TRUMP’S CONFLICTS PLAN – Part 2

On January 22, 2017, Kellyanne Conway confirmed what everyone should have known all along: Donald Trump is never going to release his tax returns. Lawyers who rose to defend Trump’s silly “under audit” excuse from a man seeking the nation’s highest office might want to think twice before embracing his plan to deal with his business conflicts of interest.

“Fool me once….”

The first installment in this series dealt with the unfortunate role of Sheri Dillon and her firm, Morgan Lewis & Bockius, in shilling for Trump. This and future posts detail some of the Morgan Lewis Plan’s deficiencies.

The clash between Donald Trump’s businesses and the integrity of the presidency creates three separate issues: violation of the U.S. Constitution’s emoluments clause prohibiting federal officials from accepting benefits from foreign countries, conflicts of interest generally, and federal statutes relating to those conflicts.

Trump conflates and confuses these three issues with a single imprecise and inaccurate phrase: “The President can’t have conflicts.” Let’s keep the issues straight, starting with the emoluments clause.

Emoluments

In the final minutes of her speech, Dillon discussed Trump’s constitutional problem. Her framing of the issue adhered to an accompanying Morgan Lewis “White Paper” that was as masterful as it was disingenuous:

“Some commentators have claimed that the Constitution prevents the President-elect from owning interests in businesses that serve foreign customers. In particular, they object to the Trump International Hotel in Washington, D.C.”

In that nifty sleight-of-hand, Dillon elided past Trump’s even bigger foreign-state problems: loans from banks to the Trump Organization and its projects, tenants paying rent for office space in its buildings, investors, and unknown other foreign-state connections to his assets. Never mind Trump’s tax returns. Ascertaining the financial structure of Trump’s empire goes far beyond whatever they might show. Just ask any real estate developer.

Dissecting the Plan

The Morgan Lewis White Paper’s emoluments defense starts with this premise: “The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text.”

Yes and no. The late Justice Antonin Scalia championed such “originalism.” The White Paper’s sole supporting citation for its premise is a book that Scalia co-authored. But as recently as 2005, even Justice Scalia acknowledged that originalism was a minority view:

“I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”

More importantly, Justice Scalia noted that even for originalists, the text is only the beginning of constitutional interpretation, not the endpoint. In a 1988 lecture, he offered this example:

“What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an eighth amendment challenge.”

Moving Beyond the Words

Justice Scalia understood that a slavish adherence to the Constitution’s language can produce “medicine that seems too strong to swallow.” (Scalia also had things to say about presidential conflicts of interest generally, but we’ll get to those next time.)

Morgan Lewis’s argument qualifies as originalist medicine “too strong to swallow.” Among the founding fathers’ foremost concerns was foreign influence over America’s political leaders. In Federalist No. 68, Alexander Hamilton wrote about the necessity of protecting elections from foreign interference. In Federalist No. 22, he wrote, “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”

Discussing the emoluments clause in 1986, then-Assistant Attorney General Samuel A. Alito, Jr. wrote, “[T]he answer to [an] Emoluments clause question must depend [on] whether the [arrangement] would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition.”

None of those principles made the cut in the Morgan Lewis presentation. But consistent with Sheri Dillon’s expertise as a tax lawyer, technical legal arguments did.

Words Not Found in the Constitution

“So long as foreign governments pay fair-market-value prices,” the Morgan Lewis White Paper continues, “their business is not a ‘present’ because they are receiving fair value as a part of the exchange.” It argues that any transaction at “fair-market-value” between Trump businesses and foreign states is not a violation of the emoluments clause.

That’s another nifty and unpersuasive sleight-of-hand. For good reason, the words “fair-market-value” are nowhere in the Constitution. The concept does not satisfy the Constitution’s core concern. Any foreign state patronizing a Trump-owned or licensed business knows that it confers a financial benefit on Trump. So does Trump.

As Sheri Dillon put it, “President Trump can’t unknow he owns Trump Tower….” And as her client told The New York Times on November 22: “The brand is certainly a hotter brand than it was before.”

Self-Refuting Arguments

“The Constitution does not require President-elect Trump to do anything here,” Dillon asserted. Nevertheless, he’ll “donate all profits from foreign government payments made to his hotel to the United States Treasury.” The Morgan Lewis White Paper broadens his largesse to include “his hotels and similar businesses,” whatever that means.

In one sense, that concession is a tacit acknowledgement of his larger problem. How about other Trump enterprises? Foreign loans to his projects? Royalties and licensing fees? And how will the Trump Organization calculate profits from foreign governments’ individual stays at his hotels?

