Forensic News Roundup: May 2-8

May 12, 2021 10:01 am By

FEC drops the ball

The Federal Election Commission abruptly brought an end to its investigation into Trump’s 2016 hush money payment to adult film star Stormy Daniels, despite its own Office of General Counsel finding that the Trump campaign “knowingly and willfully” violated campaign finance law. The six-member panel split along partisan lines in the decision, with Republicans Trey Trainor and Sean Cooksey voting to drop the inquiry and Democrats Shana Broussard, the current chairwoman, and Ellen Weintraub voting to pursue the case. Independent commissioner Steven Walther – who typically votes with the Democrats – was absent from the vote. Republican Allen Dickerson recused from the case.

The decision is inexplicable as former Trump lawyer Michael Cohen pleaded guilty to campaign finance violations in criminal court; the judicial branch recognized the illegality of the payments to Daniels. Additionally, the Southern District of New York plainly stated that Cohen acted in coordination with Trump (aka “Individual-1”):

Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments. In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.

Trainor and Cooksey defended their vote to terminate the FEC investigation:

Before the Commission could consider the Office of General Counsel’s (“OGC”) recommendations in these matters, Mr. Cohen pleaded guilty… In sum, the public record is complete with respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the government of the United States for the conduct at issue in these matters.

Thus, we concluded that pursuing these matters further was not the best use of agency Resources. The Commission regularly dismisses matters where other government agencies have already adequately enforced and vindicated the Commission’s interests.

  • You may remember Trainor from articles when Trump nominated him in 2020: As general counsel to the 2016 Republican National Convention, Trainor assisted the Trump campaign in fending off “Never Trump” efforts from delegates. He then joined the Trump administration, working as special assistant to Secretary of DefenseJames Mattis. He was confirmed to the FEC in an all-Republican vote after refusing to recuse himself from all potential matters concerning the Trump campaign.
  • During the 2020 presidential election, while serving as Chair of the FEC, Trainor supported Trump’s claims of voter fraud, saying “this is an illegitimate election,” and endorsed Sydney Powell’s conspiracy theories: “…I’ve never known fellow TX lawyer @SidneyPowell1 to be anything but forthright and honest in every case she’s ever taken on. If she says there is rampant voter fraud in #Election2020, I believe her.”

However, the FEC’s Office of General Counsel report determined the opposite: Cohen’s guilty plea in court did not absolve Trump and the case should be continued.

…Cohen’s guilty plea clearly did not vindicate all of the Act’s discrete enforcement interests in this matter as it relates to this respondent: Cohen pleaded guilty only to making an excessive contribution in connection with his role in making the Clifford payment, but was not criminally charged with willfully making a contribution in the name of another.

Democratic Commissioners Weintraub and Broussard explained their votes in favor of pursuing a case against Trump:

There is ample evidence in the record to support the finding that Trump and the Committee knew of, and nonetheless accepted, the illegal contributions at issue here. Indeed, Cohen provided testimony under penalty of perjury that Trump not only knew about the payment but himself directed Cohen to orchestrate the scheme…

Because of Trump’s apparent role in orchestrating the transaction, we supported (the commission’s Office of the General Counsel) recommendations to find reason to believe that he and the Committee accepted, and the Committee did not report, illegal contributions.

Weintraub continues in a Washington Post Op-Ed:

The Republican commissioners’ grossly inadequate justification for dismissal is effectively insulated from review because of the last 13 words of their statement: “We voted to dismiss these matters as an exercise of our prosecutorial discretion.” The courts have turned “prosecutorial discretion” into magic words that render any administrative decision invulnerable to appeal.

So the man who directed and benefited from the hush-money scheme escapes accountability, as do the officials who let him off the hook.

…a 2018 decision in CREW v. FEC (CHGO) virtually destroyed the ability of the public — and the federal judiciary — to hold the FEC accountable. The decision held that if FEC commissioners decline to pursue a complaint citing “prosecutorial discretion,” that cannot be challenged by any court.

The ruling she references, CREW v. FEC (Chicago) (PDF), was an opinion by Judge Brett Kavanaugh (then on the Court of Appeals for the District of Columbia Circuit) and Judge Arthur Raymond Randolph, a George H.W. Bush appointee. Judge Cornelia Pillard, an Obama appointee, dissented.

