Tracking Trump Litigation – The Long Arm Of The Law Is Closing In

JustSecurity.org is maintaining a “Litigation Tracker” for all of the criminal investigations and civil lawsuits pending against Donald Trump personally, and his criminal enterprise known as the Trump Organization. Litigation Tracker: Pending Criminal and Civil Cases Against Donald Trump (excerpt):

On both the criminal and civil litigation fronts, former President Donald Trump faces a bevy of lawsuits and investigations, with more cases likely to follow. Some are civil suits stemming from his pre-presidential business dealings. Others are defamation claims from women he allegedly assaulted. More still are criminal probes and civil actions that scrutinize his attempts to overturn the results of the 2020 election. The Chart below tracks all these cases. It will be continually updated as major legal developments occur.

These cases bear on two pressing questions. First, will Trump maintain his long streak of eluding legal liability in the face of so many lawsuits? Second, if Trump is held to account for illegal conduct, what impact will such a development have on his—and his family’s—political and business fortunes?

Criminal charges—one would think—would be among the most damaging outcomes. After all, a criminal prosecution of a former president would be a singular event in American history. No former president has ever been indicted, much less convicted. Trump lost any immunity from indictment that he may have possessed as president the moment he left office on Jan. 20. To be sure, most of the criminal probes detailed below are in their infancy, so the odds of an actual conviction at this time remain improbable. Even so, the mere stigma of criminal charges against the former president could reshape the American political landscape and the historical understanding of Trump’s behavior.

The civil cases could certainly do their fair share of damage as well, directly or indirectly. If Trump falters in one of his business-related suits, his companies may be subject to massive penalties, or worse. Even apart from such sanctions, his empire is reportedly struggling under looming debt obligations and reduced revenues, a slump which could worsen if his reputation continues to deteriorate.

With these legal threats bearing down on the former president from nearly every direction, this tracker collects them in one place. Note: we have chosen not to include various cases involving Trump’s properties or the Trump Campaign —including slip-and-fall cases, allegations of bedbugs, water use cases, telephone spam suits, copyright suits, and discrimination suits—as they do not implicate Trump directly or it is very unlikely that they will. Below we’ve included key takeaways from each case along with case charts that explain the case’s main issue, procedural posture, and any upcoming deadlines. We will continue to update this information as new filings are docketed, new details emerge, new plaintiffs come forward or drop out, and other significant developments in the cases occur. If you believe we are missing a significant issue or development, send us a message at lte@justsecurity.org.

I would recommend that you bookmark this “Litigation Tracker,” because I expect that news will come fast and furious this year, and there is no chance I have enough time to keep up with all of the breaking news.

On Tuesday, the Washington Post reported in the morning that the Biden Justice Department released part of internal memo on not charging Trump in Russia probe:

The Justice Department released only part of a key internal document used in 2019 to justify not charging President Donald Trump with obstruction, prompting a federal judge who wants to disclose the entire document to offer more blistering criticism of former attorney general William P. Barr.

Two new court filings — one late Monday night and another made public Tuesday — offered details about how Barr ended a possible obstruction case against Trump, and how the department’s handling of that politically explosive question has drawn the ire of U.S. District Judge Amy Berman Jackson.

The ongoing fallout from the handling of special counsel Robert S. Mueller III’s findings is likely to fuel and frustrate Trump’s biggest critics, particularly Democrats who have long argued that Barr stage-managed an exoneration of Trump after Mueller submitted a 448-page report describing his investigation into whether the 2016 Trump campaign conspired with Russia to interfere in the election, and whether Trump tried to obstruct that investigation.

The central document at issue is a March 2019 memo written by two senior Justice Department officials who argued that aside from important constitutional reasons not to accuse the president of a crime, the evidence gathered by Mueller’s team did not rise to the level of a prosecutable case, even if Trump were not president.

Portions of the memo that remain sealed contain brief factual and legal analyses of at least some of the incidents of possible obstruction that Mueller found. The memo concludes that each did not meet the threshold the Justice Department would need to file a criminal case, even if doing so had been possible, according to people familiar with the matter who spoke on the condition of anonymity because the document is sealed. The analysis focused at least in part on the lack of a precedent for building an obstruction case around instances of the president using his executive power in ways that would normally be allowed, such as the firing of James B. Comey as FBI director in 2017, these people said.

