The Looming Presidential Pardons

Despite the frivolous lawsuits and cries that the election was “stolen,” president Trump will leave office on January 20, 2021. Almost as certain as his departure is that he will grant a flurry of pardons on his way out the door, perhaps including trying to pardon himself. Given the breadth of the pardon power, there is little that can be done about that. Such pardons, even if controversial, will almost certainly be valid – with the possible exception of a self-pardon. But despite his anticipated best efforts, Trump will not be able to completely shield his family and colleagues – or himself – from future legal liability.

Source and Scope of the Pardon Power

Article II, Section 2 of the U.S. Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This clause traces its roots to the power to grant clemency that English kings had for centuries. It’s an important part of our system of checks and balances, allowing the president to correct mistakes or perceived excesses in the justice system or simply to grant forgiveness in appropriate cases. Other than excluding impeachment, the Constitution contains no limits on this presidential power.

Although often referred to by the shorthand “pardon power,” this clause gives the president the ability to grant other forms of clemency as well, such as a commutation or reduction of sentence. For example, in the recent case of Roger Stone, president Trump commuted Stone’s 40-month sentence to keep him out of prison but did not grant him a full pardon. Similarly, president George W. Bush commuted the sentence of White House aide Scooter Libby for his role in the Valerie Plame/CIA leak case but refused to grant Libby a pardon, despite the vigorous objections of Libby’s boss, Dick Cheney.

A pardon represents presidential forgiveness for federal crimes that have been, or may have been, committed. It does not expunge any convictions or seal the recipient’s record, and the recipient still stands convicted. But a pardon removes collateral consequences that may flow from a conviction, such as restrictions on the right to own a firearm or the right to vote. A person whose sentence is commuted but who is not pardoned still bears those other consequences. That’s why someone who has merely had their sentence commuted might seek a full pardon later. Trump pardoned Scooter Libby a decade after Bush had refused to do so, and it seems likely Trump will pardon Stone now that the election is over.

Another difference is that a commutation or reduction of sentence can only come into play if the recipient has actually been convicted and sentenced to some form of punishment. A pardon, on the other hand, may be granted even if a person has not yet been convicted of anything – Gerald Ford’s pardon of Richard Nixon being the most famous example.

A presidential pardon may only cover crimes that have already been committed. A president cannot grant a sort of prospective immunity, authorizing someone to engage in future criminal acts by granting them a blanket pardon.

Most significantly for Trump, the president may only grant pardons for federal crimes. He cannot pardon anyone for state offenses.  If an individual receives a presidential pardon, a state generally is still free to prosecute that individual for the same acts if they also constitute state crimes.

Trump’s Use of the Pardon Power

Trump’s use of the pardon power has been controversial. For the most part, he has bypassed the system set up within the Department of Justice and the Office of the Pardon Attorney for reviewing petitions for clemency. He has been more likely to grant clemency based on appeals by a Fox News host, political ally, or other personal connection. His more controversial pardons include Libby, Arizona Sheriff Joe Arpaio, and conservative activist Dinesh D’Souza. He was roundly condemned, including by many in the military, for pardoning soldiers convicted of committing war crimes in Afghanistan, after their cause was promoted on Fox News. Trump also commuted the sentence of former Illinois Governor Rod Blagojevich, who was serving a fourteen-year sentence after being convicted of multiple counts of corruption.

Former president Bill Clinton
Former president Bill Clinton

Pardons as a President Leaves Office

It’s not unusual for presidents to grant a number pardons as they are getting ready to leave office. Some of those pardons have been controversial. Bill Clinton pardoned fugitive financier Mark Rich on his last day in office. The FBI later investigated that pardon based on allegations it may have been granted in exchange for large donations to Democrats and the Clinton presidential library by Rich and his wife, although no criminal charges were ever filed. Clinton also pardoned his own brother, Roger, for a minor drug offense.

As he was about to leave office, George H.W. Bush pardoned six defendants about to go to trial over the Iran-Contra affair, including former defense secretary Casper Weinberger. Independent counsel Lawrence Walsh was outraged, suggesting the pardons might constitute obstruction of justice and that Bush acted to prevent information about his own involvement in the scandal from being revealed. (In an interesting historical twist, Bush’s move was supported by then-attorney general William Barr.)

