After the release of three court filings yesterday (a sentencing recommendation for Michael Cohen from SDNY, another Cohen sentencing recommendation from Robert Mueller, and a statement from the Special Counsel of the lies from Paul Manafort that justify ending his plea agreement) the consensus of legal and political pundits is that Trump is essentially finished. How long he will continue as fake “president” is unclear, but he has been credibly accused of a crime by his own Justice Department.
I’ve gathered a number of opinion pieces that I think are very good. It’s difficult to excerpt these long pieces, so I’m just giving you the highlights. You’ll have to go to the sources for more details.
Jonathan Chait: The Department of Justice Calls Donald Trump a Felon.
Federal prosecutors released sentencing recommendations for two alleged criminals who worked closely with Donald Trump: his lawyer Michael Cohen, and campaign manager Paul Manafort. They are filled with damning details. But the most important passage by far is this, about Trump’s fixer: “Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.”
The payments in question, as the document explains, concern a payoff to two women who claimed to have affairs with Trump. The payments, according to prosecutors, were intended to influence the campaign, and thereby constituted violations of campaign finance law. They have not formally charged Trump with this crime — it is a sentencing report for Cohen, not Trump — but this is the U.S. Department of Justice calling Trump a criminal….the fact that he is being called a felon by the United States government is a historic step. And it is likely the first of more to come…..
Cohen is providing helpful information on other crimes. Cohen reportedly gave the special counsel “useful information concerning certain discrete Russia-related matters core to its investigation that he obtained by virtue of his regular contact with Company executives during them.” And this contact continued into 2018. Cohen was not locked out and probably has access to some secrets….
The special counsel sentencing recommendation for Cohen also reveals that Russian contact with the Trump campaign began as early as 2015, not the following spring. And Russians promised “political synergy” — which is essentially a synonym for campaign collusion — and “synergy on a government level.” That means a quid pro quo in which Russia would help Trump win the election and Trump, if elected, would give Russia favorable policy. This is the heart of Mueller’s very much ongoing investigation.
There are suggestions in both the Cohen filings that The Trump Organization was involved in crimes, and that is very significant. As Emptywheel pointed out recently, even if Trump were to pull a Nixon and make a deal with Pence–the presidency in return for pardons–Pence could not pardon Trump’s company.
Marcy writes that the sentencing memorandum released by Cohen’s attorneys on November 30,
…puts Trump’s eponymous organizations — his company and his foundation — squarely in the bullseye of law enforcement. The known details of all those puts one or the other Trump organization as an actor in the investigation. And we’ve already seen hints that the Trump Organization was less than responsive to some document requests from Mueller, such as this detail in a story on the Trump Tower deal:
According to a person familiar with the investigation, Cohen and the Trump Organization could not produce some of the key records upon which Mueller relies. Other witnesses provided copies of those communications.
If there’s a conspiracy to obstruct Mueller’s investigation, I’m fairly certain the Trump Organization was one of the players in it….
But the Trump Organization did not get elected the President of the United States (and while the claims are thin fictions, Trump has claimed to separate himself from the Organization and Foundation). So none of the Constitutional claims about indicting a sitting President, it seems to me, would apply.
If I’m right, there are a whole slew of implications, starting with the fact that….it utterly changes the calculation Nixon faced as the walls started crumbling. Nixon could (and had the historical wisdom to) trade a pardon to avoid an impeachment fight; he didn’t save his presidency, but he salvaged his natural person. With Trump, a pardon won’t go far enough: he may well be facing the criminal indictment and possible financial ruin of his corporate person, and that would take a far different legal arrangement (such as a settlement or Deferred Prosecution Agreement) to salvage. Now throw in Trump’s narcissism, in which his own identity is inextricably linked to that of his brand. And, even beyond any difference in temperament between Nixon and Trump, there’s no telling what he’d do if his corporate self were also cornered.
In other words, Trump might not be able to take the Nixon — resign for a pardon — deal, because that may not be enough to save his corporate personhood.
Head over to Emptywheel for more details.
Ken White (AKA Popehat) at The Atlantic: Manafort, Cohen, and Individual 1 Are in Grave Danger.