Earlier this month, Jackson issued a scathing opinion saying that she had read the memo and that it showed Barr was disingenuous when he cited the document as key to his conclusion that Trump had not broken the law. On Tuesday, in response to the Justice Department’s filing overnight, Jackson ordered public release of the still-secret portions of her opinion.

“The suggestion that the Attorney General’s advisors were helping him make a decision about whether to initiate or decline a prosecution is contrary to the very memorandum at issue,” Jackson wrote in a newly unsealed section. “So why did the Attorney General’s advisors, at his request, create a memorandum that evaluated the prosecutive merit of the facts amassed by the Special Counsel? Lifting the curtain reveals the answer to that too: getting a jump on public relations.”

Jackson concludes that rather than weigh legal issues, the memo shows Barr’s Justice Department “was girding for a preemptive strike on the Mueller report instead.”

Surprisingly, or rather shockingly, the Biden Justice Department is appealing Judge Jackson’s order to release the still-secret portions of the memo. WTF is right. Who is Attorney General Merrick Garland trying to protect? Please tell me that he is not protecting the most corrupt attorney general in the history of the United States, William Barr.

The New York Times reported, The Justice Dept. will fight to keep secret most of a Barr-era memo on whether Trump obstructed the Russia inquiry.

The Biden administration has decided to fight to keep secret most of a Trump-era Justice Department memo related to former Attorney General William P. Barr’s much-disputed declaration in 2019 clearing President Donald J. Trump of illegally obstructing justice in the Russia investigation.

In a late-night filing Monday, the Justice Department appealed part of a district-court ruling that ordered it to make public the entire memo. It was written at the same time that Mr. Barr sent a letter to Congress claiming the evidence in the then-still secret report by the special counsel, Robert S. Mueller III, was insufficient to charge Mr. Trump with a crime.

The Justice Department did release the first page and a half of the nine-page memo.

[T]he new Justice Department filing also apologized for and defended its Barr-era court filings about the memo, which Judge Amy Berman Jackson had labeled “disingenuous,” saying that they could have been written more clearly but were nevertheless accurate.

“The government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” the Justice Department said. “But the government’s counsel and declarants did not intend to mislead the court, and the government respectfully submits” that any missteps still did not warrant releasing the entire memo.

[E]arlier this month, Judge Jackson issued a scathing ruling in that case saying that the Barr-era Justice Department had been “disingenuous to this court” about the nature of the memo in court filings by arguing that it could be lawfully kept secret under an exemption for pre-decisional deliberations. She wrote that she had made the discovery after insisting that she read it herself.

While the Barr-era Justice Department told her the memo concerned deliberations about whether Mr. Trump should be charged with obstruction, the memo itself showed that Mr. Barr had already decided not to do so, and the memo was instead about strategy and arguments that could be mustered to quash the idea. She ordered the entire document released.

The Biden-era Justice Department had until Monday to respond. In its filing, it acknowledged that its earlier filings “could have been clearer, and it deeply regrets the confusion that caused.” But it also insisted that its “declarations and briefs were accurate and submitted in good faith.”

The decision that Mr. Barr was actually making, the department said, was about whether to decide whether the evidence was sufficient to charge Mr. Trump someday — not whether he should be charged at that moment, since longstanding department legal policy is to consider sitting presidents temporarily immune from prosecution while they are in office.

A department policy which Attorney General Merrick Garland should set aside as unsupported at law or in the Constitution.

And, it said, the legal analysis in the second part of the memo — the portion it is appealing to keep secret — was, in fact, pre-decisional, even though the memo was completed after Mr. Barr made his decision, because it memorialized legal advice that department lawyers had previously provided to the attorney general.

So the Biden Justice Department is going to argue in favor of “work product privilege,” Which Judge Amy Berman Jackson found should not apply after reading the memo herself in camera and ordering it to be disclosed?