So Trump certainly would not be the first president to raise some eyebrows with his parting pardons. But no previous president has ever had the potential to pardon so many of his own family members or close associates, including many who could potentially implicate the president himself in criminal activity. And no president has tried to pardon himself – although Nixon reportedly considered it.

Michael Flynn
Michael Flynn

Who Might Receive a Pardon?

The Mueller Defendants

The first likely recipients of a Trump pardon are those convicted as a result of the Mueller investigation. Trump, of course, has repeatedly attacked that investigation. His attorney general, William Barr, misled the public about Mueller’s report and has worked to undermine prosecutions that resulted, including by seeking to dismiss the Michael Flynn case and intervening in the sentencing of Roger Stone. It would be easy for Trump to justify these pardons by claiming they were all the result of the illegitimate Mueller “witch hunt.” Such pardons would have the added benefit for Trump of rewarding those who could potentially implicate him in wrongdoing and ensuring their continued loyalty.

Flynn seems like a prime candidate for such a pardon. Barr’s DOJ has tried to drop the charges against him after he pleaded guilty to lying to the FBI. The case remains mired in litigation over whether the trial judge must grant the government’s flawed motion to dismiss. By moving to drop the charges, Barr tried to free Flynn while allowing Trump to avoid taking the political heat of granting a pardon prior to the election. Now that the election is over, those political concerns are gone. Given the history, it frankly would be shocking if Trump did not pardon Flynn.

Roger Stone is another likely candidate. Trump commuted his sentence as he was about to report to jail, but now that the election is over look for Trump to bump that commutation up to a full pardon. Stone remained loyal by lying to Congress to protect Trump and refusing to cooperate even when prosecuted for those lies. Expect him to be further rewarded with a full pardon.

The outlook for other Mueller defendants is more cloudy. At times Trump has expressed sympathy for his former campaign manager Paul Manafort, who was convicted of money laundering and related financial crimes based on his work in Ukraine. Manafort pleaded guilty in a second case and agreed to cooperate with Mueller, but ended up lying to Mueller’s investigators. Trump and Manafort were reportedly never that close, but Trump might still pardon him just to take a shot at Mueller. The same is true for deputy campaign manager Rick Gates. Other lesser Russiagate players such as George Papadopoulos might be pardoned as well, again if for no other reason than to try to erase any results of the Mueller probe.

Other Former Insiders

Trump’s former personal attorney Michael Cohen almost certainly does not expect a pardon. Cohen was convicted of fraud and other charges in New York in a case that was spun off from the Mueller probe. His plea notably included a campaign finance charge for the payoff to Stormy Daniels that Cohen says was made at Trump’s direction. He potentially has a great deal of information that could implicate the president. But Cohen has completely turned against Trump, writing a harshly critical book and regularly criticizing him on cable news. He has said he doesn’t want a pardon, and he’s almost certainly going to get his wish.

Other former insiders have legal troubles of their own, but have also fallen out of Trump’s favor. For example, former presidential advisor Steve Bannon is now facing a federal fraud indictment for his involvement in a bogus fundraising scheme related to building Trump’s border wall. Bannon was once the consummate insider, but has also been critical of Trump since leaving the White House. Don’t expect him to receive any presidential clemency.

Donald Trump Jr.
Donald Trump Jr.

Trump Family Members

Up to this point we’ve been considering those who have already been charged or convicted. But Trump could also pardon individuals who have not yet been charged with anything, including members of his own family. For example, he could issue pardons for his son Don Jr. and son-in-law Jared Kushner for any crimes committed in connection with the 2016 presidential campaign and possible cooperation with Russia in its efforts to influence that campaign, or for any cover-up crimes related to the later investigations by Mueller and by Congress.

It’s not clear Don Jr. or Kushner want or need any such pardons; Mueller did not find that they had any criminal liability. But Mueller was not able to obtain all the information that he sought, and other facts could come to light under a new administration. Trump might be interested in issuing a sort of prophylactic pardon for any criminal acts related to Russia, the campaign, or the subsequent investigations, just as a precaution. On the other hand, he might conclude that issuing such pardons could make it sound like there was something to the “Russia hoax” after all.

