Pecker Problems (Mueller+ Investigation Thread v. 21)

[Cake4Breakfast]

I think you missed the context of that conversation. The other fellow was operating under a particular set of assumptions: treating the payment to Stephanie Clifford as a "campaign contribution" from Donald Trump to his own campaign for president. I rejected and continue to reject that set of assumptions, but I played along. The fellow accused Trump of breaking the law by committing a reporting violation. I pointed out that every president campaign commits this type of violation and noted that the Obama campaign was particularly egregious in that regard.

Again, this is in no way meant to equate the Clifford payment to the Obama campaign reporting violations.

You were not willing to agree that it was a campaign contribution though, if I recall correctly? As for if Trump made the payment himself, we have heard different stories from Trump's mouth about this, along with things out of Rudy G's mouth about how Trump repaid Cohen for the money Cohen put into buying off these women. We know though that Trump was aware of Cohen setting up a company for the purposes buying scandalous material related to his relationship with Heather McDougle, and that Trump discussed how the payments were to be made. Let's see what other evidence there is, what Cohen says under oath, if Avenatti is actually able to depose Cohen and Trump about the Stormy Daniels payment and intimidation, what Pecker and Weisselberg say under oath, etc., to get the full picture, but these sleazy and convoluted violations, involving the president himself, are nothing like the Obama campaign's violations (which it seems we are in agreement about).

 

[PHATV]

This is it.

However, September 4th approaches...

 

[Andy Capp]

Would make a solid next thread title

How about, Mueller gets a Patton the Pecker?

 

[waiguoren]

Looking far more likely Mike pence will be taking over the premiership some point in the near future.

Interested in a bet on this?

 

[Armbars]

Interested in a bet on this?

No thanks.

I'm not saying it'll happen. The possibility has increased is all.

 

[waiguoren]

Not if he’s firing them with a corrupt intent to obstruct justice.

I'm not sure if you realize it, but you're promulgating a new theory of constitutional law with this post. In my opinion, this theory is extremely dangerous and would be likely to lead to the collapse of the US system of government in fairly short order (let's say, within six presidential elections).

Here is the New York Times's 1974 news article on the impeachment of President Nixon. As you can see, the House Judiciary Committee voted to impeach Nixon on the charge of obstruction of justice for committing multiple crimes "in a course of conduct or plan designed to delay, impede, and obstruct the investigation" of the Watergate break-in. These crimes included lying to federal investigators, and approving the payment of hush money to convicted criminals. Without underlying crimes, there would have been no obstruction of justice.

Firing an executive branch official is not an underlying crime. There is no precedent for impeaching a US president for obstruction of justice merely for his taking constitutionally protected actions such as firing staff or pardoning people. In fact, we have the opposite precedent: President Bush pardoned Caspar Weinberger over the public objection of Independent Counsel Walsh in the course of Walsh's investigation of President Bush and his associates.

He can fire certain people. He can also be charged with offenses based upon his reasoning for doing so.

For example, the president can hire a new attorney general...and if it was found he did so because the new hire gave him money, that's a crime.

The act you describe in your example is not constitutionally or legislatively protected. Bribery is explicitly listed in the US Constitution as an impeachable offense, and 18 U.S. Code § 201 makes that act illegal explicitly. Firing an executive branch official who is overseeing an investigation into the president (e.g., Rosenstein) would not violate any federal law that I am aware of. If you think such a firing would constitute obstruction of justice, please see my response to @ChainFlow above.

 

[waiguoren]

Please state for the record if you believe that the President can lawfully terminate investigations into his own possible wrongdoing. No deflections. No “what about this other President”.

That depends.

The president has no authority to terminate congressional investigations.

The president has no authority to terminate investigations by congressionally authorized commissions (e.g., 9/11 commission, Warren commission).

However, except in the case of bribery, the president has the unfettered authority to terminate any investigation internal to the executive branch of any nature and for any reason. The president is the head of the executive branch, which Mueller is working under.

The primary check on Trump's ability to fire Mueller right now is political. Namely, the Republicans and Trump in particular would pay a heavy electoral price for such an action.

