Below is my column in the Hill on the latest twitter controversy. While Trump counsel John Dowd has insisted that he merely used “sloppy” drafting, news organizations are reporting that White House Counsel Don McGahn told Trump (before the firing of National Security Adviser Michael Flynn) that Flynn had misled FBI agents in his interview. In yesterday’s press conference, Sarah Sanders refused to say when Trump first learned that Flynn had lied to the FBI. That brings us back to Dowd and the breathtakingly dumb mistake in sending out a tweet to millions with an admission against interest under the President’s name.
Here is the column:
It is truly a scandal for our times, the weekend many in Washington were asked,”What did President Trump tweet and when did he tweet it?” The Watergate-esque question has arisen after yet another Trump tweet gone horribly awry, smashing into an only recently reconstructed defense by his legal team. After the plea agreement with Michael Flynn, in which he agreed to cooperate with the special counsel, Trump sent out a tweet that sent gasps through the Beltway: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”
Among the more than 107,000 “likes” were the entire legal team behind special counsel Robert Mueller. The reason? Three words: “and the FBI.” The tweet states that when Flynn was “fired” on Feb. 13, Trump already knew that he had lied to the FBI. However, the next day, Trump reportedly buttonholed then FBI Director James Comey to ask him to go easy on Flynn, saying, according to Comey’s contemporaneous memo, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Trump this weekend denied that he ever asked Comey to drop the investigation against Flynn.
If Trump knew of Flynn’s crime and pressured the FBI director to drop the investigation, it would materially change the current status of the obstruction of justice investigation. This is why the tweet would be viewed as a “statement against interest.” Trump is saying that he was aware in February that Flynn not only lied to the FBI but did so on the subject of prior communications with the Russians.
Trump has repeatedly undermined his defense (and those of some of his closest aides) with ill-considered and ill-timed tweets. This one, however, is cataclysmic. The response of the White House the day after the tweet disaster only made the situation worse and, if possible, more bizarre. The White House declared that Trump was not the author of his tweet but that this truly moronic message was penned by one of his lawyers, John Dowd, who reportedly told ABC that he was responsible for the “sloppy” tweet.
First and foremost, a criminal admission against interest is not “sloppy,” it is suicidal. Misspellings and typos are sloppy. Saying that you have known about the crimes of a close aide for almost a year is a bit more than an omitted preposition or a double negative. (This follows another “sloppy” moment by the Trump legal team, when personal counsel Ty Cobb was overheard at a popular D.C. restaurant discussing undisclosed material documents being withheld by White House Counsel Don McGahn.)
Second, this might not help. The White House previously has stated, and various courts have repeated the statement, that Trump’s tweets are his official presidential statements. Moreover, statements of counsel are generally treated as statements of clients. The White House is clearly moving to deny that the words accurately reflected the president’s position, and that retraction will blunt the legal impact. However, it is now part of an already conflicting array of statements made by Trump or on his behalf.
Third, Mueller may not believe Dowd’s account. The admission of knowledge of a crime places this tweet squarely within Mueller’s investigation. If Dowd is lying about this being entirely and solely his work, the situation will get even worse for both of them. This could make Dowd a possible witness, as opposed to counsel in the investigation. The attorney-client privilege has an exception for evidence of crimes or fraud.
Finally, these Twitter misfires are simply getting old. The fact that Trump’s lawyers are apparently little better in showing a minimal level of control and foresight is chilling. This tweet made a highly precarious situation far, far worse. It is not clear what is more bizarre: the fact that, after Trump tweets were used repeatedly by courts against his administration, the president still insists on tweeting, or that he is allegedly using counsel to do so.
There is, of course, another option, which is to stop tweeting. It is not even a necessity to stop all tweeting. Trump (or his designated “tweet counsel”) can still hold forth on everything from Rosie O’Donnell to radical Islam. Just stop tweeting about pending cases and investigations.
What is truly breathtaking is that Trump had a clear, consistent defense that he and his lawyer just tweeted away. The firing of Flynn created a firewall for the White House in the investigation. The administration tossed Flynn as soon as it reportedly learned of his misrepresentation to Vice President Mike Pence. He was a 24-day wonder who barely outlasted Anthony Scaramucci as a White House employee.