On January 18, 2017, The Wall Street Journal reported Trump spokeswoman Hope Hicks’ response to some of those questions: Accounting and financial personnel “will perform the profit calculation and would track payments from foreign governments” which will be done “through its accounting systems.”

Pressed for clarification, Hicks answered, “Profit is calculated as revenues minus expenses = profit.”

Winners and Losers

The January 23 complaint against Trump details just some of his known business interests that collide with his presidential duties. It’s a safe bet that Trump’s attorneys will do everything they can to avoid testing the substantive arguments that Sheri Dillon and the Morgan Lewis White Paper presented on January 11.

Instead, they will try to prevent any court from reaching the merits of their originalist argument. They’ll probably focus on whether the plaintiff in this and other cases has suffered a sufficient injury to sue (“standing”). They might assert that only Congress can resolve the issue because it presents “political questions.” Perhaps they’ll urge that the only remedy for a presidential breach of the emoluments clause is impeachment.

One great danger is that if any of those preliminary defenses prevail, Trump will overstate his victory as proof that he was right all along: “The president can’t have conflicts.”

If a court gets to the merits of the claims, the Morgan Lewis legal arguments will get a severe test that they aren’t likely to pass. If Trump’s lawyers lose, their client still wins: Trump will have lawyers to blame.

However it turns out, the country is the loser. It already is.

THE TRUMP RESISTANCE PLAN: STEP 2

[This article first appeared on billmoyers.com on January 23, 2017. It’s the fourth in my series and you can read the first three installments herehere, and here.]

“It is not in numbers, but in unity, that our great strength lies…”

— Thomas Paine, Common Sense (1776)

Americans acting in good faith are destined to disagree on many issues of public concern. Colonists fighting the Revolutionary War couldn’t agree on much either, but they fought side-by-side for independence from foreign governments and the rejection of official corruption. Those two founding principles formed central pillars of American democracy. They still do.

Facts Are Stubborn Things

The truth is that on a critical issue, we are more united today than most people may realize, but not in a way Donald Trump likes. His approval ratings have plummeted to dramatic and historic pre-inauguration lows:

ABC News/Washington Post: 40% — Compare that to the three most recent presidents-elect immediately prior to their inaugurations: Obama – 80%; G. W. Bush – 72%; Clinton 81%

Every major poll confirms Trump’s dismal standing with the American people:

CBS: 37%

CNN: 40%

Gallup: 44%

NBC/Wall Street Journal: 44%

Quinnipiac: 37%

Trump famously ignores or denies the accuracy of polls that disfavor him, as he did in this January 17 tweet: “The same people who did the phony election polls, and were so wrong, are now doing approval rating polls. They are rigged just like before.”

That’s Trump’s “Three-D’s Strategy” in action: deflect, divert, and distract. Although pre-election polls missed on individual state totals that determined the electoral college results, they got the popular vote outcome about right: he lost by two percent compared to the final average of all pre-election polls that had him behind by three — well within the polls’ three percent margin of error. Giving Trump the benefit of the same margin barely moves the needle.

Former career pollster Kellyanne Conway and Republicans in Congress surely grasp the harsh truth. Already a historic popular vote loser, Trump is rapidly becoming a regret for many who chose him. As the Republican Party’s albatross, he grows heavier by the hour.

It’s time for Americans to demonstrate their unity, strengthen it, and mobilize.

TRP Unity Strategy #1: Unite in Opposition

Abandon the circular firing squad and look at the big picture: Vladimir Putin and Donald Trump played all of us against each other, and they’re still at it. Rather than continue an internecine battle over how the last war was lost, resolve to prevail in this one.

The disenfranchised American majority should stop squabbling with itself. Some Sanders supporters believe that party regulars betrayed them by tilting the playing field against their guy. Some Clinton supporters think Sanders people didn’t respond with sufficient enthusiasm to her nomination. Jill Stein and Gary Johnson voters think that neither party focused on the correct issues. All of them have a point. Acknowledge it, shake hands, join arms, and move forward together.

TRP Unity Strategy #2: Embrace Trump Voters

Most Trump voters are American patriots, and many are now having buyer’s remorse. Welcome them to the Trump Resistance Plan. Loyal citizens take differing sides on many social and political questions. Organized, issue-related, protests should continue in earnest. But unity in the defense of democracy is now a transcendent imperative for all.

