Speculation and Manafort’s Change of Lawyers

I want to draw your attention to the some specific language in the Politico story on Paul Manafort’s change of lawyers, quoting a Manafort spokesman (see especially my bold language):

A spokesman confirmed the change. “Mr. Manafort is in the process of retaining his former counsel, Miller & Chevalier, to represent him in the office of special counsel investigation. As of today, WilmerHale no longer represents Mr. Manafort,” Jason Maloni said in a statement.

Now I have absolutely no factual knowledge of the situation.

However, I can not help but notice this.  Apparently, the process of moving back representation to prior counsel was not, at least at the time of the statement, complete.  But, “as of today,” WilmerHale is out of the picture, and apparently it has become important that this is made clear immediately.

Now all the media coverage has focused on the possibility that this change reflects realization of the newly serious situation Manafort faces.  But what strikes me is the apparent speed and finality of the change — so fast that the statement is issued before the retaining of new counsel is complete.  This is in direct contrast to changes made in representation of others caught up in this scandal.  Of course, in a fast moving case, in which the prosecutor has already  shown a willinness to push hard, going even an hour without a lawyer can be very risky.

As a totally general matter, it is an open secret among lawyers that “getting off a case,” is often triggered by disagreement about testimony, or representations made by counsel to legal bodies. Sometimes this can be related to prior testimony or such representations.  More specifically often the problem is the reluctance of counsel to become embroiled in knowing (emphasis added) that testimony is false.  (One might speculate that in such situations, timing can be of the essence.)

Regardless of whether any of my speculation is accurate, you can be sure that Mueller’s staff are already going through everything they have to try to figure out where any problem might be, and to then adjust their strategy.

Not good news for any of those potentially implicated.

Note:  This post appeared initially in my access to justice blog.

 

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Lets Face It — a Constitutional Crisis Is Certain

Calm, measured, careful David Brooks, on the News Hour Friday night, said something like this (reconstructed, not quoted):

Look Trump is transparent.  He has said — if you want to find my corruption go to the tex returns.  And he has said to Mueller, if you got the tax returns, I will fire you. So, we know exactly what will happen.  Mueller will go to the tax returns, Trmp will fire him, and we will have a constitutional crisis of some king.

I conclude that at this point we all actually know that a constitutional crisis is coming.  All that remains to find out is exactly what will trigger it, how the parties align at that point and perhaps how it will end.  Although I am pretty confident of the ultimate outcome.

This reminds me of my mother, who as 15 at the time of the events, saying that after Munich in 1938, everyone knew that war was coming, and that it was almost a relief when it finally did so.  Then people knew what they had to do.  I think it is the same now.

Now, the crisis could come from an attempted firing, it could be triggered by a refusal to comply with court or congressional orders, or less likely, it could be set off by extra-judicial illegal executive actions.  Nor do we know what the triggering event will be about.  It could be the now essentially admitted as to intent, Russia Collusion, the obstruction of justice claim, financial irregularities, or even the emoluments clause, to name just a few of the options.

But the outcome will depend on the willingness of the Courts and Republican politicians to enforce our constitutional norms. While it is clear that almost none of our Republican leaders have read or internalized Profiles in Courage, at some point the pain barrier will be reached.

Finally, I sometimes wonder what the definition of a constitutional crisis is?  Is it when one when of the corrective measures in the constittuion cuts in and works, as it did in 1974, or is it when that mechanisms are not triggered, or fail, causing a braoder legitimacy problem.  I hope we do not find out.

“I Tried to Get My Dog to Eat My Homework, But He Didn’t” is Not Much of a Defense, Even for a Young Trump

Let’s get this clear (NYT).

President Trump’s eldest son, Donald Trump Jr., was promised damaging information about Hillary Clinton before agreeing to meet with a Kremlin-connected Russian lawyer during the 2016 campaign, according to three advisers to the White House briefed on the meeting and two others with knowledge of it.

But, to the team’s apparent disappointment, the Russians were not handing over any such information.  I have bolded the words “before agreeing”

In other words, “I met with the dealer because they promised me get drugs, but they did not have any.”

There are lots of appropriate ways of responding to such an approach, including calling in the FBI, maybe altering you opponents, maybe ignoring it, or responding that any such meeting or transfer would be inappropriate and a possible crime.  But going to the meeting without any protective cover — apparently without even a memorialization of the invite and its context, leaves me breathless.

Bottom line:  “We wanted to collude, but were not able to.”  That admission will give far greater credibility to additional evidence of actual collusion, whether out of this meeting or others.

In any other context, this story alone would upend US politics, lead to a major investigation, and immediate doubt of the truthfulness of the denial of Trump senior’s knowledge.  Let’s hope we are not too numb.

The Deeply Disturbing Implications of the Washington Post Story of the Inadequate US Response to Russian Hacking, and a Long Term Proposal

It is almost impossible to force oneself to read the Washington Post’s brilliant reporting of the US failure to respond adequately to the Russian election-related hacking.

