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It’s Not Illegal to Seek Asylum, Mr. Sessions

On May 7, Attorney General Jeff Sessions announced a federal policy of separating children from parents upon their arrival at our border with Mexico: “If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law. If you don’t like that, then don’t smuggle children over our border.”

The reference to “smuggling” was calculated. “Smuggling” is covert and criminal, and with regard to children it implies kidnapping or sex trafficking. The reality is that “smuggling” accounts at most for a tiny fraction of the children who appear on our southern border, but Sessions was trying to create an alternative reality.

The May 7 announcement was an amplification of a previous announcement, on April 6, of a “zero-tolerance policy” toward illegal entry. Whereas criminal prosecution had been discretionary before April 6, under zero tolerance, every case of illegal entry referred to United States attorneys must be prosecuted “to the extent practicable.” The new policy only applies to alleged illegal entry across the “southwest border.”

Outrage arose about the separation of children from parents, and the outrage only spread when Sessions invoked scripture to justify the policy, as if separating families were a Christian obligation. Donald Trump contributed to the outrage by blaming the policy, which he called “horrible,” on Democrats, who he falsely said had enacted laws that required the separation. (At other times, Trump blamed Democrats’ “obstruction,” meaning Democrats’ insistence on negotiation and compromise with rather than surrender to Trump in reformulating federal immigration law.)

The zero tolerance policy has been applied to applicants for asylum. The applicants are detained in adult facilities, and if they are accompanied by children, the children are separated from them and detained elsewhere. Under previous policy, applicants were individually evaluated for detention or release, and a family that was detained was held together at a family facility.

Sessions has recited “illegal entry” like a mantra, repeating the phrase in blanket reference to every person covered by his policy, which includes asylum applicants. Although political and media figures have questioned the policy in almost every aspect, as far as I can tell no one has questioned Sessions’ assumption that asylum applicants are illegal immigrants.

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A person’s right to flee persecution in her own country and seek asylum in another country is established by international law, rooted in the United Nations Charter, which is binding on United Nations members, including the United States.

General Assembly Resolution 217, adopted in 1948, known as the Universal Declaration of Human Rights, construed the “fundamental freedoms” and “human rights” guaranteed by the U.N. Charter to include “the right to seek and to enjoy in other countries asylum from persecution.” General Assembly resolutions are not themselves legally binding on U.N. members, although it is widely believed that the principles expounded in Resolution 217 do have the status of international law. The United States voted for Resolution 217.

In any event, the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees codified asylum rights and obligations into formal treaty law that is binding on member states, including the United States. (The 1951 Convention applied to European refugees who left their countries before 1951, but the 1967 Protocol extended the Convention to all refugees from persecution.) The United States did not initially ratify the 1951 Convention, but did ratify the 1967 Protocol, and therefore became a party to the Convention.

Of particular relevance here is article 31 of the Convention. Article 31 prohibits countries from imposing penalties on refugees “on account of their illegal entry or presence …, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” Prohibiting the imposition of a penalty for an action is not quite the same as permitting that action, but it comes pretty close. In any event, American statutory law goes that little bit farther.

Federal law implementing our treaty obligations and governing asylum is codified in the United States Refugee Act of 1980, which revised the Refugee Assistance Act of 1962 and the Immigration and Nationality Act of 1965. The 1980 Act governs the admission of refugees, including provisions for setting and waiving annual limits on numbers of such admissions. (In this context, “admission” means approval of an applicant’s request to stay in the United States, not the applicant’s physical entry into the United States.)

One of the provisions of the 1980 Act required the Attorney General to “establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum.” This provision is mandatory, not discretionary – in other words, the Attorney General’s procedure must allow an alien who reaches a land border to apply for asylum. The Act also provides that a spouse or child accompanying a person granted asylum is eligible for admission by virtue of accompanying the asylee, even if the spouse or child is not separately eligible for admission.

Therefore American law affords a person the right to apply for asylum, either at the border or on American territory within a reasonable time after arrival. And since the law affords a person that right, it isn’t really the case that a person who presents herself and applies for asylum has entered the country illegally. If the asylum application is rejected then the person is illegally in the country and subject to deportation. And presumably if the person knew that the asylum application would be rejected, that person could be guilty of the crime of illegal entry. But while the asylum application is pending, it is inaccurate to say that the person has committed the criminal offense of illegal entry into the United States.

Attorney General Sessions more or less acknowledged that the purpose of separating children from parents was to deter parents from coming to the United States: “If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law. If you don’t like that, then don’t smuggle children over our border.” Deterring parents means persuading them either to stay home or to find some other country to move to.

“Smuggling” is an action of concealment and deceit, and therefore Sessions implied that the parents in question are hiding their children from the authorities, when, at least as a general matter, the very opposite is the case. Since it’s certain that Sessions knows that, there’s no avoiding the conclusion that his intention is not to deter any actual smuggling of children, but to deter parents from bringing children with them when they seek entry to the United States, and thereby to deter parents from seeking entry to the United States – even if their applications for asylum are unimpeachably based on irrefutable fear of violent persecution in their countries of origin.

Trump has repeatedly criticized what he refers to as the “catch and release” policy, under which detention of people suspected or accused of illegal entry was discretionary, even if they were prosecuted. Nothing in the law mandated “catch and release,” and in fact Sessions has evidently ended that policy. He replaced it with his “zero-tolerance policy,” under which all of the suspected and accused are to be prosecuted and not just detained, specifically in separate facilities from their children’s detention facilities.

Just as the law did not mandate “catch and release,” it doesn’t mandate “zero tolerance,” either – much less mandatory separate detention. In fact previous policy permitted the use of family detention centers, where parents and children could be kept together while their fate was decided.

So the problem wasn’t “catch and release.” The problem is permitting people to enter and remain in the United States while their legal status is adjudicated. Perhaps Trump is saying that he would like Democrats to agree to legislation that would authorize border patrol officers to summarily deport any person suspected or accused of illegal entry – “catch and deport” – with no judicial or administrative process or recourse. No separation of parents and children would occur; our border enforcement officers would just shove the arrivals back into the desert, in violation of our treaty obligations as a member of the United Nations.

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Democrats condemned the new policy right from the start. Moderate Republicans and prominent religious figures soon joined them, including Trump’s cherished evangelical base. All four living former first ladies joined the chorus, and even Melania Trump spoke kinda-sorta against the policy. Leading Republicans piled on, and today Texas Republican Senator Ted Cruz, who had spoken several times in defense of Sessions’ policy, introduced emergency legislation to keep families together. So far, though, President Trump is holding firm.

When opposition spread to the religious right, I began to wonder if Trump is playing three-dimensional chess. Jeff Sessions introduced this policy, and Trump isn’t exactly known for stiff-spined support for his attorney general. On the contrary, Trump has made it known any number of times that he regrets appointing Sessions and wouldn’t mind at all getting rid of him.

What if a policy of breaking up families, not a recusal from the Russia investigation, ends up being Trump’s rationale for firing Sessions? Trump would get to say that Sessions implemented a harsh, anti-family policy without fully informing Trump about the policy and its consequences, that Trump nonetheless dutifully stood by his appointee as long as he humanly could, that Sessions failed to respond to the ensuing outcry with an appropriate corrective, and that Trump therefore simply has no recourse but to let Sessions go.



Trump’s Approval Rating Remains Historically Bad

Donald Trump’s daily approval ratings, as weighted and aggregated by, have been abysmal right from the start. He started out below 50 percent approval, and he went “under water,” meaning that more people disapproved than approved of his performance as president, just two weeks into his tenure. He’s been under water every day since then.

It’s true that Trump has enjoyed a small improvement in his approval ratings in 2018 – on January 17, his approval rating topped 40 percent for the first time in seven months, and has mostly stayed above 40 percent since then. But aside from how bad his ratings have been, what’s most remarkable about Trump’s ratings is how stable they’ve been, and how little they’ve fluctuated with events.

Within 60 days of his inauguration, Trump’s approval rating fell below 43 percent and his disapproval rating went over 51 percent, and he hasn’t done as well as that on any day since then. Events have had very little effect on the numbers – not excellent employment reports, not a 59-missile attack on Syria, not the “mother of all bombings” in Afghanistan, and neither tweet-trashing nor sweet-talking Kim Jong-un.

From his inauguration up to today, the 511th day of Trump’s tenure, Trump’s daily approval ratings have varied by only 11.4 percent. Previous presidents’ approval ratings varied much more considerably, as shown by’s compilation of daily ratings from publicly available polling back to the beginning of reasonably reliable modern polling – that is, beginning with Harry Truman’s presidency. A comparison of the approval ratings of presidents from Truman to Trump shows that Trump’s numbers are the most stable of any president’s first 511 days.

At the lower end of the variability scale, but still more variable than Trump: John Kennedy’s approval ratings varied by 12.1 percent during his first 511 days; Richard Nixon’s varied by 13.9 percent; Lyndon Johnson’s by 14.4 percent. By comparison, Barack Obama’s approval rating varied by 16.7 percent during his first 511 days; Bill Clinton’s varied by 24.1 percent; Jimmy Carter’s by 34.7 percent; Truman’s by a whopping 43.9 percent. Beginning with Harry Truman, every president’s approval ratings were more sensitive to events than Trump’s have been.

In other words, both positive and negative views of Trump are unusually firmly fixed. The kind of news that ordinarily boosts a president’s ratings hasn’t boosted Trump’s. And the kind of bad news – the revelations about the Russia investigation, for instance, or the Stormy Daniels scandal, or EPA Director Scott Pruitt’s many and varied misdeeds – that ordinarily depresses a president’s ratings hasn’t depressed Trump’s.

We’ve known since before Trump even took office that his support was resilient – resilient enough, according to Trump himself, that he could shoot someone on Fifth Avenue and not lose support. What these last 511 days have shown us is that Trump’s opposition is also resilient, apparently just as resilient as his support. That opposition has been tested by good economic news, yet the opposition remains firmly in the majority.

If voters’ views of President Trump’s performance in office don’t vary with events, then voters’ views of his performance must be determined by something less transient than today’s headlines. During the 2016 campaign, when the commentariat consensus was that Trump’s appeal was economic populism, I disagreed: I argued that his appeal was not economic, but cultural; that his appeal was based on identity, not policy.

Policies can succeed or fail, and a politician whose appeal is founded on policy will rise or fall accordingly. But identity is more durable, more fixed. A politician whose appeal is founded on identity will retain that appeal, apparently pretty much without regard to events. And opposition to a politician whose appeal is founded on identity will also persist despite events.

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We’ve had 13 presidents in the era of modern polling. Three began their terms other than on the constitutionally prescribed January 20 date: Truman and Johnson succeeded presidents who died, and Gerald Ford succeeded a president who resigned. Looking at the other ten – those who took office by election, as Trump did – we can correlate approval ratings as of the 511th day of each president’s tenure to the outcome of each president’s first midterm election.

None of the presidents before Trump had a negative net approval rating on his 511th day in office. Ronald Reagan, who struggled with a recession early in his first term, had the lowest net approval rating, at .1 percent. The next lowest were Barack Obama’s, at 1.8 percent, and Jimmy Carter’s at 3.0 percent. They ranged up from there, from Bill Clinton’s 9.5 percent to John Kennedy’s 51.8 percent.

Even with net positive approval ratings just five months before the midterms, presidents tend to lose ground in midterm elections. On average, the party of the president lost 21.3 House seats in the president’s first midterm, 1 Senate seat, and 4.9 gubernatorial seats. In general, not surprisingly, the worse the president’s net approval rating is, the worse the midterm loss will be: the correlation coefficient between net approval rating and House outcome is a robust .70; the correlation with gubernatorial outcome is an almost-as-robust .67; the correlation with Senate outcome is a weaker .47.

The sample size is small – just nine midterm elections for elected first-term presidents since modern polling began. And the correlations aren’t perfect 1:1 correlations; actual outcomes varied sometimes considerably from predicted outcomes. Perhaps the biggest outlier was Clinton, who enjoyed a net approval rating of 9.5 percent but lost huge: 54 House seats, nine Senate seats, and 10 governors. Still, the correlations are real.

In one respect, we’re in uncharted territory. Trump is the first president in the modern polling era to have a net negative approval rating at this stage in his term, and it’s not even close at -11.1 percent. Applying the correlation from previous presidents to Trump yields a prediction of big Republican losses this November: 48 House seats, 4 Senate seats, and 10 governors.

Nobody falls exactly on the correlation line, of course, and it’s unlikely that the actual outcomes will precisely match the predicted outcomes. In the House elections, for instance, Republican-controlled state governments are so numerous that gerrymandering is a real headwind for Democrats this year. Republican sponsored voter suppression initiatives are another headwind. Post-Citizens United spending can go either way, of course, but overall tends to disfavor Democrats.

In the Senate elections, the headwind into which Democrats are leaning is the fact that 35 seats are up for election, and 26 of them are currently held by Democrats – including several in states that Trump won by big margins.

So I’d be surprised if Democrats picked up 48 House and four Senate seats, but the thing is that Democrats only need gains half that big to take control of both chambers. And a pick-up of ten governors would also be surprising, but not unprecedented: Democrats lost 10 governors in the 1994 elections, and Republicans lost 11 in 1970.

A wild card is Russian election interference – the extent to which Russians repeat their 2016 election interference and the extent to which any such interference might be effective. It’s not yet clear that Russian interference had much effect on the 2016 outcome – although the presidential outcome was close enough that a fairly small effect could have been decisive. But if 2016 was practice, the Russians might be much better at it in 2018.

The conventional wisdom is that the Russians’ purpose was to sow discord among Americans, weakening our country by dividing our people. If that’s true, it’s not self-evident that 2018 interference would be on the side of the Republicans – it’s plausible that Russian intelligence operatives might seek to maximize American dysfunction by dividing government between a Republican executive and a Democratic legislature.



Not so Fast

Trump administration officials and spokesmen are out in force on the first anniversary of Robert Mueller’s investigation of Russian interference in our 2016 elections. Their pitch is that, after a whole year of investigating, it’s time for Mueller to wrap it up. “We’ve tortured this President enough,” says Donald Trump’s newest lawyer, Rudy Giuliani.

Let’s set aside the irony of Giuliani’s reference to “torture” with regard to a President who doesn’t think waterboarding is torture. Evidently, if we’re serious about terrorism we should stop coddling suspects with stuff like rectal rehydration, stress positions and sleep deprivation, and really put the screws to them by asking them for documents.

Of course Giuliani has a histrionic history of hyperbole, like when he accused David Dinkins, then Mayor of New York, of engaging in a “pogrom” against the city’s Hasidic Jews. And if there was any doubt of Giuliani’s indifference to facts, his recent performances on FOX News in purported support of his presidential client certainly dispelled that doubt. Even Donald Trump, the most fact-indifferent president in American history, was compelled to observe that Giuliani didn’t have his facts straight.

But back to the Mueller investigation. As special investigations go, at one year old Mueller’s is a mere baby. No investigation in modern special investigation history that produced even a single indictment has shut down within a year.

Since 1973, when the Watergate scandal gave birth to special investigations in their modern form, eleven special investigations have produced indictments. The longest-running of those investigations took well over eight years to complete. The target was President Bill Clinton’s secretary of Housing and Urban Development, Henry Cisneros. Investigators ultimately determined that Cisneros had lied to investigators about hush money paid to a former mistress. The investigation produced just two indictments (Cisneros and the mistress, who lied about using the hush money to buy a house), both of which led to guilty pleas in the third year of the investigation. Investigators spent another five years inconclusively looking for obstruction of justice by the Clinton administration.

The shortest-lived investigation that produced any indictments was the investigation of Ronald Reagan’s former White House aide Lyn Nofziger. Nofziger’s was the only indictment, and although he was initially convicted for violating federal law regulating lobbying by former federal officials, the conviction was overturned on appeal. That investigation lasted about a year and a half.

Nearly half of the special investigations, five out of eleven, produced no indictments at all during their first year. Mueller’s investigation produced 19 indictments in its first year, and we can be fairly confident that more are coming.

The received wisdom is that Trump wants to fire Mueller, and I have no reason to doubt that consensus. But I do doubt that the firing will come before November’s midterms, because I’m sure the White House realizes that few moves would create greater risk to Republican control of Congress. Trump’s average approval rating is running above 42 percent for the first time in a year, and Republicans’ disadvantage in the “generic” Congressional ballot is smaller than it has been in a year. With Republicans finally making some headway in polling, and with large majorities of Americans telling pollsters that Trump should not fire Mueller, the last thing Republicans need is for Trump to fire Mueller in the lead-up to the midterms.

Meanwhile, Trump and Republicans make use of Mueller and his investigation as a foil – rallying the base by railing against the “witch hunt” and making out like the investigation has been unduly drawn out. A vote for a Democrat is a vote for impeachment, we are told, and impeachment is not popular among the decisive center of the American electorate.

Mueller’s investigation is a complex one, much more complex than an investigation into a single instance of perjury, for example, or one ex-official’s lobbying practices. Although, somewhat ironically, both pro-Trump and anti-Trump partisans would say that the core of the investigation is the question of “collusion,” in fact the foremost subject of the investigation is Russian government interference into our election – which is by itself a multi-faceted counter-espionage investigation. Even if not one American was involved in or knew about the Russian effort, such an investigation would take years to complete.

Most previous special investigations that led to indictments involved isolated cases of perjury, influence peddling, or other relatively narrow improprieties. Only two of those relatively narrow investigations were completed in less than two years.

More complex investigations haven’t been completed in less than four years. The Watergate investigation, the granddaddy of all modern special investigations, ran just over four years. The Iran-Contra investigation went on for more than six years. And the Whitewater investigation took for more than seven years to complete. In that context, Mueller’s investigation is just gearing up.

Furthermore, the subject of Mueller’s Russian investigation is more serious than the subject of any of the other special investigations. Perjury by high level officials is serious, of course, but not a threat to our democracy. Improper acceptance of gifts, influence-peddling, improper lobbying – all are serious, but none are threats to our democracy. Even the Whitewater real estate development scheme – which involved serious criminality, including investor fraud, mail fraud, and tax evasion – posed no threat to our democracy.

The most serious subject of a special investigation before the Russian election interference was undoubtedly the Watergate scandal. At its core, the Watergate burglaries were the culmination of a White House-directed campaign of dirty tricks against leading Democratic presidential candidates, the overall purpose apparently being to engineer the nomination of the Democrats’ weakest candidate and to ensure the re-election of President Richard Nixon in 1972. Given the success of those dirty tricks at discrediting a number of the leading Democratic candidates, and given the ultimate nomination of George McGovern, certainly the weakest of the major Democratic primary candidates, it’s hard to argue that the dirty tricks campaign was ineffective.

Watergate, in other words, was a direct assault on our electoral democracy – Watergate was a secret and even criminal campaign of interference by top-level government officials into the intraparty affairs of the opposition, for purposes of ensuring the outcome of the next election. And of course that’s not even counting the cover-up.

Russian election interference was similar to Watergate, in two respects. First, it was the covert and criminal interference by Russian government operatives and cut-outs in the American election. And second, the interference was intended to advantage one candidate over another – to influence, if not determine, the election outcome.

But there are two aspects of the Russian election interference that make it much worse than Watergate. First, the interference was by a foreign government – a government more hostile to American interests than most of the governments in the world. Russian interference was therefore not only an attack on our democracy, as if that weren’t enough; it was also an attack on our national sovereignty.

And second, the chosen methods of Russian interference included the insertion of intentionally divisive propaganda into the national discussion, in order to sow discord – to heighten American political divisions, to undermine American national unity, and therefore to diminish American international stature and strength. Russian election interference was part of a larger campaign, evidently continuing to this day, of undermining Western democracies, thereby diminishing the appeal and influence of democracy in the world and enhancing the stature and influence of autocrats like Russian President Vladimir Putin.

Given this gravity of the subject of Mueller’s investigation, it’s critically important to American national security, sovereignty and self-government that his investigation be complete and thorough, even if not a single American was involved in, or even knew about, the Russian interference.

But some Americans apparently did know about at least some of the Russian effort. George Papadopoulos knew that Russians had obtained “dirt” on Hillary Clinton, in the form of “thousands of emails.” Roger Stone – a man with ties to Russian intelligence, Paul Manafort, and Wikileaks founder Julian Assange – apparently knew that Wikileaks would be publishing stolen Democratic National Committee e-mails before Wikileaks actually published them. Donald Trump, Jr., Jared Kushner, and Manafort went into the infamous Trump Tower meeting expecting that a “Russian government attorney” would give them “dirt” on Hillary Clinton from Russia’s chief prosecutor, as part of Russian government “support for Mr. Trump.”

President Trump likes to say that if a country doesn’t control its borders, the country will fail. To President Trump, border protection is existential: “We either have a country, or we don’t have a country.” President Trump proposes the construction of a literal wall to control our southern land border, and he proposes strenuous enforcement measures, even harsh measures like taking children from their parents at the border, to punish and deter individuals who cross the border without authorization.

I propose that if a country doesn’t control its own elections, the country will fail. For a democracy, protection of its elections is existential. So I propose the construction of a figurative wall to protect our elections from foreign interference. And I propose strenuous prosecution of any person who participated in or covered up for Russian election interference, whether that person is Russian, American, or otherwise, to punish and deter individuals who interfere with our elections.

To do this, we need the fullest possible understanding of Russian election interference in all its aspects – who was involved, what they did, how they did it, and whether and how they can be stopped in the future. If all of that can be done by Rudy Giuliani’s deadline, that’s great. But no matter how long it takes, it must be done.


Dershowitz is Wrong About the Special Counsel

President Donald Trump’s argument against the appointment of a special counsel to investigate Russian election interference has been that “there was no collusion” between the Trump campaign and the Russians who interfered in the election. He has gotten support from Harvard Law School Professor Alan Dershowitz, a prominent liberal civil rights advocate.

This morning on FOX & Friends, Dershowitz said:

First of all, the president’s 100 percent right. There never should have been an appointment of special counsel here. There was no probable cause at that point to believe that crimes had been committed. I’ve seen no evidence to suggest that crimes have been committed by the president.

As I’ve said from day one, there should have been a special investigative commission, non-partisan appointed by Congress, with subpoena power to look into the role of Russia and trying to influence American elections and do something about preventing it in the future. Instead of starting out with finger-pointing and trying to criminalize political difference behind the closed doors of a grand jury.

Within minutes, Trump tweeted out a Dershowitz quotation, accurately capturing Dershowitz’s basic point even if not accurately quoting his actual words.

If Dershowitz was arguing that his personal preference would have been for a special commission over a special counsel, he is of course entitled to that opinion. But if he was arguing that appointment of a special counsel was legally invalid, he is dead wrong.

The first reason Dershowitz is wrong is that there is no requirement that a special counsel can be appointed only there is “probable cause” to believe that a crime was committed. The governing Department of Justice rule provides for appointment of a special counsel if a “criminal investigation of a person or matter is warranted.” Something is “warranted” if it is a wise or prudent thing to do; the word “warranted” does not imply any specific evidentiary standard.

Probable cause is required for a variety things – a police officer needs probable cause to arrest someone, for instance, and a court needs probable cause to issue a search warrant. But there is no rule, and never has been, that a criminal investigation may not be initiated without probable cause. On the contrary, police officers routinely investigate complaints, even anonymous tips, the evidentiary value of which fall well below the probable cause threshold.

The second and more important reason that Dershowitz is wrong is that there was probable cause to believe that whole bunches of crimes had been committed. Dershowitz’s argument appears to be based on his belief that “it would not be criminal, even if it happened, for the Trump campaign to have collaborated with the Russians in an effort to get their candidate elected.”

That’s a truly remarkable statement, and I’m aware of no law enforcement official who agrees with it. Federal crimes potentially arising from collaboration with Russians to elect a presidential candidate range from fairly technical election law violations to conspiracy to commit espionage. Professor Dershowitz’s personal opinion about what does and does not constitute a crime does not determine the propriety of a special counsel appointment.

In any event, the basis for the special counsel appointment was not limited to the question of collaboration. The stated purpose of the appointment of a special counsel, as stated by Deputy Attorney General Rod Rosenstein in his order making the appointment, was “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.”

Russian election interference had several criminal aspects. One was the hacking and theft of e-mails from the Democratic National Committee and from Hillary Clinton’s campaign. (Russians also hacked the Republican National Committee, but the hack didn’t result in release of any stolen information, leading to speculation that the Russians may be holding any information they stole to use as leverage.) Another was the series of intrusions, some more successful than others, into state voter databases and other election systems. And a third was the disinformation campaign that involved use of stolen Americans’ identities, wire fraud, and bank fraud, for which Special Counsel Robert Mueller recently obtained indictments.

It may be that all of those crimes were committed solely by Russian nationals, unassisted by even one American, but that’s irrelevant. Crimes were committed, and a criminal investigation was warranted.

A thorough investigation of any crime includes identification of every person who participated in the crime. Therefore a thorough inquiry into Russian election interference necessarily involves consideration whether Russians solicited or obtained the assistance of Americans. And any good investigator knows that a good place to start the inquiry is to ask who benefited from the crimes. (TV cop show fans know that the homicide detectives are going to take a hard look at the beneficiary of the murder victim’s will or life insurance policy.) If the Trump campaign was an actual or intended beneficiary of Russian meddling, then it’s just sound investigative practice to look into whether the Trump campaign was in on the meddling.

Furthermore, there was plenty of evidence of what was at the very least odd behavior toward Russian government interests by members of the Trump campaign – from Carter Page’s trips to Russia, to Michael Flynn sitting next to Vladimir Putin at the Russia Today gala, to the mysterious reversal of the Republican Party’s platform position on Russia’s takeover of the Crimea, to Roger Stone’s apparent knowledge that John Podesta’s hacked e-mails were about to be posted on Wikileaks.

The public did not then know about the infamous Trump Tower meeting, which the President’s son, son-in-law, and campaign manager attended in hopes of receiving “dirt” on Hillary Clinton, but the FBI may have known about it, perhaps from routine surveillance of Russian officials and operatives. The public did not then know about George Papadoplous’s receptiveness to receiving similar “dirt,” but the FBI may have know about it – the FBI interviewed Papadopoulos four months before Mueller was appointed.

On FOX & Friends this morning, Professor Dershowitz seems to have gone out of his way to note an absence of evidence of crimes committed by President Trump himself. I personally am skeptical that Trump himself conspired with Russians to rig the 2016 election, although I suspect he may have known about the Russian effort. Certainly when Donald Trump Jr. was told that the Russian government was supporting Trump, he registered no surprise – as if he already knew about it. If Junior already knew about it, then Senior probably did as well. And if Junior didn’t know about it, it seems like something important enough that he might have passed it on to Dad, whose office was right upstairs.

But again, special prosecutors are not limited to investigating presidents. Special prosecutors investigate crimes. In this case, because the investigation necessarily had to consider the possibility of Trump campaign involvement, and Attorney General Jeff Sessions was part of the campaign, Sessions had to recuse himself from overseeing the investigation. That left FBI Director James Comey reporting to Deputy AG Rosenstein. When Trump fired Comey, that necessarily created the appearance, if not the reality, that the investigation into the Trump campaign was compromised, and would not be thorough. That appearance created the “conflict of interest for the Department or other extraordinary circumstances” that Department of Justice rules require for the appointment of a special counsel.

Alan Dershowitz is entitled to hold the opinion that appointment of a special counsel was not the best way to go about investigating Russian election interference. But any suggestion that the special counsel appointment was improper or invalid is unambiguously wrong.

Democrats Should Withhold Judgment on McCabe’s Firing

Congress passed the Inspector General Act in 1978, in the wake of the Watergate scandal, creating inspectors general for federal agencies. Inspectors general were given investigative and auditing powers, and were charged to detect and prevent fraud, inefficiency, illegality and other impropriety in those agencies. Each agency’s IG is appointed by the president and confirmed by the Senate, and operates largely outside the regular supervision of the agency for which the IG serves as watchdog.

It is common that an IG is appointed by one president and continues to serve after another president takes office. Glenn Fine, for instance, was appointed by President Bill Clinton to be the Department of Justice’s IG in 2000; he served through both terms of the George W. Bush administration, and the first two years of the Barack Obama administration, leaving DOJ in January 2011.