White provides a very good summary of the yesterday’s three court filings, which you can read at the link. Here’s his conclusion:
The president said on Twitter that Friday’s news “totally clears the President. Thank you!” It does not. Manafort and Cohen are in trouble, and so is Trump. The Special Counsel’s confidence in his ability to prove Manafort a liar appears justified, which leaves Manafort facing what amounts to a life sentence without any cooperation credit. The Southern District’s brief suggests that Cohen’s dreams of probation are not likely to come true. All three briefs show the Special Counsel and the Southern District closing in on President Trump and his administration. They’re looking into campaign contact with Russia, and campaign finance fraud in connection with paying off an adult actress, and participation in lying to Congress. A Democratic House of Representatives, just days away, strains at the leash to help. The game’s afoot.
Another very good summary of the filings can be read at Lawfare, this one by Victoria Clark, Mikhaila Fogel, Quinta Jurecic, and Benjamin Wittes: ‘Totally Clears the President’? What Those Cohen and Manafort Filings Really Say. Here’s a short excerpt on Trump’s culpabililty:
In short, the Department of Justice, speaking through the acting U.S. attorney for the Southern District of New York, is alleging that the president of the United States coordinated and directed a surrogate to commit a campaign finance violation punishable with time in prison. While the filing does not specify that the president “knowingly and willfully” violated the law, as is required by the statute, this is the first time that the government has alleged in its own voice that President Trump is personally involved in what it considers to be federal offenses.
And it does not hold back in describing the magnitude of those offenses. The memo states that Cohen’s actions, “struck a blow to one of the core goals of the federal campaign finance laws: transparency. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows.” His sentence “should reflect the seriousness of Cohen’s brazen violations of the election laws and attempt to counter the public cynicism that may arise when individuals like Cohen act as if the political process belongs to the rich and powerful.”
One struggles to see how a document that alleges that such conduct took place at the direction of Individual-1 “totally clears the president.”
Garrett M. Graff at Wired: The Mueller Investigation Nears the Worst Case Scenario.
WE ARE DEEP into the worst case scenarios. But as new sentencing memos for Trump associates Paul Manafort and Michael Cohen make all too clear, the only remaining question is how bad does the actual worst case scenario get?
The potential innocent explanations for Donald Trump’s behavior over the last two years have been steadily stripped away, piece by piece. Special counsel Robert Mueller and investigative reporters have uncovered and assembled a picture of a presidential campaign and transition seemingly infected by unprecedented deceit and criminality, and in regular—almost obsequious—contact with America’s leading foreign adversary.
A year ago, Lawfare’s Benjamin Wittes and Quinta Jurecic outlined seven possible scenarios about Trump and Russia, arranged from most innocent to most guilty. Fifth on that list was “Russian Intelligence Actively Penetrated the Trump Campaign—And Trump Knew or Should Have Known,” escalating from there to #6 “Kompromat,” and topping out at the once unimaginable #7, “The President of the United States is a Russian Agent.”
After the latest disclosures, we’re steadily into Scenario #5, and can easily imagine #6.
Read a detailed analysis at the link. Graff is the author of a book on Robert Mueller’s time as FBI Director.
Another highly recommended analysis from Ryan Goodman and Andy Wright at Just Security: Mueller’s Roadmap: Major Takeaways from Cohen and Manafort Filings. Goodman and Write offer eight “takeaways.”
1. SDNY Prosecutors named the President of the United States as a direct participant, if not the principal, in felonies….
2. Other Trump Campaign and Trump Organization officials may face criminal charges for the hush money scheme….
3. The Special Counsel ties Trump directly to possible Russia collusion….
4. Russian contacts began during the GOP Primary….
5. The Special Counsel targets many Manafort lies but is silent on the infamous Trump Tower meeting with Russians….
6. Some potential hints of obstruction and suborning perjury….
7. Mueller’s M.O.: What he’ll do with lying to the public (and lies in writing)….
8. Why Cohen was more forthcoming with Mueller than SDNY, and SDNY wants him to serve a significant prison sentence.
I’ll just share one interesting excerpt from point 7, on lies that are put in writing and lies to the public. Both of these could apply to Trump himself.
