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.        

GOODBYE TO THE TRUMP YEARS: A WAKE-UP CALL FOR DEMOCRACY

We have learned from history that Fascists can reach high office via elections. When they do, the first step they attempt is to undermine the authority of competing power centers, including parliament or in America, Congress.

                                                         -Madeleine Albright (Fascism: A Warning p. 234)

We haven’t written enough about preserving American democracy. The January 6 occupation of the U.S. Capitol by a mob inspired by President Donald Trump brought home to us why we must write about that subject regularly, beginning now.

Some might think Trump’s imminent exit from the White House and installation of a new administration will assuage concerns about threats to democratic values and institutions. On the contrary, we think the end

of the Trump presidency presents a perfect opportunity for examining what happened the last four years and what Americans must do that will ensure democracy remains our form of government.

 

A Tortured Four Years

We think Trump has been wrong about environmental protection, voting rights, immigration, criminal justice, taxes, and many other policies. That’s not what we mean by a “tortured four years.” No, we refer to his assaults on democracy as a governing ideology.

His attack on democracy as our basic form of government constitutes the greatest sin of his time in office. He has put supporting evidence for that claim on constant display. 

                       

The January 6 insurrection, spurred by an incendiary speech in which he urged that thousands march on the capitol in support of his bogus voter fraud claims while Congress tabulated the Electoral College votes, stands as exhibit “A.” The resulting 

carnage, thanks largely to a massive security failure, left at least five people dead, the capitol building ransacked, and a huge black mark on American democracy and its standing in the world.  Comparisons to December 7, 1941, and September 11, 2001, as dark days in the nation’s history weren’t inappropriate. There’s lots more:      

·     The Phone Call. On January 2, Trump called

the Georgia Secretary of State asking that he “find” votes that would overturn President–elect Biden’s victory there. He asked that election officials “recalculate” the returns and give him the votes that would reverse the outcome in the Peach State. Search as many did for a benign explanation or interpretation of Trump’s words, none appeared. It was extortion of the kind more commonly associated with mob bosses and Mafia dons. First readings of federal and Georgia election statutes suggested he crossed the line into criminal misconduct; 

·     Misusing Congress. To avoid the peaceful transfer of power his defeat requires, Trump enticed Republican members of the House and Senate to challenge duly certified electors, leading to the January 6 riot. He challenged votes in Milwaukee, Philadelphia, and Atlanta, overwhelmingly black cities, in a blatant attempt at marginalizing the black

vote standing  between him and his effort to turn America into an autocracy. This largely unprecedented action followed a string of over 50 defeats in lawsuits he brought aimed at throwing out votes or advancing unsupported voter fraud claims;

·     Misusing the pardon power. His granting of

pardons and commutations to cronies, family members, and business associates who have committed crimes against the United States demonstrates his contempt for democracy, democratic institutions, democratic norms, and the rule of law;

·     Attacking the judiciary. Trump’s initial assault on a federal judge of Mexican descent began an attempt to drive a wedge between Latinos and other Americans while diminishing respect for the judiciary;

·     Denigrating America’s world standing. By reducing our commitment to NATO,

Trump hoped he could free the United States from democratic norms NATO members must follow, thereby making easier alliances with autocrats;

·     Kowtowing to Vladimir Putin. Trump would not criticize Russian interference in the 2016 election and he took Putin’s side against the

findings of U.S. intelligence agencies that Russia meddled in that election. When reports surfaced of Putin putting bounties on U.S. soldiers, Trump said nothing. When cyber experts uncovered a massive computer hacking almost certainly carried out by the Russians, Trump, without evidence, blamed it on China;

· Ukraine. Trump’s refusal to release appropriated funds for Ukraine’s defense

against Russian aggression unless the Ukrainians helped him dig up dirt on his domestic political opponents evidenced his autocratic preferences and disregard for the American constitution;

·     Personalizing the Justice Department. Trump’s conversion of the Attorney General from the people’s lawyer to his personal counsel flagrantly abused his power and undermined the rule of law; and

·     Misuse of the military. By ordering that U.S. troops clear peaceful protesters from Lafayette Park in Washington for his photo op, Trump demonstrated the true nature of his autocratic tendencies.   

 

Lessons

Listing Trump’s bad acts represents only a first step. We remain far from knowing all we should about his assault on democracy. As we learn more, we’ll say more about what happened and about what we should do.

We began with former State Secretary Madeline Albright’s observation abouthow fascists acquire power, even in democratic systems. We turn to her book again as we close:

When we awaken each morning, we see around the globe what appears to be Fascism’s early stirrings: the discrediting of mainstream politicians, the emergence of leaders who seek to divide rather than to unite, the pursuit of political victory at all costs, and the invocation of national greatness by people who seem to possess only a warped concept of what greatness means. (p. 118)

We think Secretary Albright’s warning is for us, as in U.S.  

