Wednesday, August 22, 2018

The deadlocked jury in the Manafort case will hurt Trump, not Mueller. Plus: Shera.

Fate always picks the damnedest days to drag me away from the keyboard. I'll try to do this rapidly.

The Manafort business played out somewhat as I had predicted. The verdict dropped on the day my "Spidey sense" told me it would. And there was, in fact, a hung jury on ten of 18 charges.

The deadlock seemed, at first, to be helpful to Trump. Upon further study, I came to understand that the inability to reach a verdict may prove very helpful to Mueller. I'll soon explain why.

But before we get to that: Trump has made very, very clear that he will issue a pardon. See the tweet to your right.

An amazing tweet, is it not? Trump has been compared to a mob boss many times, but that comparison is unfair to mob bosses. John Gotti would have recognized the need for subtlety. If Big Paulie could read this tweet, he'd say: "For chrissakes, show a little finesse!"

Trump shoved some very big lies into a very small space. Where does that "12 year old tax case" claim come from? The trial was about tax returns covering the 2010-2014 period. Needless to say, Trump's characterization of the Cohen plea is completely wrong: Cohen did not make a deal.

In fact, the lack of a deal is what makes the Cohen case so odd. Michael Cohen almost gratuitously fingered his old boss as a co-conspirator. It was all quid and no quo. At least, no visible quo.

Gore Vidal once said that Richard Nixon lied when there was no reason to, which is the mark of a true artist. Donald Trump lies when it is against his interest to do so, which is the mark of an insane artist.

And then we have Michael Cohen, who, in yesterday's pleading, told the truth when there was no reason to. That's the mark of...

...of what?

I've been stewing on that problem for hours. While watching Lanny Davis' interviews on YouTube and straining to read between the lines, one answer now seems likeliest to me: Michael Cohen has been working with Mueller in secret for a while now.

How long a while? Dunno. Maybe a week, maybe a month, maybe longer. But if I'm right, keeping things sub rosa was a smart move.

Mark Penn's counteroffensive against Cohen will be savored by all fans of surrealism.
Why was Michael Cohen investigated? Because the “Steele dossier” had him making secret trips to meet with Russians that never happened, so his business dealings got a thorough scrubbing and, in the process, he fell into the special counsel’s Manafort bin — the bin reserved for squeezing until the juice comes out. And now we are back to 1998 all over again, with presidents and presidential candidates covering up their alleged marital misdeeds and prosecutors trying to turn legal acts into illegal ones by inventing new crimes.
WTF? The Cohen case was about Stormy, not Steele! As far as I can tell, the dossier had nothing to do with anything that has happened to Cohen. And in what universe is it acceptable to describe violations of campaign finance laws as "trying to turn legal acts into illegal ones by inventing new crimes"?

Nevertheless, most Trumpers are going to buy into Penn's masterpiece of insanity.

The deadlocked charges in the Manafort case may hurt Trump, not Mueller. Cohen flipped, or at least is on the cusp of flippage, for reasons which everyone is now trying to guess. I understand that Cohen's wife is also in some potential legal jeopardy. Even more importantly, the state of New York stands poised to bring charges against Cohen and/or his wife.

I said from the start that state-level charges (or the threat thereof) would prove key. On the federal level, Trump wields the power of the pardon. In order to pressure his comrades in criminality, we need to think state.

So why aren't there any state charges -- yet -- against Paul Manafort?

While pondering over that poser, I finally understood an important fact: The Manafort jury reached a counterintuitive conclusion. The charges on which the jury deadlocked may hurt Trump much more than the charges that resulted in a conviction.

Why? In order to understand this point, roll your eyeballs over this section from a Vox story published last April. We need to be clear that this is a story about Cohen, not Manafort. But the principle holds true.
New York has laws that closely mirror the federal ones Cohen stands accused of breaking. Under the state’s double jeopardy statutes, New York prosecutors couldn’t go after Cohen if Trump pardoned him for a specific federal crime. But they could go after him for related ones.

