Isaac Laquedem

What will New York's indictment of Donald Trump look like? The attorney general has released a draft

Amidst the news of the past week is the news that Letitia James, the attorney general of the State of New York, filed in state court a 115-page document with the unassuming name "Supplemental Verified Petition."  The case in which she filed it, however, is entitled "State of New York v. The Trump Organization, Inc." and includes as defendants three companies controlled by the Trump family, the law firm Morgan, Lewis & Bockius and one of its partners, his accounting firm, his New York land use lawyer, his children Donald Jr. and Ivanka, and the former president himself.

Some months ago it was reported that Mr. Trump was being investigated for inflating the value of his assets for tax purposes that the stories only vaguely described.  I read the initial report as being in insignificant sort of flexible valuation where a property owner might claim one value of the property when refinancing and a lower value when appealing its property tax assessment.

Ms. James didn't spend the 115 pages of her petition to talk about property taxes.  Rather, she laid out in painful detail (painful, if you're one of the defendants) the changes in value that Mr. Trump's organization indulged in, not to save a few dollars its property tax bills but to mislead banks into financing his enterprises.  She asks the court to compel Donald Trump, Donald Trump, Jr., and Ivanka Trump to testify under oath before the office of the state attorney general, and in the case of the elder Mr. Trump, to produce documents and certify that he has produced all the responsive documents, subject, as Ms. James demurely notes on page 112 of her petition, to their right "to invoke the Fifth Amendment Privilege on the record in response to any specific question." 

Ms. James laid out her reasons to compel the Trump family to testify in much the same form as the government does in an indictment.  For example, she notes on page 37 that in 2011 Ivanka Trump rented a penthouse apartment in Trump Park Avenue and was given the option to buy the unit for $8,500,000.  In financial statements from 2011 and 2012, however, the Trump Organization valued the apartment at $20,820,000 and did not disclose that it had granted Ms. Trump the right to buy it for $8,500,000.  In 2013 the Trump Organization upped the unit's value to $25,000,000.

On the same page, the state asserts that in October 2015 Ivanka Trump acquired an option to buy a different Trump Park Avenue unit for $14,264,000 - a unit whose value the Trump Organization had reported as $45,000,000 the year before.  The petition cites to documents that New York obtained from Mr. Trump's accountants.

Why is it important that the Trump Organization made these allegedly false statements to banks with the intent to borrow money?  It's because of 18 USC §1344, the provision of federal law that makes it a crime to "knowingly execute a scheme or artifice to defraud a financial institution" or to obtain credit from a financial institution "by means of false or fraudulent pretenses, representations, or promises."  The penalty is a fine of up to $1 million, or up to 30 years at Club Fed, or both.  The statute of limitations on federal bank fraud is 10 years.

The New York attorney general isn't in charge of enforcing federal statutes.  She can, however, prosecute violation of §175.45 of the New York penal code, under which a person who "knowingly makes or utters a written instrument which purports to describe the financial condition or ability to pay of some person and which is inaccurate in some material respect" commits a class A misdemeanor.  Class A misdemeanors are punishable by up to 364 days in prison and a fine of up to $1000.  The attorney general also has the authority to bring a civil action, such as this one, against persons who "engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conduction, or transaction of business."  (Pages 5-6, citing New York Executive Law §63(12).

A New York Class A misdemeanor is small potatoes compared to the federal punishment, but New York's laws don't stop with §175.45.  Section 190.65 of the New York penal code defines the crime of "scheme to defraud in the first degree" to include "a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person [think 'from more than one lender'] by false or fraudulent pretenses, representations or promises," if the defendant obtains property worth more than $1,000 from the victims.  Committing a scheme to defraud in the first degree is a Class E felony, punishable by up to 4 years in prison and by a fine of up to the greater of $5,000 and "double the amount of the defendant's gain from the commission of the crime."  The petition helpfully describes or identifies the "more than one person" at whom the Trump Organization directed its misrepresentations: "counterparties, including financial institutions, other lenders, and insurers" (page 8); Capital One, a lender (pages 41-42); Deutsche Bank (pages 46-49); and Zurich North American, an insurance company (pages 51-53).

The attorney general's petition is not an indictment, but it does read as if it's fairly close to being one.  If I were any of the persons it names, other than Donald Trump himself, I'd be talking with my lawyers about getting a plea bargain and some immunity in exchange for testifying.

The failed promise of Donald Trump

            Even before Willis Carrier invented the electric air conditioner in 1902 and made it possible for the government to sit in the District of Columbia through the summer, our nation’s capital fostered ideal conditions for political inbreeding.  Bright young people took posts staffing Congressional offices and committees, got to know one another, and then either went to work for federal agencies on their way to becoming lobbyists, or moved back home to enter elective politics for themselves, keeping the insular system in action for another generation.