TRP Unity Strategy #3: Search for Senate Help

Guarding against foreign interference in our elections and resisting institutionalized corruption in the presidency are central to preservation of the republic. If Trump prevails in his assault on those fundamental principles, party labels will cease to have meaning. Many Republican senators already understand that vital point, which makes them natural allies of the TRP.

Senator John McCain (R-AZ) chairs the Senate Armed Services Committee seeking the truth about Putin’s interference with the 2016 election. He and Senator Lindsay Graham (R-SC) are leading that charge. Likewise, Senator Richard Burr’s (R-NC) Intelligence Committee is investigating possible connections between the Trump campaign and Russia. Three more Republicans represent states that Hillary Clinton carried: Maine’s Susan Collins, Colorado’s Cory Gardner, and Nevada’s Dean Heller. And another six found candidate Trump’s behavior especially problematic, to say the least: Arizona’s Jeff Flake, Utah’s Mike Lee, Alaska’s Lisa Murkowski and Dan Sullivan, Ohio’s Rob Portman, and Nebraska’s Ben Sasse.

Contact all of them – as well as the senators from your own state – and demand a relentless search for the truth. Write and repeat. Every week, send a message that conveys this central point:

On the January 8 edition of “Meet The Press,” Senator Graham promised to take the Trump/Russia election investigation wherever it leads, including Trump’s business conflicts of interest. Hold him to that promise and support his efforts.

With Democrats unified, it takes only three Republicans to deprive Trump of his leverage over the Senate. Then he’ll have to deal with those representing a majority of Americans who never wanted him in the Oval Office. Most Republicans in Congress will be reluctant warriors. But love of country and the encouragement of fellow citizens will help them do the right thing. Support the brave and bolster the wary.

Unity Strategy #4: Don’t Forget the House

The House of Representatives poses special challenges. Rep. Devin Nunes (R-CA) heads the Permanent Select Committee on Intelligence that could follow the Senate’s lead. But Nunes was also on Trump’s transition team, so send him a message along these lines:

The House must follow the Senate’s lead in pursuing the Trump/Russia election investigation wherever it leads. Choose democracy over the defense of a dangerous president’s reputation.

Even better, give him a call or visit one of his offices. Contact his fellow Republicans on the committee. Encourage Democrats on the committee – especially ranking member Adam Schiff (D-CA) – to remain though and stand strong. In messages to your own state’s representatives who aren’t on Nunes’ committee, express your fear that democracy is in peril.

Unity Strategy #5: Shine a Spotlight on Corruption

Trump’s stonewalling with respect to his financial conflicts of interest undermines the institutional integrity of the presidency. But so far, that crucial norm of democracy has not found strong Republican defenders comparable to Senators McCain and Graham on Russian election interference.

Until a courageous Republican voice emerges, it’s up to Senate Democrats to keep the public focused on the issue. In questioning HUD Secretary-designate Ben Carson, Senator Elizabeth Warren demonstrated skillfully how pervasive Trump’s financial conflict of interest problems are. As Trump’s agenda makes its way through Congress, those problems will become ubiquitous and the spotlight on them must shine ever brighter.

Unity Strategy #6: Think Beyond Your Own Bubble

Regardless of party, support any member of Congress — and anyone else — who stands up to Trump in defending the two central pillars of democracy that he’s attacking. They’re worried about Trump’s branding skills and thinking twice before risking his wrath. That’s a testament to the effectiveness of Trump’s “Bully and Intimidate Strategy.”

As brave patriots step forward – especially those from Trump’s own party and others who voted for him – reward them and rebrand them: America’s New Heroes.

KELLYANNE CONWAY’S TERRIBLE, HORRIBLE, NO GOOD, VERY BAD WEEKEND

Two questions for former Trump campaign manager and now counselor to the president, Kellyanne Conway (who has a JD degree from George Washington University) :

— “Now the you’ve admitted that Trump will never release his tax returns, what did you know and when did you know it?”

— “What is the difference between what you told Meet the Press’s Chuck Todd was ‘alternative fact’ and a lie?”

A message to lawyers who defended candidate Trump’s “under audit” ploy as an appropriate excuse for anyone seeking the presidency: “Consider yourself duped.”

A lesson for any Trump supporter who believed that he would ever release his tax returns or adhere consistently to the truth: “Fool me once, shame on you….”.

THE TRUMP RESISTANCE PLAN: STEP 1

[This article first appeared on billmoyers.com on January 18, 2017. It’s the third in my series and you can read the first two installments here and here.]