Take federal wire transfer and banking laws, which Cohen may have broken if he lied about the reason he got a loan to pay off one of the women and transferred her $130,000. That would also be illegal in New York, which outlaws both bank and wire fraud. New York prosecutors could go after Cohen for bank fraud even if Trump pardoned him after a conviction for federal wire fraud charges. The big difference would be that Cohen would have no White House protection.

Schneiderman hasn’t announced any kind of investigation into Cohen, but he has been coordinating closely with the Justice Department and special counsel Robert Mueller on their investigation into former Trump campaign chair Paul Manafort. Some commentators argued that the early charges against Manafort, which didn’t reference as many potential crimes as many had expected, were a sign that Mueller was leaving the door open for state prosecution and avoiding the double jeopardy issue.
I am convinced that this is the main reason why Schneiderman was "Me Tooed" out of office on bullshit accusations. The big question is whether the person now doing Schneiderman's job, Barbara Underwood, is working with Mueller on the Manafort case, as Schneiderman did. She does not seem to be mounting any noticeable fight against those state-level double jeopardy laws.

Still, let's take another look at these words:
Some commentators argued that the early charges against Manafort, which didn’t reference as many potential crimes as many had expected, were a sign that Mueller was leaving the door open for state prosecution and avoiding the double jeopardy issue.
This tells us that Mueller has been thinking about a state-level prosecution all along. Now let's take a look at the charges on which the jury deadlocked. From the WP:
The charges on which the jury deadlocked were three counts of not filing a form to report a foreign bank account and seven counts of committing bank fraud or conspiring to commit bank fraud.
I don't know the specifics of the bank fraud laws in New York state, but in general, the state's laws on bank fraud mirror those of the federal government.

Consider the paradox: If the jury had not hung, Trump could now pardon Manafort of all charges. But the existence of ten deadlocked charges means that Manafort is now subject to the same "squeeze play" that proved so effective in the case of Michael Cohen.

There is no question of double jeopardy. The hung jury means that he can be retried on either the federal or the state level.

If Donald Trump issues a pardon, he'll subject himself to one hell of a political backlash. Yet Paul Manafort will still face the prospect of spending the rest of his life in jail.

Shera Bechard. If Lanny Davis is going to do so many interviews, I wish someone would have the chutzpah to ask him about a matter that everyone is wondering about: Is Trump the actual father of the fetus aborted by Shera Bechard? Her twitter feed has once again offered hints and clues.
He did it all for the nookie.. so you can take that cookie.
She tweeted that on the same day as the Cohen verdict. A reader responded:
I hope someday your full truth comes out which should be your choice and on your terms if you decide to let it happen. You don’t owe anyone anything.
Everyone knows what he's talking about. Shera may be slyly admitting as much in her response:
My tag line to my life is “I don’t owe anything to anyone..”
Another reader response:
But the country could sure use your help if there's some more truth to tell. Just sayin
Shera knows full well that her readers think that Trump was the father, yet she refuses to tell them they're wrong. If Broidy were the father, then no NDA would prevent her from saying "I never had sex with Donald Trump."
NYAG Barbara Underwood is presently going after the fraudulent Trump Foundation Charity.

Here's her thoughts on New York's double jeopardy laws;

“President Trump’s latest pardon makes crystal clear his willingness to use his pardon power to thwart the cause of justice, rather than advance it. By pardoning Dinesh D’Souza, President Trump is undermining the rule of law by pardoning a political supporter who is an unapologetic convicted felon. First it was Sheriff Joe Arpaio. Then it was Scooter Libby. Now it’s Dinesh D’Souza. We can’t afford to wait to see who will be next. Lawmakers must act now to close New York’s double jeopardy loophole and ensure that anyone who evades federal justice by virtue of a politically expedient pardon can be held accountable if they violate New York law.”
In defense of Barbara Underwood this from the NY AG office 6/14/18:

