More Turnover on Trump's Legal Team

Donald Trump's legal team is undergoing yet another personnel change. Lawyer Ty Cobb is retiring and being replaced by Emmet Flood, an experienced defense attorney. This swap follows closely on the last one, which had John Dowd out and Rudy Giuliani in. While Flood is certainly competent and highly regarded, this constant turnover makes it hard for the team to plan and execute a consistent strategy (more below).

Flood got his J.D. at Yale Law School and later clerked for the late Justice Antonin Scalia. He also advised Bill Clinton during his impeachment, giving Flood first-hand knowledge of the process and issues, something few attorneys have and a skill that may come in handy if the Democrats capture the House in November. His firm, Williams & Connolly, represented Hillary Clinton in matters relating to her email server. So, he's got some protection against being permanently tarred as a Trump/GOP toady.

Flood will soon have his hands full, as special counsel Robert Mueller has made it increasingly clear that he wants Trump to testify before his team, and he is willing to issue a subpoena if needed to force testimony. It is possible that Giuliani and Flood will try to play a good cop/bad cop routine with Mueller, with Giuliani trying to cajole his ole buddy Bob into the shortest and weakest form of an interview and Flood saying that presidents cannot be forced to testify. Mueller will then have to decide if he wants to force the issue and issue a subpoena. There is not much doubt that Mueller would win the case in the Supreme Court based on Clinton v. Jones, in which the Court decided 9-0 that a private citizen can sue the president and compel his testimony, and United States v. Nixon, in which the Court decided 9-0 that the president must obey a subpoena. The downside of a subpoena, though, is it might slow the process down for an unknown length of time. On the other hand, when there is a pressing need for a ruling, sometimes SCOTUS will fast-track things. See, for example, Bush v. Gore. (V)

Giuliani: Trump Repaid the $130,000 to Cohen

When it comes to Stormygate, keeping track of Donald Trump's official story is getting harder than following the plot of "Game of Thrones." Three weeks ago, the President insisted that he knew nothing about the $130,000 that his (former) lawyer Michael Cohen paid to porn star Stormy Daniels (aka Stephanie Clifford) to purchase her silence. Then, last week, Trump acknowledged that he was aware of the payment, and that Cohen was representing him, but that there was no reimbursement of the $130,000. Yesterday, newly hired counsel Rudy Giuliani appeared on Sean Hannity's show and said that, in fact, Trump did reimburse Cohen.

The reason that the specifics are critical is that the $130,000 looks an awful lot like a campaign contribution. And if so, it was either far in excess of federal limits (if it was Cohen's money), or was unreported (if it was Trump's money). Either scenario, if true, would be a felony. Cohen, at least for a while, tried to argue that he had acted completely of his own volition, and he had no expectation of being repaid. That might make the payment OK under federal law, but the problems with that story are that (1) Cohen could be disbarred for conducting legal business on behalf of a client without his consent, and (2) the whole thing was handled in such a hamfisted fashion—using a Trump Organization e-mail address, postal address, and letterhead—that no judge was going to believe what Cohen was peddling. And all of this was before Cohen got raided, an event that means he may no longer be willing to tell falsehoods on Trump's behalf.

Also possibly relevant is the report that Trump didn't just give Cohen $130,000, but $460,000 or $470,000, including amounts for "incidental expenses." The technical term for that is "taxable income." If Cohen "forgot" to report that on his New York State tax returns, NY AG Eric Schneiderman could go after him for evading state income tax, a felony that the president cannot pardon.

In short, then, the situation has devolved into a big mess for Trump and his legal team. And they clearly chose the path that removes Cohen's cooperation from the equation, and places control squarely in Trump's court. But doesn't that mean Team Trump just admitted that the President made an illegal, unreported campaign contribution? Giuliani doesn't think so. He says that the payment is, "going to turn out to be perfectly legal. That money was not campaign money. Sorry, I'm giving you a fact now that you don't know. It's not campaign money. No campaign finance violation."

The first thing to note is Giuliani's verb tense. Observe that he does not say the payment is perfectly legal, he says it will be. In other words, he knows he's still got an argument to make, presumably before the Federal Election Commission. And what, exactly, will the argument be? Well, he could make the same argument that John Edwards once successfully made, namely that paying off a mistress was a personal expense, meant to assuage personal, rather than political, pain. The problem here is that the Trump payment was just two weeks before the 2016 election and the Donald has consistently lied about the nature of the payment. Both of those facts would make an Edwards-like argument rather tenuous.

This, presumably, is why Trump's legal team have apparently settled on a very different argument. As Giuliani explained it to Hannity—admittedly in a clumsy fashion, and with Hannity nodding along like a jack-in-the-box rather than ask any sort of meaningful questions—the payment is kosher because it was "funneled through a law firm." (For those who wish to read it for themselves, a transcript of the Stormygate part of the interview is here).

If this is really what Trump's team is going to hang their hats on, then...just, wow. If all a politician had to do in order to engage in de facto laundering of campaign contributions was to hand over said contributions to their lawyer, then surely a Dick Nixon or a Bill Clinton or one of the Bushes' cronies would have figured that out long ago. And if Team Trump somehow gets that to hold up in court, then that decision will make Citizens United look like a game of patty-cake.

