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Friday, January 05, 2018

Trying Trump

Dems seem pretty cocky right now. For reasons given in the preceding posts, the Wolff book offers hope that our long national Trumpmare may soon be over. But everyone's ignoring a key factor: The sheer power of the presidency.

Many have argued that an obstruction of justice charge against Trump would be easy to prosecute. True, true. But: Prosecute where? Impeachment still seems a hundred thousand miles away. I agree with much that Adam Khan said in a recent series of tweets:
To bring obstruction of justice charges, Mueller needs to prove Trump had corrupt intentions when he took actions like ousting Comey. He needs to get evidence that Trump told witnesses to lie under oath. Just one witness could throw this wide open.

Will Mueller recommend impeachment in 2018, knowing that the GOP-controlled Senate is unlikely to impeach, or wait until 2019 to see if the Democrats take back Senate? If the latter, then probe will drag into next year, while Republicans will look to shut it down this year.

Will Mueller indict Kushner or a Trump kid in 2018, and if so, will Trump then move to shut Mueller down? Trump shutting down Mueller will tie up the probe in court battles beyond 2019, but will it lead to Democrats taking back majority control of the Senate?

All signs point to Republicans and their mega donors shaping up to defend Trump at all costs going into 2018 elections and moving to either discredit Mueller and shut down the probe or find a way to tie it up in courts and let the chips fall where they may for the elections.

Mueller’s strategy should be to snag a couple of big fishes (Kushner, Trump Jr), before Republicans pull the plug - demonstrate that his probe is yielding results; any snuffing actions taken by Trump/GOP will then be judged in the court of public opinion, going into elections.
Here's the problem with this strategy: Since Trump has the power of the pardon, smaller fish have no incentive to work with Mueller. In the past, this blog has often noted that Trump cannot pardon state-level crimes. But Trump has managed to install Geoffrey Berman, one of Giuliani's cronies, in Preet Bharara's old job as NY prosecutor -- and NY is the likeliest state for a prosecution.

So anyone fingered by Mueller is protected on both the state and federal level.

(Side note: I wonder if Trump will tap Rudy to become the new NSA chief?)

Added note: Reader joseph (with a small j) reminds us that "State crimes in New York are prosecuted by Eric Schneiderman, not Berman." Damn. This is the second major error I've made in as many weeks.

Back to the original post:

The sitch is not hopeless. If Trump's dam of die-hard supporters were to collapse, even partially, the Republicans may abandon him. The fallout from Wolff's book could bring about a damburst. Further revelations from Bannon are even likelier to do damage.

For the sake of argument, let's posit that Mueller can surmount the "pardon problem." We can't place much hope in impeachment, so let's think about an indictment of a sitting president. Some say that Mueller has this ability; most say that he does not.

Among those who say that Mueller can bring an indictment is Philip Allen Lacovara, who worked with Archibald Cox and Leon Jaworski back in the days of Watergate.
When I was counsel to the Watergate special prosecutors, one of the issues that we had to address during the investigation of President Richard Nixon was whether the president was subject to indictment for his role in the Watergate coverup. As we later informed the Supreme Court in briefing the “Nixon tapes” case, we concluded that a president may be indicted while still in office. The Justice Department’s Office of Legal Counsel has taken a different position, first under Nixon and later under the administration of President Bill Clinton.
A single section in Article II of the Constitution specifies, without distinction, that the “president, vice president, and all civil officers” may be impeached by the House and may be removed upon conviction by the Senate of treason, bribery, or other high crimes and misdemeanors. The Constitution does not distinguish between treatment of the president on the one hand and the vice president and other civil officers on the other. History has demonstrated, however, that hundreds of civil officers, as well as vice president Spiro Agnew, have been prosecuted for federal offenses without having been impeached and removed from office.
Problem: If we establish that Trump can be indicted without being impeached, then Republicans will insure that any future Democratic president will be endlessly indicted for...well, for anything. And everything. For the proverbial ham sandwich.

A sickening possibility. But let's cross that bridge when we come to it. For the safety of the nation, Trump must go ASAP.

Is this true? Louise Mensch says that Rebekah Mercer and Steve Bannon were dating. As I've made clear numerous times in the past, I do not trust Mensch. But she did (does?) count Milo among her pals, and her spooky contacts may include some who work or worked for Cambridge Analytica. In other words, Mensch is in a position to pick up on this kind of scuttlebutt.

Or maybe she's talking out of her ass again.

Can anyone confirm the claim? Boy, that would explain a lot.
State crimes in New York are prosecuted by Eric Schneiderman, not Berman.
Impeachment is useless unless you snag Pence -- a Handmaiden's Tale waiting to happen -- too, and Pelosi takes charge. This isn't a far-fetched scenario but it requires time.

Mueller's current target is Kushner. Which is why the Brooklyn DA -- not Mueller -- subpoenaed Kushner's Deutsche Bank records, the key to impeachment, if you ask Bannon. Trump can't pardon state-level crimes, and Kushner knows that.

If and when it comes to Trump, Mueller is likely to unseal an indictment of Trump and then refer it to Congress. Mueller's team will have to hope that the facts of the indictment have their own, inexorable momentum.
I like your reasoning
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