In January 2021, shortly after a call became public in which Trump pressured Georgia Secretary of State Brad Raffensberger, also a Republican, to “find” the votes necessary for Trump to win the presidential election in the state, Willis spent more than a year digging into her investigation into Trump and his associates.  

Over time, her investigation has expanded beyond that call to include false claims of election fraud to state lawmakers, the fake elector scheme, efforts by unauthorized individuals to access voting machines in one Georgia county and threats and harassment against election workers.

The judge has scheduled a hearing on January 24 for the District Attorney’s office to argue whether the special grand jury’s report should be made public.  We sill thus soon know: (i) whether the report will be for public review; and (ii) whether Trump will be indicted as a result of his actions.

The announcement is a serious sign that the investigation into Trump is heating up and will get more intense over the next few months.  Both governmental units are looking into whether he or his company misled lenders and insurance companies about the value of properties and whether it paid the appropriate taxes. 

And with millions of documents that the authorities have – including his tax returns, accountant work papers and financial records — there is apparently much concern by Trump and his inner circle.

Further, timing is real.  With every passing year that goes by, Trump is shielded, in part, by the statute of limitations for prior misconduct.  Thus, if there is going to be an indictment — and the tea leaves lead me to conclude that there will be — Trump will be facing far bigger problems than he has ever faced.  Simply, while he will claim it’s a “witch hunt” or a “hoax,” the evidence is what it is.  And we these potential crimes, he cannot escape from the clear and obvious paper trail that the authorities are closely scrutinizing.

Tick, tock

And Trump can do nothing about it.  That is, free speech protection under the First Amendment to the US Constitution applies only to the government censoring speech.  It does not apply to private companies. 

Simply, there is no constitutional right to tweet or post on Facebook.  All private companies, like a publisher of a newspaper, can determine what to allow on their platforms.  Typically, they are contained in their “Terms of Service” provisions which users, by signing into the app, must agree to abide by.   And if a user, such as Trump, violates those Terms of Service, Twitter, Facebook and others medias can block them from their platforms. 

Twitter concluded, after Trump sent his tweets, that his messages could be viewed as inciting his followers to violence acts in urging his supporters to overturn the election because of his baseless claims of fraud and encouraging followers to commit violent acts against the government.

In short, First Amendment claims only pertain to censorship by the US government.  Put another way, the First Amendment doesn’t compel any private company to give its customers the unfettered right to remain as customers of a company.  If Trump, in Twitter’s opinion, violated its terms, he is out with no legal rcourse.

Now that he lost, not only is Trump facing indictment in New York, but because of his misconduct, he is facing potential prosecution in Georgia and, as we all know, conviction by the US Senate.  Each of those proceedings are not only serious, but will keep his legal team busy for some time. 

The prosecution in New York is very serious.  Manhattan District Attorney Cyrus Vance, Jr., has not disclosed the detail of the probe, citing grand jury secrecy rules, but he has stated that the Trump Organization has engaged in “extensive and protracted criminal conduct.”  Trump faces at least two NYS inquiries into whether he misled tax authorities, bank or business partners and engaged in securities, mail, wire and bank fraud.  He also faces allegations from two women who he allegedly assaulted.

In Georgia, Trump has recently created additional criminal exposure.  As recently reported, The Fulton County District Attorney is opening an investigation over Trump’s attempts to overturn the results of the state’s 2020 election, an inquiry that is also beyond his federal pardon power.  Among the matters the DA is looking into is a phone call Mr. Trump made in which he pressured Georgia’s Secretary of State to overturn the state’s election results.  Many veteran prosecutors believe Trump clearly violated state law with his threatening undertone and strong-arm tactics.  Trump’s actions and statements were a clear attempt to influence the conduct of the Secretary of State, and to commit election fraud, or to solicit the commission of election fraud.  In Georgia, Trump may have violated at least three serious laws, criminal solicitation to commit election fraud, a related conspiracy charge and the “intentional interference” of  another person’s “performance of election duties.”

Finally, Trump faces a potential conviction by the Senate.  While it will certainly take a mountain of evidence for the Senate to obtain 17 votes from Republicans, he is facing potential “disqualification” to hold the office of the Presidency for life.  Currently, there is a debate as to whether the Senate has jurisdiction to convict a President after he has left office.  Despite Trump’s claims to the contrary, there is precedent.  In 1876, Secretary of War William Belknap faced an impeachment trial after resigning.  Although he was acquitted, the trial did occur after his tenure.  Further, if he could not be convicted after he leaves office,  then a government official could just resign without facing prosecution.  That result simply makes no sense.  There are also those that believe that, because of his actions, the Senate does not need a two-thirds majority to bar him from public office.  The 14^th Amendment, ratified in 1868, which is primarily known for providing citizenship and equal protection under the law to anyone born or naturalized in the United States, may come into play.  Section three of that amendment also provides a path for disqualification, stating that no person shall hold office if they have taken part in an “insurrection or rebellion” against the United States. The requirement is a simple majority or 51 votes.  While it has never been used against a president, and the Constitution does not give any directive on how Section 3 of the 14th Amendment should be invoked and some Democrats are considering it’s applicability in this case.  There would presumably have to be a trial before the Senate convicts.  However, lawmakers could bypass the trial requirement by creating new legislation under Section 5 of the 14th Amendment to provide a procedure for applying Section 3. The new legislation would need to pass both chambers and be signed by the president.

