-
Wishing Trump Away from 2024
The Democrats only possible path forward is to ensure Trump does not run in 2024. They want to lock him in jail.With only three years left to go, the 2024 race is narrowing quickly to Trump versus Some Democrat. By election day President Biden will be a vaguely sentient 82, VP Harris likely will have left the country, and the Dem’s rainbow coalition of identity claimants will quickly winnow itself down to nobody as their collective lack of experience devalues their various claims of victimhood. What to do about Trump?
You can convince a group of Americans for awhile Trump is a Russian agent, or violated an Emoluments Clause thingie they never heard of, just by saying it over and over. The problem is once the accusation reaches the judicial system, the Maddow-Goebbels Gambit withers. Once in the courts, words like “fraud” have very specific meanings. Treason, and anything that brushes against free speech such as incitement, have long trails of precedence. Even for something as basic as the Kyle Rittenhouse self-defense case, any first year law student will tell you there are five elements that need to be met. If the jury agrees they were met, the defendant walks, whether BL really M or not. The rule of law means those tests apply no matter how certain the public is that Rittenhouse is a murdering white supremacist. Or Trump an immoral misogynist. Of course what the Dems really want is a law making “being Trump” illegal. But in America those things are still weighed by elections.
Everyone is familiar with the litany of such failures to turn belief into crime over the last four years — Emoluments Clause, Russiagate, impeachments I and II, Stormy Daniels, obstruction of justice, and incitement. On the sidelines were extra-judicial attempts connected with the 25th Amendment, having doctors who never examined the man declaring Trump mentally ill, and even accusations of incest. The Southern District of New York previously failed to indict Trump’s children and failed to prosecute Paul Manafort. E. Jean Carroll’s rape-cum-defamation case was so egregiously lousy even the Biden DOJ took Trump’s side.
One of the latest rumored prosecutions-to-come involves Trump under-valuing properties for tax reasons, then over-valuing them to get loans, which despite the banks involved being happy enough with the terms after their own due diligence, Dems think maybe could be some kind of fraud. This kind of property valuation switch is practically New York City’s official sport, and is often and well-played by many property owners a few billion dollars short of Trump. The regulations governing how one values a NY property are thick. Built into the law is an automatic fudge allowing the same property to have both a high market value and a lower asset value. Problems are sorted out as civil matters and usually settled with the city sending out a bill, especially if the bank is not claiming fraud, only the DA, as in Trump’s case. “New York’s property tax system,” wrote Bloomberg, “is demonstrably inaccurate and unfair.” Michael Cohen, recently in prison for being a liar, is trying for another round in the spotlight claiming he has the evidence. To think the Dems will ignite righteous anger among voters with something this dense is quite funny.
All the smoking guns fired blanks. Behind every attempt to overturn the election was a certainty by the zealots that Trump must be guilty of something. Yet it all failed. Trump served out his term. He is not in jail. But “just you wait!” remains an ever-weaker rallying cry heard by ever-fewer diehards.
Like bad poker players, the Dems have all too obviously tipped their hand on their 2024 strategy. The full-court press will, sadly, focus on January 6, an out-of-hand riot wished into a second life as a coup, an insurrection, or an overthrow attempt. The characterization is silly; among other things, a coup must have some path towards success, in this case, preventing Joe Biden from becoming president. The rioters at best might have delayed the largely ceremonial counting of the Electoral College votes until the next day. They didn’t even get that done.
As before, the truth is of little importance. The Daily Beast is one of many outlets claiming “If Merrick Garland Doesn’t Charge Trump and His Coup Plotters, Our Democracy Is Toast.” The article does not mention any specific, chargeable crime Trump is to be charged with, though it mentions the words coup and abuse of power a lot. Like all of its lot, it does not address the gaping question of why the actual Capitol rioters have only been charged with things like trespassing, and not treason or sedition. Surely as what one journalist called the armed wing of the Republican Party (comparing them to the IRA and Sinn Fein) some of the January 6 cosplayers should by now be charged with something serious enough to warrant fears the Republic itself hangs by a thread.
Since the Democrats have no viable 2024 candidate, and since Trump’s support remains high, the only way to defeat him is by some non-electoral process just short of Dealey Plaza. Political prosecutions are not new in America. Political pogroms are. There has never in our history been a more sustained yet unsuccessful judicial effort to oust or destroy one man.
The Democrats, so used to failing at this, are also not looking at the secondary effects of their dirty work, specifically wearing out the public they seek to influence against Trump. After four years of faux scandals being spiked into the public’s veins, how many more times can they try the same game before voters simply stop listening? Meanwhile, every shot at Trump that misses only increases support among his own followers as the candidate brags about beating the charges again. When non-supporters begin to ask themselves if indeed Trump is right when he claims persecution, the Dems have already lost.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Paul Manafort is the End of Act I. What’s Next?
No one weeps for Paul Manafort. He goes to jail for Donald Trump’s sins. The irony is his sad but uneventful end of a life lived as a parasite of a corrupt political system would not have mattered a jot if special counsel Robert Mueller didn’t think he could bring down the president alongside Manafort. That Trump is still standing means we need to prepare for Act II, what happens post-Mueller.
