TRUMP’S DANGEROUS NORMALIZATION EFFORT AND THE ROLE OF THE LEGAL PROFESSION

Norman Eisen and Richard W. Painter were, respectively, chief White House ethics lawyers for Presidents Barack Obama and George W. Bush. For months before the election, they wrote and spoke frequently about the dangers associated with Donald Trump’s disdain for the established norm of releasing presidential candidates’ tax returns. They warned about unprecedented business conflicts of interest that Trump would face as president. Since the election, they’ve urged divestiture, liquidation, and a blind trust as the only effective ways to resolve those conflicts.

The editorial boards of The New York Times and The Wall Street Journal agree with Eisen and Painter. But on December 10, Edwin D. Williamson at Sullivan & Cromwell penned an op-ed for the Journal that tries to let Trump off the conflicts hook.

“If I were advising Trump,” Williamson writes, “I would strongly urge him to pledge that as president he will make no decision for the primary purpose of benefiting any family financial interest, and any decision involving an entity that has a Trump business relationship will be transparent so questions of favoritism can be scrutinized.”

That’s Williamson’s proposed remedy: a pledge of fidelity, coupled with a promise of transparency from a serial liar who still refuses to release his tax returns. Would he accept that undertaking from opposing counsel to settle a case that Williamson’s client was sure to win? Seasoned litigant Trump sure wouldn’t.

But here’s Williamson’s most dangerous line: “I do not see how he can effectively promise more, and I do not believe more is needed.” He then spins frivolous false equivalence arguments that give all attorneys a bad name.

Excuses, Excuses, Excuses

Williamson’s first hypothetical scenario is the sale of Trump’s interests through an initial public offering. Because the president can appoint a majority of the SEC commissioners, Williamson believes that Trump would be trading one conflict (his business interests) for another (his influence over the SEC as it supervised Trump’ IPO).

Williamson’s second liquidation scenario is a leveraged buyout. Because it would require lending by Trump-regulated banks, that would create a new conflict, too, he writes.

Such sophistry is suffocating. Neither option creates a conflict of interest approaching the magnitude of those that will accompany Trump’s continued ownership of his businesses after Inauguration Day. In fact, Williamson final argument proves it.

Self-Refuting

“[T]he biggest problem of divestiture is that the value of Trump businesses is significantly dependent on, and inextricably tied to, the Trump name,” Williamson writes.

Precisely. The prospect of enriching Trump and his family personally is what entices others — foreign and domestic — to patronize Trump businesses in an effort to curry the President’s favor. It’s already happening at Trump’s new Washington, D.C. hotel.

In a joint letter to The New York Times, Harvard Law School Professor Laurence Tribe and Mark Green, New York City’s first public advocate, explain:

“The Constitution’s Emoluments Clause is unambiguous. It forbids an American president from accepting anything of value from a foreign entity, without congressional consent, because that would open the door to bribery or extortion.”

Tribe and Green continue, “The only way for President-elect Donald Trump to cure this problem would be an arms-length sale by a public trustee, not piecemeal judgments after Jan. 20 about the thousands of possible winks and nods between foreign leaders and the new administration.”

Professional Responsibility in the Age of Trump

Lawyers understand the relationship between preserving vital democratic norms and protecting democracy. Zealous advocacy is one thing. But attorneys err when they offer feeble justifications that aid and abet Trump’s insidious effort to normalize behavior that is not only abnormal, but also wrong. The bad news is that the effort is having an impact. Consider the number of commentators who now start from the false premise, “Well, he can’t sell his businesses….”

Why not?

As Tribe and Green observe, “Mr. Trump chose to put himself in this situation and cannot now act aggrieved, nor is there a too-big-to-sell exemption in the Constitution; if anything, the larger the potential for conflict, the more urgent a sell-off.”

“There’s no precedent,” proclaim Trump’s conflict of interest apologists.