In short, now that his term is over, Trump will be facing potential prosecution and conviction by the Senate for some time.  Perhaps that is why he maintained, without any basis whatsoever, that he won the election.  He said so not because he wanted to, but because he had to.

Trump has previously declared that he would do so.  In 2018, during the Mueller investigation, he stated: “I have an absolute right to pardon myself….”   He is, once again, wrong.   That conclusion is based on the true etymological meaning of the Pardon Clause under the Constitution, the Framers intentions when the clause was drafted and subsequent history of its interpretation.

The Constitution’s Pardon Clause reads:  “The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

First, what is meaning of the English words “grant reprieves or pardons?”  The term “pardon,” borrowed from the French language, means to make a donation or gift.  And the act of act of gift-giving requires two parties — both a donor and a recipient.  Think of the phrases “pardon me” or “I beg your pardon,” both of which require two parties as one is asking for another’s acceptance of their actions. Similarly, the term “grant” implies two persons.   Essentially, it means to give something to another; i.e., a two party transaction. 

Second, pardons are not an American invention.  The concept is derived from the issue of clemency, where the king is the source of law and he may release another of that law.  Hence, historically in Anglo-American history — from the Magna Carta to the Constitutional — a pardon has always meant two parties – a grantor (from the executive branch) and an individual grantee. Never, in history, has a monarch, king, royal governor, or similar official pardoned himself.  Thus, historically, the universal and centuries-old understanding which led to that phrase in the Constitution, leads one to conclude that the Framers intended that the Pardon Clause relate to the grant to another individual.  Certainly, the Framers could have either added another sentence to that clause or even verbiage to make it clear that the President can allow himself to escape criminal prosecution.  It does not. 

Further, the Framers considered and expressly rejected the concept of an American king.  Having suffered from a monarch, the very basic premise of the Framers was to not be subject to a king.  In fact, the essential premises of the Constitution rests on the doctrines of “separation of powers” and “checks and balances.”  No branch of government is above the law and by allowing a president the inherent right to issue a self-pardon would place him in that position.  

The Framers also made it clear not only that there would be no president-for-life, by limiting the term, but provided for other checks on a president.  For example, the removal of a president by impeachment makes it clear that he or she is subject ot the rule of law.  Even Article I, Section 3 of the constitution makes it clear that a President is subject to indictment and punishment.   The President, unlike a king, is therefore subject to federal criminal prosecution

And courts, in interpreting the Constitution, courts have made it clear that presidents are not above the law.  Justice James Iredell, one of the very first U.S. Supreme Court justices, stated that where a president is guilty of criminal misconduct, he “is not exempt from trial.”   And since then, it has become clear that a president is not above the law.  It logically follows that a president cannot simply pardon himself.  If he were able to do so, he would be above the law.

Finally, the Justice Department made it clear that a sitting President may not be criminally prosecuted while in office.  It practically follows that he can be prosecuted thereafter.  Certainly, as we have seen over the past 240 years, the framers were very particular in using their words.  And those words, strictly speaking,² would result in the inescapable conclusion that Trump cannot pardon himself. 

¹There are two circumstances that are not discussed herein.  First, any pardon only relates to federal offenses.  Thus, none of them, no matter who Trump chooses to grant a pardon, is unable to allow those individuals to escape criminal prosecution form the states.  Second – and while this concept may sound utterly insane – there is a chance that Trump resigns shortly before Biden’s inauguration to have Vice President Pence installed and then pardon him.  While that concept would make a mockery of the presidency, in light of the four year history of Trump’s unprecedented actions, that possibility is not unrealistic.  I, for one, do not think that Pence will lower himself to that level.

²Trump appointed justices who believe in the strict construction of the Constitution.  Ironically, those three justices, were they to interpret the Pardon Clause, would most certainly rule against him.

The action was commenced after the Trump campaign lost close to 50 litigations before lower courts and election authorities in the states at issue.  And in each and every one of those decisions from judges, many of whom are Republican, they found no evidence of fraud, impropriety, wrongdoing, illegality or any other election irregularity that would cast doubt on the results.  The new litigation, in a word, is frivolous.

