Tonight, the NYT noted that in his interview with Jeanine Pirro of Fox News Trump stated:

“[Michael Cohen’s] in trouble on some loans and fraud and taxicabs and stuff that I know nothing about,” Mr. Trump said. “And in order to get his sentence reduced, he says, I have an idea, I’ll tell — I’ll give you some information on the president.”

Mr. Trump then implied that Mr. Cohen ought to be sharing information instead on his father-in-law, whose name he said he did not know.

“But he should give information maybe on his father-in-law, because that’s the one that people want to look at,” he said, adding, “That’s the money in the family.” Pressed by Ms. Pirro for more details, Mr. Trump said, “I don’t know, but you’ll find out, and you’ll look into it because nobody knows what’s going on over there.”

18 U.S.C. § 1505 provides, in pertinent part, that:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

Paul Manafort’s lawyers filed a response to the Special Counsel’s submission in support of its breach determination.   The filing was supposed to have four matters redacted.  In error, only two were redacted.  The error was subsequently corrected and the initial filing was replaced with a filing that had all four areas actually redacted.

However, I have tracked down the text of the two redactions.  I have placed the entire filing here. The text of the two erroneous non-redactions are set in green boxes at the tops of pages 5 and 6.

The redactions make it clear that the Special Counsel is contending that there were two specific instances when Manafort, during the period in which he was Trump’s campaign chair, colluded with the Putin’s Russian-Ukranian operative, Konstantin Kilimnik.  The thrust of Manafort’s filing is to deny such collusion, claiming that he “misremembered.”:

It is not uncommon, however, for a witness to have only a vague recollection about events that occurred years prior and then to recall additional details about those events when his or her recollection is refreshed with relevant documents or additional information. Similarly, cooperating witnesses often fail to have complete and accurate recall of detailed facts regarding specific meetings, email communications, travel itineraries, and other events. Such a failure is unsurprising here, where these occurrences happened during a period when Mr. Manafort was managing a U.S. presidential campaign and had countless meetings, email communications, and other interactions with many different individuals, and traveled frequently.

Manafort response at 5.

The noose is tightening.

Important Update

In a comment, Kenneth Almquist informed me how to uncover all of the redacted material in the Manafort filing.  I have done so and the results can be found here.  Almquist also makes the point that:

What makes the second redaction so interesting is that the filing doesn’t contest the claim that Manafort shared polling data with Kilimnik. If the Trump campaign provided Russia with polling data in order to help Russia target its efforts to help the Trump campaign, that’s collusion. I can’t think of any other reason for Manafort to share polling data with Kilimnik.

So much for no collusion.

I’m running a little behind on my postings of court rulings, etc., but here’s Judge Sullivan’s ruling in the U.S.D.C. for the District of Columbia handed down on December 17.

The case involves individuals:

Seeking an opportunity for asylum . . . twelve adults and children, alleged accounts of sexual abuse, kidnappings, and beatings in their home countries during interviews with asylum officers.^[fn2] These interviews [by asylum officers] were designed to evaluate whether plaintiffs had a credible fear of persecution by their respective home countries. A credible fear of persecution is defined as a “significant possibility” that the alien “could establish eligibility for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v). Although the asylum officers found that plaintiffs’ accounts were sincere, the officers denied their claims after applying the standards set forth in a recent precedential immigration decision issued by then-Attorney General, Jefferson B. Sessions, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).

Slip op. at 2.

Footnote 2 highlights the plaintiffs’ credible fears:

Plaintiffs Grace, Carmen, Gio, Gina, Maria, Mina, Nora, and Mona are proceeding under pseudonyms.

The Court found that several of the new Trump Administrative “credible fear policies”:

[A]s articulated in Matter of A-B- and the Policy Memorandum [issued by the Department of Homeland Security], violate both the APA [the Administrative Procedure Act] and INA [the Immigration and Nationality Act]. As explained in this Memorandum Opinion, many of these policies are inconsistent with the intent of Congress as articulated in the INA. And because it is the will of Congress—not the whims of the Executive—that determines the standard for expedited removal, the Court finds that those policies are unlawful.

Id.

Judge Sullivan found that, with two exceptions, “the new credible fear policies are arbitrary, capricious, and in violation of the immigration laws.”  He issued a permanent injunction.  Slip op. at 106-107.

It seems that every day brings another example of malfeasance from the Trump Administration.  But let’s not forget misfeasance.

Suicide among military veterans is a major problem.  Here’s this report from the GAO entitled VA HEALTH CARE Improvements Needed in Suicide Prevention Media Outreach Campaign Oversight and Evaluation.  This jumps out:

VHA had a total budget of $17.7 million for its suicide prevention and mental health media outreach for fiscal year 2018, of which $6.2 million was obligated for suicide prevention paid media. As of September 2018, VHA said it had spent $57,000 of its $6.2 million paid media budget.