Those who have not been charged or convicted could be reluctant to accept a pardon because they might think it would mean admitting they had done something  wrong. But as I discussed in this earlier post, the view that accepting a pardon means you are admitting  guilt is now generally discredited. For example, if a president were to pardon someone convicted of murder and then exonerated by DNA evidence, we clearly wouldn’t say that defendant is admitting he is guilty if he accepts the pardon. Trump family members and associates could easily claim they have done nothing wrong but will accept the pardons just to prevent a future, vindictive Democratic administration from pursuing baseless allegations.

Other Possible Pardons

There are other investigations that Trump could potentially try to head off by granting pardons. Not all of them are public, so it’s hard to know the full scope of what he could do here. For example, an investigation into financial misconduct related to the 2016 Trump inauguration may still be pending in the U.S. Attorney’s Office for the Southern District of New York. There could be other investigations pending within that office related to potential financial crimes by the Trump Organization. Presidential attorney Rudy Giuliani is reportedly still under investigation for some of his overseas business activities. To the extent there are such investigation still ongoing, Trump could short-circuit them by simply pardoning everyone who is under scrutiny.

Could Granting the Pardons Be a Crime?

It’s legally possible for granting a pardon to be a criminal act;  for example, if a president granted a pardon in exchange for a bribe. During the Mueller investigation there were allegations that Trump attorneys had dangled the possibility of pardons in front of witnesses to encourage them not to cooperate. As I wrote here, had that been established I think it could constitute bribery. Similarly, granting a pardon to head off an investigation into the president himself could potentially constitute obstruction of justice. But at this late stage, proving the requisite corrupt intent to make any of Trump’s parting pardons a potential crime would be extremely difficult.

Can Trump Pardon Himself?

The great unanswered question is whether Trump can pardon himself. Trump has claimed he has that right, but most legal experts disagree. The Office of Legal Counsel in Nixon’s Department of Justice opined that a president could not self-pardon. But no court has ever ruled on the question, and that OLC opinion is not binding on Trump. He could be the first president to test this legal proposition.  

For example, Trump could pardon himself for any obstruction of justice he may have committed during the Mueller investigation – probably his most clear-cut criminal exposure. If a Biden Department of Justice then tried to indict him for that obstruction – a big “if” — Trump would raise the pardon as a defense and move to dismiss. That would seem like a legal question destined to be decided by the Supreme Court.

Again, Trump may be reluctant to grant himself a pardon if he thinks it makes him look guilty. But he could easily rationalize it by saying he has done nothing wrong but needs to protect him from future unjustified “witch hunts.”

Trump and Pence
Mike Pence with President Trump

The Possible Pence Gambit

Trump could also engage in some more complicated gymnastics to seek to ensure that he receives a valid pardon. For example, he could resign the presidency prior to Biden’s inauguration. Mike Pence would then become president, with the power to pardon Trump.

Imagine this scenario: Over the next few weeks, Trump pardons his family members, associates, and anyone else who needs it, perhaps including Pence himself. Trump then resigns on the morning  of January 20, a few hours before Biden is inaugurated. Pence is sworn in and becomes president for the morning, and issues the pardon to Trump. It sounds crazy, but a lot of crazy things have happened over the past four years.

Trump could also act under the 25th Amendment to declare himself temporarily unable to perform the duties of president. That would make Pence the acting president until Trump declares himself fit again, and Pence could grant the pardon.  Of course, if Trump’s declaration was found to be a fabrication, that could call any such pardon into question.

It’s unclear whether Trump is interested in pardoning himself, or whether he would be willing to take the more dramatic step of resigning early to allow Pence to pardon him. It’s also unclear whether Pence, who has to think about his own political future, would agree to go along.

State Charges and Civil Cases

The most ominous aspect of all this for Trump is his inability to grant pardons for state charges. New York District Attorney Cyrus Vance has been conducting a grand jury investigation of Trump and the Trump Organization for the past couple of years and has been fighting to obtain Trump’s tax returns. The Supreme Court ruled in his favor last spring; the matter is now back before the Court and he is likely to prevail once again.  Vance has indicated that possible charges include not just the Stormy Daniels hush money payments but also bank fraud, insurance fraud, or tax fraud.