But first the eulogy for what might have been. Manafort became the subject of an FBI investigation in 2014, centered on sleazy consulting work for Ukraine’s former ruling party. The surveillance was discontinued that same year and the FBI dropped the matter for lack of evidence. Manafort’s less then three month tenure as Trump campaign chairman provided the good-enough-for-government-work hook as the FBI went fishing for ties between Trump campaign associates and suspected Russian operatives.In the end Mueller was only able to convict Manafort on eight counts (he failed on ten other counts) involving false income taxes, failing to report foreign bank accounts, and bank fraud, all revolving around Manafort’s lobbying work and almost all prior to his work for Trump. The goal of repurposing the old surveillance data was to pressure Manafort into somehow tying Trump into the ambiguous collusion narrative. But via a combination of little having happened and Manafort’s lying even about that, the Mueller ploy came up dry. Oh there was all sorts of noise — Manafort handed over campaign polling data (not a crime) to someone and some of the people Manafort knew knew some of the people who knew Putin (also not a crime.) It was all as sleazy as you want it to be, just not so useful when you have to go to court and actually prove stuff to someone other than Rachel Maddow. In sentencing Manafort, the judge noted specifically there was nothing “to do with colluding with the Russian government.”
To drive home the non-point, the judge sentenced Manafort to only 47 months, with credit for nine months already served, which means maybe two years and change after time off and parole. This was well below even the minimum recommendations for his crimes, and a far cry from the “rest of his life” the media had been braying for. The Daily Beast took it personally, saying the light sentence “felt like a slap in the face for many watching the Russia probe.” Rick Wilson went on at length over his joy in seeing Manafort’s physical deterioration while in custody, concluding “karma is a magnificent b*tch.” Summing up ‘Merica 2019, a common theme across Twitter is hoping Manafort, now age 69, dies in prison.
Though you would be forgiven for thinking of this as blood sport, Manafort’s crimes were just white collar tax stuff that at worst forms the basis of one of those lurid backpage “how the mighty have fallen” stories. There is still another round of sentencing to go on Wednesday for Manafort with a supposedly vindictive judge (this round was the easy judge, but Google “concurrent sentences” before popping the champagne) and CNN tells us the superheroes of the Southern District of New York will someday prosecute Manafort separately (Google “double jeopardy” and put the bubbly back on the shelf) so he can’t be pardoned by Trump.
Of course any pardon will come either at the very end of Trump’s only term, or inside his second term, and will not matter much more than Scooter Libby did in the grand scheme of politics. Further down the road, no newly elected Democratic president is going to start their administration off seeking revenge on the previous guys; it’ll all be about healing and coming together. Like Obama, who excused torture, never mind tax crimes: time to move forward, not look backward. Trump could also just leave Manafort to rot; he isn’t very important.
UPDATE: Manafort was sentenced for his final convictions March 13, 2019. He received 73 months, with 30 concurrent with his previous sentence. That sentence was 47 months with 9 off for time served. The total by my count is: 81 months, almost seven years. With good behavior, out in about five+ maybe?
So, so much for all that.
Bottom Line: history books ten years from now will read “Paul Manafort’s lavish lifestyle, funded by corruption, came to an end in prison. He had nothing to do with Russiagate. He was just standing too close to Trump when he got caught.” So think of Manafort (and maybe Papadopoulos, Flynn, and Gates) as the weak curtain closer to Act I. Up next is Michael Cohen, the hoped for peppy tune that brings the audience back inside the theatre for Act II.
It is increasingly clear Mueller has no bombshell (hear much good about the Steele dossier lately? Just that Steele was being paid simultaenously by the FBI, the DNC, and Russian oligarch Oleg Deripaska, who was owed money by Paul Manafort and wanted to out Manafort to the feds), even as his long-overdue freshman term paper is now dragging into junior year. #Russiagate, in reality always more a hashtag than a caper, has devolved into a placeholder, a way to prep the public for the new plan, two years of Benghazi-like hearings looking for a crime.Scratch that — the Benghazi hearings will look orderly and dull in comparison. This is going to be two years of bread and circuses, with Elijah Cummings playing the calm but angry Morgan Freeman role (one kept waiting to hear him say “Now easy, young blood…” to one of his freshman representatives at the Cohen hearing) while AOC and her posse own, scold, hot take, slay, tear down, slam, and crush, for the cameras. Insurance fraud! Real estate devaluation! A Trump golf course she has to drive past everyday! Something about taxes! It’s a lot of capitalism and AOC knows from college that’s bad, right? At least until a week later, when it all comes up empty in the harsh light of sobriety. A signed check with no tie to any crime but a convict’s word is the smoking gun of impeachment? The gold standard on these things is a semen-crusted blue dress.
It’s like watching Wiley E. Coyote try something new each time but never catch the Roadrunner. Beep! Beep!
The everlasting gobsmacker of a problem remains. Ever watch Law & Order? Most episodes begin with a body on the ground. Watergate started with a break-in at Democratic National Headquarters by people quickly revealed to have direct ties to the Republicans. All things Trump began with the disbelief he won the election fairly. Everything — everything — since that has flowed from the search for a crime to reverse November 2016.
The media is chock-a-block with articles which while they take for granted the House will soon begin impeachment proceedings, offer no clear statements on exactly what the grounds for impeachment will be. Corruption is popular though the specifics are vague. Or maybe obstruction, a process crime like Mueller’s well-worn perjury traps created out of the ashes of an investigation of nothing of substance. It really doesn’t matter. Impeachment is the goal, someone will just have to find a reason sooner or later because Trump must be guilty. The problem is this is all an investigation in search of a crime. That sounded better three years ago when it all began. Watching the pivot from Russiagate to generic corruption as the main driver just exposes how empty the process is. What was supposed to be the end, Mueller, is now being characterized as only “the end of the beginning.”
NBC is more straightforward in outlining the “reasons” for impeachment than most: “The lines of investigation run from Trump’s campaign and White House operations all the way to his tax records and business dealings, and some Democrats are convinced they will ultimately be able to use their findings to tell the story of a president who has committed offenses for which he should be removed from office.”
Representative Rashida “Impeach the Mother F*cker” Tlaib is the unofficial spokesperson for the “he’s guilty, now find me the crime” line. Tlaib will introduce a resolution calling on the House Judiciary Committee “to formally move on investigating grounds for impeachment.”
The Daily Beast’s Lloyd Green seems to have figured out the situation, writing “Unlike the Nixon impeachment inquiry, the current impeachment drive did not commence against the backdrop of identifiable events that took place after Nixon was elected, or which resonated beyond the partisan divide. Here, there was no Watergate break-in or Saturday Night Massacre. Instead, impeachment feels like a cumulative punishment for ‘modern presidential,’ Trump’s ceaseless effort to define deviancy, and decency, down.”
A developing nasty truth about many of the accusations accumulating around the new Democratic House like snow drifts is the loop between what the Dems are doing and the media. The goal is to ever-widen the circle of things to be investigated in hopes of finding something. It works like this. An article will appear, based of course on anonymous sources, saying for example Trump tried to block a merger for political gain. Mere days later, citing the article as new evidence, House Judiciary Committee Democrats announce they need to look into the merger. Next up, a Democratic senator demands the Attorney General launch his own investigation. Often an editorial or Op-Ed will then complete the circle praising Congress for trying to get to the bottom of things.The same thing happened after a New York Times article, based in part on those anonymous sources, triggered calls to investigate Jared Kushner’s security clearance.
The use of anonymous sources (and who knows, perhaps those “sources” are connected to the Democrats themselves) to cue the growing number of investigations up is very transparent. Concerns Trump and Fox work together are too narrow a focus on what is really going on, as mainstream outlets shift from mere partisan reporting to serving as political operatives. Donna Brazile leaking a few questions in advance to Hillary Clinton will seem quaint in retrospect.
That seems to be the game plan for the next two years. What remains are two big questions: will it work, and will it end.Assuming something is found worth opening impeachment hearings over, the Republican majority in the Senate is still unlikely to convict. Trump will thus run for reelection in 2020. Will public opinion, empathy, following impeachment proceedings help him as it ultimately did Bill Clinton? How many voters will see through this politicization of the Constitutional process and turn away from the Dems? How many Democrats who want real things to happen on healthcare and immigration will see this all as just a waste of time?
Then the last question: will this all end in 2020? Because if the endless investigation tactic seems to work this time around, you can bet when the next Democrat takes the White House, they will wake up the day after their inauguration to find a special prosecutor and Congressional hearings waiting. Ten years of taxes? How about we start with twenty and see where that goes? Now, Madam President, about this handwritten note in your junior high school yearbook…
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Is Michael Cohen Impeachment’s Smoking Gun?
While 8000 miles away in Vietnam the president of the United States practices nuclear diplomacy, Americans at home watched former Trump lawyer Michael Cohen stand up on his hind legs to beg for a reduced jail sentence.Cohen, testifying on February 27 before the House Committee on Oversight and Reform (he testified behind closed doors on Tuesday to the Senate Intelligence Committee, and he will go back behind closed doors Thursday with the House Intelligence Committee), told Americans who think they already know what they think exactly what they wanted to hear: Trump is a vulgar conman, a racist, and a cheat. None of that is impeachable or criminal. Also, water is wet.
The media is burying the lede: Michael Cohen did not provide any evidence of Russian collusion with the Trump campaign, nor did he provide any evidence of collusion, active coordination or conspiracy with Wikileaks. Cohen’s accusation of a Trump crime while in office is at best an evidence-free rendering of an unclear violation of a campaign finance law usually settled with a fine. Any action going forward using Cohen’s testimony requires one to simply believe the words of Michael Cohen. That’s a big ask.
Building a criminal case, or impeachment, around the uncorroborated testimony of a disbarred, convicted felon violating attorney-client privilege to beg for a shorter sentence seems weak. Absent corroborating evidence it is hard to see Cohen’s testimony leading to impeachment or criminal charges. It all sounds very dramatic and will be played as such by the media, but in the end is another faux smoking gun. There’s just not much meat on these bones.
On Russian collusion, Cohen stated “Questions have been raised about whether I know of direct evidence that Mr. Trump or his campaign colluded with Russia. I do not. I want to be clear. But, I have my suspicions.” Cohen went on to claim he saw Don, Jr. tell his father some meeting had been set. “I concluded that Don, Jr. was referring to that June 2016 Trump Tower meeting about dirt on Hillary with the Russian representative when he walked behind his dad’s desk that day.” Cohen presented no evidence the meeting Don, Jr. referred to was with the Russians, or maybe was with the guy redoing Trump’s kitchen. A defense lawyer would be laughing as she labeled Cohen’s “conclusion” speculation and uncorroborated supposition.
The best the Democratic questioners drag out of Cohen over the course of over seven hours was “Mr. Trump’s desire to win would have him work with anyone,” when asked directly if Trump worked with Russia. Cohen did later deny the existence of the pee tape and anything else that could be used as blackmail. Not much to work with. Russiagate comes down to some Trump people noodling around in Moscow about a hotel that was never built, talking about meetings with Putin that never took place? Your big takeaway is Trump was asking about that inside his own organization until June instead of giving up following the progress earlier? That’s what you want to take to the American people as a case for impeachment, with Michael Cohen in an orange jumpsuit on a prison pass as your key witness?
