TRUMP AND BETSY DEVOS DELIVER A ONE-TWO PUNCH

Since 2007, the federal student loan forgiveness (PSLF) program has been an escape hatch for law graduates (and others) saddled with overwhelming educational debt. The idea was that the graduate would take a public service job at low pay and reduced monthly loan requirements. After ten years of service, any remaining loan debt was forgiven. The well-known backstory is that student loans are not dischargeable in bankruptcy. They can follow a person to the grave.

There were and still are problems with PSLF, such as the resulting tax on the imputed income from the forgiven loan. And 10 years is a long time to toil in low wage positions. But the country and many recent graduates have been the better for it.

New Problems

Serious administrative issues surfaced when the ABA sued the Department of Education for retroactive denials to lawyers who thought they were employed in qualifying PSLF programs. After original approval, the suit alleged, the department then reneged and said, in effect, “No soup for you.”

According to one report, “The ABA, which views the program as an essential part of its recruiting and retention efforts, was only informed that it was no longer an eligible employer for PSLF purposes earlier this year – nine years into a 10 year program. The association has lost employees who were in the program and has been told by possible hires that the loss of qualification was an important factor in not joining the ABA.”

Problems Solved, Trump-Style

For young lawyers hoping that public service loan forgiveness was the answer to a lifetime of student debt burdens, Trump has some bad news. Rather than remedy the problems with a program that can provide enormous help to many recent grads and the organizations for which they work, he wants to eliminate it altogether. It’s analogous to his approach to the Affordable Care Act. Fixing something is more difficult than eliminating it altogether. So Trump proposes to eliminate it.

Amid the attention surrounding Trump’s scandals involving Russia, obstruction of justice, and business conflicts of interest, many important stories got lost. What’s happening in the U.S Department of Education is one of them. On May 17, The Washington Post reported, “Funding for college work-study programs would be cut in half, public-service loan forgiveness would end and hundreds of millions of dollars that public schools could use for mental health, advanced coursework and other services would vanish under a Trump administration plan to cut $10.6 billion from federal education initiatives.”

Why? Because Education Secretary Betsy DeVos’ lifelong mission has been to promote private and religious schools. According the Post story, she seeks to put $400 million into expanding “charter schools and vouchers for private and religious schools, and another $1 billion to push public schools to adopt choice-friendly policies.”

Who’s Affected?

By the end of 2016, 550,00 people had been approved for the federal loan forgiveness program. The first beneficiaries of the program will receive their rewards this year. If Trump and DeVos have their way, they will become the vanguard of a dying breed. Trump and DeVos are not just throwing out the baby with the bathwater; they’re ripping out the tub and all of the plumbing, too.

TRUMP AND THE MORGAN LEWIS MESS — CONTINUED

On March 7, 2016, Sheri Dillon and William Nelson put their firm, Morgan, Lewis & Bcckius, on a slippery slope with their letter purporting to justify Trump’s refusal to release his tax returns. It’s been downhill ever since. Confirming that the IRS had closed its audits through 2008, they reinforced Trump’s “under audit” excuse for not releasing any returns at all. His returns for 2009 forward, they said, “are continuations of prior, closed examinations.” On January 22, Kellyanne Conway confirmed that Trump was never going to produce those returns. Period.

As I wrote on April 12, 2017, the descent continued with the Trump/Dillon press conference on January 11. “President-elect Trump wants there to be no doubt in the minds of the American public that he is completely isolating himself from his business interests,” Dillon explained amid a mountain of paper. Some of the documents appeared to be blank and some of the folders lacked labels. Why the esteemed Fred Fielding lent his name to the cause is a mystery. Substantively, attorneys knew immediately that the Dillon/Nelson/Fielding/Morgan Lewis plan was a joke.

Farce Turns to Tragedy

To recap the failures of the plan itself, Dillon said that Trump would put his business holdings in a revocable trust—meaningless window dressing. He would continue to own and benefit from every Trump asset in his portfolio. And he wasn’t selling any of the most valuable ones involving the family business. Still, she explained, no one should worry because his sons, Eric and Donald Jr., would run the company.

Six weeks later, Eric Trump told Forbes that he would continue to update his father on the family business: “’Yeah, on the bottom line, profitability reports and stuff like that, but you know, that’s about it.’ How often will those reports be, every quarter? ‘Depending, yeah, depending.’ Could be more, could be less? ‘Yeah, probably quarterly.’ One thing is clear: ‘My father and I are very close. I talk to him a lot. We’re pretty inseparable.’”

Meanwhile, Donald Jr. has been campaigning for Montana GOP congressional candidate Greg Gianforte—who stands accused of assaulting a reporter.

Fallout

Shortly after Dillon’s press conference, H. Scott Wallace, co-chair of the Wallace Global Fund, sent a blistering termination letter to Morgan Lewis chair Jami Wintz McKeon. My previous post reviewed it in detail. Suffice it to say that Wallace was not pleased with Morgan Lewis’ willingness to help Trump sell democracy in return for billable hours.

