A Possible Trump Indictment And The Looming Constitutional Crises

As the Mueller investigation draws to a close, many political observers and legal analysts point to the increasing likelihood that President Trump will be implicated in criminal wrongdoing. Mr. Trump is not only threatened by the Russia probe but also the separate federal investigation by the Southern District of New York that recently led to the conviction of Michael Cohen. If investigators find evidence that the president committed crimes, it will trigger not but a series of constitutional crises.

As Erick Erickson pointed out earlier this week, “Republicans have gone mostly quiet, and their deflections are half-hearted and coupled with ‘but Hillary’ cries. This behavior is a pretty big red flag that everyone now knows Mueller has something and it is not good for the President and possibly for other members of his family.”

While the “something” that Mueller has may not be illegal Russian collusion, it is becoming more and more obvious that investigators do have something serious on the president. As Judge Andrew Napolitano said on Fox News after Cohen’s sentencing, “Career prosecutors here in New York have evidence that the president of the United States committed a felony by ordering and paying Michael Cohen to break the law. How do we know that? They told that to the federal judge. Under the rules, they can’t tell that to the federal judge unless they actually have that hardcore evidence. Under the rules, they can’t tell that to the federal judge unless they intend to do something with that evidence.”

While Napolitano said that the felony is that Trump paid Cohen to commit a felony, there are a host of other possible charges that the president could potentially face. These range from obstruction of justice to lying to the FBI. There is also the possibility that the investigations could have uncovered illegal acts committed by Mr. Trump before he became president. The Cohen investigation could have implicated Trump in anything from tax fraud to money laundering.

An accusation by prosecutors that President Trump committed a felony would trigger not one but several constitutional crises. The most obvious crisis would be whether a sitting president can be indicted. The current opinion of the Department of Justice is, “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

The DOJ is concerned that malicious indictments of the president by rogue US attorneys or states could be used to subvert the will of the people. If you think this scenario is not possible, think again. It was only 10 years ago that prosecutors illegally hid evidence in the corruption trial of Senator Ted Stevens (R-Alaska). Stevens’ conviction was overturned and two prosecutors were suspended but only after Stevens had lost his Senate seat.

On the other side of the issue is the statute of limitations. The statute of limitations limits how long after a crime that the perpetrator can be prosecuted. Some crimes, such as murder, have no statute of limitations.  In the case of most federal crimes, the statute of limitations is five years. If President Trump is elected to a second term, the statute of limitations for offenses committed early in his administration would expire before he leaves office. This would effectively mean that the president could not be prosecuted if he committed nonviolent crimes in 2017.

It should be apparent to any student of American history and the Constitution that the framers did not intend that the president should be above the law and immune from prosecution. So, what is the remedy for criminal acts by a sitting president?

Most would argue that impeachment is the answer. Under this view, Congress would impeach the president and then he could be indicted in the court system. This theory has problems as well, especially in the case of Donald Trump.

The Constitution says that grounds for impeachment include “Treason, Bribery, or other high Crimes and Misdemeanors,” but does not define these terms. A 2015 report by the Congressional Research Service found that impeachable offenses don’t have to be criminal acts and not all criminal acts are impeachable offenses. Impeachable offenses would fall into three broad categories:

·        Exceeding or Abusing the Powers of the Office

·        Behavior Incompatible with the Function and Purpose of the Office

·        Misuse of Office for Improper Purpose or for Personal Gain

With respect to the current situation, another constitutional crisis would be fomented if President Trump was found to have committed crimes before becoming president. The question would be whether the president could be impeached for crimes committed before he took office. This question would be especially relevant if the statute of limitations for these crimes would expire before the president leaves office.

Many experts argue that impeachment should be limited to crimes committed while in office. The problem is that this could prevent the president from being prosecuted for crimes he committed before becoming president.

The CRS report indicates that there is precedent for impeaching officials for crimes committed before they took office. US Circuit Court Judge Robert Archibald was impeached in 1912 based on articles of impeachment that included acts committed in his prior position as a district judge. More recently, in 2010 US District Court Judge Thomas Porteous was impeached in part for acts committed before he held any federal office. These included misconduct as a state judge as well as lying to the FBI and Senate during his confirmation as a federal judge. The charges against both men also included acts related to their current office. No one has ever been impeached solely on the basis of acts committed prior to holding office.

