OPEN LETTER #3 TO PRESIDENT-ELECT TRUMP: A JOB FOR JEFF SESSIONS

Dear President-elect Trump,

Sometimes your lack of impulse control works for you. For example, on Friday night, you lashed out at the Broadway hit, Hamilton. With the stroke of a few tweets, you dominated the weekend news cycle. The fun ended Sunday morning, when Vice-President-elect Mike Pence told CBS’s John Dickerson that Hamilton was “a great show.”

Pence “wasn’t offended” by a 90-second post-performance comment on behalf of the cast and producers. Your tweets had demanded an apology from them, but it turned out that you now owe one — for misstating the facts and challenging First Amendment principles.

You achieved a larger objective. Your twitter tantrum diverted popular attention from: your thumbs-up group photo after meeting with business partners developing a Trump-branded luxury apartment complex in India; white nationalists convening in Washington to celebrate your election; and your selection of National Security Adviser-designate Mike Flynn, who called Islam a “cancer” and a “political ideology hiding behind religion.” He’s also a board member of ACT for America, which the Southern Poverty Law Center calls “far and away the largest grassroots anti-Muslim group in America.”

Master Distracter

Your Hamilton tweets also moved the spotlight away from your attorney general-designate. In 1986, President Ronald Reagan’s Republican Senate put Antonin Scalia on the Supreme Court and made William Rehnquist chief justice. But even at the height of the Reagan revolution, Alabama’s then-U.S. attorney Sessions became only the second nominee in 48 years to be rejected for a federal judgeship. Now he’ll be your attorney general.

In a normal world, Sessions’ earlier defeat would doom your nominee. But you’re normalizing the abnormal. When Steve Bannon is the baseline for comparison, even Jeff Sessions looks good. He shouldn’t.

Sessions on the Merits

The junior senator from Alabama is one of its most conservative members. He opposes: any path to legalizing undocumented immigrants, gay marriage, abortion, and the legalization of marijuana. He voted against reauthorizing the Violence Against Women Act. His portfolio is a distressing compilation of what you seem to mean by “Make America Great Again.”

Sessions is far out of step with most Americans. (Hillary Clinton’s popular vote victory — 1.5 million ballots and growing — proves that you are, too.) But resigned to his confirmation, I propose a bipartisan assignment for him: restore the integrity of the FBI. It will require a public investigation into events culminating in your election.

Roll the Tape

In October, polls showed you losing so badly that you were likely to cost Republicans the Senate. Three months earlier, FBI Director James Comey had announced that no reasonable prosecutor would bring criminal charges against Hillary Clinton for her use of a private email server while she was secretary of state. But in an unprecedented press conference, he’d opined about her recklessness anyway. That kept your “Crooked Hillary” rally theme alive. Even so, as summer turned to fall, the email-gate story was losing its legs.

On October 25, your key surrogate, Rudy Giuliani appeared on Fox & Friends. When a host asked whether you had anything other than “some more inspiring rallies” planned for the remaining 14 days of the campaign, Giuliani chuckled.

“Yes,” he grinned.

“What?” a co-host asked.

“You’ll see,” Giuliani answered in a full-throated laugh. “We’ve got a couple of surprises left. I call them surprises in the way we’re going to campaign, to get our message out there. Maybe in a little bit of a different way. You’ll see, and I think it’ll be enormously effective.”

Giuliani then discussed how “all of these revelations about Hillary Clinton, finally, are beginning to have an impact.”

 

On Oct. 26, Giuliani appeared with Fox reporter Martha MacCallum. As the interview ended, he interrupted her to volunteer, “And I think he’s [Trump] got a surprise or two that you’re going to hear about in the next few days.”

MacCallum tried to conclude the interview, but Giuliani kept pushing: “I mean, I’m talking about some pretty big surprises.”

Finally, MacCallum took the bait.

“I heard you saying that this morning,” she said. “What do you mean?”

“You’ll see,” Giuliani laughed.

Friday, October 28

Only days after Giuliani’s teasers, Comey violated Justice Department guidelines with a letter informing Congress that the Bureau was reviewing additional evidence relating to the Clinton email investigation. Conservative radio talk show host Lars Larson interviewed Giuliani.

“There’s a kind of revolution going on inside the FBI about the original [July] conclusion being completely unjustified and almost a slap in the face of the FBI’s integrity,” Giuliani said. “I know that from former agents. I know that even from a few active agents who, obviously, don’t want to identify themselves.”

Later, Giuliani backpedaled.

“I don’t know anything about leaks from the FBI or the Justice Department,” he told CNN’s Wolf Blitzer. “I haven’t talked to anybody in the FBI or Justice Department.”

When Blitzer confronted Giuliani with the Lars Larson interview, Giuliani responded, “Well, the information I’ve been getting is from former FBI agents. If I did say that, that was wrong.”

In 48 hours, Giuliani had gone from “I know that even from a few active agents who, obviously don’t want to identify themselves” to “the information I’ve been getting is from former FBI agents.”

But Giuliani’s distinction didn’t help the Bureau. Whether the leaks came directly from active agents, or whether active agents leaked to retired agents who then went to Giuliani, they originated within the FBI. In addition to professional responsibilities of confidentiality under the ABA Standards on Prosecutorial Investigations, agents sign employment agreements that have sharp non-disclosure teeth. Certain FBI personnel working on the Clinton investigation also signed a “Case Briefing Acknowledgement,” agreeing that “due to the nature and sensitivity of this investigation, compliance with these restrictions may be subject to verification by polygraph examination.”

