Before indicting a case, prosecutors prepare a prosecution memo (or “pros memo”) that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors and their supervisors to assess whether the case meets the standard set forth in the Federal Principles of Prosecution, which permit prosecution only when there is sufficient evidence to obtain and sustain a conviction. Before a decision is made about bringing charges against Trump (and co-conspirators, if any), prosecutors will prepare such a memo.

There is sufficient evidence to obtain and sustain a conviction here, if the information gleaned from government filings and statements and voluminous public reporting is accurate. Indeed, the DOJ is likely now, or shortly will be, internally circulating a pros memo of its own saying so. That DOJ memo will, however, be highly confidential, in part because it will contain information derived through the grand jury and attorney work product. Since it will not be publicly available, we offer this analysis. Ours is likely more detailed than what DOJ will prepare internally for explanatory purposes. But, given the gravity of the issues here, our memo provides a sense of how prosecutors will assemble and evaluate the considerations that they must assess before making a prosecution decision.

Our memo analyzes six federal crimes in depth:

Mishandling of Government Documents
1. Retention of National Defense Information (18 U.S.C. § 793(e))
2. Concealing Government Records (18 U.S.C. § 2071)
3. Conversion of Government Property (18 U.S.C. § 641)

Obstruction, Contempt, False Information

1. Obstruction of Justice (18 U.S.C. § 1519)
2. Criminal Contempt (18 U.S.C. § 402)
3. False Statements to Federal Investigators (18 U.S.C. § 1001)

In the course of discussing these statutes, we also touch upon others that may have been violated but where the factual predicate for applicability is less clear. For instance, additional charges could be appropriate–under 18 U.S.C. §§ 798 and 793(e) (dissemination)–if the public reporting regarding Trump’s having intentionally disseminated classified material to aides and others is accurate. Additional charges could also potentially be brought under 18 U.S.C. § 1924 if there is sufficient evidence that Trump unlawfully removed classified documents from the White House (see our discussion of DOJ precedents for past prosecutions under § 1924 in Part IV and in the Appendix). Based on the publicly available information to date, a powerful case exists for charging Trump under several federal criminal statutes, which we discuss in detail.

Methodology

In considering prosecution of a former president, we begin with the standard articulated by Attorney General Merrick Garland: “upholding the rule of law means applying the law evenly, without fear or favor.”^[1] In other words, this case must be evaluated for prosecution like any other case with similar evidence would be, without regard to the fact that the case is focused on the conduct of a former president of the United States. This memo accordingly includes a balanced assessment of this particular case, and a thorough review of past DOJ precedents for charging similar cases. Those past cases show that to decline to bring charges against Trump would be treating him far more favorably than other defendants, including those who were charged for less egregious conduct than his. “All Americans are entitled to the evenhanded application of the law,”^[2] Garland has stated, and we are guided by the values underlying those words as well.

This model prosecution memo is, however, limited in an important sense. Throughout the memo, we draw as much as possible on the unusual amount of factual information provided by the Government in its court filings. We do not, however, have visibility into the full volume of information the Justice Department has assembled. That means we could be missing important facts, including exculpatory evidence, that may inform the DOJ’s decision-making process. We may be unaware of admissibility issues with some of the evidence. And equally true, the evidence could be better or more extensive than what is available in the public record.

What’s more, by necessity, we at times rely on news reports from investigative journalists whereas the actual prosecution memo would instead rely on direct evidence the federal investigators have collected. For that reason, we do not reach an unqualified charging decision. Instead, we conclude that there is sufficient evidence to obtain a conviction here, if the Government filings and statements and voluminous public reporting we detail below are accurate. We also note that, based on the reported facts, charges would be strongly warranted based on Department precedent in similar cases.^[3]

The model prosecution memorandum is available below as a SCRIBD file and also as a separate PDF.

Also, to hear more about the memo from some of its co-authors check out the Just Security podcast. A conversation with Andrew Weissmann, Joyce Vance, and Ryan Goodman.

Model Prosecution Memo – Trump Classified Documents Second Edition June 2023 by Just Security on Scribd

– – – – – – –

^[1] Department of Justice, Attorney General Merrick Garland Delivers Remarks (Aug. 11, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-garland-delivers-remarks.

^[2] Id.

^[3] Two of the authors of this model prosecution memo, Norman Eisen and Fred Wertheimer, were among the counsel for amici supporting DOJ’s position in litigation before the U.S. District Court for the Southern District of Florida, and the U.S. Court of Appeals for the Eleventh Circuit, related to the criminal investigation mentioned in this report. For more information, see https://democracy21.org/category/news-press/press-releases.

 Photo credit: Coolcaesar from Wikimedia Commons

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Analysis of these precedents was previously examined by a team of Just Security legal experts, including the co-authors, with regard to the facts known about the former president. We concluded that prosecuting Donald Trump would not only be called for by that precedent, but compelled by it. In fact, many who engaged in significantly less egregious conduct have been subject to criminal prosecution. (Our model prosecution memo can be found here).

In light of the Biden government documents contretemps, it is also useful to reexamine DOJ precedent to see how the facts currently known about the Biden documents stack up. Because of its apparent factual and legal similarities, the DOJ’s prosecution decision regarding former Attorney General Alberto Gonzales is a precedent particularly worthy of comparison.

The Justice Department decision to decline prosecution of Gonzales points to a similar outcome for President Joe Biden.[1] Indeed, certain facts in the Gonzales case were more egregious and incriminating, including evidence of his specific knowledge and personal handling of highly classified material outside of an appropriate classified facility.

The Gonzales Declination Precedent

What is known about the Gonzales case comes primarily from a 2008 DOJ Inspector General (IG) report, plus certain supplemental sources. There is little direct information about the DOJ’s internal reasoning in declining to prosecute. But the inferences we can draw from the facts of the case and of course the outcome are highly instructive.

The IG found that Gonzales wrote notes about classified documents (which renders the notes classified as well). Discrete segments of his notes contained highly classified information – 4 out of 21 paragraphs contained Top Secret/SCI information about an NSA codeword surveillance program — but the remaining paragraphs were unclassified.

Then, in February 2005, when Gonzales, who had been serving as the White House Counsel, became the Attorney General, he took those notes with him. The matter provoked an IG investigation because he improperly retained those notes in unapproved locations. That investigation revealed that he took the notes from the White House to his home in a briefcase, and apparently did not put the documents in his home safe. After a short period of time, he took the notes to his DOJ office, but did not put them in a SCIF, but rather in his AG office safe, which was authorized to contain Top Secret information, but not authorized to contain more highly classified information. In the office safe, the IG found another 17 classified documents marked Top Secret/SCI, which should not have been kept there. Thereafter, Gonzales did not fail to deliver the documents on demand to an officer of the United States entitled to receive them. Gonzales made the notes he took home and the material in his office safe available to investigators. Finally, although there was some evidence that Gonzalez may have lied to investigators, there was no conclusion that Gonzales lied or otherwise obstructed the IG or DOJ in their investigation (more on this, below).

The proof of intentionality was unclear and harder for the DOJ to establish, particularly with respect to the 17 documents found in his DOJ safe. As to the 17 documents, there was no evidence Gonzales understood the safe was not approved for storage of highly classified information. Indeed, Gonzales denied knowing that the safe was not an authorized locale: “Gonzales told the OIG he believed it was appropriate to store the documents in the safe outside his office, and that he had never been told otherwise,” according to the IG report.

The evidence with respect to the notes was more fraught. Gonzales himself said he had not thought his notes contained classified information. And aside from the notes being at his home for a short time, he stored the notes and the other 17 documents in a relatively secure environment – a DOJ safe at Main Justice. But although Gonzales denied such an intent, the facts there do allow the opposite inference: that he knowingly transported the documents to his home and then to his office, and by placing them in a top secret (but not TS/SCI) safe at DOJ, evidenced his knowledge that the notes were indeed classified and needed to be kept in a secure location. Further, Gonzales “told the OIG that he used two envelopes to double-wrap the notes. Gonzales stated he may have written an abbreviation for the codeword of the program on the inner envelope. On the outer envelope, Gonzales said that he wrote “‘AG – EYES ONLY – TOP SECRET.’” In addition, “the NSA official responsible for classifying the notes told the OIG that one aspect of the program explicitly referred to twice in the notes was ‘zealously protected’ by the NSA and that designating these references TS/SCI was ‘not a close call.’”

One more element of the Gonzales case is significant. Gonzales apparently did not self-report his mishandling of the classified material. Instead, he appears to have inadvertently brought it to the attention of the White House Counsel. He presented the notes to them for other purposes related to congressional hearings. When asked about where he had kept the notes, he told the White House Counsel, he “wasn’t sure where they were,” and that “he thinks he may have taken them home.” That set off alarm bells, and the White House Counsel proceeded to notify the NSA and Justice Department.