These potential state charges pose a real risk to Trump, and as president he can’t really do anything about them. If he does end up facing any criminal charges after he leaves office, New York state is the most likely source.

Trump also can’t pardon his way out of the many civil cases against him that may be pending or may be brought in the future, such as the defamation case by E. Jean Carroll, a woman who claims Trump sexually assaulted her. These can’t result in criminal convictions, of course, but could require Trump to pay damages or face other civil sanctions.

It will be very interesting to see what Trump does in the next couple of months. The expected flurry of pardons may turn out to be maddening and even shocking – another entry in the catalogue of outrages from this administration. But despite the awesome power of the presidency, Trump will be unable to shield himself and those around him from all potential legal consequences after he leaves office.

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A Rough Week for President Trump

With the number of legal proceedings and investigations swirling around president Trump, it’s easy to lose track of developments. But last week saw an extraordinary string of bad news for the president on several different fronts. The president should be riding high this week, with the Republican party nominating him for a second term. But last week was pretty rough.

Photo of president Trump

1. The New York District Attorney Case

As I wrote in my most recent post, Manhattan District Attorney Cyrus Vance, Jr. has been engaged in a year-long battle to obtain president Trump’s tax returns and other financial records. Vance’s office is overseeing a New York state grand jury investigation into potential financial crimes by the Trump Organization and unidentified individuals, likely including Trump himself.

As part of the grand jury investigation, in August of 2019 Vance subpoenaed the president’s tax returns and other financial records from his personal accountant, Mazars LLP. Although this is a state grand jury proceeding, in September 2019 the president filed a lawsuit in federal district court arguing that he was absolutely immune from state criminal process while in office. The U.S. Supreme Court rejected that claim last month. Trump then filed a new complaint, alleging that the grand jury subpoena is overbroad and was issued in bad faith. Vance moved to dismiss that complaint.

The lawsuit by Trump seeks to do an end run around the secrecy protections that surround grand jury proceedings. In an ordinary case, the recipient of a grand jury subpoena is not entitled to go to court and demand details about the scope of the investigation. He may argue the subpoena is overbroad, unduly burdensome, or is otherwise improper. But he may not demand to know the inner workings of the grand jury and the details of what it is investigating. Trump was essentially using his civil lawsuit to seek discovery about the investigation and circumvent these rules.

Trump’s Complaint is Dismissed

In my earlier post, I noted the uphill battle Trump faced and argued Vance was likely to prevail. And last week, the court granted Vance’s motion to dismiss and threw out Trump’s complaint. In a 103-page opinion, Judge Victor Marrero noted that the lesson from the recent Supreme Court decision is clear:

Absent evidence that compliance with a grand jury subpoena would improperly influence or impede the executive branch’s performance of constitutional duties, the President is entitled to claim no greater shield from judicial process than any other person.

The president had not even attempted to argue that the subpoena – directed to an outside third party, not to him – would improperly interfere with his official duties. And because the judge found the subpoena was not overbroad or issued in bad faith, he ruled the president was not entitled to relief and that the grand jury investigation should be allowed to proceed.

Trump has appealed the decision.  As of this writing, the district court has denied the president’s request for a stay pending appeal, and the Second Circuit Court of Appeals will hear arguments on Trump’s motion for a stay on September 1. If the Second Circuit denies the stay, Trump could seek intervention by the U.S. Supreme Court. But grant of a stay by any court seems very unlikely. And in the absence of a stay, Mazars has indicated it will comply with the subpoena. [Update: on September 1 the Second Circuit, in blatant disregard of my prediction, did grant a stay. Arguments on the merits will be heard on September 25.]

In sum, Trump is nearly out of legal options here. He’s managed to delay things for a year, but the New York state grand jury should have his tax returns before long. Grand jury secrecy means they will not necessarily be made public any time soon, if at all. But the possibility of state criminal charges poses a unique threat to Trump: although Attorney General William Barr has shown a remarkably corrupt willingness to protect the president, Barr has no control over a state prosecutor. And even if Trump could pardon himself on his way out of office (an unsettled question), no president can issue a pardon for state charges.  This is an area where Trump’s willingness to abuse the power of his office cannot help him.

