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Tag: Norm Eisen

  • Could Trump destroy the Epstein files?

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    WASHINGTON — In political exile at his mansion in Florida, under investigation for possessing highly classified documents, Donald Trump summoned his lawyer in 2022 for a fateful conversation. A folder had been compiled with 38 documents that should have been returned to the federal government. But Trump had other ideas.

    Making a plucking motion, Trump suggested his attorney, Evan Corcoran, remove the most incriminating material. “Why don’t you take them with you to your hotel room, and if there’s anything really bad in there, like, you know, pluck it out,” Corcoran memorialized in a series of notes that surfaced during criminal proceedings.

    Trump’s purported willingness to conceal evidence from law enforcement as a private citizen is now fueling concern on Capitol Hill that his efforts to thwart the release of Justice Department files in the Jeffrey Epstein investigation could lead to similar obstructive efforts — this time wielding the powers of the presidency.

    Since resuming office in January, Trump has opposed releasing files from the federal probe into the conduct of his former friend, a convicted sex offender and alleged sex trafficker who is believed to have abused more than 200 women and girls. But bipartisan fervor has only grown over the case, with House lawmakers across party lines expected to unite behind a bill on Tuesday that would compel the release of the documents.

    Last week, facing intensifying public pressure, the House Oversight Committee released over 20,000 files from Epstein’s estate that referenced Trump more than 1,000 times.

    Those files, which included emails from Epstein himself, showed the notorious financier believed that Trump had intimate knowledge of his criminal conduct. “He knew about the girls,” Epstein wrote, referring to Trump as the “dog that hasn’t barked.”

    Rep. Dave Min (D-Irvine), a member of the oversight committee, noted Trump could order the release of the Justice Department files without any action from Congress.

    “The fact that he has not done so, coupled with his long and well documented history of lying and obstructing justice, raises serious concerns that he is still trying to stop this investigation,” Min said in an interview, “either by trying to persuade Senate Republicans to vote against the release or through other mechanisms.”

    A spokesperson for Sen. Adam Schiff (D-Calif.) said that altering or destroying portions of the Epstein files “would violate a wide range of federal laws.”

    “The senator is certainly concerned that Donald Trump, who was investigated and indicted for obstruction, will persist in trying to stonewall and otherwise prevent the full release of all the documents and information in the U.S. government’s possession,” the spokesperson said, “even if the law is passed with overwhelming bipartisan support.”

    After the House votes on the bill, titled the Epstein Files Transparency Act, bipartisan support in the Senate would be required to pass the measure. Trump would then have to sign it into law.

    Trump encouraged Republican House members to support it over the weekend after enough GOP lawmakers broke ranks last week to compel a vote, overriding opposition from the speaker of the House. Still, it is unclear whether the president will support the measure as it proceeds to his desk.

    On Monday, Trump said he would sign the bill if it ultimately passes. “Let the Senate look at it,” he told reporters.

    The bill prohibits the attorney general, Pam Bondi, from withholding, delaying or redacting the publication of “any record, document, communication, or investigative material on the basis of embarrassment, reputational harm, or political sensitivity, including to any government official, public figure, or foreign dignitary.”

    But caveats in the bill could provide Trump and Bondi with loopholes to keep records related to the president concealed.

    “Because DOJ possesses and controls these files, it is far from certain that a vote to disclose ‘the Epstein files’ will include documents pertaining to Donald Trump,” said Barbara McQuade, who served as the United States attorney for the eastern district of Michigan from 2010 until 2017, when Trump requested a slew of resignations from U.S. attorneys.

    Already, this past spring, FBI Director Kash Patel directed a Freedom of Information Act team to work with hundreds of agents to comb through the entire trove of files from the investigation, and directed them to redact references to Trump, citing his status as a private citizen with privacy protections when the probe first launched in 2006, Bloomberg reported at the time.

    “It would be improper for Trump to order the documents destroyed, but Bondi could redact or remove some in the name of grand jury secrecy or privacy laws,” McQuade added. “As long as there’s a pending criminal investigation, I think she can either block disclosure of the entire file or block disclosure of individuals who are not being charged, including Trump.”

    Destroying the documents would be a taller task, and “would need a loyal secretary or equivalent,” said Rhodri Jeffreys-Jones, a professor emeritus and FBI historian at the University of Edinburgh.