The initial IG report references only 18 USC 1924 misdemeanor statute as relevant, and placed an emphasis on Gonzales’s having brought the notes to his residence as pertinent to that legal analysis. According to a subsequent IG report, the DOJ also considered 18 USC 793(f)(1) which applies to an official’s “gross negligence” in mishandling sensitive national security information. DOJ declined to prosecute under either or any other statute.

Comparing the Gonzales and Biden Cases

The comparison to what is known about the Biden documents is instructive.

There is no evidence to date that Biden had any knowledge that government documents were taken from the White House or any intent to take any government documents from the White House, let alone classified government documents. By contrast, Gonzalez personally took the notes home and then to DOJ. Neither Gonzales nor Biden are known to have lied to investigators or to have sought to obstruct the return of the government documents to a secure location. That said, unlike Biden, there was evidence Gonzales may have not been fully candid about his intent. “Gonzales said he did not recall thinking that the notes were classified and said that he did not think to mark the notes as classified,” according to the IG report. That statement is hard to square with the evidence of how he handled and marked the notes. And Gonzales did not deliberately bring to the attention of the government that he had kept classified materials in an unsecure and unauthorized location.

Apart from Gonzalez’s statement claiming he did not know the notes were classified, both Gonzales and Biden appear to have been cooperative with the investigation, and not sought to hide documents from investigators. And even though the Biden documents were in an unsecure location for a longer duration than the notes improperly taken by Gonzales, there is no evidence to date that Biden knew that fact – similar to Gonzalez being unaware that his office safe was not an authorized location for storage. In other words, one was unaware of the nature of the documents and another was unaware of the nature of the storage facility limitations. Moreover, upon discovery of such government documents, they were promptly made available by Biden’s lawyers to the Archives or the DOJ.

How the Department of Justice Should Proceed

In short, because DOJ must seek to treat like cases alike, the Gonzales declination appears to be a precedent that will weigh heavily in favor of DOJ closing its Biden investigation without a charge. There is nothing that would or should prevent the Attorney General publicly announcing such a conclusion, as it would not raise the issue that led Robert Mueller to make no recommendation with respect to evidence that did suggest a crime had been committed. Finally, the DOJ opinion that a sitting president is immune from indictment (something that is by no means a given, but need not be challenged here) counsels in favor of a very prompt resolution of the matter: the basis of that DOJ view with respect to a sitting president is that such action would unconstitutionally hamstring the chief executive and commander in chief from carrying out the nation’s business. On that logic, if the special counsel determines there is no criminal case here, he and the Attorney General to whom he reports should wrap up the investigation with dispatch.

– – – – – –

[1] We reach this conclusion independent of the DOJ position that a sitting president cannot be indicted.

IMAGE: US Attorney General Alberto Gonzales is sworn-in before the Senate Judiciary Committee 19 April, 2007 on Capitol Hill in Washington, DC. (Brendan Smialowski/AFP via Getty Images)

The post Could Biden Face Charges? The Alberto Gonzales Precedent Says Not appeared first on Just Security.

Even critics of Garland’s decision should recognize that the optics would be less than ideal if he proceeded without a special counsel. Trump just this week formally announced that he will be running to return to the Oval Office. And President Joe Biden has said that his intention is to run for reelection. It was therefore a prudent decision, and within the DOJ’s regulations, for Garland to take this course of action, even if a special counsel appointment is typically used when investigating a political figure within the executive branch.

Those rules provide that if there is either “a conflict of interest for the Department or other extraordinary circumstances” and “it would be in the public interest,” the Attorney General will appoint a special counsel. For the political appointee of the president to investigate and perhaps prosecute Biden’s leading political opponent is, as Garland rightly noted, an “extraordinary circumstance.” And removing any risk of potential taint serves the public interest.

If the facts demonstrate Trump violated the law, we have no doubt that the Special Counsel will pursue indictment. As a veteran former federal prosecutor with more than 16 years of experience at the Department of Justice, Smith is well aware of the Department’s policy that suggests prosecution when, among other things, “the person’s conduct constitutes a federal offense,” and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”

Our pros memo supports the conclusion that Trump has committed a number of felonies, and that the facts will be sufficient to obtain and sustain a conviction. The pros memo outlines the strong case that could be brought against Trump in connection with his mishandling of classified and other government documents at Mar-a-Lago, as well as obstruction of the investigation by the National Archives and the Justice Department. Some of us have also been involved in carefully tracking the evidence against Trump related to the events of January 6, and the facts, while far more complicated, may well support prosecution in that case as well.

Of course, we surely do not have all the facts. There may or may not be additional exculpatory evidence out there—or proof of the inculpatory variety. In either event, Smith’s reputation for prosecutorial tenacity suggests he will fill those gaps.

An important question, however, is how long it will take to do so. Garland, in his statement appointing the Special Counsel, said, “I am confident that this appointment will not slow the completion of these investigations.” Smith also committed to acting with dispatch. It is badly needed.

Nearly two years have elapsed since January 2021, when the potentially criminal pattern of conduct under the Special Counsel’s purview culminated. For our pros memo, we reviewed every prior prosecution for mishandling classified information in the United States. Those precedents show that the DOJ usually brings charges within one to two years after the offense was committed, and sooner when discovery of the unlawful taking of the documents follows on the heels of the crime.

As our model pros memo details in its compilation of prior DOJ precedent, literally any other American who had concealed classified documents would likely have already been subject to prosecution—and where the former president concealed hundreds including some of the nation’s most sensitive secrets—the rule of law demands expeditious action.

Some are understandably skeptical whether justice will be timely obtained, or obtained at all, given Trump’s record of evading legal consequences. History elevates that concern. Of the many lawyers appointed as special counsel, dating back to Archibald Cox as “special prosecutor” related to Watergate, no indictment against a sitting or former president has ever been filed. But each of those cases had serious impediments to prosecution that simply do not appear to be present here.

Some of those cases involved a sitting president, preventing—at least according to DOJ policy—criminal prosecution. We know this policy motivated the lack of affirmative conclusions of criminal conduct in Special Counsel Robert Mueller’s 2019 report. Mueller said so. That hands-off approach to a sitting president also explains why Richard Nixon was not prosecuted prior to his resignation (though, but for President Ford’s pardon, he may well have been subject to a post-presidential indictment).

Importantly, there is simply not that much precedent for the times we are in (which is a fortunate thing). And none of the previous cases involved evidence of criminal conduct after leaving office. Whatever constitutional or prudential considerations might militate against pursuing criminal charges against a sitting president for conduct during their tenure, none apply once that person has returned to life as a private citizen.

On the contrary, ex-presidents should not be treated any differently than other Americans. Being elected president is not a lifelong grant of criminal immunity. That protection is something that applies only in monarchies and tyrannical regimes. The rule of law requires that its operation applies to each of us equally. Indeed, having been the leader of the free world, and the head of our law enforcement and intelligence communities, should mean a greater, not lesser, obligation to adhere to the law by a former president.

The ultimate responsibility for that accountability lies not only with Smith but also with the Attorney General. Under DOJ regulations, the Special Counsel will ultimately need to notify Garland if he determines to charge Trump. That gives the Attorney General the authority to stop the action (triggering reporting requirements to Congress) or to allow it to proceed.

Just as the voters of this country resoundingly pushed back in the 2022 election against candidates attempting to nudge our nation toward autocracy, we expect Smith will do his duty, and ensure the promise of equal justice under law. The analysis in our pros memo points to his recommending charges and Garland accepting that recommendation. We hope that will come sooner rather than later.

The post Our Prosecution Memo Points the Way for the Special Counsel appeared first on Just Security.

This model prosecution memorandum (or “pros memo”) assesses the potential charges against former President Donald Trump emanating from his handling of classified documents and other government records since leaving office on January 20, 2021. It includes crimes related to the removal and retention of national security information and obstruction of the investigation into his handling of these documents. The authors have decades of experience as federal prosecutors and defense lawyers, as well as other legal expertise. Based upon this experience and the analysis that follows, we conclude that there is a strong basis to charge Trump.

Before indicting a case, prosecutors prepare a pros memo that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors and their supervisors to assess whether the case meets the standard set forth in the Federal Principles of Prosecution, which permit prosecution only when there is sufficient evidence to obtain and sustain a prosecution. Before a decision is made about this matter, prosecutors will prepare such a memo.

But such a DOJ memo will be confidential, in part because it will contain information derived through the grand jury and attorney work product. Since that document will not be publicly available, we offer this analysis. Ours is likely more detailed than what DOJ may prepare internally. But, given the gravity of the issues here, our memo provides a sense of how prosecutors will assemble and evaluate the considerations that they must assess before making a prosecution decision.

