Tornado Alley (PROG)

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conix, Donald Trump and Criminal Conspiracy Law

Your "Then charge him and go to trial..." is simplistic to say the least.

A RICO Explainer

By John Norris and Carolyn Kenney Posted on December 7, 2017, 9:02 am

[...]

Conclusion

There are a number of key takeaways with regard to The Trump Organization and the potential application of RICO as a prosecutorial tool.

As noted in the introduction of this report, the Trump organization arguably behaves a great deal like the organized crime syndicates which the RICO statute was originally designed to target. The Trump Organization engages in a sweeping range of activities, many of them perfectly legitimate, some of them apparently in open violation of the law, and many more which appear to take short cuts to avoid both the spirit and the letter of the law. These Trump structures appear at times to be loosely organized, driven by personalities more than formal structure, with loyalty to, and profit for, the Trump and Kushner families being the only over-riding imperative to the business model. The degree to which Trump and his associates have avoided basic norms of transparency are remarkable. Trump and his associates are engaged in some highly irregular financial transactions, and he and his associates have repeatedly veered into behavior that bears striking resemblance to the obstruction of justice. And, importantly, organizations and individuals rarely engage in systemic obstruction of justice efforts if they are not trying to obscure other underlying felonious behavior. In short, there is a colorable claim that these many diverse allegations of criminal activity provide a sufficient basis for one or more RICO actions at either the state or federal level. And, the recent indictments of Paul Manafort and his business partner Richard Gates, as well as the guilty plea by George Papadopoulos only add further momentum to the potential to make a RICO case.

That said, there is enormous difference between being able to make a RICO case and a prosecutor, particularly a special counsel investigating a sitting president, deciding that it is in the best interests of justice to do so. That caution is both understandable and merited, and both former Acting Attorney General Sally Yates and Preet Bharara, the former U.S. Attorney, argued recently that the special counsel will face a high bar in bringing criminal charges regarding his probe of Trump and the Russians.177 Tackling the case, or cases, involved in the Trump probe as a RICO case could lead to a sprawling prosecution where the special counsel is not only required to prove beyond a reasonable doubt any specific criminal charges that he decides to bring, but also to make an equally persuasive case that these criminal actions are parts of a larger ongoing criminal enterprise.

The nature of any potential charges is also quite important in this instance. Given Mueller’s core mandate to investigate Russian interference in the 2016 election, any RICO case established by the Special Counsel would likely need at least one RICO predicate related to the Russia issue, with obstruction of justice the most obvious candidate. (In contrast, a New York or other state prosecutor could very well be comfortable mounting a RICO case involving Trump based on predicates stemming from complex financial crimes alone, with money laundering, bank and wire fraud, and obstruction all obvious candidates.) Whatever charges a prosecutor at either the state or federal level may bring if they deem it appropriate to do so will almost certainly be painted as a fishing expedition by the president’s lawyers, regardless of the merits of the case.

The special counsel is also acutely aware that the president enjoys the expansive power of federal pardons, and there have been media reports that the special counsel’s team is carefully researching the limits of the power of the pardon. The president’s power to issue pardons for federal, but not state, crimes, makes it more difficult for the special counsel to flip potential witnesses who might avoid testifying as to their involvement in criminal activity based on hope or knowledge that the president would pardon them. It is also useful to note that while not a matter of settled law, there is some skepticism that a sitting president can face criminal charges, with impeachment most widely viewed as the obvious remedy for such presidential abuses, and impeachment remains a relatively unlikely prospect with both the Senate and the House held by the president’s party at this juncture and seemingly reluctant to challenge his authority.

Thus, the special counsel would seem to face extraordinarily complex calculations in both presenting his findings and deciding what charges he would potentially bring. A highly logical strategy for the special counsel is to engage in burden sharing with the New York and/or Virginia attorney generals. By having some of the potential charges pursued at a state level, prosecutors can ensure that potentially helpful witnesses or co-conspirators do not have the potential of a presidential pardon being held out to discourage their assistance.