“We believe that the legal advice given to [Trump] by your partner Sheri Dillon, in the January 11 press conference and background ‘white paper,’ is not just simplistic and ill-founded,” Wallace wrote, “but that it empowers and even encourages impeachable offenses and undetectable conflicts of interest by America’s highest official, and thus is an unprecedented invitation to corruption and an assault on our democracy.”

“It is painfully obvious that Trump is using his office for personal gain,” Wallace continued. “And Morgan Lewis is enabling and legitimizing this… Americans deserve a president of undivided loyalty. Your firm has denied them that.”

From Mar-a-Lago initiation fees to the travel ban to China trademarks, Wallace observed that “the ethical carnage is mounting.” It still is.

Meanwhile, the Kushner family was trading on Trump ties to woo Chinese investors “into wealthy luxury developments” with $500,000 “investor visas.” So it’s not just the presidency that’s for sale, it’s America itself.

Bottoming Out

On May 12, the White House released another Dillon/Nelson letter that was supposed to take the heat off Trump’s financial connections to Russia. But it became fodder for another round of jokes—just as Dillon’s January 11 press conference had.

Then on May 20, the Associated Press reported that Dillon “initially wanted [Trump] to submit an updated financial disclosure without certifying the information as true” because he was filing voluntarily this year. After discussions with the director of the Office of Government Ethics, Walter Shaub, Dillon evidently agreed that Trump would sign and file by mid-June. Let’s see if that happens.

On May 24, The New York Times reported on another January 11 promise that Dillon made and Trump isn’t keeping: to give the U.S. Treasury all profits from Trump hotels and similar businesses derived from foreign governments. In response to a House Oversight Committee request, the Trump Organization produced a slick brochure explaining why it was impractical to comply “fully and completely” with that promise.

Here is my next prediction: In corporate boardrooms and law school campuses, the damage to the Morgan Lewis brand will continue. Business leaders will act on the belief that preserving critical norms of democracy should outweigh a firm’s desire to do almost anything for a client’s billable hour. But the most discerning of general counsels will leave Morgan Lewis for an entirely different reason that has nothing to do with Trump, politics, the appropriate limits of a lawyer’s role as client advocate, or every attorney’s sworn duty to protect the U.S. Constitution. Substantively, the Trump conflicts plan and the related disasters that have followed constitute embarrassingly bad lawyering.

One more note of interest to leaders of big law firms obsessed with growth for the sake of growth: Sheri Dillon and William Nelson are recent lateral hires. Both were at Bingham McCutchen until a few months before it collapsed in 2014.

TRUMP AND THE MORGAN LEWIS MESS

On January 11, 2017, Sheri Dillon and Fred Fielding sullied themselves and imperiled the reputation of their firm, Morgan, Lewis & Bockius. They shilled for a plainly insufficient plan to deal with Donald Trump’s massive business conflicts of interest. In doing so, they traversed far beyond the principle that an attorney should advocate zealously on a client’s behalf. I predicted that Dillon, Fielding, and the firm would regret their roles in the charade. If they haven’t seen the light by now, they never will.

Lawyers Without Boundaries; Clients Without Shame

When it comes to dealing with Trump, ignorance of his tendencies affords his attorneys no excuse. Throughout his life, he has destroyed reputations whenever it helped him fulfill an agenda item of the moment. Once his allies outlive their usefulness — or whenever Trump needs a scapegoat — they become expendable. Remember the rumors about cabinet positions for Chris Christie, Rudy Giuliani, and Newt Gingrich? And how quickly Mike Flynn went from loyal patriot to dishonest traitor!

Trump’s January 11, 2017 press conference made for great theater as he claimed yet another victim. “President-elect Trump wants there to be no doubt in the minds of the American public that he is completely isolating himself from his business interests,” Dillon explained amid a mountain of paper. Some of the documents appeared to be blank and some of the folders lacked labels. Substantively, attorneys knew immediately that the Dillon/Fielding/Morgan Lewis plan was a joke. Every day, it becomes less humorous.

Trump Still Owns Everything

Dillon assured the public that Trump would put his business holdings in a revocable trust — meaningless window dressing. She didn’t mention he still owned and benefited from every Trump asset in his portfolio. And he wasn’t selling any of his most valuable ones involving the family business. Still, she explained, no one should worry because his sons, Eric and Don Jr., would run the company. Trump even joked that he’d return to management in eight years, hoping that they’d done a good job and saying that he’d fire them if they didn’t.

Har-dee-har-har-har.

Six weeks later, Eric Trump told Forbes that he would continue to update his father on the family business: “’Yeah, on the bottom line, profitability reports and stuff like that, but you know, that’s about it.’ How often will those reports be, every quarter? ‘Depending, yeah, depending.’ Could be more, could be less? ‘Yeah, probably quarterly.’ One thing is clear: ‘My father and I are very close. I talk to him a lot. We’re pretty inseparable.’”

It Gets Worse

On April 4, ProPublica reported — and Trump Organization attorney Alan Garten confirmed — that a February 10 version of the revocable trust agreement states: “The Trustees shall distribute net income or principal to Donald J. Trump at his request, as the Trustees deem necessary for his maintenance, support or uninsured medical expenses, or as the Trustees otherwise deem appropriate.”