Our memo analyzes six federal crimes:

Mishandling of Government Documents
1. Retention of National Defense Information (18 U.S.C. § 793(e))
2. Concealing Government Records (18 U.S.C. § 2071)
3. Conversion of Government Property (18 U.S.C. § 641)

Obstruction, False Information, Contempt
1. Obstruction of Justice (18 U.S.C. § 1519)
2. Criminal Contempt (18 U.S.C. § 402)
3. False Statements to Federal Investigators (18 U.S.C. § 1001)

Based on the publicly available information to date, a powerful case exists for charging Trump under several of these federal criminal statutes.

Methodology

In considering prosecution of a former president, we begin with the standard articulated by Attorney General Merrick Garland: “upholding the rule of law means applying the law evenly, without fear or favor.”^[1] In other words, this case must be evaluated for prosecution like any other case with similar evidence would be, without regard to the fact that the case is focused on the conduct of a former president of the United States. This memo accordingly includes a balanced assessment of this particular case, and a thorough review of past DOJ precedents for charging similar cases. Those past cases show that to decline to bring charges against Trump would be treating him far more favorably than other defendants, including those who were charged for less egregious conduct than his. “All Americans are entitled to the evenhanded application of the law,”^[2] Garland has stated, and we are guided by the values underlying those words as well.

This model prosecution memo is, however, limited in an important sense. Throughout the memo, we draw as much as possible on the unusual amount of factual information provided by the government in its court filings. We do not, however, have visibility into the full volume of information the Justice Department has assembled. That means we could be missing important facts, including exculpatory evidence, that may inform DOJ’s decision-making process. We may be unaware of admissibility issues with some of the evidence. And equally true, the evidence could be better or more extensive than what is available in the public record.

What’s more, by necessity, we at times rely on news reports from investigative journalists whereas the actual prosecution memo would instead rely on direct evidence the federal investigators have collected. For that reason, we do not reach an ultimate charging decision. Instead, we stop at noting that there is a strong basis to charge based upon the public record, and that charges would be called for by Department precedent in like cases.^[3] 

The model prosecution memorandum is available below as a SCRIBD file and also as a separate PDF.

Also, to hear more about the memo from some of its co-authors check out the Just Security podcast. A conversation with Andrew Weissmann, Joyce Vance, and Ryan Goodman.

Just Security Mar a Lago Model Prosecution Memorandum November 2022 by Just Security on Scribd

– – – – – – –

1. Department of Justice, Attorney General Merrick Garland Delivers Remarks (Aug. 11, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-garland-delivers-remarks. ↑
2. Department of Justice, Attorney General Merrick Garland Delivers Remarks (Aug. 11, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-garland-delivers-remarks. ↑
3. Two of the authors of this model prosecution memo, Norman Eisen and Fred Wertheimer, were among the counsel for amici supporting DOJ’s position in litigation before the U.S. District Court for the Southern District of Florida, and the U.S. Court of Appeals for the Eleventh Circuit, related to the criminal investigation mentioned in this report. For more information, please see (https://democracy21.org/category/news-press/press-releases). ↑

Photo credit: Coolcaesar from Wikimedia Commons

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The initial assessment of Bragg as not ready for primetime was based on his issuance of a Day One memorandum limiting the circumstances under which his office would prosecute arrested suspects. That memorandum on its face had deep flaws that reflected a lack of robust internal vetting, and its public reception including by the NYPD, the Mayor’s Office, and the new Governor, revealed a lack of external vetting as well. The memorandum was quickly withdrawn, but the damage was done: his office’s ineptitude set back future initiatives of progressive prosecutors and created the lens through which all of Bragg’s subsequent acts would be judged.

We did not have to wait long. Close on the heels of the Day One memo fiasco, a second event solidified Bragg’s reputation. Bragg was subject to the public spectacle of two prominent lead prosecutors on his financial investigation of Donald Trump resigning from their positions, in what appeared to be caused by an internal dispute on the merits of a potential criminal indictment of the former president. To many in the public and media, it seemed inconceivable that Trump had not committed at least one prosecutable financial crime and that Bragg could responsibly come to a contrary conclusion so quickly in his tenure as DA.

That one-two punch was followed by a seeming knock-out blow when a resignation letter to Bragg from one of the lead prosecutors was leaked to the press, which stated categorically that in that person’s view there was a prosecutable case against the former president and, to twist the knife further, that Bragg’s predecessor had approved it going forward. The media reaction was furious and one-sided. The press neglected to note that the letter was not signed by the other lead prosecutor who resigned, barely covered that other career prosecutors disagreed with the letter’s assessment of the case, and failed to take the leaker of the letter to task as acting in a manner akin to James Comey — who was appropriately excoriated for his actions in July and October of 2016 when he publicly denigrated Hillary Clinton, a person not charged with a crime, based on evidence that was not public. 

Bragg was in no position to defend himself: like Attorney General Garland, he was rightly constrained about what he could say about someone who had not been charged. And Bragg’s claim that he could not speak about the ongoing investigation was met with derision. Few truly believed there was still an active criminal investigation after the departure of the two prosecutors (even though the remaining team was led by a highly regarded, experienced, prosecutor).

* * *

Now is an appropriate time to ask whether the assessment of Bragg — which understandably was colored by his Day One memo and the lopsided press on the lead prosecutor resignations — was reached prematurely.

This past week the only person charged to date in the DA’s Trump investigation pleaded guilty in advance of an October 24, 2022 trial date — a trial in which the two remaining defendants are Trump companies controlled by the former president. 

Allen Weisselberg, the longtime CFO of the Trump Organization, pleaded to all 15 charges against him. He admitted to participating in a lengthy conspiracy in which he and other Trump company executives received millions of dollars of employment compensation hidden as untaxed perks, such as rent and utility payments for a swanky Manhattan apartment, luxury cars, and private school tuition. Both the executives and the companies benefitted financially from the scheme as they did not pay the requisite state or federal taxes on this compensation. 

The plea agreement does not follow the form routinely used for the DA’s plea or cooperation agreements. In fact, there isn’t even a written plea agreement; the terms were just orally articulated to the court at the plea hearing. The terms are equally bespoke, befitting the unique circumstances of this case, with plusses and minuses for both sides. 

Weisselberg got advantages out of the deal: He capped his sentencing exposure to 5 months in jail and was not required to fully cooperate, which would have meant disclosing all crimes he knows about, including his own and that of the former president. And although a 5-month sentence is within the heartland of sentences for a first-time tax offender — for someone who pleads guilty before trial and is 75-years old — the plea helped avoid the distinct risk that the court would have deviated from that norm in this high-profile case.

Bragg got a lot as well from the deal — and potentially a lot more than is visible now. At the most basic level, Bragg avoided the risk of trial and got a conviction on every single count of the indictment, with Weisselberg agreeing under oath to the veracity of all the allegations in the indictment against him and the Trump entities. And while a 5-month prison term even in Rikers Island is entirely unfair when compared to sentences handed out to non-economic crimes and non-white collar criminals, that inequity is pervasive in the courts, both state and federal, in sentencing rich, white executives (I personally saw it at play repeatedly in the Enron prosecutions). Here the state judge was reported to have signaled that he was going to follow this standard practice. But Bragg guaranteed that the 5-month term would be available to Weisselberg only if he was truthful in the upcoming trial and repaid all the money he owed as a result of the scheme. To make sure Weisselberg fulfilled these obligations before he got the benefit of the 5-month deal, Bragg made sure that sentencing be after the trial.

Bragg also greatly augmented the proof against the Trump entities in the upcoming trial. 

Under the state’s accessorial liability law, Weisselberg’s actions and intent as a “high managerial” employee are imputed to the Trump entities, unless the companies in essence can prove that Weisselberg lied in his plea and is not guilty – a steep hill to climb given the extensive proof in the case. But the defense runs a risk going down that path: it might win the battle but lose the war. If it establishes Weisselberg lied at the plea or at trial, it may help the Trump entities on trial, but then the judge could very well throw the book at Weisselberg at sentencing (which the court pointedly noted it could do if Weisselberg breaches any of the plea conditions) and he thereafter could easily flip on Trump. Thus, in spite of what appears to be bravado by the Trump organizations claiming on the day Weisselberg pleaded that they did nothing wrong, it is by no means clear they will go to trial, nor risk the damning daily drip of Trump-related financial shenanigans in the press just weeks before the midterms. In short, they too may decide to plead guilty.