The Flynn “information” filed by Mueller actually had positive news for Trump in this respect: There is still no clear evidence of a criminal conspiracy with the Russians, and Flynn’s meetings were not particularly surprising for an incoming administration dealing with developing Russian and Israeli policies. Just as the Trump team seemed on terra firma, however, the ground shook with another self-defeating tweet.
It is death by tweet, and it is hard to watch. If this was the work of Dowd, he is the legal version of Ambrose Burnside, the Union general described by President Lincoln as the only person capable of “such a coup as to snatch defeat from the jaws of victory.” Burnside repeatedly had trouble with bridges in battles. Just as he would have been wise to avoid those spans, the Trump White House would be wise to avoid those tweets, long the forum for its repeated and greatest self-inflicted wounds.
That is assuming however that there is some intelligent design at play. Instead, we are more likely to simply have a new tweet declaring, “Lawyer admits to mimicking my style and making incriminating statements against interest. Sad!” And the tweets go on.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
The Duke Lacrosse protagonist, Michael Nifong, disbarred and jailed District Attorney, was a political hack in the same vein as Robert Mueller. Robert Mueller is the point man of the Hillary/Obama/democrat conspiracy to overturn the 2016 election.
“Michael Byron Nifong (born September 14, 1950) is a disbarred North Carolina attorney.[2] He was the district attorney for Durham County, North Carolina (the state’s 14th Prosecutorial District) but was removed, disbarred and jailed following court findings concerning his conduct in the Duke lacrosse case.[3]”
– Wiki
The professor opines, among more than a few other thoughts, “… Third, Mueller may not believe Dowd’s account. The admission of knowledge of a crime places this tweet squarely within Mueller’s investigation. If Dowd is lying about this being entirely and solely his work, the situation will get even worse for both of them. This could make Dowd a possible witness, as opposed to counsel in the investigation. The attorney-client privilege has an exception for evidence of crimes or fraud. …”
I retired after 35 years and more 25 trials as a civil trial trial lawyer.
As a trial lawyer, the word “believe” was not part of my vocabulary.
It would seem necessary for a trial lawyer to investigate and obtain a statement, if not the deposItion, of Mr. John Dowd by audio, video tape.
The professor, from my prospective, has never shown an understanding of grammar
( subjunctive case ), syntax or proof reading.
If Mr. Dowd ( or an attorney in his office ) were to have authored the tweet in question, then that is a piece of evidence which would need to be documented. ( not “tried” in the media )
It would seem to a reasonably competent trial lawyer, that Mr. Dowd is a witness. Did he not offer himself up as the author? ( A reasonable person for the assertion … tweet … sent. )
Last, but not least, has Mr. Dowd waived, at least partially, the attorney client privilege? Is it not the client’s privilege? But, the President has said what on the “subject ( tweet’s author ) in question?”
Admission by silence as to the tweet’s author when …
The professor on this blog, at least, writes like an attorney who could not find the Courthouse with a road map, gps.
Perhaps, this blog is not about the law, certainly not about trial law or evidence.
To me, at least, the professor seems to be a power player, or a would be power elite player, in the political arena.
A power elite functionary of the oligarchy and his place in it.
Bread and circuses, nothing more.
dennis hanna
Hanna,
This reader appreciates your explanation of the ramifications in this case. In a future post, would you elaborate on the penalties for attorneys, if found guilty of lying under the circumstances portrayed in Dowd/Trump tweet scenario?
It’s plainly obvious that someone, other than Fatso, must walk the plank, now that he has been caught with his pants down and no obvious way for Lyin’ Kellyanne to spin the actual words that were tweeted. That doesn’t stop her from trying, though. Dowd was chosen to fall on his sword and take the blame. He’ll probably lose his law license, but no one, and I mean NO ONE really believes that Dowd wrote and sent the tweet without consulting anyone.
This is awesome! You anti-Trumpers fatal flaw is you mistakenly believe conservatives are as grubered as yourselves. We don’t blindly support people or party. We support the rule of law and separation of powers. There has been a terrible abuse of both in previous administrations. President Trump is merely a check on that abuse. If he ends up being impeached for anything that falls short of the abuse of power evident in previous administrations, then that will not go unnoticed by those that elected him. President Pence will continue the good fight within the powers of the office while the martyred ex-President Trump will continue the good fight outside of government.