The Trustees are Don Jr. and Allen Weisselberg, who started his career working for Donald Trump’s father Fred in the 1970s. In other words, Trump can watch his wealth grow and get at his money whenever he wants.

Fallout

At the time of the press conference, self-proclaimed law firm public relations experts urged that mere proximity to Trump would make Morgan Lewis a client magnet. At least one prominent client went the other way. The co-chair of the Wallace Global Fund expressed outrage over the firm’s willingness to aid and abet Trump’s undermining of democracy.

On March 28, H. Scott Wallace sent a blistering termination letter to Morgan Lewis chair Jami Wintz McKeon: “We believe that the legal advice given to [Trump] by your partner Sheri Dillon, in the January 11 press conference and background ‘white paper,’ is not just simplistic and ill-founded, but that it empowers and even encourages impeachable offenses and undetectable conflicts of interest by America’s highest official, and thus is an unprecedented invitation to corruption and an assault on our democracy.”

Wallace, a Villanova Law grad, walked McKeon through the patent defects in the Dillon/Fielding/Morgan Lewis conflicts plan. In great detail, he covered issues that I outlined in my three-part series on the plan’s inadequacies. And he added a few zingers:

  • “Ms. Dillon has legitimized a complete non-solution to Trump’s manifold conflicts of interest….”
  • “She adds a few window-dressing safeguards….”
  • “She absolutely denied the existence of any Emoluments Clause problems….”
  • “The result is an illusion of protection against the President using his office for personal gain. Trump’s entire life has been devoted to personal gain, not a moment to public service.”

Presidential corruption matters, and the Dillon/Fielding/Morgan Lewis plan facilitates it. As Wallace observed, “the ethical carnage is mounting”:

  • Just days after Trump reaffirmed the “one China” policy, it granted 38 new Trump trademarks.
  • Trump’s newly hired director of diplomatic sales at his DC hotel has enjoyed tremendous success in foreign bookings, including Azerbaijan, Bahrain, and Kuwait.
  • Trump’s bans on Muslin-majority nations excluded countries where Trump has business interests.
  • China’s government-owned bank is the single largest tenant in Trump Tower and the lease will come up for renewal during Trump’s presidency.
  • Since Trump’s election, initiation fees at Mar-a-Lago have doubled to $200,000.

Wallace could have added that Trump has yet to make good on Dillon’s promise to donate all Trump hotel profits from foreign governments to the U.S. Treasury. And his organization’s post-election success in registering Trump trademarks around the world has been phenomenal.

“It is painfully obvious that Trump is using his office for personal gain,” Wallace continued. “And Morgan Lewis is enabling and legitimizing this… Americans deserve a president of undivided loyalty. Your firm has denied them that.”

What’s Next? Nothing Good for Morgan Lewis

Here is my next prediction: more clients will fire Morgan Lewis. Corporate boards and CEOs will shun a firm willing to tolerate Dillon’s unprofessional performance on January 11. They’ll act on their belief that preserving critical norms of democracy should outweigh a firm’s desire to do almost anything for a client’s billable hour.

But the most discerning of general counsels will leave Morgan Lewis for an entirely different reason that has nothing to do with Trump, politics, the appropriate limits of a lawyer’s role as client advocate, or every attorney’s sworn duty to protect the U.S. Constitution. Substantively, the Trump conflicts plan is embarrassingly bad lawyering.

JERRY FALWELL JR.’S NEW ASSIGNMENT

Since his inauguration, Donald Trump has dominated news cycles with chaos. It was easy to miss his new task force charged with deregulating higher education. The leader is Jerry Falwell, Jr., president of Liberty University.

“The goal is to pare it back and give colleges and their accrediting agencies more leeway in governing their affairs,” said Falwell, an evangelical leader with a law degree.

Heaven help us all.

Liberty University

Falwell’s father founded Liberty University in Lynchburg, Virginia. It thrives on federal student loan and grant dollars — $347 million for undergraduates alone in 2015, according to The New York Times. Liberty’s nominal student loan default rate within three years of graduation is nine percent. But only 38 percent of Liberty borrowers are paying down at least one dollar on their student loan principal amounts within three years of leaving the school. The Times also reports that six years after entering college, 41 percent of Liberty students earn less than $25,000 a year. That’s about what a typical 25-year-old with only a high school diploma earns.

For years, law schools have been the leading edge of this crisis. Falwell’s Liberty University has one of those, too. Tuition is $32,000 a year. Twenty percent of first-year students entering in 2014 left for academic reasons. Of 61 students who graduated in 2015, only half got full-time long-term jobs requiring a J.D. —  including one graduate who went to work for Liberty. There was some relatively good news: the average debt load for Liberty’s class of 2015 students who borrowed for law school was $68,000 — a lot lower than the $112,000 average for all law schools.

Reversal of Fortune 

Any progress that the Obama administration made to increase accountability in higher education seems destined for Trump’s dustbin. The Department of Education had put heat on schools that were exploiting students who incurred enormous educational debt for degrees of dubious value. Last summer, one of the department’s advisory committees took the American Bar Association to task for allowing law schools to run such scams. In November, the ABA put Charlotte Law School on probation while the school tried to work out its problems. In December, Charlotte lost its eligibility for federal student loans and its death spiral accelerated.