NEW YORK - Attorney General Barbara D. Underwood today announced a lawsuit against the Donald J. Trump Foundation, and its directors, Donald J. Trump (“Mr. Trump”), Donald J. Trump, Jr., Ivanka Trump, and Eric Trump. The petition filed today alleges a pattern of persistent illegal conduct, occurring over more than a decade, that includes extensive unlawful political coordination with the Trump presidential campaign, repeated and willful self-dealing transactions to benefit Mr. Trump’s personal and business interests, and violations of basic legal obligations for non-profit foundations.

Lawsuit Seeks Restitution of $2.8 Million Plus Penalties.

AG’s Office Sends Referral Letters to Internal Revenue Service and Federal Election Commission for Further Investigation and Legal Action.

Further thoughts:

Fixer Cohen got his wife off the hook and allowed him to avoid RICO charges, at least for now, but the question is hereby raised as to whether the RICO statute can be used against a sitting president.

Should Southern New York prosecutors or Special Counselor Mueller approach the actions of the Trump campaign, the Trump Organization and the Donald J. Trump Foundation, naming individually, Donald J. Trump, Donald J. Trump, Jr., Ivanka Trump, and Eric Trump. this group would be tried as a criminal conspiracy, under the Racketeer Influenced and Corrupt Organization Act (RICO). Using the New York RICO law would likely prevent Trump from employing his pardon powers and this law also stands the best chance of getting around the real or imagined special privilege argument since the president is being charged as part of a criminal enterprise.

A "criminal enterprise" is "a group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents.
Trump crucified joke painting aside, the Great White Dope paying for an abortion won't peel off any Evangelical Cultists, they're too heavily invested.
When looking at a Jon McNaughton painting why does the word turgid come to mind?
Trump seems on his back foot for the first time - heading for a fall, whether it turns out to be quick or slow.
That tweet by Trump is interesting. Since when did "break" mean "make up stories in order to get a deal"? "Break" more commonly means a witness starts blabbing, starts revealing true information. Why not go the whole hog and call Michael Cohen a supergrass? If I remember right, Giulio Andreotti used that term with opprobrium.

Got to wonder whether the explanation of the meaning of "break" may have been added by Trump's carer, if he has one that checks his tweets before they go out. Has he ever explained a word's meaning before? I didn't realise he was so intellectual.

But I think it was more likely added by him. I haven't been following these latest developments in detail, but I heard Trump on the radio yesterday and I did a double-take because he sounded like a different person - as though he is on the defensive and in trouble. I've never heard him sound like that before.

Trump is a male bully. Everyone knows that. Inside every bully there is a person who can't handle it when the avenue of dealing with a confrontation by bullying is cut off from him, who is likely at such a time to become a whimpering and sobbing wretch. It is the bully who then "breaks".

We may be at a cusp.

As for the mob boss talk, Trump used to encourage people to call him "The Don", which got sanitised to "The Donald". What else is all this talk of "deals" anyway? It's even infecting Britain, where the Chequers proposal has been widely referred to as a "deal" when only a minimal care with words is sufficient to make clear that it's nothing of the kind.
I have read the mere start of a trial on given charges (without any conclusion) is a bar for NY state prosecution on the charge. Here is that referenced to the NY statute:

Here’s the key provision: New York’s Criminal Procedure Law 40.20 states, “A person may not be twice prosecuted for the same offense.” The issue is that New York defines prosecution broadly. Section 40.30 notes that this applies to charges:

filed in a court of this state or of any jurisdiction within the United States, and when the action either:

(a) Terminates in a conviction upon a plea of guilty; or

(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.

From a 4/17/18 Slate article by Jed Shugerman

If this is correct analysis, all of the charges for Manafort certainly reached the (b)
threshold, and then apparently, are barred from state prosecution.

I truly hope this is not so, but...

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