Nothing like a bunch of lawyers to muddy up the swimming pool. No
matter how they twist the Constitution, it seems reasonable to believe
that no person, not the president or the wealthiest person in the
country, can be above the law.
Carl Jarvis
On 8/23/18, Miriam Vieni <miriamvieni@xxxxxxxxxxxxx> wrote:
Is Donald Trump Above the Law?
By James Risen, The Intercept
23 August 18
Ever since the federal investigations of President Donald Trump and his
lackeys began, most outside observers have argued it was highly unlikely
that Trump himself would face criminal prosecution.
The conventional wisdom has been that federal prosecutors would bow to
long-standing tradition and decades-old Justice Department legal opinions
and not seek an indictment of a sitting president. Trump might face
impeachment in Congress, which is a political process, but it seemed
far-fetched that prosecutors would try to send him directly from the White
House to prison.
But that line of thinking was upended Tuesday, when Trump became the
unnamed
"Individual-1" in a federal criminal case. Tuesday was the day that the
chances that Trump will face indictment and criminal prosecution surged
higher than ever before.
In fact, August 21, 2018, seems certain to be a watershed day in Trump's
manic presidency.
In a Virginia federal court on Tuesday, Paul Manafort, Trump's former
campaign chair, was found guilty on eight counts of tax and bank fraud in a
case brought by special counsel Robert Mueller, who has been investigating
whether Trump and his campaign colluded with Russia to win the 2016
election.
Meanwhile, in a New York federal court on Tuesday, Michael Cohen, Trump's
longtime attorney and fixer, pleaded guilty to eight counts of tax evasion,
bank fraud, and, most critically for Trump, campaign finance violations.
Both of Tuesday's cases were really bad news for Trump, but the Cohen plea
deal presented a more immediate threat to the president. As part of his
plea, Cohen directly implicated the president, asserting that he worked
with
Trump during the campaign to pay off two women to keep their stories of
alleged affairs with Trump out of the press before the 2016 election. Given
the way the payments were made, as well as their intent, that effort was a
violation of federal campaign finance laws. Cohen asserted in federal court
that Trump had committed a felony.
Now, federal prosecutors are faced with a dilemma. They have just triumphed
in a high-profile white-collar criminal case in which they successfully
nailed the personal lawyer to the president. They squeezed Cohen so hard
that he admitted the president was his co-conspirator in a crime. And not
just any crime - a crime designed to help Trump win the presidency.
Can prosecutors now ignore the logic of their own case? Don't they have to
go after Trump himself?
Lanny Davis, Cohen's attorney, asked that question publicly on Tuesday. In
a
tweet after Cohen's plea, Davis wrote that his client "stood up and
testified under oath that Donald Trump directed him to commit a crime by
making payments to two women for the principal purpose of influencing an
election. If those payments were a crime for Michael Cohen, then why
wouldn't they be a crime for Donald Trump?"
The Cohen and Manafort cases were brought by different teams of
prosecutors,
and that may make a difference in how each is pursued from here. The Cohen
prosecution was conducted by the office of the U.S. Attorney for the
Southern District of New York, while the Manafort case was brought by
Mueller and his team from the special counsel's office.
As special counsel, Mueller has great latitude in how he pursues the
Trump-Russia case. Attorney General Jeff Sessions was forced to recuse
himself from overseeing Mueller's investigation because of questions about
his own connections to Russian officials during the 2016 campaign. Mueller
has taken great advantage of his independent status to conduct a highly
aggressive investigation of Trump and those around him. Manafort was only
the latest in a long line of people from the Trump circle to discover just
how seriously Mueller is pursuing his inquiry. Mueller was clearly
prosecuting Manafort to pressure him to flip and tell all that he knows
about Trump and Russian collusion.
But the prosecutors in New York who have handled the Cohen case don't enjoy
the same level of independence that Mueller does. Any effort by Southern
District prosecutors to pursue their case and investigate "Individual-1" in
the White House will almost certainly have to be approved by Sessions. It
seems unlikely that he would believe that his recusal on the Trump-Russia
probe would apply in the Cohen investigation, even though Cohen is widely
believed to have information about the Trump-Russia case. And, after being
repeatedly and publicly attacked and humiliated by Trump for his recusal in
the Mueller inquiry, Sessions may be eager to prove his loyalty to Trump
and
block any further investigation in the Cohen case. (Although it's also
possible that, after silently enduring months of Trump's abuse, Sessions
might keenly enjoy approving a legal assault on the president.)
While the U.S. Constitution seems rather vague on the whether a president
can be indicted while in office, Justice Department lawyers have
consistently argued that constitutional law forbids it. In 1973, during the
Nixon administration, the Justice Department "concluded that the indictment
and criminal prosecution of a sitting President would unduly interfere with
the ability of the executive branch to perform its constitutionally
assigned
duties, and would thus violate the constitutional separation of powers,"
according to a DOJ memo written in 2000, at the end of the Clinton
administration. Almost three decades after Watergate, the 2000 memo
reaffirmed the department's earlier decision: "No court has addressed this
question directly, but the judicial precedents that bear on the continuing
validity of our constitutional analysis are consistent with both the
analytic approach taken and the conclusions reached. Our view remains that
a
sitting President is constitutionally immune from indictment and criminal
prosecution."
If Sessions and the Justice Department block New York prosecutors from
pursuing Trump, what happens next? Will the information be referred to
Congress as part of impeachment proceedings? If Democrats retake the House
in the midterm elections this fall, will they be willing to pursue
impeachment, knowing they will almost certainly lack the votes in the
Senate
to win a conviction?
What we know for sure is that the path to the criminal prosecution and
imprisonment of the president of the United States is now clear. How it is
handled will be a major test for the American system of government.
e-max.it: your social media marketing partner