At long last, someone noticed that federal money was allowing bottom-feeder law schools to stay in business. But the legal profession’s accrediting agency – the types of organizations that Falwell says he wants to vest with greater decision-making power – hadn’t pulled the trigger on Charlotte. The DOE had.

President Obama also moved the vast majority of student lending from the private sector to the federal government. The expectation is that Trump will move it back. Since the election, the stock prices of private student lenders and loan servicing companies have soared. They’re a good bet. Federal guarantees protect lenders; borrowers can’t discharge educational debt in bankruptcy.

The end result is that marginal schools still have no financial skin in the game. They keep filling classrooms with students who borrow huge sums for degrees that aren’t worth it. Income-based repayment programs may provide some relief, but eventually someone will figure out that the U.S. Treasury will wind up footing that bill, which could become a very big number. When loan forgiveness programs shrink or disappear, an entire generation will live — and, in many cases, die — with educational debt incurred to pay the big salaries of people like Jerry Falwell, Jr.

How much damage could Falwell’s task force do? Plenty. The ABA is institutionally incapable of cracking down on law schools that should have closed long ago or never opened at all. Watch out for this: If the federal student loan spigot reopens for Charlotte Law School, there’s no bottom in sight.

What Would Jesus Do?

Jerry Falwell, Jr. was an anchor of Trump’s evangelical constituency. As president of Liberty, he earns $900,000 a year. In fact, Falwell said Trump offered him the Secretary of Education position that DeVos now occupies, but he turned it down. Trump wanted a four-to-six year commitment; Falwell reportedly said he couldn’t afford to work at a cabinet-level job for more than two years.

As Falwell and others like him prosper, their students suffer. Now that Falwell is in charge of deregulating higher education, Trump’s victory speech after winning the Nevada primary last year takes on new meaning: “We won the evangelicals… We won with poorly educated. I love the poorly educated.”

I suspect Jerry Falwell, Jr. loves the poorly educated, too. When it comes to selling a dubious degree from a marginal school, they’re especially inviting targets.

THE TRUMP RESISTANCE PLAN: A TIMELINE — RUSSIA AND PRESIDENT TRUMP

[This article first appeared on billmoyers.com on February 15, 2017 (updated on on February 17). You can read the earlier installments in my Trump Resistance Plan series here.]

The last installment of the Trump Resistance Plan began with Thomas Paine’s 1776 observation in Common Sense, “Time makes more converts than reason.”

Sometimes, it doesn’t take much time at all. Russia interfered with an American presidential election; Congressional Republicans unwilling to convert and seek the truth no longer have anywhere to hide.

Putin’s 2016 Ticket

Investigative reporters have begun to fill out the Trump/Russia timeline. To keep everything in one location, here’s an updated summary (so far):

— Trump’s efforts to develop business in Russia date to 1987. In 1996, he applied for his trademark in that country. Discussing ambitions for a Trump hotel in 2007, he declared, “We will be in Moscow at some point.”

October 15, 2007, Trump said: “Look at Putin – what he’s doing with Russia – I mean, you know, what’s going on over there. I mean this guy has done – whether you like him or don’t like him – he’s doing a great job.”

September 2008, Donald Trump, Jr. said: “Russians make up a pretty disproportionate cross-section of a lot of our assets… we see a lot of money pouring in from Russia.”

June 18, 2013, Trump tweeted: “Do you think Putin will be going to The Miss Universe Pageant in November in Moscow – if so, will he become my new best friend?” While at the pageant, Trump said, “I have plans for the establishment of business in Russia. Now, I am in talks with several Russian companies to establish this skyscraper.”

— October 17, 2013: On The Late Show, David Letterman asked Trump, “Have you had any dealings with the Russians?” Trump answered, “Well I’ve done a lot of business with the Russians…” Letterman continued, “Vladmir Putin, have you ever met the guy?” Trump said, “He’s a tough guy. I met him once.”

November 2013, Trump said: “I do have a relationship [with Putin] and I can tell you that he’s very interested in what we’re doing here today [at the Miss Universe Pageant in Moscow]… I do have a relationship with him… He’s done a very brilliant job in terms of what he represents and who he’s represented.”

November 11, 2013, Trump tweeted: “TRUMP TOWER-MOSCOW is next.”

March 6, 2014, Trump said: “You know, I was in Moscow a couple of months ago. I own the Miss Universe Pageant and they treated me so great. Putin even sent me a present, a beautiful present.” On the same day, President Obama signed an Executive Order imposing sanctions on Russia for its unlawful annexation of Crimea.

— June 16, 2015: Trump declares his candidacy for president.

— September 29, 2015, Trump told Bill O’Reilly: “I will tell you in terms of leadership he [Putin] is getting an ‘A,’ and our president is not doing so well.”

November 10, 2015, Trump said: “I got to know [Putin] very well because we were both on 60 Minutes. We were stablemates, and we did very well that night.”