However, attention must be paid, and the implications go far further than judgements about the Obama administration, that I am sure will go well explored in classic blame the victim manner.

First,  I think we have to admit that the current situation of a largely unpunished and undeterred coup/attack on the US has to be broadly blamed on the entire political process in the US.  While the lack of response, either public or covert, is hard to defend either now, or then, it has to be seen as in part the product of the hyper-politicization of foreign policy.  The Obama administration was operating in a toxic environment in which any honest reporting or respect was, and would be thrown back in the face of the government and the electorate, without any concern for considerations other than short term victory.   The administration could not ignore the reality of that environment.

That must be recognized as a product of Trump active encouragement of hacking, of his trivialization of any reporting, and of his contempt for truth.  The enablers carry as much if not more of the blame.

Second, we must be honest about where we are.  We no longer can be confident that the American people control our own fates through the political process.  It was and has to be assumed to be about to be again, another Pearl Harbor.  (That the US has its own long bi-partisan history of interference in other counties electoral, and political processes, not to mention coups, does not make this any less serious, it only makes it harder to defeat.)  Given the massive reluctance of Trump to take this threat in any way seriously, or even to recognize the risks of the legitimacy this has already lost him, we can have no faith that the governmental system will protect us against more and worse future surrenders of control.  (If Trump is forced out, as I strongly believe he has to be, and will be, this last is no longer true, but issues of trust and legitimacy will long remain.)

Finally, we have to build a new layer of institutions that protect the integrity of our political system regardless of short term interest.  For a start, I can imagine a Commission led by prior presidents, with an independent staff, with direct access to the intelligent services.  The Commission would have a mandate to issue public reports, including on the credibility of challenges to our democratic electoral system, and to publicly and privately urge actions of all kinds, thereby making it easier for presidents to take needed actions without being effectively accused of putting partisan interests first.  While hacking will be one part of the charter of duties, all forms of foreign interference and collusion will need to be included.

The problem, as always, and as we learned in the cold war, is that is is almost impossible to give groups power that is not democratically constrained without then in fact surrendering democracy to those powers.  In the absence of the consensus of  the cold war years, the need is even greater than it was then, and the risks are far greater.

It is a measure of what Trump and his enablers have wrought, and what his opponents have failed to do, that we now face this choice.

 

 

 

 

 

 

This May All Be Over Much Quicker Than Anyone Expects

There are several reasons why the received wisdom about the speed of the Trump removal process may be completely wrong.  Not surprisingly, most of the reasons relate as much to the political as to the legal context.

One:  Perhaps most importantly, unlike in prior impeachment situations, even this early, almost everyone in Washington really wants Trump gone.  There are literally only about 50 people for whom this is not true.  The difference between the parties this year is that the Democrats are not upset when people figure it out, but the Republicans are terrified about their base doing so.  (When the Republicans say they want to get all the facts out about malfeasance on their side, you know the subject of the investigation is in deep trouble.)

Two:  A prima facie case of obstruction of justice by President Trump has already been made out, most of it from his own statements and admissions.  This comes from his firing of Comey, his statement that he performed the firing because of his feelings about the Russia investigation, his statement to the Russians that he (and they) have gained from what he believed to be the successful firing.  While that alone is probably enough, there will be plenty more.  This could go to a grand jury very quickly.

Three:  This time round, no one seems to be suggesting any barriers, such as Executive Privilege or National Security, to getting the information quickly.  This is in very marked contrast to 1972 – 1974, when it took well over a year to resolve the barriers.  I think the main reason is listed in number one  above, that no one wants to protect Trump, it is just that one party does not want that fact to be too obvious.  It is also partly that Trump has waived many of the legal issues by his tweeting and statements.  I think it is less the reason for the absence of such privilege claims that the legal issues have already been resolved — US v. Nixon gave Nixon no outs, but clever lawyers have since then, with a sympathetic audience been able to find new arguments — it’s just that there is no such sympathetic audience outside the immediate Trump family and their hangers on.

Four:  It really does not matter whether a President can be indicted or not.  You just charge a conspiracy to obstruct justice, name the President as an un-indicted co-conspirator, and get all the information to Congress.  This is what happened with Nixon, in that case with the permission of the judge overseeing the grand jury (the now largely forgotten hero John Sirica.)

Five:  In today’s digital environment, not only is there additional evidence everywhere, but the process of finding and putting it in the right order will move much quicker.  In the Watergate investigation it look months to get all the interlocking evidence hand typed onto sorted color-coded index cards.  The timeline can be ready for grand jury presentation soon.

