Garrett M Graff writes:

When the history books are written, Rod Rosenstein might just be the most interesting figure of the Russia investigation—the beleaguered deputy attorney general whose memo in his first days on the job was used to justify the firing of James Comey.

After that he quickly appointed Robert Mueller as the special counsel and spent the following year supervising his investigation while under immense pressure from President Trump and congressional wolves seeking to undermine his credibility, even impeach him.

As congressional Republicans have sought to undermine the Justice Department’s integrity and independence, Rosenstein has made numerous short-term, tactical concessions to his critics, bending traditional rules and handing over documents to Congress about confidential sources and ongoing investigations—compromises that previous administrations would never have made.

Why would anyone put up with the abuse, vitriol, and daily haranguing from the president’s Twitter account that Rosenstein has endured? Why would Rosenstein seemingly set precedents that undermine the core principles of the Justice Department, an institution that he’s devoted nearly his entire career to serving?

I have a simple theory: In a world of hedgehogs and foxes, Rosenstein today is the ultimate hedgehog.

Rosenstein knows one very big, monumental, history-shaping thing—how Trump’s presidency will end—and he’s wagered that if he can hang on long enough, justice will be done and the good guys, in his eyes, will win. His early actions, around Comey’s firing, will be vindicated by history when seen by the light of his bravery and personal sacrifice and refusal to be bullied into quitting, a move that would almost surely lead to Mueller’s investigation being shut down or circumscribed by whichever Trump appointee takes over supervising it next. [Continue reading…]

Adam Davidson writes:

Even before the financial crisis of 2008, Trump found it increasingly difficult to borrow money from big Wall Street banks and was shut out of the rapidly growing pool of institutional investment. Faced with a cash-flow problem, he could have followed other storied New York real-estate families and invested in the ever more rigorous financial-due-diligence capabilities required by pension funds and other sources of real-estate capital. This would have given him access to a pool of trillions of dollars from investors.

Instead, Trump turned to a new source of other people’s money. He did a series of deals in Toronto, Panama, the Dominican Republic, Azerbaijan, and Georgia with businesspeople from the former Soviet Union who were unlikely to pass any sort of rigorous due-diligence review by pension funds and other institutional investors. (Just this week, the Financial Times published a remarkably deep dive into the questionable financing of Trump’s Toronto property.) He also made deals in India, Indonesia, and Vancouver, Canada, with figures who have been convicted or investigated for criminal wrongdoing and abuse of political power.

We know very little about how money flowed into and out of these projects. All of these projects involved specially designated limited-liability companies that are opaque to outside review. We do know that, in the past decade, wealthy oligarchs in the former Soviet Union and elsewhere have seen real-estate investment as a primary vehicle through which to launder money. The problem is especially egregious in the United Kingdom, where some have called the U.K. luxury real-estate industry “a money laundering machine.” Golf has been a particular focus of money laundering. Although the U.K. has strict transparency rules for financial activity within the country, its regulators have been remarkably incurious about the sources of funds coming from firms based abroad. All we know is that the money that went into Turnberry, for example, came from the Trump Organization in the U.S. We—and the British authorities—have no way of knowing where the Trump Organization got that money.

The goal of laundering money is to take the proceeds of a criminal activity—government corruption, tax fraud, drug trade, or many others—and to disguise its origin. Many oligarchs in the former Soviet Union who made their money by expropriating the state’s wealth want to move their money into a more stable nation with greater rule of law. This presents a challenge: How can one insert illegally obtained funds into a system that requires due diligence? The answer, quite often, is to use shell companies to disguise the flow of funds. Although we cannot say that Trump himself knowingly engaged in money laundering, we do know with certainty that much of his business in the past decade was in the industries most known for money laundering, in the locations most conducive to money laundering, and with people who bear the key hallmarks of money launderers. [Continue reading…]

The Washington Post reports:

Before he embarked on a week of transatlantic diplomacy, President Trump sat down with Deputy Attorney General Rod J. Rosenstein, who previewed for the boss an explosive development: The Justice Department would soon indict 12 Russian intelligence officers for hacking Democratic emails to interfere with the 2016 U.S. presidential election.

