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Blog | Jennifer Taub

follow the money

A blog on business law, politics, and white collar crime

March 26, 2019

Barr’s conclusions are not credible

Pleased to be included in this roundup including Professor Laurence Tribe, Mimi Rocah, Neal Katyal, Kathleen Clark, Jill Wine-Banks and more published by Politico on Sunday, March 24, within just hours of the release of Attorney General William Barr’s letter purporting to summarize the Mueller Report. We were each asked, “Has the President Been Exonerated?”

‘Barr’s conclusions are not credible’
Jennifer Taub is a professor of law at Vermont Law School. 
The president has not been exonerated by special counsel Mueller. And, that is what matters. Quite significantly, when addressing the obstruction of justice investigation, the special counsel did not, in the attorney general’s words, “draw a conclusion—one way or another—as to whether the examined conduct constituted obstruction.” Barr also directly quoted Mueller, writing, “The Special Counsel states ‘while this report does not conclude that the president committed a crime, it also does not exonerate him.’” Instead of leaving that finding as is, perhaps as a roadmap or referral by Mueller to Congress, Barr took it upon himself to make the determination on obstruction. While he was free to make that choice, it did not belong in this letter purporting to summarize the Mueller report. That conclusion is not, and should not be, treated as part of Mueller’s report. In short, Barr’s conclusions are not credible. Remember, Barr lobbied for his job in the Trump administration in 2018 by submitting an unsolicited, 20-page legal memo on why the president had not obstructed justice. The fix was in when Trump replaced his first attorney general, Jeff Sessions, with Matt Whitaker (in an acting capacity) and then Barr. This is a sad day for the rule of law. Furthermore, the president has not been exonerated by any of the other prosecutors who are examining his conduct in connection with hush money payments made in violation of federal election law or related to his inaugural campaign.

February 1, 2019

Yes, Collusion. Now, what?

With the grand jury indictment of Roger Stone last week, Robert Mueller introduced compelling new plot points in the immersive real-life thriller we formally refer to as the special counsel investigation into Russian interference in the 2016 U.S. presidential election. Through this latest speaking indictment, Mueller reported that he has found what Rod Rosenstein appointed him to look for –– “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Plus, he added Stone to a growing list of Trump associates who interfered with the investigation, through lies, witness tampering, or obstruction.

 

Quite simply. Yes, Collusion. Yes, a cover-up.

 

The most salient revelation in the Stone indictment is the human communication chain connecting the Russian military intelligence officials (who were indicted in July 2018, for the DNC and Hillary Clinton email hacking conspiracy) right up to MAGA headquarters in Trump Tower, and quite likely to Trump himself.

 

Let’s take it link by link.

 

The first link in that chain is the Russian military intelligence officials. On June 14, 2016, news of the Democratic National Committee (DNC) hacking was made public. In response, the hackers immediately created a fake persona called “Guccifer 2.0” they held out to be a lone Romanian. The grand jury charged these Russian officials in July 2018 with several criminal counts including the felony Conspiracy to Commit and Offense against the United States (to violate the Computer Fraud and Abuse Act), the object of which was to stage the release of emails and documents stolen from the Democratic National Committee and the Clinton Campaign.

 

The second link is WikiLeaks and its chief, Julian Assange who resides in the Ecuadorian Embassy in London. According to the July indictment, Assange private messaged Guccifer 2.0 requesting them to send “any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” They had further communications in which WikiLeaks sought information to help discourage Bernie Sanders supporters from backing Clinton. WikiLeaks wrote in early July 2016, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the [Democratic National Convention] s approaching and she will solidify bernie supporters behind her after.” After many failed attempts that began in late June, finally by July 14, the Russian conspirators through Guccifer 2.0 sent WikiLeaks an email with an archive of stolen DNC documents attached.  On July 22, WikiLeaks released them.

 

The third link in the chain is a double one. Meaning there are two intermediaries that Mueller has reported from WikiLeaks to Stone. One is a yet-to-be-identified London-based Trump supporter who was associated by the Stone indictment with Jerome Corsi. The other third link is radio host, Randy Credico.