Steve Bannon
Steve Bannon

2. The Steve Bannon Indictment

On the same day the judge dismissed Trump’s lawsuit over the Vance subpoena, there was another major legal development with potential implications for the president: federal prosecutors in the Southern District of New York indicted Steve Bannon, Trump’s former campaign CEO and Senior White House advisor, and three other men for fraud and money laundering. The indictment doesn’t implicate Trump directly. But it adds to a long list of people formerly in the president’s inner circle – including former campaign chair Paul Manafort, deputy campaign chair Rick Gates, national security advisor Michael Flynn, and political advisor Roger Stone – who have faced criminal charges. For a president who claims to hire “only the best people,” it is, at a minimum, not a good look.

The Bannon indictment lays out a relatively straightforward fraud scheme. It was spearheaded by Brian Kolfage, an Air Force veteran and Arizona border wall activist. According to the indictment, in December 2018 Kolfage launched an online fundraising campaign called “We the People Build the Wall.” The claimed purpose was to raise money to donate to the U.S. government to help fund the construction of a border wall between the United States and Mexico. The initiative apparently arose after Kolfage was frustrated by the Trump administration’s inability to get significant funding for the wall from Congress. His solution: raise the money from individual donors and give it to the government. Kolfage allegedly promised donors that 100% of the donations would go towards building the wall, and that the money would be returned if that was not possible.

The fundraising campaign was a huge success and quickly raised about $20 million. The online fundraising platform then began raising questions about the campaign and whether the money could actually be donated to the U.S. government as promised. The platform told Kolfage that he had to identify a legitimate, nonprofit organization to receive the funds, or else they would be returned to the donors.

That’s where Steve Bannon allegedly came in. Shortly after he was contacted by Kolfage and became involved, Bannon and the other defendants created a new tax-exempt organization, “We Build the Wall, Inc.”, to receive the donated funds. They then allegedly set about persuading the online site, and the original donors, that the funds should be transferred to this new nonprofit. Among other things, they repeatedly claimed that 100% of the funds would go towards the building the wall and that Kolfage would not earn a penny. They also claimed the new nonprofit had guidelines and oversight in place that would prevent any of the funds from being misappropriated. In reliance on those representations, most donors agreed that their original donations could be transferred to the new nonprofit. The defendants solicited new donations as well, in the end raising a total of more than $25 million.

The indictment alleges that the defendants misappropriated hundreds of thousands of dollars of the donated funds to their own use. Kolfage allegedly received more than $350,000 from the organization, including a $20,000 a month salary despite repeated promises that he would take no salary from the venture. Bannon allegedly received more than $1 million. The indictment charges that the defendants disguised these payments by running them through various other nonprofit organizations and shell companies, and by falsely characterizing them as payments to vendors. Kolfage allegedly used the misappropriated funds for personal expenses such as a boat, home renovations, a luxury SUV, plastic surgery, and personal tax payments. Bannon and the other defendants allegedly used the money for travel, hotels, consumer goods, and personal credit card payments.

The indictment charges the defendants with one count of conspiracy to commit wire fraud and one count of conspiracy to commit money laundering. Both of those crimes carry a maximum penalty of twenty years in prison. If the allegations of the indictment are true, there are no obvious defenses and it looks like a pretty tough case for Bannon and the other defendants.

William Barr
Attorney General William Barr

Why Did Barr Let It Happen?

One interesting aspect of this case is that William Barr’s Justice Department allowed it to proceed. Barr has shown little reluctance about intervening in cases that land close to the White House, including the prosecutions of Roger Stone and Michael Flynn. So why would he green light a prosecution so clearly embarrassing to the president shortly before the election?

There are a few different possibilities. One is that the Southern District of New York “went rogue” and brought the case without informing Barr. This is not impossible – there’s no law that requires the U.S. Attorney to notify the Attorney General about such a case. And the SDNY is famously independent – hence its nickname, the “Sovereign District of New York.” The fact that United States Postal Inspectors were the lead investigative agents on the case, not the FBI (which is part of Barr’s DOJ), might lend some credence to the idea that SDNY was keeping the case under wraps to avoid any interference. But on balance I find this a little hard to believe.