For the first time, the United States would be charging Russian government agents with planning and executing a sustained cyberattack to disrupt America’s democratic process. Yet Trump gave no sign in his commentary in Europe this week that he appreciated the magnitude of what he had been told was coming.

Instead, he repeated his frequent attacks on the integrity of the wide-ranging Russia probe led by special counsel Robert S. Mueller III — while offering kind words for Russian President Vladi­mir Putin, who he is slated to meet here in Helsinki on Monday. [Continue reading…]

Noah Feldman writes:

Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted.

Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.

The key texts here Kavanaugh’s 2009 article in the Minnesota Law Review and his 1998 article in the Georgetown Law Journal.

In the 2009 piece, Kavanaugh, then newly appointed as a judge, acknowledged that in the 1990s, when he was working for independent counsel Ken Starr on the Bill Clinton investigation, he thought the president should be subject to criminal investigation while in office. But, he said, after working for George W. Bush in the White House, he had come to realize that the demands of the presidency required all the president’s attention. He even implied that the Starr investigation distracted Clinton from focusing on Osama bin Laden.

Now comes the tricky part. In 2009, Kavanaugh proposed that Congress might pass a law that would protect the president from investigation and indictment while in office. That’s the part that some Democrats are focusing on now — because Kavanaugh was saying that he thought it was a bad idea to go after the president.

But from a legal and constitutional perspective, Kavanaugh wasn’t saying that the courts should find that the president shouldn’t be investigated or indicted. To the contrary. He was saying that Congress should pass a law ensuring that result, because without it, the president was open to being investigated — and maybe even indicted.

Pause to take that in. If a law by Congress is necessary to fix the problem, it follows that without such a law, it is perfectly permissible under the Constitution to investigate a sitting president, as Starr did. [Continue reading…]

Ian Millhiser writes:

If you could grow a judge in a vat, and design every moment of their life to appeal perfectly to the Republican establishment, the man who would emerge fully-formed from that vat would be Brett Kavanaugh. A two-time Yale graduate, Kavanaugh clerked for the retiring Justice Anthony Kennedy, worked for Bill Clinton inquisitor Ken Starr, and served as one of President George W. Bush’s top White House aides.

Kavanaugh was a frequent opponent of President Barack Obama’s Environmental Protection Agency (EPA), and he ruled against abortion rights in one particularly heart-wrenching case. Judge Kavanaugh is smart, understands the inner workings of the federal government as well as any judge, and, if confirmed to replace Kennedy on the Supreme Court, is likely to play a major role in neutering agencies like the EPA and the Department of Labor.

Yet it is also worth noting that, when faced with conservative litigants seeking maximalist remedies from his court, Kavanaugh sometimes looked for narrow solutions. He would have allowed the Trump administration to delay some women’s abortions, for example, without ruling that these women could be denied an abortion altogether. Judge Kavanaugh’s record indicates that he is very conservative, but that he may not be a nihilist in the vein of Neil Gorsuch. [Continue reading…]

David Cole writes:

At the close of his opinion upholding President Donald Trump’s ban on immigrants from five predominantly Muslim countries, Chief Justice John Roberts proclaimed on Tuesday that “Korematsu has nothing to do with this case.” He went on to write that Korematsu v. United States, the 1944 decision that backed the internment of Japanese citizens and immigrants based on their race, “was gravely wrong the day it was decided, has been overruled in the court of history and—to be clear—has no place in law under the Constitution.”

Strong words. But actions speak louder. Even as he acknowledged the court’s error in Korematsu, Roberts repeated it, virtually verbatim, in Trump v. Hawaii. Here, as in Korematsu, the president targeted a vast group of people based on prejudice. Here, as in Korematsu, the president defended his action by citing national security, but offered no evidence to support the assertion. And here, as in Korematsu, the court accepted those unsubstantiated national security concerns without question, applied only the most anemic judicial review, and rubber-stamped the president’s actions. Just as the court would in no other context accept such blatant racial discrimination as that imposed on Japanese Americans during World War II, so the court would in no other setting accept the rampant bias President Trump showed toward the Muslim faith in the travel ban. In both cases, the court deferred to the prejudice of the powerful and abdicated its duty to protect the rights of the vulnerable.