“The king and his worthless adherents are got at their old game of dividing the Continent, and there are not wanting among us, Printers, who will be busy in spreading specious falsehoods…”

— Thomas Paine, Common Sense (1776)

When the victors write history, the resulting narrative often focuses on why things happened. Far more important to the contemporaneous participants is the question of how. Mounting an effective resistance requires understanding an adversary’s strategies. Donald Trump’s most effective delivery system is a duet: Trump and Kellyanne Conway. Tracking a single example reveals their techniques.

Strategy #1: Lie

In the tradition of notorious “Strongmen,” Trump promulgates Big Lies. These outrageous fictions are easier to sell because listeners can’t imagine that the speaker would make them up. Since the election, one of Trump’s biggest has been his supposed “landslide” victory that gives him a mandate. The truth is that Trump’s percentage of the popular vote makes him a historic loser — close to Michael Dukakis in 1988. He ranks in the bottom quartile of Electoral College winners.

Strategy #2: Repeat the Lie

To reinforce the Big Lie, Trump and Conway use repetition to create a false reality. It has worked before. Thanks to Trump’s “birther” Big Lie, 72 percent of Republicans still have doubts about President Obama’s American citizenship. Here is a sample of the same technique in action on the “landslide” Big Lie:

“In addition to winning the Electoral College in a landslide…”– Trump tweet, Nov. 27, 2016

“Landslide. Blowout. Historic.”– Conway tweet, Nov. 28, 2016

“We had a massive landslide victory in the Electoral College, as you know…”– Trump’s interview with Fox News’ Chris Wallace on Dec. 11, 2016

All independent fact-checking organizations have rated the “landslide” claim false.

Strategy #3: Deflect, Divert, and Distract

After U.S. intelligence agencies concluded unanimously that Trump’s tenuous victory had come with the aid of Vladimir Putin, he and Conway deployed their “Three ‘D’s’” strategy: deflect, divert, and distract.

Trump deflection on Dec. 9: Mocking U.S. intelligence findings, his transition team issued this terse statement: “These are the same people that said Saddam Hussein had weapons of mass destruction.”

No, they aren’t. Discussing Trump’s false assertion and the enormous changes to intelligence gathering and reporting since 2002, CIA chief John Brennan said, “It’s been light years since the WMD report.”

Conway deflection on Dec. 18: “The professional political left is attempting to foment a permanent opposition that is corrosive to our constitutional democracy and ignores what just happened in this election…The left is trying to delegitimize his election.”

No. Republican stalwart Senators John McCain and Lindsay Graham are leading the charge to investigate Russia’s interference with the election.

Conway deflection and diversion on December 18“In response to CBS News’ John Dickerson’s question about President Obama’s sanctions against Russia’s hacking, she said, “It does seem to be a political response at this point, because it seems like the president is under pressure from Team Hillary who can’t accept the election results.”

No. Senators McCain and Graham are among a bipartisan group complaining that President Obama’s sanctions were not sufficient.

— Trump diversion and distraction on Dec. 31“I know a lot about hacking. And hacking is a very hard thing to prove. So it could be somebody else. And I also know things that other people don’t know, and so they cannot be sure of the situation.”

When asked what he knew that others did not, Trump added this cliffhanger: “You’ll find out on Tuesday or Wednesday.” Trump’s big reveal never materialized.

Trump diversion on Jan. 3: “The ‘Intelligence’ briefing on so-called ‘Russian hacking’ was delayed until Friday, perhaps more time needed to build a case. Very strange!”

Senior intelligence officials told NBC News that the briefing was always set for Friday.

Trump deflection and diversion on Jan. 7After receiving the intelligence briefing, Trump tweeted: “Intelligence stated very strongly there was absolutely no evidence that hacking affected the election results. Voting machines not touched!”

No. The report actually says:We did not make an assessment of the impact that Russian activities had on the outcome of the 2016 election. The US Intelligence Community is charged with monitoring and assessing the intentions, capabilities, and actions of foreign actors; it does not analyze US political processes or US public opinion.” (Emphasis supplied)

Trump’s “voting machine” red herring diverted attention from the report’s conclusion: Putin infected America’s body politic with a sophisticated cyber-assault that included propaganda and the daily drip of Wikileaks materials hacked from Democrats’ computer systems.

Conway deflection on Jan. 8: “In terms of Russia…they did not succeed in throwing the election to Donald Trump. That’s very clear in this report…”

No.

Strategy #4: Bully and Intimidate

If someone resists Trump’s Big Lies, he attacks.

Trump on Jan. 4: “@FoxNews: Julian Assange on U.S. media coverage: ‘It’s very dishonest.’ #Hannity ‘More dishonest than anyone knows.'”

