DONALD TRUMP’S LEGAL TROUBLES: CLOSING IN?

In late May news broke that Manhattan District Attorney Cyrus Vance, Jr. had impaneled a special

grand jury in his investigation of former President Donald Trump’s business activities. Since then, it has become increasingly likely Trump and/or his top executives could soon face criminal indictments. Reporting

indicates prosecutors have several Trump confidants in their sights, including his main money man, Alan Weisselberg.  Reportedly, Vance has targeted tuition payments the Trump organization made for Weisselberg relatives as potential tax evasion.

On May 20, New York Attorney General Leticia

James announced her office would also  investigate Trump. A Vance-James combination could spell real trouble for Trump. She has a reputation for aggressively prosecuting political figures.  

The prospect of indictments against Trump’s closest business associates, and even the former president himself, raised the prospect of what a criminal trial of a former chief executive would look and feel like. That inspired differing responses from the three of us.

 

Woodson: Action and the Matter of Process

Throughout his presidency Trump demonstrated 

repeatedly that he aspired to be an autocrat.

Congress refused to act. 

                         

Losing the presidential election Trump incited an 

insurrection. Congress refused to act. 

Trump is a clear and present danger to democracy. But Republicans continue to follow him. It now appears that someone will act.

                                      

Donald Trump’s criminal misdeeds may finally undo him. Prosecutors in New York seem to think they have enough evidence to criminally indict and convict him. 

In prosecuting their cases, they must be careful  not

to deny Trump – or even appear to deny him - due process of law and the presumption of innocence until proven guilty.

Due process and the presumption of innocence  are

fundamental rules of law in our democracy. Trump and his supporters will surely holler “foul” at the slightest provocation. The criminal proceedings must be meticulous, solid, and above reproach.

The prosecutors must demonstrate that they believe in the rule of law and not violate it in their eagerness to secure a conviction. If Trump behaved in any way in his business life as he has in public life, there will be plenty of evidence with which to criminally convict.

The prosecutors might want to take a page out  of

the playbook of Jerry Blackwell and Steve Schleicher, prosecutors in the Derek Chauvin trial. Let meticulous preparation and the rule of law be the order of the day.

 

Henry: Smoke and Fire

How does the American justice system handle a criminal defendant with 70 million loyal followers

who believe everything he says? That’s  the key question for me in contemplating the criminal probe of the former president now proceeding in New York. Since Trump’s 2016 campaign began a plethora of potentially criminal allegations swirled

around him – possible tax evasion, corruption in his foundation, alleged payoffs to porn stars with whom he supposedly had affairs, and

more. The list grows through the reporting on the current criminal probe. With as much smoke wafting in the air, isn’t there fire in the vicinity?

Then there’s the matter of Trump’s associates. The names have become familiar – Michael Cohen, Paul Manafort, Roger Stone, Michael Flynn, et al.  All have incurred the wrath of the law because of things that involve Trump. Could the boss have been innocent in each and every one of their cases?  

But, Trump was president and that makes this situation unique. Yes, Richard Nixon had a collection of criminals around him, but Gerald Ford pardoned Nixon. He was never prosecuted for his crimes. Many of his associates went to jail, but Nixon went about his business.  Joe Biden certainly isn’t giving Trump a pardon, so the system must deal with him, with the backdrop of his widespread public support. That’s new for America.    

                       

Rob: A Meaningful Moment?

As much as my Democratic heart flutters at the

thought of Donald Trump in an orange jump suit and the Secret Service figuring out the logistics of protecting a former president in the Big House, that prospect isn’t what intrigues

me most about Trump’s legal troubles. Whatever possibility exists he might be called to account for the crimes he may have committed is one of the best things that could happen to the United States.

As a lawyer, I agree about letting the process play out, trusting in the rule of law, and all that business. Trump enjoys the same presumption of innocence as any criminal defendant.  Having said that, the country’s legal system would benefit from tangible evidence that the law applies to everyone. Trump

avoided indictment in connection with the Mueller probe into Russian interference in the 2016 election because of the Justice Department prohibition on prosecuting a sitting president. We were told Trump remained subject to the law once he left office. Now, apparently, we’ll find out if that’s really true. It would do the country good to know that it is.

Politically, Trump has caused all kinds of mischief since he left office. He controls congressional Republicans who have taken unfortunate actions at

his behest, like blocking a commission that would have investigated the January 6 insurrection. Trump recently claimed he’ll soon be “reinstated” into the presidency, a ludicrous proposition. If nothing else, criminal indictments should occupy Trump’s attention, leaving him less time for such nonsense. Our politics will benefit greatly from such a respite.        