Indeed, as one commenter on Twitter noted, if Korematsu really had nothing to do with Trump v. Hawaii, the court could just as well have announced its overruling of the 1944 decision in its antitrust ruling the day before. But, of course, Korematsu had everything to do with the travel ban case. That’s why Roberts felt compelled to try, unpersuasively, to distinguish it. But if anything, the distinctions cut the other way, making the court’s blessing of the travel ban even less explicable. The internment—and the decision allowing it—was the product of a true wartime national emergency. Today, the permanent “war on terror” lingers on, but there is no threat to the US that is equivalent to those posed by Nazi Germany or Imperial Japan in the 1940s. [Continue reading…]

Mark Joseph Stern writes:

Justice Anthony Kennedy’s retirement from the Supreme Court shocked liberals so deeply that some haven’t quite accepted that his decision to step down was on the up and up. A New York Times report on the Trump administration’s quest to nudge Kennedy off the bench has spawned a series of conspiracy theories that revolve around one detail in the piece: The justice’s son, Justin Kennedy, worked at Deutsche Bank when it loaned Trump more than $1 billion. Deutsche Bank loaned money to Trump when no other banks would, and it plays a still-mysterious role in Robert Mueller’s Russia investigation.

What if anything is going on here? ThinkProgress calls the connection between Trump and the Kennedy family a “suspicious business relationship,” while the New Republic labels it “shady.” Richard Painter, George W. Bush’s former chief ethics council—who is now a candidate in Minnesota’s Democratic Senate primary—tweeted that the “circumstances of Anthony Kennedy’s resignation must be investigated by the Senate Judiciary Committee before any replacement is considered,” adding, “The Constitution does not give Trump the power to use underhanded means to induce Supreme Court resignations.”

How might Trump have “induced” the justice’s retirement? The logic here is fuzzy because there’s no clear quid pro quo: Kennedy’s son loaned Trump money, and in return, Trump … did nothing in particular for Kennedy but got the justice to give up his Supreme Court seat? While that doesn’t make much sense, Neera Tanden, president of the Center for American Progress, hinted at this theory of the case in a viral tweet. Snopes spells out two other hypotheses: First, that Trump “somehow leveraged his financial connections with Kennedy’s son Justin to convince or coerce the jurist to retire”; second, that Trump ousted the justice so he could “nominate a friendly successor who would vote favorably on any issues involving Justin Kennedy that might come before the court” if the younger Kennedy’s name were to come up in the Mueller probe. The implication of both theories is that the administration somehow extorted Kennedy to quit the court. This is hogwash.

As the New Yorker’s Adam Davidson has noted, there is reason for reporters to look into Justin Kennedy’s relationship with Trump, particularly in light of Deutsche Bank’s Russian money laundering scandal. Kennedy, though, left the bank in 2009, well before it enabled the Russian money laundering scheme—and for that matter, before Trump had a serious political career. The ostensible Russia connection, then, amounts to nothing. [Continue reading…]

Noah Feldman writes:

In what may be the worst decision since the infamous Korematsu case, when the Supreme Court upheld the internment of Japanese-Americans during World War II, the court today by a 5-4 vote upheld President Donald Trump’s Muslim travel ban.

Like the Korematsu decision, Trump v. Hawaii elevates legal formalities as a way to avoid addressing what everyone understood is really at issue here — namely, prejudice. Chief Justice John Roberts’s majority opinion downplays Trump’s anti-Muslim bias, focusing instead on the president’s legal power to block immigration in the name of national security.

The decision will be a stain not only on the legacy of the Roberts court, but on that of the Supreme Court itself. The court tried to compensate by saying how bad the Korematsu decision was. And Justice Anthony Kennedy wrote a separate concurrence in which he hints that perhaps the lower courts could reconsider the question of anti-religious animus. But these efforts are far too little to save the court, or Kennedy, from the judgment of history, which will be harsh. [Continue reading…]