Lie detectors!

Wednesday, November 2 

Less than a week before Election Day, another FBI leak produced a new bombshell. Bret Baier of Fox News cited “two separate sources with intimate knowledge of the FBI investigations” for what turned out to be a bogus report. He said that the Clinton investigations would likely to lead to an indictment. You milked that one. As rally crowds responded with “Lock her up” even more loudly than before, some members of your mob added, “Execute her!”

By Thursday, Baier admitted that he’d spoken “inartfully” about the false FBI report. By Friday, he was in full retreat: “That just wasn’t inartful, it was a mistake and for that I’m sorry.”

When MSNBC’s Brian Williams grilled your campaign manager Kellyanne Conway on whether you would stop using the earlier false report in your stump speech, she smiled and said, “Well, the damage is done to Hillary Clinton…”

Sunday, November 6

Then Comey sent another letter confirming that his earlier missive had been a false alarm. But by then, early voters had cast 40 million ballots — almost 30 million of which came after his October 30 letter. Meanwhile, you’d spent the week telling crowds that Clinton’s problems were “bigger than Watergate” and that criminal investigations into her dealings would continue for years into her presidency.

When confronted with Comey’s latest exoneration of Clinton, Kellyanne Conway kept her smile as she told MSNBC, “We have not made this a centerpiece of our messaging… This has not been front and center of our campaign.”

Sessions could put Rudy Giuliani under oath and ask him to name his FBI sources — active or retired. After all, if this had happened to you, hearings in the Republican Congress would already be underway. Now they’ll never happen. To “Make America Great Again,” start with the FBI, if you dare.

OPEN LETTER #2 TO PRESIDENT-ELECT TRUMP: YOUR ELECTORAL COLLEGE RANT

Dear President-elect Trump,

Well, that was quick. Within 24 hours of my first open letter pledging to hold you accountable for missteps, you fired up another twitter storm. Your topic was the Electoral College. It’s easy to see why.

Hillary Clinton’s popular win by more than 1 million votes makes you only the fourth president in history to gain an Electoral College victory without support from at least a plurality of the people you will govern. In fact, tiny popular vote margins in three key states tipped the Electoral College balance in your favor: Michigan (12,000 out of almost 5 million votes cast), Wisconsin (27,000 out of 3 million), and Pennsylvania (68,000 out of 6 million).

I’m not a conspiracy theorist, but did you see the tweet from John Dean, former White House counsel to President Nixon?

“What happens when we discover that the Russians rigged just enough votes in Wisconsin, Ohio, North Carolina and Pennsylvania for Trump?” he wrote.

Don’t Believe Everything Newt Tells You

Now you’re turning to the Electoral College for help. But four years ago, you despised it.

On November 6, 2012, you tweeted: “The electoral college is a disaster for a democracy.”

Back then, you thought President Obama would lose the popular vote, but win in the Electoral College. You called for “a march on Washington” to “stop this travesty.” In tweets that you have since deleted, you even urged a “revolution.”

Now you need the Electoral College to override the popular vote that you lost decisively. Throughout the media, critics are asking, “Is it time to eliminate the Electoral College?

At 5:30 am on November 15, 2016, you provided your new answer, starting with this: “If the election were based on total popular vote I would have campaigned in N.Y. Florida and California and won even bigger and more easily.”

Including Florida on that list projects panic. You spent more time there than in almost any other state. As for New York, it defies credulity to suggest that fellow New Yorkers don’t know you by now.

With respect to California, former House Speaker Newt Gingrich told CBS News’ John Dickerson that you would have picked up “at least 2 million votes,” if you’d campaigned there. No evidence supports that claim. Even so, it doesn’t answer the overriding point that yours is only the fourth election in American history where the popular and electoral vote diverged. (The others were George W. Bush in 2000, Benjamin Harrison in 1888, and Rutherford B. Hayes in 1876.)

But there’s a bigger trap in Speaker Gingrich’s argument that you have now echoed in a tweet. It reinforces the budding false narrative that you have a popular mandate. For the reasons explained in my first letter, you don’t.

Don’t Believe Everything You Read

Your second tweet at 5:30 am on November 15 was: “The Electoral College is actually genius in that it brings all states, including the smaller ones, into play. Campaigning is much different!”

Your tweet gives ammunition to those who focus on the speed with which you decry rules that appear to be working against you, only to embrace them when they turn in your favor. The Electoral College that you described as a “disaster for democracy” in 2012 is now “genius.” For your latest flip-flop, The Washington Post awarded you an “Upside-Down Pinocchio for an unacknowledged change in position.”

Perhaps the inspiration for your second tweet came from reading Dr. Larry Arnn’s Wall Street Journal op-ed that morning. He’s president of Hillside College and defends the Electoral College as “anything but outdated.” His conservative credentials include board membership on the Heritage Foundation and, in 1996, founding chairman of the California Civil Rights Initiative, which prohibited racial preferences in state hiring, contracting, and admissions. Stated simply, he’s one of your growing circle of new best friends.