 

The fourth link in the chain is Roger Stone. On July 25, he sent a direct message to Corsi that said, “Get to [Assange] [a]t Ecuadorian Embassy in London and get the pending [WikiLeaks] emails . . . they deal with Foundation, allegedly.”  Corsi forwarded that email to the London-based Trump supporter. The Stone indictment also alleges that Corsi passed back to Stone information he’d obtained from Assange. He messaged Stone, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.” Corsi added, “time to let more than [John Podesta, the Clinton campaign chair] to be exposed as in bed w enemy if they are not ready to drop HRC.” In August, Stone began publicly stating that he had been in contact with Assange both directly and through an intermediary.

Stone is also linked to Assange through Credico. Credico texted Stone in late August, informing him, “[Assange] has kryptonite on Hillary.” In September, Stone asked Credico to communicate several messages to Assange. Credico obliged, passing it along through an attorney who knew Assange, and bccd Stone. On the next day, October 1, Credico texted Stone, “big news Wednesday . .now pretend u don’t know me . . Hillary’s campaign will die this week.” Stone wrote to a Trump supporter, “Spoke to my friend in London last night. The payload is still coming.” Sure enough, on October 7, the payload landed. That morning, the Obama administration announced its belief that the Russian government hacked, stole and released emails from the Democratic National Committee and others and they “are intended to interfere with the U.S. election process.” That afternoon, the Access Hollywood video is released. It captured Trump on a hot mic discussing sexually assaulting women, “I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the pussy. You can do anything.” Within hours, WikiLeaks released the first tranche of emails stolen from the Clinton campaign. By November 6, it would release 50,000 stolen documents.

 

The fifth link is the senior Trump campaign official who according to the impactful paragraph 12 of the Stone indictment, “was directed” to contact Stone. The paragraph states, “After the July 22, 2016 release of stolen DNC emails by [Wikileaks], a senior Trump Campaign official was directed to contact Stone about any additional releases and what other damaging information [Wikileaks] had regarding the Clinton Campaign.” We don’t know who that person is yet. And we don’t know exactly when or how this direction was communicated. The Stone indictment implies that the initial “Get to Assange” message from Stone to Corsi on July 25 was in response to contact from that Trump campaign official, and not a freelance endeavor. It’s notable, that “Shortly after [WikiLeak’s] release, an associate of the high-ranking Trump Campaign official sent a text message to Stone that read ‘well done.’”

We don’t even need a sixth link to demonstrate that Mueller found what he was looking for. However, the sixth link is the person (or persons) referenced in paragraph 12, who apparently has enough power to “direct” a senior Trump Campaign official to contact Stone about WikiLeaks. It’s also curious that Mueller did not name this person via a descriptor. Some speculate, without evidence, that this director could be a Trump family member, or Trump himself. Further, there’s plenty of data points from Trump’s own Twitter feed and speeches to suggest he was fully informed, if not directing the coordination. On July 23, 2016, the very day after WikiLeaks published the DNC stolen emails, Trump tweeted about WikiLeaks for the first time. “Leaked e-mails of DNC show plans to destroy Bernie Sanders. Mock his heritage and much more. On-line from Wikileakes, really vicious. RIGGED.” Later that day he tweeted, “The Wikileaks e-mail release today was so bad to Sanders that it will make it impossible for him to support her, unless he is a fraud!”

 

Then, on July 26, the day after Roger Stone first reached out to Corsi to try to get to Assange, Trump tweeted, “In order to try and deflect the horror and stupidity of the Wikileakes disaster, the Dems said maybe it is Russia dealing with Trump. Crazy!” The next morning, on July 27, he tweeted, “If Russia or any other country or person has Hillary Clinton’s 33,000 illegally deleted emails, perhaps they should share them with the FBI.”  That night, in a speech he said, “If Russia or any other country or person has Hillary Clinton’s 33,000 illegally deleted emails, perhaps they should share them with the FBI!” Perhaps the message was received. The Stone indictment notes, “[T]he [Russian] Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a thirdparty provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.”

 

Okay, so there was collusion. Then why didn’t the grand jury charge Stone with Conspiracy? It’s possible that the grand jury does not have sufficient evidence of one of the elements, like an agreement. However, it could be a legal strategy. As former federal prosecutor, Joyce Vance tweeted “Why didn’t Mueller charge Stone with conspiracy? The rules in federal cases require that prosecutors provide defendants with broad discovery. By indicting Stone on a fairly narrow set of charges, Mueller limits what has to be disclosed & can protect ongoing investigation.”

