How to indict Trump
Welcome to Popular Information, a newsletter with original research and fresh insight into the political news that matters most — written by me, Judd Legum.
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Popular democracy
This week, the North Carolina GOP announced its support for a new election in the state's 9th Congressional District, making a new vote practically inevitable. The North Carolina scandal has been a major focus of this newsletter. Popular Information broke three major stories:
The man at the center of the scandal is Leslie McCrae Dowless. Popular Information broke the news of his criminal history, including a felony fraud conviction.
Popular Information obtained 162 absentee ballot envelopes from Bladen County, North Carolina. The report exposed, for the first time, the tactics and participants in a ballot harvesting scheme.
Popular Information broke the news that Jens Lutz, the Vice Chair of the Bladen County Election Board, started a political consulting company with McCrae Dowless. Lutz has resigned.
Popular Information's reporting on this story has been credited in the New York Times, CNN, the New Yorker, and the Charlotte Observer.
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How to indict Trump
Michael Cohen, President Trump's longtime personal attorney and "fixer," was sentenced to three years in prison on Wednesday for tax evasion, campaign finance violations and lying to Congress. The federal judge, William Pauley, also imposed nearly $2 million in forfeitures, restitution, and fines.
Pauley said that Cohen's crimes inflicted "insidious harm to our democratic institutions."
It was a lousy day for Cohen. But things could get even worse for Trump.
Cohen pled guilty to campaign finance violations as a result of secretly funneling over $100,000 each to two women, Stormy Daniels and Karen McDougal, who say they had affairs with Trump. The purpose of these payments, Cohen admitted, was to protect Trump's prospects in the 2016 election.
Pauley noted that Cohen committed these crimes in "coordination with and the direction of Individual-1," who prosecutors have made clear is Trump.
In other words, Cohen was the puppet. Trump was the puppeteer.
Why Trump isn't being prosecuted (yet)
So if Trump directed Cohen to commit two felonies, why isn't Trump also being prosecuted?
We don't know for sure, but one reason could be a memorandum opinion of the Department of Justice's Office of Legal Counsel from October 2000. That memo concluded that "[t]he indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions." It affirmed a similar opinion by the same office that was issued in 1973.
This is, however, just an opinion by the Justice Department. It is not a legal precedent. There is no federal law preventing a president from being indicted, and no court has ever ruled on the issue.
Can a sitting president be prosecuted
The office of former independent counsel Kenneth Starr, however, who investigated President Clinton, drafted a 56-page memo that came to a different conclusion. That 1988 memo states: "It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties. In this country, no one, even President Clinton, is above the law."
The Starr memo, written by conservative lawyer Ronald Rotunda, makes several arguments to support the claim that a president can be indicted. First, it notes that the Constitution provides some limited legal immunity for members of Congress. So if the Framers wanted to make presidents immune from criminal prosecution, they would have done so explicitly. The memo also cites the 25th Amendment, which allows the vice president to temporarily step in when a president can't perform the duties of the office. This means, according to the memo, concerns about an indictment disrupting government operations are unjustified.
If not now, when
Whether or not Trump is indicted while in office, the Department of Justice's memo does not rule out prosecuting a president after leaving the position. Even Trump's lawyer, Rudy Giuliani, admitted that was possible.
"Once he’s out, he is like any other citizen and he can be indicted," Giuliani told Politico.
Appearing last Sunday on Meet The Press, Congressman Adam Schiff (D-CA), agreed:
My takeaway is there's a very real prospect that on the day Donald Trump leaves office, the Justice Department may indict him. That he may be the first president in quite some time to face the real prospect of jail time.
Trump's potential legal exposure post-presidency could be used as leverage by Mueller or other prosecutors. "At some point he & prosecutors should talk about a deal where he resigns to avoid jail time," Neal Katyal, Obama's solicitor general, said on Twitter.
If Trump wins reelection, things could get more complicated. By the time he is out of office, the statute of limitation on any potential crimes may have expired.
New York prosecutors build their case
One worrying sign for Trump: Michael Cohen's prosecution has ended, but prosecutors from the Southern District of New York continue to build their case. Today, prosecutors announced they had formalized a deal with AMI, the parent company of the National Enquirer, which was used by Cohen and Trump to pay off Karen McDougal.
Under the deal, AMI will not be prosecuted in return for its cooperation.
The Office also announced today that it has previously reached a non-prosecution agreement with AMI, in connection with AMI's role in making the above-described $150,000 payment before the 2016 presidential election. As part of the agreement, AMI admitted that it made the $150,000 payment in concert with a candidate's presidential campaign, and in order to ensure that the woman did not publicize damaging allegations about the candidate before the 2016 presidential election. AMI further admitted that its principal purpose in making the payment was to suppress the woman's story so as to prevent it from influencing the election.
The last part of the statement is critical. Former Democratic presidential candidate John Edwards was able to beat campaign finance charges related to payments to his mistress, arguing that his motivations were purely personal. Edwards was using the money, his lawyers argued, not to influence the election but to protect his marriage.
But Cohen said as part of his guilty plea that the purpose of the payments was to influence the election. Now, prosecutors have AMI, which also played a key role, admitting that influencing the 2016 election was the primary purpose of the payment, which was made "in concert" with Trump's campaign. That makes Trump's ability to defend himself against potential charges much more difficult.
David Pecker, the CEO of AMI and a close friend of Trump's, also has an immunity deal with federal prosecutors. Another person with potentially relevant information, former Trump Chief Financial Officer Allen Weisenberg, has a cooperation agreement as well.
Cohen to sing
Prosecutors aren't done with Trump, and neither is Cohen. Lanny Davis, one of Cohen's attorneys, said in a statement that at the conclusion of Mueller's investigation, Cohen would tell the world everything he knows about Trump.
Michael Cohen, former attorney to Donald Trump, continues to tell the truth about Donald Trump's misconduct over the years. At the appropriate time, after Mr. Mueller completes his investigation and issues his final report, I look forward to assisting Michael to state publicly all he knows about Mr. Trump -- and that includes any appropriate Congressional committee interested in the search for truth and the difference between facts and lies. Mr. Trump's repeated lies cannot contradict stubborn facts.
North Carolina GOP tries to change the rules
As I detailed in yesterday's Popular Information, North Carolina Republicans appear resigned to the fact that a new election will occur in the 9th Congressional District. The evidence of election fraud is too overwhelming.
Under current law, if the North Carolina Board of Elections orders a new election, there would only be a new general election. Mark Harris would be the Republican candidate unless he moves out of state. This is a major problem for Republicans since Harris has been severely damaged by the election fraud scandal and his connections to its central figure, Leslie McCrae Dowless.
On Tuesday, Republicans in the legislature floated a plan to change state law to require a new primary and a general, which would give the party an opportunity to replace Harris on the ballot. It was quickly shelved, however, when it failed to gain support.
The plan was revived on Wednesday, however, and this time passed both chambers of the North Carolina legislature.
It now goes to the desk of North Carolina Governor Roy Cooper (D). Cooper will decide whether or not to sign the legislation into law.
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