On closer inspection, Bragg got even more from last week’s plea. Assuming Weisselberg is asked about Trump at the trial (a fair assumption since, among other reasons, the former president’s conduct can result in criminal liability for the Trump entities), it would be exceedingly difficult for Weisselberg to avoid implicating Trump. He would have to contend credibly that although Trump was a beneficiary of the tax scheme, and signed some of the pertinent checks, at no point during the 15-year scheme was Trump aware of any of the off-book executive compensation and that his companies and executives were not paying the necessary taxes on that compensation. In a small outfit like the Trump Organization, and with Trump’s penchant for micro-managing, that seems far-fetched. And as Weisselberg is represented by competent and ethical counsel, the DA can be assured they will strongly advise Weisselberg that he risks spending the remainder of his life in jail if he lies at the trial. That jail time will commence, by agreement of the parties, upon the conclusion of the October trial.

In addition to potentially gaining whatever evidence Weisselberg may provide about the former president at the upcoming trial, Bragg may well have something else up his sleeve to induce Weisselberg and others to cooperate fully, namely a whole new set of charges against Trump executives, including Weisselberg. 

The current indictment on its face seemed to augur such action: its description of the scheme implicates many more individuals than Weisselberg, as other executives were the personal beneficiaries of the very same scheme (the indictment, per established protocol, does not identify those individuals by name, as they were not charged at the time). So additional charges always seemed a strong possibility. A sign that that may finally be in the works is another unusual part of the bespoke agreement between Weisselberg and Bragg. A typical plea agreement in a situation like this provides some level of repose for a defendant — that is, protection that the prosecution won’t just turn around the next day and prosecute him for additional crimes. Thus, plea agreements typically include language that provides such protection, such as the defendant will not be prosecuted for “any crimes disclosed to the office” or “any crimes committed during the defendant’s time working at the company.” But the agreement with Weisselberg provides no protection whatsoever – not one word. Given Weisselberg’s experienced array of defense counsel, that is no oversight. Could the defense have taken the risk that no such charges would be forthcoming? For sure. But given what had to be the unwillingness of the DA to provide such protection, it is at least as likely that Bragg is awaiting the conclusion of the upcoming trial and Weisselberg’s incarceration on the current charges to bring a second set of charges. Bragg’s team could conclude that nothing would focus the mind of the 75-year-old Weisselberg like being incarcerated in Rikers and facing a whole new set of charges. Only time will tell, but if I were a betting man, that is what I would put my money on.

* * *

Fairly or unfairly, Bragg, like Attorney General Merrick Garland, is going to be judged by history in how he handles this singular investigation. So far, like his federal counterpart, he has played it by the book. And he appears to have been at least as aggressive as Garland: after all, the scheme to which Weisselberg pleaded guilty involved both state and federal tax crimes, yet only Bragg has to date prosecuted those offenses — there is remarkably no sign, in spite of Weisselberg’s explicit admission that he violated federal tax laws, that he, the Trump companies, or any other executives are on the federal radar screen. 

Whether Bragg will continue to prosecute aggressively and fairly remains to be seen, but for now it is certainly worth reconsidering the initial judgment concerning his work. He may well be rising to the historic moment in which he finds himself, and demonstrating the backbone, temperament, and principles necessary to the task at hand.

The post The Curious Case of Alvin Bragg — Reconsidering the DA’s Trump investigation appeared first on Just Security.

The provision reads:

Your client agrees not to accept remuneration or compensation of any sort, directly or indirectly, for the dissemination through any means, including but not limited to books, articles, speeches, blogs, podcasts, and interviews, however disseminated, regarding the conduct encompassed by the Statement of the Offense, or the investigation by the Office or prosecution of any criminal or civil cases against him.

Several issues arise now.

One legal issue is whether the presidential pardon Manafort received voids this provision in the plea agreement. The answer to that question is surely no. The plea agreement is a contract between the Department of Justice and Manafort, which can be specifically enforced. The pardon did not purport to address this provision, any more than the forfeitures Manafort agreed to in the agreement (which the Department of Justice continues to enforce, albeit only partially).

A second issue is whether Manafort has been paid directly or indirectly by his publisher (or any other party) for the book, for without that there is no violation of the plea agreement. This issue is one that the Department of Justice can readily resolve through a phone call to the publisher.

The remaining issue is whether the Department will in fact take any action — it has of course the discretion not to, in the same way that the Department chose not to seek to enforce the full forfeiture provisions set out in the plea agreement. But the issues that may have animated that forfeiture decision are different than those at issue here: whether defendants should be permitted to profit from their illegal actions? The Department can seek enforcement of this provision of the plea agreement and disgorge or attach any payments. The Department has another harsher remedy other than specific performance. If Manafort breaches the plea agreement by accepting remuneration for his book, he can be prosecuted for the crimes for which he was not pardoned – the pardon was narrow and only covered crimes Manafort was convicted and sentenced for, leaving a host of other criminal charges extant.  And the court already has found that Manafort breached his plea agreement (when he lied to the government after he pleaded guilty), so this in just an additional breach and justification for government action.

As an aside: it appears, from the detailed description of his book, that Manafort is borrowing a page from Michael Flynn and is now saying that he is not guilty of the crimes for which he pleaded guilty under oath. That would amount to an admission of perjury and intentional false statements – since Manafort told the Special Counsel’s Office and the court that he had in fact committed these crimes.

Time will tell how the Department resolves these issues.

The post Paul Manafort’s Book Deal May Breach His Plea Agreement appeared first on Just Security.

1. Another Avenue for Obtaining Weisselberg’s Testimony

Q: Andrew, if Weisselberg does not cooperate now, is there any other means for a prosecutor to obtain his testimony?

A: Yes there is.  After Weisselberg is prosecuted — whether he is convicted or acquitted — the prosecution can put him in the grand jury and compel him to testify.  He then would have to choose what to do.  He could tell the truth, he could lie and hope that the government does not have sufficient proof to prosecute him, or he could refuse to testify — which is itself a crime and he could go to jail for that in addition to any other jail sentence he may be serving.

The downside for the government in this approach is it can take time.  If Weisselberg were to plead guilty relatively soon, that would not be too much of an issue, but if were to go to trial, it could take literally years before the government was able to put him in the grand jury, and the government may not have that time, because the statute of limitations may run on the charges it is investigating.

We used this technique in organized crime cases and in Enron — I remember one case involving a Genovese Family defendant who pleaded guilty to a scheme to steal (successfully) a million dollars from Seton Hall University.  We wanted to go up the chain and prosecute his captain, Louis “Dome” Pacella.  So we put the associate who had pleaded guilty in the grand jury.  He ended up just cooperating at that point, telling us “I was willing to do my time for the crime, but I don’t want to do his time as well!”

In a case closer to home, we did the same thing with a senior Enron executive, Ben Glisan, after he pleaded guilty.  He ended up cooperating too, since he figured better to get credit for truthful testimony than to risk lying in the grand jury.  He was one of our best witnesses.  I also wrote about this technique in a NYT op ed, regarding Roger Stone and how even after he was pardoned he could be put in the GJ to get at the truth of who he had lied for.

Q: But would Weisselberg be able to claim that he still risks criminal exposure for other financial crimes under federal, state, or local law? (A similar issue arose in the discussion on the SistersInLaw podcast.)

A: Yes, often people retain a residual fifth amendment privilege for some federal or state criminal liability, and that is why in those cases you would immunize the person by obtaining an immunity order.  But once the person has gone to trial and been convicted or acquitted, the calculus a prosecutor undertakes in deciding whether to immunize someone changes dramatically, because they have already been charged with the crimes you know about and presumably are going to ask them about.  You are not risking immunizing someone for an unknown murder, for instance.

Q: Do you think this avenue for obtaining Weisselberg’s testimony may help explain the prosecutors’ decision to indict him now on these charges?

A: That may have been in the back of their minds as a collateral potential benefit, but I doubt it was the motivating factor.  I suspect the reason the charges were brought now was to focus his mind and his eminent counsels’ minds on the reality of the charges, with the extraordinary detail of those 15 charges.  I suspect he had been given a date by which they wanted to know if he would cooperate and when he said no, they had to go forward to show they were serious and not bluffing.

2. Leverage Over Weisselberg’s Family

Q: One of the greatest points of leverage prosecutors can have in trying to flip a holdout is the criminal exposure of the individual’s family members. In Weisselberg’s case, the CFO may be willing to risk jail time out of loyalty and financial connections to Trump – but it may be a very different calculation when it comes to his wife and son facing the prospect of jail.  What is your take?

A: The Indictment’s references to Weisselberg’s family sends a signal to Weisselberg that prosecutors are willing to pursue them as well.  And it also serves to show Weisselberg that they may face legal jeopardy regardless of whether Weisselberg cooperates.  In other words, Weisselberg may be loyal to Trump and to his own family, but that loyalty may lessen if he sees that everyone is going down anyway, and that he can save himself and potentially seek a favorable deal for his family members, to the extent they face criminal exposure as well.  Remember, if Weisselberg cooperates he will need to divulge all the incriminating information he has about his family members.  On balance, he may put them at lowest risk by cooperating with the prosecutors in exchange for securing their protection from indictment or at least lesser charges.