Keep it up!
More popcorn please. Mike & Ike’s for Mespo.
To clarify -the Koch’s man- Pence
To clarify – Rule of Law; Separation of Powers. Not party, not politicians; just constitutional governance.
Why is that concept so difficult for you to comprehend?
“the good fight outside of government”- insulting the unstable leader of North Korea, Jerusalem replacing Tel Aviv, minutiae petty grievances, a cabinet that uses tax dollars for personal aggrandizement, doing the Kremlin’s bidding, etc.
insulting the unstable leader of North Korea,; as opposed to Obama insulting the current President of the United States. Yeah, I’m going with President Trump on that one.
Jerusalem replacing Tel Aviv; so now promises kept are a bad thing?
https://youtu.be/C0-67QaDU5o
Trump & U.S. may soon be investigated for war crimes in Afghanistan by the International Criminal Court (ICC).
“US Military and CIA Leaders May Be Investigated for War Crimes”
http://marjoriecohn.com/us-military-and-cia-leaders-may-be-investigated-for-war-crimes/
National Lawyers Guild, “The invasion of Afghanistan has been illegal from its inception”
http://www.nlgmass.org/2011/02/war-on-afghanistan-is-illegal/
Thank you for the article.
This is for lawyers, who want to modernize their law firm.
IPzen Legal: case management software, invoicing software
Idiocy of course on the part of the Trump crew.
As JT points out, Trump et al had a solid defense on obstruction, which he tweeted into questionable territory.
I can still see a little wiggle room for a defense here though, unless Trump et al tweets that away too.
Basically the tweet says
“I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies.”
The wording here is not time specific, and can be interpreted as
“I had to fire Flynn because he lied to the Vice President, and then he later lied to the FBI. He has pled guilty to those lies.”
This plausible rendition means that the firing occurred upon Trump learning Flynn lied to Pence, but not necessarily before Trump was aware that Flynn had lied to the FBI by that point.
So, firing Flynn would not be implicative of obstruction, if Trump’s knowledge of his lying to the FBI occurred only after the firing.
Just sayin’
Gary T
A lawyer claims he wrote the damaging tweet. What’s the down side for that lawyer?
Unrelated and unfounded speculation- an attorney who no longer wants to defend a client, can claim a slip that happens to protect the client. And then, the fall-out sets up an exit for him. Meanwhile, he makes the best of a bad situation and chalks up a win in a legal skirmish.
– Mass Murderers Trump and Netanyahu shame, disgrace & curse their families –
http://buenavistamall.com/USIsrael.jpg
Trump only hires the best, only the best people. Jeez, I’m laughing so hard I almost could not type that……
OK, OK…I think I got it together, If you believe his lawyer wrote that, I got a bridge to sell you.
If legal scholars expanded on the 8th paragraph of the post, the public would be better informed.
In general, not specific terms, when an attorney is found to have intentionally lied in an attempt to shield his client from prosecution, are there consequences?
If Mueller’s investigation finds knowledge proving a lie by an officer of the court, it is a dark day for American jurisprudence. If there is no codified prohibition in the legal profession for the lie, it is a doubly dark day.
I don’t care at all what happens to Trump.
I do find it funny and obvious that lawyers created a system for us all that says “the system is so complex you have to get a very expensive lawyer” and also says “if your very expensive lawyers tells you to say X, and you say X, well you just said X, it’s your fault, not your lawyers, grow up and take responsibility for saying X”.
Of the lawyers, by the lawyers, for the lawyers.
A few statistics of interest- the U.S. prison population is far greater per capita than other westernized nations, the minority population which often relies on court-appointed lawyers receive sentences 20% longer than the majority population for similar crimes, and the per capita count of lawyers in the U.S. is much higher than in other nations.
the minority population which often relies on court-appointed lawyers receive sentences 20% longer than the majority population for similar crimes, and the per capita count of lawyers in the U.S. is much higher than in other nations.