Report at 14 (page 18 of the pdf).

In essence, the VA is, for all intents and purposes, not spending any of its budget allocation for media outreach.

In his comments to my previous post, chetmuphy reminded me that the Emoluments Clause applies to retired military officers, such as General Flynn.

A good summary of the Emoluments Clause can be found here, which provides, in part:

Retired military personnel should also be aware that the Emoluments Clause may apply to monies they receive through their employment with a domestic partnership or a limited liability company, such as a law firm or consulting business. This is so even if the foreign government is not one of the retiree’s clients. The Office of the Legal Counsel has concluded that accepting a share of partnership profits that is derived from the partnership’s representation of a foreign government is considered an emolument, even if the retiree did not provide direct services to the foreign government client.

The Comptroller General has determined that the Government may pursue debt collection when an employee accepts an emolument from a foreign government without the required consent. Specifically, it has ruled that the DoD can suspend retirement pay up to the amount of the foreign salary (or other emoluments) received, if the foreign salary is less than one’s retirement pay. By contrast, when the compensation earned during the period of unauthorized employment with a foreign state exceeds the amount of retired pay accrued during the same period, only the retired pay received during the violation may be collected, not the full amount of pay received from the foreign government.

(Emphasis added.)

On March 16, 2017, Representative Cummings sent a letter to Trump, DOD Secretary Mattis, and then FBI Director Comey concerning Flynn’s likely violations of the Emoluments Clause.   The letter outlines Flynn’s dissembling concerning the fees he received from Russia and details those fees at some length.  While Rep. Cummings mentions the payments from Turkey, those payments did not hold center stage in his letter.  But we now know that Flynn took active steps to conceal those payments, at least insofar as those payments required his registration as a foreign lobbyist.

Professor Andy Grewal of the University of Iowa College of Law has posted some interesting comments on this matter on the blog of the Yale Journal of Regulation.

I’ve uploaded the transcript of the second session of the Comey Congressional interview.

If you’re inclined to feel sorry for General Flynn, don’t.

18 U.S.C. § 219(a) provides that:

Whoever, being a public official, is or acts as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938 or a lobbyist required to register under the Lobbying Disclosure Act of 1995 in connection with the representation of a foreign entity, as defined in section 3(6) of that Act shall be fined under this title or imprisoned for not more than two years, or both.

Emphasis added.

A retired military officer is a “public official” for the purposes of 18 U.S.C. § 219.  See here at footnote 5.

Now, read the indictment of Bijan Rafiekian, a/k/a “Bijan Kian” and Kamil Ekim Alptekin.  As you do, recognize that “Person A” is General Flynn.

Then remember that this is the same individual who led a mob-like crowd to shout about the presidential nominee of the Democratic Party, a former Secretary of State, “Lock her up!”

(BTW, the “Truth Campaign” was the original working title for the campaign that Flynn et al. were working on for the Turkish government.  The name of the campaign was later changed to “Operation Confidence.”)

I have uploaded the opinion handed down this evening by the U.S.D.C. for the Northern District of Texas (O’Connor, J.) overturning the ACA.   Needless to say, I thought that the decision was important enough that it should be uploaded even before I had an opportunity to read it.  Thus, I cannot summarize it or comment upon it at this point.

I am not clear on the current procedural posture of the case.  For instance, it does not appear that the court issued some sort of relief to the plaintiffs that would, without a stay, either immediately stop the ACA or give a right to an appeal without further proceedings in the district court.

I will update as matters are clarified.

Today, America Media, Inc. (“AMI”) the parent entity of the National Enquirer entered into a non-prosecution agreement with the U.S. Attorney for the Southern District of New York.  I have posted it here.  I suspect that, due to the sentencing of Michael Cohen, the AMI agreement will not get as much attention as it deserves.  It is, however, a blockbuster.

The agreement has as an exhibit a two-page “Statement of Admitted Facts” that provides, in part, as follows:

• • “In or about August 2015, David Pecker, the Chairman and Chief Executive Officer of AMI, met with Michael Cohen, an attorney for a presidential candidate, and at least one other member of the campaign [presumably Donald Trump].  At the meeting, Pecker offered to help deal with negative stories about that presidential candidate’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Pecker agreed to keep Cohen apprised of any such negative stories.”  Statement of Admitted Facts, ¶ 3.

• • “In or about June 2016, an attorney representing a model and actress attempting to sell her story of her alleged extramarital affair with the aforementioned presidential candidate contacted an editor at the National Enquirer. Pecker and the editor called Cohen and informed him of the story. At Cohen’s urging and subject to Cohen’s promise that AMI would be reimbursed, the editor began negotiating for the purchase of the story. On June 20, 2016, the editor interviewed the model about her story. Following the interview, AMI communicated to Cohen that it would acquire the story to prevent its publication.”  Statement of Admitted Facts, ¶ 4.