            Much like a refrigerator, every now and then the system needs a deep cleaning.  About every 30 to 40 years America’s voters bring out the Electrolux and point it at the capital.  I'd buy American and say that they bring out the Hoover, but for what happened in 1928.

            The Carter Administration (1977-1981) was the voting public’s most recent attempt at invigoration, when the president brought in a large team of Washington outsiders to leaven the Potomac party.  Earlier housecleanings occurred, not so extensively, under Dwight Eisenhower (1953-1961), Theodore Roosevelt (1901-1909), James Garfield (1881), and Andrew Jackson (1829-1837).    

            The first revolutionary president was Andrew Jackson, a frontiersman who followed the six aristocrats who had started the country off, and who espoused the interests of the common man (women did not then vote) against those of the ruling classes.  He viewed the Second Bank of the United States, a federally-chartered creation directed by Philadelphia aristocrat Nicholas Biddle, as the political plaything of the powerful, and in 1832 he vetoed a measure to extend its charter.  He stated in his veto message that the bank was “unauthorized by the Constitution, subversive to the rights of States, and dangerous to the liberties of the people.”  (I’m going to need a separate post to unpack everything in Jackson's message.)

            James Garfield, the second of our reformers, did not even want the job – he went to the Republican convention to nominate John Sherman, and in the middle of his speech someone shouted out, “We want Garfield!”  He was nominated on the 36^th ballot, defeating among others the war hero and past president Ulysses Grant.

            President Garfield chose three graduates of Harvard or Yale for his cabinet of seven.  Unusually for his time, he also picked three men who came from humble circumstances.  One was an autodidact, and another ceased his schooling at 15.  He opened the top ranks of government to people outside the usual American ruling classes, and would likely have been even more reforming had he not been assassinated in 1881.

            Theodore Roosevelt was not elected as a reformer.  The New York political machine got him chosen as William McKinley’s vice president for the 1900 election to get him out of his position as the governor of New York.  When McKinley was assassinated in 1901, Roosevelt owed his presidency to no one.  He quickly set about breaking up large business combinations and promoting the rights of labor.

            Let’s look at the 40 years since the Carter Administration ended.  Our ballots included George H.W. Bush or his son George W. Bush in 1980, 1984, 1988, 1992, 2000, and 2004.  Our ballots included Bill Clinton or his wife Hillary Clinton in 1992, 1996, and 2016.  Our ballots might reasonably have included Hillary Clinton or Jeb Bush in 2008 and 2016.  The election of 2020 was only the second since 1976 that had neither a Clinton nor a Bush on a primary or general ballot.  It’s hard to say that the system changed much during a period when two families supplied the candidates for forty years of elections.

            Across First Street NE from the Capitol, the Supreme Court has been busy defending the sinecures of the inside-the-Beltway establishment, most notably in its 2010 decision in the Citizens United dark money case.  The court held that the government could not limit the amounts that corporations, labor unions, and independent political groups could spend on political speech, regardless of the ultimate source of the money, on the basis that corporations and labor unions were “people” entitled to the protection of the free speech clause of the First Amendment.  Funds from shadowy sources have come to play a large part in national politics ever since.

            Returning to 2016: among the 17 serious Republican candidates were three who had never held any government position, either elective or appointive: Carly Fiorina, Ben Carson, and Donald Trump.  Each portrayed his or her inexperience in government as a virtue, Mr. Trump most successfully.  In his campaign speech of August 18, 2016 in Charlotte, North Carolina, after listing some specific campaign promises, he said:

As you know, I am not a politician. I have worked in business, creating jobs and rebuilding neighborhoods my entire adult life.  I’ve never wanted to use the language of the insiders, and I’ve never been politically correct – it takes far too much time, and can often make more difficult.

Sometimes, in the heat of debate and speaking on a multitude of issues, you don’t choose the right words or you say the wrong thing. I have done that, and I regret it, particularly where it may have caused personal pain. Too much is at stake for us to be consumed with these issues.

But one thing I can promise you is this: I will always tell you the truth.

I speak the truth for all of you, and for everyone in this country who doesn’t have a voice.

I speak the truth on behalf of the factory worker who lost his or her job.

I speak the truth on behalf of the veteran who has been denied the medical care they need – and so many are not making it. They are dying.

I speak the truth on behalf of the family living near the border that deserves to be safe in their own country but is instead living with no security at all.