There is also precedent for impeachment after an official has left office. In 1876, Secretary of War William Belknap resigned two hours before the House impeached him. In his Senate trial, Belknap argued that he was a private citizen and therefore not under the Senate’s jurisdiction. The Senate voted to affirm jurisdiction over Belknap but ultimately acquitted him of the charges against him.  

Impeachment is almost certainly out of the question as long as Republicans control the Senate, which they will until the end of Trump’s first term. This leads to a third constitutional conundrum. In today’s hyper-partisan environment, evidence of a very serious crime would have to be overwhelming for the president’s own party to vote to remove him from office. If there is no chance of removing Trump from office, there would be little point in House Democrats impeaching him. In the end, we may be left with a scenario in which Trump is accused of felonies by prosecutors who are prohibited by from indicting him. In Congress, Democrats consider impeachment but Republicans circle the wagons around the president and refuse to join the effort, arguing, “What about Hillary?” With the clock on the statute of limitations ticking and the impeachment effort stalled, Donald Trump could effectively use the office of president as a shield from prosecution.

The intent of the Founders was clearly not to have a presidency that is above the law. Having just fought a war to liberate themselves from a system in which the king had unchecked power, this would have been the last thing that they would have wanted, but that is the possibility with which we are confronted.

The current crisis was foreseen by John Adams, who warned, “Avarice, ambition, revenge, and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

The best defense against a president using the office to shield himself from prosecution is for the parties to nominate people of good character and morals as their candidates and for voters to send trustworthy candidates to the White House. On that score, the country was in trouble regardless of the outcome of the 2016 election.

Originally published on The Resurgent

President Obama knew about Hillary's private server

New revelations from Wikileaks seem to prove that the White House knew about Secretary of State Hillary Clinton’s private email server. President Obama previously denied that he had any prior knowledge of Clinton’s “homebrew” server, but Wikileaks documents suggest that the president used a pseudonym to correspond directly with Clinton’s private email address and then lied about it.

Back in March 2015, as the email scandal was breaking, President Obama said, in essence, that he did not have textual relations with Hillary’s private server. Obama told CBS News that he learned of the server at “the same time everybody else learned it through news reports.”

Obama’s denial seems to have triggered a crisis in the Clinton campaign. Andrew McCarthy at National Review points out that the same day that Obama made his comments, Josh Scherwin, the Clinton campaign secretary, emailed an alert to several Clinton staffers including Jennifer Palmieri: “Jen, you probably have more on this but it looks like POTUS just said he found out HRC was using her personal email when he saw it in the news.”

McCarthy then traced the email from one of the original recipients, Nick Merrill, to Clinton attorney and aide, Cheryl Mills. Mills then emailed John Podesta, chairman of Hillary’s campaign. Mills told Podesta, “We need to clean this up — he has emails from her — they do not say state.gov.”

The Mills email is damning evidence that President Obama received emails from Hillary’s private email account. It would have been impossible for the White House to not be aware that Clinton was using a private server if she had used the private email account to conduct state business with the president.

Eventually, 18 emails between Clinton and Obama were identified. On January 29, 2016 at the daily press briefing, Josh Kirby announced that the emails were “being withheld to remain confidential, to protect the President’s ability to receive unvarnished advice and counsel. And they ultimately will be released in accordance with the Presidential Records Act.” Kirby didn’t cite executive privilege, but it amounted to the same thing.

The 18 emails not only prove that Obama lied about his ignorance of Hillary’s private server, they also provide a motive for his administration to interfere with the FBI investigation of Hillary’s handling of classified information. If Hillary was guilty of mishandling classified information and had engaged in email exchanges with the president, then the president would be guilty as well.

McCarthy noted that executive privilege could not shield the president if Hillary was indicted or was the target of a grand jury investigation. “In its famous Watergate ruling, United States v. Nixon,” McCarthy wrote, “the Supreme Court held that an invocation of executive privilege to secure the confidentiality of presidential communications will not shield those communications from disclosure if they are relevant evidence in a grand-jury investigation or a criminal trial.

