Supreme Court decisions, closed-door testimony, and developments for Michael Flynn and Michael Cohen.
A pair of Supreme Court decisions related to President Donald Trump’s financial records and a closed-door hearing featuring a fired US attorney were just the start of an eventful day for Trump’s legal problems Thursday.
In an opinion written by Chief Justice John Roberts, the Supreme Court ruled that a New York state grand jury does have the authority to investigate President Trump. The Court also ruled that congressional subpoena power to investigate the president should be limited — but not eliminated out of hand, as Trump hoped.
But as for whether Trump’s financial records will actually be turned over anytime soon, don’t hold your breath. Both of these cases were sent back to lower courts for further proceedings, and Trump’s legal team has promised to challenge them further.
Meanwhile, Geoffrey Berman, who was the US attorney for the Southern District of New York until his firing last month, testified at a closed-door House Judiciary Committee hearing about his dismissal. Berman had alluded to concern that his firing could be an effort to impede “important investigations” taking place in the office. He didn’t specify which, but the office has probed many matters related to Trump.
In his testimony, Berman described how Attorney General Bill Barr first tried to offer him another Justice Department job. When Berman said he wasn’t interested, Barr told him that he should resign, because “getting fired” wouldn’t be good for his “resume or future job prospects.“
There were also developments regarding Russia investigation loose ends. The first was in the case of former Trump National Security Adviser Michael Flynn, who pleaded guilty to making false statements to the FBI as part of special counsel Robert Mueller’s Russia probe. New appointees at the Justice Department have been trying to get the case against Flynn thrown out, but Judge Emmet Sullivan, who is overseeing the case, isn’t ready to do so just yet. A panel of DC Circuit Court judges told him to do it anyway — but, on Thursday, Sullivan started the process of appealing that decision to the full DC Circuit Court of Appeals.
In the second development, Fox News reported that John Durham, the US attorney whom Barr appointed to investigate the Russia investigation itself, might not complete his findings before the election — which, if true, would disappoint Trump allies who hope his report will finally uncover evidence of a vast Obama conspiracy against Trump.
And last, former Trump lawyer Michael Cohen was taken into custody — again. Here are the key takeaways from this swirl of news developments.
What the Supreme Court decisions mean for investigations into Trump
Chief Justice John Roberts’s two opinions Thursday were in a sense victories for investigators trying to obtain President Trump’s financial records — but they may have been Pyrrhic ones.
“The end result of both opinions concerning Trump’s financial records is that there will be additional litigation in both cases and no one will likely see the records before the election — if ever,” George Washington University Law School professor Randall Eliason tweeted.
There are two sets of investigators we’re talking about here: state prosecutors from New York, who are investigating the Trump Organization’s role in hush money payments to women alleging sexual encounters with Trump; and congressional committees, which are investigating the same matter, as well as potential money laundering or foreign influence on the Trump Organization.
Both subpoenaed Trump’s accounting firm or banks for his financial records (though only New York state prosecutors demanded Trump’s tax returns as well). In response, Trump’s lawyers argued that a sitting president should be immune from both requests.
The Supreme Court denied those broad claims of presidential immunity. Regarding the New York state prosecutors’ requests, the Court held that the president does not get special exemption from state criminal investigations.
“Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Roberts wrote. “We reaffirm that principle today.”
Practically, however, the Court did not call for the subpoenaed documents to be handed over, but instead sent the matter back down to the district court for further action. Barbara McQuade, a former US attorney and a professor at Michigan Law School, suggested that Trump will likely “raise further arguments” and continue “the stall tactics.”
When I asked Eliason what might happen next, he pointed me toward language at the end of the opinion stressing that, like any other citizen, the president can still challenge subpoenas “on any grounds permitted by state law, which usually include bad faith and undue burden or breadth,” or he could challenge it “as an attempt to influence the performance of his official duties” or that compliance “would impede his constitutional duties.” So Trump still has options here.
Regarding the congressional subpoenas, the Court’s decision was more mixed. It denied Trump’s claim of total presidential immunity, but the justices also determined that some congressional subpoenas really can present separation-of-powers concerns. So the justices set out a new test for lower courts to use, to review congressional subpoenas to make sure they appropriately respect the separation of powers.
This means the committees’ subpoenas will go back to the lower courts to face new arguments based on this new standard. That wouldn’t seem devastating, except for one thing: the clock.
