Yeomans Work

Looking Forward, 2018

January 9, 2018

Before I could begin this reflective look forward into 2018, the year exploded with tweets about the size of nuclear buttons, demands for prosecution of political opponents, new revelations of attempts to obstruct justice, and Fire and Fury everywhere. But, I’m still going to try.

I start with the caveat that predicting the future has become even more difficult in the era of an irrational president, a Republican party untethered from truth, and a special counsel who actually knows how to keep a secret and spring a surprise (George Papadopoulos!). That said, based on facts we now know, the following series of posts will – without attempting a comprehensive recounting of all of the evidence — discuss some key topics and what to look for. I’ll begin with the Russia investigation in the Department of Justice before moving on to Congress, the White House, and the 2018 election in future posts. In brief, although 2017 was chaotic, frightening, historic, and lightning-paced, it was only an appetizer for 2018.

Russia Investigation

Indictments and further guilty pleas should come early in the year. Investigations generate their own schedules as investigators follow leads that lead to further leads. There comes a point, however, where the exhaustion of leads and accumulation of evidence dictates action. Reporting, leaks, public filings, statements, and the panic emanating from the White House suggest Mueller is approaching that point regarding charges involving collusion and conspiracy to obstruct justice. We know less about Mueller’s progress investigating money laundering and other financial irregularities.

Despite Trump’s repeated tweets to the contrary, his campaign’s collusion with the Russian government to promote his candidacy and disparage Hillary Clinton’s is a matter of public record that we can be fairly certain is supported by a substantial confidential record.

The growing account of Trump’s and his associates’ contacts with Russia begins with numerous Russian investments in Trump properties, a beauty contest in Moscow, an effort to secure a deal to build a Trump tower in Moscow during the campaign, and somewhat shrouded but increasingly visible contacts by George Papadopoulos and Carter Page with Russians on behalf of the campaign. We know that Russians enticed Papadopoulos with word that they possessed hacked Democratic emails before the victims knew they had been stolen. Papadopoulos’s drunken boast to the Australian ambassador to Great Britain triggered the FBI’s counterintelligence investigation into the Russian attack on the election. Papadopoulos most certainly shared this same information with his superiors in the Trump campaign, who, unlike the Australian ambassador, did not report it to the FBI. Rather, the campaign eagerly embraced the offer of Russian assistance through Trump Jr., who agreed to a meeting (also attended by Jared Kushner and Paul Manafort and now labeled “treasonous” by Steve Bannon) in Trump Tower with Russian operatives. Trump Jr. expressed his eagerness to get their dirt on Hillary Clinton. Most likely, Trump Sr. was aware of the meeting and met the participants. Trump, himself, repeatedly and publicly embraced the release of emails stolen by the Russians. It also seems possible — though there is not yet as much public evidence — that the campaign, through Cambridge Analytica, its data firm, collaborated with the Russians in targeting cyber interference in the election. The big remaining question is what laws these contacts may have broken. The possibilities include campaign finance violations and computer crimes.

Regarding money laundering and other financial crimes, there is a clear pattern and motive. Trump Jr. famously said a decade ago that a substantial portion of the Trump business’s money came from Russia. There is a history of Trump sales of property for inflated prices to Russian oligarchs. Kushner has been scrambling to find funds for the billion-dollar balloon payment coming due soon on the property at 666 5th Avenue and reportedly met during the transition with at least one Russian banker. Mueller hired prosecutors experienced in financial crimes and reports suggest that his team has subpoenaed information from international banking institutions.

The publicly-known evidence that Trump and others obstructed justice is powerful and growing. Trump confessed publicly that he fired Comey because of the Russia investigation. The confession is buttressed by a substantial mound of circumstantial evidence showing that Trump acted with corrupt intent to block the investigation. It includes Trump’s clumsy effort to extract an oath of loyalty from Comey and his “suggestion” to Comey that he drop the investigation of Michael Flynn. Indeed, Trump’s eagerness to protect Flynn suggests that Trump at the very least knew about Flynn’s call to Russian Ambassador Kislyak to discuss lifting sanctions at the time, and may have instructed Flynn to contact Kislyak. The evidence of obstruction also includes the irregular circumstances surrounding Comey’s firing, including the drafting of conflicting memos in the White House and Department of Justice and Trump’s changing explanations for the firing. The mound of circumstantial evidence grew recently with the emergence of details about Trump’s role in drafting a false statement about the Trump Jr. meeting in Trump Tower with Russians and his efforts to dissuade Sessions from recusing himself from the investigation.

Who will be indicted? Most likely, not Trump. The ultimate decision rests with Deputy Attorney General Rod Rosenstein, who has the authority to disapprove Mueller’s recommendations. Rosenstein, doubtless, will feel bound by the legal opinions of the Department of Justice’s Office of Legal Counsel, which preclude indictment of a sitting president. Mueller will send his report to Congress.

That leaves Trump Jr. and Kushner as the next obvious candidates. Trump Jr.’s primary defense – other than false denials – is that he was too ignorant to know any better. Given Trump Jr.’s public performance, it is reasonable to suspect that he has not been fully forthcoming or honest with investigators, which would deepen his jeopardy. He has also been interviewed twice by congressional investigators.

Kushner appears central to both the collusion and obstruction inquiries and, along with Trump Sr., is the most vulnerable in the investigation of financial misconduct. Kushner’s repeated failure to file complete financial disclosure forms, while likely unlawful in itself, raises suspicion that he has things to hide. Regarding collusion, he participated in the “treasonous” meeting in Trump Tower. He also oversaw the campaign’s data operation, which would have been the most likely vehicle for collusion with Russians in targeting voters. Regarding obstruction, Kushner purportedly was with Trump on the campaign plane during the drafting of the false statement that the meeting dealt only with adoption. He was also with Trump at Trump’s Bedminster New Jersey golf club the weekend that Trump resolved to fire Comey and is reported to have urged the move.

Because investigations of large criminal enterprises generally work from the fringes toward the center, Mueller may have smaller fish to fry before he reaches Trump Jr. and Kushner, but the investigation appears headed in their direction.

Putting aside Congress for a subsequent post, two fundamental issues hang over the Mueller investigation — the fates of Attorney General Jeff Sessions and Deputy Attorney General Rosenstein. Sessions, of course, recused himself from the investigation, putting Rosenstein in charge. Trump wants desperately to fire Sessions and replace him with someone who will take back the reins from Rosenstein and tamp down, if not shut down, the investigation. That appears unlikely now, since Sessions wants to stay and has strong backing in the Senate (though his support is cracking in the House).

So, at least for now, Rosenstein is in charge. It remains a mystery why. As I’ve written before, he is an important witness in the events surrounding the firing of Comey. After meeting with Trump, he wrote the memo that Trump relied on initially to explain the firing. It is untenable for a witness in an investigation to supervise it. The possibility remains that he will have to recuse himself as the evidence develops.

Finally, Mueller will want to interview Trump. While there may be some haggling over the time, place, and length of the interview, if the grand jury issues a subpoena, Trump will have to submit or assert his Fifth Amendment privilege against self-incrimination. Given his past rejection of sound legal advice and the political consequences of taking the Fifth, odds are he will talk eventually. Once that interview is scheduled, we’ll know the investigation is nearing its most critical phase.

Sign up to get Yeomans Work in your inbox!

Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.