The above points to a serious flaw in our system of government: investigations of wrongdoing by the president can be hampered by numerous constitutionally protected actions including appointments, hiring/firing, restructuring or even direct orders to open or close investigations. A better system would create a permanent, independent prosecutor's office separate from the executive branch. The top prosecutor could be elected by popular vote.

Mentioning Bush and Weinberger was far from a deflection. It is a great illustration of the flaw I mentioned above. Walsh should have been permitted to complete his investigation. Bush should not have been allowed to pardon Weinberger. Please note well that a constitutional amendment would be required to effect these changes.

Two other notes:

First, you'll recall that Walsh was criticized for issuing a new indictment that named Bush in the days leading up to the 1992 election. That indictment might have changed the course of our history. I think a simple remedy would involve extra rules forbidding the independent prosecutor from issuing indictments within one month of a presidential election.

Second, there is tremendous pressure on one-time special/independent counsel investigations to prosecute people and secure convictions. (Thought experiment: what if Mueller had spent $70 million and two years without securing a single conviction? What would the public reaction be?) By contrast, the FBI can open and close an investigation without the public knowing about it. The proposed independent prosecutor's office would share this benefit.

 

[waiguoren]

Considering that we have Cohen’s own testimony to tell us what he would do or not do

I am not willing to believe all aspects of Cohen's allocution, particularly since I believe Cohen has a strong incentive to embellish his story.

Considering that we have Cohen’s own testimony to tell us what he would do or not do combined with the evidence against him, and it got him convicted your speculation in the first paragraph and your disclaimer that contradicts reality paints you as shilling or delusional.

I do find your arguments absurd, but I refuse to accuse you of "shilling" or being "delusional". That would imply that I know your motives for posting here, which is false.

Your belief, as I understand it, is that Trump did not reimburse Cohen for the $130,000 payment to Stephanie Clifford. Instead, you appear to believe that Trump directed Cohen to make a $130,000 "campaign contribution" with no expectation of reimbursement. I find this narrative absurd for the following reasons:

1) I do not believe Michael Cohen was in a sufficiently strong financial position to do a $130,000 favor for his friend/client.

2) The notion that the payment to Clifford was a "in-kind campaign contribution" requires that the money was spent purely for the reason of benefitting the Trump campaign. There are many other possible reasons for such a payment, including concealing an alleged affair from one's wife. This is the exact defense that John Edwards used successfully for much larger payments over a longer time.

 

[waiguoren]

Does this have meaning for you despite the fact, at every instant he has lied he has held to the lie until whatever has exposed is undeniable, and then he has tended to try and craft another lie to explain it within that nex context, and then finally and lastly, he admits the truth only once there is no more ability to avoid the evidence?

Getting anything straight from Trumps mouth should be the least credible way to get it, no?

No. If an information source is already unreliable, passing it through a few more people is more likely to make the information less accurate rather than more accurate. This reminds me of "telephone", the children's game.

 

[Limbo Pete]

I'm not sure if you realize it, but you're promulgating a new theory of constitutional law with this post. In my opinion, this theory is extremely dangerous and would be likely to lead to the collapse of the US system of government in fairly short order (let's say, within six presidential elections).

 

[waiguoren]

I don't recall ever hearing this point disputed by Trump or his team, just them bitching about how it was leaked, which is telling. Maybe now they will try to discredit it, or try to equivocate like they are doing now with the Holt interview, as they want to distract from the fruit of the Mueller investigation by trying to change the focus on why the tree was planted in the first place.

• Not disputing a point should not be taken as good evidence of support for that point
• Bitching about leaks is something most administrations do. Obama's administration prosecuted more leakers than any other.
• There was no need to equivocate on the Holt interview. Trump's performance was fine there even though neither of us believe his explanation.

As for the "president's explanation straight from his mouth" that "he fired Comey for being an "incompetent grandstander" who had left the FBI "in turmoil", as we saw, it was all hugs and kisses from Trump to Comey before he knew Comey wasn't going to go soft on the Russia Investigation, and after the "grandstanding" and "showboating" occured. As for the FBI being in turmoil, I write that off as being typical of Trump's histrionic hyperbole when he is trying to discredit something.

I agree with all of this.

And the way Trump put his thoughts together in that interview, how he brought up the "Russia thing" when he did in the context of talking about how he was going to fire Comey regardless of recommendation, was him giving the real reason of why he fired Comey.