WE’RE BACK!!!!: JONESWALKERWILEY RETURNS AFTER A BRIEF HIATUS

 

NOTE:   We’ve been absent from this space since our November 13 post-election offering due mainly to personal issues. Rob contracted COVID-19, spent five days hospitalized, and has gradually mended at home since his release. Henry & family grieve the loss of two beloved family members. BUT WE’RE BACK AND READY TO TAKE ON WHAT’S GOING ON IN THE WORLD.

A New Administration Takes Shape

President-elect Joe Biden and Vice President-elect Kamala Harris have been putting together their new

government. Generally, sane, experienced people who appear capable of doing the jobs they’re being tapped for make up the roster. We’d call these appointees “grownups”. None appear anything like the cult worshippers and sycophants around Donald Trump.

Challenges remain for Biden and Harris on the diversity front, despite an initial roll out that looks much more like America than the mostly

white male cast Trump installed. Biden has named an ethnically diverse White House staff, featuring

an all-woman communications team. The first cabinet choices include a Latino who’ll run the Department of Homeland Security, the agency responsible for immigration and border control, the first female Treasury Secretary, and a black woman as United Nations Ambassador who should help restore America’s diplomatic clout.

Biden faced considerable pressure to name an African American or Hispanic to one of the Big Four cabinet jobs -- Treasury, State, Justice, or Defense. His choice of a black man, retired four-

star general Lloyd Austin, for Secretary of Defense alleviated some ethnic concerns, but created another problem. Austin left the Army four years ago, not seven as a statute requires for naming a former military officer defense secretary. Even some congressional Democrats balked at the idea of granting yet another waiver for a retired general (Trump got one in 2017 for Jim Mattis). General Austin’s stellar resume and the unique opportunity of the first black defense secretary probably will get him the needed waiver and U.S. Senate confirmation.

Biden still has some jobs he must fill and says 

everyone should wait until he’s done, then look at the overall picture. Fair enough, but given the racial composition of the voters who fueled the Democratic ticket’s victory, Biden can’t ignore pressure for high profile black and brown appointments.

 

COVID – 19 Runs Wild While Trump Whines

We’ve documented President Trump’s malfeasance on the virus many times. Another recitation of his sins serves no purpose. His current behavior demonstrates how much better off the United States

will be when he leaves office. By spending his time on a hopeless, destructive campaign aimed at overturning the result of the election instead of helping his successor better prepare for fighting the virus, Trump has shown his utter lack of concern for average Americans. New cases, hospitalizations, and deaths keep increasing in almost every state. Things are worse many places than they were during the grim days of the spring. Health experts say a brutal winter awaits, despite vaccines on the horizon that should help get the pandemic under control.

Trump’s pitiful, disgraceful legal attack on the election while the pandemic rages has been

overwhelmingly rejected by the courts. He’s had one minor legal victory and about 40 setbacks, often doled out by Republican judges, both appointed and elected. Some judges have been scathing in their characterizations of his evidence-less claims.

Trump shamelessly pursued this strategy while, for

the longest, not letting the General Services Administration open the government to Biden’s team, thereby facilitating a peaceful transition. History may regard Trump’s lame duck behavior as the worst thing about his presidency.

Pardon Who?

It’s also possible Trump could further disgrace himself and the office he holds by doling out dozens of pardons to cronies, contributors, family members, and maybe even himself. He’s already given his former National Security Advisor, Michael Flynn, a broad pardon. He’s reportedly discussed granting his children pardons and giving

one to Rudy Giuliani, the  lawyer who has run his post-election legal crusade. Several prominent figures in the right-wing media have suggested he pardon himself, something no president has ever done and seems subject to significant legal challenge.

That a president can even think about pardoning himself results from the fact presidential pardon power is exceptionally broad. It is for a reason. The drafters of the constitution wanted a way someone could right unjustly wrongs, and no one could challenge that action. It’s doubtful, however, the founders thought presidents should pardon themselves.

In a 1915 case, the U.S. Supreme Court declared that anyone who accepts a presidential pardon admits guilt. What, then, does Trump know that we don’t about himself and those on the purported pardon list, especially people who haven’t been investigated or prosecuted?

We should remember presidential pardons don’t affect state judicial actions. Trump faces multiple investigations in New York that focus on business and tax matters. Whether he pardons himself or resigns early so Mike Pence does the deed, a presidential pardon won’t save Trump from state investigations.

In the coming weeks we’ll address many pressing topics now on the national radar screen – the Georgia senate runoffs, Biden’s agenda, congressional action (or inaction) on pandemic-related stimulus relief, lingering effects of COVID -19 on the economy and on people individually, among others. Right now, we’re just thankful we’re writing again.    

DOUBLE JEOPARDY OR NO JEOPARDY?

