Sheila Markin is a former Assistant US Attorney. She helps people to understand in plain English what is going on in US politics today. Subscribe to the blog so you don’t miss a post!
Last week my husband and I had dinner with Jill Wine-Banks and her husband. Our conversation covered a lot of ground. Jill and I talked about what keeps us up at night, namely, how will Trump try to defeat the investigations that are coming ever closer to him and his associates.
Jill and I are both former Asst US Attorneys. Jill was one of the prosecutors on the Watergate case. I am a former Asst US Attorney from Chicago. We both care about justice being done, We talked about what we think Trump will do to try to thwart the investigations that are developing evidence of criminal misconduct against him and coming ever closer to the Oval Office. We know that Trump does not follow or obey the law. We know that money laundering and threats to women to force them to sign NDAs are likely to be revealed. We know that Trump has a vast network of connections with nefarious, mafia-like people in the world of real estate. There will be a lot coming out about Trump’s past if the legal process works as it is supposed to. But we also know Trump by now. He is not Nixon despite some similarities between Watergate and Russiagate. Nixon actually believed in and abided by the rule of law. Trump is a mob boss who thwarts the rule of law. It’s obvious to us that Trump is going to try to damage or destroy the Mueller investigation and the Cohen investigation if he can. How will he try to do that?
With the Mueller investigation, many people are concerned about Mueller himself being removed, but I think both Jill and I are more worried that Rosenstein will be removed for a bogus reason and replaced with a Trump loyalist. We have already seen Devon Nunes try to build a pretext for removal with his campaign #release the memo, about the FISA warrant he claimed was based on the Steele Dossier but was not. Remember that fiasco? And more recently Nunes tried again with his campaign to force Rosenstein to release the Comey memos thinking that Rosenstein would follow agency protocol and refuse to do that. Instead, Rosenstein “fought back” against that effort to try to gin up a reason to remove him by simply giving the House Republicans what they demanded. He went ahead and released the Comey memos against best practices, taking the steam out of the effort to remove him. When the memos came out, instead of helping the Republican cause, they served to bolster Comey’s credibility. These efforts by Nunes have not worked so far to create an excuse to remove Rosenstein. But Trump and his toadies are probably not done trying to remove Rosenstein and install a Trump loyalist who will serve his boss by bringing the investigation to a halt or limiting it’s scope behind closed doors. The goal would be to issue a report as the Republicans in the House Intelligence Committee just did, declaring that there was no collusion- nothing to see here. Even if there is a Congressional warning to Trump not to remove Mueller, as we have seen recently by a bipartisan group of lawmakers, that will not necessarily protect Rosenstein. Not to mention that Mitch McConnell will not even allow the Senate to vote on such a measure anyhow- he simply won’t call it for a vote and he is in charge of what gets called for a vote in the Senate. So THAT keeps us up at night.
Another thing that keeps us up at night is that Mueller seems to be readying a “report” on obstruction of justice, one arm of the investigation being conducted by the FBI and DOJ. Jill has made the argument on MSNBC that a president CAN be indicted. It is not settled law that a sitting president cannot be indicted. Also, the argument can be made that one approach for Mueller would be to name the president as an unindicted co-conspirator (as was done in Watergate) in the conspiracy against the United States that we see being built in the various charging documents and guilty pleas that are coming out of the Mueller investigation as it proceeds. But what if Mueller only issues a report to Congress (the House Judiciary Committee) and leaves it up to Congress to decide what to do with the information? With the current Republican led Congress, there is likely to be a fight by Nunes, Trey Gowdy, Goodlatte, and others to bury the report. I doubt that effort would ultimately succeed because the Democrats- led by Adam Schiff and others on that committee would fight like hell to get the information out to the American people. But the idea of Mueller punting, and sending a report to Congress instead of indicting the president, also keeps us up at night. Of course that assumes that the president did obstruct justice. By now it seems pretty obvious that there was obstruction of justice and there is evidence of intent even without the president sitting down with Mueller for an interview. Everyone saw the president on TV talking with Lester Holt and we have also heard and seen the conversation he had with the Russians in the Oval Office. If the president did not have the intent to relieve himself of the pressure from the Russia probe by firing James Comey, then why did he confess that on TV and why did he tell the Russians that the pressure was off now that he has gotten rid of Comey, that “nut job”?
