 billion deal from summer 2018 involving Apollo and Qatar:
PSP Investments Credit USA LLC and an affiliate of Qatar Investment Authority will also provide part of the debt financing.
Seventh: Senator Blumenthal called for an investigation last March of Kushner and Apollo: