Checking Rachel Mitchell Against Herself

I hope Senate Judiciary Committee members will obtain some trial transcripts from cases Ms. Mitchell has prosecuted in Phoenix. It will be interesting to compare the substance, tenor, and tone of the questions she asks Ms. Ford with her examinations of sex crime victims in her cases and to compare the substance, tenor, and tone of her examination of Judge Kavanaugh with that of alleged sex assailants she has questioned as an officer of the court. 

Should President Pence be Impeached with Vice President Trump in the Wings?

Put aside for a moment the specific impeachment counts with which President Pence has been charged by the House, and turn to the opinion makers’ hot question: will we or won’t we be better off if Donald Trump became president following a vote of the Senate to convict Pence and remove him from office?

Was Trump’s criticism of Sessions for permitting indictments of Republican House members a high crime or misdemeanor?

The tweet in question:

(1)    “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff…..”

Impeachment for Pre-Innaguration Conduct II

In addition to the impeachments of Andrew Johnson and Bill Clinton, and the near impeachment of Richard Nixon, there have been 17 other impeachments voted by the House, mostly of federal judges. (8 were convicted by the Senate; some fended that off by resignation.) The charges in all 19 cases involved conduct while in office.

In a post of April 5, 2017, I suggested that the question of impeachment for conduct prior to taking office was edging towards a relevance more than academic.See http://lawrencecrocker.blogspot.com/2017/04/impeachment-for-acts-prior-to-taking.html.


In that post I argued that any suggestion to a foreign power of an in-office quid pro quo would bring the case within the "misconduct in office" category, whether or not the president came through with the quid pro quo. I also suggested that even if exclusively pre-office, a sufficiently egregious high crime or misdemeanor should be grounds for impeachment, despite the absence of House precedent.  

I invite you again to think about these issues, as they seem now to be more than edging towards relevance.

Was Trump’s “Russia, if you are listening, . . . “ Criminal? Impeachable?

On July 27, 2016, candidate Donald Trump asked Russia to find Hilary Clinton’s deleted emails. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” It is fair to say, I think, that the Russians, if they took him up on this, could expect Trump’s gratitude and whatever might flow therefrom in the future.  Did this constitute a violation of federal election law? If so, was it a criminal violation?  If so, was it an impeachable violation?

Did Cohen’s Release of the Tape Breach Ethical Rules?

In a new development re my last post, on 7/24/18 Michael Cohen make public what appears to be a recording of an in-person conference with Donald Trump, which conference took place shortly before the 2016 election. It seems fair to say that some of the content of this conference involved things that the client would have wanted to remain secret. If Trump had already released any part of the attorney-client privileged content of the conversation, then the privilege was gone. (You cannot pick and choose, revealing those parts of an attorney-client conference that ore favorable, withholding the damaging parts.) Cohen could not then be faulted under the attorney-client privilege branch of his ethical obligation. However, unless Trump had already caused the release of the entire content of the conversation, privileged or not, then Cohen was still ethically obliged not to disclose any secrets of the client that were still secret.

Of course, breaches of his duties under New York’s code of legal ethics may be pretty low on the list of Cohen’s problems. This release may also be pretty low on the list of ways Cohen will be a problem for Trump.

Ethics Inquiry for Leak of Cohen-Trump Playboy Bunny Tape?

Someone apparently leaked the tape in which Trump and Cohen discussed the possibility of reimbursing A.M.I. (parent company of National Enquirer) for its pre-election capture and kill of Karen McDougal’s story of her year-long affair with the parent of the then infant Barron Trump.

If the tape was attorney-client privileged, or even a client secret, then it would violate ethics for Cohen to leak it. It would, similarly, be a breach for Giuliani or any of Trump’s other lawyers to leak it without Trump’s consent.  

So, either Trump leaked this himself or someone violated the lawyers’ code of ethics. Trump should be asked. If he denies directing the leak himself, then an ethics investigation would be appropriate. Of course, it is conceivable that the investigation would turn up that there was no lawyerly breach, Trump having lied on the point.