With President Obama linked to the private server and complicit in the cover up, Rep. Trey Gowdy’s (R-S.C.) grilling of FBI Director James Comey comes to mind. On CNBC, Gowdy said, “In your old job you would prove intent as you referenced by showing the jury evidence of a complex scheme that was designed for the very purpose of concealing the public record and you would be arguing in addition to concealment the destruction that you and i just talked about or certainly the failure to preserve.”

Now there is evidence that the president was involved in the same scheme to conceal Clinton’s purposeful mishandling of classified information. That means that President Obama is as guilty as Hillary Clinton. Not indicting Hillary was not for the benefit of the Clintons. It was to protect Barack Obama.

Originally published on The Resurgent

Perry indictment is part of campaign of harassment against conservatives

The news of the indictment against Texas Governor Rick Perry on charges of abuse of official capacity and coercion of a public official surprised the country and shook up the early presidential race for 2016. Debate ranged from how the charges would affect Perry’s chances at winning the Republican nomination and the White House to whether Perry would be convicted. A surprising number of liberals and Democrats have broken ranks to defend what many call an unconstitutional attempt to criminalize politics as usual. This is not the first time in recent memory that prosecutors have pressed charges against Republicans on dubious grounds.

In Texas, the Travis County DA office has prosecuted other high profile Republicans. In 1993, Rosemary Lemberg’s predecessor, Ronnie Earle, indicted newly elected U.S. Senator Kay Bailey Hutchison on charges of misusing her previous office of state treasurer according to National Review. Hutchison was originally elected in a special election and faced the prospect of running for reelection in 1994 with the indictment hanging over her head. She pressed for a quick resolution and, when the case went to trial, Earle told the court that he could not proceed without the admission of records seized from Hutchison’s office without a search warrant. The judge promptly ordered the jury to return a verdict of not guilty.

After the acquittal, Hutchison requested that the records be released, saying, “The case was not there. They turned around and ran because they knew the longer they went, the more embarrassing it was going to be. . . . They thought the lady would crack. Well, the lady wouldn’t crack.”

In 2010, it was Tom Delay’s turn to face the Travis County DA. Delay was convicted on money laundering charges stemming from accusations that he funneled corporate money to Republican candidates. Delay, a former Speaker of the U.S. House of Representatives, was sentenced to three years in prison, but remained free on bail while he appealed. His conviction was overturned in 2013 by a three judge panel of a Texas appellate court. The decision said that evidence in the case was “legally insufficient” according to the Washington Post.

In 2008, Senator Ted Stevens (R-Alaska) was indicted on felony charges of failing to properly report gifts less than four months before that year’s election. He was found guilty of making false statements on Oct. 27 and promptly lost his reelection fight to Mark Begich. A few months later in February 2009, an FBI agent became a whistleblower and revealed that prosecutors and FBI agents had withheld key evidence and witnesses that would have supported Stevens’ claims of innocence as well introducing evidence that they knew to be false. In April 2009, a federal judge vacated Stevens’ conviction. Politico reported in 2012 that a special investigator’s review of the case found that misconduct by the prosecutors and FBI had tainted the trial. Stevens died in a plane crash in 2010 and his Senate seat remains in Democratic hands.

Two other Republican governors, Chris Christie (N.J.) and Scott Walker (Wisc.), are also potentially under investigation according to Salon. In New Jersey, prosecutors are trying to tie Chris Christie to the “Bridge-gate” scandal as well as diversion of Port Authority money to New Jersey road and bridge projects and real estate deals by David Samson, Christie’s appointee to chair the Port Authority’s Board of Commissioners. According to Esquire, anonymous “sources with intimate knowledge” of U.S. Attorney Paul Fishman’s investigation say Christie’s Port Authority appointees and former chief counsel “face near-certain indictment and are being pressed to hand up Christie.”