It's certainly within the realm of possibility that Giuliani actually has some better theory up his sleeve. On the other hand, the rest of the interview—which included a rant against James Comey—did not give that impression. It's also the case that a quartet of lawyers who barely know one another, and who have all been hired in the last week, have just committed to a risky legal strategy. That does not generally suggest that all the i's have been dotted and all the t's have been crossed; it suggests that the counselors are shooting from the hip. It's also not too good a sign that on the day Team Trump decided to take this approach, Ty Cobb announced "I'm outta here." One is reminded of rats abandoning a sinking ship.

Even Giuliani hinted, perhaps unintentionally, that he's not entirely sold on this approach. He asked Hannity, "Was it a campaign finance violation? Which usually results in a fine, by the way, not this big stormtroopers coming in and breaking down his apartment and breaking down his office." When one is openly talking of worst-case scenarios, it does not generally suggest great confidence. Also, Rudy might want to do a tad bit more research. It's true that lesser violations often result in a fine, but it is also true that the FEC has the power to instigate criminal proceedings for "gross violations." And if a presidential candidate making a massive payment just two weeks before an election he barely won and then lying repeatedly about it is not a "gross violation," it's hard to imagine what is. (Z)

Caputo Has Some Scary Words for Trump

Michael Caputo was a part of Donald Trump's campaign, and by all evidences, still has a solid relationship with the President. He's also been subjected to interviews and other scrutiny from both Congress and special counsel Robert Mueller. In other words, he got a view from the inside, and no particular ax to grind. And so, Trump should be very nervous about some of the things Caputo said on Wednesday while sitting for an interview with CNN's Anderson Cooper.

The former communications consultant opined, first of all, that Mueller is "really focused on Russia collusion." That's the harder offense to prove, but also the more serious one. Further, Caputo had strong words about the professionalism of the investigation:

They know more about the Trump campaign than anyone who ever worked there. The Senate and the House are net fishing. The special counsel is spearfishing. They know what they are aiming at and are deadly accurate.

In other words, these aren't just pros, they are pro's pros. A dream team that would be a match for even the finest legal team the President might put together. But, of course, the President doesn't have the finest legal team. He has a team made up of the attorneys who were willing to take the job, and who rotate in and out on a regular basis. Not at all the equal of Team Mueller. (Z)

Trump Claims Absolute Immunity in Emoluments Lawsuit

The state of Maryland and the District of Columbia have sued Donald Trump on the basis of the Constitution's emoluments clause, which forbids the president from accepting gifts from foreign governments. The suit claims that foreign governments are effectively giving him a gift by organizing large, expensive parties at his D.C. hotel. The respective attorneys general claim standing to sue because hotels in their jurisdictions have lost business to Trump's hotel on account of foreign governments wanting to curry favor with him.

Yesterday, in a court filing, Trump's lawyer, William Consovoy wrote that Trump is "absolutely immune" from any suit, including the current one, that seeks to impose liability on him for being president. He also wrote that such suits distract from his official duties and thus must not go forward in the national interest.

Trump's lawyers previously tried to have the suit thrown out, but Judge Peter Messitte let it proceed. If Messitte wanted to throw the suit out, he had his chance already and passed on it, so most likely he will not honor the new filing either. If this argument flies, then it would seem to suggest that the emoluments clause doesn't apply...ever. Generally, judges are not keen to ignore entire passages of the Constitution, particularly those that appear in the main body of the document. (V)

Pruitt Under Review--Times 10

We have observed, several times, that EPA Administrator Scott Pruitt is on the take in so many different ways that he brings to mind the urban bosses of the Gilded Age. However, there is one big difference between the late 19th century and the early 21st: Oversight. A Boss Tweed or a Boss Plunkitt (or, in the 20th century, a Richard Daley) held such power that they effectively answered to no one. Not so for Pruitt.

The Administrator answers to the President, of course, but it's pretty clear that Trump is happy to allow the fox to guard the henhouse. However, Pruitt's also subject to many other entities, with the result that he's the target of 10 different inquiries, some from the EPA's inspector general, others from the Republican House Oversight Committee, others from the Government Accountability Office, and still others from the Committee on Environment and Public Works. Pruitt's been in office for only 14 months, which means he's managed to trigger an average of an investigation once every six weeks. Even Hillary Clinton couldn't match that pace, though it's a little harder when you're not, you know, a grifter.

Pruitt's response to all of this? He said:

I'm not afraid to admit there's been a learning process and when Congress or independent bodies of oversight find fault in our decision making, I want to correct that and ensure that it does not happen again.

