Democrats Creep from Collusion to Obstruction

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In a cart before the horse scenario, Rep. Jerrold Nadler (D-NY), chairman of the House Judiciary Committee, stated with certainty that he believes President Donald Trump is guilty of obstruction of justice. Nadler declared this as his committee initiated an investigation to ostensibly determine whether or not the president obstructed justice.

Nadler’s panel sent out 81 document requests and subpoenas as part of an unprecedented partisan probe launched at a time it is widely believed that Special Counsel Robert Mueller is wrapping up his investigation and issuing a report.

Nadler, who has evidently come to a conclusion prior to his committee’s investigatory work, has also moved past the Mueller report, apparently amid concerns that it will contain no evidence of the supposed Russian collusion, which the Democrat Party and its allies in the left-leaning media have been obsessing over for more than two years.

Politico has cautioned those who are eagerly anticipating the special counsel’s report to “prepare for disappointment.”

Despite denials from certain members of the party, Nadler and his ilk are on an endless search for a rationale that they will be able to sell to the public so that impeachment of the president can be pursued and the 2016 election can be reversed.

“I think Congressman Nadler decided to impeach the president the day the president won the election,” House Minority Leader Kevin McCarthy (R-Calif.) said. “Show me where the president did anything to be impeached…Nadler is setting the framework now that the Democrats are not to believe the Mueller report.”

Nadler opined that the president is guilty of obstruction of justice, citing the “1,100 times he referred to the Mueller investigation as a ‘witch hunt.’” He additionally pointed to President Trump’s 2017 firing of then-FBI director James Comey.

“It’s very clear that the president obstructed justice,” Nadler stated.

Nadler’s determination prior to the investigation begs the question: Can a case be made against President Trump for obstruction of justice?

There are two serious impediments facing Nadler and other Democrats who are looking to impeach a sitting president using an obstruction of justice charge. The first impediment is the law and the second involves politics.

An analysis of the current facts results in a finding that there is no viable case for obstruction of justice. A sitting president who exercises legitimate constitutional power cannot be guilty of obstructing justice for merely acting on such power.

In this case, President Trump carried out tasks in which he is fully authorized to engage, using powers inherent to the office of the presidency and granted by the Constitution. These powers grant to the president the ability to hire and fire officials under his charge, including FBI Director Comey.

Even if the president had suggested a de-escalation of an investigation, as Comey alleged, this would not constitute obstruction, since the Chief Executive is, in fact, in charge of the executive branch of government.

Immediately after the president relieved Comey from his position, the former FBI director leaked copies of memos to the New York Times in which Comey had written that President Trump asked him to drop the investigation into then-National Security Advisor Michael Flynn.

The Comey firing was explicitly recommended via a memo from Deputy Attorney General Rosenstein to then-Attorney General Jeff Sessions, which stated, “Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives. The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”

Obstruction of justice additionally requires a showing that the party who is obstructing possessed corrupt intent to interfere with, or had attempted to interfere with, the proceeding or investigation.

This means that the intentional aim of the interference is for self-interest.

Decisions made by a president that have arguable benefits for the people that the president serves are difficult for prosecutors to characterize as having the requisite corrupt intent.

President Trump’s decisions were arguably made to benefit the nation that his executive branch serves.

With regard to the tweets, presidents have a First Amendment right to express opinions. Moreover, the chief executive must freely express points of view as the leader of the executive branch.

President Trump’s tweets are not orders to those subject to his authority. They are instead expressions of ideas, thoughts, beliefs, and proposals to the people.

If President Trump had desired to interfere with the Mueller probe, he could have ordered it to be defunded, minimized, or terminated. Instead he chose to express opinions using his Twitter account.

Prior to taking the office of attorney general, William Barr penned a memorandum indicating that a president should not be prosecuted over conduct that is less than clearly serious criminality.

Does this mean that a sitting president cannot commit obstruction of justice? Of course not.

However, to commit a prosecutable offense, the occupant of the oval office would have to do something outside the scope of his constitutional authority, such as bribing a witness, threatening a judge, or destroying evidence.

Politically speaking, obstruction of justice, if used as a hedge for the lack of evidence of collusion, will likely result in a public perception that a significant gap had occurred between the original purpose of the investigation and the endgame.