The U.S. intelligence report concluded that to help Trump defeat Hillary Clinton, Russian military intelligence used Julian Assange’s Wikileaks as the vehicle for releasing materials Russia had hacked from the DNC.

— Trump on Jan. 8: “Kellyanne Conway went to @MeetThePress this morning for an interview with @chucktodd. Dishonest media cut out 9 of her 10 minutes. Terrible!”

Network news shows editing guest spots is nothing new, especially guests who deflect, divert, and distract.

— Trump distraction on Jan. 9 (3:27 am): After Meryl Streep’s Golden Globe acceptance speech alluding to Trump’s offensive behavior toward a disabled reporter, he tweeted, “Meryl Streep, one of the most over-rated actresses in Hollywood… Just more very dishonest media!”

Strategy #5: Confuse

All strategies morph into an overriding message: Trust Trump and no one else. Unless he blesses it, believe nothing that you see, hear, or read. Those who question the Great Man are unpatriotic, biased liars. The playground bully has become the school principal.

Already exhausted from an ugly campaign, Americans get dizzy on Trump’s accelerating merry-go-round. The faster it goes, the more difficult to get your bearings. When your head is spinning, it’s impossible to keep your eye on the ball.

Future installments in this series will suggest ways to defeat Trump’s assault. I invite readers to share their ideas. Here’s a modest beginning:

TRP Strategy #1: Disconnect from Trump

Unfollow him. Starve him of attention. Drive down his ratings. When he or his minions appear on TV, change the channel.

Take a cue from the entertainment industry: boycott the Inaugural — unless you’re there to protest peacefully. Everyone else should resist the universal human temptation to watch a train wreck unfold. Tell everyone you know to do likewise. Low ratings will send a message. With his ever-changing stories and grandiose plans, missing his speech won’t mean missing anything that matters. If he can’t reach you, he can’t confuse you.

TRP Strategy #2: Seek the Truth

Some citizens weary of partisan bickering view the unprecedented controversies swirling around Trump as more of the same. They prefer to disengage from everything. It’s tempting. But even leading Republicans agree that Trump is different – and not in a good way. An unwillingness to seek the truth allows purveyors of falsehoods to prevail. Facts know no party lines and ignorance is no friend of democracy.

So after Trump takes office, follow this general rule: Keep close tabs on what Trump does to America and the world, but rely on news source(s) that will rigorously fact-check his every utterance. Follow only credible outlets that are willing to call out a Trump lie when they encounter one. Avoid those that repeat his falsehoods as if they were true, or give his minions a platform for lies and the Three “D’s.”

Apply that standard to me. My columns link every factual assertion to a sourced reference. I invite scrutiny.

TRP Strategy #3: Fight Back

Boycott and tweet out the companies sponsoring irresponsible platforms, so they are held accountable for their actions. Take a look at Sleeping Giants. It provides a do-it-yourself approach to influencing companies that advertise on “hate news” sites. Most of the businesses you challenge will be grateful to hear from you because a computer algorithm chooses their ad sites. Literally, these companies don’t know what they’re doing. The strategy works for “fake news,” too.

Throughout the campaign, Trump’s strategies produced ratings that were a media bonanza. Not any more. Remember that your time and your clicks translate into money for media outlets.

For eight years, American colonists fought to win freedom from Great Britain. Every citizen has a duty to preserve and protect it.

 

TRUMP’S CONFLICTS PLAN – Part 1

Someday, Sheri Dillon and her colleagues at Morgan, Lewis & Bockius may regret her performance at Donald Trump’s January 11 press conference. Public relations people saw the event as “beautiful” and “the best thing ever.” It wasn’t. For the legal profession, it was ugly.

Everyone Gets a Lawyer

Dillon represents a controversial client. So did Clarence Darrow. That’s part of any attorney’s job description. Like all citizens, Donald Trump is entitled legal counsel. In fact, the country’s best hope is that he heeds sound advice from lawyers who aren’t afraid to tell Trump when he’s wrong.

Sheri Dillon is Donald Trump’s tax lawyer. Again, that’s fine. His complex financial affairs require capable tax counsel. But on January 11, Dillon allowed herself and her great law firm to become Trump’s prime public defender of a patently insufficient plan to address his business conflicts of interest and wholly separate Emoluments clause problem under the U.S. Constitution.