Actually, plenty of analogous precedent resides in the conflict of interest rules applicable to all practicing attorneys. No lawyer can serve two conflicting masters simultaneously, regardless of good faith efforts to be fair and honest to both. And the appearance of conflict is equally debilitating.

Williamson dismisses such appearances as “impossible to avoid” because “almost any decision Mr. Trump makes as president will have an effect — good or bad — on his business interests.” But that argument demonstrates again why Trump must sell those interests, as Eisen, Painter, Tribe, Green, and other attorneys across the political spectrum urge.

Donald Trump isn’t a lawyer, but he will have fiduciary duties to the most important client in the world: the United States of America. At a minimum, all attorneys should hold him to the standard that the country deserves.

Don’t Give Up

Columnist Charles M. Blow offers this creed that’s worth remembering every day:

“To have a president for whom we don’t know the extent of his financial entanglements with other countries — in part because he has refused to release his tax returns — is not normal.

“To have a president with massive, inherent conflicts of interest between continued ownership of his company and the running of our country is not normal.

“Presidents may be exempt from conflict of interest provisions in the law, but exemption from legal jeopardy is not an exemption from fact or defilement of the primacy of a president’s fiduciary duty to empire above enterprise…

“[H]istory will judge kindly those who continued to shout, from the rooftops, through their own weariness and against the corrosive drift of conformity: This is not normal!”

Lawyers should be leading the charge to those rooftops, not blocking the path.

JAMES COMEY AND THE FBI

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

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

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

This post concerns the first bolt from the blue.

Beyond Strange

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

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

Backlash

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

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

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

Who Is James Comey?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TRUMP’S TAX RETURNS: PART 2 — FROM RUSSIA WITH LOVE

Be afraid. Be very afraid.

At an October 10 rally in Wilkes-Barre, Pennsylvania, Donald Trump held up a document. Kurt Eichenwald describes what happened next:

“He told the assembled crowd that it was an email from Blumenthal, whom he called ‘sleazy Sidney.’ ‘This just came out a little while ago,’’ Trump said. ‘I have to tell you this.’ And then he read the words from my [Kurt Eichenwald’s October 21, 2015 Newsweek] article. “‘He’s now admitting they could have done something about Benghazi,’ Trump said, dropping the document to the floor. ‘This just came out a little while ago.'”

As Eichenwald explains, the words weren’t Blumenthal’s. Trump read from a distorted summary of Eichenwald’s 10,000-word Newsweek article attached to an email to John Podesta, Clinton’s campaign chairman. It resulted from a Russian disinformation campaign tied to a recent Wikileaks release. A Russian-controlled news agency — Sputnik — reported the false story.

Eichenwald asks, “So how did Donald Trump end up advancing the same falsehood put out by Putin’s mouthpiece?”

“This is not funny,” Eichenwald continues. “This is terrifying. The Russians engage in a sloppy disinformation effort and, before the day is out, the Republican nominee for president is standing on a stage reciting the manufactured story as truth.”

Which Takes Us Back to Trump’s Income Tax Returns

Compared to Trump’s boast about being a sexual predator, his admission in the second debate that he paid no federal income taxes for years seems almost innocuous. So why does he still refuse to release his returns? Eichenwald’s latest revelation adds more evidence that the answer may be Russia. Like all things Trump, his words and deeds fit a pattern.

“He is not going into Ukraine, OK, just so you understand,” Trump declared in August. “He’s not going into Ukraine, all right? You can mark it down. You can put it down. You can take it anywhere you want.”

“Well, he’s already there, isn’t he?” ABC’s George Stephanopoulos corrected him immediately, referring to Vladimir Putin’s illegal seizure of Crimea.

“OK,” Trump answered. “Well, he’s there in a certain way.”

Worse Than Ignorance?

A month after Trump’s declaration about Putin in Ukraine, he made what Trump’s campaign later called a mistake. Trump appeared on Russian state-sponsored television to criticize America. Meanwhile, he has praised Vladimir Putin continuously: “If he says great things about me, I’m going to say great things about him.”