Yesterday, four of the states in issue, Georgia, Michigan, Pennsylvania and Wisconsin, submitted briefs opposing the litigation.  The opposition papers were scathing.  For example, the Pennsylvania Attorney General replied that the litigation is a “seditious abuse of the judicial process,” imploring the court to “send a clear and unmistakable signal that such abuse must never be replicated.”

President Donald Trump, in his delusional world that he won the election, joined the litigation, stating that “nearly half of the country believes the election was stolen.” Six more states followed suit.  That is, Arkansas, Louisiana, Mississippi, Missouri, South Carolina and Utah each requested approval to join, explaining that they “share” Trump’s concerns.

The action will be dismissed and, if the Supreme Court is as enraged as the overwhelming majority of the populous, it will assess costs and fees against Texas, Trump and the states that commenced or support the action. 

The reasons are obvious.

First, the Supreme Court does not have original jurisdiction. Yes, it does have so in actions between states, but the claims sought must be brought in lower courts, as they have been since the election was called for President Elect Biden.  Further, if the Supreme Court were to exercise “original jurisdiction” in this matter, its docket would be swarmed every time one state is unhappy with the results of another.  Finally – and most importantly — the State of Texas simply has no standing to commence the litigation.  It is simply not an aggrieved or injured party.  And finally, there is simply no proof of voter fraud. 

Why was the action commenced?  Was it because the Secretary of State, who is currently under indictment, seeks a pardon from the President?  What is more remarkable is that states and even congressmen joined in.  But why?  Could it be that Trump, who is creating this false narrative is intimidating those indivudlas and states?  There is simply no other reason.  Certainly, in the 50 actions commenced there has been no proof of systematic voter fraud.  Simply, Trump has a death grip on the Republican Party.  It is time for the United States Supreme Court to reject the frivolous lawsuit brought by the Chief Fool and his followers.

            Born with a silver spoon, Maxwell comes from a very wealthy British family. That is, she is the daughter of renowned billionaire publisher and business man Robert Maxwell.  Ghislaine’s life was extravagant from its inception.  She is Oxford educated and maintains a $5 million upper-east side townhouse, a history of luxurious Caribbean vacations and private jets. However, it seems as though shady, strange and illegal practices run in the family – Robert Maxwell was the subject of a mysterious death, where he fell off his personal yacht in the Canary Islands. Some believe it to have been a suicide, but others believe it have been a covert hit, planned by the Israel Intelligence Service. Whichever it may be, the Maxwell’s are clearly no stranger to negative front-page headlines.

            Ghislaine Maxwell apparently dated Epstein in or around 1992. After their romantic relationship came to an end, they remained close friends. The unsealed indictment, filed on July 2^nd in federal court, outlined their relationship and described how Maxwell groomed young girls to travel to Epstein’s various properties for sexual intercourse. Federal prosecutors claim they have flight logs, business records and money trails that show Maxwell’s involvement in Epstein’s grotesque sex trafficking ring. Prosecutors also have hours of deposition tape from an earlier defamation lawsuit, where Maxwell vehemently denied any involvement in Epstein’s sexual escapades and claimed that she never oversaw the arrival of any underage “masseuses” to Epstein’s properties. Prosecutors claim Maxwell perjured herself during that deposition and lied about her involvement in Epstein’s sexual affairs.

            The big issue is whether she will cooperate and assist the prosecutors in indicting Epstein’s high-profile co-conspirators, which include Prince Andrew, Bill Clinton and Donald Trump.  Apparently, each of them were good friends with Epstein and either traveled with him on his elaborate trips or went out with him with young women.  What we do know is, first, that women have come out to assist the prosecutors in their efforts to indict others.  Second, it is clear that Maxwell will face significant jail time.

Tuesday 9th June 2020

In the ongoing criminal investigation of Jeffrey Epstein, the U.S. Department of Justice (”DOJ”) has made a formal request to interview Prince Andrew of the British Royal Family.  The request to interview was finalized by federal prosecutors from the Manhattan U.S. Attorney’s Office.  Although Epstein took his own life in August 2019, the DOJ has continued to investigate a wide array of people who they believe knew and assisted Epstein in a multi-year sex trafficking operation.

Prince Andrew has been placed under a microscope by the DOJ after one of Epstein’s sex trafficking victims, Virginia Roberts Giuffre, claimed that she was forced to perform sex acts with Prince Andrew at the request of Epstein.  According to Ms. Giuffre, a photograph was taken of her, at the time 17 years of age, and Prince Andrew in Ghislaine Maxwell’s Belgravia home in 2001.   Ms. Maxwell, daughter of the billionaire Robert Maxwell, was Epstein’s confidante and girlfriend at the time and is also currently under investigation.   Prince Andrew has gone on record saying, “I can tell you categorically I don’t remember meeting her [Giuffre] at all. I do not remember a photograph being taken and I’ve said consistently and frequently that we never had any sort of sexual contact whatever.”  Additionally, Prince Andrew has stated that he is more than willing to help any on-going investigation or enforcement effort in connection to Giuffre seeking justice.  In reality, he has proved unhelpful in response to the DOJ’s request to interview.

