Thursday, June 15, 2017

Two more shoes dropping on the man in the White House

On top of all the dysfunction and dissembling in the Trump White House, Trump will face a lawsuit that will likely result in his being forced to publish his tax records and he may soon be the subject of part of the special counsel investigation. (Apr 14 update: The Washington Post reports that Trump is now being investigated for obstruction.)

Congress to Trump: You’re violating the emoluments clause

The FiveThirtyEight Significant Digits email calls our attention to a lawsuit charging Trump with violating the emoluments clause of the Constitution.

196
Number of congressional plaintiffs — all Democrats — who have joined a lawsuit against President Trump accusing him of violating the emoluments clause of the Constitution, which requires the president to get the OK from Congress before accenting foreign gifts. The suit claims that the president’s financial involvement in his businesses violates the clause. [The Washington Post]

Here is more from the Post’s article, Congressional Democrats to file emoluments lawsuit against Trump.

Nearly 200 Democratic members of Congress agreed to file a lawsuit Wednesday against President Trump alleging that by retaining interests in a global business empire he has violated constitutional restrictions on taking gifts and benefits from foreign leaders.

The lead senator filing the complaint in federal district court, Sen. Richard Blumenthal (D-Conn.), said Tuesday that the lawsuit has already drawn more congressional plaintiffs — 196 — than any legal action previously taken against a president. No Republicans had joined in the lawsuit so far, although they will be invited to do so, Blumenthal said.

An advance copy of the legal complaint reviewed by The Washington Post argues that those in Congress have special standing because the Constitution’s “foreign emoluments clause” requires the president to obtain “the consent of Congress” before accepting any gifts.

Legal scholars consulted by the congressional plaintiffs said their complaint is distinctive because of the special standing granted to Congress.

“The Framers of our Constitution gave members of Congress the responsibility to protect our democracy from foreign corruption by determining which benefits the president can and cannot receive from a foreign state,” said Erwin Chemerinsky, the incoming dean of the law school at the University of California at Berkeley.

“When the president refuses to reveal which benefits he is receiving — much less obtain congressional consent before accepting them — he robs these members of their ability to perform their constitutional role,” Chemerinsky said. “Congressional lawmakers . . . have a duty to preserve the constitutional order in the only way they can: by asking the courts to make the President obey the law.”

Although the emoluments clause has a complex history, the request by the lawmakers is rather simple. It asks the court to enjoin the president from “accepting any benefits from foreign states without first obtaining Congressional consent.”

So how will the plaintiffs know whether Trump has, is, or will accept such benefits? My guess is he will have to publish his tax returns.

Is Trump now under investigation?

Former FBI Director Comey said “no”, but that was then.

Ryan Lizza (New Yorker) now asks Is Trump now a subject of the Mueller investigation? He concludes that it’s only a matter of time - and one “matter of time” might be tomorrow, today, or yesterday.

Former prosecutors who have served in both Republican and Democratic Administrations told me that an obstruction-of-justice case against Trump is a no-brainer. “Comey’s testimony in a grand jury would be enough to get an indictment,” Julie O’Sullivan, who was part of the team that investigated Whitewater, the Clinton land deal that attracted a special prosecutor in the early nineties, said. To O’Sullivan, Comey’s detailed account of the Oval Office meeting in which Trump cleared the room and then told Comey to let go of the investigation of Michael Flynn, whom Trump had fired, the previous day, was especially damning because it showed that Trump knew that what he was doing was wrong.

“For a prosecutor, this attempt to hide the conversation, all antenna are going up,” O’Sullivan told me. “That tells you that he has a consciousness that what he’s about to do is wrong. It’s like having a bonfire with documents in the back yard. It’s wonderful. Seriously, this is the best thing ever for a prosecutor.”

There is some public evidence that Mueller is taking the obstruction accusation seriously. He asked for and received all the memos that Comey wrote memorializing Comey’s interactions with Trump. Why would Mueller need those unless he was looking into possible obstruction?

When will we actually know if Trump is, indeed, under investigation by Mueller?

Two events could trigger a public announcement. Rod Rosenstein, the Deputy Attorney General, talked to Trump shortly before Trump fired Comey. Rosenstein later appointed Mueller as the independent counsel, and Mueller reports to him. But, given Rosenstein’s role in Comey’s dismissal, he may end up being a witness in any obstruction investigation and would therefore have to recuse himself from that part of the inquiry, a fact that would likely be made public. …

A second sign that Trump himself is under investigation would be if Mueller begins to interview witnesses who can corroborate Comey’s testimony and then the interviews, or subpoenas associated with them, become public. …

It’s probably not a matter of if Trump will be personally investigated; it’s a matter of when. “There is no doubt in my mind that Mueller will investigate that,” a former federal prosecutor who served in the Obama Administration said. “Trump claims total vindication, and the thing that he was claiming vindication about was that he was not the target of a criminal investigation. But now he is—or imminently will be.”

UPDATE from the Washington Post yesterday evening (Apr. 14): Special counsel is investigating Trump for possible obstruction of justice, officials say.

The move by special counsel Robert S. Mueller III to investigate Trump’s conduct marks a major turning point in the nearly year-old FBI investigation, which until recently focused on Russian meddling during the presidential campaign and on whether there was any coordination between the Trump campaign and the Kremlin. Investigators have also been looking for any evidence of possible financial crimes among Trump associates, officials said.

Five people briefed on the interview requests, speaking on the condition of anonymity because they were not authorized to discuss the matter publicly, said that Daniel Coats, the current director of national intelligence, Mike Rogers, head of the National Security Agency, and Rogers’s recently departed deputy, Richard Ledgett, agreed to be interviewed by Mueller’s investigators as early as this week. The investigation has been cloaked in secrecy, and it is unclear how many others have been questioned by the FBI.

The officials said Coats, Rogers and Ledgett would appear voluntarily, though it remains unclear whether they will describe in full their conversations with Trump and other top officials or will be directed by the White House to invoke executive privilege. It is doubtful that the White House could ultimately use executive privilege to try to block them from speaking to Mueller’s investigators. Experts point out that the Supreme Court ruled during the Watergate scandal that officials cannot use privilege to withhold evidence in criminal prosecutions.

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