Another possible explanation is that Barr’s efforts to tamp down the case simply failed. When the indictment came down, many people recalled Barr’s recent effort to fire the U.S. Attorney for the Southern District of New York, Geoff Berman. You may recall the odd episode where Barr issued a press release saying Berman was stepping down, which Berman promptly denied. When he did so, Berman expressed concern about ensuring the integrity of ongoing investigations within his office.

Barr had planned to replace Berman temporarily with the New Jersey U.S. Attorney, who is close to Barr, and ultimately with Jay Clayton, the head of the SEC.  They are Trump loyalists who probably could have been counted on to at least slow-walk the Bannon case until after the election, if not kill it entirely. But Berman’s refusal to go quietly ultimately ended in a deal where Barr agreed that Berman’s chief deputy, Audrey Strauss, would step in as the acting U.S. Attorney if Berman left.  And Strauss, a respected career prosecutor, is not on team Trump.

It’s true that Barr still had the power to kill the case. But it’s pretty difficult to do that against the recommendation of an independent, career U.S. attorney. Barr’s intervention would almost certainly have leaked, and that could have ended up looking even worse for the president than the indictment. At least Trump can distance himself from Bannon’s fraud; he could not have readily distanced himself from Barr’s torpedoing the case. In short, perhaps after Barr’s attempt to install “his guy” at the SDNY failed, allowing this indictment to go forward ended up being his best option.

In fairness I should mention a third possibility: perhaps Barr was just playing it straight, not interfering, and letting the chips fall where they may. Perhaps – but his track record does not entitle him to the benefit of the doubt. And there has never been a satisfactory explanation for the immediate need to remove Berman, rather than waiting for his replacement to be confirmed.

What Does the Bannon Case Mean for Trump?

As I mentioned, the case against Bannon does not directly implicate the president. But Bannon was part of Trump’s inner circle for some time. It’s possible he has information relevant to other ongoing investigations – some of which are not public and may be located in the SDNY. If so, Bannon could agree to turn on Trump and cooperate in exchange for leniency. It’s also possible, of course, that Trump could pardon Bannon – particularly after the election – in the hope that Bannon would then keep his mouth shut out of gratitude. But at this point we can only speculate.

In any event, the developments in Bannon’s case should be interesting. Absent a pardon, some kind of cooperation, or other unexpected development, it looks like there is a good chance he will be going to jail.

cover page of Senate Intelligence Committee report

3. The Senate Intelligence Committee Report

Also last week, the Senate Intelligence Committee released Volume 5 of its report of its investigation into Russian interference in the 2016 election. The report is notable not so much for any startling new revelations but because it was issued by a Senate Committee on a bipartisan basis – and that Committee is controlled by Republicans.

The Senate report confirms much of what was already in the Mueller report, although it goes into far greater detail, weighing in at nearly 1000 pages. It devotes more than 100 pages just to discussing Paul Manafort and his ties to various Russian actors, including Russian intelligence officers. Another 100+ pages are devoted to discussing the infamous Trump Tower meeting in June 2016 between members of the Trump campaign and Russians who had promised damaging information about candidate Hillary Clinton. Other people and incidents, including George Papadopoulos, Carter Page, Roger Stone, and Trump’s concealment of his efforts to build a tower in Moscow, also receive extensive discussion.

The detailed information about Manafort and his Russian ties is perhaps the most damning, although again most of it is not new. The report details Manafort’s long-time ties to Konstantin Kilimnik, who is described as a Russian intelligence officer. Among other things, while he was Trump’s campaign chairman, Manafort met with Kilimnik and shared confidential internal Trump campaign polling data. The Committee, like Mueller, could not determine exactly why Manafort shared this information. But Kilimnik was with Russian intelligence and this took place at the same time Russia intelligence officers were actively engaged in a social media campaign to influence the election. Such internal polling data would undoubtedly be extremely useful in determining where to target such social media efforts.

Two conclusions in the report deserve to be highlighted.  First, when it comes to Manafort:

The Committee found that Manafort’s presence on the Campaign and proximity to Trump created opportunities for Russian intelligence services to exert influence over, and acquire confidential information on, the Trump Campaign. Taken as a whole, Manafort’s high level access and willingness to share information with individuals closely affiliated with the Russian intelligence services . . . represented a grave counterintelligence threat.  

