HOW TO EVALUATE TRUMP/RUSSIA REVELATIONS AND WHAT TO DO ABOUT THEM: THE RULES OF CIRCUMSTANTIAL EVIDENCE

It is an interesting time for those in the U.S. who are searching for a ways to disempower Mr. Trump and his Republican sheep before the air and water are completely fouled, or we all go up in a mushroom cloud. We are fortunate that the ongoing morphing of journalism into entertainment had not quite reached its final stages when Trump & Co. arrived on the wings of gerrymandering and voter suppression. The press is the principal hope anyone has for learning the full extent of this corrupt administration. Full marks to the few remaining actual journalists who are hard at work on that. The advice that follows applies to them, as well as bewildered members of the public.

What do the facts the press uncovers almost daily mean? How should they be evaluated? What is the story to which they relate?

In order to assess intelligently the mounting evidence of corruption in the Trump/Russia story and to use it meaningfully, some focus is necessary.

First, ignore the daily juvenile tweet diatribes. True, it is unsettling to witness the rantings of a clearly disturbed person in high office. But other than being evidence of early onset dementia or other mental illness, the tweets are not newsworthy.

Second, understand clearly that the important Trump/Russia story is not about Russian interference with U.S. democracy. It is regrettable that much of the media continues to chase that angle. If that theme might help one Republican office holder or another belatedly decide to do the right thing, fine. Use it.   But whatever the extent of that story, the U.S. long ago lost any right to complain about interference in its government machinery by other countries.

“Too numerous to mention” is the phrase that comes to mind when cataloging U.S. interventions in the affairs and elections of others…. Guatemala, Nicaragua, Iran, Cuba, Dominican Republic, Panama, Grenada, etc. If the current meddler were any one on this list instead of the crime syndicate that is currently the Russian government, this would be simply a story of chickens coming home to roost.

Moreover, the well-documented election interference Mr. Trump continues to deny was at least nonviolent. Primarily, it was in the form of lies and misinformation pitched to a public whose education system has been devoid of critical thinking instruction for decades. In contrast, U.S. interference usually takes the form of engineering violent coups, arming proxy forces, or simply invading. Come to think of it, we are approaching the centennial of the invasion of Russia by the U.S. and fourteen other countries.

The real story of Trump/Russia is not about democracy. It is about money. It is about whether a small group of people, led by Donald Trump, is acting to use public power and public money for their personal gain. It is more than a story about greed. It is a story about people whose very concept of themselves is defined by money. If that is the charge, what is the evidence for it and what do we do with it?

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Let’s look at how the rules of circumstantial evidence can help sort out the daily revelations. I am a trial lawyer. I cannot help but view each revelation through the prism of rules that would apply if this story was seen as a trial to determine the guilt or innocence of Mr. Trump and his associates on the charge I have described. The rules of evidence make sense. Developed over many years, they help juries reach fair verdicts. They are equally helpful outside the courtroom, especially in this case.

The TV drama narrative is that circumstantial evidence makes only a weak case. (“We have to let him go, Mack. All we have is circumstantial evidence.”) In truth, however, as I can personally attest to from losing trials, circumstantial evidence is very powerful. The general rule is that in order to support a guilty verdict, circumstantial evidence must exclude every reasonable possibility of innocence. That means the inferences that jurors draw from facts they accept as true are critical. They must be reasonable inferences, but the number and nature of those reasonable inferences can cast a net from which there is no escape. Witnesses can be attacked in numerous ways. Dealing with the implications flowing from a host of incriminating circumstances is much more difficult.

Jurors weighing circumstantial evidence are not limited in the number of circumstances they may consider, so long as a circumstance is relevant to the issue they are deciding. The simple definition of relevance of any evidence is whether, if accepted as fact, it tends to make more likely or less likely the truth of something that one side or the other must or may prove. Relevance here is application of the circumstantial evidence test to the question of whether the Trump/Russia connection is grounded in a cooperative venture for the mutual benefit of Russian oligarchs and organized crime figures on one side, and the Trump family and its business enterprises on the other.

A trial judge may explain this test of relevance to jurors, but it is left to them, as it is to us, to decide which circumstances meet its requirements. It should be noted, however, that even the slightest tendency to point one way or another is sufficient to establish relevance in law.

It is important to note here the differences between drawing reasonable inferences from circumstances and conspiracy theories. The latter feature either wildly unreasonable inferences or completely fictional circumstances.

By way of a few examples, and not limiting the multitude of circumstances relevant to an allegation of corruption, consider:

—  Evidence: Trump refuses to release his tax returns.  Reasonable inferences?

— Evidence: Trump says inquiry into his personal finances could trigger firing Trump/Russia special prosecutor.  Reasonable inferences?

–Evidence: Trump enterprises are habitually deeply in debt with few banks willing to lend. At critical points in the past, Russian oligarchs have bailed them out, spending for example, $98 million for Trump properties in Florida. Reasonable inferences?

