Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
Any way you cut it, the Manhattan district attorney’s subpoena to President Donald Trump’s financial firm Mazars USA is bad news for Trump. And that’s why Trump’s lawyers are trying so desperately to get the subpoena thrown out.
New revelations about the subpoena show that prosecutors are focused on alleged crimes that go beyond hush money payments made by the Trump Organization to two women who alleged that they had affairs with Trump (Trump denies the affairs). Prosecutors are also focused on a series of financial transactions that could relate to potential tax fraud, insurance fraud and bank fraud.
Here’s why this should concern Trump and his team. Criminal charges relating to hush money payments are notoriously difficult to prove because they rely on proof of intent: Were the payments made to influence an election or for some other reason (including bad but non-criminal reasons, such as preventing personal embarrassment)?
Federal prosecutors in the Southern District of New York investigated the payments for years, but only brought charges against one person – the President’s former lawyer Michael Cohen, who pleaded guilty – before reportedly closing out the investigation. (Though the SDNY noted in a court filing that Cohen had acted “in coordination with and at the direction of Individual-1” – plainly, Trump – and long-standing Justice Department policy counsels against indicting a sitting president).
But New York prosecutors now seem focused on more easily provable, document-based frauds. New York prosecutors noted that their investigation is based, at least in part, on public reporting. Indeed, prosecutors reportedly are investigating potential tax fraud based on intentional misstatements of the value of Trump Organization assets, as reported last year by Pro Publica.
And Cohen testified in Congress in February 2019 that he believed Trump inflated the value of his assets to secure bank loans and insurance policies. (Trump’s lawyers have denied any wrongdoing.) If the black-and-white financial documents support any of these allegations – if they show, for example, that Trump or anyone else intentionally inflated or deflated the value of Trump Organization assets – then a garden-variety fraud charge could be in order. As a prosecutor, I learned that the simplest charges are usually the most powerful and most difficult for defendants to overcome.
This case is the continuation of a battle that already has gone poorly for Trump. He initially fought the subpoena by claiming that, as a sitting president, he held “absolute immunity” from criminal investigation. The Supreme Court firmly rejected that argument by a 7-2 vote, with Chief Justice John Roberts and Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh joining the four traditionally liberal justices in a cross-ideological majority.
The court sent the case back to the lower court to enable Trump to raise the objections that any non-presidential subpoena recipient can raise in the lower courts. But those objections rarely succeed. In my 14 years as a prosecutor, I never had a subpoena recipient succeed in quashing (essentially, defeating) a criminal subpoena.
New York prosecutors clearly still have work to do. They need to prevail in the pending subpoena dispute, which seems likely, and then put together all the pieces to determine whether state-level criminal charges are just and warranted against Trump or anyone else in the Trump Organization.
But the statements prosecutors made in court on Monday indicate they are determined to move quickly, and that they are focused on the most readily provable potential charges.
Now, your questions
Nicolaus (Illinois): When asked if the President could postpone the election, Attorney General William Barr said he did not know. Is there a clear answer under our legal system?
There is a clear answer: No, the President cannot unilaterally postpone the general election. It was curious that the attorney general did not know this; hopefully he has since been brought up to speed.
The Constitution specifically empowers Congress to set the date for the presidential election, and requires that the date be uniform throughout the country. Exercising that constitutional authority, Congress long ago passed a federal law setting the date for the general election as the Tuesday after the first Monday in November – which, in 2020, falls on November 3. Congress could pass a new law setting a different national election date, but that would require majority votes in the Democratic-controlled House and the Republican-controlled Senate, plus the President’s signature.
Even in the exceedingly unlikely event that Congress passes and the President signs legislation postponing the 2020 general election, the date can only be pushed back so far. The 20th Amendment to the Constitution requires that the terms of the president and vice president end at noon on January 20. The Constitution can, of course, be amended, but that requires votes of two-thirds of both the House and the Senate, plus ratification from three-fourths of all state legislatures. That simply is not going to happen, either as a political or practical matter, before January 2021.
Charles (Georgia): As chief justice of the US Supreme Court, what power does John Roberts have over federal judges in the lower courts?
Not much. As chief justice, Roberts holds several important powers relating to the Supreme Court itself, including presiding over oral argument sessions and internal conferences, assigning decisions to be written by other justices (when he is in the majority) and managing the court’s building and operations.
But when it comes to the lower federal courts, the chief justice has very little power. He serves as chair of the Judicial Conference of the United States and other committees. He can appoint certain judges to various policy commissions and rule-making bodies, and he reports to Congress on changes made to the federal rules of procedure.
But the chief justice has no ability to nominate, appoint, remove or discipline federal judges. He has no say over their caseloads or decision-making. So, the chief justice has limited, almost entirely ministerial, oversight of the lower federal courts.
Janice (Indiana): Does the President have the authority to send federal forces to a state or city without a request from a local government?
Yes, but it’s important to keep two things separate: the military versus federal law enforcement. First, as to the military, under the Insurrection Act of 1807, the president has authority to deploy federal troops in certain circumstances: (1) where requested by a state governor, (2) where necessary to “suppress” unlawful “obstruction” or “rebellion,” or (3) where required to prevent interference with enforcement of federal or state laws. While a request from a governor is necessary under the first of those provisions, it is not necessary under the second and third.
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Separately, the president has virtually unlimited control over where and when to deploy federal law enforcement agents (from the FBI or DEA, for example). There is no law requiring the federal government to receive an invitation from state or local authorities, although in my experience, law enforcement is safer and more effective when federal and state and local agencies communicate and coordinate with one another.
There are real questions about whether federal law enforcement agents have been deployed wisely in Portland and elsewhere, and over the tactics utilized by those agents – including reported use of excessive force and arrests without probable cause. But there is no law requiring agreement or consent from state or local authorities before the federal government can deploy law enforcement agents.
Three questions to watch
1) Will Trump continue to suggest that there should be potential delays to Election Day?
2) Will we see resolution in the legal battle between the Georgia governor and Atlanta mayor over face mask mandates?
3) Now that the Court of Appeals has decided to rehear the Michael Flynn case “en banc” – by a panel of all 10 eligible (non-recused) Court of Appeals judges – will Flynn’s conviction remain intact?