Second, when it came to the Committee’s ability to investigate and obtain information from the White House, it noted that the president had made expansive, unwarranted assertions of executive privilege:

The Committee did not anticipate . . . the multitude of novel and unprecedented potential executive privilege claims from the [White House Counsel’s Office] on behalf of members of President-elect Trump’s Transition Team and the Transition itself, for communications before Trump took office. The Committee was surprised by these assertions because they were made inconsistently and because they have no basis in law.

In short, the Republican-led committee agrees the Russia investigation was not a “hoax;” actions of the Trump campaign represented a “grave counterintelligence threat.” And the White House, following a pattern it has exhibited in many other investigations (including the Mueller investigation and the impeachment proceedings) essentially stonewalled the investigation, making it impossible fully to determine what had happened.

Trump and Putin shaking hands

But Was it Collusion?

After 900-plus pages of bipartisan factual analysis, the report concludes with brief statements of “additional views” by groups of Republican and Democratic Senators. The Republicans stated (in bold italics, to make sure you don’t miss it), “the Committee found no evidence that then-candidate Donald Trump or his campaign colluded with the Russian government in its efforts to meddle in the election.”  The Democratic Senators disagreed, concluding that “this is what collusion looks like.”  In other words, the two political parties largely agree on the facts, but disagree over whether they prove “collusion.”

This is a silly, semantic debate. As I’ve argued elsewhere, and as Mueller also noted in his report, collusion is not a legal term. You can define it however you like. If you equate the term collusion with a criminal conspiracy, then it’s true that Mueller – and the Committee – did not find sufficient evidence to prove such a conspiracy beyond a reasonable doubt. On the other hand, if you define collusion as working cooperatively to achieve a common goal,  then there is evidence of collusion all over the place. As the Democrats noted in their separate statement:

The Committee’s Report clearly shows that Trump and his Campaign were not mere bystanders in this attack – they were active participants. They coordinated their activities with the releases of the hacked Russian data, magnified the effects of a known Russian campaign, and welcomed the mutual benefit from the Russian activity.

The bottom line is that a Republican-led Senate Committee has found that the Trump campaign had extensive contacts with Russian individuals including Russian intelligence officers, shared confidential information with them, welcomed Russian efforts to help Trump win the election, built a campaign and messaging strategy around the release of the Democratic emails stolen by Russia, and then failed to cooperate fully in the Senate investigation of those activities.

That should be – or should have been — a major scandal. But again, none of it is really new, and most of it was discussed in Volume I of the Mueller report. The addition of this Senate report is unlikely to have much of an impact on a public that has already largely absorbed these facts and formed its opinions.

But if nothing else, perhaps the bipartisan report will help to undermine Trump’s constant refrain about the “Russia hoax” and the deep state “witch hunt.” Even his own party agrees that the Russia allegations were not a hoax; there was extensive evidence of the Trump campaign’s ties to Russia and that those ties posed a grave threat. There was a more than sufficient basis for the FBI to investigate. The fact that no provable criminal charges resulted does not mean the investigation itself was unwarranted – particularly considering how difficult the White House and others made it for investigators to get the full story. And the fact that the Trump campaign’s conduct ultimately may not have been criminal does not mean that it was okay.

Stephanie Clifford, a/k/a Stormy Daniels

Postscript: More Stormy Weather

I’d be remiss if I didn’t mention a final legal development last week: we learned on Friday that Trump was recently ordered to pay more than $44,000 in legal fees to adult-film actress Stephanie Clifford, known as Stormy Daniels. The fees were from a lawsuit she filed over a non-disclosure agreement with Trump. She signed the agreement in 2016, accepting $130,000 in exchange for her promise not to discuss an affair she had with Trump from 2006-2007.  A California judge agreed that Daniels had prevailed in her lawsuit to void the agreement, and ordered Trump to pay her attorney’s fees.  

One of the charges that Trump’s personal attorney Michael Cohen pleaded guilty to was a campaign finance charge related to this “hush money” payment to Clifford, which he said he made at Trump’s direction.  Possible state financial crimes related to this hush money payment were part of the original basis for Vance’s grand jury investigation in New York. Thus, in the span of a few days last week, Trump’s legal problems came full circle.

All in all, a really bad week.

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