 

So, what kind of conspiracy could this be? It might that Stone was part of that Conspiracy described in the July indictment. Or, perhaps this could be a conspiracy to violate federal election campaign law by taking or soliciting something of value from a foreign national. Another conspiracy charge could be Conspiracy to Defraud the United States. This is a standalone crime and was used in two separate Mueller indictments. It was used in the February “Internet Services Agency” indictment against thirteen Russian nationals and three entities. There, the grand jury alleged “Defendants knowingly and intentionally conspired with each other (and with persons known and unknown to the Grand Jury) to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016.”The Trump team is already rehearsing complex defenses to some of these theories. We can see in the Concord Management case an attempt to discredit the use of “Conspiracy to Defraud the United States.” Thus, the strength of a third potential Conspiracy charge. As Benjamin Wittes posited in December, perhaps “obstruction is the collusion.” The grand jury could charge Stone and others down the chain in the campaign itself with Conspiracy to Obstruct Justice.

 

And there’s still more to come. Missing from the Mueller grand jury indictments thus far is any mention of efforts by Trump himself to interfere with the Russia investigation, from the firing of James Comey to Twitter-based witness intimidation to disappearing translator notes. Further, Mueller has been notably silent on the June 9, 2016 Trump Tower meeting in Manhattan between Manafort, Don Jr., and Kushner met in Trump Tower and a group including a Kremlin-linked lawyer and a Russian American with an alleged expertise in cyberattacks. And, of course outside Mueller’s realm, we must remember Trump was implicated by federal prosecutors in the Southern District of New York in several campaign finance offenses stemming from the pre-election hush-money payoffs to Karen McDougal and Stormy Daniels.

 

The bottom line, as I concluded in a tweet thread this weekend, entitled “We Have Seen the Mueller Report –– And It’s Spectacular,” the special counsel investigation has already delivered the evidence we need to take action to remove from office a corruptly compromised president who, in the word of veteran reporter Carl Bernstein, “helped Putin destabilize the United States.”

 

 

 

 

 

July 5, 2018

Big Banks, Big Risks –– Here We Go Again?

I recommend listening to this wonderfully informative interview with Professor Michael Greenberger. Greenberger is the former director of trading and markets at the Commodity Futures Trading Commission.When speaking with NPR, Greenberger reflects on his new working paper entitled “Too Big to Fail U.S. Banks’ Regulatory Alchemy.” The rather wonky, yet informative subtitle is:  “Converting an Obscure Agency Footnote into an ‘At Will’ Nullification of Dodd-Frank’s Regulation of the MultiTrillion Dollar Financial Swaps Market.”

In mid June, I was fortunate to attend the INET breakfast where this paper was released. During the discussion, former Fed Chair Paul Volcker remarked, ““I’m 90.” After 70 years in and out of banking “What strikes me. I’ve seen it all before.”

Screen Shot 2018-07-05 at 1.20.09 PM

 

Link to the NPR interview here

Link to Greenberger’s working paper here

March 9, 2018

Mitch McConnel’s Big Gift to the Banks

This month marks the tenth anniversary of the $29 billion US government-backed bailout of Bear Stearns. The collapse of this giant investment bank in March 2008, under the weight of its bad mortgage-linked bets, marked the beginning of the global financial crisis.

To commemorate it, the US Senate plans to deliver a big gift to the banking sector by removing several safeguards for American families put in place after the meltdown.

Tin is the traditional tenth wedding anniversary gift. A bank deregulatory bill on the crisis anniversary is a fitting present from someone with a tin ear.

Senate Majority Leader Mitch McConnell has announced that this week the Senate, rather than respond to the plague of gun violence by considering gun law reforms after the Parkland shooting, will begin debating the rollback of financial reforms

Read more here

June 13, 2017

A Blueprint for Banking Deregulation

Yesterday, Monday, June 12, the Treasury Department released this white paper entitled “A Financial System That Creates Economic Opportunities Banks and Credit Unions.”

This 159-page report was made to the president in response to his Executive Order 13772 on Core Principles for Regulating the United States Financial System. The authors are Secretary Steven T. Mnuchin and Craig S. Phillips, Counselor to the Secretary.

 

 

 

February 13, 2017

New Hopes and Hazards for Social Investment Crowfunding

Happy to be included in Law and Policy for a New Economy: Sustainable, Just, and Democratic, edited by Melissa K. Scanlan, forthcoming in 2017.

What follows is an excerpt from my chapter on “New Hopes and Hazards for Social Investment Crowdfunding.”