• • On or about August 5, 2016, AMI entered into an agreement with the model to acquire her “limited life rights” to the story of her relationship with “any then-married man,” in exchange for $150,000. It was also agreed that AMI would feature her on two magazine covers and could publish over one hundred magazine articles authored by her. AMI agreed to pay the model $150,000 — substantially more money than AMI otherwise would have paid to acquire the story — because of Cohen’s assurances to Pecker that AMI would ultimately be reimbursed for the payment. Despite the cover and article features to the agreement, AMI’s principal purpose in entering into the agreement was to suppress the model’s story so as to prevent it from influencing the election. At no time during the negotiation for or acquisition of the model’s story did AMI intend to publish the story or disseminate information about it publicly. On or about August 10, 2016, AMI sent $150,000 to an attorney representing the model.  Statement of Admitted Facts, ¶ 5.

• • At all relevant times, AMI knew that corporations such as AMI are subject to federal campaign finance laws, and that expenditures by corporations, made for purposes of influencing an election and in coordination with or at the request of a candidate or campaign, are unlawful. At no time did AMI report to the Federal Election Commission that it had made the $150,000 payment to the model.  Statement of Admitted Facts, ¶ 8.

As reported in an article by Eric Wemple in the Washington Post,  Tucker Carlson: Trump Is a Crime Victim, Trump apologist Fox News commentator Tucker Carlson is quoted as follows:

Remember the facts of the story. These are undisputed: Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion. Yet for whatever reason, Trump caves to it and he directs Michael Cohen to pay the ransom. Now more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense. Oh, but you’re not a federal prosecutor on a political mission. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions. You’d do this even though the money in question did not come from or go to Donald Trump’s presidential campaign. Then you’d claim that Trump and Michael Cohen violated campaign finance law because they didn’t publicly disclose those payments, despite the fact that disclosing them would nullify the reason for making them in the first place, which was to keep the whole thing secret. That is the argument you would make, both in federal court and through your proxies on cable television. It is insultingly stupid but because everyone in power hates the target of your investigation, nobody would question you, and that’s what’s happening right now.

(Emphasis in the WaPo original.)

Based on the Statement of Admitted Facts in the AMI matter, we now know:

• As to Karen McDougal, at least, there was no extortion involved.  Rather, she simply wanted to profit from her relationship with Trump.  It was Trump’s agent, acting on Trump’s behalf, who brought the matter to Trump’s attention.  McDougal never requested money from Trump, did not know that AMI was acting as Trump’s agent, and expected the full and complete story to make its way in the public domain.  Manifestly, she was not being paid for her public silence, but rather for her willingness to use the AMI publications to broadcast the story.

• Carlson’s contention that the payments were not campaign contributions is palpably false.  As ¶ 4 of the Statement of Admitted Facts states: “At the meeting, Pecker offered to help deal with negative stories about that presidential candidate’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Pecker agreed to keep Cohen apprised of any such negative stories.”  In other words, from the very beginning, even before it was known that McDougal was willing to publicly disclose her story, Trump, Cohen, and Pecker planned to put her story or any similar story within a cone of silence in order to aid the campaign.

Distilled to its essence, with regard to McDougal at least, (1) Trump was not the victim of an extortion attempt and (2) the payment of hush money to McDougal was a deliberate and calculated campaign violation.

Oh, yeah.  We know that Tucker Carlson is nothing but a dishonest Trump apologist.

Given the momentous events concerning the various criminal investigations of Trump, an important opinion by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit may go virtually unnoticed.

The ruling comes in the case of East Bay Sanctuary Covenant v. Trump. That’s the case I posted earlier in which the District Court (per Tigar, J.) issued a nationwide injunction against enforcement of the rule that, together with Trump’s proclamation, had the effect of making “any alien who enters the United States across the southern border at least over the next ninety days, except at a designated port of entry, is categorically ineligible to be granted asylum.”  The appeals court, by a 2-1 majority, maintained in place the TRO.  You may recall that it was Judge Tigar’s initial decision that caused Trump to go off on a rant against the Ninth Circuit.

So, today was a bad day for Trump:

1. He was presented with prosecutors clearly closing in on him and his family for their criminal activities.
2. The stock market continued its downward course.
3. His first Secretary of State, Rex Tillerson, was so critical of Trump that Trump had to Tweet:  “Rex Tillerson didn’t have the mental capacity needed [to be Secretary of State]. He was dumb as a rock and I couldn’t get rid of him fast enough. He was lazy as hell.”
4. And, finally, the Ninth Circuit blocked him from causing harm to immigrants seeking asylum.

What have I missed?