There is an option that many that would have to rely on a court-appointed attorney choose: don’t violate the law. If they choose that lifestyle, then move to a country where they are more likely to receive more favorable treatment. I know, I know, innocent people are wrongfully convicted and our sentencing guidelines suck. Another option would be to renounce their citizenship and then move to a sanctuary city to commit their crimes.
The people I want to denounce their citizenship are the corrupt 0.1% ers who skirt the law or who buy the opportunity to write the laws while dragging down the country ethically and economically.
the corrupt 0.1% ers who skirt the law or who buy the opportunity to write the laws while dragging down the country ethically and economically.
Skirting the law; is that your way of admitting they haven’t actually violated the law but are taking advantage of it? And when you say buy the opportunity to write the laws, is that your way of saying they are legally influencing those that actually write the laws?
I agree to the extent that 0.1% ers wouldn’t have anything to buy if there weren’t lawmakers willing to sell. There is a solution for that, but it would require an electorate enlightened enough to actually hold their elected representatives accountable for working within the limits of the constitution. This is not a D or R problem; this is a D and R problem. This is also not just a 0.1% er problem. Pick a constituency and you’ll find lobbying firms buying the opportunity to write laws.
– TRUMP IS A WAR CRIMINAL –
The Afghanistan War: Legal or Illegal?
When can a war be legal?
1. Self-defense
2. Authorization by the U.N. Security Council
The invasion of Afghanistan was not for self-defense.
Authorization was not given by the U.N. Security Council.
Therefore by not meeting either point of criteria the War on Afghanistan is ILLEGAL.
https://youtu.be/eScuZ-_iHBw
http://buenavistamall.com/bushobamatrump3.jpg
Donald Trump’s War Crimes
by Marjorie Cohn
Professor Emerita at Thomas Jefferson School of Law
http://www.huffingtonpost.com/entry/donald-trumps-war-crimes_us_58e7a2fae4b06f8c18beeaf9
Mr Trump accomplished in real life what the makers of Homer Simpson only imagined.
The upshot of this logic is that Trump, finding out that Flynn lied to Pence and the FBI, should have merely kept him in the job as national security advisor and just moved on which, when discovered, would have meant Trump tacitly agreed to cover it up. And just like that you have another endless criminal investigation, Welcome to Washington DC where the swamp will damn you no matter what you do unless you play ball. Let’s give the land back to Maryland and start all over again but first exiling all lobbyists and politicians. We can just vote by internet and have the bureaucrats do as we direct. It would be cheaper and less corrupt.
Mespo said, “The upshot of this logic is that Trump, finding out that Flynn lied to Pence and the FBI, should have merely kept him in the job as national security advisor . . .”
No, Mespo. The upshot of the logic, at issue, is that Trump ought not to have asked Comey to let Flynn go. Or, if you prefer, Trump ought to have fired Comey without ever having asked Comey to let Flynn go. But I do enjoy your sophistry as well as you enjoy mine, Counselor.
Turley said, “news organizations are reporting that White House Counsel Don McGahn told Trump (before the firing of National Security Adviser Michael Flynn) that Flynn had misled FBI agents in his interview.”
Turley also paraphrased Trump’s tweet as saying, “Trump is saying that he was aware in February that Flynn not only lied to the FBI but did so on the subject of prior communications with the Russians.”
I get the first part: Yates told McGahn that Flynn lied to the FBI [about something]. McGahn told Trump what Yates had told McGahn: that Flynn lied to the FBI [about something]. The part I’m having trouble with is the specific detail that Trump supposedly knew that Flynn lied to the FBI about prior communications with The Russians, because Trump knew that Flynn lied to Vice President Pence about prior communications with The Russians.
Here’s my point: Flynn lying to the FBI about something and Flynn lying to Vice President Pence about prior communications with The Russians might not be same lies in Trump’s mind, nor in Trump’s tweet. As a rule of thumb, one ought not to assume that Trump knows what Trump’s talking about just because one thinks that one knows what Trump’s talking about. Ya know what I’m saying?