As for your question/point about if "Trump's team was saying Trump wouldn't have fired Comey if not for the Rosenstein recommendation," Trump's team was selling Rosenstein's recommendation (not to mention selling Rosenstein's ethics and credentials while doing this) very hard as the reason why Comey was being fired

That's not what I remember. Your use of "the" as in "the reason" implies that the administration said Trump fired Comey for only one reason. Can you link me to a source?

he way Trump put his thoughts together in that interview, how he brought up the "Russia thing" when he did in the context of talking about how he was going to fire Comey regardless of recommendation, was him giving the real reason of why he fired Comey.

This is speculative pop psychology. To be clear: I totally agree with it. However, it shouldn't be good enough for the New York Times and it certainly doesn't meet any legal standards of evidence.

 

[Limbo Pete]

"Can't investigate me for a crime if they can't have investigations without first finding a crime, which would of course require an investigation. And since I can fire people investigating me, that means they don't get to investigate my crimes because you can't find crimes without an investigation!"

Spoiler

 

[waiguoren]

You were not willing to agree that it was a campaign contribution though, if I recall correctly?

Nor should you be willing to. There are many reasons why one might want to pay off an alleged mistress. Edwards argued he did it to conceal the affair+baby from his wife. There's no question it benefitted his campaign, but you can't seriously argue that it was purely intended to benefit the campaign unless you have multiple lines of direct evidence to that effect.

As for if Trump made the payment himself, we have heard different stories from Trump's mouth about this, along with things out of Rudy G's mouth about how Trump repaid Cohen for the money Cohen put into buying off these women. We know though that Trump was aware of Cohen setting up a company for the purposes buying scandalous material related to his relationship with Heather McDougle, and that Trump discussed how the payments were to be made. Let's see what other evidence there is, what Cohen says under oath, if Avenatti is actually able to depose Cohen and Trump about the Stormy Daniels payment and intimidation, what Pecker and Weisselberg say under oath, etc., to get the full picture,

I think we are in near-total agreement here.

but these sleazy and convoluted violations, involving the president himself, are nothing like the Obama campaign's violations (which it seems we are in agreement about).

Yes, we already agreed on this, but legally they are the same under that other fellow's set of assumptions (payment came from Trump himself, was a campaign contribution to own campaign of $130,000).

 

[Andy Capp]

I am not willing to believe all aspects of Cohen's allocution, particularly since I believe Cohen has a strong incentive to embellish his story.



I do find your arguments absurd, but I refuse to accuse you of "shilling" or being "delusional". That would imply that I know your motives for posting here, which is false.

Your belief, as I understand it, is that Trump did not reimburse Cohen for the $130,000 payment to Stephanie Clifford. Instead, you appear to believe that Trump directed Cohen to make a $130,000 "campaign contribution" with no expectation of reimbursement. I find this narrative absurd for the following reasons:

1) I do not believe Michael Cohen was in a sufficiently strong financial position to do a $130,000 favor for his friend/client.

2) The notion that the payment to Clifford was a "in-kind campaign contribution" requires that the money was spent purely for the reason of benefitting the Trump campaign. There are many other possible reasons for such a payment, including concealing an alleged affair from one's wife. This is the exact defense that John Edwards used successfully for much larger payments over a longer time.

LOL you're ridiculous so of course I said you're either shilling or deluded. My post says nothing whatsoever about what I believe because that doesn't enter into it. It's about you denying what has been established as fact in a court of law. There is nothing absurd about relying upon established fact to reach a conclusion. What you're arguing, on the other hand, is absurd by definition because it contradicts reality.

 

[waiguoren]

LOL you're ridiculous so of course I said you're either shilling or deluded. My post says nothing whatsoever about what I believe because that doesn't enter into it. It's about you denying what has been established as fact in a court of law. There is nothing absurd about relying upon established fact to reach a conclusion. What you're arguing, on the other hand, is absurd by definition because it contradicts reality.

I think you know the difference between a "fact" as established in a court of law and "fact" in the ontological sense. We use courts to attempt to establish facts, but it's a highly imperfect process. That's why we have thousands of cases of innocent people being convicted of crimes and why two different juries can reach opposite verdicts upon looking at the same facts.