Fine’s successor is Michael E. Horowitz. Horowitz is a Harvard Law School graduate who clerked for a federal judge in California, worked for the eminent commercial law firm of Debevoise & Plimpton, and began his government career in 1991 in the United States attorney’s office in Manhattan. He rose to the position of chief of the Public Corruption Unit, which he held from 1997 to 1999.

From there, Horowitz went to the Department of Justice as deputy assistant attorney general, later becoming chief of staff for the Criminal Division at DOJ. Horowitz returned to private practice in 2002. In his spare time, he has served on the U.S. Sentencing Commission, the Ethics Resource Center, the Society of Corporate Compliance and Ethics, and the Lawyers Committee for Civil Rights Under Law.

Horowitz’s background in ethics, public corruption, and the operations of the Department of Justice commended him to President Obama, who nominated Horowitz to fill the IG vacancy that was created by Glenn Fine’s departure in 2011. The Senate confirmed Horowitz by voice vote, and he began work in April 2012.

Readers will recall that then-FBI Director James Comey devastated Hillary Clinton’s 2016 presidential campaign when he publicly announced, less than two weeks before election day, that he was re-opening the FBI’s investigation into Clinton’s handling of classified information contained in e-mails during her tenure as secretary of state. Clinton’s polling immediately went into a deep dive, bottoming out a week later with Clinton ahead of Donald Trump by less than three percent of the vote – just about where things came out on Election Day.

The re-opened e-mail investigation ended as the original investigation had ended – with no charges. But the damage to Clinton’s campaign was done, and Democrats were furious with Comey. Things only got worse on January 10, 2017, when Comey testified at a hearing of the Senate Intelligence Committee.

Oregon Senator Ron Wyden asked Comey if the FBI was looking into reports of contacts between the Trump campaign and the Russian government. Comey answered, without apparent self-consciousness, “I would never comment on investigations, whether we have one or not, in an open forum like this.” Maine Senator Angus King famously replied, “The irony of your making that statement here I cannot avoid, but I’ll move on.”

Democrats accused Comey of being “inconsistent” – publicly revealing the re-opening of an investigation into the Democratic presidential nominee, but refusing to say whether an investigation had been opened into the Republican presidential nominee. Within days, many Democrats were calling on Comey to “pack his things and go.” On January 12, 2017, Inspector General Horowitz announced an investigation into Comey’s handling of the re-opening of the Clinton e-mail investigation.

The initial investigation expanded as it proceeded. Late in the 2016 general election campaign, a dispute had developed between the FBI and the DOJ over how to proceed in the investigation of allegations of improprieties at the Clinton Foundation. Deputy FBI Director Andrew McCabe authorized an FBI spokesman to talk to the Wall Street Journal about the investigation, specifically to refute the suggestion that he had held back on the Clinton Foundation investigation. The disclosure was unfavorable to Clinton’s campaign, although the disclosure had only minor impact compared to the disclosure of the re-opened e-mail investigation.

Authorizing a public statement about an ongoing investigation would appear to violate the same rule that Comey had announced to the Senate Intelligence Committee, the rule against public comment on pending FBI investigations.

Last week, the first results of the Horowitz investigation became publicly known. The IG apparently found that McCabe should not have gone public about the Clinton Foundation investigation, and that McCabe had been less than fully forthcoming with Horowitz’s investigators about the matter. Lack of candor is a capital offense at the FBI – as, frankly, it should be. Media reports indicate that Inspector General Horowitz concluded that McCabe should be fired, and that the current FBI director, Christopher Wray, agreed. McCabe exercised his right to appeal to the attorney general, Jeff Sessions, and, on Friday, Sessions accepted the recommendation and McCabe was fired.

There are lots of things we don’t know yet. Most importantly, we don’t know the details of Horowitz’s findings that McCabe improperly publicized the Clinton Foundation investigation and that McCabe was not fully candid during the investigation.

But we do know that Horowitz is no stooge, either for Donald Trump or for Jeff Sessions. Horowitz is not someone who does Trump’s bidding – Trump referred to Horowitz as “an Obama guy” when Trump lambasted Sessions for referring the Carter Page search warrants to the inspector general instead of to criminal prosecutors.

We also know, if we pause to remember, that we were pretty mad at the FBI back in 2016 and 2017, and for pretty good reasons. The fact that Comey and McCabe also took on an investigation into Russian election interference and whether the Trump campaign was in on that interference, does not diminish the reasons we were displeased with their handling of the Clinton investigations. And it hardly behooves Democrats to excuse or minimize an FBI official’s lack of candor in an investigation that Democrats demanded.

We know that McCabe had given 90 days’ notice of his retirement, and that he was fired on the last work day before his retirement would go into effect. Breathless reporting all over the media holds that McCabe’s firing will cost him his pension, or at least jeopardize his pension, but this is incorrect. Sessions fired McCabe on Friday, two days short of his 50th birthday, thus depriving McCabe of early retirement benefits that he would have been entitled to had he been employed on his 50th birthday. But McCabe’s basic pension benefits remain intact; he can start collecting after he’s 57.

The lost early retirement benefits were certainly valuable – CNN says that the lifetime loss to McCabe will total “hundreds of thousands of dollars.” There are claims that the investigation was improperly rushed in order to beat McCabe’s retirement date, that McCabe was given insufficient time to present his appeal to Sessions, and that Sessions buckled to pressure from Trump to fire McCabe. There is as yet no public evidence either to support or to refute any of these assertions.

McCabe and his attorneys of course have every reason to push those claims, and McCabe himself says that he was “singled out and treated this way because of the role I played, the actions I took, and the events I witnessed in the aftermath of the firing of James Comey … as part of this Administration’s ongoing war on the FBI and the efforts of the Special Counsel investigation.”

There’s no denying Trump’s animosity toward the leadership of the FBI, the special counsel, and his own attorney general, and toward Andrew McCabe in particular. But there is as yet no public evidence that McCabe’s firing was anything other than routine application of FBI and DOJ practices and precedents.

So for now I’m going to withhold judgment on what I think are the two most important questions: whether McCabe committed the misconduct that the inspector general apparently found, and, if so, whether McCabe’s case was handled according to standard procedures.


Texas Opens the Midterm Primary Season

Texas held the first primaries of the 2018 midterm season yesterday, and you’ve probably read about a “surge” of Democratic voters. One especially potent indication of voter enthusiasm is that the number of early voters beat the previous record by 50 percent. Does this mean that Democrats can finally realize their recurring dream of “turning Texas blue”?

Not a chance. At least not this year. To see why, look at the state-wide races.

In addition to district-specific primaries for U.S House seats, Texas senate and house seats, and various judicial and other positions, Texans voted yesterday for a whole series of state-wide offices – U.S. senator, governor, lieutenant governor and various commissioners and judges. And way more Republicans voted than Democrats. Furthermore, the ratio of Republican to Democratic primary votes was pretty consistent across the range of state-wide primaries.

For instance, in the gubernatorial primaries, 1,537,868 Republicans voted, compared to 1,017,150 Democrats – roughly 50 percent more Republicans than Democrats. In the U.S. Senate primaries, 1,541,264 Republicans voted compared to 1,036,942 Democrats. The land commissioner primaries turned out 1,474,294 Republicans and 943,145 Democrats. The railroad commissioner primaries showed 1,368,077 Republican votes to 917,549 Democratic votes.

In other words, the only way the state-wide primary numbers are encouraging for Democrats is if Republican voters who opposed the primary winners vote overwhelmingly for Democrats in the general election. And even in that nightmare scenario, Republicans would do well. If incumbent Republican Governor Greg Abbott keeps only his 1,390,220 votes in the general election, and the Democratic candidate wins all other primary voters, whether Democratic or Republican, Abbott still wins re-election by almost 20 percent of the vote. Even Ted Cruz would win re-election in that scenario, although only by four percent.

That Republican “nightmare scenario” assumes constant turn-out from yesterday’s primaries to November’s general elections. But general election turnout is going to be higher, because general election turnout is always higher than primary turnout. So if yesterday’s primary turnout reflected an unusual surge of Democratic enthusiasm, then turnout for the Democratic primary may have been closer to the Democratic ceiling than turnout for the Republican primary voting turnout was to the Republican ceiling.

In any event, the state-wide races are not where Democrats should be looking for gains in Texas; it’s among the district-specific races that real gains can be found. For instance, in Dallas County alone, seven Republican state representatives hold seats in districts won by Hillary Clinton in the 2016 presidential election. Clinton won three Republican-held U.S. House districts in the state. These districts are Democrats’ real targets of opportunity in November.

With vote-counting almost complete in the 7th, 23rd and 32nd Congressional districts, Democratic primary voters in those races collectively outnumbered Republicans by 117,043 to 110,300. These are not blue districts, by any means – they are represented in Congress by Republicans, and Mitt Romney won all three of them in 2012. So Democratic victories are not assured. But if the midterm Democratic wave is real, these districts will be competitive, offering hope to Texas Democrats in 2018.

Undropped Shoes

An indictment typically comes in two parts. The first part is a factual narrative; the second part is a list of criminal charges against the defendant. The main purpose of the factual narrative is to state the facts that the prosecution must prove to convict the defendant on the listed charges.

So it’s a matter of interest when the first part of an indictment includes facts that are not necessary to the actual criminal charges. For instance, when a federal grand jury indicted Paul Manafort and Richard Gates last October, the indictment’s narrative included allegations that the defendants had evaded federal income taxes by disguising their income. Specifically, Manafort and Gates made “tens of millions of dollars” from their work for pro-Russian Ukrainians; they stashed the money in offshore bank accounts without declaring it as income; and they used the offshore accounts to buy stuff in the U.S.

But the indictment did not include any criminal charges of tax evasion. Some commentators picked up on this at the time, but as far as I know investigative reporters were unable to solve the mystery.

Until now.

Yesterday, four months after the initial indictment, another federal grand jury issued a new indictment against Manafort and Gates. This one includes lots of tax evasion charges – five against Manafort and eleven against Gates. Manafort and Gates are both charged with understating their income on their federal tax returns for each year from 2010 to 2014. Gates faces an additional charge of understating his income on an amended tax return he filed one year. And Gates is charged with assisting Manafort in falsifying five years of tax returns.

Tax fraud was not the only subject that was covered in the original indictment’s narrative but not in its charges. I noted at the time that indictment narrative included four paragraphs about bank fraud, but no criminal charges of bank fraud. Once again, the new indictment solves the mystery.

The new indictment includes nine new counts of bank fraud committed by Manafort and Gates against three different unnamed lendors. The gist of it is what was stated in the original indictment’s narrative: Manafort and Gates made false representations to American banks to obtain loans to Manafort. For instance, to get a bigger mortgage loan from one bank, Manafort and Gates falsely represented to the bank that the property to be mortgaged was used as a second residence, when in fact it was used as a rental property.

Even with all the new charges in the second indictment, there are still a lot of unanswered questions – the “undropped shoes” of my headline.

For starters, both the original and the new indictments include an uncharged allegation of bank fraud. The first instance of bank fraud alleged in both indictments’ narratives relates to a mortgage Manafort obtained on a Brooklyn property. The allegation is that Manafort was able to get a bigger mortgage loan on that property by falsely representing that he would spend part of the loan on construction that would increase the value of the property. This is the only instance of the six instances that included in the indictment narrative that is not included in the indictment charges.

