President Trump's Bad Week

By Judge Andrew P. Napolitano

March 7, 2019 7 min read

In an ideal world, the president of the United States would succeed in negotiating a nuclear arms treaty with a foreign government — and do so with full congressional support; his lawyer would respect the attorney-client privilege and not reveal confidences publicly; Congress would abide the old adage that politics ends where the water's edge begins and lie low when the president is overseas on a delicate mission; the president would not engage in a grievous constitutional overreach that provokes a congressional negation; no one in his administration would have a top-secret security clearance who failed to be truthful to the law enforcement and intelligence folks investigating him; and the president would not fear RICO.

But we do not live in an ideal world — and all of these issues and events came to our consciousness last week.

Here is the back story.

President Donald Trump traveled to Vietnam last week to engage in negotiations with Kim Jong Un, the dictator of North Korea. Normally, when the president of the United States meets with a foreign leader to consummate an agreement between the countries, the actual meeting is a formality and a public relations triumph.

That's because normally, emissaries from the two countries have been meeting for months, hammering out the details of an agreement. It is in the private hammering-out that the real work of diplomacy is done, not in the public handshaking and backslapping.

But Trump's foreign policy approach is anything but normal. Trump knew when he left Washington for Hanoi that there was no agreement between the countries, and he also knew that no agreement was likely. But he believed that the force of his towering personality could produce a meeting of the minds. Most of North Korea is economically desperate and physically starving and wants U.S. economic sanctions lifted. The U.S. is justly fearful of nuclear weapons in the hands of a madman that might be able to reach Los Angeles and wants the weapons gone.

It could be that neither side was willing to budge, or the war-thirsty John Bolton, Trump's national security adviser — whose views on the use of military force for diplomatic purposes Trump ran against in 2016 — may have prevailed upon his boss.

While the world watched the pseudo-negotiations in Hanoi, House Democrats were conducting a public hearing, over the objections of their Republicans colleagues, about Trump's alleged unlawful behavior before and while he was president. The sole witness at the hearings was Michael Cohen, a convicted perjurer and Trump's former lawyer. Cohen claimed personal knowledge of Trump's alleged — and denied — criminal and fraudulent behavior.

Can a lawyer testify against his own client? What has become of the attorney-client privilege? These are sound questions that were not asked last week because of something called the crime-fraud exception.

Normally, all communications between a client and his lawyer are privileged from revelation. The exception comes when the lawyer can demonstrate that he and the client were together engaged in criminal or fraudulent acts. Cohen alleged as much, made out a basic case supported by documents, gave the Democrats a fertile field of alleged Trump misdeeds to harvest and was permitted to reveal under oath and on national television countless sordid communications he had with Trump, including in the White House.

Trump claimed that Cohen's explosive allegations actually interfered with his negotiations in Hanoi and were the proximate cause of their failure.

While this was happening, Democrats and Republicans in the Senate were joining their House colleagues in opposition to the president's expenditure of funds that Congress had expressly declined to authorize. The likely rebuke would come by way of a legal mechanism to negate the president's emergency declaration, which he claims permits him to spend unused but unauthorized funds on his promised border wall. He would no doubt veto this negation.

While all this was going on, The New York Times revealed that the FBI and the CIA declined to authorize a top-secret security clearance for the president's son-in-law, Jared Kushner, because they claimed he was less than candid with them and that the president overruled them.

It was lawful for the president to do this, but it was extremely dangerous and profoundly unwise. It undermined the intelligence and law enforcement communities, demeaned those who obtained such clearances by hard work and merit, and has exposed the nation's most carefully guarded secrets to a person who American intelligence believes is naive and susceptible to foreign inducements to reveal what he knows.

Hidden in the Cohen testimony was an oblique reference to alleged bank and tax fraud that Cohen claimed he helped Trump commit, contributed to Trump's wealth and has the present interest of federal prosecutors in Manhattan. Many of these events took place more than five years ago and thus are not subject to federal prosecution, so why would prosecutors be interested in them?

Here is where RICO comes in. RICO is the acronym for a Nixon-era federal statute, the Racketeer Influenced and Corrupt Organizations Act, originally enacted to target the mob. It permits federal prosecutors to reach back 10 years to find any two criminal acts, which need not be proven beyond a reasonable doubt; prosecutors need only demonstrate that they were more likely than not to have occurred. Then the feds can seize three times the wealth that the perpetrators of these schemes amassed. That could bankrupt Trump.

The president has serious and powerful tormentors whom he cannot overcome by mockery alone. He needs to do more than demean them with acerbic tweets, because many of those tormentors can legally cause him real harm. He needs to address these issues soberly, directly and maturely. Can President Trump survive all this? Yes — but not if he has another week like the last one.

Photo credit: at Pixabay

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Judge Andrew P. Napolitano
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