In September 2017, Politico reported that just such cooperation is already taking place between the special counsel’s office and the New York attorney general. As The Washington Post observed:

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Federal rules and Justice Department policy clearly provide for such cooperation and would even allow Mueller to share confidential grand jury information with Schneiderman’s office with court approval. Beyond that, there is always a great deal of information not covered by grand jury secrecy that could be freely shared. But although certainly not unheard of, federal and state prosecutors cooperating in an investigation is relatively unusual, at least in a white-collar case.178
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But having a sitting president investigated for collaborating with hostile Russian forces to tilt a presidential election is certainly an extraordinary case.

The involvement of the New York attorney general has a number of other benefits as well: This is an office that has already repeatedly investigated the Trump organization with some degree of success; a significant number of the financial transactions concerning Trump, Sater, Manafort, and others all took place in the state of New York; and, the office is well familiar with making complex financial cases. The possibility that the New York attorney general would bring a RICO criminal case against The Trump Organization as it relates to complex financial crimes and or money laundering is an intriguing one, and it would hold a sword over key actors in the process while allowing the Special Counsel to direct his greatest firepower on Trump’s Russia links and what appears to be a pattern of obstructing justice.

On balance, RICO instruments can and should be seen as a viable potential tool for prosecutors probing the actions of President Trump both before and after he took office. The more that is learned about the Trump universe, and the better the investigative research by prosecutors, the media, Congress, and concerned citizens, the sharper a pattern of criminality appears to come into focus. Less than a year into his presidency, Trump’s national security adviser has pleaded guilty to lying to the FBI, his former campaign chairman is facing multiple indictments, and a campaign foreign policy adviser has pleaded guilty to lying to the FBI and acknowledged that the Russians claimed to have Clinton’s emails before the public knew about such hacking. More dominoes seem almost inevitable to fall given the special counsel’s efforts to secure cooperating witnesses, and RICO statutes give him a powerful card to play if he wishes to do so.
About the authors

John Norris is a senior fellow and the executive director of the Sustainable Security and Peacebuilding Initiative at the Center for American Progress. He has served in a number of senior roles in government, international institutions, and nonprofits. Norris previously served as the executive director of the Enough Project at American Progress and was the chief of political affairs for the U.N. Mission in Nepal. Norris is the author of several books, including Mary McGrory: The First Queen of Journalism, a biography of the late journalist, and the Disaster Gypsies, a memoir of his work in the field of emergency relief.

Carolyn Kenney is a policy analyst for National Security and International Policy at the Center, working specifically on the Sustainable Security and Peacebuilding Initiative. Prior to joining American Progress, Kenney worked with the International Foundation for Electoral Systems, in its Center for Applied Research and Learning. She previously completed internships with the International Crisis Group and Human Rights Watch. Kenney received her M.A. in international human rights from the Josef Korbel School of International Studies at the University of Denver and her B.A. in international affairs from the University of Colorado, Boulder.

Endnotes

It's a long one .. https://www.americanprogress.org/issues/security/reports/2017/12/07/443833/donald-trump-criminal-conspiracy-law/

Mueller knows the law. Mueller is careful. Mueller is experienced.

How Scared Should Trump Be of Mueller? Ask John Gotti or Sammy “The Bull”
If history is any guide, Mueller will put up with 19 murders to get his mark.
https://www.vanityfair.com/news/2017/12/how-scared-should-trump-be-of-mueller-ask-john-gotti-or-sammy-the-bull
.. reposted 2nd from the bottom in Part 87, some of Russian meddling, and related...
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=137229554

Mueller understands the constitution and DOJ rules. You really should watch

The twenty third

DOJ Lawyer who wrote Special Counsel rules: Mueller can ask to indict Trump

The Beat with Ari Melber
2/21/18
Legal experts have debated whether special counsel can indict a sitting president from the time of Nixon’s presidency. The man who wrote the
rules on how a Special Counsel should operate Neal Katyal, explains Mueller’s indictment power and limitations within the Justice Department.
©2018 NBCNews.com
http://www.msnbc.com/the-beat-with-ari-melber/watch/doj-lawyer-who-wrote-special-counsel-rules-mueller-can-ask-to-indict-trump-1166974531817 , https://www.youtube.com/watch?v=04sVcamCqQU ]with comments]
.. first reposted as the first in, Part 160, some of Russian meddling, and related...
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=139197495