Future installments in this series will detail the flaws in the Dillon/Morgan Lewis plan. Based on Dillon’s remarks and an accompanying Morgan Lewis memo, here’s a bottom-line preview from Office of Governmental Ethics Director Walter Shaub:

“[T]he plan does not comport with the tradition of our Presidents over the past 40 years.”

The Lawyer’s Role

Like any client, Trump set the parameters of Sheri Dillon’s engagement and the limits of her authority. Faced with those constraints, she did what lawyers do: Dillon created a plan and then defended it. On January 11, she made a closing argument, just as an attorney would to a judge, a jury, or the IRS.

But this time her audience was the American people. And she had no adversary arguing the other side of the case. In fact, her opposition was a central norm of democracy, namely, an Office of the President free of even the appearance of institutionalized corruption. Until Office of Government Ethics Director Walter Shaub responded with his accurate observations of the plan’s wholesale failures, no one was representing that norm.

This is the first in a series that examines the myriad problems with the Dillon/Morgan Lewis plan and Dillon’s effort to defend it. Along the way, Sheri Dillon morphed into yet another public relations spokesperson for Trump’s talking points.

A Summary of the Plan’s Major Failures

The press conference came complete with theatrical props — piles of papers on a large table near the podium. But Dillon did not provide the pubic with any documents implementing the Dillon/Morgan Lewis plan. Without the ability to scrutinize the various trust instruments and related materials, it’s impossible to verify any of the claims she made about her plan’s ability to do any of the things she promised. But even based on her description, a brief summary of the fatal shortcomings include:

— Trump is not divesting. He will retain all benefits that flow from owning assets that create his massive conflicts of interest. Those conflicts compromise the integrity of the Office of the President. While in that Office, Trump and his family will benefit from any increase in the value of those assets.

— Trump’s children remain active managers of his assets.

— Trump plans to resume management of those assets after his presidency.

— Trump’s agreement to give away hotel profits from foreign governments does not solve his wholly separate Emoluments clause problem. And it’s a red herring that doesn’t even attempt to address the issues arising from his numerous other foreign entanglements — bank loans on Trump structures, payments from building tenants, royalties, and the like.

Dillon was more precise, but Trump conflates his conflicts and Emoluments clause problems. He lumps everything together and talks about “conflicts” that he “cannot have” because he’s president. The truth is that the scope and magnitude of both problems remain unknown because Trump has not revealed the detailed financial structure behind his empire. That includes loans, investors, and other information that even his personal tax returns would not disclose.

About Those Tax Returns

Trump hasn’t released those returns, and he probably never will. At his press conference, Trump reiterated, “I’m not releasing the tax returns because as you know, they’re under audit….”

As he spoke, Sheri Dillon stood nearby. She had co-signed a March 2016 letter, stating that the IRS audits had been completed through 2008. He hasn’t released those earlier returns, either. Her letter explaining why probably presages the argument that Trump will make to withhold all of them forever:

“Your returns for these years report items that are attributable to continuing transactions or activities that were also reported on returns for 2008 and earlier. In this sense, the pending examinations are continuations of prior, closed examinations.”

Hers was a lawyer’s argument. And not a particularly good one for a client who was seeking — and now has won — the Presidency of the United States.

Dillon As Trump’s Newest Minion

Dillon’s completed her transformation from legal adviser to just another Trump spokesperson with her concluding lines:

“We believe this structure and these steps will serve to accomplish the president-elect’s desire to be isolated from his business interests and give the American people confidence that his sole business and interest is in making America great again, bringing back jobs to this country, securing our borders and rebuilding our infrastructure.”

The final words in that sentence — “bringing back jobs to the country, securing our borders and rebuilding our infrastructure” don’t appear in the accompanying “White Paper” on Morgan Lewis letterhead. They’re certainly extraneous to any reasoned professional legal opinion. So are Dillon’s concluding sentences:

“The American people were well aware of President-elect Trump’s business empire and financial interests when they voted. Many people voted for him precisely because of his business success.

“President-elect Trump wants to bring this success to all Americans.”

Donald Trump, Kellyanne Conway (who has a JD), or some other Team Trump person probably wrote that ending. But Dillon spoke it, so whatever fees Trump paid Morgan, Lewis & Bockius for this assignment, he got his money’s worth.

Specifically, Dillon confirmed publicly the soundness of a fatally flawed plan. When things go badly for Trump under that plan, he’ll have lawyers to blame. For him, it’s a win-win. For Dillon and the reputation of a great law firm, not so much.