Recurring donations

The FEC unanimously voted to recommend that Congress ban campaigns from using prechecked boxes to guide donors into recurring contributions – something Trump has come under fire for in recent weeks. Numerous donors say they were tricked into donating more money, more frequently to the Trump campaign – resulting in accusations of fraud and over $64 million in refunds from the campaign.

[The Trump team] introduced a second prechecked box, known internally as a “money bomb,” that doubled a person’s contribution. Eventually its solicitations featured lines of text in bold and capital letters that overwhelmed the opt-out language…“Bandits!” said Victor Amelino, a 78-year-old Californian, who made a $990 online donation to Mr. Trump in early September via WinRed. It recurred seven more times — adding up to almost $8,000. “I’m retired. I can’t afford to pay all that damn money.”

…The recurring donations swelled Mr. Trump’s treasury in September and October, just as his finances were deteriorating….In effect, the money that Mr. Trump eventually had to refund amounted to an interest-free loan from unwitting supporters at the most important juncture of the 2020 race.

Senate Rules Committee Chair Amy Klobuchar (D-MN) said Thursday she would introduce a bill to ban pre-checked recurring donations, which both parties have used. “The Commission’s experience strongly suggests that many contributors are unaware of the ‘pre-checked’ boxes and are surprised by the already completed transactions appearing on account statements,” the FEC wrote.


Trump grift

Former President Donald Trump’s adult children have cost taxpayers over $140,000 in their father’s first 30 days out of office. One of the last actions Trump took as president was extending Secret Service protection for his four adult children and two of their spouses. As a result, taxpayers are being charged for Secret Service to travel with them, including at Trump properties – another way taxpayer money can continue to funnel into Trump’s pockets.

Jared Kushner and Ivanka Trump went directly from their jobs at the White House to a ten day vacation in Salt Lake City with their three children, which cost $62,599.39 for hotel stays alone for their detail. From there, they went to Miami for the month of February, with a short stay at Trump’s Bedminster property from February 19-21. The Secret Service turned over no receipts for that leg of the trip, though it almost certainly funneled taxpayer money to the Trump business.

…If just one month of the Trump children’s extended Secret Service protection cost $140,000, then the full six months could cost taxpayers nearly $1 million.

More:

  • Trump International Hotel Las Vegas charged the Secret Service $12,368.66 during a three night trip to the West Coast in February 2020.
  • Mike Pence not only took a ski trip when coronavirus cases were at their highest, but it cost taxpayers at least $750,000 and put dozens of Secret Service agents at risk.

Another part of Trump’s directive provided six months of additional Secret Service protection to former Treasury Secretary Steven Mnuchin, resulting in a $30,000 taxpayer charge for Mnuchin to visit a luxury hotel in Doha, Qatar.

Trump’s Scottish companies took as much as $811,842 from a job retention program while also firing “scores” of workers, according to union officials. While other golf courses in the country took more money, Trump’s companies have never turned a profit – meaning he has never had to pay taxes. Employees and officials are calling for an investigation for Trump’s alleged abuse of the furlough scheme:

Mick Cash, the RMT’s general secretary, said: “It is clear to us that at the very least the principles of the job retention scheme appear to have been breached by the Trump Organisation and that should now be subjected to a detailed and forensic investigation by HMRC.”

He added: “It’s a scandal and as we slowly emerge from lockdown, we are calling for any discarded staff to be re-engaged on decent pay and conditions, and for that same principle to ‎be applied to new employees as well.”

Trump’s Navy secretary spent more than $2.3 million on air travel during the eight months he was in office, despite COVID-19 canceling plans of other officials. Kenneth Braithwaite took (original paywalled article) 22 foreign and domestic trips in his short eight months in office, claiming all were necessary to effectively lead the Navy. However, numerous trips seem more related to personal enjoyment: Just a week before Biden’s inauguration, Braithwaite spent $232,000 to fly to Wake Island, a tiny Pacific stop where no sailors or Marines are stationed. He also spent $24,000 on travel to the Army-Navy football game.