In his chapter on the “Joyful Economy,” (Chapter 2), Gus Speth contends that building a new economy requires a redefinition of the corporation and its goals. He advocates for shifting it from an enterprise designed primarily to provide profits for shareholders to one concerned about a broader set of values and stakeholders. To develop what he deems a joyful economy, he suggests that people, place and planet must be prioritized. Perhaps those who bring leadership to businesses that focus on social and environmental concerns–––social entrepreneurs–––can answer the call by reorienting the corporations that they create. Such localized efforts to transform individual firms could inspire widespread change.

 
The timing is good for such a transition, as social entrepreneurs have promising new options available for widely soliciting like-minded investors and organizing their business enterprises to include social goals. Yet, due to distrust of the existing system, some may not explore these opportunities. Not attuned to mainstream matters, they may be unaware of the recent legal changes that make it easier for them to engage within the existing financial and corporate governance systems to fund their enterprises and to organize them with a social or environmental mission in mind.

 

These recent legal developments are significant. Now in the US, those seeking to fund an enterprise using securities offerings can forgo a complex, time-consuming full federal registration process with the Securities and Exchange Commission (SEC) while still reaching out to solicit a wide group of potential investors. This general solicitation can take place in a variety of media include advertising online through crowdfunding portals and other platforms. The ability to bypass the full SEC registration process is the result of recent legal reforms that streamline how businesses can raise money through the offering and sale of securities. These legal reforms impact social entrepreneurs because the law covers the methods they might use to attract funding. Unlike a donation made through a site like Kickstarter or Go Fund Me, which is not subject to the securities laws, investments made with an expectation of profit typically are subject to securities regulation at the federal or state levels (or both). This is because as a matter of law, securities include investments of money in a common enterprise with the expectation of profit as well as more common financial instruments like stocks and bonds.

 

Taken together, these federal and state legal and regulatory updates make it easier for startups, including socially or environmentally-focused enterprises to raise capital and for members of the general public to channel their savings into such investments. These changes can provide space for those social entrepreneurs who believe they do not fit within the current system.

 

]With these hopeful legal developments, however, come hazards. The usual concerns around fraud and mismanagement endure. Moreover, less sophisticated members of the public may not have the skills to assess the investment opportunities. And, they may not fully understand that the majority of startups fail and may invest more in individual startups or even in a diversified portfolio than they can stand to lose. Streamlining the offering process and eliminating traditional federal registration and disclosure requirements may result in investors not obtaining information essential to their investment decisions. These streamlined offering processes may also attract the unscrupulous and reckless issuers seeking a quick buck without sufficient skill or realistic business plans. Indeed, in some cases, given the combination of the perceived virtue of or affinity with a local and mission-driven enterprises and unsophisticated investors, fraud could be even more prevalent.

December 11, 2016

the #divestdonald movement

Inspired by a bipartisan group of legal ethicists and Constitutional scholars including Kathleen Clark, Norm Eisen, Richard Painter, Stephen Schooner, Zephyr Teachout, and Laurence Tribe, on November 20, 2016, I launched the hashtag #DivestDonald. In the morning I informed friends on Facebook that I planned to use it later that day on Twitter. A few headed over first.

This simple phrase, #divestdonald, is designed to draw public attention to how Donald Trump is poised to violate the Constitution on day one of his presidency. In particular, the foreign Emoluments Clause, found in  Article I, Section 9, Clause 8 of the Constitution forbids a President from taking any payment from a foreign government or official unless Congress first approves. This would include payments for hotel rooms and licensing fees. It would also include any of the joint ventures Trump’s operations have with foreign governments. Because he is either the sole or principal owner of his numerous global businesses, when he operates them he is in direct violation.

This is a case of both monumental corruption and historical significance.  When a President takes the oath of office, he solemnly swears to “faithfully execute the Office of President of the United States, and will to the best of  [his] ability, preserve, protect and defend the Constitution of the United States.” Yet, Trump would be defying the Constitution. For more details, please read this bipartisan letter, sent to Donald Trump on December 9, 2016.

Quite quickly following the November 20th launch, many adopted the hashtag. For example, on November 21, Larry Tribe tweeted: #divestdonald is a constitutional mandate not just of the Emoluments Clause but also of the Faithfully Execute Clause.

What follows is a Facebook post from December 7, 2016. That was Day 29 following the Presidential election. I have been maintaining the habit of writing a status each day with inspiration and calls to action. This will last at least until January 20, 2021, which will be Day 1,534.