On business in Russia, Cohen claims Trump was “lying to the American people” during his campaign about negotiations to build a hotel in Moscow. Leaving aside there is nothing illegal about negotiating to build a hotel, and that neither Cohen nor anyone else has shown any evidence of all the Putin connections the media keeps insisting must exist. A review of Trump’s statements show what Cohen claims are “lies to the American people” about whether or not Trump had “business” in Russia would be seen by a defense lawyer as careful parsing of words; Slate’s Ben Mathis-Lilley concludes after his own parsing at worst Trump mislead by omission and even that requires one to dig into tweets where Trump used the present tense and not the past tense to describe things.
On Stormy Daniels, Cohen showed a check for $35,000 from Trump to him, which was supposedly part of the total $130k paid to her to keep quiet about Trump and Stormy’s affair. The check does not show what the payment was for. The check does not have Stormy’s name on it. Cohen said it was part of the reimbursement for “illegal hush money I paid on his behalf.” A defense lawyer would chuckle at the idea that was “evidence.” It is a receipt for a crime only because Cohen now says it is. Under direct questioning, Cohen claimed there was no corroborating evidence beyond the 11 checks. He said he sent invoices to Trump for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them claiming it was a retainer fee. Those 11 checks will total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it that some of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the Trump Organization’s CFO. Apparently the checks are going to be used to implicate personally a person who did not sign the checks.
Paying money as part of a nondisclosure agreement (NDA) is not illegal. If Trump had been just a businessperson who had an affair, there would be nothing to discuss. People legally pay other people to be quiet all the time. Legal services such as Cohen otherwise provided are a standing campaign cost (lawyers regularly obtaining discreet resolutions of issues that threaten the interests of their clients.) The alleged illegality comes from the supposition by Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but in the text of the law “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. Campaign finance laws require proof a person was willfully violating the law. Cohen’s testimony does not prove Trump knew the payments he was making were illegal. Prosecutors would have to prove that willingness somehow if they wanted to charge the president.
Even then, that would make Trump at worst a conspirator to a contested interpretation of the Federal Election Campaign Act. At worst it is a de minimis legal violation the serious business of impeachment isn’t concerned with. It is hard to imagine impeachment hearings bogging down looking into intricacies of federal election law that otherwise confound second year law students.
On Trump ordering Cohen to lie to Congress, Cohen said “Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates. In conversations… he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing. In his way, he was telling me to lie.” Cohen later referred to some sort of Trump “code” that was used to order him to lie.
On Wikileaks, Cohen stated “In July 2016, days before the Democratic convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speakerphone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange and that Mr. Assange told Mr. Stone that, within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign.” Someone will need NSA intercepts to prove this true because Stone and Wikileaks deny it, and Cohen says there were no others present to corroborate.
The question left aside is so what. In the larger picture, it represents limited passive knowledge on Trump’s part the emails will leak, as Cohen said Stone had no details on the upcoming content. It does not say the Russians did anything, it does not say Trump worked with Wikileaks. Stone, of course, is habitually full of crap. He had previously lied about having dinner with Assange. Even if the call was made, it remains a real likelihood Stone was overselling his access to Wikileaks. Julian Assange is a hard guy to get on the phone and would have no incentive to tip off a partisan hack like Stone and risk soiling his claims to non-partisanship. Even the New York Times has questioned how trustworthy Stone is.
Cohen said the phone call took place July 18 or 19. Trump could have read on Twitter July 7 that Wikileaks had pending releases. Earlier, the Guardian on June 12, 2016, where Assange announced he’d be releasing more Clinton emails. The newspaper stated the emails will “provide further ammunition for Donald Trump, her Republican presidential rival, who has used the issue to attack her.” The Stone call, if it took place, was based on public knowledge. Pretty much anyone with a pulse in Washington anticipated more Wikileaks releases that summer of 2016. Cohen’s bombshell had been available online for almost three years.
The emerging media bleat Trump lied in writing to Mueller about contact with Stone and thus, if Cohen is believed, committed perjury, is based solely on unconfirmed anonymous “sources.” No one outside the White House and Mueller’s office knows what Trump wrote in answer to the special prosecutor’s written interrogatories.
So this is it? A saga that began in the summer of 2016, one that commanded a Special Prosecutor to investigate if the Russian government worked with the current president of the United States to help him get elected, that claimed that president was a Russian intelligence asset under the control of Putin, is going to hinge on the minutiae of campaign finance law? That is going to be lawyered into something leading to impeachment?
As for the hearing itself, Democrats spent the day putting inflammatory words into Cohen’s mouth that he gratefully voiced to make good quotes. They focused on questions of Trump’s finances which will no doubt provide the hook for exposing Trump’s taxes. Republicans spent the time calling Cohen dishonest. Neither side distinguished themselves but gratefully no one on the dais made any specific Godfather movie references. The new POC Democrats in the House called most everyone else racists and made little virtuous speechlets.
Cohen, for his part, referred to himself more than once as the son of a Holocaust survivor and sought victimhood throughout the hearing because he will miss his family while in jail. Cohen hurt his own credibility on multiple occasions claiming not to understand simple questions just as time ran out, allowing him to dodge responding. Chairman Cummings abetted this via his on-and-off again aggressive enforcement of time limits. Cohen refused to say he’d dedicate the millions he will most certainly make off book deals and commentary roles to charity, further reducing his credibility. He dangled he had hundreds of tapes of something, but produced none. Heaven help us when #BelieveCohen starts trending.