New arguments mean there will likely be further appeals from Trump’s team, and the continuation of a lengthy judicial process. The issue isn’t just that this will go past this fall’s election — it’s that the House subpoenas will expire at the end of each Congress (in this case, in early January 2021).
As University of Texas School of Law professor Steve Vladeck points out, unless some sort of “fast track” process is created to move this wrangling more quickly through the court system, it will be easy for presidents to use the legal process to delay and eventually escape such subpoenas.
Overall, Trump lawyer Jay Sekulow is taking the glass-half-full approach. “We are pleased that in the decisions issued today, the Supreme Court has temporarily blocked both Congress and New York prosecutors from obtaining the President’s financial records,” Sekulow said in an emailed statement to reporters. “We will now proceed to raise additional Constitutional and legal issues in the lower courts.”
Fired US Attorney Geoffrey Berman testified about Bill Barr
Shortly after the Supreme Court issued those final opinions of the term, Geoffrey Berman, the fired US attorney for the Southern District of New York, went in to give closed-door testimony to the House Judiciary Committee.
Berman was Trump’s pick to head the highest-profile US attorney’s office in the country, the office that oversaw investigations into Trump lawyer Michael Cohen (though Berman recused himself from that) and into Rudy Giuliani’s associates Lev Parnas and Igor Fruman. His sudden and controversial firing last month appeared to many to be an attempt by Attorney General Bill Barr to take greater control of that office, as the election loomed.
In Berman’s opening statement (later posted by Politico), he detailed the conversations he had with Barr just before his dismissal last month. Overall, Berman described how Barr used both carrots (offers of other jobs) and sticks (threats that being fired would hurt his career prospects) to try to get him to resign his post, while giving inconsistent or unclear explanations about why he was doing so.
For instance, Barr insisted to Berman that the only reason he was being asked to leave was because the administration wanted Jay Clayton, chair of the Securities and Exchange Commission, to have the US attorney job. But there’s a catch here — Clayton needs to be confirmed by the Senate. And Barr was making very clear he wanted Berman gone before that happened.
Berman smelled a rat: “I asked the Attorney General why I was being asked to resign prior to a nominee being confirmed,” he said. Barr’s answer, according to Berman, was basically a dodge: Per Berman, Barr said that “the Administration wanted to get Clayton into that position.” But the true aim appeared to be to get Berman out, and quickly.
Barr offered Berman a new job as the head of the Justice Department’s Civil Division, and emphasized how good that post would purportedly be for Berman’s career once he left government. “He said that I should want to create a book of business once I returned to the private sector, which that role would help achieve,” Berman said. “He also stated that I would just have to sit there for five months and see who won the election before deciding what came next for me.”
“I told the Attorney General that there were important investigations in the Office that I wanted to see through to completion,” Berman continued, making clear that he was not intending to resign. So Barr took a more threatening tack. “The Attorney General said that if I did not resign from my position I would be fired. He added that getting fired from my job would not be good for my resume or future job prospects.”
What really alarmed Berman was that Barr seemingly intended to force him out quickly and, while Clayton was awaiting confirmation, replace him with someone outside the ordinary line of succession. And indeed, later that night, the Justice Department issued a press release claiming that Berman was “stepping down,” and would be temporarily replaced by Craig Carpenito, the US attorney for New Jersey, until Clayton could be confirmed.
Berman then issued a defiant public statement claiming he would not step down. And the next day, Barr fired him. Berman explains, however, that Barr made “a critical concession” — that Berman’s deputy, Audrey Strauss, would succeed him. “With that concession, and having full confidence that Audrey would continue the important work of the Office, I decided to step down and not litigate my removal,” Berman explained.
It remains unclear whether Barr wanted Berman out merely because of a general sense of his political unreliability, or because of specific pending cases. But overall, Berman’s account of events makes the whole situation look shady and strange.
Michael Flynn’s case isn’t being thrown out just yet
Back in December 2017, Flynn pleaded guilty to lying to the FBI about his contacts with Russian Ambassador Sergey Kislyak — specifically, he said he hadn’t discussed US sanctions on Russia with Kislyak, but evidence showed he had. (The scandal around this topic, which leaked out publicly long before Flynn was charged, led to his resignation as national security adviser.)
Flynn reiterated his guilty plea at his initial sentencing hearing in December 2018. But when Judge Emmet Sullivan harshly criticized him and seemed ready to give him prison time, Flynn said he wanted to delay his sentencing until his cooperation in another trial was complete, and Sullivan agreed.