Never mind that Putin is a cruel dictator who crushes dissent, makes a mockery of human rights, and orders the invasion of sovereign countries. Political opponents and critical journalists disappear or get assassinated. And there’s growing evidence that he’s trying to influence the election in Trump’s favor.

During the first presidential debate, Trump reacted defensively to Hillary Clinton’s concerns about Russians hacking into the Democratic National Committee’s computers. Rejecting the U.S. law enforcement consensus that Russian intelligence agents were behind that cyberattack, Trump said:

“She keeps saying ‘Russia, Russia, Russia,’ and maybe it was. It could be Russia, but it could be China, could also be lots of other people. It could be someone sitting on their bed that weighs 400 pounds.”

And at the second debate, he persisted: “[A]nytime anything wrong happens, they like to say the Russians are — she doesn’t know if it’s the Russians doing the hacking. But they always blame Russia.”

He knows better. Back in mid-August, Trump and his team received intelligence briefings that directly contradict his recent statements. And 48 hours before the second debate, the intelligence community and the Department of Homeland Security issued a joint statement that pointed directly to the Kremlin:

“The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of e-mails from U.S. persons and institutions, including from U.S. political organizations… We believe, based on the scope and sensitivity of these efforts, that only Russia’s senior-most officials could have authorized these activities.”

Why does Trump ignore undisputed evidence, defend Russia, and praise Putin? Here’s one possible answer: the personal financial self-interest of Trump and his top advisers.

Paul Manafort and Ukraine

When Georgetown Law School graduate Paul Manafort took over as campaign manager, the selection seemed to be the harbinger of an extreme makeover. Manafort would attempt for Trump what he’d accomplished for Ukrainian’s former president, Viktor Yanukovych, whom Manafort resurrected from disgrace to that nation’s highest office in only five years.

But Manafort’s ties to Ukraine’s pro-Putin former president led to accusations of secret cash payments to Manafort’s consulting firm. Then The Washington Post reported that the Trump campaign worked behind the scenes on a Republican convention platform plank that gutted the GOP’s longstanding support for Ukrainian resistance to the Russian-led intervention. Finally, the Associated Press reported that Manafort’s firm hired Washington, DC lobbyists to influence the American press and U.S. government officials on behalf of the pro-Putin Ukrainian Embassy. The cascading revelations of pro-Russian activity led to Manafort’s resignation.

Boris Epshteyn

After Manafort departed, another Georgetown Law graduate, Boris Epshteyn, became the most visible surrogate defending Trump’s continuing admiration for Russia’s top tyrant. Epshteyn was born in Russia and emigrated to the United States in 1993. Twenty years later, when New Jersey Senator Frank Lautenberg died in 2013, Epshteyn wrote,

“[I]t was the Lautenberg Amendment that allowed my family and me to emigrate to the United States of America in 1993. The Lautenberg Amendment, passed in 1990, loosened the restriction on refugee states and thereby allowed for tens of thousands of Jews like me from the former U.S.S.R. to come to America. The legislation was also applied to religious minorities from Iran, Vietnam and Burma, as well as other countries.”

Now that he is safely in the United States, Epshteyn supports a candidate who proposed a religious ban to keep others out. After receiving his JD in 2007, Epshteyn went to work at Milbank, Tweed, Hadley & McCoy. According to his LinkedIn website page, a Russian theme has permeated his activities:

— June 2007 to present (overlapping with his time at Milbank from October 2007 to May 2009): Principal for Strategy International, providing “consulting and liaising services for domestic and international transactions with a focus on Eastern Europe and former Soviet Union.”

— June 2009 – July 2013: Managing director of business and legal affairs for West America Securities Corp. His duties were to “originate and locate funding for diverse domestic and international transactions, including private placements, public equity/debt offerings and mergers and acquisitions transactions.”