Walker may come under investigation for illegally coordinating with outside groups in his 2012 fight against recall. Walker triumphed in the election, but, as described by the Milwaukee Journal-Sentinel, the Milwaukee County prosecutor, a Democrat, launched a John Doe probe, an investigation allowed under Wisconsin law that allows the government to “compel people to produce documents and give testimony, as well as bar them from talking publicly about the investigation.” A federal judge ordered an end to the probe in May 2014, according to MSNBC, noting that no laws had been broken. Under Wisconsin law, issue ads that do not endorse or attack a specific candidate are not considered expenditures for a campaign and are not subject to laws regarding coordination with the candidate. This issue was previously decided in Wisconsin Right to Life v. Barland.

Republicans do not have to be prominent elected officials to attract the attention of partisan prosecutors. Since 2013, a series of articles in the Wall St. Journal have detailed how prosecutors in Wisconsin have subpoenaed 29 conservative groups in the John Doe probe. In June 2014, the Journal noted that so far prosecutors have failed to show probable cause that any crime had been committed and pointed out that the coordination in Wisconsin strongly resembled the President Obama’s 2012 campaign. Nevertheless, recent reports by the Milwaukee Journal Sentinel and Fox News indicate that personal information from members of conservative groups such as Wisconsin Club for Growth were released by a federal appeals court and posted online, allegedly by mistake.

The John Doe probe in Wisconsin is reminiscent of the IRS harassment of conservative groups that has been ongoing under the Obama Administration. Far from targeting high profile Republicans, the IRS focused its abuse on grassroots leaders of Tea Party groups. In one instance, cited by the Chicago Sun-Times, Catherine Engelbrecht, a small business owner involved with two nonprofit political groups beginning in 2010, was suddenly subjected to more than 15 federal audits and inquiries. In addition to the IRS, she was contacted by OSHA, the FBI, and the Bureau of Alcohol, Tobacco and Firearms, among others.

The IRS admitted to both the harassment of conservative groups and illegally leaking confidential tax information to liberal groups during the 2012 presidential election. In June 2014, the Daily Signal reported that the IRS had agreed to pay $50,000 to the National Organization for Marriage. The IRS had leaked the group’s donor list, including names and contact information to the gay activist group, the Human Rights Campaign, which then published the data. Even though leaking confidential tax information is a felony, no criminal charges have been filed against anyone at the IRS.

There are also indications that Lois Lerner, the official at the center of the IRS scandal, may have had a history of malicious prosecutions at the Federal Election Commission as well. The Illinois Review reported that Republican senate candidate Al Salvi was the subject of several FEC complaints regarding campaign finances in the last weeks of his 1996 campaign against Dick Durbin. The complaints were ultimately dismissed in 2000, but not before Salvi received a strange offer from an FEC official he identified as Lois Lerner. Salvi says that, in a conversation that included Mike Salvi, his brother and attorney, Lerner told him, “If you promise to never run for office again, we'll drop this case.” Salvi refused. Four years and $100,000 in legal fees later, the FEC case against Salvi was dismissed.

These high profile cases are likely not the only instances of malicious prosecution of conservatives. At the state and local level, it is easy for such cases to avoid national scrutiny. The Wisconsin John Doe probe has largely been ignored by the national media. (Those aware of similar cases can contact the author.) In many other instances, such as harassment of California supporters of Prop 8 and the demonization of the Koch brothers, there was no prosecution, but a blatant attempt to intimidate and silence conservatives.

It is increasingly evident that the harassment, intimidation and malicious prosecution of Republican officeholders and conservative activists, often in the name of campaign finance reform, are an integral part of the Democratic playbook. As long as such attempts at stifling free speech succeed with no consequences for the left, they are likely to continue.

 

Read the full article on Examiner

Many Democrats side with Rick Perry on indictment

In the days since Rick Perry’s indictment on charges of abuse of official capacity and coercion of a public official, many prominent Democrats have condemned the move by a Texas special prosecutor. As Perry’s attorneys announced on Friday, August 22, that he would seek to have the charges dismissed on constitutional grounds according to the El Paso Times, a large number of Democrats around the country agree with Perry that the governor’s actions were not criminal and were protected under the Constitutions of Texas and the United States.

Although Perry’s indictment was initially applauded by many on the left, the flimsy nature of the charges quickly led many liberals and Democrats to condemn what USA Today called a “bid to criminalize politics.” Even the New York Times called the indictment “the product of overzealous prosecution” and opined that “bad political judgment is not necessarily a felony.”

