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.

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 TAX RETURNS: PART I — INFERENCES AND EVIDENCE

[NOTE: On Friday, October 7, I’ll be appearing at the Thomson Reuters Legal Executive Institute’s “Law Firm Leaders Forum” in New York City. Our panel’s topic is “Long Day’s Journey Into Night: The Evolving Law Firm Partnership and Strategic Models.” Now, on to more important matters…]

Four months ago, I wrote that Donald Trump’s excuses for refusing to release his tax returns were silly. He said he was “under audit,” but his campaign had released a letter from his lawyers at Morgan Lewis & Bockius confirming that the IRS had closed its examination for years prior to 2008 “without assessment or payment, on a net basis, of any deficiency.”

Presumption: Trump Paid Little or No Federal Taxes

If the pending audit is an issue, why wasn’t he releasing returns through 2008? There was no good answer to that one. So in a September 14 interview with the Pittsburgh Tribune-Review, Donald Trump, Jr. offered a new explanation:

“Because he’s got a 12,000-page tax return that would create … financial auditors out of every person in the country asking questions that would distract from [his father’s] main message.”

(The next morning, Trump Jr. made an unfortunate reference to “gas chambers.” Five days later, he compared Syrian refugees to a bowl of Skittles, sprinkled with a few “that could kill you.”)

Eight hours before the first Presidential debate, Republican Congressman Chris Collins came up with an equally absurd reason for Trump’s refusal to release his tax returns:

“He does not want to give his competitors the advantage of knowing the money he makes or doesn’t make in every partnership he’s involved in… You don’t disclose that kind of information to competitors. That is bad business.”

For someone seeking the Presidency, that explanation is idiotic. In fact, the argument is so ridiculous that Trump himself gutted it during the debate, when he pledged to release his returns upon completion of the current IRS audit. The truth is that — win or lose — Trump will never release his tax returns. If the pendency of an audit mattered, he would have released his pre-2008 returns long ago.

Irresistible Inference from Limited Evidence: Trump Paid Little or Federal No Federal Taxes

In May, I suggested that Trump’s reluctance could stem from the fact that, like many real estate developers who can utilize favorable rules relating to that business, he probably has paid relatively little, if any, federal taxes for decades. In August, James B. Stewart of The New York Times picked up that baton and ran with it.

Paying little or no tax, Stewart notes, was consistent with Trump’s “returns from the late 1970s, which he filed with the New Jersey Casino Control Commission when applying for a casino license in 1981. Mr. Trump reported losses and paid no federal income tax in 1978 and 1979 and paid only modest sums — a total of less than $75,000 — for the prior three years.”

Pulitzer prize-winning investigative reporter David Cay Johnston wrote in The Daily Beast that Trump also paid no income tax in 1984, citing a New York State Division of Tax Appeals ruling.

More Evidence That Trump Paid No Taxes

During the first Presidential debate, Hillary Clinton pressed the issue again. Trump took the bait — and then some.

CLINTON: “Or maybe he doesn’t want the American people, all of you watching tonight, to know that he’s paid nothing in federal taxes, because the only years that anybody’s ever seen were a couple of years when he had to turn them over to state authorities when he was trying to get a casino license, and they showed he didn’t pay any federal income tax.”

TRUMP (in one of his 25 interruptions of Clinton): “That makes me smart.”

In the law, Trump’s statement is called an admission. In a courtroom, the trier of fact would hear it. Admissions are the most damning form of evidence against a party. Juries weigh them heavily in deciding contested issues of fact.

Later in the debate, Trump interrupted Clinton again:

CLINTON: “And maybe because you haven’t paid any federal income tax for a lot of years.” [APPLAUSE] “And the other thing I think is important…”

TRUMP: “It would be squandered, too, believe me.”

That’s another admission. After the debate, an NBC reporter followed up directly with Trump in the “spin room,” and he dodged the question.

Conclusion: There’s More

“So if he’s paid zero,” Clinton said, “that means zero for troops, zero for vets, zero for schools or health. And I think probably he’s not all that enthusiastic about having the rest of our country see what the real reasons are, because it must be something really important, even terrible, that he’s trying to hide.”

What could that something terrible be? Clinton offered examples.

“First, maybe he’s not as rich as he says he is. Second, maybe he’s not as charitable as he claims to be. Third, we don’t know all of his business dealings, but we have been told through investigative reporting that he owes about $650 million to Wall Street and foreign banks.”

Trump responded in a bizarre fashion. He offered to release a list of his banks, and said he that he’ll release his tax returns as soon as Clinton releases her 33,000 deleted emails — an obvious impossibility.

“So it’s negotiable,” moderator Lester Holt suggested, referring to the release of Trump’s returns.

“No, it’s not negotiable,” Trump responded, quickly backing away from his meaningless bluff.

Why does Trump fear transparency in a way that distinguishes him from every presidential candidate in the last four decades? Because, as Trump himself might say, there’s something there. And that something may go well beyond Clinton’s checklist of possibilities.

One reason that Donald Trump refuses to release his tax returns could be the most important of all to voters. In my next post, I’ll discuss it. Here’s a hint: the title of that installment will be “From Russia With Love.”

THE REAL STORY OF THE NEW YORK PRIMARY

It was a “Dewey Defeats Truman” moment.

Shortly after the polls closed on primary election night in New York, CNN made a bold prediction. Its exit polling showed Hillary Clinton and Bernie Sanders locked in a tight Democratic primary race. Clinton’s win would be close, Wolf Blitzer said: 52 percent to 48 percent.

Less than an hour later, that prediction was as laughable as the famous November 3, 1948 Chicago Tribune headline announcing that voters had elected Thomas E. Dewey President of the United States.

Statistically, the CNN call was far worse. In the end, Truman beat Dewey 49 to 45 percent. Clinton won New York — 58 to 42 percent.

When the News is News

One interesting aspect of the CNN mistake is how quickly it disappeared from public sight. That’s because all major media outlets use exit polling to predict results as soon as they can. First-predictors are the first to attract viewers. There’s no incentive for any of them to throw mud on a process that they all use as a marketing gimmick.

Another aspect is the paucity of discussion over what went wrong at CNN. I don’t know the answer, but this article isn’t about that. It’s about the real lesson of the episode: The use of statistics can be a perilous exercise.

Law Schools

Data are important. It’s certainly wise to look at past results in weighing future decisions. But it’s also important to cut through the noise — and separate valid data from hype.

For example, if less than one-third of a particular law school’s recent graduates are finding full-time long-term jobs requiring a JD, prospective students are wise to consider carefully whether to attend that school. But it becomes more difficult when some law professor argues that the average value of a legal degree over the lifetime of all graduates is, say, a million dollars.

It’s even more challenging when law deans and professors repeat the trope as if it were sacrosanct with a universal application every new JD degree-holder from every school. And it sure doesn’t help when schools with dismal full-time long-term JD employment outcomes tout, “Now is the Time to Fulfill Your Dream of Becoming a Lawyer.”

Law Firms

Likewise, based on their unaudited assessments, leaders of big law firms confess that only about half of their lateral hires over the past five years have been breakeven at best. And that not-so-successful rate has been declining.

Law firms are prudent to consider carefully that data before pursuing aggressive lateral hiring as a growth strategy. But it becomes more difficult when managing partners seek to preside over expanding empires. And it doesn’t help when law firm management consultants keep overselling the strategy as the only means of survival.

Data should drive decisions. But the CNN misfire is a cautionary tale about the limits of statistical analysis. Sometimes numbers don’t tell the whole story. Sometimes they point people in the wrong direction. And sometimes they’re just plain wrong.