Facebook

The Facebook Oversight Board upheld the company’s decision to suspend Trump from the platform, but did not weigh in on if the suspension should be permanent or how long it should last. The board, which is largely made up of lawyers and professors, ruled that “Trump’s posts during the Capitol riot severely violated Facebook’s rules and encouraged and legitimized violence.” At the same time, it criticized the platform’s policies, directing Facebook to write rules regarding the matter and return to the board for review – meaning, Trump’s account could still be reinstated.

For more on the moderation aspect of the decision, see this interview by The Verge:

Nilay Patel, Verge: I think they punted specifically because they said, “You need to come up with a proportionate response to Trump’s actions and come back to us in six months with that response based on any rule,” which sounds like, “Someone’s got to reinstate Trump to Facebook and it’s not going to be us. We’re telling you that an indefinite ban is not acceptable. There’s no rule that says indefinite bans exist. But we’re not going to tell you the term of an indefinite ban.”

Kate Klonick, a law professor at St. John’s University: …But I think that it’s a good argument. Because I do think that may be right. But they want that finality of that decision. They want Facebook to have said that that’s what’s at stake. And they don’t want to have to say it for them. And maybe it’s like punting the issue because they don’t want to deal with it. But they’re going to have to deal with it one way or the other when this comes back.

Trump’s inner circle reportedly views Facebook as integral to a potential 2024 presidential run, given his popularity on the platform and its unparalleled power to microtarget supporters for fundraising. “A return to Facebook would open major fundraising spigots that further cement Trump’s hold on the Republican Party,” Politico. In the run up to the 2020 election, Trump’s Facebook page had 336.39 million total interactions, while Biden’s page had only 48.24 million. Trump’s posts were also shared roughly six times as much as his successor’s.

  • Claims that Facebook is biased against conservative are proven false by actual data: Rightwing pages earned nearly 9 billion likes or comments last year, compared to 5 billion interactions on left-leaning pages. 6 of the top 10 political news pages last year were right-leaning. Even now, post-Trump, 7 of the top 10 the top performing link posts are rightwing, with evangelist Trump supporter Frankline Graham, conservative pundit Ben Shapiro, and rightwing commentator Dan Bongino taking up the top political spots.

Conflicts of interest

Tommy Beaudreau, Biden’s choice for deputy interior secretary, has drawn attention for a long list of conflicts of interest stemming from his work in the private sector. Beaudreau’s recent financial disclosure (PDF) reported work for 35 clients in the energy business, including fossil fuel drillers and offshore wind developers. His potential conflicts of interest dwarf those of Trump’s first Interior Secretary David Bernhardt who worked for 17 energy sector clients – and his annual income more than doubled Bernhardt’s, at $2.4 million to $1.1 million.

“To me, it’s pretty disqualifying,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “This is a massive amount of conflict, and frankly he has biases that I think are going to be difficult to reconcile.”

…His clients in recent years have included coal mining company Arch Resources Inc., multinational mining and petroleum firm BHP, Dominion Energy Inc., fossil fuel giant Total SE, as well as offshore drillers and pipeline developers. He also provided legal services to a number of renewable energy companies, including Vineyard Wind and Avangrid Renewables, and to two development projects connected to Saudi Crown Prince Mohammed bin Salman.

Beaudreau was nominated to the position after Biden’s first choice was opposed by senators from fossil-fuel-rich states: Sens. Joe Manchin (D-WV) and Lisa Murkowski (R-AK) objected to Elizabeth Klein’s nomination because they “felt that Haaland and Klein would be a difficult team for the oil and gas industry to work with, as both have prioritized fighting climate change.”

Another of Biden’s nominees, Jose Fernandez, is facing questions about his suitability for a top State Department role given his past work for Saudi Arabia’s Public Investment Fund and other big oil companies. Fernandez, who was nominated to lead the State Department’s environmental and economic growth program, provided “legal services” to Saudi Arabia’s sovereign wealth fund and worked for Chevron, Occidental Petroleum, and SK E&P.

“How could you ever expect someone who was paid by an arm of a foreign country to then, once he’s in government, respond to the public pressure to distance ourselves from this very controversial nation?” [said Elias Alsbergas of the Revolving Door Project.]