Alexander Hamilton Is More Than A Hit Play

“Consider for a minute why the Electoral College was invented,” Dr. Arnn writes.

Characterizing your million-plus vote loss as a “whisker,” Dr. Arnn’s historical discussion ignores the most important source of contemporaneous insight into the origin and purpose of the Electoral College: Alexander Hamilton. Conservatives regularly cite The Federalist Papers in defending an originalist interpretation of the Constitution. (You’ve said that you want your Supreme Court nominee adhering to that approach.) In Federalist No. 68, Hamilton explained some of the concerns that led to creation of the Electoral College.

On one hand, Hamilton observed, the framers believed that the will of the people deserved respect. But they also worried that citizens were vulnerable to an unqualified demagogue — someone with “talents for low intrigue, and the little arts of popularity” lacking “a different kind of merit to establish him in the esteem and confidence…necessary to make him a successful candidate for the distinguished office of President of the United States.” The Electoral College became the nation’s safety valve.

What If Every Vote Counted?

Dr. Arnn concludes that binding electors to support the candidate who wins the national popular vote would be a “disaster.” He worries about the 10 states and the District of Columbia — representing 165 electoral votes — that have already signed the National Popular Vote Interstate Compact. It binds each signatory state’s electors to vote for the national popular winner. If a handful of states accounting for another 105 electoral votes sign on and bring the total to at least 270, the Compact will become effective without a Constitutional amendment.

Among the remaining states that in various combinations could put the Compact into effect are Colorado, Connecticut, Delaware, Florida, Georgia, Michigan, Minnesota, North Carolina, New Hampshire, Ohio, Pennsylvania, Virginia, and Wisconsin. Don’t be surprised if those who voted against you now turn their attention to state legislatures that could render the Electoral College irrelevant by 2020. At some point, the constitutionality of the Compact would probably be litigated, but serious scholars believe it would survive.

What Would Hamilton Do?

You can see the irony of your precarious situation. In an unprecedented bipartisan display, the most respected leaders of your own Republican party outlined publicly and repeatedly the dangers that you — their nominee — would pose to America and the world. But the story of the 2016 election is that the people could be trusted. Most voters did not buy your “low intrigue” from someone versed in the “little arts of popularity.” And they reached their decisions, even as FBI Director James Comey, unnamed Bureau leakers of false information, Russian hackers, and Wikileaks distorted the election in your favor. Those clouds will always hang over you.

Dr. Arrn glossed over the fact that on December 19, the Electoral College could still approve the nation’s collective decision and deprive you of the Presidency. Twenty-nine states and the District of Columbia impose some type of requirement that electors vote in accordance with their states’ individual voter totals. But the penalties for noncompliance typically are insignificant. And in the remaining 21 states — including Pennsylvania — electors are free to vote as they see fit.

Would Alexander Hamilton be among the more than 4 million signatories to a current petition urging electors to do what they believe best for the country, rather than blindly follow their individual states’ voting results? We’ll never know. But you’re making a mistake by inviting a focus on the original motivations for the Electoral College. They work against you now.

 

OPEN LETTER #1 TO PRESIDENT-ELECT TRUMP

Dear Mr. President-elect,

Congratulations.

This is the first in a series of open letters that you’re not likely to read. The ultimate goal is simple: accountability. As you speak and act, these letters will try to set the factual record straight in our post-factual world that you now dominate. Your words and deeds will determine the scope and duration of this exercise.

The Responsibility of Attorneys and the Press

I didn’t vote for you, but this isn’t a partisan crusade. Lawyers across the political spectrum are concerned about what you might do as President. We listened with concern to your campaign rhetoric. Repeatedly, you professed disrespect for the rule of law. (Along the way, I wrote about your transgressions here, here, herehere, and here.)

Now we watch and wait for any sign of disquieting conduct matching the words that helped propel you into office. When you err, we will speak. You may say that such vigilance is un-American. It’s not. Holding elected officials accountable to the law and the truth is the essence of democracy.

You’ll start with functional control over two branches of government. Senate confirmation of your Supreme Court nominee will deliver the third. So it becomes the task of those outside your orbit to identify and spotlight your missteps. More than at any time in our nation’s history, attorneys and the press have a special responsibility to remain on high alert.

Open letters like this one will arrive whenever the circumstances require it. Two have already arisen: the false claim that you have a mandate and your early post-election tweets.

The Illusory Mandate

Contrary to the narrative that you and your supporters are pushing, Republicans do not have a mandate to pursue whatever the Trump agenda turns out to be. You benefitted from a disquieting confluence of events and circumstances. And even at that, you lost the popular vote to Hillary Clinton by the widest margin of any elected President in history.

Start with the FBI. As voters were casting more than 46 million early ballots, FBI Director James Comey’s profound misstep on October 28 compounded his July 5 press conference error in handling the Clinton email investigation. Stated simply, he pushed votes your way.

Four days later, the Bureau used a twitter account that had been dormant for more than a year to release documents relating to the Clinton Foundation. On November 2, Fox News’ Bret Baier aired a false report from FBI sources that there would likely be indictments involving the Clinton Foundation. Two days after that, Baier apologized for that “mistake” and retracted his story.

But as your campaign manager Kellyanne Conway acknowledged to MSNBC’s Brian Williams shortly after Baier’s retraction, “The damage has been done to Hillary Clinton.”