Pro Tip: A party seeking discovery may overcome the work product privilege if they can show they have a “substantial need” for the materials to prepare their case and they cannot obtain the substantial equivalent of the other party’s work product through “other means” without “undue hardship.”

However, even if a party can show such a substantial need, courts must (and will) protect from disclosure attorney-client communications and the “mental impressions, conclusions, opinions, or legal theories” of a party’s attorney or other representatives concerning the litigation.

The key to the work product privilege is that the materials must have been prepared in anticipation of litigation.  Without this being present, the materials are not protected.

Since DOJ policy is that a sitting president cannot be prosecuted, it is a stretch to argue that the “mental impressions, conclusions, opinions, or legal theories” of DOJ attorneys was in anticipation of litigation. It was a PR strategy as Judge Amy Berman Jackson found.

A former president is fully subject to litigation, but is no longer the executive, and thus not represented by the Department of Justice. So again, the DOJ work product privilege should not apply.

As former acting solicitor general Neal Katyal says, The Public Deserves to See This Legal Memo About Donald Trump.

Late on Tuesday, the Washington Post reported that Manhattan District Attorney Cyrus Vance, Jr.  is now presenting evidence regarding the Trump Organization to a special grand jury in New York. Prosecutor in Trump criminal probe convenes grand jury to hear evidence, weigh potential charges:

Manhattan’s district attorney has convened the grand jury that is expected to decide whether to indict former president Donald Trump, other executives at his company or the business itself, should prosecutors present the panel with criminal charges, according to two people familiar with the development.

The panel was convened recently and will sit three days a week for six months. It is likely to hear several matters — not just the Trump case ­— during its term, which is longer than a traditional New York state grand-jury assignment, these people said. Like others, they spoke on the condition of anonymity to discuss an ongoing investigation. Generally, special grand juries such as this are convened to participate in long-term matters rather than to hear evidence of crimes charged routinely.

The move indicates that District Attorney Cyrus R. Vance Jr.’s investigation of the former president and his business has reached an advanced stage after more than two years. It suggests, too, that Vance thinks he has found evidence of a crime — if not by Trump, by someone potentially close to him or by his company.

Vance’s investigation is expansive, according to people familiar with the probe and public disclosures made during related litigation. His investigators are scrutinizing Trump’s business practices before he was president, including whether the value of specific properties in the Trump Organization’s real estate portfolio were manipulated in a way that defrauded banks and insurance companies, and if any tax benefits were obtained illegally through unscrupulous asset valuation.

The district attorney also is examining the compensation provided to top Trump Organization executives, people familiar with the matter have said.

[A]lthough grand juries with extended terms can hear cases out of order and to varying levels of completion, it is likely that Trump-related testimony in the secret proceeding has already begun, said one of the people familiar with the matter.

Adam S. Miller, who served as deputy bureau chief of the Major Economic Crimes Bureau in the Manhattan District Attorney’s Office before entering private practice in 2011, said such a “special grand jury” is “certainly not an uncommon thing to do with a large, technical and complicated investigation.”

“It’s really for very complicated cases that have a lot of information for a grand jury to digest,” Miller said, noting that a special grand jury’s term can be extended with a judge’s approval.
It is unclear whether prosecutors working under Vance intend to go through the entirety of their grand-jury presentation at once or if the proceeding may be interrupted for the panel to review other cases between hearing from witnesses about the Trump Organization and its business dealings.

It is also unclear when or even whether the grand jury will be asked to consider returning any indictments. Prosecutors handling cases such as this one can choose to present charges for the grand jury to consider — or not. A prosecutor’s grand-jury strategy is often a closely kept secret and can be subject to change.

Rebecca Roiphe, a former assistant district attorney in Manhattan who is now a professor at New York Law School, said that such investigations are always formally overseen by grand juries. In the early stages, prosecutors may use a grand jury’s power just to subpoena documents without offering charges for consideration.

Roiphe said the recent step of seating a long-term panel shows that Vance’s investigation has progressed to the point that prosecutors will visit the grand jury, present evidence and witnesses, and potentially ask that charges be considered. Prosecutors were unlikely to take that step without believing they had evidence to show there was probable cause to believe someone had committed a crime, she said.