Our campaign is about representing the great majority of Americans – Republicans, Democrats, Independents, conservatives and liberals – who read the newspaper, or turn on the TV, and don’t hear anyone speaking for them. All they hear are insiders fighting for insiders.

These are the forgotten men and women in our society, and they are angry at so much on so many levels.  The poverty, the unemployment, the failing schools, the jobs moving to other countries.

I am fighting for these forgotten Americans.

            His specific campaign promises, which I did not quote here, are unremarkable.  President Trump failed at some and broke others, as is the wont of politicians.  His peroration, however, recalled the language of Andrew Jackson, of Theodore Roosevelt, of Franklin Roosevelt.  He cast his appeal to Americans in the heartland (if you live there) or the flyover states (if you don’t) who believed, with some reason, that the elites of both parties sought their votes but not their welfare.  And it is that aspect of his presidency that I describe as his failed promise, not “promise” in the sense of his commitment to his voters, but “promise” in the sense of the hope that they thought he was offering.  In the end Mr. Trump turned out to be a purveyor of both failed promise and broken promises, rather as if Andrew Jackson had committed to the public that he would close down the Second Bank of the United States to protect farmers and small businesses from its rapacity, and then upon being elected had bought bank stock and put his son-in-law on the board of directors.

Rep. Marjorie Taylor Greene stamped out

Twitter shut down the personal account of Rep. Marjorie Taylor Greene, stating or implying that its system of artificial intelligence had detected a "fifth strike" in her tweets that in the AI's (and hence Twitter's) view are misleading enough about Covid to cause harm.  MSN's article on her partial expulsion from the Twitterverse (she can still use her official House account) demurely contrasts one of her tweets with an observed fact about Covid deaths: 

Shortly before her weeklong suspension from Twitter, she claimed in a tweet that the virus was “not dangerous for non-obese people and those under 65”. According to the Centers for Disease Control and Prevention (CDC), people under 65 account for nearly 250,000 of US deaths involving Covid-19.

It's pleasing to see Twitter acknowledge that it's more than just a passive publisher of misinformation, similarly to its action in January last when it expelled Donald Trump.  Am I perhaps too cynical in noting that it didn't expel Mr. Trump until after January 6 when it became clear that the coup attempt had failed?  Twitter's management, like the Supreme Court, may align with Finley Peter Dunne's famous line, "No matther whether th' Constitution follows th' flag or not, th' Supreme Coort follows th' election returns."

Isaac to Congress: Back the Blue

New York sends Rudy Giuliani on an unplanned vacation

Rudy Giuliani was at the forefront of former president Donald Trump's efforts to overturn the 2020 Presidential election, everywhere except on the steps of Congress on January 6.  He took license with the law and the facts.  This morning a New York court took his license, at least temporarily, suspending his New York law license.  You can read the entire 33-page decision here.  The money quotes include:

Respondent repeatedly stated that in the Commonwealth of Pennsylvania more absentee ballots came in during the election than were sent out before the election. The factual “proof” he claimed supported his conclusion was that although Pennsylvania sent out only 1,823,148 absentee ballots before the election, 2,589,242 million absentee ballots were then counted in the election. This factual statement regarding the number of ballots mailed out before the election was simply untrue. The true facts are that 3.08 million absentee ballots were mailed out before the general election, which more than accounted for the over 2.5 million mail-in ballots that were actually tallied. Notwithstanding the true facts, respondent repeatedly advanced false statements that there were 600,000 to 700,000 fabricated mail-in ballots, which were never sent to voters in advance of the election.5 Respondent made these false claims during his November 8, 2020 radio program, Uncovering the Truth with Rudy Giuliani & Dr. Maria Ryan, during a November 25, 2020 meeting of the Republican State Senate Majority Policy Committee in Gettysburg, Pennsylvania, during a December 2, 2020 meeting of the Michigan House Oversight Committee, during his December 17, 2020 broadcast of the radio show Chat with the Mayor, and he repeated it during an episode of Steve Bannon's the War Room: Pandemic podcast on December 24, 2020. 

Respondent does not deny that his factual statement, that only 1.8 million mail-in ballots were requested, was untrue. His defense is that he did not make this misstatement knowingly. Respondent claims that he relied on some unidentified member of his “team” who “inadvertently” took the information from the Pennsylvania website, which had the information mistakenly listed (Giuliani affidavit ¶49). There is simply no proof to support this explanation.