Responding to a post-election report that Clinton thought the FBI’s unprecedented actions had affected the election, Conway did a slick about-face on November 13: “I just can’t believe it’s always somebody else’s fault. Sometimes you just have to take a look in the mirror and reflect on what went wrong.”

The Russian Vote

Likewise, you alone benefitted from Russian hackers and Wikileaks. They put their thumbs on the Trump side of the election scale. The fact that the Russian parliament burst into applause when Vladimir Putin announced your victory should not please you. It should cause you and all American citizens grave concern.

Yet even with all of that help, as well as Republican-sponsored state voter suppression laws in North Carolina, Wisconsin and elsewhere, your opponent beat you by more than 2.5 million votes.

About That Republican Congress

Some voters split their tickets. They were heeding the call of leading Republicans in Congress and elsewhere who shunned you. Outraged at your behavior, concerned about your lack of knowledge and intellectual depth, and fearful of your erratic temperament, they made the case that a Republican Senate was essential to check President Hillary Clinton. Unwittingly, they have now empowered you beyond their wildest fears.

From the standpoint of popular support, you begin your first term from a position of unprecedented weakness. Ironically, you entered politics with a frivolous “birther” claim that questioned the legitimacy of your predecessor’s right to the Oval Office. Yet real shadows hover over yours.

Dubious Tweets

A second circumstance that already requires voices of accountability to speak involves your post-election tweets. Less than 48 hours after your subdued acceptance speech, you responded to nationwide street protests with a two-pronged attack against the dissenters and the media.

“Just had a very open and successful presidential election. Now professional protesters, incited by the media, are protesting. Very unfair!”

No facts supported your claims. As always, your response to any hint of criticism was to find a scapegoat or a distraction. We’ll be watching for that tendency, too. When you fail to fulfill your most unrealistic campaign promises, the anger of those who voted for you will intensify. In Ohio, when the steel mills don’t fire up again in Youngstown and your border wall doesn’t solve the opioid epidemic in Columbus, will you follow your lifelong impulse to blame someone else?

Continuing Attacks on the Press

On Sunday morning, November 13, you renewed your pre-election attack on The New York Times:

“Wow, the @nytimes is losing thousands of subscribers because of their very poor and highly inaccurate coverage of the ‘Trump phenomena’.”

That wasn’t true, either. The Times reported a post-election surge in new subscriptions — four times the pre-election rate.

A few hours later, you went after the Times again: “The @nytimes states today that DJT believes “more countries should acquire nuclear weapons.” How dishonest are they. I never said this!”

But you did say it. When Mike Pence denied in his vice-presidential debate that you’d taken such a position, nonpartisan Politifact rated his statement as “Mostly false” and listed all of the instances that you’d said what the Times reported — the first of which was in March 2016 to reporters for The New York Times.

On April 3, 2016, you had this exchange with Fox News’ Chris Wallace:

Trump: “It’s not like, gee whiz, nobody has them. So, North Korea has nukes. Japan has a problem with that. I mean, they have a big problem with that. Maybe they would in fact be better off if they defend themselves from North Korea.”

Wallace: “With nukes?”

Trump: “Including with nukes, yes, including with nukes.”

Most people are too busy with life’s daily demands to scrutinize your torrent of sometimes conflicting words. But many of us will make the time necessary to stand guard against your demonstrated capacity to take advantage of the post-factual world in which we live. No President possesses a mandate to lie without getting caught.

JAMES COMEY AND THE FBI

I hadn’t planned to write another post until after the November 8 election. But on Tuesday, November 1, lightning struck twice.

First, the FBI used its twitter account to post documents relating to President Bill Clinton’s pardon of Marc Rich back in 2001. For those who are too young to remember, that presidential action 15 years ago was so controversial that it led prosecutors in the Bush administration to investigate potential criminal wrongdoing. They came up empty.

The second strike came Tuesday evening: the Chicago Cubs beat the Cleveland Indians and sent the World Series to Game 7.

This post concerns the first bolt from the blue.

Beyond Strange

Taken alone, the FBI’s release of the March Rich documents might have seemed relatively innocuous. But it came on the heels of FBI Director James Comey’s unprecedented letter to Congress on Friday, October 28. Contrary to Donald Trump’s subsequent false assertions, Comey was not “reopening” the Bureau’s closed investigation into Hillary Clinton’s use of a private email server, Rather, Comey said only that “the FBI has learned of the existence of emails that appear to be pertinent to the investigation.”

Then it turned out that the emails in question were on former congressman Anthony Weiner’s computer. Reportedly, the emails were to or from his now-estranged wife, Huma Abedin. Then it turned out that the FBI hadn’t even obtained a search warrant to look at any of those Huma Abedin emails that, to Comey, “appeared to be pertinent.” A judge issued the warrant two days after Comey’s explosive letter. Perhaps the FBI director is clairvoyant.

Backlash

The bipartisan outrage against Comey was fast and furious. More than 100 former prosecutors and high-ranking Justice Department officials in Republican and Democratic administrations signed an open letter chastising Comey for his breach of longstanding Justice Department guidelines relating both to the confidentiality of investigations generally and, most especially, to any actions that could affect an imminent election.