    Jeffreys-Jones recalled J. Edgar Hoover’s assistant, Helen Gandy, spending weeks at his home destroying the famed FBI director’s personal file on the dirty secrets of America’s rich and powerful.

    It would also be illegal, scholars say, pointing to the Federal Records Act that prohibits anyone — including presidents — from destroying government documents.

    After President Nixon attempted to assert executive authority over a collection of incriminating tapes that would ultimately end his presidency, Congress passed the Presidential Recordings and Materials Preservation Act, asserting that government documents and presidential records are federal property. Courts have repeatedly upheld the law.

    While presidents are immune from prosecution over their official conduct, ordering the destruction of documents from a criminal investigation would not fall under presidential duties, legal scholars said, exposing Trump to charges of obstructing justice if he were to do so.

    “Multiple federal laws bar anyone, including the president or those around him, from destroying or altering material contained in the Epstein files, including various federal record-keeping laws and criminal statutes. But that doesn’t mean that Trump or his cronies won’t consider trying,” said Norm Eisen, who served as chief ethics lawyer for President Obama and counsel for the House Judiciary Committee during Trump’s first impeachment trial.

    The Democracy Defenders Fund, a nonprofit organization co-founded by Eisen, has sued the Trump administration for all records in the Epstein investigation related to Trump, warning that “court supervision is needed” to ensure Trump doesn’t attempt to subvert a lawful directive to release them.

    “Perhaps the greatest danger is not altering documents but wrongly withholding them or producing and redacting them,” Eisen added. “Those are both issues that we can get at in our litigation, and where court supervision can be valuable.”

    Jeffreys-Jones also said that Trump may attempt to order redactions based on claims of national security. But “this might be unconvincing for two reasons,” he said.

    “Trump was not yet president at the time,” he said, and “it would raise ancillary questions if redactions did not operate in the case of President Clinton.”

    Last week, Trump directed the Justice Department to investigate Epstein’s ties to Democratic figures, including Clinton, former Treasury Secretary Larry Summers, and Reid Hoffman, LinkedIn’s co-founder and a major Democratic donor.

    He made no request for the department to similarly investigate Republicans.

    Times staff writer Ana Ceballos contributed to this report.

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    Michael Wilner

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  • How Do You Actually Stop the Steal?

    How Do You Actually Stop the Steal?

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    Preventing the next attempt to overturn an election is a bit like playing whack-a-mole. Plug one gap in the nation’s rickety, interlocking system for counting votes—say, by ensuring that a power-hungry vice president cannot unilaterally declare his or her ticket the winner—and another pest seems to materialize immediately.

    Congress is confronting this reality as it tries to rewrite a 135-year-old law governing the final, fraught act of certifying the Electoral College results—the very statute that former President Donald Trump used as a pretext to demand that then–Vice President Mike Pence anoint him the victor on January 6, 2021. Last month, a bipartisan group of senators announced, to substantial fanfare, that it had reached an agreement to revise the 1887 Electoral Count Act. But closing off every path to subversion is proving to be a tricky task.

    The legislation is modest in scope; its aims are not. The proposal’s authors believe that its enactment is necessary to guarantee that the violent insurrection that occurred last time around does not become a quadrennial affair. “That happened. It was real. It was not a visit from friends back home,” Democratic Senator Joe Manchin of West Virginia, Congress’s most famous centrist and a co-sponsor of the bill, testified Wednesday at a hearing on the measure. “And we have a duty to ensure that it never happens again.”

    Election-law experts across both parties agree that the Senate proposal, known as the Electoral Count Reform Act, would resolve legal ambiguities that Trump and his allies tried to exploit before the transfer of power. As written, the bill would clarify that the vice president, regardless of party, has only a ministerial role in presiding over Congress’s certification of the Electoral College vote. The proposal would also make it harder for members of Congress to raise objections to a state’s electors; doing so would require support of at least one-fifth of the members in each chamber, rather than just one in both the House and the Senate, as it stands now. Another provision seeks to head off rogue state legislatures by ensuring that they respect the outcome of their popular vote as determined by the laws that were in place at the time of the election.

    Read: Kamala Harris might have to stop the steal

    The proposed changes “set us on a path to reform that represents an extraordinary bipartisan achievement,” Bob Bauer, a longtime Democratic election lawyer who served as White House counsel in the Obama administration, told the Senate Rules Committee. “The proposals before the committee represent a vast improvement over existing law. There can be no question about that—none whatsoever.”