And:

Respondent repeatedly stated that dead people “voted” in Philadelphia in order to discredit the results of the vote in that city. He quantified the amount of dead people who voted at various times as 8,021; while also reporting the number as 30,000. As the anecdotal poster child to prove this point, he repeatedly stated that famous heavyweight boxer Joe Frazier continued to vote years after he was dead and stated on November 7, 2020 “he is still voting here.” The public records submitted on this motion unequivocally show that respondent’s statement is false. Public records show that Pennsylvania formally cancelled Mr. Frazier’s eligibility to vote on February 8, 2012, three months after he died. 

And:

[Mr. Giuliani] stated that dead people voted in Georgia during the 2020 presidential election. He claimed that he had the names of 800 dead people who voted based upon the number of people who had passed away in 2020. Respondent further stated that this number was really in the thousands. At another point he claimed that 6,000 dead people had voted. This claim was refuted by the Georgia Secretary of State. After reviewing public records, the Secretary of State concluded that potentially two votes may have been improperly cast in the name of dead voters in the 2020 election and those instances were being investigated. Respondent's claim of thousands of dead voters is false. So is respondent’s claim of 800 dead voters. The two potentially dead voters discovered by the Secretary of State during its investigation is not statistically relevant to affect election results and does not support any narrative of fraud. 

And, more succinctly, with reference to Mr. Giuliani's claims that 40,000 or 50,000, or maybe 250,000, or 32,000 illegal immigrants voted in Arizona:

On their face, these numerical claims are so wildly divergent and irreconcilable, that they all cannot be true at the same time. Some of the wild divergences were even stated by respondent in the very same sentence.

And:

Notwithstanding [Mr. Giuliani's] claim that he has exercised self-restraint by not publicly commenting on the election, there are numerous instances demonstrating the opposite.

And, in the peroration:

    Before Judge Brann in the Boockvar case, [Mr. Giuliani] himself stated: “I don’t know what’s more serious than being denied your right to vote in a democracy.” We agree. It is the very reason why espousing false factual information to large segments of the public as a means of discrediting the rights of legitimate voters is so immediately harmful to it and warrants interim suspension from the practice of law.
   Accordingly, the AGC’s motion should be granted and [Mr. Giuliani] is suspended from the practice of law in the State of New York, effective immediately, and until further order of this Court.

 

 

Exodus 32 finds a modern analogue

And Moses returned unto the Lord, and said, Oh, this people have sinned a great sin, and have made them gods of gold.  Yet now, if thou wilt forgive their sin--; and if not, blot me, I pray thee, out of thy book which thou hast written.  And the Lord said unto Moses, Whosoever hath sinned against me, him will I blot out of my book.  Therefore now go, lead the people unto the place of which I have spoken unto thee: behold, mine Angel shall go before thee: nevertheless in the day when I visit I will visit their sin upon them. 

And the Lord plagued the people, because they made the calf, which Aaron made.

https://www.cnn.com/2021/02/26/politics/trump-gold-statue-cpac-2021/index.html

Schrödinger's senator gives us our first quantum-state president

To explain one aspect of quantum mechanics, the physicist Erwin Schrödinger imagined his eponymous cat as a feline shut into a box with a timed mechanism that releases poison and kills the cat at some unknown time in the next six hours.  He argued that until you opened the box, the cat was neither alive nor dead, or possibly both alive and dead.  Only when observed could we say which of the two possible states of being the cat in fact occupied.

Schrödinger's cat has had many more than nine lives, in and out of physics, popular culture, and more recently Facebook memes.  Senator Mitch McConnell today contributed to the uses of Schrödinger's cat when he first voted to acquit Donald Trump of inciting the January 6 riot and attempted looting of Congress, and then roundly condemned Mr. Trump for his actions, calling Mr. Trump "practically and morally responsible for the events of the day" - the riot and insurrection.  Why, then, did he not vote to convict Mr. Trump?  Because, Senator McConnell reasoned, the Senate has "no power to convict a former officeholder who is now a private citizen."  He could have voted to convict Donald Trump and debar him from future office until noon on January 20, but not afterward.

That makes Mitch McConnell Schrödinger's senator: able to acquit and convict nearly simultaneously.  But his achievement in becoming our first quantum senator pales in comparison to what Senator McConnell has made of Donald Trump: our first quantum president, in Mr. McConnell's view able to be guilty and not guilty on the same day, or in Mr. McConnell's more elaborate reasoning, able to be convicted on January 19 but not on January 21.