Yes, if only he'd known—if only someone had told him that he really shouldn't be taking tens of thousands of dollars in favors from lobbyists, and shouldn't be living luxuriously on the government's dime, and shouldn't be ignoring federal law when awarding raises or making purchases, then none of these things would have happened. Partisans might buy such an explanation, but it's unlikely that hardened veterans of the federal bureaucracy will do so. If Pruitt survives to the end of the year, it will be a miracle on par with the virgin birth, the parting of the Red Sea, and the Cubs winning the World Series. (Z)

West Virginia Senate Candidate Uses Fake Photo in Ad

Fake news is child's play compared to what's coming down the pike soon. Rep. Evan Jenkins (R-WV) is running for the Republican Senate nomination in West Virginia. His most recent ad contains a still image shot of one of his oppoents, WV AG Patrick Morrisey, shaking Hillary Clinton's hand (below, right). The only minor problem here is that the photo is fake. The ad designers took a photo of Morrisey shaking Donald Trump's hand (below, left), removed Trump, and put Hillary Clinton in his place. Any intermediate-level Photoshop user can do this. Here are the original and fake photos:

When Jenkins' campaign was asked about the fake photo, the reply was that they had taken "creative license" with the ad. The campaign was caught this time, but it was simply unlucky. In the future, campaigns are no doubt going to go much further using doctored photos to change "reality" and score political points. It is virtually impossible for the average person to detect when a photo has been carefully manipulated, and all that is needed is some good source material, Photoshop, and someone with moderate skills in using it.

But this stuff is just a warmup exercise. Image processing experts are developing tools that make it possible to create videos in which anyone says just about anything the director wants that person to say. For example, watch this video:

What's wrong with this picture? And this was just a demo of what is already possible. In a few years, it will not only be possible to make videos even more realistic, but there will be tools available that allow them to be made by people with only moderate skill levels (at the moment, you have to be pretty good to do this). What is going to happen to politics when a candidate runs an ad showing his opponent:

• openly lying about something the audience knows is false?
• starring in an adult film clip, perhaps one involving bodily fluids and Russian women?
• announcing that his first act, upon taking office, will be to repeal the Second Amendment?
• murdering a puppy on camera?
• beating his wife?
• admitting that he wasn't born in the U.S. and that his birth certificate is fake?
• accepting a suitcase full of $100 bills from a sleazy-looking character?
• declaring that Christianity is for losers?
• attending a Klan rally?
• leading a Klan rally?
• climbing into bed with a live boy or a dead girl?
• Starting a fire with pages from the Bible, then using that fire to incinerate an American flag?

When the technology gets to the point that it is easy to make totally fake videos (and that day is not far off), and candidates use them and people believe them, what will happen to the political process? (V)

Corker's Distaste for Blackburn Could Hand the Democrats a Senate Seat

When Sen. Bob Corker (R-TN) called White House "an adult day care center," Donald Trump and his supporters were furious with him. They hounded him to drop his reelection bid. They were overjoyed when they got their way and he caved to their wishes. But file this under: "Be careful what you wish for; you might get it." The leading Republican in this very deep red state Trump won by 26 points is Rep. Marsha Blackburn (R-TN), a fire-breathing tea partying Trump supporter. Think of her as an older and much less polite version of Sarah Palin.

Corker doesn't like her. Not one bit. To make it worse, he very much likes the Democratic candidate, former two-term governor Phil Bredesen. Bredesen governed as a practical let's-get-things-done type of person, not an ideologue like Blackburn. Corker hasn't formally endorsed Bredesen—that would be a bridge too far for an establishment Republican like himself—but no one in Tennessee who has been paying attention has any doubts about where he stands. Many Chamber of Commerce Republicans have gotten the hint and are supporting Bredesen, some of them quite openly. The widow of GOP fundraiser Ted Welch held a fundraiser for Bredesen in February. Autozone founder Pitt Hyde, a formerly reliable Republican donor, is considering doing so as well.

D.C. insiders are worried that Corker's implicit support for Bredesen basically gives permission to moderate Tennessee Republicans to cross the line and vote for the Democrat. One Blackburn ally said: "If you're Marsha, your inclination is to go out and blister his ass." She hasn't done that, though, because it would probably push the Republicans still on the fence into Bredesen's back yard.

Just about all polls show Bredesen ahead, and one recent poll has Bredesen's lead at 10 points. Much as Trump dislikes "Little Bob Corker," come November 6 he may be sorry he drove Corker out of the Senate when he has to think of a nickname for senator-elect Bredesen. (V)

Democrats Win a Bellwether Race in Florida

In yet another key special election in Florida, Democrat Javier Fernandez won a seat in the Florida House, even though he was outspent by Republican Andrew Vargas 2 to 1. The previous occupant of the Miami-Dade seat was a Democrat who was forced out in a scandal (she didn't live in the district). The one before that was a Republican who was forced out in a scandal (he didn't bother to file federal tax returns for many years). The district is very closely balanced between Democrats and Republicans.

What is noteworthy here is that Fernandez, a Cuban American, is a Democrat. Older Cuban Americans are mostly Republicans, but their kids are more likely to be Democrats. As the older Cuban Americans die off, replaced by their children, the assumption that Cuban Americans vote as a bloc for Republicans is not going to hold any longer. In addition, with the addition of over 200,000 Puerto Ricans to Florida last year and this, most of whom are Democrats, the Latino community in Florida as a whole is turning blue, with ominous consequences for the GOP. (V)

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---The Votemaster and Zenger