— December 10, 2015: Lt. Gen. Mike Flynn, who would become Trump’s National Security Adviser, sat at Putin’s table for the 10th anniversary gala of Russia’s state-owned television propaganda network, RT. Flynn had made a paid appearance on the network. 

February 17, 2016: As questions about Russia swirled around Trump, he changed his story: “I have no relationship with [Putin], other than he called me a genius.”

— April 20, 2016: Paul Manafort became Trump’s campaign manager. Reports surfaced about his 2007 to 2012 ties to Ukraine’s pro-Putin former president, whom Manafort had helped to elect. 

— July 18, 2016: The Washington Post reported that the Trump campaign worked behind the scenes on a Republican convention platform plank. It gutted the GOP’s longstanding support for Ukrainians’ popular resistance to Russia’s 2014 intervention.

July 22, 2016: On the eve of the Democratic National Convention, WikiLeaks released its first trove of emails stolen from the DNC.

July 27, 2016, Trump said: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” At the same press conference, he insisted: “I never met Putin. I’ve never spoken to him.” In an interview with CBS, he reiterated: “But I have nothing to do with Russia, nothing to do, I never met Putin, I have nothing to do with Russia whatsoever.”

— July 31, 2016: Manafort denied knowing anything about the change in the Republican platform. That afternoon, Boris Epshteyn, Trump’s Russian-born adviser, spouted the Kremlin’s party line telling CNN: “Russia did not seize Crimea. We can talk about the conflict that happened between Ukraine and the Crimea…But there was no seizure by Russia. That’s an incorrect statement, characterization, of what happened.”

— August 6, 2016: NPR confirmed the Trump campaign’s involvement in the Republican platform change on Ukraine.

—August 19, 2016: As reports of Manafort’s financial connections to Ukraine intensified, he resigned from the Trump campaign.

— October 1, 2016: Six days before Wikileaks released emails that the Russians had hacked from John Podesta’s email account, Trump’s informal adviser and surrogate, Roger Stone tweeted: “Wednesday@HillaryClinton is done. #Wikileaks.”

October 4, 2016: Trump tweeted: “CLINTON’S CLOSE TIES TO PUTIN DESERVE SCRUTINY.”

— October 7, 2016: In a joint statement, the Department of Homeland Security and the Director of National Intelligence said, “The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of e-mails from U.S. persons and institutions, including from U.S. political organizations… We believe, based on the scope and sensitivity of these efforts, that only Russia’s senior-most officials could have authorized these activities.” But two other stories dominated the news cycle: WikiLeaks began publishing stolen emails from the account of Hillary Clinton campaign chairman John Podesta, and Trump’s infamous Access Hollywood tapes became public.

October 12, 2016: Roger Stone told NBC News, “I have back-channel communications with WikiLeaks.”

October 19, 2016: During the third presidential debate, Trump dismissed the October 7 U.S. intelligence findings: “[Clinton] has no idea whether it is Russia, China or anybody else… Our country has no idea.” And he said this: “I don’t know Putin. I have no idea… I never met Putin. This is not my best friend.”

— November 9, 2016: After Putin announced Trump’s election victory, Russia’s Parliament erupted in applause.

— November 10, 2016: Russia’s deputy foreign minister admitted that during the campaign, the Kremlin had continuing communications with Trump’s “immediate entourage.”

December 9, 2016: In response to a Washington Post report that the CIA had concluded Russia had intervened in the election to help Trump win, he said, “These are the same people that said Saddam Hussein had weapons of mass destruction. The election ended a long time ago in one of the biggest Electoral College victories in history. It’s now time to move on and ‘Make America Great Again.’ ”

December 11, 2016: Trump praised Rex Tillerson, chairman of Exxon Mobil and recipient of Russia’s “Order of Friendship” Medal from Vladimir Putin in 2013, as “much more than a business executive” and a “world-class player.” Trump said Tillerson “knows many of the players” and did “massive deals in Russia” for Exxon. Two days later, Trump nominated him to be Secretary of State.

— Also on December 11, 2016: Asked about the earlier U.S. intelligence report on hacking, Trump said, “They have no idea if it’s Russia or China or somebody. It could be somebody sitting in a bed some place. I mean, they have no idea.”

December 13, 2016: NBC News’ Richard Engel reported from Moscow on Trump’s secretary of state pick, Rex Tillerson. Former Russian Energy Minister Vladimir Milov told Engel that Tillerson was a “gift for Putin.”

December 29, 2016: On the same day that President Obama announced Russian sanctions for its interference with the 2016 election, NSA-designate Lt. Gen. Flynn placed five phone calls to the Russian ambassador.

December 30, 2016: After Putin made a surprise announcement that Russia would not retaliate for the new sanctions, Trump tweeted, “Great move on delay (by V. Putin) – I always knew he was very smart.”

January 3January 4, and January 5, 2017: Trump tweeted a series of attacks on the integrity of the U.S. intelligence community’s findings that Russia had hacked the election.

January 6, 2017:The CIA, FBI and NSA released their unclassified report concluding unanimously, “Vladimir Putin ordered an influence campaign in 2016 aimed at the U.S. presidential election. The three intelligence agencies agreed that “the Russian Government aspired to help President-elect Trump’s election chances when possible.” The report also stated that Wikileaks had been Russia’s conduit for the effort.