By The Way…

OGE Director Walter Shaub’s reward for his uncommon courage in speaking the truth about the Dillon/Morgan Lewis plan was an immediate summons to the principal’s office of Rep. Jason Chaffetz (R-UT), chairman of the House Committee on Oversight and Government Reform. After the infamous Access Hollywood tape surfaced, Chaffetz declared that he would not vote for Trump. Three weeks later, he reversed himself and reboarded the Trump train, promising years of investigations into Hillary Clinton if she won.

In light of Dillon’s performance at Trump’s press conference, the most ironic sentence in Chaffetz’s letter to Shaub was this: “Your agency’s mission is to provide clear ethics guidance, not engage in public relations.”

Then came the most threatening passage: “OGE’s statutory authorization lapsed at the end of fiscal year 2007 and the Committee has jurisdiction in the House of Representatives for reauthorizing the office.”

Just when you think Trump’s conflict of interest and Emoluments problems can’t descend to some frighteningly new level, they do.

A TEST FOR JEFF SESSIONS

The Justice Department’s Inspector General is looking into James Comey’s disclosures of the Clinton email investigation. But I’m not confident that he’ll reach the most important issue in that debacle: the underlying leaks that probably contributed to Comey’s actions. That will require Jeff Sessions to pick up the baton.

During his Senate confirmation hearings on January 10, Senator Sessions (R-AL) assured colleagues that he’s not Donald Trump’s lackey. Here’s his first test: Find out who at the FBI leaked information to Rudy Giuliani during the final weeks of the campaign.

Those leaks probably forced FBI Director James Comey into the corner producing actions that cost him and the Bureau integrity for years to come. They may have swung the election to Trump, too, but done is done. It’s not about re-litigating the last election. As United States attorney general, Sessions has to assure the integrity of the next one. 

Roll the Tape

In October, polls showed Trump losing so badly that he was likely to cost Republicans the Senate. Three months earlier, Director 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 Trump’s “Crooked Hillary” rally theme alive. Even so, as summer turned to fall, the email-gate story was losing its legs.

On October 25, Rudy Giuliani appeared on Fox & Friends. When a host asked whether him Trump 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 October 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

Shortly 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.”

But Giuliani’s distinction doesn’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” in which they agreed, “[D]ue 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. Trump milked that one. As rally crowds responded with “Lock her up” even more loudly than before, some members of the 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 campaign manager Kellyanne Conway on whether Trump would stop using the earlier false report in his 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, Trump had 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.”

If all of this had happened to Trump, hearings in the Republican Congress would have begun immediately after the election. Rudy Giuliani would be under oath and senators would be asking him to name his FBI sources — active or retired.

In fact, Trump said that he wanted a full-scale investigation into leaks of the U.S. intelligence report on Russian hacking. The ones that emanated from the FBI are far more consequential to the future of American democracy.

CONFLICTS AND RUSSIA, RUSSIA, RUSSIA

Donald Trump is trying to keep separate the two biggest controversies swirling around him — business conflicts of interest and the Russia connection. But they’re inextricably intertwined. Even so, he moves adroitly between them as a distraction device.

Roll the tape and follow the ball, as it bounces from conflicts to Russia and back again.

Conflicts

The conflicts between Trump’s worldwide business interests and his Presidential responsibilities have been news for months. He refused to release his tax returns that would reveal all of them, but intrepid journalists have persevered. From the federal government landlord owning the site of his new hotel in Washington, D.C. to his Trump Tower developments around the world, the sun never sets on the empire creating his conflicts.

November 18: Even the conservative stalwart editorial board of The Wall Street Journal says that liquidation of Trump’s businesses is the only way to solve those conflicts.

The same day, Trump diverts attention to his pick for National Security Adviser, Lt. Gen. Mike Flynn, who has appeared on Russian-owned television and sat with Putin at the network’s celebratory dinner in December 2015. (Flynn’s selection itself is a distraction that makes his other two picks of the day — Jeff Sessions (Attorney General) and Mike Pompeo (CIA Director) — look good, which they aren’t. That’s how the Trump process of normalizing the abnormal works.)

Russia

Saturday, December 10: The Washington Post reports that the CIA has reached a new stage in its investigation of Russian efforts to disrupt the presidential election. Russia had a specific goal: Trump’s victory over Clinton.

Over the weekend, bipartisan support grows for an investigation into Russia’s role in manipulating the election. On Sunday morning talk shows, two of Trump’s attorney-enablers, Kellyanne Conway (George Washington, JD, ’92) and Reince Priebus (U of Miami, JD, ’98), parse, deflect, and dissemble in lawyerly fashion the serious questions that the Russia issue raises.