In terms of perjury and false statements, Mueller seizes on fact that Cohen lies were in written testimony rather than arising “spontaneously from a line of examination or heated colloquy.” That’s a danger sign for people like Trump, who may have thought they had greater safety in written responses to Mueller, and people like Roger Stone, whose apparent lies to Congress are on the face of his written testimony.
Another important insight is how Mueller seizes on Cohen’s lies made to the public.
First, Mueller’s theory of the case recognizes that public statements are methods of communication with other witnesses. That’s important for potential conspiracies to commit perjury or otherwise obstruct justice. This also increases the likelihood that Mueller will regard public statements by President Trump and his lawyers as signals to other witnesses–such as publicly dangling pardons and favoring the “strength” of uncooperative witnesses.
Second, Mueller considers lies to the public can be an attempt to undermine the investigation. The memo states, “By publicly presenting this false narrative, the defendant deliberately shifted the timeline of what had occurred in the hopes of limiting the investigations into possible Russian interference in the 2016 U.S. presidential election.” That sounds awfully similar to the creation of a cover story about the June 9 Trump Tower meeting, which the President himself reportedly directed from aboard Airforce One.
Third, Mueller considers Cohen’s false statements to be even more significant because he “amplified” them by “by releasing and repeating his lies to the public.” That approach spells trouble for several Trump campaign associates including Roger Stone, Donald Trump Jr., Erik Prince, and Michael Caputo.
Barry Berke, Noah Bookbinder and Norman Eisen at The Washington Post: Is This the Beginning of the End for Trump? A brief excerpt:
The special counsel focuses on Mr. Cohen’s contacts with people connected to the White House in 2017 and 2018, possibly further implicating the president and others in his orbit in conspiracy to obstruct justice or to suborn perjury. Mr. Mueller specifically mentions that Mr. Cohen provided invaluable insight into the “preparing and circulating” of his testimony to Congress — and if others, including the president, knew about the false testimony or encouraged it in any way, they would be at substantial legal risk.
Mr. Trump’s legal woes do not end there. The special counsel also advanced the president’s potential exposure under the Foreign Corrupt Practices Act for activities relating to a potential Trump Tower Moscow. Mr. Mueller noted that the Moscow project was a lucrative business opportunity that actively sought Russian government approval, and that the unnamed Russian told Mr. Cohen that there was “no bigger warranty in any project than the consent” of Mr. Putin.
If recent reports that Mr. Cohen floated the idea of giving Mr. Putin a $50 million luxury apartment in a future Trump Tower Moscow prove true, both the president and his company could face substantial jeopardy.
There’s much more analysis at the WaPo link.
It has been quite a week, ending with a bang yesterday. As Trump often says, “we’ll see what happens.” What stories have you been following?
As usual in the horrifying new world of Trump, there is so much shocking news that there’s no way to deal with all of it. I guess the top story has to be that Trump’s former lawyer John Dowd dangled pardons in front of Michael Flynn and Paul Manifort last summer.
The New York Times: Trump’s Lawyer Raised Prospect of Pardons for Flynn and Manafort.
A lawyer for President Trump broached the idea of Mr. Trump’s pardoning two of his former top advisers, Michael T. Flynn and Paul Manafort, with their lawyers last year, according to three people with knowledge of the discussions.
The discussions came as the special counsel was building cases against both men, and they raise questions about whether the lawyer, John Dowd, who resigned last week, was offering pardons to influence their decisions about whether to plead guilty and cooperate in the investigation.
The talks suggest that Mr. Trump’s lawyers were concerned about what Mr. Flynn and Mr. Manafort might reveal were they to cut a deal with the special counsel, Robert S. Mueller III, in exchange for leniency. Mr. Mueller’s team could investigate the prospect that Mr. Dowd made pardon offers to thwart the inquiry, although legal experts are divided about whether such offers might constitute obstruction of justice.