Instead, though, Flynn’s cooperation fell apart; he switched his legal team and began making legal filings aimed at challenging his case.
Flynn’s allies have long argued that he was railroaded, and eventually, Barr appointed a US attorney to review his case. Then in May 2020, before Flynn could be sentenced again, the Justice Department announced that it would withdraw Flynn’s prosecution — even though he had already pleaded guilty.
Judge Sullivan, worried about political influence at Barr’s Justice Department, essentially said, “Not so fast.” The judge hired his own lawyers to review whether he was in fact obligated to throw out the case. Flynn’s team appealed to the DC Circuit asking for the case to be immediately dismissed, and a three-judge panel (with two Republican appointees) ruled that Sullivan had to throw it out.
On Thursday, Sullivan filed his own appeal, to the full DC Circuit Court of Appeals. Emphasizing that he hadn’t even ruled on the prosecution’s dismissal yet and that he hoped to hear arguments from both sides, Sullivan asked the court to let him do so.
So Flynn’s years-long legal saga will continue at least a little longer.
Fox News hears that John Durham might not finish before the election
Meanwhile, there was an intriguing report in Fox News about other goings-on at Trump’s Justice Department — namely, that prosecutor John Durham, whom conservatives hope will vindicate President Trump’s claims that the Russia investigation was a “witch hunt” against him, might not finish his work until after the election.
Last year Barr tasked Durham, the US attorney for Connecticut, with investigating the origins of the Russia investigation, and whether there was some sort of political bias at play against Trump. In public statements, Barr has frequently implied that Durham has unearthed “troubling” information, and teased the timeline of when Durham might reveal his findings.
Conservatives have long been abuzz with speculation about what Durham might have found (just as liberals once were about the Mueller investigation). However, we haven’t seen any of the results of Durham’s work so far, and exactly what he has focused on remains somewhat mysterious.
On Monday, Sen. Chuck Grassley (R-IA) expressed some concern that Durham was taking too long. “IF NO PROSECUTIONS TIL AFTER ELECTIONS SAD SAD,” Grassley tweeted, adding that “Durham [should] be producing some fruit of his labor.” Grassley not only seemed to be demanding Durham prosecute some unnamed people, he was apparently also demanding the timing be tailored to the political calendar.
Then on Thursday, Fox News’s Brooke Singman reported, citing two anonymous sources “familiar” with the investigation, that Durham was “under pressure” to wrap up the investigation by the end of summer. (Barr has publicly said that he expects there will be “developments” in Durham’s probe “before the end of the summer.”)
But, Singman wrote, there are a few problems. First is that “several lines of investigation are not yet complete” and, per one source, Durham thinks “it’s critical to do them.” That source also told Singman that Durham “does not want this to look political” and could “punt it to after the election.”
For now, then, whatever Durham’s up to will remain a mystery.
Michael Cohen was taken back into custody
Finally, former Trump lawyer Michael Cohen made it back into the news Thursday, when he was taken into custody — again.
In 2018, Cohen pleaded guilty to campaign finance violations related to hush money payments he made to women who’d alleged having sexual encounters with Trump, and to other financial crimes. He was sentenced to three years in prison and began serving that sentence — until, on May 21, he was released on furlough due to concerns about Covid-19 (as other inmates have been).
According to an emailed statement sent to reporters by the Bureau of Prisons, Cohen’s furlough release was temporary, pending his “placement on home confinement.” However, Cohen “refused the conditions of his home confinement and as a result, has been returned to a BOP facility.”
The New York Times reported that Cohen “had refused to sign papers agreeing to certain conditions related to media appearances and writing books” while under that home confinement.
Mother Jones obtained the order from the Bureau of Prisons that Cohen’s lawyers say he’d refused to sign. In it, Cohen is told he should have “no engagement of any kind with the media, including print, tv, film, books, or any other form of media/news” and “no posting on social media.” The reason, per the order, was “to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.”
Notably, Cohen had recently been posting on social media and revealed he was working on a book:
Favorable ruling yesterday by the Court as I am close to completion of my book…https://t.co/lprtpkdl7K
— Michael Cohen (@MichaelCohen212) July 2, 2020
So this could be an attempt to either silence a Trump critic from writing a negative book — or prevent a convicted criminal from cashing in and drumming up press before he’s even finished his sentence.
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