So-called Trump Campaign Finance Violations Are a Fallacy

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Democrat leaders and their allies in the media have momentarily dropped the Trump-Russia collusion narrative from their playbooks and are instead talking about purported campaign finance violations.

In fact, some Democrats such as Rep. Jerrold Nadler, D-N.Y. are attempting to characterize their latest campaign finance meme as constituting an impeachable offense.

To claim that the payments to adult film star Stormy Daniels and Playboy playmate Karen McDougal would be impeachable offenses, one would have to ignore both the law and historical practices.

During former President Barack Obama’s 2008 campaign, some real and arguably more serious violations of campaign finance law were treated as civil matters, resulting only in penalties paid to the Federal Election Commission (FEC).

According to the Washington Post, in 2008 Obama’s campaign allowed donors to use untraceable prepaid credit cards, which are capable of being utilized to evade campaign finance restrictions. Obama’s campaign additionally failed to employ basic verification and security procedures to prevent illegal donations to the campaign.

Years after the 2008 election, the Obama campaign paid a $375,000 fine, one of the largest ever levied against a presidential campaign but otherwise walked away from the violation. Impeachment was never a topic of discussion.

Despite claims by panelists on cable news shows, the current Trump campaign finance narrative contains serious flaws when it comes to the law.

According to the Federal Election Campaign Act, in order to constitute violations the payments to the two women would have to have been implemented “for the purpose of influencing any election for Federal Office” and not for a personal use.

The law stipulates that a personal use, as opposed to a campaign use, occurs when funds are “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.”

President Trump’s company, which is branded with his name, his celebrity status, and his need to protect his family, all point to the personal component of the payments as opposed to a campaign related one. Moreover, the necessity for the payments preceded his announcement to run for president.

Former FEC Commissioner Hans von Spakovsky is in agreement, having told Fox News, “The blackmail threat by Daniels and McDougal to reveal their claims would exist whether or not Trump was running for office.”

Former FEC Chairman Bradley Smith told Fox News, “Even if it [the payment] was intended to have some influence on the campaign, that’s not the standard. The standard is: ‘Does the obligation exist because you’re running for office?’”

Smith wrote in the National Review that the president’s “alleged decade-old affairs occurred long before he became a candidate for president and were not caused by his run for president.”

As Smith noted, engaging in activities such as polling, purchasing ads, and printing bumper stickers are expenditures that seek to influence an election, however “paying hush money to silence allegations of decade-old affairs is not.”

In a somewhat similar but stronger case, which involved former presidential candidate and Democratic vice presidential nominee John Edwards, prosecutors attempted to prove that payments made during a presidential run were intended to assist Edwards’s electoral chances, claiming that they were made to protect his public image. Yet, in that case the prosecution could not persuade a jury that Edwards had made campaign related payments. After an acquittal of the main charge and a mistrial on other charges, the case was not pursued by the Justice Department, and Edwards was never retried.

Seeing a similar result with the case against President Trump, von Spakovsky wrote in a Fox News editorial, “Convicting Donald Trump of a criminal campaign finance violation will be extremely difficult, if not impossible. Just as Edwards was found not guilty, the same is likely to happen to President Trump if he is charged while he is president or after he leaves the White House.”

In a potential prosecution of the president, an additional problem involves evidence of the president’s mindset at the time the payments were made. The level of intent that must be proved in a campaign finance prosecution is that the alleged misconduct is committed knowingly and willfully, which is an extremely challenging element of the case for prosecutors, who must prove that a defendant intended to violate the law.

Because the Federal Election Commission does not consider payments made to a mistress to be an expenditure covered by the federal campaign law, it is not possible for a defendant to have made such a payment with knowledge that it was an unlawful violation.

In other words, the president cannot be charged with a knowing and willful violation of the law under these facts, since the Federal Election Commission and legal experts who served on the commission determined that such payments are not campaign finance violations in the first place.

 

Harvey Weinstein’s Growing Legal Quagmire

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Harvey Weinstein has now lost his job, his wife, and his reputation. Next on his agenda is the prospect of spending a great deal of time huddling with his lawyers.