It was going to be Comey’s testimony that took Trump down, then Papadopoulos was going to flip, or maybe Manafort or Flynn. There were tapes of something, a Russian spy with red hair who would roll over. Books by Comey and Clapper blowing the roof off things, the walls closing in again and again and again. And soon it will be Mueller time! Or may Southern District of New York time, because the media seems to be prepping us Mueller may not have much to say.
It is all exhausting. We’ll soon enough see if voters feel like a dog with a mean owner always holding out a Scooby treat he’ll never let go of. Sooner or later that dog might say, I’m either gonna bite that SOB, or just get bored and stop giving him the satisfaction of salivating around him.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Why Trump is Unlikely to Be Indicted or Impeached for Campaign Finance Crimes
Almost overnight the focus of Russiagate shifted from treason and Trump as a Russian asset to a hyperfocus on payoffs to two women Trump slept with years ago. But even if it can be shown Donald Trump’s actions toward those two women are actually chargeable crimes, he will not be indicted while in office.
That leaves impeachment, over acts the president did before being elected. We are in a load of trouble if there is a way to impeach a president essentially retroactively, for things done before he assumed office. This is Twitter-think gone wild, destroying people for old Tweets written in some cases years ago, or holding a Supreme Court nomination hostage to yearbook scribbles. The politics of personal destruction. Let’s see where things stand.
Indictment?
Before getting into the specifics of Trump, Cohen and those payoffs, it is clear the attorneys of the Southern District of New York (SDNY), under the control of the U.S. Department of Justice, will not be permitted to break long tradition (here’s the document from the Office of the Legal Counsel which establishes it would be unconstitutional to indict) and indict a sitting president. No one will say it, but no one wants that door opened, even to get Trump; if it is, every future president can expect to find himself endlessly enveloped in frivolous indictments from prosecutors seeking to make a name for themselves and/or score political points by turning an opinion into a headline. Nope, nobody is throwing Baby political safety out with the bathwater of Trump.
There is also crazy talk SDNY is preparing the indictment against Trump now, to file against him the day he leaves office in 2021 (assuming he loses the election to Hillary/Beto or whomever), a new level of pointless revenge in America that won’t happen. No newly-elected Democratic president wants to send that Third World vengeance message alongside of obligatory “time to heal” rhetoric. And of course if Trump is elected to a second term the SDNY indictments disappear; there is a five year statute of limitations on any 2016 election finance crimes such as Trump might be accused of. As New York magazine put it in a headline, “Trump 2020 Shaping Up to Be a Campaign to Stay Out of Prison.”
Indictment of trump, now or in the future, seems headed nowhere. But we’ll talk about it endlessly anyway.
A Tale of Two Women
So bottom line: SDNY isn’t going to do anything. It’s impeachment or nothing from the Democratic House starting in January.
There are two women, Stormy Daniels and Karen McDougal, at the center of all this. Both are alleged to have had affairs with Trump, and both are said to have received money to not speak of those affairs (though they have.) You can in fact pay people to shut up about affairs. That happens all the time. It is not illegal.
The fact is Trump could have made the payment himself without violating the law. In the simplest version, if Trump had paid the women with money clearly his own, with a note attached saying “No politics, this is only to spare my family shame, you filthy bimbo,” there would be absolutely no crime. Sleaze, disgrace, cravenness, yes, of course. But the crime, if it exists, is based on the way this was done, not that it was done. So can any of this be criminalized to the extent that it becomes the “high crime or misdemeanor” necessary to impeach Trump?
Let’s start with Stormy.
Stormy Daniels
For Stormy’s $130,000 payoff to morph into something illegal, it will be necessary for someone to determine the money paid her came from campaign funds, that it was a donation. If it was 100% Trump’s private money, there is no case. Nothing Mueller or the SDNY has released has said where the money came from. Think about think how complex Trump’s finances are. Proving the money was campaign funds is a critical part of this. Keep in mind the idea that campaign funds are illegal to use here hinges on none of this cash was Trump’s own money, even money he donated himself to his own campaign. The illegal part is based mostly on a $2,700 donation limit imposed on the supposed “giver,” Michael Cohen in this case, a limit which does not apply to the candidate himself. The campaign funds part comes in in tracking the source of the cash used to reimburse Cohen.
In short, the payment is not a donation if it was made for an expense that was independent of the campaign – that is, money that would have been paid even if there were no campaign.
If the money can be shown to be campaign funds or a donation by Cohen, one next has to prove the purpose of the payoff was to influence the election, not say to prevent shaming Trump’s family. Absent hard information to the contrary, Trump could claim he wanted to hide the affair say from his young son reading about it in the media, and maybe even show he’s been paying off women for decades, long before he ran for president, as proof that Stormy was just another in a long line of galpals paid to shut up after the deed.
If the money can be shown to be campaign funds and somehow intent was clear, then impeachment would still require tying all that to Trump, because as things stand at this moment, it was Trump lawyer Michael Cohen who paid the money out with whatever intent Cohen himself had at that time. Trump himself did not pay anything to Stormy per se.
Cohen, in his guilty pleas seeking lenient sentences on his unrelated tax cheating convictions, says that was the case, for him, that his intent was to influence the election. We currently have only his word that it was also Trump’s intent when (again, only on Cohen’s word) Trump ordered him to make the payoff. Absent additional information, those key elements of the crime depend on convicted felon Michael Cohen’s impeachment testimony from his jail cell as to culpability and intent of the president.
