Multiple Trump-Russia defense lawyers think that a bombshell indictment is coming against President Trump this spring, but one attorney has a “jujitsu move” theory that fits the facts of Mueller’s investigation to a tee.
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There’s an ongoing debate in the legal community and the Department of Justice about the ability to indict a sitting president, but little debate remaining that President Trump and his associates have worked harder to cover up their Russian ties than on any major policy initiative in the last year.
An anonymous Trump Russia probe defense lawyer says that Special Counsel Mueller is preparing an intricate plan to indict all of the president’s men (and women), while most likely sending a linked bill of impeachment to Congress, before indicting Trump himself once he leaves office. Politico reports:
One of the Russia defense attorneys also suggested what he called a “jujitsu move”: naming Trump as an unindicted co-conspirator in a larger obstruction of justice case that targets one or more associates.
Whatever Mueller and his deputies have planned, the attorney said, it is not likely to be anticlimactic.
“There’s a sense of confidence I feel when I’m with them,” said the same lawyer. “Their level of confidence has grown, and that’s a body language thing.”
The change could be because former Trump campaign staffer and indicted campaign manager Paul Manafort’s top deputy Rick Gates seems to be publicly signaling a guilty plea is forthcoming. Gates was paid by the Republican National Committee for his work to further Trump’s campaign.
Mueller’s jujitsu move would probably look like this; allow a criminal trial to swallow Trump’s entire family and many associates while leaving the question of his presidency in the hands of Congress under the impeachment proceeding Democrats have already begun.
Recent reports have focused on Mueller’s plan to prove a pattern of obstruction of justice before and after he fired Comey and against multiple investigators. Any obstruction of justice case against President Trump would have to prove a pattern of criminal acts to some extent.
The Watergate investigation also resulted in impeachment charges of a “pattern and practice” of obstruction against the former Republican President Richard Nixon for the action of his aides – one of whom Trump recently hired!
Mueller is also investigating the intersection between the President, White House Comms director Hope Hicks and his son, Don Jr. – the head of the Trump Organization – in creating a smokescreen after the infamous Trump Tower Russian campaign collusion meeting surfaced last summer.
It’s another act of collaboration by the White House with an outside entity, the kind of loose affiliation of entities and persons needed to pursue a racketeering claim.
There’s one federal crime which involves a pattern and practice of obstruction of justice between multiple entities; for example the White House, the Trump campaign & transition team, the Trump Organization and the RNC.
It is called racketeering.
It’s a crime that requires prosecutors to prove the conduct of an enterprise through a pattern of racketeering activity, which in this case is a pattern of obstruction of justice that accrues to the benefit of the private coffers of the Trump Organization.
Racketeering laws were created to crack down on the Italian mafia’s complex criminal rings, who would often seek to influence criminal trials with graft and intimidation to protect their illegal revenue sources. Wikipedia explains federal racketeering laws this way:
The RICO Act focuses specifically on racketeering, and it allows the leaders of a syndicate to be tried for the crimes which they ordered others to do or assisted them in doing, closing a perceived loophole that allowed a person who instructed someone else to, for example, murder, to be exempt from the trial because they did not actually commit the crime personally.
“Racketeering is not something that most people would get, it’s often associated with mobs and criminal activity,” says the Miami-based Democratic candidate for Congress, State Sen. Jose Javier Rodriguez, who is a Harvard-trained lawyer. “That’s because the purpose of the RICO Act is to go after criminal enterprises and criminal conspiracies.”
Donald Trump settled a racketeering claim brought in civil court on the eve of trial for 25 million dollars stemming from his Trump University scam only weeks after the presidential election.
Obstruction of justice is a High Crime because the state is considered the victim of the offense. Because the pattern of obstruction has happened while Trump is in office, it is an impeachable offense against the President, and cannot be pardoned under the Constitution.
There is a multi-decade debate about the ability of a Department of Justice prosecutor to indict a sitting president which supports the “ju-jitsu move” theory.
The DOJ has previously released short memos on the topic during both the Nixon and Clinton administrations using the rather thin legal reasoning which would conjure up criminal liability protection for the Commander in Chief. Former Independent Counsel Kenneth Starr – a die-hard Republican partisan – was unequivocal in believing he could indict the president based on a third lengthy legal memo, but punted to Congress after spending a hundred million dollars to find nothing.
Two of the Trump Russia defense lawyers who spoke with Politico are convinced that an indictment of the President himself is imminent, coming as soon as this spring:
“If I were a betting man, I’d bet against the president,” said one of the lawyers.
The second attorney, who represents a senior Trump official, speculated that Mueller could try to bring an indictment against Trump even if he expects the move to draw fierce procedural challenges from the president’s lawyers – if only to demonstrate the gravity of his findings.
“It’s entirely possible that Mueller may go that route on the theory that, as an open question, it should be for the courts to decide,” the attorney said. “Even if the indictment is dismissed, it puts maximum pressure on Congress to treat this with the independence and intellectual honesty that it will never, ever get.”
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting President for serious criminal acts that are not part of, and are contrary to, the President’s official duties,” Starr’s legal adviser, Ronald Rotunda, concluded in a 1998 memo first made public last summer through an open records request by The New York Times.
“In this country, no one, even President Clinton, is above the law,” the memo said.
Neither attorney had specific inside information for their semi-anonymous quotes, but they noted a recent change in the demeanor of the Special Counsel’s office. But like anyone they can also see the pieces of a Mueller’s puzzle being placed together by the news media.
A racketeering conspiracy charge against the Trump family, his aides, and outside associates would limit President Trump’s ability to aid his co-conspirators by using the pardon power of office.
If the Special Counsel indicts Trump’s inner circle on racketeering charges, he can obtain a criminal conviction against all of the President’s people, based on their participation in a pattern of obstruction of justice to protect their various enterprises.
Then, rather than the difficult task of proving a single obstruction charge against the President — which must prove Donald Trump’s criminal state of mind to gain a conviction — all Mueller would have to do is prove that the President participated in the cover-up.