Simultaneously, Exxon Mobil CEO Rex Tillerson — with long and deep ties to Vladimir Putin — emerges as the leading candidate to become Trump’s secretary of state.

Monday morning, December 12: Ten electors send an open letter to Director of National Intelligence James Clapper. Quoting from Alexander Hamilton, they emphasize their constitutional role to prevent a “desire in foreign powers to gain an improper ascendant in our councils.” The electors want to fulfill Hamilton’s charge that they elect a President “endowed with the requisite qualifications.”

The electors request a briefing on all investigations relating to connections between Trump (and his current and former aides) and the Russian government. Later in the day, Senate Majority Leader Mitch McConnell announces his support for Senate hearings on Russia’s interference with the election.

December 12, 3:30 p.m.: University of Chicago Law School Professor Geoffrey R. Stone publishes a powerful editorial calling for the Electoral College to do the job that the U.S. Constitution envisioned for precisely the situation that Donald Trump presents: deliberate over the legitimate question of whether Trump should be President. The Electoral College meets on December 19.

As of Tuesday morning, December 13, another 30 electors have added their names to the Clapper letter — and the number grows by the hour.

Conflicts

Late on December 12: Trump postpones his December 15 press conference on his conflicts plan. Meanwhile, he offers this meaningless assurance:

“Even though I am not mandated by law to do so, I will be leaving my businesses before January 20th so that I can focus full time on the Presidency. Two of my children, Don and Eric, plus executives, will manage them.”

Trump adds a sentence that he assumes no one will remember, but everyone should: “No new deals will be done during my term(s) in office.”

Tuesday, December 13: Trump announces his pick for secretary of state: Rex Tillerson, which takes us back to Russia.

Surprised? Why?

Flashback: During the presidential campaign, Trump praised Vladimir Putin. He rejected the intelligence community’s consensus that Russia was responsible for hacking into Democratic National Committee computers. And he surrounded himself with advisers whose Russian connections should have raised more red flags than they generated — Paul Manafort, Boris EphsteynCarter Page.

A day after the election that Trump lost by almost 3 million popular votes, Russia’s deputy foreign minister admitted to the Kremlin’s continuing communications with Trump’s entourage during the campaign.

Then came Lt. Gen. Flynn as NSA.

Secretary of State Tillerson

In Moscow, Carter Page cheered Tillerson’s selection. Page, formerly a Trump foreign policy adviser, was in Russia to meet with “business leaders and thought leaders.”

As for Tillerson, The Wall Street Journal reports his long and deep relationship with Putin that began in 1999:

“He has had more interactive time with Vladimir Putin than probably any other American with the exception of Henry Kissinger,” John Hamre, a deputy defense secretary during the Clinton administration and president of the Center for Strategic and International Studies, a Washington think tank where Tillerson is a board member.”

In 2012, Putin awarded Tillerson the country’s Order of Friendship, one of Russia’s highest civilian honors. Tillerson favors removing sanctions that the United States imposed after Putin annexed the Crimea. Those sanctions have halted some of Exxon Mobil’s big projects in Russia. If Trump/Tillerson get those sanctions lifted, the company could reap billions of dollars.

End Game

Perhaps Trump is running out the clock on his conflict of interest problems until after the Electoral College meets on December 19. Or maybe his Russia problems are now so huge that he can’t weather another round of criticism over plainly inadequate steps to deal with his business conflicts. Or maybe Trump’s actions are best viewed through the prism of distraction from the biggest issue: the hair on the head of American democracy is on fire from a match that Putin lit.

By the way, if you wonder what the Romney/Trump date night interview for secretary of state was all about, the answer comes from a line in the movie, Superman II: “Kneel before Zod.

The line applies to other prominent Republicans whom Trump ridiculed repeatedly and who now grovel at the feet of their new emperor who still lacks clothes. Yes, I’m looking at you, Carly Fiorina. After Trump publicly degraded you and all women, you called him out. But you now call his moves “brilliant,” as you audition to become his director of national intelligence.

And you, Rick Perry. You called Trump a “cancer on conservatism.” But now seek to be his energy secretary — a department you promised to abolish if you’d won the presidency.

And you, Paul Ryan. Throughout Trump’s campaign, you admonished him and distanced yourself from his vile words and deeds. He retaliated by calling you a weak and ineffective leader. But now you grin while giving Trump another do-over: “We’re fine. We’re not looking back…That’s behind us, we’re way beyond that.”

We’re not way beyond anything. The battle for America’s soul has barely begun.

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 #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.

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.