IMPEACHMENT: LET US COUNT THE WAYS

If, as appears increasingly likely, the House of Representatives moves forward with impeaching President Donald Trump, lawmakers will find themselves working in a target-rich environment. Trump has committed so many wrongs, we should expect several articles of impeachment. Most recent attention has focused on Trump’s July phone call to Ukraine  President Volodymyr Zelevksy, in which Trump reportedly pressured Zelevsky about investigating former Vice President and potential 2020 Democratic presidential nominee Joe Biden and Biden’s son, Hunter, who served on the board of a Ukrainian company. That’s the tip of the iceberg.

We’d remind everyone of the ten likely acts of obstruction of justice outlined in Special Counsel Robert S. Mueller’s report. Oh, and

don't forget the federal campaign fiance issue rasied by hush money payments that apparently bought the silence of two women, Stormy Daniels and Karen McDougal,concern-

ing affairs they had with Trump before the 2016 election. His former attorney, Michael Cohen, remains in federal prison for his role in that. Trump was named as an unindicted co-conspirator and might also be in prison except for the policy against

prosecuting a sitting president. Today, however, we’ll focus on Trump’s financial transgressions, the ones from which he directly or indirectly profits as a result of being president.

         

Emoluments

Article I, section 9, clause 8 of the United States constitution provides:

“…no person holding any office of profit or trust […] shall without the consent of the Congress, accept any present, Emolument, Office, or Title of any kind whatever from any King, Prince, or foreign state.”

                       

This obscure, somewhat awkwardly written section – the emoluments clause – essentially means presidents can’t profit from being president through gifts or financial benefits received from foreign actors. In numerous ways, Trump has flaunted that provision.

The G-7 Suggestion

In late August, at the end of this year’s G-7 meetings in France, Trump suggested holding next year’s G-7 meeting at his Trump Doral resort in Florida. He promoted the location (“near the airport” Trump claimed), the “luxurious rooms,” and the spacious bungalows. He raised the point in a meeting with German Chancellor Angela Merkel.

         

Others didn’t think much of the idea. Jordan Libowitz, communications director for Citizens for Responsibility and Ethics, called holding such a gathering at Trump’s resort, “a free, giant international promotion” for Trump’s business interests. It also sounds like an emoluments clause violation, since those foreign governments would spend all that money on rooms, food, and whatever else at Trump’s place. He didn’t offer Doral free of charge. 

Trump International Hotel -- Washington

Unlike most presidents who put their business interests in a blind trust or divest them  altogether upon taking office, Trump maintains his real estate and other holdings,

including Trump International Hotel in Washington. The Washington Post reports that hotel generated $80 million for the Trump organization since he took office, one tenth of the company’s revenues. Hotel officials claim they donate to charity all profits realized from foreign visitors. Still, Trump International remains a major attraction for officials of foreign governments. Whether the hotel constitutes a real violation of the emoluments clause, it doesn’t pass the smell test.

Vice President Pence

It’s not just foreigners who’re benefitting Trump. On a recent trip to Ireland, the

Vice President's business took him to Dublin, where he met with leaders of the Irish government. So, where did Pence stay? At Trump’s National Resort in Doonbeg, 180 miles away. Pence said Trump “suggested” he stay there, then claimed the reason was the “footprint” of

his security detail and staff.  Who paid the $600, 000 in ground transpor-tation costs? U.S. taxpayers, of course.  Who profited from the hotel stays? Trump, that’s who.

Air Force Stopovers

Several U.S. news outlets reported earlier this month that in September 2018, a unit of the Maine Air National Guard stopped at Prestwick, a small commercial airport near Trump’s Turnberry resort in Scotland.  An Air Force C-17 crew also stopped there on a trip to Kuwait. The U.S. Air Force has had a contract at that airport for refueling since 2015, but crews staffing those flights made their overnight stays at other area hotels. Only since Trump became president have U.S. military crews stayed at Trump’s property. An investigation is underway by the House Government Oversight and Reform Committee.

In fairness, we must acknowledge some confusion exists about the meaning of the emoluments clause. What’s a violation? Who has standing to sue? The issue hasn’t been litigated, mostly because no president has ever done what Trump has done – retain a vast business enterprise that offers services in just the kinds of things that encourage patronizing of those services by those seeking the president’s favor. Foreign governments wanting influence over U.S. foreign policy, lobbyists seeking government contracts or presidential support for or against legislation, and American government officials looking for favorable treatment of their agencies by the White House all have an incentive for currying favor with this president by patronizing his hotels and resorts.

Cases are now working their way through the lower federal courts, so perhaps we’ll soon have a reading on how the judiciary views the emolu- ments clause. If we’re lucky, those cases will become moot soon because Trump has left office.  We can only hope.       