Then there is the question of the money again. Cohen claims he paid Stormy using his own personal funds, and then was reimbursed by Trump. Assuming that is true, then step one (above) would be to prove the reimbursement money came from campaign donations and Trump knew the money was being reimbursed for the payoff specifically. Intent is very much a factor in proving a crime here. So if say Cohen sent an unitemized invoice (as Rudy Giuliani has suggested) to Trump for a dollar amount simply for “services rendered” (call it plausible denial), Trump can claim he had no idea the money was being used illegally. So hopefully someone will produce a receipt annotated “Shady Payoff to Stormy.”
This is a complicated case to prove — that the payoffs were in fact “campaign donations,” that the intent was to influence an election after Trump had already made clear to the electorate his sleazy background with women, that Trump knew in detail what Cohen said was done by him, and that Trump ordered these things to happen. That would mostly leave Trump guilty of some sort of “conspiracy to…” charge, something second hand the public might see as short of impeachable.
The fact that Cohen chose to plead guilty to campaign finance crimes seeking a lighter sentence means that none of these questions were ever contested in a court, nothing was proven, no evidence produced, and no witnesses called and examined. Cohen’s choice to plead guilty is not prima facie evidence of the truth of any of this. His guilty plea is not “evidence” in the impeachment of Trump, though Cohen would obviously be a key witness.
One can imagine the media circus as Cohen, maybe clad in an orange jumpsuit on day pass from some Federal prison, testifies alongside Stormy Daniels, whose skills at anal sex are watchable on Porhub turning breaks in the proceedings. Also,
A federal judge on Tuesday ordered Stormy Daniels to pay nearly $300,000 in legal fees to Trump over a defamation lawsuit dismissed on October 15 to add to the gathering of shame. Bazinga!
Karen McDougal
If the number of elements which must be proven to impeach Trump over what happened with Stormy seems a long road, the case of Karen McDougal is even more complex.
In McDougal’s case, Cohen claims he paid $150,000 in Trump money to David Pecker (you can’t make this stuff up), who runs American Media, which controls the National Enquirer. Pecker then supposedly used that money to buy exclusive rights to McDougal’s story of sex with Trump with the intent of never publishing the tale, thus burying it. Although Cohen said he would reimburse Pecker (and then Cohen would be reimbursed by Trump), the reimbursement did not happen. So the crime here is Cohen causing a third party (Pecker) to make an illegal contribution.
Illegal contribution? Well, that’s another point in both cases, Stormy and McDougal. For these cases to add up to crimes, instead of a legal payoff to remain quiet/buy the rights to a story, the House would have to somehow conclude the money was actually a contribution to Trump’s campaign, a contribution either made illegally beyond allowable limits, or made illegally to influence the election, or made illegally just because it wasn’t disclosed. If the whole mess was to be heard in a real court, this point of law would be a showstopper, and a focal point for both sides to contest. How it will be adjudicated in front of Congress is anyone’s guess, but expect Trump’s defense team, if things get that far, to try and move the question out of Congress and into a real court.
Another element is it must be shown Pecker spiked the McDougal story to influence the election, not simply as an editorial decision. Fun fact: prosecutors first granted Pecker (and another American Media executive, Dylan Howard) immunity to testify in this case. They then announced a “Non-Prosecution Agreement” with American Media, which quickly said the whole thing was political. No one is above the law, unless you are willing to testify against someone more important than you, in which case you get off scot-free for your own crimes!
And maybe someday we can talk about the third world system we are watching play out where plea bargains and lesser sentences are bartered for nasty testimony.
The Jury of Us
Proving the many legal points is hard enough, but that’s just the beginning of the real test. This is all about the politics of destruction; Democrats couldn’t beat Trump n 2016, they couldn’t gin up enough Russia-fever to get him, and so may choose to settle on working these payoffs as their last act.
Keep in mind all of the above elements will need to be proven in hearings held in the House, with witnesses and defense teams, all no doubt televised. There is a difference between what a prosecutor asserts in a one-sided filing designed (see the job title, “to prosecute,” the other side is called the defense) to present someone as guilty, and proving those same elements of an actual on-the-books crime, with evidence. There is a difference between what you so desperately want to believe is true, and what actually is true under the Rule of Law you also believe is so in danger but would throw away in a heartbeat to oust Trump.
Democrats will have to answer in a way average Americans will agree with how this is all so different from when it was discovered Barack Obama’s 2008 presidential campaign was guilty of violations involving nearly $2 million – an amount that dwarfs the $280,000 in Cohen’s case – the Obama Justice Department decided not to prosecute. Instead, the matter was quietly disposed of by a $375,000 fine by the Federal Election Commission. How’d we go from a fine to impeachment anyway?
To be sure, SDNY prosecutors have charged election finance violations as felonies before, most notably in 2014 against conservative Dinesh D’Souza, whom Trump later pardoned. That no doubt displeased the folks at SDNY, so there’s an element of shallow revenge for the public to chew on as well.
Politics
The story will unfold in the context of hearings where the real jury are the Americans who’ll vote in 2020. Since absent some bombshell the Republican Senate will never convict Trump no matter what the House does, this is all for show, and we’re the audience. Democrats thinking this all through must remember the dumpster fire of the Bill Clinton impeachment, where in return for their efforts to trump up similar charges and their actual impeachment vote against Clinton, they ended up with the voters turning against them, sick of the whole thing and ultimately taking Bill’s side more or less-ish.