Mr. Dowd’s conversation with Mr. Flynn’s lawyer, Robert K. Kelner, occurred sometime after Mr. Dowd took over last summer as the president’s personal lawyer, at a time when a grand jury was hearing evidence against Mr. Flynn on a range of potential crimes.
Flynn ultimately took the safe route and agreed to cooperate with the Mueller investigation; but this could explain why Paul Manafort is holding out even though the evidence against him is overwhelming and he could face life in prison if convicted.
Constitutional experts are now discussing whether Trump could get away with pardoning Manafort and others, even if he did it with corrupt intent. Some opinions:
Alex Whiting at Just Security: Why Dangling a Pardon Could Be an Obstruction of Justice—Even if the Pardon Power is Absolute. A brief excerpt:
Some experts have argued that the pardon power is absolute and that the President’s motives in issuing a pardon thus could not be questioned, while others contend that it could be a crime to issue a pardon for corrupt purposes (such as in exchange for cash). But the debate over the absolute nature of the pardon power is actually not relevant to the alleged incidents involving Trump’s lawyer. Indeed, that entire debate can be set aside for the moment. Why? Because there’s been no pardon. Instead, a pardon has only been dangled before Flynn and Manafort, and the analysis of whether that action could become part of an obstruction case against Trump raises entirely different considerations….
The pardon dangle works completely differently—and in important respects has the opposite effects. First, this kind of dangle is not a public act. Therefore, as long as it remained secret, it could be done without incurring any of the political downstream consequences that come with actually pardoning someone. It hides the President from scrutiny rather than exposes him to it as a potential check on the use of the power. Second, the objective of the dangle appears to have been to foreclose the prospect of Flynn and Manfort’s cooperating or testifying. Once again, this is the opposite effect of an actual exercise of the pardon. The message of the dangle was sufficiently clear: hang in there and keep fighting (do not cut a deal with the special counsel) because you will be pardoned before you spend a day in jail. The President and his lawyer’s hope would have been that with the threat of jail eliminated, neither former aid would feel compelled to plead guilty and cooperate with Mueller to reduce his sentence. But, since they were not actually pardoned or not yet anyway, they still kept their Fifth Amendment privileges, and so Mueller could not simply demand they testify before the Grand Jury. In this way, the dangle could operate to stop any cooperation from Flynn and Manafort, who could then be pardoned later if and when they were indicted or even after their cases went through pretrial, trial and appeal. Indeed, you also have to put yourself back at the time these events all took place: before Manafort was indicted and Flynn pleaded guilty. That’s when the dangle could work its magic.
Because a pardon dangle is secret and seeks to discourage cooperation with an ongoing investigation without public scrutiny or consequences, it should be analyzed differently than a pardon when it comes to an obstruction case.
Former U.S. Attorney Harry Littman at The Washington Post: We may know why Paul Manafort has kept quiet. But his bet is still risky.
Manafort’s refusal to cooperate can’t be driven by a rational calculation that he has any reasonable chance of escaping conviction, multimillion-dollar legal fees and a prison sentence that will result in years behind bars.
The indictments against him lay out an overwhelming case of money laundering in particular. The meticulously gathered evidence will be as clear for the jury as a laundry detergent commercial: The jury will see the dirty money go in and the clean money come out. To the extent there had been a small risk, inherent in paper-driven chases, that the jury could become bored at the accounting presentation and tune out, Mueller now has a narrator for the trial in Manafort’s co-conspirator Rick Gates.
So is hoping for a Trump pardon a good bet for Manafort?
…the Times story does not definitively solve the Manafort mystery. First, Dowd’s reported overture, particularly if done with the president’s knowledge or consent, could have constituted a conspiracy to obstruct justice, a separate impeachable offense. That presumably is why the story includes a categorical denial from Dowd that he ever discussed pardons for the president’s former advisers with lawyers. For Dowd, the conduct would be putting his license at risk.Second, Manafort surely recognizes that he can’t fully count on Trump, both because the president is a habitual liar and because the political dynamic is subject to such extreme and violent turns. (Of course, under this hypothesis, Manafort retains the valuable insurance policy of spilling the goods if Trump double-crosses him, leaving both huge losers in a real-life prisoners dilemma.)