3. The Status of Prosecutors’ Evidence Against Trump and the Trump Organization

Q: Some legal commentators have said that if the Manhattan DA and New York Attorney General had sufficient evidence to indict Donald Trump they would have done so, and similarly if they had sufficient evidence to indict the Trump Organization for other serious crimes they would have done so.  And that this is essentially the end of the road for the Manhattan investigation, absent Weisselberg’s cooperating.  Does that ring true or do you think prosecutors may already have sufficient evidence to indict on other charges but are still building the case to strengthen their hand?

A: I think some of that is definitely true, but my guess is that not all of it is.  There is no question that the prosecutors are not in a position now to charge Trump or Weisselberg with other crimes, or I would have thought they would have done so.  But it is normal to bring charges when you have them and supersede with more as your investigation continues.

Let’s take the Manafort and Gates prosecutions in the Special Counsel investigation.  We brought the initial set of charges against both of them in October 2017.  We were interested in the cooperation of both of them, since we had a paramount interest in learning the truth about the 2016 election — and interference in it by the Russians and any complicity in it by any Americans.  Neither cooperated at that point.  We continued our investigation, pressing ahead with the existing indictment, and bringing new charges when we were ready in January 2018.  Those new charges proved to be enough to cause Gates to cooperate, even with the prospect of a presidential pardon counteracting any leverage we had as a result of the series of criminal charges.  In Manhattan, the same strategy can be at play, but of course they don’t have to worry about a federal or state pardon.

4. The Status of Prosecutors’ Evidence Against Weisselberg

Q: Some legal commentators have suggested that prosecutors would throw everything they have at Weisselberg now in order to encourage him to cooperate, and therefore the current criminal charges represent everything they presently have against the CFO.  On the other hand, prosecutors may not want to divulge to other potential defendants the full breadth of the criminal investigation and evidence at this point; and prosecutors could gradually ratchet up pressure on Weisselberg with the threat of superseding indictments.

A: The former is a reasonable assessment; I would think they would bring the strongest charges that they were ready to bring as to Weisselberg.

Q: Some have suggested that by indicting two Trump entities now that signals the end of the investigation, not the beginning.  Do you agree?

A: I don’t.  First, if that were true, and the accepted wisdom, why would the prosecutors bring those charges now? Wouldn’t they not want to signal the end of the investigation?  But more than that, we have the state actually telling the court at the arraignment on the indictment that it needed a protective order delaying discovery to the three defendants (one individual and two entities) because of the ongoing investigation, and I believe that was granted, unopposed.  And I was struck that there already is a noticeable split in the defense — few have commented on the fact that Weisselberg’s lawyers did not appear at a joint press conference with the Trump entities’ lawyers, and Weisselberg’s lawyers did not disparage the state in any way, which to me is a clear sign that they are keeping their options open to cooperate (such public bashing would be cross-examination fodder against their client if he eventually cooperates).  So Weisselberg’s defense team, I think, clearly believes there is the prospect of more to come.

Then of course there is the indictment itself: the charges are just too detailed, and allege a scheme over so many years, involving so many people, and so many entities, that it is hard for me to see this being the end.  But time will tell.

One last point: it is not at all unusual to bring corporate charges prior to the end of an investigation — we did that all the time, in the Enron investigation and at the Fraud Section — where corporate cases were our bread and butter, which is atypical of any other part of the Department of Justice whether in Washington or in the US Attorney’s Offices in the field, where corporate cases are few and far between.

5. Signaling to Other Potential Cooperators

Q: Do you see any messages in the indictment?

A: Yes, it is a speaking indictment and that is typically to send a message to the public and to potential witnesses.  I read the indictment as sending a strong signal to other potential witnesses.  The details of the indictment show that prosecutors have extraordinary visibility into the inner workings of the Trump Organization, a trove of incriminating internal records, and the real possibility that tax preparers and others are already cooperating.  The indictment gives lots of details about information the prosecution already has about the lengthy tax scheme from which it is not hard for those working at Trump organizations to know if they are in the state’s cross-hairs.

If you are a lawyer representing someone in this investigation, you have a frank conversation with your client if they face any criminal exposure about different directions they can go in, but one would be to stress the option of cooperating, trying to strike the most favorable deal now, or potentially face a criminal charge — ie being on the wrong side of the “v” in a criminal case (i.e. US v Defendant).

Image: Michael M. Santiago/Getty Images

The post How to Read the Weisselberg and Trump Entities Indictment: A Conversation with Andrew Weissmann appeared first on Just Security.

We propose the following questions for members of Congress (and the news media) to ask, and for the broader public to demand answers to as well.

1. The 9/11 attackers intended to take down the U.S. Capitol and the people inside, not just the World Trade Center and the Pentagon. Our lack of preparation for 9/11 led to the 9/11 Commission. The commission’s successful analysis, which led to a transformation of how we better defend the country, was due in large part to the level of cooperation from the Intelligence Community including the FBI Director at the time, Bob Mueller.

Do you pledge to provide full cooperation for investigations of January 6 whether by Congress or by an independent commission?

2. You said you were appalled by what happened on January 6. What precisely is the FBI doing to assess what it did right and what it did wrong in preparing for January 6? When will the public and the FBI oversight committees see a written report on your assessment?

3. During last week’s House Judiciary Committee hearing you were given multiple opportunities to acknowledge failures on the part of the FBI with respect to the January 6 attack. Instead you stated vaguely, but often, that the Bureau’s looking to improve. You said:

“You can be absolutely sure that we are asking what else we can do, what we can do better, what we can do more of” (in response to Rep. Val Demings (D-FL));

“You can be darn sure that we are going to be looking hard at how we can do better, how we can do more” (in response to Rep. Jerry Nadler (D-NY)).

That’s not actually providing information to Congress and the public. A marathon runner who beats the world record may say she’s looking for ways to do better, to do more.

January 6 was a failure on the part of several agencies, including the FBI. Why won’t you admit that and tell the public specifically what you are doing to assess the handling of January 6? Some questions need to be:

• Was it an intelligence failure?
• What intelligence did the FBI and other agencies have?
• Was it a failure to act on that intelligence?
• Did politics play any role in the failure — e.g., no one wanted to upset the then-President whose supporters were the ones coming to the Capitol at his invitation?
• Did race play any role in the failure to prepare and act, and how do the FBI’s actions leading up to and on January 6 compare to the FBI’s actions during BLM protests, where people were arrested the same day as the protests not weeks later?

How can Congress or the public trust that you are taking all steps to assess this failure if you cannot admit that you were part of a catastrophic intelligence and/or law enforcement failure? Do you agree that the FBI was part of that failure? What mistakes did the FBI make under your leadership in the run up to, and during, the attack on the Capitol?

4. If you knew before January 6 what the FBI knows now about militia group members’ conspiring to attack the Capitol, would the government have been able to thwart the attack? Why did the FBI not know this beforehand?

5. You were widely criticized for failing to make any public presentation or answer any questions from the media or Congress in the days following the attack on the Capitol. Do you regret not having done so? What was the reason for your not having done so?

6. During last week’s House Judiciary Committee hearing you said:

“You may be surprised to learn that, in fact, almost none of the individuals charged and found to be involved with the attack on the Capitol were in fact individuals who were previously under investigation.”

It sounds like you are saying the FBI did not have at least a preliminary investigation open on the Oath Keepers, Proud Boys, or Three Percenters and any members, including anyone who has been charged. Is that correct?

Isn’t that itself a failure? Why do you think it is favorable to the FBI that you did not even have a preliminary investigation open on these individuals or groups, especially given their past actions and their overtly planning to attack the Capitol? Isn’t the absence of even a preliminary investigation an indictment of the FBI?

You said, “almost none of the individuals charged and found to be involved with the attack on the Capitol were in fact individuals who were previously under investigation.”

What about the top leaders of the militia groups and others who have not (yet) been charged? Were none of them under investigation either?

Were any of the people who came to DC on January 6 on any terrorism watch list or no-fly list? See the Washington Post report that dozens of people on the terrorism watch list came to DC for January 6 events.

The FBI takes actions all the time in advance of major events that could result in violence, whether an inauguration, presidential nominating political conventions, and the like.  It takes steps to monitor and watch for violence. On January 6, every member of Congress and the Vice President of the United States were all gathered in one location — clearly an event that would require utmost security and doing everything to anticipate dangers. Why did that not happen here? That would not violate the First Amendment or FBI guidelines in the DIOG (Domestic Investigations and Operations Guide), which only prevents actions based solely on the First Amendment.

7. You lauded the fact that the FBI’s Norfolk office broke with normal protocol to send other federal agencies raw intelligence indicating a possible attack and conveyed the information in three different formats.