Can the Democrats really expect to convince a large number of Americans that in his third year in office, Trump needs to be impeached over a violation of conspiracy to violate Section 30116(a)(7)(A) of the election laws which occurred before he was even elected? That the 2016 election needs to be overturned for that, for the good of the country, and that this wasn’t just the politics of personal destruction out of control again, as we saw with Kavanaugh?
They might. The Democrats from Day One have wanted to put an asterisk by Trump’s election. The Russiagate-collusion narrative has turned dusty and old. It isn’t as easy to understand or as sexy as a pee tape, but in its place Dems may try and use Trump’s payments to two mistresses as a way of locking in their narrative that Trump won by cheating. Mueller is a man of the Deep State, a fixer for them, and his dirty hands are being well-employed with fixing the problem of Trump being elected when the Plan was always for Hillary.
Or maybe not. I don’t think the Dems will risk it. I don’t think Trump is going to face impeachment, or indictment. There will be a flow of noise and threats and dire Maddow-esque predictions, but this all ends one way or another with the election of 2020, not impeachment or indictment.
BONUS
It’s easy to forget the special prosecutor who sent Bill Clinton into impeachment began with the financial mess of Whitewater and ended with Monica Lewinsky and lying to Congress, even as Mueller started with Putin controlling the Oval Office and seems likely to end with payoffs to a porn star.
The concept of appointing a Special Prosecutor with the task of finding SOMETHING to try and overthrown an election is an ugly one. While so many Americans are near-joyful over each crumb that suggests Trump is in deeper trouble, I wonder how they’ll feel when a Special Prosecutor becomes a standard opposition weapon used against a president they like. A reminder you can’t put the genie back in the bottle.
BONUS BONUS
And yes, to save some time, let’s just assume all the people who have commented for 2.5 years “But just wait!” have already done that again here, ‘kay?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Mueller’s End Game
A baby born when Robert Mueller started his investigation would be talking by now. But would she have anything to say?
We last looked at what Mueller had publicly, and what he didn’t have, some ten months ago, and cautioned skepticism that he would prove “collusion.” It’s worth another look now, but we’ll give away the ending: there is still no real evidence of, well, much of anything significant about Russiagate. One thing clear is the investigation seems to be ending. Mueller’s office reportedly even told various defense lawyers it is “tying up loose ends.” The moment to wrap things up is politically right as well; the Democrats will soon take control of the House and it is time to hand this all off to them.
Ten months ago the big news was Paul Manafort flipped; that seems to have turned out to be mostly a bust, as we know now he lied like a rug to the Feds and cooperated with the Trump defense team as some sort of mole inside Mueller’s investigation (a heavily-redacted memo about Manafort’s lies, released by Mueller on Friday, adds no significant new details to the Russiagate narrative.) George Papadopoulos has already been in and out of jail — all of two weeks — for his sideshow role, Michael Avenatti is now a woman beater who is just figuring out he’s washed up, Stormy Daniels owes Trump over $300k in fees after losing to him in court, there is no pee tape, and if you don’t recall how unimportant Carter Page and Richard Gates turned out to be (or even remember who they are), well, there is your assessment of all the hysterical commentary that accompanied them a few headlines ago.
The big reveal of the Michael Flynn sentencing memo on Tuesday was he will likely do no prison time. Everything of substance in the memo was redacted, so there is little insight available. If you insist on speculation, try this: it’s hard to believe something really big and bad happened such that Flynn knew about it but still wasn’t worth punishing for it, and now, a year after he started cooperating with the government, nobody has heard anything about whatever the big deal is. So chances are the redactions focus on foreign lobbying in the U.S.
This week’s Key to Everything is Michael Cohen, the guy who lied out of self-interest for Trump until last week when we learned he is also willing to lie, er, testify against Trump out of self-interest. If you take Cohen’s most recent statements at face value the sum is failed negotiations we all knew about already to build a Trump hotel in Moscow went on a few months longer than originally stated. Meanwhile, the U.S. Attorney’s Office for the Southern District of New York submitted a sentencing memo Friday for Cohen recommending 42 months in jail. In a separate filing, Mueller made no term recommendation but praised Cohen for his “significant efforts to assist the special counsel’s office.” The memos reveal no new information.
Call it as sleazy as you want, but looking into a real estate deal is neither a high crime nor a misdemeanor, even if it’s in Russia. Conspiracy law requires an agreement to commit a crime, not just the media declaiming “Cohen was communicating directly with the Kremlin!” Talking about meeting Russian persons is not a crime, nor is meeting with them. The takeaway this was all about influence buying by the Russkies falls flat. If Putin sought to ensnare Trump, why didn’t he find a way for the deal to actually go through? Mueller has to be able to prove actual crimes by the president, not just twist our underclothes into a weekly conspiratorial knot. For fun, look here at the creative writing needed to even suggest anything illegal. Doesn’t sound like Trump’s on thin ice with hot shoes.
Sigh. It is useful at this point of binge-watching the Mueller mini-series to go back to the beginning.
The origin story for all things Russiagate is a less-than-complete intelligence finding hackers, linked to the Russian government, stole emails from the Democratic National Committee (DNC) in 2016. The details have never been released, no U.S. law enforcement agency has ever seen the server/scene of the crime, and Mueller’s dramatic indictments of said hackers, released as Trump met with Putin in Helsinki, will never be heard of again, or challenged, as none of his defendants will ever leave Russia. Meanwhile, despite contemporaneous denials of the same, it is now somehow accepted knowledge the emails (and Facebook ads!) had some unproven major affect on the election.