The President is the boss of the FBI Director. As such, he can start or stop any investigation he chooses and fire him for any reason. He didn’t do any of that. He simply said to Comey of the three-star war hero: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy.” No President has ever been impeached or indicted for exercising a Constitutional prerogative. You can ask the SCOTUS about that given their ruling in Myers v. United States, 272 U.S. 52 (1926). You guys hate Trump so much that your mental facilities get put in neutral.
Mespo said, “The President is the boss of the FBI Director. As such, he can start or stop any investigation he chooses and fire him for any reason. . . . No President has ever been impeached or indicted for exercising a Constitutional prerogative.”
The President is the boss of the Special Counsel. As such, Trump can stop the Special Counsel’s investigation and fire Mueller for any reason . . . And become the first President impeached for exercising a Constitutional prerogative.
Keyword: “asked.”
Trump is the prototype for the expression “Give him enough rope and he will gang himself.”
Hang!!!!
http://i.telegraph.co.uk/multimedia/archive/02822/knitting_2822577b.jpg
The essence of the matter here is the level of hypocrisy Trump has achieved. Never before has a President reached these levels of hypocrisy, lying, buffoonery, etc. Trump prepared the arena coming in. He was a lying buffoon all the way through the elections as he has been all his life. Getting away with it is his appeal to a vast number of Americans. They just like to be the bad boys. Trump is setting America back, not forward. America is diminishing each day he is in office, not becoming great again. The only American attribute that is becoming ‘great’ again can be found in the mindless arrogance of the dupes that voted for this idiot.
There will be some military altercations in Palestine as Israel continues to consolidate its takeover of the region by flying an American flag in Jerusalem. Another wounded knee. The economy will continue to do well due to Obama’s tenure but Trump will take the credit. Hopefully more and more Americans will begin to understand that all the bravado in the world cannot replace intelligence and foresight. The cornerstones of our society: education, health care, reasonable wages, etc will continue to irk the populace and there will be Trump tweeting how he is the greatest savior since JC. The man’s a disgrace as well as a fool. If he were just a fool, it would not be so bad. At least we would have something to laugh at. Trump is no longer funny. He used to be funny. Now he is America’s shame.
Yeah, I know, go back to Canada and Obama is the real problem.
Thanks for posting your excellent insights.
Crispy:
You look great in Pom poms and pleated skirts. Careful with the megaphone!
Never before? Boy, do you need a history book.
Integrity would look good on you, give it a try.
A man creates a message of 280 chars then clicks a send button. The message arrives at a server and then propagates to millions of individuals resulting in an immediate arrestment of broadcast news and a great unsettling of nerves and consternation in minds. It nourishes those champing at the bit with a hunger to feed their outrage while for others it serves as a shiny object to distract from importance elsewhere.
Stepping outside the box, you should recognize how much power President Trump has over millions of individuals and permanently outraged talking heads of mainstream news. One little message and all the outrage and horror: one can hardly believe there is a world out there to behold.
Recognize the tweet for what it is–an electronic communication by an individual–then move on in life. Actually accomplish something worthwhile and do not give politicians the power to own your thoughts. Maybe then you might find that you actually have more control of your world than they might lead you to believe.
Actions always speak louder than words. I like the actions I’m seeing on immigration, foreign policy, national defense, higher education, free speech and tax reform. Tweet away.
Don’t forget Justice Gorsuch. It’s fascinating how President Trump can control the news cycle. With just a few keystrokes he’s got millions breathlessly discussing we got em! Go ahead, impeach him. The negative ramifications for the Democrat Party will be generational. Unwinding the damage done to this country by progressives will continue with or without a President Trump. The funny thing is Trump would be unleashed if he were no longer President.
More popcorn please.
Olly:
Amen. You think the Dems would do better with President Pence and with Trump cheering from the peanut gallery. He won’t go away just like the populism won’t go away. It only gets stronger if they make Trump a martyr. Carry on and pass the Mike & Ikes!
My brother-in-law last night discussed the same issue with the vice-president who for those clamoring for impeachment and conviction of President Trump If the foam-mouthed opposition thinks Donald Trump is an incarnation of evil in the world they had better tame their anger and evaluate what Mike Pence politically might represent to them–a conservative Christian who is more “right-wing” than Mr. Trump.
Darren,..
– Hence the Maxine Waters “blueprint”.