    Actually, there were a few questions. Appearing on the same panel, another Democratic lawyer, Norm Eisen, conceded that the Electoral Count Reform Act marked “a significant step forward” in efforts to thwart another attempt to overturn the presidential election. But he warned that, as written, the proposal “could invite unwelcome manipulation.” Eisen highlighted a pair of provisions that he said could be exploited by governors trying to ignore or outright reject the popular vote in their state.

    One would set a six-day window to challenge the certification of an election by a governor. The goal is to ensure that legal disputes are resolved in time for the Electoral College to meet in December and then for Congress to certify the results in January. But, Eisen pointed out, that time frame could actually play to the advantage of a governor who certified the wrong winner rather than the candidate who clearly won his or her state’s election. “It just doesn’t work,” he told the committee.

    Another provision Eisen flagged would bar states from declaring a “failed election” while allowing them to change or extend their elections because of “extraordinary and catastrophic events.” The point is to give states some flexibility to alter elections for legitimate reasons, as in the case of a terrorist attack or a natural disaster; the attacks of September 11, 2001, for example, occurred on a pivotal election day as New Yorkers prepared to choose their next mayor. (New York City postponed its primary by two weeks.) The bill, however, doesn’t clearly define what constitutes “extraordinary and catastrophic events.” That, too, presents an opportunity for “mischief” by election-denying state officials, Eisen warned. What if a governor alleged, without evidence, rampant voter fraud and deemed that “an extraordinary event” that warranted a re-vote?

    Eisen’s concerns are shared by another prominent Democratic election lawyer, Marc Elias, who successfully fought in court many of the challenges that Trump and other Republicans brought against the 2020 results. Part of their complaint is the bill’s narrow scope: In order to win Republican support for any changes to election law, Democrats had to jettison their much broader dreams of enacting stronger protections for voting rights and minimum federal standards for access to the polls.

    But Eisen and Elias are also highlighting a potential flaw with the new proposal that may be impossible for Congress to fully rectify. For instance, the bill seeks to reduce the chances that the vice president, Congress, or a rogue secretary of state will mess around with or overturn election results. In doing so, however, the legislation grants more authority to governors to certify a state’s electors. What if the sitting governor is corrupt? As Eisen was testifying Wednesday, vote counters in Arizona were determining whether Republicans had nominated one of the nation’s most steadfast election conspiracy theorists, Kari Lake, as the state’s next governor. In Pennsylvania, the GOP has already given its nod to a Trump loyalist, Doug Mastriano, who marched to the Capitol on January 6.

    The bill’s bipartisan support increases its chances of passage, and during the hearing, lawmakers in both parties seemed open to some revisions. “It’s a good start, but like every important bill, the initial version has some areas that need development,” Eisen, who served as a House counsel for the Democrats during Trump’s first impeachment, told me afterward. Some provisions, he said, “do pose risk if they are not fixed.”

    Nine Republicans are already backing the legislation in the Senate, and Minority Leader Mitch McConnell has praised the effort, suggesting that the bill will have enough votes to overcome a filibuster if Democrats fall in line. Each party has reasons to vote for it. Democrats want to prevent Trump and his allies from trying again to overturn a defeat, while Republicans fear a scenario in which Vice President Kamala Harris plays a decisive role when presiding over Congress on January 6, 2025. Senator Shelley Moore Capito of West Virginia, a Republican, said there was “a sense of urgency” to act before the next presidential campaign begins. “My personal feeling is we need to button this up before the end of the year,” she said at the hearing.

    Yet among Democrats, there remains some pause, as senators recognize a need to adopt a compromise while lamenting the new bill’s limitations. “The text didn’t exploit itself,” Senator Alex Padilla, a Democrat of California, said at one point during the hearing, referring to the flaws in the 1887 Electoral Count Act. “People did. The former president did. Senators, members of Congress did.”

    Congress is fond of loopholes—closing them, opening them, preserving them. And even the strongest defenders of the Electoral Count Reform Act acknowledged that the proposal was not entirely free of them. “No law can prevent all mischief,” Derek Muller, a professor at the University of Iowa, told me. The question lawmakers must answer in the coming months is whether this new attempt to fortify America’s elections stops more mischief than it inspires.

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    Russell Berman

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