           

FLAG ON THE PLAY: EXCESSIVE (and PREMATURE) CELEBRATION OF THE MUELLER REPORT

Attorney General William Barr’s four-page summary of

Special Counsel Robert Mueller’s report set off wild end zone celebrations by President Trump and his supporters. The President claimed, falsely, “complete exoneration” in light of Barr’s report that the Special Counsel hadn’t found “collusion” by Trump with the Russians in interfering in the 2016 election, and that Mueller wouldn’t decide if enough evidence existed for an obstruction of justice charge against Trump. Barr, despite acknowledging Mueller didn’t exonerate Trump on obstruction of justice, went ahead and did it himself. Trump surrogates hit the airwaves, using Barr’s proclamations in claiming the investigation was “over” and it was time the country “moved on.” 

 

Regrettably, the media egged on these touchdown dances by asking political figures (usually Democrats) if they “accepted” Barr’s conclusion that no one in the Trump campaign “colluded” with the Russians in their election interference. Quite frankly, we’re ready to throw a flag and call a penalty on this excessive celebrating and the questioners facilitating it. It’s premature if only because no one outside the Justice Department and the Special Counsel’s office has actually seen the Mueller report. How can anyone “accept” a conclusion without any knowledge of what led to that conclusion? 

Mueller’s Charge
We think it useful that we recall exactly what the Justice

Department asked of Mueller. In his May 17, 2017, Order appointing a Special Counsel, Deputy Attorney General Rod Rosenstein gave Mueller three tasks:  investigate and prosecute (1) any “links or coordination” between the Russian government and the Trump campaign; (2) matters that arise or may arise directly from that investigation; and (3) crimes related to the investigation committed within the scope of a federal statue covering perjury, obstruction of justice, destruction of evidence, and witness intimidation. 

              

This narrow charge affected what we could ever have expected from the Mueller probe. Rosenstein’s Order specifically gave Mueller prosecutorial authority. The Special Counsel focused, therefore, on charging and prosecuting criminal offenses, not just uncovering the bad acts of Trump and his associates. Mueller certainly might have found evidence of “links or coordination” between the Russians and the Trump campaign, though that evidence wouldn’t support criminal indictments provable beyond a reasonable doubt. To date, we don’t know if Mueller found such evidence because Barr hasn’t released the full report. Mueller might intend that Congress examine Trump’s conduct, even though criminal prosecution wasn’t in order.  

 

We also note Rosenstein tasked Mueller with finding things that “arose or may arise” from investigating the Russia

“links.” Mueller found significant corrupt conduct by Trump and his colleagues that doesn’t concern election interference. Trump lawyer Michael Cohen, for example, will spend several years in prison for lying to Congress about when Trump’s Moscow tower project cratered, a lie that could only benefit Trump during the 2016 campaign. Cohen also arranged, at Trump’s behest according to the indictment, hush money payments to women who allegedly had affairs with Trump. Mueller turned such matters over to other federal prosecutors, especially in the Southern District of New York. We don’t know what else Mueller’s report contains that might suggest wrong doing by Trump and his aides that doesn’t concern Russian election interference. Barr’s terse letter didn’t mention those things and without the report, no one knows if evidence of such misdeeds exists. We think it worth noting that Barr’s summary, according to one cable host, quotes not one complete sentence from Mueller’s actual report.      
 
The Game is Not Over Until It’s Over

Trump’s celebrating ignores two basic facts. First, the Southern District of New York and other jurisdictions continue their probes into such matters as the president’s campaign finance violations, his business dealings, and his inaugural committee’s fund raising and spending practices. Second, his actions remain subject to Congressional investigation and oversight. House Democrats, even if not all of them articulated the limits of the Barr letter as we’d have liked, should know they still have a major job facing them regarding the Trump scandals. At least the leadership apparently understands Barr’s carefully crafted spin job isn’t the last word, however much Trump and his supporters tried making it so. The chairs of six key House committees called for release of the full Mueller report by April 2, with the threat of subpoenas lurking if Barr doesn’t comply. They also want testimony from both Barr and Mueller. 

The American people paid for the Mueller report and should

see it. The House of Representatives, in an unusual show of bi-partisanship, voted 420-0 for the report’s release. That report isn’t a four-page press release written by a Trump appointee who’s already decided a president can’t commit obstruction of justice. The report consists of all Mueller’s findings and the underlying documents that support whatever he found. Until we see that, no political leader or citizen can or should “accept” anything. The reporters who ask such questions should bone up on their logic skills. 

Football has rules against excessive celebrations during games. In a democracy, politics has rules, particularly the rule of law. In this game, democracy v. Donald J. Trump, it’s time for a flag on the play. Let the games continue.