When it comes to the Cohen investigation being run out of the Southern District of New York, Trump had a card to play, but something just happened to thwart him. The card he could have played was this- he could have replaced the current interim U S Attorney, Geoffrey Berman, with someone who would be willing to damage or destroy the ongoing investigation in the SDNY, but he did not act fast enough. Geoffrey Berman was chosen as a guy to replace the former US Attorney who was summarily removed without cause along with all the other US Attorneys when Trump took office. Berman seemed very likely to be a Trump loyalist. He was Rudy Guiliani’s law partner; he had been a Trump donor: he is a staunch Republican. What better person for Trump to have as the US Attorney in the Southern District of New York to “protect him”? The SDNY oversees matters in Manhattan where there is a nexus for much of Trump’s personal business and Trump Organization’s business. But Geoffrey Berman did what Sessions did at DOJ; he recused himself. Berman recused himself from the Cohen investigation. He is not going to have any authority over that matter. There is some reason for Berman’s recusal. We do not know what that is yet, but he sought the advice of the DOJ and took their advice to recuse himself. Here is where Trump failed to play his hand. Berman was only an interim US Attorney. If Trump did not act to put in a different US Attorney by May 5th Berman’s status would change from acting US Attorney to fully appointed US Attorney. If Trump wanted to replace him he had to do it before May 5th. But last week the justices of the Southern District of New York stepped in to take that option away from Trump. They acted to create a protective shield around the Cohen investigation. They appointed Geoffrey Berman as US Attorney of the Southern District of NY. Indefinitely. They have the right to do that. And the fact that they acted as they did tells us that they understood the need to shield the Cohen investigation from interference by Trump. Now if Trump tries to fire and replace Berman, it will be more evidence of obstruction.
Another thing that keeps us up at night is the possibility of double jeopardy attaching if someone from the Trump orbit or Trump himself is indicted in the Mueller investigation or another one of the cases pending in different jurisdictions such as Virginia. New York has an unusual law that seems to protect a defendant from being tried in the state of NY for crimes that were indicted in other states even if there was no trial and even if there was a pardon. Say, for example, Trump pardoned Manafort, Cohen and Flynn in an attempt to thwart the investigations that way. There has been a lot of commentary about how the Southern District of New York could still go after these players for crimes committed in that state (and many were). The problem might be that strange double jeopardy law. It might prevent the Attorney General, Eric Schneiderman, from charging the same crimes in New York that were previously charged elsewhere. Schneiderman is trying to cure that glitch by arguing that the law should be changed. That fight has not yet been resolved but watch for the resolution there. It will be key.
If all of this seems like a big chess game, it is. Trump is reptilian in terms of his aggressive need to lash out in primitive ways, do what is best for him and him alone, without any regard whatsoever for the law, for protocol, ethics or civility. It is remarkable how much we are learning that our democracy relies on those qualities- civility, precedent, willingness to follow the rules. As Trump moves to get what he wants any way he can, we see the system reacting to rein him in but it is often only one step ahead because it is reacting to the latest insult from Trump. It is acting defensively. At other times we see the system is responding too late to Trump’s bitch slap and the harm is done. It may not be irreparable harm, but it will take years to repair the damage he is doing to our democracy. However, the justices in the Southern District of NY deserve a shout out for stepping up and proactively creating a protective shield around the Cohen investigation. More of that needs to happen because we have a mob boss in the White House and he is not going to go down without a big big fight and lots of dirty tricks.