If the FBI thought it was important enough to do that with raw intelligence, what else did the FBI do other than simply pass on the information? Why should you get credit for doing what was required; isn’t that what we all should expect? Why did the FBI itself do with the information? And what actions, in retrospect, does the Bureau wish it had taken?

8. On Friday, Jan. 8, the head of the FBI’s Washington field office, Steven D’Antuono, said:

“There was no indication that there was anything [planned] other than First Amendment-protected activity.”

He made that statement before the public knew of the Norfolk report or of other FBI actions such as the Bureau’s disrupting the travel of specific people with intention to cause violence from coming to DC that day.

Do you acknowledge that Mr. D’Antuono’s statement was not accurate? What did you do to correct it? How was that statement vetted before it was made?

What actions do you take in your responsibilities as Director when a senior official makes a false statement on an issue of such public importance?

9. You refrained from calling the acts of January 6 an “insurrection” saying that you need to be careful about “not getting ahead of both prosecutors and judges.” But the Justice Department already called it an “insurrection,” and the federal judge accepted that description. So why don’t you?

10. In the House Judiciary Committee hearing, you were asked a direct question by Rep. Eric Swalwell (D-CA):

“Prior to January 6th did the FBI receive any tips from social media companies about threats to the Capitol?”

You equivocated in your answer and ended by saying, “I’m not aware that we had any intelligence indicating that hundreds of individuals were going to storm the Capitol itself.” The question is broader than your highly specific denial.

So, to repeat Rep. Swalwell’s question, prior to January 6th did the FBI receive any tips from social media companies about threats to the Capitol?

_______________________________________________

INFORMATION KNOWN BEFORE JANUARY 6 INDICATING VIOLENCE

On Jan. 12, 2021, the head of the FBI’s Washington field office, Steven D’Antuono stated:

“In the weeks leading up to this January 6 rally, the FBI worked internally with every FBI field office to ensure that we were looking for any intelligence that may have developed about potential violence during the rally on January 6. We developed some intelligence that a number of individuals were planning to travel to the DC area with intentions to cause violence. We immediately shared that information and action was taken as demonstrated by the arrest of Enrique Tarrio by the Metropolitan Police Department the night before the rally. Other individuals were identified in other parts of the country and their travel subsequently disrupted.”

The following is a list of some pertinent excerpts from these two timelines:

Ryan Goodman, Mari Dugas and Nicholas Tonckens, Incitement Timeline: Year of Trump’s Actions Leading to the Attack on the Capitol, Just Security, Jan. 11, 2021

Atlantic Council’s DFRLab, #StopTheSteal: Timeline of Social Media and Extremist Activities Leading to 1/6 Insurrection, Just Security, Feb. 10, 2021

April 30, 2020: Armed protestors storm the Michigan state capitol building. Two of the protestors are eventually charged in the attempted kidnapping of Governor Gretchen Whitmer (see entry for Oct. 7, 2020).

The New York Times reports that one of the protestors carried a sign that read, “Tyrants Get the Rope,” and another carried an American flag that had a doll made to look like Ms. Whitmer hanging from it.

May 1, 2020: Trump tweets in favor of the Michigan protestors.

The president tweets: “The Governor of Michigan should give a little, and put out the fire. These are very good people, but they are angry. They want their lives back again, safely! See them, talk to them, make a deal.”

May 28, 2020: Trump retweets, with praise, a video of a supporter saying, “The only good Democrat is a dead Democrat.”

May 29, 2020: Trump tweets, in reference to riots in Minneapolis, saying, “When the looting starts, the shooting starts.”

August 31, 2020: After the police shooting of Jacob Blake, an unarmed black man in Kenosha, Wisconsin, President Trump declines to condemn white nationalist-led violent protests. 

Trump expresses sympathy to 17-year old Kyle Rittenhouse, charged with shooting and killing two people, and the president suggests he may have been acting in self defense. In response to the violence in Kenosha and Portland, Oregon, Trump also says: “Well, I understand that had large numbers of people that were supporters, but that was a peaceful protest…And paint is not — and paint as a defensive mechanism, paint is not bullets. … These people, they protested peacefully. They went in very peacefully.”

In response to Trump’s failure to denounce the violence, then-candidate Biden states: “He wouldn’t even repudiate one of his supporters who is charged with murder because of his attacks on others. He is too weak, too scared of the hatred he has stirred to put an end to it.”

Later reports suggest that DHS officials were directed to make sympathetic statements toward Rittenhouse. It is unclear whether these directions originated at the White House or within the DHS press office, NBC reports.

September 23, 2020: In response to a direct question, President Trump refuses to say he will ensure a peaceful transfer of power if he loses the election.

October 07, 2020: The Justice Department indicts ring for attempting to kidnap Michigan Governor.

The Justice Department announces indictments of 13 men charged with attempting to kidnap Gretchen Whitmer, Governor of Michigan. Whitmer cites Trump statements failing to condemn white supremacists and other rhetoric is seen as a “rallying cry” for such violent groups.

Trump responds to the plot at a rally in Lansing, MI: “It was our people — my people, our people that helped her out. And then she blamed me for it. She blamed me and it was our people that helped her. I don’t get it. How did you put her there?” (The crowd chants “lock her up” at the rally in response).

Trump tweets, “I do not tolerate ANY extreme violence. Defending ALL Americans, even those who oppose and attack me, is what I will always do as your President! Governor Whitmer—open up your state, open up your schools, and open up your churches!”

November 1, 2020: President Trump praises supporters who, with their cars, swarm a Biden campaign bus traveling between San Antonio and Texas.

A Biden campaign spokesperson says the vehicles “attempted to slow the bus down and run it off the road,” and that following the incident an event at the Texas AFL-CIO was canceled out of an “abundance of caution.”

“Did you see the way our people were protecting his bus?” Trump boasts at a frigid rally in Washington, Mich., hours after tweeting a video of the caravan with the message: “I LOVE TEXAS.” “They had hundreds of cars. Trump. Trump. Trump, and the American flag.”

“These patriots did nothing wrong,” he tweets in response to news the FBI is investigating the caravan.

December 1, 2020: Gabriel Sterling, a Republican election official in Georgia, implores Trump in a passionate viral speech:

“Stop inspiring people to commit potential acts of violence. Someone is going to get shot, someone is going to get killed. And it’s not right.”

December 6, 2020: Armed protestors arrive at the home of Michigan Secretary of State, Jocelyn Benson, threatening violence after the results of the election.

December 8, 2020: The official Twitter account of the Arizona GOP asks supporters whether they are willing to die for President Trump.

In response to a Stop the Steal tweet saying “I am willing to give my life for this fight,” the Arizona GOP tweets, “He is. Are you?” The GOP account also tweets a clip of the 2008 movie “Rambo,” as the character proclaims, “This is what we do, who we are. Live for nothing, or die for something.” After public criticism, both tweets are deleted.

December 9, 2020: “I believe there will be violence in our streets soon.” Lin Wood predicts during an interview on the pro-Trump TV station, New Tang Dynasty Television.

December 12, 2020: “Stop the Steal” rallies occur across the country and turn violent; President Trump expresses his support for his supporters’ participation in the rallies.

December 19, 2020: Trump begins to rally support around a large gathering of his supporters in Washington D.C. on January 6th, immediately following the Senate elections in Georgia and coinciding with Congress’ certification of President-elect Biden’s victory. 

Trump tweets: “Statistically impossible to have lost the 2020 Election” and “Big protest in DC on January 6th. Be there, will be wild!”

December 21, 2020: Rep. Madison Cawthorn (R-NC) tells attendees at a Turning Point USA rally to “call your congressman and feel free — you can lightly threaten them.”

December 29, 2021: The Proud Boys announce they will attend the January 6 event, saying they will do so “incognito.”

The statement is widely reported including in conservative news outlets (e.g., Fox News; Washington Times).

January 1, 2021: Momentum builds for the January 6th rally, with increased calls for violence by Trump supporters.

Trump himself tweets, “The BIG Protest Rally in Washington, D.C. will take place at 11:00 A.M. on January 6th. Locational details to follow. StopTheSteal!”

He also retweets Kylie Jane Kremer, chair of Women for America First, an organizer of the rally. “The calvary[sic] is coming, Mr. President! JANUARY 6th,” Kremer had tweeted on Dec. 19. The President responds, “A great honor!” in his retweet on New Years Day.

Rep. Louie Gohmert (R-TX) says on Newsmax that as a consequence of the dismissal of his lawsuit enjoining Mike Pence to overturn the election results, “you got to go to the streets and be as violent as Antifa and BLM.” The following day, Gohmert tweets a statement saying that he does not advocate violence.