In fact, The New York Times reported on November 1 that precisely those well-established guidelines stopped the FBI from taking overt actions to pursue its investigation of Donald Trump’s former campaign manager, Paul Manafort. The issues involve Manafort’s connections to pro-Russia officials and business leaders in Ukraine. The Times also reported that the FBI likewise delayed activities relating to a Clinton Foundation investigation.

Meanwhile, Richard Painter, a former chief White House ethics counsel for George W. Bush, filed a formal complaint that Comey’s letter to Congress had violated the Hatch Act. It outlaws misuse of a public office by, for example, seeking to influencing an election.

Who Is James Comey?

Even Comey’s detractors have expressed admiration for his character and integrity. Perhaps that’s justified. But lawyers and judges know that the appearance of impropriety can be problematic. In that respect and as relates to Comey, some facts alone may speak for themselves. So without additional comment, here are some facts about James Comey.

1985: Graduated with a J.D. from the the University of Chicago Law School and clerked for Judge John Walker of the Second Circuit Court of Appeals.

1987: After a brief stint as an associate at Gibson, Dunn & Crutcher, Comey was hired by then-U.S. attorney for the Southern District of New York, Rudy Giuliani. He was an assistant U.S. Attorney until 1993.

1993-1996: Partner in private practice at McGuire Woods in Richmond, VA.

1996: Deputy special counsel for the Senate Committee investigating the Clintons and Whitewater. Eventually, the process led to appointment of a special prosecutor and President Clinton’s impeachment (for which the Senate acquitted him).

1996-2001: Managing assistant U.S. attorney for Richmond division.

2002-2003: U.S. attorney for the Southern District of New York, where his tasks included supervising the criminal investigation of former President Bill Clinton’s pardon of Marc Rich.

2003-2005: President George W. Bush’s appointee as deputy attorney general — the number two person at the Justice Department — reporting directly to John Ashcroft. He became known for his standoff over the no-warrant wiretapping program at Ashcroft’s hospital bedside. According to one report of that internecine Republican battle, “Comey rushed to the room of his bedridden boss to physically stop White House officials from trying to get an ailing Ashcroft to reauthorize the program.”

2005-2010: Vice president and general counsel for Lockheed Martin.

2010-2013: Executive at Bridgewater, reported to be the world’s largest hedge fund.

June 21, 2013: President Obama nominates Comey to head the FBI.

July 5, 2016: In a bizarre departure from an investigator’s role, Comey dons his prosecutor hat to announce his recommendation that Hillary Clinton not be indicted for her use of a private email server while Secretary of State. He then offers a similarly unprecedented description of her behavior as, among other things, “extremely careless.”

July 7, 2016: As Congressional Republicans began investigations into Comey’s recommendation, he testifies that he’d been a Republican for most of his adult life, but was no longer a registered member of the GOP.

July-September, 2016: Trump and his surrogates, including Rudy Giuliani, blast Comey for not recommending the indictment of Clinton. Calling the failure a “total outrage,” Giuliani said, “As associate attorney and as Jim Comey’s boss for two or three years, I was very disappointed in him. I think if you read it, it’s logically inconsistent. He contradicts himself at least three times.”

September 28, 2016: For four hours, Comey testifies before the House Oversight Committee, mostly about the FBI’s investigation into Hillary Clinton’s private email server and his recommendation not to indict her.

October 3, 2016: FBI agents seize Anthony Weiner’s laptop and learn quickly that they include some Huma Abedin emails.

October 28, 2016: Comey sends his letter to Congress about additional materials that “appear to be pertinent.” Two days later, the FBI obtains a search warrant to see what those emails actually say.

November 1, 2016: The FBI releases documents responsive to earlier Freedom of Information Act requests relating to President Clinton’s 2001 pardon of Marc Rich. When pressed, the official FBI comment was that its release of the Rich documents were posted “automatically and electronically to the FBI’s public reading room in accordance with the law and established procedures.” This happens, the statement said, on a “first-in, first-out” basis.

And the FBI twitter account that announced the release? Until October 30, it had been dormant for more than a year — since October 8, 2015.

To the FBI’s official comment that the timing of the release was a coincidence, CNN’s legal analyst Jeffrey Toobin commented, “My official response is, ‘Give me a break.'”

I would add this: Sometimes even paranoid persons have real enemies.

PRESIDENT TRUMP’S ATTORNEY GENERAL? — PART 2

Part 1 of this series discussed the possibility that, if Donald Trump wins the election, New Jersey Governor Chris Christie could become his attorney general of the United States. After all, he was the first major Republican presidential candidate to endorse Trump. With Christie’s popularity in his home state dropping to historic lows (now below 30 percent) and term limits foreclosing a run for another term as governor, he had to do something to salvage his political ambitions.

Sure, he didn’t get the vice-presidential nomination that he reportedly craved. But shouldn’t he reap some reward for his remarkable public scenes with Trump? In one, Christie appeared to be physically ill — or a hostage. In another, Trump mocked him to get a cheap laugh.

About That Bridgegate Thing

The prospect of Christie becoming the nation’s top law enforcement officer isn’t funny. The Bridgegate trial has resurrected old questions that a Christie-appointed independent investigator was supposed to answer almost three years ago. It has also raised new ones.

Christie has steadfastly denied having any knowledge about the George Washington Bridge lane closures before or during the 2013 scandal that culminated in criminal charges against his top aides. Some of those aides have now sworn that Christie knew more than he has admitted.