Harvard expels a Congressional enabler of the January 6 riots

The recent stories about the consequences that are starting to rain upon the January 6 anti-government rioters have drowned out ("swamped" might be appropriate) a story from Cambridge about a consequence that befell one of the insurrectionists' enablers. On January 12, Harvard University's Kennedy School of Government removed Rep. Elise Stefanik (R-NY) from the senior advisory committee of the Kennedy School's Institute of Politics. Douglas W. Elmendorf, the dean of the school, used polite academic language to call her a liar: "Elise has made public assertions about voter fraud in November's presidential election that have no basis in evidence, and she has made public statements about court actions related to the election that are incorrect," which Dean Elmendorf said "do not reflect policy disagreements but bear on the foundations of the electoral process through which this country's leaders are chosen." In response, Rep. Stefanik tweeted that Harvard had decided to "cower and cave to the woke Left," not the intellectual response that Harvard College had trained her for when it issued her a degree in 2006.

Chief Justice Marshall awaits President Trump's last-gasp pardons

President Trump was widely expected to issue a fleet of pardons today, his last full day in office.  So far (10:23 p.m Eastern time) he hasn't announced any.  He may issue the last-minute pardons in the 13-1/2 hours before he leaves office . . . but Chief Justice John Marshall (1755-1835) is consulting his pocketwatch as he looks over the President's shoulder.

How does John Marshall, dead nearly two centuries, come into the picture.  Let's go back to March 2, 1801 and the events that led to the celebrated Supreme Court case of Marbury v. Madison.   John Adams's term as President was due to end at noon on March 4.  He was bitterly opposed to the policies of his successor, Thomas Jefferson, and in fact detested him to the point that he skipped Jefferson's inauguration.  (Sound familiar?)  On March 2, Adams appointed several dozen of his supporters to positions on the federal bench, and the Senate quickly confirmed his appointments.  Adams's term ended, however, before all of the judicial commissions had been delivered to the lucky Federalist recipients.  Jefferson took office, discovered that not all the commissions had been delivered, and told Secretary of State James Madison not to deliver those that remained.  One disappointed appointee, Marbury, sued to force Madison to deliver his commission.

In 1803, when Marbury's case made it to the Supreme Court, the Court held that Madison could not legally refuse to deliver the commission to Marbury, but that the statute that Congress passed that gave the Court jurisdiction over the case unconstitutionally expanded the Court's jurisdiction, and that the Court therefore did not have the power to order Madison to deliver the commission to Marbury.  Marbury became famous for his role in the case, but he didn't become a judge.

Now let us go forward to 1830, when a federal grand jury issued several indictments against James Porter and George Wilson for various felonies committed in November and December 1829, including four different robberies of the United States mails.  On May 27, Porter and Wilson were convicted and sentenced to death, and on July 2 Porter was executed. 

Perhaps George Wilson knew someone important, for on June 14, 1830 President Andrew Jackson pardoned him from the crime for which he had been sentenced to death, allowing, however, that he might be sentenced to terms of imprisonment for other crimes not punishable by death.  Wilson declined to plead the pardon in his defense, which led to the Supreme Court having to decide if the trial court could consider the pardon if Wilson refused to argue its existence to the court.  Marshall's opinion in the Wilson case contains two interesting legal points.  The first is that, in his view (adopted by the Court), a pardon is "the private, though official, act of the [President], delivered to the individual for whose benefit it is intended, and not communicated officially to the court."  Being the President's private act and not directed to the trial court, the trial court is not able to take its existence into account unless the pardoned person brings the pardon before the court.

The second legal point of Marshall's opinion in the Wilson case is that there is nothing special about a pardon to distinguish it from other facts, in the sense that the existence of a pardon is a fact that, like other facts, is not before the court until one of the parties presents it.  Then Marshall gets relevant to the problem of tonight and tomorrow morning:  "A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance,"  followed in a footnote by "If [the transmission of a pardon] is not complete, it may be revoked by the successor of the president by whom it was granted."

Now let us return to the night of January 19, 2021 and the early morning of January 20.  Let us surmise that the outgoing President, Sharpie in hand, sits down one last time at the Resolute and signs a stack of pardons.  Who is left at the White House to deliver them?  He will likely be able to deliver pardons to his children, if they are in town.  But the others?  We might imagine that tomorrow afternoon President Biden returns from the inauguration and finds that instead of leaving a farewell note in the desk as is traditional, President Trump has left a stack of signed pardons.  What happens if President Biden, like James Madison 220 years ago, chooses not to deliver them?  As I read the Marbury and Wilson cases, the pardons are not yet effective.  President Biden may choose to deliver them -- or not.  And if he discovers a sheaf of undelivered pardons, he may offer his predecessor's associates the chance to relive Marbury v. Madison.  My only advice to a not-quite-pardoned Trump associate who sues to enforce the undelivered pardon is not to hire Rudy Giulani or Sidney Brown to press the case.

The Trump campaign's actual threat