January 4, 2021: 

January 4, 2021 evening: On the eve of the two-days of events in DC, Proud Boys leader Enrique Tarrio is arrested in Washington D.C., as President Trump and Donald Trump Jr. call for supporters to “fight like hell.”

Proud Boys leader Enrique Tarrio is arrested in Washington D.C. for burning a Black Lives Matter banner that he had taken from a Black church during December’s Stop the Steal rallies. He is found to be in possession of two high capacity firearm magazines, and he is charged for their possession.

At a pre-election rally in Georgia, Donald Trump, Jr., introducing his father, tells the crowd, “We need to fight.” President Trump then takes the stage, telling supporters, “They’re not taking this White House. We’re going to fight like hell.”

.

The post Questions for FBI Director Wray About the January 6 Attack appeared first on Just Security.

Former President Donald Trump issued numerous pardons and commutations to friends, family and associates, as well as felons who engaged in heinous crimes involving war crimes, murder, political corruption, and civil rights violations. He seemed to revel in absolving corrupt politicians, corrupt law enforcement officers, and of course, anyone prosecuted by Robert Mueller’s Special Counsel Office. The latter served not just to reward those who refused to cooperate with this Special Counsel, but also undermined future Special Counsel investigations by setting a dangerous precedent for future efforts to conduct such independent investigations, and to hold a corrupt president to the rule of law.

In issuing his pardons, Trump, true to form, followed no process. He did not seek to identify those most worthy of the use of the clemency process. Instead, his abuse of this constitutional power has led many to deplore the expansive executive authority, although it can be a means of meting out justice when wielded impartially and even-handedly to the most deserving after due consideration of the interests of numerous parties.

But there is good news. If the Biden administration’s Department of Justice wants to rectify some of Trump’s abuse of the pardon power, there are now options at its disposal.

Some of the pardons Trump issued were exceedingly broad, such as that given his National Security Advisor Michael Flynn, who admitted in federal court when he pleaded guilty that he had lied to the government about his conversations with the Russian Ambassador to the United States, but then later claimed he had lied — this time to the court — when he swore that he was guilty. Flynn’s pardon (on Nov. 25, 2020) covers most any crime one can imagine, clearly seeking to leave no room for now holding Flynn to account for his past felonious conduct.[1]

But, oddly, 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.

In Manafort’s case there are also equitable reasons to take such a step now; he served just two years of his 90-month sentence, and his release on home confinement (prior to the pardon) due to the COVID virus, did not comply with the Bureau of Prison rules as he had not served the requisite percentage of his prison sentence (i.e. before he received an undue pardon from Trump, he received a release from prison that others similarly situated did not receive). And the pardon itself rewarded not just decades of substantial criminal activity, but also rewarded Manafort for keeping his lips sealed and lying to the Special Counsel about important topics. These topics include why he passed internal Trump campaign polling data to a Russian spy and why he met with that spy both during the campaign and after Trump took office. Reimposing appropriate punishment — one imposed by two courts —is thus not only fair in a system wedded to the rule of law, but may increase the chance of finally learning the truth.

Manafort is not the only example of narrow Trump pardons that may be rectified by the incoming Attorney General. The same narrow pardons were provided to Special Counsel Office defendants Roger Stone (Dec. 23, 2020), George Papadopoulos (Dec. 22, 2020), and Alex van den Zwaan (Dec. 22, 2020), as well as the myriad other felons who received pardons or commutations on December 22 and 23, 2020. As noted, these defendants include murderers, corrupt politicians and law enforcement officers, and Philip Esformes, the single largest health care fraudster in history. These windows of opportunity are due in significant part to a practice followed by prosecutors’ offices across the country: permitting defendants to plead to some, but not all, of their crimes. That feature of these cases should now redound to the benefit of the government, as it may now permit the Department to see that justice is done.

A responsible Department of Justice should determine for each such defendant whether, like Manafort, there is sufficient evidence to support charges other than those for which the felon was convicted, and whether such charges are warranted under the circumstances. Such an examination is particularly appropriate given that there is reason to believe that the Department of Justice never had an opportunity to weigh in on these pardons before Trump issued them.

Many may wonder what the reason is for the striking difference between the sweeping Flynn pardon in November and the narrow pardons issued on December 22-23, 2020. Was it by design or an oversight? Is this an example of what some noted about the Trump administration: malevolence, fortunately matched by incompetence? Or did lawyers in the White House Counsel’s office seek to advance only the narrowest pardons possible, so as not to exacerbate Trump’s abuse of his office? Regardless of the answer, which may never be known, the narrow pardons leave the Biden administration ample room to stand for the rule of law.

POSTSCRIPT BY AUTHOR ON PARDON FOR STEPHEN BANNON

On the last day of his presidency, Trump issued a pardon to Steve Bannon, who was under indictment in federal court in New York, and was awaiting trial. The pardon has similar flaws as that noted above: it applies to the pending “offenses charged,” and not the underlying conduct, as it pardons Bannon for the specific counts charged.  It also pardons crimes that could be charged for the underlying conduct under chapter 95 of title 18 of the United States Code (basically racketeering type charges).  But that clearly leaves — unpardoned — numerous potential federal charges, such as mail and wire fraud. It is rare that a prosecutor charges all such counts that could be charged, as it would overwhelm a jury and is unnecessary to increasing a sentence upon conviction. (In Enron, for instance, we could have charged hundreds of such charges against certain participants, but we opted to charge representative examples.)

It is thus highly likely that local federal prosecutors will be scouring their evidence to determine what other charges can be brought. The decision about whether to charge these new counts, however, is relatively easy, if there is sufficient evidence, since the decision about whether this defendant should be charged with in connection with the conduct at issue had already been answered in the affirmative. Finally, whether or not the federal authorities take this step, the state prosecutors are free to charge this scheme under New York law, for which a pardon has no effect.

[1] Flynn’s pardon covers “any and all possible offenses arising from the facts” in his Criminal Information and Statement of Offense, “any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel” and “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel.”

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How do we investigate allegations of wrongdoing by a sitting president? That question has been answered in the United States and abroad in various ways. Surprisingly, though, after the conclusion of the Special Counsel investigation in March 2019, there has been a dearth of discussion in both the press and the academy of whether our current system for investigating possible wrongdoing within the White House works appropriately. The Special Counsel investigation and Attorney General William Barr’s manipulation of the findings in its voluminous report gives us important new data to reassess the current rules so they can better govern such investigations in the future.

I was a senior member of the Special Counsel investigation and had a front row seat as to how the current rules worked and their deficiencies. To be sure, Barr’s conduct after we submitted our report proves why a special counsel was necessary in the first place—how crucial it is for the government to have a mechanism for independently investigating allegations of criminality by the president. But that conduct also exposes why the current mechanisms are not nearly strong enough.

Barr’s disregard for the facts and attempted erasure of our findings and court cases makes plain the need for stronger special counsel rules, and better safeguards to keep a special counsel’s work from being inappropriately undermined by those in power. This is just one important illustration of how the Trump presidency has uncovered numerous ways in which the system of checks and balances is flawed; how it is norms, and not laws, that stand between democracy and autocracy.

A Short History

The question of who should investigate criminality in the White House is a thorny one and a brief history is useful, albeit at a 60,000-foot level. The Department of Justice, which is overseen by the president, has an inherent conflict. Its leader, the attorney general, as well as many of its officials, are appointed by the president, and thus the public cannot be confident that an investigation overseen by them will not be tainted, consciously or unconsciously, by bias. At the time of Watergate, the government relied on a special prosecutor system, which operated within the Department of Justice. The country was fortunate to have Archibald Cox initially selected, but that was not part of a systemic design.  Indeed, the system was revealed as too vulnerable to the abuse of presidential power when, during the Saturday Night Massacre, President Nixon directed the firing of the special prosecutor, and leaders of the Department of Justice nobly resigned rather than carry out the order.

As a result, Congress established the independent counsel system, which provided an investigation broader independence by placing the prosecutor outside of the direct oversight of the Department of Justice. Under the independent counsel system, the prosecutor was not subject to internal DOJ rules.  For instance, such an investigation would not be bound by the Department’s internal policy that a sitting president cannot be indicted (the issue could then be decided by the courts). Nor would an independent counsel need to obtain internal DOJ sign off before bringing charges, as Special Counsel Mueller was required to do before bringing tax, FARA, and other national security charges.

But this solution had its own imperfections, as the Ken Starr investigation of President Bill Clinton reflected. The independent counsel law was seen as an overcorrection: The instinct to keep an investigation unfettered by executive branch oversight left insufficient checks on an independent counsel who ran amok, investigating for years and straying far beyond his initial mandate. The Starr investigation was seen as a lesson as to what could result if the DOJ lacked authority to impose appropriate limits. As a result, the congressional statutory approach as to how to address such investigations lapsed.