— January 11, 2017: At his first news conference, Trump said, “As far as hacking, I think it was Russia. But I think we also get hacked by other countries and other people.”

— Also on January 11, 2017: the final question of Trump’s news conference came from Ann Compton of ABC News:

“Mr. President-elect, can you stand here today, once and for all, and say that no one connected to you or your campaign had any contact with Russia leading up to or during the presidential campaign?”

Trump never answered her. Away from cameras and heading toward the elevators, he reportedly said, “No,” his team didn’t have contact with Russia.

The Flynn Affair

January 13, 2017: In response to The Washington Post’s article about General Flynn’s December 29 conversations with the Russian ambassador, press secretary Sean Spicer said it was only one call. They “exchanged logistical information” for an upcoming call between Trump and Vladimir Putin after the inauguration.

January 15, 2017: “We should trust Putin,” Trump told The Times of London. Expressing once again his skepticism about NATO, Trump lambasted Germany’s Chancellor Angela Merkel.

January 15, 2017: Appearing on CBS’s Face the Nation, Vice President Pence said Flynn’s call to the Russian ambassador on the same day President Obama announced new sanctions was “strictly coincidental”: “They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure on Russia…. What I can confirm, having to spoken with [Flynn] about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.”

— January 22, 2017: Lt. Gen. Mike Flynn was sworn in as National Security Adviser, a position that did not require Senate confirmation.

January 23, 2017: At Sean Spicer’s first press briefing, he said that none of Flynn’s conversations with the Russian ambassador touched on the December 29 sanctions. That got the attention of FBI Director James Comey. According to the Wall Street Journal, Comey convinced Acting Attorney General Sally Yates to delay informing the White House immediately about the discrepancy between Spicer’s characterization of Flynn’s calls and U.S. intelligence intercepts showing that the two had, in fact, discussed sanctions. Comey asked Yates wait a bit longer so the FBI could to develop more information, including an interview of Flynn that occurred shortly thereafter.

— January 24, 2017: According to a subsequent article in The Washington Post, Flynn reportedly denied to FBI agents that he had discussed U.S. sanctions against Russia in his December 2016 calls with the Russian ambassador.

January 26, 2017: Acting Attorney General Yates informed White House counsel Don McGahn that Flynn had made misleading statements about his late December conversations with the Russian ambassador. Sean Spicer later said that Trump and a small group of White House advisers were “immediately informed of the situation.”

— January 30, 2017: Trump fired Acting Attorney General Sally Yates. According to his statement, the reason was that she had “betrayed the Department of Justice” by refusing to defend Trump’s travel ban in court.

February 8, 2017: Flynn told reporters at The Washington Post that he did not discuss U.S. sanctions in his December conversation with the Russian ambassador.

— Also on February 8, 2017: Jeff Sessions, the first senator to endorse Trump’s candidacy and the former chair of theTrump campaign’s national security advisory committee, became Attorney General. Every Republican senator and Democrat Joe Manchin of West Virginia voted to confirm him. During the confirmation process, Sessions had said he was “not aware of any basis to recuse myself” from the Justice Department’s Russia-related investigations of Trump.

February 9, 2017: Through a spokesman, NSA Mike Flynn changed his position: “While [Flynn] had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

February 10, 2017: Trump told reporters he was unaware of reports surrounding Flynn’s December conversations with the Russian ambassador.

February 13, 2017: The Washington Post broke another story: Then-acting Attorney General Yates had warned the White House in late January that Flynn had mischaracterized his December conversation with the Russian ambassador, and that it made him vulnerable to Russian blackmail. Later that evening, Flynn resigned.

February 14, 2017: The New York Times corroborated the Russian Deputy Foreign Minister’s admission on November 10. Based on information from four current and former American officials, the Times reported, “Members of the Trump campaign and other Trump associates had repeated contacts with senior intelligence officials in the year before the election.” Meanwhile, advisers to Attorney General Jeff Sessions reiterated his earlier position: Sessions saw no need to recuse himself from the ongoing Justice Department investigations into the Trump/Russia connections.

February 15, 2017: Trump tweeted a series of outbursts attacking the Trump/Russia connection as “non-sense” and diverting attention to “un-American” leaks in which “information is illegally given out by ‘intelligence’ like candy.”

Shortly thereafter, Utah Rep. Jason Chaffetz and other congressional Republicans formally asked the Justice Department’s Inspector General to investigate the leaks, but they and their GOP colleagues resisted the creation of an independent bipartisan commission with the power to convene public hearings and discover the truth about the Trump/Russia connections.

During an afternoon appearance with Israel’s Prime Minister Benjamin Netanyahu, Trump refused to answer questions about connections between his presidential campaign and Russia. That evening, The New York Times reported that Trump was planning to appoint Stephen A. Feinberg, a billionaire hedge fund manager and Trump ally, to lead “a broad review of American intelligence agencies.” Feinberg has no prior experience in intelligence or government, but he has close ties to Steve Bannon and Jared Kushner.