“The prosecutors are convinced they have a case. That’s at least how I read it,” Roiphe added.

Trump is facing two investigations of his business practices in New York. Both appear to have begun with the same man: Michael Cohen, Trump’s longtime lawyer and attack dog, who turned on Trump after pleading guilty to making hush-money payoffs on Trump’s behalf and lying to Congress.

Vance’s criminal investigation began in 2018, after Cohen pleaded guilty to charges stemming from the hush-money payoffs, made in the last days of the 2016 campaign to women who said they had affairs with Trump years earlier — allegations the former president denies. Vance’s investigation soon expanded, as the district attorney sought to examine millions of pages of Trump’s tax records.

Separately, New York Attorney General Letitia James (D) began a civil investigation of the Trump Organization in 2019 prompted by Cohen’s testimony to Congress, where he said Trump had misled lenders and tax authorities with manipulated valuations of his assets. Asset values were inflated at times when the company was seeking favorable loan interest rates and were deflated to reduce tax liability, Cohen has alleged. He has been interviewed extensively by Vance’s team, which has added a decorated former federal prosecutor, Mark F. Pomerantz, to help with the Trump case.

In recent months, the two investigations have appeared to converge. Both sets of investigators have sought documents related to a Trump estate in suburban New York, according to court records and people familiar with the efforts, where the then-future president obtained a $21 million tax break by agreeing to give up development rights, and a tower in Chicago where Trump’s lenders forgave $100 million of debt.

Another sign of convergence: James’s office said last week that its long-running civil probe had also spawned a criminal investigation, now being run in coordination with Vance.

The state attorney general’s office did not explain what inspired the criminal inquiry, but veterans of the office said such shifts often are triggered by evidence that indicates a defendant intended to break the law.

Finally, Robert Mueller’s chief witness for the obstruction of justice portion of the Special Counsel’s report, former White House Counsel Don McGahan, has finally agreed to testify to Congress. It will be closed door testimony, however. None of the gripping theater of John Dean documenting the many crimes of Richard Nixon in Watergate.

CNN reports, Ex-WH counsel McGahn agrees to testify before House Judiciary Committee behind closed doors next week:

Former Trump White House Counsel Don McGahn has agreed to testify before the House Judiciary Committee next week after House Democrats and the Justice Department struck a deal paving the way for his closed-door testimony, according to three sources familiar with the discussions.

McGahn’s testimony is coming after a years-long legal battle between House Democrats and the Trump administration, after McGahn ignored a 2019 subpoena from the Judiciary panel and the Justice Department under then-President Donald Trump fought the subpoena and other sensitive information about Trump in court.

The New York Times first reported that McGahn had agreed to testify.

The Biden administration’s Justice Department and the House struck an agreement earlier this month for McGahn to testify about Trump’s attempt to obstruct former special counsel Robert Mueller’s Russia investigation, avoiding a precedent-setting legal battle over the case. A transcript of the interview will be released afterward.

Under the agreement, committee members can ask McGahn about the incidents documented in the Mueller report of Trump’s attempts to fire Mueller and block the Russia investigation. They can also ask about the Mueller investigation’s accuracy.

But will he actually answer questions, or will he continue to obstruct Congress?

The [Biden] Justice Department can assert executive privilege or McGahn can decline to answer on other topics, which would essentially block House Democrats from learning details he might know about other major scandals during Trump’s presidency.

I’m sorry, “the Biden Justice Department can assert executive privilege” on behalf of Donald Trump to coverup his obstruction of justice while president? This whole protecting the privileges of the imperial presidency thing has gone way too far. The Department of Justice works for the American people, not the president.

McGhan did testify for over 30 hours to the Mueller investigation, and he was cited numerous times in the Mueller report as the chief source of information.  That is now public record, so he has to testify about what is in the Mueller report.

As Richard Nixon once foolishly said, “the American people have a right to know whether their president is a crook.” We know the answer to that. but I would really like to see all the evidence and hear the testimony for the historical record.