The DOJ requested to interview Prince Andrew by submitting a Mutual Legal Assistance request to the United Kingdom.  This request derives from the Mutual Legal Assistance Treaty between the United States and the United Kingdom.  Its aim is to “improve the effectiveness of the law enforcement authorities of both countries in the investigation, prosecution, and combating of crime through cooperation and mutual legal assistance in criminal matters.”  Under Article 1, “taking the testimony of statements or persons” is an investigatory activity that falls within the provisions of the treaty.

Because of the sensitivity of the issue and the fact that Prince Andrew is a member of the Royal Family, the DOJ is requesting an interview with Prince Andrew and not a deposition. There is no subpoena being presented at this time. Yet, under the Mutual Legal Assistance Treaty, if the DOJ issues a subpoena for a deposition, then Prince Andrew will be obligated to comply.  Until a subpoena is served for his deposition, Prince Andrew’s interview will only occur if he voluntarily participates in it, which, thus far, he has not indicated he is willing to do.

The sharks are circling around Prince Andrew, particularly after the release of the Netflix documentary series that places him in the middle of the Epstein controversy.  The victims and the government, knowing that Epstein can no longer be brought to justice, continue to pursue alleged co-conspirators.  Prince Andrew, one of them, is in a pickle.  On the one hand, it is in his best interests to allow the DOJ to conduct an interview before they subpoena him for a deposition.  On the other, he runs the risk of either invoking the Fifth Amendment or incriminating himself, 

However, whether or not he voluntarily submits to an interview, it has become clear that the DOJ will most likely decide to subpoena him at which time he will be legally required to be deposed under the Mutual Legal Assistance Treaty, under penalty of perjury, about his relationship with Epstein and his alleged encounters with Giuffre.

For Prince Andrew, the plot thickens.

Assisted by Samuel Hines

May 29th 2020

Last week, celebrity Lori Laughlin and her husband Mossimo Giannulli, a fashion designer, agreed to plead guilty to charges relating to wrongfully getting her daughters admitted to the University of Southern California. 

They were charged with paying $500,000 to have their two daughters falsely designated as recruits to U.S.C.’s crew team to ensure that they be admitted to the university even though neither daughter ever participating in the sport.

Under the terms of the agreement, that still requires approval by the court, both would plead guilty to one count of conspiracy to commit wire and mail fraud.  Additional charges of money laundering conspiracy and conspiracy to commit federal programs bribery, would be dropped.  Ms. Laughlin would serve two months in prison and Mr. Giannulli would serve five months. They would also pay $400,000 in fines and do community service. Mr. Giannulli’s longer sentence implies that he appeared to be more involved in the scheme. The deal is a steal for Ms. Laughlin as the prosecutors had serious evidence against her, including photographs of Ms. Loughlin’s daughters posing on rowing machines that were false as well as  fake crew resumes.  If she went to trial and lost, there is no question that Ms. Laughlin’s jail time would have been far more serious. Each were facing a maximum of 50 years in prison.  While they certainly would not have received that sentence, if they lost, the sentencing certainly would have been for at least two to six times the amount they agrees to in the plea.      

In several tweets yesterday, President Trump, upset that social media platforms are picking on him, has threatened to shut them down.  That is, after Twitter added a fact-check to some of his posts, Trump declared that he is going to “regulate” or even “close down” Twitter.   While Trump cannot “close down” Twitter, or materially “regulate” it’s business, he can try to harm Twitter through other means.   Essentially, Trump has three avenues.

He can attempt to push for legislation through Congress but there is no chance any such legislation will be promulgated.  That is, he can attempt to modify the Communications Decency Act. Section 230 of the Act shields tech platforms from legal exposure for a wide range of online content. Enacted by Congress in 1996 as the internet was coming into existence, the Act protects tech platforms like Twitter and challenges to the Act have been repeatedly shut down by courts.

        Second, he can apply pressure on the regulators by making it more difficult for Twitter to expand into other lines of business.  The Administration can apply pressure on Twitter, and other social media companies, by having the FCC deny certain licensing for new business paths relating to satellite internet or other new lines they seek. That pressure could be detrimental to those businesses in this telecommunications age, but would not affect the companies’ core businesses.

Third, of course, he can pressure regulators to commence litigation.  While Twitter can react-check, it could also choose to pursue a defense, but in the interim, there would be an expensive, time consuming review of all tweets until the courts rejects President Trumps challenge. For Twitter, additional expenses are not welcomed but they can be overcome; for smaller platforms it could be detrimental.

Thus, while the fight against the administration and the regulators will be costly, in the end it will be unable to significantly alter Twitter’s business or that if any other social media provider.