* * * * * * *

Day 29: Are you wondering how I find joyful purpose in #DivestDonald. What is the endgame. How do we measure success? Should we feel defeated when Trump takes office and continues to help his family profit off the presidency. When he continues to be a walking, talking violation of the Constitution? Here are my answers to those questions.

The endgame: I believe #DivestDonald it’s not a game, it’s a marketing message and a political movement.

By using it every day, we brand Trump as the monumentally corrupt person he is. It reminds us that he is our crony capitalist in chief. The words #DivestDonald are a constitutional imperative and a demand for what he needs to do with his business.

The hashtag #DivestDonald has another meaning too. It signifies that We the People need to divest of him as president and put someone better in office.

The Better Vision: When America finally divests of Donald. What will we get? We must begin to shape that now. For me, this vision involves five key things.

Shared prosperity & a living wage
Equal rights and dignity
Debt-free higher education
Healthcare through single-payer
Banking that is not too big to fail

To realize this vision, I believe we must #DivestDonald who plans to privatize the gains and socialize the losses in these key areas. He wishes to reward himself, his family, and his cronies.

June 13, 2016

The Madoff Loophole, Tire Shredders and More

On May 17th, was the witness invited by the Democrats to testify concerning three troublesome bills before a subcommittee of the House Financial Services Committee. Here’s a snippet of testimony and a link to the full remarks. A video is also available here.

“It’s odd. Just when private equity funds are in the sunlight thanks to Dodd-Frank and many have been exposed in SEC examinations as in violation of the law, you are now proposing that they be able to hide their tracks. . . [Also, this bill] would shockingly eliminate the annual independent audits of certain fund advisers to ensure they actually have the assets and securities they claim to hold. I call this the Madoff Loophole. . . Next, the SEC Regulatory Accountability Act would limit the agency’s ability to protect the investing public. Prior to issuing most regulations, the SEC would have to engage in a new cost-benefit process. Yet, the SEC already conducts economic analysis. And the securities laws already require the consideration of the promotion of efficiency, competition and capital formation. The SEC is also already subject to the Paperwork Reduction Act, the Regulatory Flexibility Act, and the Congressional Review Act. The existing requirements set out several speed bumps. The proposed requirements are tire shredders designed to bring progress to a crashing halt.”

 

 

December 2, 2015

Going Soft on White Collar Crime

Tucked into the bipartisan criminal justice overhaul package, the language could hamper federal prosecutors’ deployment of statutes that have been used for more than a century against fraudsters from Charles Ponzi to Bernard L. Madoff.  Read more of this DealBook column here:

 

July 23, 2015

Dodd-Frank at Year Five

On July 22, I was honored to join experts Simon Johnson (MIT) and Mark Calabria (Cato) on a panel moderated by Marc Jarsulic of the Center for American Progress. Our group followed an earlier panel of distinguished guests Senator Sherrod Brown (Ohio) and Representative Maxine Waters (California) moderated by CAP executive director Neera Tanden.  Click here for a link to the video. Quoting the CAP website:

“In response to the worst financial crisis since the Great Depression, Congress passed a major financial reform bill known as the Dodd-Frank Wall Street Reform and Consumer Protection Act. The law, signed by President Barack Obama on July 21, 2010, made significant changes to the structure of financial regulation in the United States. It gave increased regulatory responsibility and power to the Federal Reserve Board; Federal Deposit Insurance Corporation; U.S. Securities and Exchange Commission; and U.S. Commodity Futures Trading Commission. It also created the Consumer Financial Protection Bureau to rein in abuse of households in financial markets, established the Financial Stability Oversight Council to provide macroprudential supervision of the entire U.S. financial system, and significantly overhauled the rules of the road for mortgage lending. The implementation of these mandates has produced substantial changes in the operation of our financial markets and in the activities of regulators.”

“The Center for American Progress Action Fund is pleased to host an extended conversation about the Dodd-Frank Act, its overall implications for financial market performance and financial stability, and the ongoing debate on whether more change is needed. The event will feature a discussion with congressional leaders who were involved in the creation of the Dodd-Frank Act and who have monitored its implementation for the past five years, and then a panel of experts will discuss how the law has worked and where to go from here.”

 

 

Other People's Houses

Other People's Houses

In the wake of the financial meltdown in 2008, there were many who claimed it had been inevitable, that “no one saw it coming,” and that subprime borrowers were to blame.