More than 1000 former federal prosecutors have publically stated they would prosecute Donald Trump for obstruction of justice were he not President of the United States. Those former prosecutors made that declaration after Special Counsel Robert Mueller decided he couldn’t prosecute Trump because of Justice Department policy. That policy, stated in an October 16, 2000, Office of Legal Counsel (OLC) opinion, prohibits indictment of a sitting President. As long as Trump remains in office, no federal grand jury will hand down charges against him, regardless of the evidence that might otherwise compel such an action.

The OLC policy, which isn’t in the constitution, and a long standing American tradition against prosecuting former political opponents, could combine in assuring the government never prosecutes Trump for the acts spelled out in the Mueller Report. This circumstance carries broad and troubling implications for the rule of law in America. The OLC policy, and that tradition, could mean getting elected President provides a permanent get-out-of-jail-free card for seriously bad actors.

Trump’s Situation

Special Counsel Mueller found ten acts by Trump that might constitute obstruction of justice. Citing the OLC opinion, Mueller declined prosecution but specifically said, “while this report does not conclude that the President committed a crime, it does not exonerate him.” Any fair reading of the Mueller Report recognizes the Special Counsel would have indicted Trump but for the OLC policy. Mueller’s decision, therefore, leaves three options for dealing with Trump’s possible crimes: (1) impeachment and removal from office by Congress, (2) prosecuting him after he leaves office, or (3) letting him slide.

Impeachment, being the ultimate political act, may or

may not happen. No one  currently thinks the Republican Senate will convict Trump. Calls for Trump’s prosecution after his term ends have started, including from House Speaker Nancy Pelosi. The problem lies in that American tradition – we don’t prosecute former Presidents, no matter their crimes in office.

Twice in modern times, the issue has arisen of what to do, after he leaves office, with a President who has committed criminal acts. It also arose in a hypothetical scenario involving Trump and his 2016 opponent, Hillary Clinton. The way the issue has been handled in each case suggests we shouldn’t hold our breath for the possibility of Trump’s post-presidency prosecution.

The History

Richard Nixon resigned before the House impeached him and before the Senate likely convicted him. Out

of office, Nixon faced obstruction of justice charges and perhaps others. Before Special Prosecutor Leon Jaworski could charge Nixon, President Gerald Ford pardoned him for all offenses against the United States. By accepting the pardon, Nixon admitted guilt, but avoided indictment, trial, and possible jail time. Ford issued the pardon in the name of putting Watergate behind the nation, potentially healing America’s wounds. The pardon probably cost Ford re-election in 1976, but he may have achieved his objective of tamping down the furor over Watergate and helping the country move on.

Republicans in the House impeached Bill Clinton in 1998 over his affair with Monica  Lewinsky. The

Senate acquitted him, essentially determining sex isn’t a reason for removing a President from office. But, Clinton didn’t get off without a price. In what amounted to a plea bargain with Independent Counsel Robert Ray that avoided prosecution for perjury and obstruction of justice, Clinton accepted a five-year suspension of his Arkansas law license and paid a $25,000 fine. He also resigned from the U.S. Supreme Court bar.

The Nixon and Clinton experiences, for different

Nixon and Cllinton

reasons, cast doubt on the possibility of a post-presidency prosecution of Trump. Trump isn’t a lawyer, so he can’t forfeit a law license, but prosecutors might extract fines and business concessions in exchange for not indicting him. A Democratic successor probably won’t pardon him as Ford did for a fellow Republican, but he or she could find other ways of shutting down a prosecution.

The Tradition

In 2016, Trump mused out loud about the possibility,

if elected, of ordering that his  Justice Department prosecute Hillary Clinton over her e-mail scandal. Even Republican-leaning pundits decried such an action, arguing that bringing down the wrath of the criminal justice system on a former opponent better fit a banana republic than a country committed to the rule of law like the United States. It’s just something we don’t do, they said. 

Democratic 2020 Presidential candidates have been reluctant to endorse the idea of prosecuting Trump after he leaves office. They understand the precedent that could set. Prosecuting a former opponent, even one like Trump, opens the possibility of future politically motivated prosecutions for trivial or made-up offenses much more about settling scores than seeking justice.

And the Rule of Law?

Between the OLC policy, which some Democratic candidates say they’d change, and the tradition, it appears the rule of law could lose big. While he’s in office, Trump, if he’s not impeached and convicted, pays no price for his sins. Once he’s out, especially if its 2021 and the statute of limitations hasn’t run on his alleged crimes, his successor may not allow prosecution in the name of preserving our reputation as a nation that doesn’t permit prosecutions of former political opponents.  

So, when does a bad actor President get punished?  What do we mean when we say we are a nation of laws, not people, and no one is above the law? Do we still have the rule of law?  We’re going to have to answer these questions at some point, perhaps the sooner the better.