— February 16, 2017: Trump continued his diversionary twitter assault on intelligence leaks that were intensifying scrutiny of his Russia connections. At Trump’s afternoon press conference, he said: “I own nothing in Russia. I have no loans in Russia. I don’t have any deals in Russia… Russia is fake news. Russia — this is fake news put out by the media.” Reporters asked repeatedly about anyone else involved with Trump or his campaign. “No,” Trump said. “Nobody that I know of… Russia is a ruse.”

Keep Sending the Message

In response to the latest controversy surrounding Mike Flynn and Russia, Trump tweeted a Valentine’s Day diversion: “The real story here is why are there so many illegal leaks coming out of Washington?”

No, the real story is the question Trump ducked on January 11 and deflected repeatedly on February 16: What contact did Trump or anyone on his team have with Russia before the U.S. election?

Stay on message. Tell Republicans in Congress that American democracy requires an answer – under oath – to Ann Compton’s January 11, 2017 question: “Mr. President-elect, can you stand here today, once and for all, and say that no one connected to you or your campaign had any contact with Russia leading up to or during the presidential campaign?”

Putin knows the answer. So does the Russian Deputy Foreign Minister who said in November that the Kremlin had maintained continuing communications with Trump’s “immediate entourage” prior to the election. So do any campaign members and other Trump associates who, according to The New York Times, had “repeated contacts with senior Russian intelligence officials in the year before the election.”

But the American people don’t, and that asymmetry of information could give Putin the power to blackmail the country’s leaders. On January 7, Senator Lindsay Graham urged an investigation “wherever it leads.” A few Republicans want the Senate Intelligence Committee to add the Flynn affair in its ongoing inquiry – but they’re offering too little, too late. At this point, a credible investigation requires the approach that Senator John McCain initially proposed: a bipartisan commission with subpoena power. American democracy can no longer trust Senate Republicans to run this show. Nor can hearings be conducted secretly.

Congress must authorize a special independent 9/11-type commission. Step 2 of The Trump Resistance Plan has contact information for messages to Republicans and Democrats in Congress. The message to all of them is simple: “Step up, stand strong, and save democracy while someone still can.”

 Call, write, email, march, and win.

PRAISING STEPHEN MILLER? SERIOUSLY?

Donald Trump liked what he saw in adviser Stephen Miller’s appearances on the February 12 Sunday morning talk show circuit:

“Congratulations Stephen Miller – on representing me this morning on the various Sunday morning shows. Great job!” Trump tweeted, as the world pondered North Korea’s missile test.

Question: What had the 31-year-old Miller — a non-lawyer who had been Jeff Sessions’ communications director before joining the Trump campaign — done to deserve such praise from his boss?

Answer: Betray a tragic ignorance of the U.S. Constitution while continuing Trump’s assault on the judiciary.

And he majored in political science at Duke!

Dangerous Stuff

“There’s no such thing as judicial supremacy,” Miller told NBC’s Chuck Todd.

“The judiciary is not supreme,” he said to ABC’s George Stephanopoulos.

“We have a judiciary that has taken far too much power and become in many cases a supreme branch of government,” Miller explained to CBS’s John Dickerson. Then came his most chilling line: “The end result of this, though, is that our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”

That’s third world dictator-type rhetoric coming from a top presidential adviser. No competent attorney who cared about the U.S. Constitution could have vetted Miller’s talking points. Judicial review and the power of federal judges to invalidate unconstitutional executive and legislative actions date to the early years of the republic.

Where Are the Lawyers?

The principle is not negotiable. Perhaps some of Trump’s key advisers with law degrees could tell him. There are plenty to choose from: Vice-President Mike Pence (J.D., ’86, Indiana University), Kellyanne Conway (J.D., ’92, George Washington University), Jared Kushner (J.D.’07, NYU), Reince Priebus (J.D., ’98, University of Miami), White House counsel Donald McGahn II (J.D, ’94, Widener University Law School), and many more. But that would require telling Trump something that he doesn’t want to hear.

Trump and his key advisers swore an oath to uphold the Constitution of the United States. It’s time for someone to conduct a brief in-house seminar on its key principles. I’ll bet the attorneys who attended could even get continuing legal education credit for it.

TRUMP CONFLICTS PLAN – Part 3

It seems like a long time ago. On January 11, Donald Trump’s lawyers revealed a plan to resolve the clash between his business interests and his presidential duties. Whether the result of impulse, intention, or incompetence, his subsequent chaos has accomplished one objective: He diverted attention from his plan’s assault on one of American democracy’s central pillars: a presidency free of institutionalized corruption.

This installment addresses his conflict of interest problems. They are related to — but distinct from — his constitutional Emoluments Clause violations addressed in Part 2 of this series. Part 1 described the unfortunate role that Sheri Dillon and her law firm, Morgan, Lewis & Bockius, played in shilling for Trump’s plan.

A Lawyerly Approach

Dillon, a tax lawyer, focused on a technical legal question: Does the federal conflict of interest statute applicable to all other federal employees apply to the president?

By its terms, the answer is no. But just because something is legal doesn’t make it right. And when it comes to preserving the integrity of the presidency in ways that protect it from corruption and impropriety, legal permissibility is just the beginning of the relevant inquiry. But not for Trump.