“After Trump,we need to go after Pence”.
I agree.
One needs to also recognize that obedient, rank and file democrats and the hard left will always hate President Trump no matter what he does, regardless of any actions being beneficial to the average citizen. So it really does not matter how loudly they complain because they will find a way to criticize anything he does. The truth as you say is in the actions. We’ve seen many pro-active, beneficial changes and from the democrats it is usually re-active and of little importance.
If they spent half their time not complaining and actually accomplished relevant and measurable goals to benefit the voters, they might have more credibility in their complaints.
It’s not like Moron is now trying to distract everyone with “Embassy! Embassy! Look here! I’m still signing the waiver but let me announce now!”
Although the embassy announcement will mostly serve as an out for Jared’s failure (how surprising) to get an agreement: “Talks fell through because of the move, not because my Administration is run by donors like myself. Drain the swamp. Little rocketman. I love Wikileaks.”
Then there is Green fronting for Pelosi and Schumer.
),..
– Not only Green, but the dreaded😧 Green- Maxine alliance vowing to impeach Trump.
Green promised to use House rules to FORCE a vote on impeachment, then did nothing.
Maxine says after Trump, then we need to go after Pence.
Presumably, after Pence, Maxine would target Paul Ryan, etc. down the line of succession.
It’s not clear that this duo is fronting for the Schumer- Pelosi leadership; maybe Green-Waters ARE the leadership.
Rep. Green is on TV now, apparently live, forcing the impeachment vote.
The “privileged resolution” provision he’s using was the same one he said he’d introduce two months ago.
Part of requirement to successfully press that resolution is that the sponsor of the resolution needs to show up after he’s scheduled it.
Rep.Green failed to appear in October when his resolution came up, but today I give him credit for meeting that requirement.
Comey has some proof of that claim besides jotting down his own version? We already now how honest Comey isn’t.
I am not affected by tweets it is a stupid waste of time as is facebook.
I am not a member of any party except that of being a self governing citizen of the USA. Why would i tarnish that high office with gibberish and gobbledegook
T rump’s legal team is bad news like da rest of his appointees. They can’t tweet and chew gum at da same time. Spells trouble.
David Stockman:
http://original.antiwar.com/david_stockman/2017/12/04/fbis-perjury-trap-century/
Oh those nefarious perjury traps! Where they ask you questions and you’re expected to just tell the truth?? Like every time?!?
And it’s just like the liberals to force a republican adminstration to appoint a well-respected, republican-nominated former FBI director to head up the investigation. And Comey. Don’t get me started on that guy! How do you expect a lifelong republican to not be biased against a republican administration?? And now they’re prosecuting senior members of Trump’s campaign with no more evidence than the fact that they have admitted to the crime? Just another classic witch hunt where you round up every woman in a pointy hat, who happens to be flying through the air riding a broom after having eaten several good Christian childten. Sad!!!
If you were a Martian visitor and just disembarked from a space ship, you’d wonder how someone so bizarre looking and obviously unfit to be the leader of the free world occupies the Executive Mansion of the most powerful country on Earth. You’d do some checking and discover that this fat person is also a showman, a chronic, habitual liar, is on his third marriage, this time to someone young enough to be his daughter, and who is from culture where females are subservient, he brags about sexually assaulting unsuspecting women just because he finds them “beautiful”, he has filed business bankruptcy multiple times, and that he lost the popular vote but got to be President anyway due to some outdated, throwback provision of the founding document based on the existence of human slavery in the country at the time. You’d be even more bewildered after learning that his main mission is to destroy all of the achievements of his predecessor because he is jealous, and that his legislative agenda is to take away benefits, such as health care, from the less fortunate in order to endow the more fortunate. You’d wonder why, given global warming, there would be support for rolling back environmental protections, and why, given the financial crisis of 10 years ago, anyone would want to roll back financial protections geared to preventing it from happening again. You’d also wonder why high level Cabinet positions, such as Education Secretary, are held by unqualified and inexperienced people. You’d be ready to return to Mars after finding out that a hostile foreign government assisted this strange creature in “winning” the Electoral College, and that he still has disciples who would defend him, no matter how bad his behavior is.