In that respect, they have confirmed Donald Trump’s declaration during a December 2015 Republican primary rally: “He knew about it. He totally knew about it.”

The Four Other Key Players

In a federal courtroom on September 27, 2016, a senior official at the Port Authority of New York and New Jersey (and Christie’s high school classmate), David Wildstein, testified that Christie knew what was happening on the bridge during the days that traffic was backed up for hours. According to Wildstein, so did Bill Stepien (Christie’s then-gubernatorial re-election campaign manager) and Bill Baroni (the governor’s top appointee at the Port Authority, which runs the bridge).

Another courtroom bombshell exploded on October 21, 2016, when Bridget Anne Kelly — who had replaced Stepien as Christie’s deputy chief of staff — testified that on August 12, 2013, she’d told the governor about the contemplated lane closings a month before they occurred.

Someone is lying. Donald Trump cast his vote: the culprit is Christie, the person who now heads his presidential transition team.

The Investigation

I’ve written previously about the independent investigation that was supposed to put all of this to rest almost three years ago. In January 2014, Christie – a former federal prosecutor with eyes on a 2016 presidential bid – tried to contain the growing scandal by appointing a respected attorney to investigate. He chose Randy Mastro, another former prosecutor, who had served as Mayor Rudy Giuliani’s deputy from 1993 to 1998 before returning to the New York office of Gibson, Dunn & Crutcher.

Mastro’s team included Debra Wong Yang, who had served as U.S. attorney for the central district of California. At a June 2011 event, she introduced Christie as her “very good friend” whom she had “known for ten years” – going back to their time together as federal prosecutors. Yang said he was “the real deal” and “doing a remarkable job as governor.” When Christie took the stage, he recalled how their families vacationed together at the game ranch of a fellow U.S. attorney in Texas.

“We are good and dear friends,” Christie said.

Only two months after the 2014 Gibson Dunn investigation began, Mastro released his final report. It identified Wildstein and Kelly as the Bridgegate villains, both of whom — along with Baroni and Stepien — had refused to speak with investigators.

The Moment

The report discussed briefly a key moment: the conversation that Wildstein said he’d had with Christie and Bill Baroni at a 9/11 memorial service in New York City – two days into the four-day lane closures. According to his attorney, Wildstein told Christie about the lane closures and resulting traffic problems in Fort Lee. Christie said he couldn’t recall any such conversation. The report dismissed Wildstein’s account as not credible.

The investigation was expensive, but not for Christie. Through August 2015, Gibson Dunn billed New Jersey taxpayers $8 million for its work. According to the Times, in December 2015, Debra Wong Yang, “co-hosted a $2,700-per-person fund-raiser in Los Angeles for Christie’s Republican presidential campaign.”

Days of Reckoning

Fast-forward to September 23, 2016, when prosecutors called Wildstein to the witness stand. Using photos showing Christie, Baroni, and Wildstein speaking together at the 9/11 event, Wildstein testified to their conversation. He said that Baroni began by telling the governor in a sardonic tone that “there was a tremendous amount of traffic in Fort Lee” and that Christie would be “very pleased to know” that the Democratic mayor of the city was “very frustrated.” According to Wildstein, Christie laughed at the news. Upon learning that Fort Lee’s mayor was placing urgent phone calls about the situation, Christie said sarcastically, “I imagine he wouldn’t get his calls returned.”

Christie responded immediately to Wildstein’s courtroom testimony.

“All kinds of stuff is going on up in a courtroom in Newark,” he said on September 27, 2016. “I have not and will not say anything different than I’ve been saying since January 2014. No matter what is said up there, I had no knowledge prior to or during these lane realignments.”

Subsequently, Bill Baroni took the stand and offered his version of the 9/11 memorial service conversation with Christie. He said that the photo of the three men laughing might have captured their joking about Governor Andrew Cuomo arriving at the event on a motorcycle with singer Billy Joel.

But then Bridget Anne Kelly testified to having informed Christie about the planned lane closings a month before they occurred in 2013. And she added a kicker: She said that the governor stopped by her office after the 9/11 event, and they discussed the ongoing Fort Lee traffic complaints. She swore that Christie told her that the Port Authority and Wildstein were handling the situation.

The Lesson

The judge instructed the Bridgegate jury that Chistie was among those about whom the jury had heard but would render no decision. Its verdicts can’t resolve the question of whether Christie has been telling the truth about what he knew and when he knew it.

But that open issue is less important than how all of this relates to Donald Trump. He believes Christie is lying. Yet Christie still chairs the Trump presidential transition team. And he could become Trump’s leading candidate for attorney general.

One more twist in the tale: On January 9, 2014, Christie announced that Bill Stepien’s conduct relating to Bridgegate had caused him to “lose confidence in Bill’s judgment,” so he fired him as gubernatorial re-election campaign manager. On August 26, 2016, NBC News reported that the Trump campaign hired Stepien as its national field director.

“I hire only the best people,” Trump says.

PRESIDENT TRUMP’S ATTORNEY GENERAL? — PART 1

Last week, I discussed Trump’s threats to sue his critics and the possibility that, when it came actually to filing a lawsuit, his lawyers’ overriding duties of professional responsibility became a restraining influence. Even so, the threats themselves — like those Trump reiterated on October 22 to sue any and all accusers who have or will come forward to confirm his boasts about being a sexual predator — have a chilling impact. If an accuser with a truthful story remains quiet, Trump wins without firing a shot or paying a filing fee.