–Evidence: Russian oligarchs and crime figures need places to launder money stolen from the Russian people. Since 1980’s they have used various Trump entities for that purpose. In 2015, the Trump Taj Mahal was fined a record $10 million after admitting violation of money laundering laws for years. Reasonable inferences?

–Evidence: Trump fired FBI Director Comey, who has testified under oath that Trump asked him to go easy on the Russia investigation. Trump continues to denigrate the Attorney General, who recused himself from the investigation, but stands between Trump and any opportunity to replace the Deputy who appointed a Trump/Russia independent counsel. Reasonable inferences?

–Evidence: Corrupt Russian oligarchs were prominent in the June 2016 meeting with Donald Trump Jr. and Jared Kushner. Trump personally dictated a statement given by Trump Jr. that the meeting was about a Russian ban on U.S. adoptions. The Russian ban was in retaliation for the adoption of the Magnitsky Act, which is a statutory impediment to money laundering. Reasonable inferences?

(For more well-documented circumstances in the story of Trump, Russians, and money laundering, see Craig Unger, Trump’s Russian Laundromat, New Republic, July 13, 2017. For even more circumstances, simply follow the daily news.)

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 As more journalists are coming to realize, the question of whether Trump and his family have committed crimes is not the most important aspect of the story. U.S. laws on corruption are so weak that it almost requires the NFL’s “indisputable video evidence” to convict anyone. (See Zephyr Teachout’s excellent 2014 book Corruption in America) Still, the last time I checked money laundering was still a crime.

Continuing with the example of a trial that remains for now  hypothetical, counsel would be entitled to make a closing argument, telling the jurors what they contend the evidence shows. Were I to prosecute such a case, I would argue that the circumstances listed above, and many others I had presented, exclude every reasonable possibility of innocence and point unerringly to guilt. I would also remind jurors that, while they were to make a decision based only on the evidence presented, the law permits them to rely on their common sense and life experience. I would argue that this allows them to conclude that the favors extended to Trump enterprises by the Russians were not done from the goodness of their oligarchical hearts, with no expectation of something in return.

In my practice, I rarely made pubic statements. In this case, however, whatever the verdict I would go outside after the trial and make this statement: This case was always about the money and that is the explanation for the Trump/Russia connection. That is what the June 1916 meeting was almost certainly about. Donald Trump’s self-esteem is inextricably intertwined with money. All his life he has sought and obtained money (though not nearly as much as he says he has), without the benefit of ethical constraints and with only a passing relationship to the truth. He has needed neither truth nor ethics to game the U.S. legal and financial system. He is quite confident that he can succeed in the same manner with the political system.

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If, as I have, you conclude that the charge is true, what can be done? Inaction or hand wringing is insufficient. Trump and his allies are hurting real people. I suggest the following.

First, face the reality of the obstacles. Just understanding what has been written here will be a challenge to millions who have not been taught to think critically and whose own identity is shaped in part by acceptance of the the false story that there are rich folks who are really concerned about the “little guy” and that they themselves can become rich if those “others” can be prevented from taking everything from them. Many of them will not contest the uncontestable facts. They will simply dismiss the truth as the product of jealous “elitists”.

Such people will not be persuaded by evidence alone, no matter how compelling. They must be shown the effect of the corruption on some aspect of their daily lives. (See, e.g. the failed ACA repeal effort.)

Second, recognize that there will be no impeachment and probably no criminal trial.

Once the focus is on the real story and not distractions and futile hopes, what can be done to minimize the harm to the country, its people and institutions? Combatting this unusual union of faux populist corruption will require creativity, especially when it emanates from such a position of power. Here are a few thoughts.

On the practical side, of course, every effort must be made to overcome the gerrymandering and voter suppression. Lawsuits, registration drives, and assistance in getting documentation will help.

The focus of opposition must be broader than the Trumps and their business. Sane Republicans, for example, should be urged to start recruiting candidates for primary challenges to the genteel extremists who are enabling this administration. (My Virginia roots bring one example to mind: Rep. Bob Goodlatte, who, I hasten to point out, graduated from Washington and Lee Law School before I joined the faculty.) There are too many sheep in Congress who fear the far right. It is not a given that incumbent extremists remain party nominees.

While the story plays out, an important component of harm reduction will be non-cooperation and obstruction of oppressive laws, particularly those passed by state legislatures. Frustrate and litigate. The Texas legislature, for example, is on a mission to override every humane local ordinance and run the entire state from Austin. Michigan has already accomplished much of that. The goal should be something federal Republicans did very well during the last administration: run out the clock and hope things improve.

This analysis and advice is free, which could be an indication of its worth. But in the current maelstrom, I hope it is of some help in focusing on what matters. I voted with my feet many years ago, but I have friends and family that I love in the U.S. and in my legal career I was privileged to represent many of the people who are being harmed most by this corrupt government. Best wishes from Canada.

 

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