Six:  If they can get rid of Trump, the Republicans want it done as fast as possible.  This is because the other prong of the investigation, the one dealing with the underlying Russia collusion, is going to take much longer, but if successful, it is potentially much much more damaging to the legitimacy of Republican power.  If by the time we get a new President it is clear that the Democrats should or might have won without the collusion, the pressure on Pence to offer the Vice Presidency to Tim Kaine will be immense, and we will be in a period of coalition government.  If the Republicans do not accept something like this, they will be killed at the next election, whether midterms or the presidential.  Even if they do accept it, much of their radical agenda is gone.

So, almost all the rational incentives align in the same direction.

The only questions are whether the Republicans can figure this out, and if the Democrats want and are able to, can figure out how to take advantage of the alignment.

Actually, the main reason I now think that impeachment is the more likely route is that Republicans do not have to be the ones obviously triggering the process, at least until very near the end of the game.  In contrast, if they used the 25th Amendment, it would basically Republicans starting and managing the process.

But, that choice of remedy analysis assumes that new bombshell inherently destructive of Trump’s relationship with his core base comes out — and that might happen tomorrow at 5 PM.  Tax returns, anyone.

 

 

 

A Strong Inference that the WH Counsel Talked to Trump About How to Respond to Yates’ Concerns

The day after Sally Yates talked to White house Counsel (or is it Council?) he came back with questions, somewhat reminiscent of those John Dean might have asked, but much less intelligent or knowledgeable.  Washington post, Dana Milibank:

He called the DOJ officials back to the White House the next day and asked them a perplexing question, Yates recounted to a Senate Judiciary subcommittee Monday afternoon: Why does it matter to DOJ if one White House official lies to another White House official?

Yates explained what should have been self-evident: Not only were Pence and the American public entitled to know the truth, but the Russians also knew that Flynn had lied to the vice president — so the Russians had the goods on him. “To state the obvious, you don’t want your national security adviser compromised with the Russians,” Yates testified. “Logic would tell you that you don’t want the national security adviser to be in a position where the Russians have leverage over him.”

But Trump didn’t move to fire Flynn. He fired Yates instead.

 At the White House counsel’s request, Yates had arranged for him to see the evidence against Flynn on Monday, Jan. 30. But he didn’t come that day, and that night Yates was sacked for refusing to implement Trump’s order banning travelers from several majority-Muslim nations.
Well, where on earth did counsel Don McGahn come up with that question?  I would have think the answer would have been obvious to the cleaning staff.
But the Donald, not so clear.
Now, as we learned from Watergate, White House calls, meetings, etc., may not have tapes and transcripts, but they are all logged.  So the circumstantial case for Presidential involvement in the Flynn cover-up, for cover up is what it certainly appears to have been, grows, and the lurking question of motive gets larger.  That Obama had previously at least generally warned Trump off Flynn, to no avail, and that Spicer now says that the warning was ignored as sour grapes from a loser, does not help Trump’s case at all.
P.S. Is it not tragically and deliciously ironic that the Trump White House had to ask why it would be a problem if someone lied?  Did they have to look up the meaning of the word?

 

 

An Additional Example of The Breakdown of Nation State Autonomy– White House staff and Trudeau

At one level, this is astonishing. From The Hill.

White House officials enlisted Canadian Prime Minister Justin Trudeau to help convince President Trump not to unilaterally withdraw from the North American Free Trade Agreement (NAFTA), according to a Monday report.

The unique and potentially embarrassing approach, which was first reported by Canada’s National Post, apparently worked. Following phone calls with Trudeau and Mexican President Peña Nieto, Trump backed off of reported plans to pull out of NAFTA last month.

Instead, Trump announced that he would renegotiate the 23-year-old deal agreement among the U.S., Canada and Mexico.

I am sure this will draw attention mainly as yet another example of the dysfunction of the White House and its nominal occupant.

But the idea that the staff of a nation’s chief executive would find it appropriate to bring in as an ally the chief executive of another country to change their own bosses mind is in fact merely symptomatic of the fact that today the real disputes are between loose alliances of elites whose loyalties and communications now cross national boundaries.

It is related to the interest of foreign countries in state by state politics in the US, is reflected in part by Flynn, and whoever else is ultimately implicated in “Russiagate,” (what did the President know, and when did he know it?) not thinking through what they did.  It is surely also reflected in the myriad state department staff who have tried to reassure elites among our allies that we are not yet as unpredictable as monitoring twitter might suggest.  Think about the conversations between Brussels officials and the British Civil Service right now.  Or between Bannon and LePenn.

At least arguably, the problem for Flynn, and whoever, is not that they had conversations, but that they made no distinctions between our friends and our allies, or rather that their actions reflected a lack of understanding that there is a distinction.

The fact is that as national interests become more and more interconnected, this is an almost inevitable process.  The questions are how to manage it so that the interests of the excluded are not even more abandoned, and how to see this as part of the process of creating trans-national institutions and governments.  Would the United States ever have been established if the leaders of the thirteen states had not already somewhat  known each other, and known whom they could trust.

We need very new ways of thinking about this.