— July 2013 to present: Managing director of business and legal affairs for TGP Securities, Inc. In that position, he moderated an October 2013 panel discussion for a conference titled, “Invest in Moscow!”

In August 2016, Epshteyn became a senior adviser to the Trump-Pence campaign on “media, communications and foreign policy.” If Epshteyn is the important foreign policy adviser that he claims to be, it explains some of Trump’s bizarre denial about Putin.

Whose Party Line?

“First of all,” Epshteyn told a CNN interviewer on July 31. “Russia did not seize Crimea. We can talk about the conflict that happened between Ukraine and the Crimea…But there was no seizure by Russia. That’s an incorrect statement, characterization, of what happened.”

That’s in line with Trump’s statement to George Stephanopoulos that Putin “is not going into Ukraine.” Observers dismissed Trump’s comment as a gaffe, but it’s the Kremlin’s position. And it’s blatantly false. The international community has condemned Putin’s invasion and annexation of Crimea. Period.

Like Trump, Epshteyn also points to Putin’s 82 percent approval rating as proof that Putin is a strong leader. But as Tom Brokaw observed on the September 11 edition of  Meet the Press, “He’s not saying the other 18 percent are on their way to a gulag somewhere.”

All Roads Lead To Trump’s Tax Returns

Trump’s tax returns should confirm what he has now admitted publicly: that he hasn’t owed any federal income tax for years. But a far more sinister explanation for his unwillingness to release the returns is that they could complete a picture of Trump’s business connections to Russia that journalists are piecing together.

David Cay Johnston’s August investigation reveals that Russians are partners with Trump in many American projects: “Trump has tried at least five times to build a Trump Tower in Moscow, including efforts he made during his 2013 trip there. His name is on a 47-story building in Georgia, formerly part of the Soviet empire… Donald Trump Jr. said in 2008 that ‘in terms of high-end product influx into the U.S., Russians make up a disproportionate cross-section of a lot of our assets. We see a lot of money pouring in from Russia.'”

Kurt Eichenwald — the same reporter who revealed Russia’s disinformation effort relating to his 2015 article — published a September analysis in Newsweek: “Hoping to start its branding business in Russia, the Trump Organization registered the Trump name in 2008 as a trademark for projects in Moscow, St. Petersburg and Sochi… If the company sold its brand in Russia while Trump was in the White House, the world could be faced with the astonishing sight of hotels and office complexes going up in downtown Moscow with the name of the American president emblazoned in gold atop the buildings.”

Legal Eagles

Richard Painter and Norman Eisen are former chief ethics attorneys for Presidents George W. Bush and Barack Obama, respectively. Their op-ed for The Washington Post listed the numerous conflicts that would make a Trump presidency “ethically compromised.” Among the most serious are his family organization’s undisclosed financial ties to Russia, China, India, South Korea, and Turkey.

Labeling Trump’s actual or apparent conflicts “as obscure, profound, and dangerous,” they conclude: “The ethics lawyer who would have President Trump as his or her client would face a far more daunting task than either of us — or any of our colleagues in recent years — has ever confronted.”

“Conflict-of-Interest Laws, You’re Fired!”

How would President Trump resolve the massive conflicts that haven’t been disclosed fully to voters? However he chose. All of those elaborate ethics laws and rules applicable to cabinet members and other high-level government officials don’t apply to the president.

As Norman Eisen elsewhere observes, “Because the President of the United States is the single most consequential decision maker on the planet, Congress has decided his hands shouldn’t be tied on any issue because of conflicts of interest over any potential financial or personal gain.”

In September, Kurt Eichenwald concluded, “Never before has an American candidate for president had so many financial ties with American allies and enemies, and never before has a business posed such a threat to the United States. If Donald Trump wins this election and his company is not immediately shut down or forever severed from the Trump family, the foreign policy of the United States of America could well be for sale.”

The Russians have chosen their candidate for president of the United States. Be afraid. Be very afraid.