Thursday, December 13, 2018


Political Mayhem Thursday: The picture becomes clearer....

It's been a big week in the world of criminal law.

First, the good news: Mitch McConnell has agreed to allow a vote on the First Step Act, which seems ready to pass with room to spare. That's great news-- but it is not yet a done deal.

The other big story was the rollicking week in the Trump/Mueller saga. Last Friday, two key documents-- sentencing memoranda in the Michael Cohen case-- were released, and yesterday Cohen was sentenced to three years in prison. Through those developments, the following became clear:

1) The Mueller team has verified and corroborated evidence showing that President Trump directed Cohen to pay off two porn stars he is alleged to have had affairs with. Is that a big deal? Well, yes, given that Cohen just got three years in prison based in part on that crime, and anyone directing him to take that action would face the same criminal liability (since they caused the crime to occur).

2) The National Enquirer apparently cut a deal with Mueller, too, and has affirmed that the purpose of those payments was to affect the election. Ouch.

3) One of the Cohen sentencing documents laid out another troubling possibility: that people in the White House directed Cohen to lie in his congressional testimony. That's a felony, too.

4) Finally, the documents made it pretty clear that Mueller has evidence of multiple lines of communication and coordination between the Trump campaign and Russian operatives.

And now the Democrats will have the power to use House committees to investigate any and all of this.

It's looking very possible that there is good evidence that will show that the president committed felonies under federal law.

Here is what happens next:

The Mueller probe may be close to an end, either on its own accord or through administrative action. When that happens, we will see more indictments and Robert Mueller will make his report to the Attorney General (or, I suppose, the Acting Attorney General). It is up to the AG whether or not to send the report on to Congress, but that is probably a moot point now since the House Democrats will be able to subpoena the report.

In that report, it is possible, even probable, that Mueller will outline crimes by the president.

The most likely course in that even will be that the Democrat-controlled House votes to impeach and the Republican-controlled Senate then votes to acquit (conviction needs an almost-impossible 2/3 vote in the Senate). Everyone loses in every way under that scenario. Except, perhaps, the President, who can run for re-election as a martyr who "won."

For Democratic prospects in 2020, the best course may simply be to beat Trump in the election, and then let him face charges (state and/or federal) once he is out of office.

When Trump goes down, it should be at the hands of the people, at the ballot box. If he's indicted (while in office) for anything but a clear criminal conspiracy with Russian agents to influence the 2016 election, the witch hunt crowd will never accept it. And if he's indicted (while in office) for campaign finance violations, a sizable share of the 42.4% of Americans who approve of the President will forever doubt the legitimacy of the Mueller investigation. Even impeachment, though more democratic than prosecution, would inflict deep wounds on the country, not to mention potentially giving Trump the leg up he may need to dominate the news cycle until 2024. The people made a mistake in 2016, and the people should fix it.
I agree that we have to take him down at the ballot box. I don't think the House will start impeachment because it will never make it through the Senate. They will however tie many people in knots with all their hearings that Paul Ryan refused to pursue or let die these past two years.

What I am wondering is if there is any statute of limitations on the assorted crimes he may be guilty of? I also realize that if he loses in 2020 the Southern District of NY is going to slay him for his corrupt business practices. I think his problems are way bigger than Mueller.

I would also guess his business may be suffering with the creeping interest rates. This is why he is mad at the Fed. A real problem if he has floating rate debt. And also with so many properties removing the family name those royalties have started to evaporate. His brand for many is toxic.

@Christine, most federal crimes have a five-year SOL. That's largely irrelevant to Trump's hypothetical "collusion," election, and obstruction crimes if he loses in 2020. But if he wins, prepare to learn a lot more about whether a sitting president can be indicted, the Fifth Amendment's Due Process Clause and, if the Democrats were to take a veto-proof majority in the Senate, the Article I’s ex post facto clause. Lots of uncharted legal territory. Of course capital crimes, like, say, treason, have no SOL. Plenty of room for creative prosecution, for better or worse. Prof. pls correct me where I am wrong.
Thank you CTL
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