Judge Wood found a "factual basis" for all charges in Cohen's plea agreement. Different judges apply different standards. Here I will quote from my copy of Scheb's Criminal Law and Procedure:

Rules concerning voluntariness and factual basis generally do not specify any precise method to be followed by the court.....In determining that a factual basis exists for the defendant’s plea, judges often have the prosecutor briefly outline available proof to establish a prima facie case of the defendant’s guilt. A more extensive inquiry is usually necessary for specific-intent crimes.

Note the terms prima facie and "any precise method" here. Judge Wood found a prima facie factual basis for Cohen's alleged campaign finance violation by following her own method. Other judges could have reached other conclusions. We are not talking about mathematics here.

 

[ChainFlow]

I'm not sure if you realize it, but you're promulgating a new theory of constitutional law with this post. In my opinion, this theory is extremely dangerous and would be likely to lead to the collapse of the US system of government in fairly short order (let's say, within six presidential elections).

Here is the New York Times's 1974 news article on the impeachment of President Nixon. As you can see, the House Judiciary Committee voted to impeach Nixon on the charge of obstruction of justice for committing multiple crimes "in a course of conduct or plan designed to delay, impede, and obstruct the investigation" of the Watergate break-in. These crimes included lying to federal investigators, and approving the payment of hush money to convicted criminals. Without underlying crimes, there would have been no obstruction of justice.

Firing an executive branch official is not an underlying crime. There is no precedent for impeaching a US president for obstruction of justice merely for his taking constitutionally protected actions such as firing staff or pardoning people. In fact, we have the opposite precedent: President Bush pardoned Caspar Weinberger over the public objection of Independent Counsel Walsh in the course of Walsh's investigation of President Bush and his associates.

Your interpretation is, put simply, insane.

You are putting forward an inverted Catch-22 theory of obstruction because you are (deliberately) glossing over the fact that the investigation into the President is to determine if he committed crimes! What else would an investigation into him ever even be?

If the President can only commit obstruction if it’s shown he interfered into an investigation into a matter where he is SHOWN to have committed crimes that he’s trying to cover up, but the President can also terminate, interfere with, fire the principal investigators of, or otherwise hinder the investigation into himself, he’s effectively incapable of committing obstruction as long as he makes sure to interfere before the investigation yields fruit.

Or in other words, you are actually putting forth the argument that the President is above the law. As long as he plays Whack-a-Mole fast enough with investigations into himself, anyway.

So as I said.. you can just keep your posts going forward to “I believe the President is above the law”.

 

[Andy Capp]

I think you know the difference between a "fact" as established in a court of law and "fact" in the ontological sense. We use courts to attempt to establish facts, but it's a highly imperfect process. That's why we have thousands of cases of innocent people being convicted of crimes and why two different juries can reach opposite verdicts upon looking at the same facts.

Judge Wood found a "factual basis" for all charges in Cohen's plea agreement. Different judges apply different standards. Here I will quote from my copy of Scheb's Criminal Law and Procedure:

Rules concerning voluntariness and factual basis generally do not specify any precise method to be followed by the court.....In determining that a factual basis exists for the defendant’s plea, judges often have the prosecutor briefly outline available proof to establish a prima facie case of the defendant’s guilt. A more extensive inquiry is usually necessary for specific-intent crimes.

Note the terms prima facie and "any precise method" here. Judge Wood found a prima facie factual basis for Cohen's alleged campaign finance violation by following her own method. Other judges could have reached other conclusions. We are not talking about mathematics here.

But you have no factual basis upon which to dispute the findings of the court. None. Zip. Zero. Sweet fuck all. By your standard, we should never trust any court verdict ever and we might as well just arbitrarily point fingers at who we want to be guilty.

We don't know what evidence is held by the state. We don't know what evidence they didn't even have to use because he copped a plea. Everything you have been saying is based upon what you believe, and I know that because you said so. But there is nothing supporting this belief other than your overpowering desire for it to be true.

Edit: i.e. truthiness

 

[ChainFlow]

That depends.

The president has no authority to terminate congressional investigations.

The president has no authority to terminate investigations by congressionally authorized commissions (e.g., 9/11 commission, Warren commission).