Both indictments allege that Manafort and Gates used foreign bank accounts to hold the “tens of millions of dollars” they made from their representation of pro-Russian Ukrainian interests. Both indictments specify that “more than $75,000,000 flowed through the offshore accounts.” The original indictment accounted for only about $21 million of that $75 million – $18 million that Manafort used to buy real estate, goods and services in the United States, and $3 million that Gates used for purposes not specified in the original indictment.

The new indictment accounts for about $30 million of the $75 million. The new allegations are that Manafort, in addition to using $18 million in offshore funds to buy real estate, goods and services, drew about $10 million that he disguised as loans, to shield the funds from income taxes; and that Gates took his $3 million as transfers to five different bank accounts in the United Kingdom and the United States.

Still, that leaves more than half of the $75 million unaccounted for. If today’s New York Times report is correct that Gates is about to plead guilty and start cooperating with Mueller’s investigation, we may very shortly find out what happened to the rest of the $75 million.

Another undropped shoe is the identity of Manafort’s and Gates’s co-conspirators who are referred to but not named in the indictments. The bank fraud allegations in particular include a number of these references. In one instance, Gates altered a profit and loss statement for one of Manafort’s American companies to show more net income more than ten times greater than it actually was, for submission to a bank in connection with a mortgage loan application. The indictment alleges that Gates sent an e-mail about the falsification to “Manafort and another conspirator,” but the indictment gives no other information about the unnamed co-conspirator.

In connection with a different mortgage application, the indictment refers to “another conspirator” submitting application documents to the bank on Manafort’s behalf, and “a conspirator working at Lender B” – presumably two different co-conspirators in addition to Manafort and Gates.

There is every reason to believe that these co-conspirators are minor players in the overall drama, but of course we don’t know for sure, and in any event their identity remains an undropped shoe.

The money laundering allegations also refer to uncharged parties. The indictment alleges that the offshore bank accounts that Manafort and Gates used to hide their Ukrainian earnings were “opened by them and their accomplices.” The indictment gives no clues who the accomplices were, and it’s not even clear whether the “accomplices” (who were not called “conspirators,” for whatever that’s worth) were in on the criminal purposes behind the bank accounts. On the other hand, it’s possible that the “accomplices” were Russians doing Vladimir Putin’s bidding, and that the money laundering and tax fraud conspiracies were intended for more than just enhancement of Manafort’s and Gates’s personal wealth.

There are other, even bigger undropped shoes. One is why Manafort needed so much money beginning in 2015. The indictment observes that Manafort’s and Gates’s Ukrainian income “dwindled” after the Ukraine’s pro-Russian president was ousted by its pro-Western parliament in February 2014, and that seems plausible enough. The indictment alleges that Manafort drew on offshore funds for purchases as late as November 2014, and for fake loans as late as 2015. Maybe the offshore funds just ran out.

In any event, the indictment charges that, beginning in “late 2015,” Manafort began applying for mortgage loans on various properties he owned. He got a $5 million loan in “early 2016,” a $3.4 million loan in March 2016, a $1 million loan and a $5.5 million loan later in 2016, and $16 million in two separate loans in July 2016 and January 2017. That trajectory implies that Manafort’s financial needs grew substantially after his Ukrainian income “dwindled.” It also implies, of course, that Manafort and Gates continued to commit bank fraud while they were working on then-candidate Donald Trump’s presidential campaign, and continuing at least through the post-election transition, into January 2017.

A closely related undropped shoe is why Manafort was willing to work, first as Trump’s chief delegate wrangler, then as his campaign chairman and manager, for no pay. Manafort approached Trump about it at the end of February 2016, and he started work the next month. It’s at least odd that someone in need of money would volunteer for unpaid full-time work. It’s even odder since nobody expected Trump to win the nomination, much less the election, back in February 2016 – unless, that is, Manafort knew something no one else knew at the time.

It’s also still not clear why Trump agreed to hire Manafort, even for free. It’s true that Trump’s campaign was having trouble attracting quality experience, since one of the cornerstones of his campaign was the denigration of the entire Republican Party establishment. (This is the same reason that Trump had to resort to unknowns like George Papadopoulos as foreign policy advisors in March 2016.)

When Manafort left the Trump campaign in August 2016, it was supposedly because the Trump campaign had become uncomfortable with Manafort’s work for pro-Russian Ukrainians. But Manafort’s Ukrainian work was well known when Trump took him on – it was reported at the time in the New York Times. So the campaign’s claim after Manafort left that Manafort “apparently didn’t tell them what he was doing” seems disingenuous.

Even if there are plausible innocent explanations why Manafort might be eager to work for the Trump campaign, even for free, even while he desparately needed money, and why Trump might agree to hire Manafort, despite Manafort’s lack of significant American electoral experience in the previous 20 years. But there is at least one plausible explanation that isn’t so innocent: Russian interests had leverage over either or both men and they used that leverage to get Trump and Manafort to accept each other.

My final undropped shoe for today is this: why has Manafort been so resistant to cooperation with Mueller? Manafort is 68 years old; the charges against him are easily sufficient to keep him behind bars for life; and at least some of the charges seem to be pretty iron-clad.

Again, there are plausible innocent explanations. Maybe he, or his lawyers, don’t think Mueller’s charges will stick. Maybe they think he can get a better deal at some later point in the case.

There is, unfortunately, a more disconcerting possibility. Manafort is presumably aware that Vladimir Putin’s government is widely believed to be responsible for large numbers of assassinations, mostly inside Russia, but including at least two outside Russia, in the United Kingdom. American journalists have accused Russian interests of committing assassinations across Europe and the Middle East, and have raised concerns whether attacks against Putin critics in the United States were instigated by Putin.

Manafort is certainly aware by now, even if he wasn’t during the campaign, of Russian manipulation of the 2016 election. Manafort may be concerned that Putin, having won the prize of a Trump presidency, will not allow Manafort to give information that could unravel that presidency.

Fear of death outweighs fear of life in prison.


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