The Current System

The current internal DOJ special counsel rules were a reaction to the perceived overcorrection of the Ken Starr period—a further refinement of the system. But these new limitations have left the goal of independence fallible, once again. As the recent experience shows, the special counsel’s work can be overpowered by the actors it is designed to hold to account.

To begin, there is the question of how one uses the recent experience to assess the current rules. It is true that the current administration, including the Attorney General, is anything but typical. The president, for instance, has openly sought the indictment of his political opponents, and his attorney general has given favorable treatment to presidential allies and heightened scrutiny to his enemies.  This is not a normal situation in America; its scope and boldness is unlike anything we’ve faced in modern times.

Should the special counsel rules take into account how they work in such an anomalous and extreme situation? I think so. The risk from such a situation, namely, that we would devolve into a banana republic, is so serious that our rules must take the magnitude of the potential consequences into account.  And they must recognize that future special counsels may well be challenged even more aggressively, now that Trump’s playbook has proven effective.  This may be particularly true when either chamber of Congress is controlled by the same party as the White House rendering the impeachment guardrail largely toothless.

It is quite debatable whether a stronger set of internal DOJ special counsel rules would be sufficient to deal with such a president, Attorney General, and Congress. Still, better rules can only help. If another special counsel were appointed tomorrow, he or she would be subject to the same difficulties and vulnerabilities that we faced. Individual special counsels might overcome such structural challenges while others may succumb, but there is no reason future generations should be required to overcome imperfect rules. The lessons from the recent special counsel’s investigation behoove us to adopt rules and structures that increase the odds for an independent investigation and successful fact-finding.

Proposals for Reform

The proposals for reform noted herein – as well as other ideas to deal with the challenges we faced due to the president’s power to fire the Special Counsel and to dangle pardons to thwart cooperation by witnesses — are an effort to start the conversation about the lessons learned, just as the current special counsel rules sought to improve upon those of the independent counsel.

The current special counsel rules do not well serve the goal of transparency and public education. Part of the reason the president and his enablers could spin the report was that the rules left the playing field open for them to do so, and they took advantage of it.  The situation was made possible because the special counsel rules were put in place to thwart the excesses of the independent counsel law—the Starr investigation, which resulted in a four-year investigation that began as a political corruption investigation (for which it concluded there was no evidence) and ended in a salacious public report and testimony by the independent counsel about perjury concerning an extramarital liaison. The special counsel rules were intended to prevent that public airing of investigative findings. As an internal Justice Department employee, Mueller could not unilaterally decide to take to the airwaves or even release the report of his findings—that could be done only by or with the approval of the attorney general. The disadvantages of a Starr-type report, however, do not warrant the risks posed by the current restrictions.

A key problem with the system now in place centers on a disconnect between the mission described and authorized by the special counsel rules and the public’s understanding of the special counsel mandate. The special counsel rules imagine that a criminal investigation will be done in secret and result only in an internal Justice Department report in which the special counsel makes private recommendations to the attorney general about its charging determinations: who to charge with a crime, who not to charge, and why. These regulations do not contemplate a public report assessing the facts the special counsel has gathered and making prescriptions for the future. The rules do not even require a fulsome written report.

However, it was always clear in our particular case, given intense public interest in the questions we set out to answer, that the attorney general would need to make our report public (except for redactions for ongoing investigations, classified information, and the like). Indeed, that issue weighed heavily in Attorney General Barr’s confirmation hearings. And so the role of the special counsel diverged from what was contemplated by the rules. And the public understandably believed that we would operate as an independent fact-finding body, akin to the bipartisan 9/11 Commission, which issued a superb report explaining how the 9/11 terrorist attacks had been allowed to happen and drawing specific recommendations to prevent future attacks.

When I read our report now, I see a document caught in the tension between our stated and de facto missions. In part, the report reads as a highly legalistic internal Justice Department document, akin to the scrupulously detailed prosecution memoranda prepared by prosecutors before bringing an indictment. At the same time, it is addressed to the American people—a public accounting of the facts we uncovered. Ultimately, the report does not serve either purpose adequately, reflecting a flaw in the way the system has been designed.

This must be corrected. The special counsel rules should state clearly what is expected from a special counsel’s report, and who its actual audience is, so as not to confront another special counsel with such a dilemma. The current rules provide solely for a private report to the attorney general, but they should be revised to make clear that the report will be made public, and that it must include an assessment of the facts and, where appropriate, propose remedial measures. (The bipartisan Senate Intelligence Committee report in August 2020 did just that; for instance, it recommended closing a deleterious loophole in the Foreign Agents Registration Act that foreign governments can use to skirt disclosure requirements). New regulations should resolve the tension that the Special Counsel confronted by requiring the report to make a public finding—to say whether the president has committed a crime even if she may not be indicted until she is out of office. That temporary immunity may not even exist under the law, after all, and the very purpose of appointing a special counsel should be to provide the public with an objective assessment of the facts.

Moreover, the department’s general policy of not publicly accusing someone of wrongdoing unless they have been formally charged is not fully applicable to wrongdoing by the president. If the court eventually considers the question and finds that a president in fact can be indicted while in office, the concern evaporates almost entirely; that is, a report can conclude that the president committed a crime and charges can be lodged immediately. Conversely, if the court finds that the president does have temporary immunity, her day in criminal court will simply be delayed until she is out of office (a comparable situation arises, for instance, when the department publicly indicts a defendant who is beyond the jurisdiction of the court). During that temporary immunity, the president could use her unique bully pulpit to defend herself publicly—a privilege that a normal defendant does not enjoy – or in an impeachment hearing.

Beyond that, there are other reforms that should be made in light of our experience. Currently, only the attorney general (or acting attorney general) can appoint a special counsel. This is an insufficient trigger. Imagine the situation where you have a lawbreaking president who has installed an attorney general who, rather than honor her role as a defender of justice for all the people, views herself as the president’s personal defender. The appointment power should be expanded to include two other institutions, provided that the same thresholds to warrant any appointment of a special counsel are met. First, if the matter to be investigated deals with national security, the director of national intelligence—the head of the Intelligence Community—should be able to appoint a special counsel. The current special counsel rules were established prior to 9/11; they were not written with the prospect of a national security investigation (whether a criminal or counterintelligence investigation) overseen by the DNI. But that is not the world we inhabit now. America may continue to face national security issues that require investigation of the executive branch, just as the question of Russian interference in the 2016 election did. Permitting the DNI to appoint a special counsel would provide another opportunity to obtain an independent investigation into such a matter.

Of course, the DNI could be under the thumb of the president as much as the attorney general. Congress should also be able to appoint a special counsel—with limitations. Congress can already hold hearings and conduct investigations (although with fewer tools than the Justice Department). The power to appoint a special counsel should not, therefore, measurably increase the power it currently has. Having this congressional safety valve would strengthen our checks and balances in instances when the executive branch is unwilling to take action. A congressionally-appointed special counsel should not have the power to bring indictments, which is an executive branch function (and it is doubtful whether the courts would permit Congress to have such power, in any event). But a congressionally-appointed special counsel should have the power to refer matters to federal or state criminal and civil enforcement authorities. The ability to charge those who lie to the investigators (so-called process crimes), as well as to bring other charges necessary to obtain cooperation with the investigation, is indispensable to successful fact-finding. By specifically granting the ability to refer matters to state authorities, the rules would help to shelter the investigative process from executive power—or abuse of power, including the president’s ability to pardon her way out of federal criminal trouble.

Other reforms should include providing a full, unredacted report simultaneously to the attorney general, to the oversight committees in Congress, and, if assessing a national security matter, to the director of national intelligence. The country cannot afford another Barr “summary” letter—or any other future attempts to pervert the findings of such a report before it reaches other hands. The underlying evidence obtained in a special counsel’s investigation should also be made available to each body, so that the executive branch cannot stonewall to keep it from Congress (grand jury secrecy rules already permit sharing of information with numerous parties, and could explicitly provide that sharing applies as well to special counsel material). A salutary effect of such disclosure is that each body would have the ability to assess for itself the work and judgments of the special counsel, thus holding the special counsel’s investigation to greater accountability and transparency.

There are many other problems to tackle – how the pardon power is wielded by the President, the legality of dangling pardons to thwart cooperation, the president’s speaking publicly about ongoing criminal cases in ways that would be prohibited by an individual DOJ attorney under local gag rules to assure a fair trial, the dismissal or undermining of cases after the conclusion of a special counsel investigation – to name just a few. But this short essay is intended to begin an important conversation on these issues.

How we uphold the rule of law so that wrongdoing by the president and senior executives can be rooted out is a central challenge posed by our recent history. If not taken seriously, it threatens to undermine our democracy from within. What we do next, or choose not to do, will either repair that damage or tacitly allow the continued corrosion of our ideals.

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