However, except in the case of bribery, the president has the unfettered authority to terminate any investigation internal to the executive branch of any nature and for any reason. The president is the head of the executive branch, which Mueller is working under.

The primary check on Trump's ability to fire Mueller right now is political. Namely, the Republicans and Trump in particular would pay a heavy electoral price for such an action.

The above points to a serious flaw in our system of government: investigations of wrongdoing by the president can be hampered by numerous constitutionally protected actions including appointments, hiring/firing, restructuring or even direct orders to open or close investigations. A better system would create a permanent, independent prosecutor's office separate from the executive branch. The top prosecutor could be elected by popular vote.

Mentioning Bush and Weinberger was far from a deflection. It is a great illustration of the flaw I mentioned above. Walsh should have been permitted to complete his investigation. Bush should not have been allowed to pardon Weinberger. Please note well that a constitutional amendment would be required to effect these changes.

Two other notes:

First, you'll recall that Walsh was criticized for issuing a new indictment that named Bush in the days leading up to the 1992 election. That indictment might have changed the course of our history. I think a simple remedy would involve extra rules forbidding the independent prosecutor from issuing indictments within one month of a presidential election.

Second, there is tremendous pressure on one-time special/independent counsel investigations to prosecute people and secure convictions. (Thought experiment: what if Mueller had spent $70 million and two years without securing a single conviction? What would the public reaction be?) By contrast, the FBI can open and close an investigation without the public knowing about it. The proposed independent prosecutor's office would share this benefit.

Your interpretation of the matter is not in line with the thinking or behavior of Trump’s own lawyers, Mueller (judging by what is publicly known), or pretty much anyone whose who matters. Including Nixon’s lawyers, Congress, and the public views at that time.

The President is not a king held only in check by Parliament. He took an oath to faithfully execute the Constition and laws of the US. He does not get to break the laws he is bound to execute. Including obstruction. He is not above the law. Your de nihilo claim that “only bribery” counts as a Presidential crime is based on wishful thinking alone. The Constitution lists bribery as one of many reasons that the President may be removed. High crimes and misdemeanors may be an inconvenient phrase to your “President-as-a-King” authoritarian theory, but it is there and it has meaning beyond “the President decided to let an investigation into himself proceed because he was napping”.

Jackson was impeached for violating the Tenure Act, a much less serious offense than obstruction of justice.

The subjects of its jurisdiction {impeachment} are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.

But thanks for going on the record that you think that the law does not apply to the President. Please, save everyone time and condense your posts to reiteration of that point going forward.

 

[waiguoren]

You are putting forward an inverted Catch-22 theory of obstruction because you are (deliberately) glossing over the fact that the investigation into the President is to determine if he committed crimes! What else would an investigation into him ever even be?

If the President can only commit obstruction if it’s shown he interfered into an investigation into a matter where he is SHOWN to have committed crimes that he’s trying to cover up, but the President can also terminate, interfere with, fire the principal investigators of, or otherwise hinder the investigation into himself, he’s effectively incapable of committing obstruction as long as he makes sure to interfere before the investigation yields fruit.

Or in other words, you are actually putting forth the argument that the President is above the law.

I gather from your comment that you do not like some aspects of the system of government we were given. In this sense, I consider you an ally. I am also glad to see that you and I agree that the president is not above the law. The Constitution specifies that a president may be impeached for "treason, bribery and other high crimes and misdemeanors". Evidence for such offenses can come from a variety of sources inside and outside the executive branch.

President Nixon was not impeached for firing Cox. The House Judiciary Committee passed three articles of impeachment. The full text of those articles is available here. I presume that firing Cox was not listed because that firing was a constitutionally protected act. Nevertheless, that firing (and the associated Saturday Night Massacre) led to massive public outcry and therefore to a serious threat of impeachment on other grounds. Similarly, President Trump would be well within his authority to fire Robert Mueller. However, I believe that the political fallout from such a firing would be too great for the president to withstand.

 

[OverCoronavirus Pressure]

Well to be fair this is a rare occasion where I think that’s a shitty reason to go after trump. Dems need to have a higher standard than the republicans, ie more than sex payoff to Clifford to impeach.

What's good for the goose is good for the gander. Let the man sit down and give him a chance to set the record straight in front of the American people so that when he inevitably lies, there can be impeachment proceedings