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Divided We Stand

Divided We Stand
New book about the 2020 election.

Friday, January 22, 2021

Legal Jeopardy for Trump and Company

In Defying the Odds, we discuss Trump's dishonesty and his record of disregarding the rule of law.  Our next book, Divided We Stand, looks at the 2020 election.

 Lloyd Green at The Guardian:

In case anyone forgot, the US attorneys’ office for the southern district of New York previously treated Trump aka “Individual-1” as un-indicted co-conspirator in Michael Cohen’s case. As a result, the confirmation hearings of Joe Biden’s pick for attorney general, Merrick Garland, will certainly be interesting.

Already, prosecutors in Manhattan have the Orange Don and his crew in their cross-hairs. According to court filings and published reports, Cyrus Vance Jr, Manhattan’s district attorney, is investigating the truthfulness of the Trump Organization’s financial reporting and the company’s relationship with Deutsche Bank.

It is not for nothing that Trump again appealed to the US supreme court to quash a subpoena issued to his accountants for eight years of tax returns. Trump previously lost a similar bid last summer.

Back in July, Chief Justice John Roberts derailed Trump’s efforts to shroud his tax filings from Vance’s office. “No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding”, wrote Roberts. For good measure, Brett Kavanaugh, the infamous Trump appointee added: “In our system of government, as this court has often stated, no one is above the law.”


In addition, Trump’s recent bouts of wrath have given lawyers in Washington and Georgia plenty to ponder. Local authorities in the Peach state are weighing a criminal investigation into his failed efforts to browbeat Brad Raffensperger, the state’s secretary of state, into submission. Trump telling Raffensperger to “find” 11,779 more votes and interfering with election certification may have been a step too far.

And then there is the Trump-fomented insurrection. When Bill Barr, Trump’s second attorney general, lays the blame at his one-time boss’ feet, it is clear that the story is no longer simply about over-zealous House Democrats. Likewise, when Senator Mitch McConnell accuses the president of “feeding the mob lies” and provoking insurrection, conviction of Trump by the US senate is very much on the table.

In a word, Trump’s problems aren’t disappearing. Two separate federal statutes and a law on DC’s books may have criminalized Trump’s exhortations to his devotees to “fight like hell” in the face of his loss, a reality acknowledged by Karl Racine, the District’s attorney general.

Andrew Weissman at Just Security:

[O]ddly, not all of Trump’s pardons followed the Flynn model. Indeed, many are narrowly drawn.

The pardon for Paul Manafort (on Dec. 23, 2020), is illustrative. By its own terms, the pardon covers only the crimes “for his conviction” on specific charges and not any other crimes (charged or uncharged). Specifically, the pardon is solely for the crimes of conviction — eight in the Eastern District of Virginia and two in the District of Columbia. That leaves numerous crimes as to which Manafort can still be prosecuted, as in Virginia there were 10 hung counts. In Washington, the situation is even more wide open. In that district, Manafort pleaded to a superseding information containing two conspiracy charges, while the entire underlying indictment — containing numerous crimes from money laundering, to witness tampering, to violation of the Foreign Agents Registration Act — now remains open to prosecution as there was no conviction for those charges.

What’s more, the trial on such charges would be unusually simple. First, as part of his plea agreement, Manafort admitted under oath the criminal conduct in Virginia as to which the jury hung (although he did not plead to those counts and thus they are not subject to the pardon). In addition, he admitted in writing the underlying criminal conduct in Washington. Thus, proving the case could largely consist of introducing Manafort’s sworn admission to the charges.

Second, all such charges could be brought in Washington, and not require two separate trials (in Virginia and D.C.), since Manafort waived venue in his plea agreement Third, Manafort waived the statute of limitations — the deadline by which a prosecution must be brought — and thus all these charges would not be time-barred.

Finally, because the Washington, D.C. district judge, the Honorable Amy Berman Jackson, ruled in February 2019 that Manafort breached his cooperation agreement by repeatedly lying to the government, the court found that the government is not bound by the provision in the cooperation agreement not to pursue these other charges. That cooperation agreement explicitly provides that Manafort’s admissions as part of his plea can be used against him in a future trial of such charges.