Trump’s attitude in making the deal that resulted in the Morgan Lewis Plan was that of a negotiator who held all the cards. Whatever he offered, his opposing parties — the office of the president and the country — could not refuse. He admitted it:

“[A]s you know, I have a no-conflict situation because I’m president….it’s a nice thing to have… I have something that others don’t have…”

Bigger Stakes

To counter Trump’s continuing conflation of the issues, Walter Shaub, director of the Office of Government Ethics, set him straight:

“Now, some have said that the President can’t have a conflict of interest, but that is quite obviously not true. I think the most charitable way to understand such statements is that they are referring to a particular conflict of interest law that doesn’t apply to the President…”

As Shaub explained, “Common sense dictates that a President can, of course, have very real conflicts of interest. A conflict of interest is anything that creates an incentive to put your own interests before the interests of the people you serve.”

Who Represents America? 

Shaub then cited Chief Justice Earl Warren’s opinion in a 1961 U.S. Supreme Court decision. The chief justice observed that a conflict of interest is “an evil which endangers the very fabric of a democratic society, for a democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of corruption.”

Shaub outlined the implications for Morgan Lewis’s assignment:

“That same Court referred to what it called a ‘moral principle’ underlying concerns about conflicts of interest. The Court cited…’the Biblical admonition that no man may serve two masters, a maxim which is especially pertinent if one of the masters happens to be economic self-interest.’ A President is no more immune to the influence of two masters than any subordinate official. In fact, our common experience of human affairs suggests that the potential for corruption only grows with the increase of power.”

“For this reason,” Shaub emphasized, “it’s been the consistent policy of the executive branch that the president should act as though the financial conflict of interest law applied.”

The question isn’t mere technical compliance with a statute; it’s preserving a central norm that underlies the moral authority of the nation’s highest office.

What Would Scalia Say

Even Trump’s model U.S. Supreme Court Justice, Antonin Scalia, lands on Shaub’s side of the argument. In a 1974 memorandum, then-Justice Department attorney Scalia concluded that the text of a particular conflict of interest law didn’t apply to the president. Remarkably, Dillon cited that memorandum to support her position. She didn’t discuss Scalia’s final recommendation in that memo:

“Notwithstanding the conclusion that neither the Executive Order nor the regulations pursuant to it legally bind the President or Vice-President, it would be undesirable as a matter of policy for the President or Vice-President to engage in conduct proscribed by [them]…. Failure to observe these standards will furnish a simple basis for damaging criticism, whether or not they technically apply,”

Shaub emphasized Scalia’s point: Those at the top of government set the example for everyone else — at least they should.

“The sheer obviousness of Justice Scalia’s words,” Shaub continued, “becomes apparent if you just ask yourself one question: Should a President hold himself to a lower standard than his own appointees?”

Missing the Big Picture

The Morgan Lewis Plan ignores that big picture. In waiving the attorney-client privilege by divulging Trump’s directives for developing a plan, Dillon opened the door to several unanswered questions:

— What limits did put he on removing himself from his business?

— Did his attorneys recommend additional steps?

— Did Trump reject them?

Here’s a directive that Trump did not give:

“I want to preserve the integrity of the presidency. There can be no basis for any claim that anyone — foreign or domestic — is trying to curry favor through my family businesses. Even the appearance of a bribe, corruption, self dealing, or other impropriety is unacceptable. Tell me what is necessary, and I will do it. The presidency demands no less.”

That command would not have produced the plan that Dillon tried to sell Americans on January 11:

— Rather than divest Trump from his business, it allows him to reap its benefits while in office.

— Rather than establish an independent trustee to manage his business assets, it places control in the hands of his two adult sons and a current Trump executive.

— Rather than maintain even the pretense of a blind trust, it permits Trump to see periodic reports of how his business is doing.

The plan’s failures are equally evident from its illusory window dressing: a “trust” that is far from blind; a promise that the Trump Organization won’t do any new foreign deals; an “Ethics Advisor” to sign off on new domestic deals (backsliding from Trump’s December 12 tweet, “No new deals will be done during my term(s) in office”); an unenforceable assurance that Trump will learn about new deals “only through the media, as the American people would.” (The last promise is another violation of a blind trust principle, namely, that he should know nothing whatsoever about his personal financial affairs while in office.)

And then there is the ultimate window dressing in human form — Fred Fielding, who served as associate and deputy counsel for President Richard Nixon from 1970 to January 1, 1974. He was there for Watergate. He was there for the “Saturday Night Massacre” when Nixon fired his attorney general and deputy AG before finding someone willing fire independent counsel Archibald Cox, who had asked Nixon to produce his White House tapes.

“Mr. Fielding has been extensively involved with and approved this plan,” Dillon declared at the press conference.

Fielding didn’t say a word.

It’s hard to believe that it was only three weeks ago. I wonder what Fred Fielding thought on January 30, when Trump fired acting Attorney General Sally Yates. In eroding the integrity and dignity of the presidency, Trump has already made Richard Nixon look like an amateur — and a saint.