Anyone who doubts the effect of even an idle Trump threat should consider the American Bar Association’s recent actions. The New York Times reports:

“Alarmed by Donald J. Trump’s record of filing lawsuits to punish and silence his critics, a committee of media lawyers at the American Bar Association commissioned a report on Mr. Trump’s litigation history. The report concluded that Mr. Trump was a ‘libel bully’ who had filed many meritless suits attacking his opponents and had never won in court. But the bar association refused to publish the report, citing ‘the risk of the A.B.A. being sued by Mr. Trump.'”

The Media Law Research Center posted the report.

If candidate Trump can achieve that type of chilling effect on the nation’s largest professional association of attorneys, imagine the impact of a President Trump who would select the country’s top law enforcement officer, namely, the attorney general of the United States.

Even Worse Threats

“You’d be in jail.”

Donald Trump interrupted Hillary Clinton to deliver that warning during their second debate. Moments earlier, he’d provided the context.

“If I win,” he said, “I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we’re going to have a special prosecutor.”

As Trump landed another blow against the rule of law, his supporters in the audience howled, “Lock her up” — a standard chant at Trump rallies.

The Gambit

The process for appointing a special counsel doesn’t give any president the power Trump says he’d wield. The last president to have any influence over a special prosecutor was Richard Nixon. Esteemed Harvard Law Professor Archibald Cox had the job, and it didn’t end well for Nixon or the country.

When Cox subpoenaed the president’s Oval Office tape recordings, Nixon ordered Attorney General Elliot Richardson to fire him. Richardson refused, so Nixon fired Richardson. When his successor, Deputy Attorney General William Ruckelshaus, likewise refused to discharge Cox, Nixon fired him, too. After Solicitor General Robert Bork was sworn in to replace Ruckelshaus, he executed Nixon’s command.

Eventually, the U.S. Supreme Court ordered Nixon to release the tapes. Nixon’s own voice proved his personal involvement in efforts to cover-up the 1972 burglary of Democratic National Committee headquarters – the Watergate break-in. The incriminating evidence led the House of Representatives to issue articles of impeachment. When it became clear that fellow Republicans in the Senate would provide enough votes to convict him, Nixon became the first U.S. president to resign his office.

The “Saturday Night Massacre” that cost Richardson, Ruckelshaus, and Cox their jobs led Congress to enact the Ethics in Government Act of 1978 that removed the president from the independent prosecutor process. In 1999, the legislation lapsed under a sunset provision. Today, the Code of Federal Regulations – which has the force of law – governs. The decision to appoint a “special counsel” to conduct investigations or prosecutions of particular matters on behalf of the United States belongs to the attorney general, not the president.

The Executioner

Nixon’s appointees, Richardson and Ruckelshaus, lost their jobs because they refused to do Nixon’s bidding. Trump’s attorney general would have to embrace his illegal post-election assault on a political adversary. To fulfill his banana republic-like promise to imprison a political opponent, Trump would need someone who bowed unquestioningly to his wishes.

Who might use the power of high office for such retribution? There’s an obvious candidate: New Jersey Governor Chris Christie. After all, at the Republican National Convention, he prosecuted the case against Hillary Clinton and invited the audience to roar, “Guilty.”

As for a willingness to use political power for payback, Trump has a favorable view of Christie, too.

“He knew about it,” Trump said during a Republican presidential primary rally in December 2015. “He totally knew about it.”

During a December 2013 news conference, Christie had staked out a different position: “I didn’t know anything about it.”

The “he” was Christie. The “it” was Bridgegate.

The Scandal

On September 9, 2013 – the first day of the school year in Fort Lee, New Jersey – commuters to New York City found themselves in a traffic jam on the George Washington Bridge. Without advance notice to local officials, the Port Authority of New York and New Jersey reduced from three to one the number of lanes and tollbooths available to vehicles accessing the bridge from Fort Lee.

Even by New York standards, the resulting gridlock on the world’s busiest bridge was monumental. Some motorists were stranded for hours. Public health and safety became serious concerns. Was it just a coincidence that the Democratic mayor of Fort Lee had refused to endorse Christie for a second term as governor?

As the debacle developed, what did Governor Christie know and when did he know it? Senator Howard Baker had made a similar question famous during the Watergate hearings, and it still resonated.

The next installment in this series will take a deeper dive into the criminal trial that has inflicted significant collateral damage on Christie — the head of Donald Trump’s presidential transition team.

TRUMP’S THREATS

Here’s the most important line from Melania Trump’s October 17 interview with CNN’s Anderson Cooper:

“Sometimes I say I have two boys at home — I have my young son and I have my husband.”

One of them is running for President of the United States. He loves winning. And he loves to blame anyone else — everyone else — when he isn’t.

Two months ago, polls following Trump’s verbal war with a gold star family showed him losing the election badly. As I wrote at the time, his response was to complain that the election system was rigged. But as his poll numbers rebounded in September, Trump’s cries of “rigging” became more subdued.

After Trump’s disastrous first debate and the revelation of his own vile behavior toward women, his poll numbers plummeted again. And so, once again, Trump rails against a system that, he claims, must be rigged against him. Otherwise he’d be winning.