The indictment stems from a dispute between the governor and the Travis County District Attorney. The DA, Rosemary Lehmberg, was arrested for drunk driving in April 2013 with a blood alcohol content almost three times the legal limit. While in custody, Lehmberg had to be restrained. Video of her arrest was posted online by KOKE, an Austin radio station. When Lehmberg was convicted, Perry argued that she had lost public confidence and should resign. When she refused, Perry ultimately vetoed $7.5 million in state funding for Lehmberg’s office in June 2013. Lehmberg is still serving as the Travis County DA, but is not planning to seek reelection in 2016.

The fact that Lehmberg’s office had investigated the Cancer Prevention and Research Institute of Texas, one of Rick Perry’s pet projects, for corruption muddies the waters. The criminal investigation into the cancer institute concluded in December 2013 without targeting Perry or his staff according to the Wall St. Journal. Although cited by Democrats as a motive for Perry’s veto, the indictment does not mention the cancer institute investigation.

First to break ranks was David Axelrod on August 16. In a tweet, Axelrod, a former Clinton advisor, called Perry’s indictment “pretty sketchy.” Three days later, Axelrod defended himself in a series of tweets after receiving “unhappy emails” from anti-Perry Twitter followers,

Lanny Davis, formerly the special counsel to Bill Clinton, joined Axelrod’s dissent a few days later with a column in The Hill. Davis called the indictment “shameful” and wrote that “whether Perry was right or wrong in vetoing that funding… is not relevant. The voters get to decide that issue.” Davis called the indictment “a perversion of the criminal justice system, a classic case of prosecutorial abuse, to indict Perry as a way of deciding the wisdom of his veto.”

Davis goes on to scold Democrats for the presumption of Perry’s guilt. “It is even more outrageous to anyone who cares about due process and civil liberties,” he writes, “to read the comments from local and state Democrats in the state Texas Democratic Party about the Perry indictment.”

“In fact, an indictment is evidence of nothing,” Davis continues. “It is literally just an accusation, not even close to proven facts.”

Self-proclaimed liberal Democrat and Harvard law professor Alan Dershowitz agrees, saying that Perry’s veto threat is “not anything for a criminal indictment” in an interview on NewsMax TV. Dershowitz called the two statutes that Perry was accused of violating “reminiscent of the old Soviet Union” and says this is “what happens in totalitarian societies.”
Mark Halperin, political analyst for Time Magazine and MSNBC and author of “Game Change,” a book about the 2008 election, called the indictment “the stupidest thing I think I’ve seen in my career” on MSNBC’s “Morning Joe.” He continued, “I hope some judge throws it out right away. It’s not just kind of funny and ridiculous; it’s an infringement on individual liberties.” Halperin noted that Perry doesn’t lose his First Amendment rights “just because he’s governor of Texas.”

UCLA law professor Eugene Volokh, author of the Volokh Conspiracy legal blog for the Washington Post points out several legal problems with the indictment for abuse of office. First, the Texas law requires that the public servant must have “custody or possession” of the property that was misused. Perry never had possession of the Public Integrity Unit funds since his veto prevented them from ever being appropriated. Second, Volokh notes that vetoing funds is not a misuse of funds or a violation of Perry’s oath of office. Finally, Volokh notes that vetoes are legal under the Texas Constitution, even to influence other officials, which Volokh calls “behavior that is commonplace in the political process.”

The Volokh Conspiracy also finds fault with the charge of coercion. Volokh cites the 1990 decision by a Texas court in State v. Hanson in which the Court noted that “Coercion of a lawful act by a threat of lawful action is protected free expression.” The decision also pointed out, “Freedom of speech must encompass the liberty of elected officials to discuss matters of public concern without prior restraint or fear of punishment. A vague statute that potentially could punish protected political debate violates due process because of its chilling effect on the exercise of that essential right.”

Perhaps USA Today summarized the problem with the case best: “The case rests on a highly dubious legal argument: Perry can exercise his rights of free speech to seek Lehmberg's resignation, and he can exercise his power of the line-item veto over use of state funds. But, supposedly, he can't do them in tandem.”

Read the full article on Elections Examiner