Third, Manafort could still be required to testify after any pardon, when he would no longer be in federal jeopardy. Undoubtedly, the plan would be for him to deny assurances of a pardon from Trump. Still, were Mueller to catch him in a lie, the special counsel would surely come down on him.
Finally, it is likely that in the event of a pardon for federal crimes, which is all Trump can provide, some state attorneys general, such as New York’s Eric T. Schneiderman, would prosecute Manafort for financial crimes under their potent state statutes.
Maybe Manafort figures a possible pardon is a better bet than hoping Putin doesn’t send his goons to shut him (Manafort) up for good.
A few more pardon stories:
Bloomberg: Pardon Talk Could Put Trump Lawyer in Hot Water.
The Washington Post: This overlooked part of the Constitution could stop Trump from abusing his pardon power.
Another big story broke late yesterday. Trump fired Veterans Affairs Secretary David Shulkin. Today Shulkin is speaking out, claiming he was fired because he opposed privatizing the VA. Shulkin spoke to NPR’s Morning Edition:
Fired Veterans Affairs Secretary David Shulkin tells NPR’s Morning Edition that political forces in the Trump administration want to privatize the VA — and that he was standing in the way.
“There are many political appointees in the VA that believe that we are moving in the wrong direction or weren’t moving fast enough toward privatizing the VA,” he said. “I think that it’s essential for national security and for the country that we honor our commitment by having a strong VA. I was not against reforming VA, but I was against privatization.”
Those political forces may be why Shulkin says he wasn’t allowed to speak out to defend himself against an ethics controversy over use of funds on a trip to Europe that he says was overhyped and intended to weaken him.
“This was completely mischaracterized,” Shulkin said. “There was nothing improper about this trip, and I was not allowed to put up an official statement or to even respond to this by the White House. … I think this was really just being used in a political context to try to make sure that I wasn’t as effective as a leader moving forward.”
Shulkin argued his case in an op-ed at The New York Times: David J. Shulkin: Privatizing the V.A. Will Hurt Veterans.
That’s a lot of news, but I’ve barely touched on everything that’s happening. Here’s a shocking Trump corruption story that broke at The Guardian this morning: FBI looked into Trump plans to build hotel in Latvia with Putin supporter.
In 2010, a small group of businessmen including a wealthy Russian supporter of Vladimir Putin began working on plans to build a glitzy hotel and entertainment complex with Donald Trump in Riga, the capital of Latvia.
A senior Trump executive visited the city to scout for locations. Trump and his daughter Ivanka spent hours at Trump Tower with the Russian, Igor Krutoy, who also knows compatriots involved in arranging a fateful meeting at the same building during the 2016 US election campaign.
Then the Latvian government’s anti-corruption bureau began asking questions.
The Guardian has learned that talks with Trump’s company were abandoned after Krutoy and another of the businessmen were questioned by Latvian authorities as part of a major criminal inquiry there – and that the FBI later looked into Trump’s interactions with them at Latvia’s request.
Those involved deny that the inquiry was to blame for the deal’s collapse.
Latvia asked the US for assistance in 2014 and received a response from the FBI the following year, according to a source familiar with the process. Latvian investigators also examined secret recordings in which Trump was mentioned by a suspect.
This means the FBI looked into Trump’s efforts to do business deals in the former Soviet Union earlier than was widely known. Robert Mueller, the special counsel, is now investigating other Trump dealings with Russians as part of his wide-ranging criminal inquiry into alleged collusion between Moscow and members of Trump’s 2016 campaign team.
The Riga developers saw their potential partner in New York as a ticket to lucrative western revenues.
This shit just never ends. I haven’t even touched on the North Korea news or the Bolton mess or the fact that Trump wants to put his personal physician in charge of the VA. More headlines to check out:
The Washington Post: Who is Trump’s new Veterans Affairs pick, Ronny Jackson?
The Washington Post: Three big questions about a Trump-Kim summit.
Talking Points Memo: WSJ: Kushner Has Phoned Bolton For Advice In The Past Year.
The Daily Beast: ICE Now Detaining Pregnant Women, Thanks to Trump Order.