He pursued a similar strategy when it looked like might not have enough delegates to win the Republican nomination. (Remember when he said there would be riots if he didn’t get it?) When a process makes him the winner, he embraces it; when he fears failure, he denounces it.

This time, Trump has merged his baseless election-rigging rhetoric with his ongoing assault on freedom of the press. For Trump, scorched earth apparently includes destroying two essential pillars of American democracy: a free press and public confidence in the election process itself.

recent Politco poll suggests that Trump’s message is getting through: 41 percent of voters think that the November election could be “stolen” from him.

The Relentless Assault On The Press

During his presidential campaign, Donald Trump has threatened to sue journalists and the media more than a dozen times. Here’s a small sample:

— On April 27, 2016, Pulitzer Prize-winning author David Cay Johnston later tweeted, Trump personally called and threatened to sue him “if he doesn’t like what I report” in discussing Johnston’s book about Trump.

— On May 18, 2016, Trump told reporters for The Washington Post: “I will be bringing more libel suits…maybe against you folks.”

— On July 20, 2016, The New Yorker reported that Trump had threatened to sue his former ghostwriter Tony Schwartz for supposedly “defamatory statements” Schwartz had made to Jane Mayer about the book he “co-wrote” with Trump, The Art of the Deal.

— When The New York Times reported on women claiming that they had been victims of Trump’s sexual assaults, he threatened to sue.

Responsible Lawyers

Why hasn’t Trump followed through? After all, he’s not reluctant to litigate. In June, USA Today reported that Trump and his businesses have been involved in more than 3,500 lawsuits.

And Trump has plenty of advisers with JDs — including Kellyanne Conway (George Washington University, ’92), who replaced Paul Manafort (Georgetown ’74) as campaign manager, senior adviser Boris Epshteyn (Georgetown ’07), and ubiquitous surrogate Kayleigh McEnany (Harvard ’16), among others. So what’s holding him back?

In mid-September, Trump tweeted, “My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting.”

As Trump himself might say in response to that tweet, “I don’t think so.”

A more plausible reason is the restraining influence of Trump’s outside attorneys. Although Trump and his surrogates with law degrees can say whatever they want, litigators marching into a courtroom cannot. A trial attorney’s professional responsibilities transcend the whims of a client. Trump may think that he’s beyond the rules applying to everyone else. But his attorneys know they are bound by court requirements governing all lawyers’ conduct. And they risk serious sanctions for violating them.

A Lawyer’s Duty

One of Trump’s outside attorneys, Marc Kasowitz, signed the recent demand letters to the Times about Trump’s tax returns and sex scandals. Attorneys can send letters threatening lots of things. But when a controversy moves into a courtroom, it’s a whole new ball game.

Kasowitz is an accomplished and respected trial lawyer. Appropriately, he represents clients zealously – and Donald Trump is no exception. Even so, when it comes to lawsuits, even the best attorneys face two immutable constraints: the facts and the law. Most states have rules embodying the principles of Federal Rule of Civil Procedure 11. It provides that by signing a court filing, an attorney certifies that “after reasonable inquiry” that there is factual and legal support for the assertions it contains.

For Trump’s latest threats against the Times, those obstacles are so great that noted attorney Theodore Boutrous, Jr. called Kasowitz’s demand letter a “stunt.” Boutrous suggests that Trump’s real aim is to chill aggressive reporting into his activities.

Rules? What Rules?

The legal restrictions governing the attorneys who would file a Trump lawsuit also explain his February outburst:

“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money… We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

At one level, such bombast reveals Trump’s ignorance. Libel is a state-law tort constrained by First Amendment principles. A president’s views don’t figure in its application. At another level, Trump’s comments reveal a deeper danger.

Conservative law Professor Ilya Somin of the Antonin Scalia Law School at George Mason University notes, “There are very few serious constitutional thinkers who believe public figures should be able to use libel as indiscriminately as Trump seems to think they should. He poses a serious threat to the press and the First Amendment.”

Baseless Conspiracy Theories

In his latest assault on the press, Trump asserts that the media is part of a larger conspiracy to rig the election. It extends, Trump claims, to rampant voter fraud that could rob him of victory. Vice presidential candidate Mike Pence tried to explain away Trump’s incendiary stance as referring only what he claims to be media bias.

But in his tweets, Trump himself set Pence and everyone else straight about his meaning:

“The election is absolutely being rigged by the dishonest and distorted media pushing Crooked Hillary – but also at many polling places – SAD.”

And: “Of course there is large scale voter fraud happening on and before election day. Why do Republican leaders deny what is going on? So naive!”

The evidence refutes Trump’s baseless claims of voter fraud. As I noted previously, Professor Justin Levitt at Loyola Law School – Los Angeles tracked all claims of alleged voter ID fraud and found a grand total of 31 credible allegations – out of more than one billion ballots cast. But facts have never mattered to a Republican presidential campaign that has become the worst reality TV show ever.

As Benjamin Franklin left Independence Hall following the Constitutional Convention of 1787, a woman approached him.

“Well, Doctor, what have we got,” she asked, “a republic or a monarchy?”

“A republic,” Franklin answered, “if you can keep it.”

On November 8, we’ll find out.