The origin story for everything else, that Trump is beholden to Putin for favors granted or via blackmail, is opposition research purchased by the Democrats and carried out by an MI6 operative with complex connections into American intelligence, the salacious Steele Dossier. The FBI, under a Democratic-controlled Justice Department, then sought warrants to spy on the nominated GOP candidate for president, based on evidence paid for by his opponent.
Yet the real origin story for all things Russiagate is the media, inflamed by Democrats, searching for why Trump won (because it can’t be anything to do with Hillary, and “all white people and the Electoral College are racists” just doesn’t hold up.) Their position is Trump must have done something wrong, and Robert Mueller, despite helping squash a Bush-era money-laundering probe, lying about the Iraq War, and flubbing the post-9/11 anthrax investigation, has been resurrected with Jedi superpowers to find it. It might be collusion with Russia or Wikileaks, or a pee tape, or taxes, all packaged as hard news but reading like Game of Thrones plot speculation. None of that is journalism to be proud of, and it underlies everything Mueller.
As the NYT said in a rare moment of candor, “From the day the Mueller investigation began, opponents of the president have hungered for that report, or an indictment waiting just around the corner, as the source text for an incantation to whisk Mr. Trump out of office and set everything back to normal again.”
The core problem is Mueller just hasn’t found a crime connected with Russiagate someone working for Trump might have committed. His investigation to date hasn’t been a search for the guilty party, Colonel Mustard in the library, but a search for an actual underlying crime, some crime, any crime. All Mueller has uncovered are some old financial misdealing by Manafort and chums that took place before and outside of the Trump campaign, payoffs to Trump’s mistresses which are not in themselves inherently illegal (despite what prosecutors simply assert in the Cohen sentencing report, someone will have to prove to a jury the money was from campaign funds and the transactions were “for the purpose of influencing” federal elections, not say simply “protecting his family from shame.” Cohen’s guilty pleas cannot legally be considered evidence of someone else’s guilt), and a bunch of people lying about unrelated matters.
And that’s the give away to Muller’s final report. There was no base crime as the starting point of the investigation. With Watergate there was the break-in at Democratic National Headquarters. With Russiagate you had… Trump winning the election (remembering the FBI concluded the DNC hack was done by the Russians forever ago, no Mueller needed.)
Almost everything Mueller has, the perjury and lying cases, are crimes he created through the process of investigating. He’s Schroeder’s Box; the crimes only exist when he tries to look at them. Mueller created most of his booked charges by asking questions he already knew the answers to, hoping his witness would lie and commit a new crime literally in front of him. Nobody should be proud of lying, but it seems a helluva way to contest a completed election as Trump enters the third year of his term.
Mueller’s end product, his report, will most likely claim a lot of unsavory things went on. But it seems increasingly unlikely he’ll have evidence Trump worked with Russia to win the election, and even less likely that Trump is now under Putin’s control. If Mueller had a smoking gun we’d be watching impeachment hearings by now.
Instead Mueller will end up concluding some people may have sort of maybe tried to interfere with an investigation into what turned out to be nothing, another “crime” that exists only because there was an investigation to trigger it. He’ll dump that steaming pile of legal ambiguity into the lap of the Democratic House to hold hearings on from now until global warming claims the city of Benghazi and returns it to the sea. Or the 2020 election, whichever comes first.
BONUS:
The uber-point of all this Ocean’s Nineteen-level conspiracy is supposedly so Putin can, whatever, sow dissent in America. Because if he wanted a puppet in the Oval Office it has been a damn poor return on investment — sanctions are still in place, NATO is still on Russia’s border, Montenegro joined NATO, Trump approved arms sales to the Ukraine, RT and Sputnik are sidelined as registered foreign agents, Cold Warrior-like hardliners Bolton and Pompeo are in power, the U.S. just delivered Russia an ultimatum on an arms control treaty that could return some American missiles to Europe, and more. On the plus side, there were those friendly Tweets.
Along the way new journalistic “norms” were created: Trump is too stupid to have made his money, so it must be ill-gotten. Trump did real estate deals in NYC and so is mobbed up. Trump’s taxes (albeit available to the IRS and Treasury for decades, the FBI and Mueller via warrant for years) hide secrets. Meanwhile, everyone in Russia with a few bucks is an oligarch, and everyone who anyone from the Trump side spoke with is “connected to Putin.” Trump doesn’t have lawyers, he has fixers and consigliere.
These tropes allow journalists to communicate in a kind of shorthand with the rubes who still imagine something will happen to annul the 2016 election. They allow each mini-development to appear to be a major event, as in the mind of the media everything is related, and everything accumulative. So a lie about a real estate deal in Russia is HUGE because it has something to do with Russia and see that connects all the dots!
None of that is journalism to be proud of, and it underlies everything Mueller. It is almost sad looking back at the old articles and TV tales to see how excited everyone got — Flynn was indicated! Sessions recused himself! Comey will save us! The Nunes Memo! They all used to matter sooooo much. Outlets like the NYT and WaPo rolled out a “source close to the White House” to comment whatever just happened means Mueller is getting close to nailing Trump. The nutters who took over once cogent places like HuffPo and Salon run “reporting” that reads like Game of Thrones plot speculation. Everybody runs the same headlines: BREAKING: Reports: Sources: Trump Fixer to Flip; Avenatti Says “Orange is the New Black, Buttercup!”
As one writer puts it, “For the last two years the mass media machine has been behaving very, very strangely, and it isn’t getting better, it’s getting worse. Not since the lead-up to the invasion of Iraq have we seen mainstream media outlets trying to shove narratives down our throats so desperately and aggressively.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Buy Peter’s Books on Amazon!