Immigration judges

Attorney General Merrick Garland announced the administration’s first immigration judges – a slate of 17 made up of former ICE attorneys and prosecutors. Furthermore, many of the judges were initially selected during Trump’s administration and almost none have experience advocating for migrants (list), angering those who have been calling for Biden to bring change to the federal courts.

“This is a list I would have expected out of Bill Barr or Jeff Sessions, but they’re not the attorney general anymore. Elections are supposed to have consequences,” said Paul Schmidt, now an adjunct professor at Georgetown Law School after 21 years as an immigration judge. That included time serving as the chair of the Board of Immigration Appeals, the highest administrative body dealing with immigration cases.

“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring — not prosecutorial re-treads,” he added.

Further reading: “The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool,” SPCL.


USPS and DeJoy

The Senate Homeland Security Committee advanced all three of President Biden’s USPS governing board nominees, setting them up for a full Senate vote. Ranking Member Sen. Rob Portman (R-OH) was the only Republican to vote for all three nominees: Ron Stroman, deputy postmaster general; Amber McReynolds, voting rights activist; and Anton Hajjar, former general counsel of the American Postal Workers Union.

There is now more doubt about whether the USPS governing board will have enough votes to oust Postmaster General Louis DeJoy: Trump-appointed Democrat Ron Bloom recently expressed support for DeJoy, saying he “is the proper man for the job” and “he’s earned my support.”

“The entire board and then Mr. DeJoy should be handed their walking papers,” Rep. Bill Pascrell, Jr. (D-N.J.) told the Washington Post last week. “Their unquestioning support for this postmaster general is unacceptable.”

DeJoy is moving ahead with his plan to “achieve financial sustainability” by closing 18 mail processing facilities, in what the American Postal Workers Union called “a slap in the face of postal workers.” The Postal Service promised not to lay off any employees as a result of the consolidations but will lay off non-bargaining unit employees if an insufficient number accept early retirement offers.

DeJoy and USPS leadership has also come under fire recently for ordering the Inspection Service arm to track Americans’ social media posts following the outbreak of racial justice protests last year. From what little we know about its activities, the Internet Covert Operations Program (iCOP) focused on the rightwing accounts on Parler and Facebook, leading to criticism from Republicans. Some, like Rep. Andy Biggs of Arizona, vowed to support legislation to limit iCOP’s authority.

A GOP aide told Yahoo News that Barksdale noted that the FBI and the Department of Homeland Security could not be relied upon to do this work because they don’t have the ability to send text messages alerting mail carriers to nearby danger.

…it does appear that DeJoy was personally involved in the program’s shift toward social media surveillance. A GOP aide said that after DeJoy was appointed postmaster general in 2020, he reallocated some of the eight-person iCOP team, currently staffed with only five analysts, to focus on protesters.

Sen. Tammy Duckworth has called on Biden to fire the entire board of governors, saying they made a “disastrous personnel choice” in choosing DeJoy, whose “devastating consequences” she called a “sunk cost that cannot be undone.” It appears that Biden has chosen not to go this route.

”While Postmaster General DeJoy rushed to implement these changes, he did so with little – if any – public rebuke from the current USPS Board of Governors. There must be accountability for this failure in leadership, and that is why I am requesting that you use your authority under 39 U.S.C. § 202 to immediately replace the entire USPS Board of Governors. There should not be any toleration for their silence or complicity in overseeing these harmful policy changes that have also eroded the public trust in this agency.” Letter


Inmates in limbo

Thousands of federal inmates that were sent home to serve sentences under supervision during the pandemic are set to return to prison under a Trump-era policy. Roughly 7,500 people – some with years to go on their sentences – are currently on home confinement, reconnecting with family and establishing themselves in their community. They were not told they may have to return to prison and are now in a state of limbo waiting for the Federal Bureau of Prisons to decide their fate.

More than two dozen members of Congress sent President Joe Biden a letter last month urging his administration to reverse a last minute Trump administration memo that would re-incarcerate these former inmates:

“The vast majority of those people on home confinement today have reunited with their families and are working and contributing to society. They were not told they would have to return to prison and forcing them to do so would be cruel and devastating. You rightly pledged to reduce the federal prison population. Sending thousands of people back to federal prison who have already proven that they do not need to be there would undermine this commitment and would undermine, not advance, public safety.”



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