The disgraced movie mogul is facing a mounting pile of legal troubles swarming at him from every conceivable direction. The details that have been revealed in allegations of sexual misconduct against Weinstein, particularly those contained in Ronan Farrow’s reporting for the New Yorker, could result in civil and criminal liability for Weinstein and his company, with legal actions against the former film executive emanating from multiple jurisdictions.

More than 20 women have voiced allegations against Weinstein, claims of which include harassment, groping, forced sexual relations, and even rape. The alleged incidents took place over many decades in numerous locales.

The names of women who have lodged charges in the public square include an unusually high number of well known actresses including Angelina Jolie, Gwyneth Paltrow, Ashley Judd, Rosanna Arquette, Mira Sorvino, and Kate Beckinsale.

Most of the alleged victims would not be in a position to sue Weinstein in a civil court, due to the relatively short statutes of limitations governing the former mogul’s alleged torts (one or two year time periods).

The alleged assaults took place in many different jurisdictions, including New York, Los Angeles, Toronto, and Utah, as well as the French Riviera, each of which has varying statutes of limitations and time limits on reporting to authorities.

The alleged acts date as far back as 1984. Eight of the incidents allegedly occurred after the 2005 founding of the Weinstein Company. Moreover, the eight settlements Weinstein reportedly reached with former accusers could prevent those women who already settled from taking him to court.

However, Weinstein’s legal problems in the civil arena are just the beginning of an expanding legal vortex. He now finds his alleged actions are the subject of investigations by the FBI as well as the New York and London police, while Los Angeles law enforcement is looking into launching a probe of its own.

Weinstein has been accused of committing both sexual assault and rape. A sexual assault occurs when an individual is offensively touched without consent or compelled to engage in a sexual act. Rape occurs when an individual is sexually penetrated without consent.

Three of the women have alleged that Weinstein raped them. Predictably, the film executive released a statement denying any allegations of non-consensual sex.

Felony rape is a very serious crime, and a conviction in New York can carry a sentence of up to 25 years. Since 2006 New York has had no statute of limitations for first degree felony sex offenses; this law did not take effect until after 2006 and therefore prosecutors would probably be barred by the statute of limitations for crimes that occurred prior to 2006.

The case that Manhattan District Attorney Cyrus R. Vance Jr. had ready to go two years ago should have been prosecuted. An Italian model cooperated with police to obtain an audio recording of Weinstein admitting that he had groped her, yet Vance failed to bring the charges forward. He had no adequate explanation for his lack of action.

The Weinstein Company itself is also facing potential legal consequences. Female employees of the Weinstein Company could bring individual or class action lawsuits against the company for subjecting them to alleged hostile work environments.

The company released a statement indicating that the “allegations come as an utter surprise to the Board” and additionally that “any suggestion that the Board had knowledge of this conduct is false.”

The New York Times followed this statement with a report that the Weinstein Company directors were informed of at least three confidential settlements with women. One of the remaining board members claimed that although he knew about the settlements he believed they dealt only with consensual affairs.

The former and current directors, including Weinstein himself, could be sued by investors in a breach-of-fiduciary-duty lawsuit. The directors could be liable for their failure to address Weinstein’s alleged sexual misconduct.

Harvey and his brother Bob Weinstein own 42 percent of the company; this leaves a significant number of outside investors who may go after former and current members of the company’s board, including Weinstein.

Weinstein, as a director and officer of the company, would have breached his duty of loyalty if he acted in bad faith for a purpose other than advancing the best interests of the company. If a co-chairman of a company uses his or her position of power to sexually assault potential and actual employees, it breaches the duty to the firm. It also does considerable harm to the company’s brand and the reputation of the enterprise.

According to TMZ, Weinstein’s employment contract with the company had unusual passages in which the contract explicitly addressed the possibility of future misconduct claims against Weinstein.

According to the website, Weinstein agreed to reimburse the company for any settlements or judgments arising out of his misconduct and to make an additional payment to the company for each instance of wrongdoing. The contract purportedly provided that Weinstein could not be fired for committing heinous acts against women as long as he came up with the required payments.

If the TMZ description of the contract is accurate, it means that former and current board members of the Weinstein Company would have been put on notice of Weinstein’s unlawful behavior and sadly would have deliberately allowed his behavior to continue.