The Washington Post - 05.10.2019

S A T U R D A Y, O C T O B E R 5 , 2 0 1 9 . T H E W A S H I N G T O N P O S T EZ RE A

the impeachment inquiry

BY DAVID A. FAHRENTHOLD, ANN E. MARIMOW AND ROBERT BARNES

As President Trump tries to
fight off multiple inquiries into
his private finances — from state
prosecutors, congressional com-
mittees and legal plaintiffs — he
has gotten help from a powerful
ally: the Justice Department.
In at least three recent cases,
the department — led by Attorney
General William P. Barr, a Trump
appointee — has intervened in
lawsuits where Trump has per-
sonally sued those investigating
him.
In the most recent instance, on
Wednesday, the department took
Trump’s side in a federal lawsuit
against the Manhattan district
attorney. In that case, Trump has
sought to block a subpoena for his
tax returns — using the prece-
dent-shattering argument that a
sitting president shouldn’t be in-
vestigated by any prosecutor, for
any reason, anywhere.
The Justice Department didn’t
explicitly embrace Trump’s broad
arguments. But it did urge the
judge in the case to take extra
time to consider them, given “the
weighty constitutional issues in-
volved.”
The Justice Department has
long defended presidents when
they’ve been sued. Now it is also
jumping in to support Trump
when he sues others — backing
him up as he pushes for an expan-
sion of presidential immunity.
“The DOJ has elected to insert
itself into this private lawsuit to
support [Trump’s] extravagant
claim” of presidential privilege,
District Attorney Cyrus Vance (D)
wrote in a letter to the judge
Thursday.
Vance accused the Justice De-
partment of helping Trump avoid
investigation, by playing for time:
“[Trump’s] only goal in this litiga-
tion, now supported by the DOJ
itself, is to obtain as much delay as
possible, through litigation, stays,
and appeals.”
Some critics of Trump are hop-
ing that the new impeachment
inquiry launched by House Dem-
ocrats — while not connected to
any of these existing suits — may
help speed their path through the
federal judiciary. The argument
would be that, if Congress needs
to know something about
Trump’s private conduct, now is

the time. “The clock is ticking on this presidential term,” said Brianne Gorod, chief counsel of the Con- stitutional Accountability Center, which is seeking records about Trump’s private business dealings with foreign governments. “Where the House is seeking information that is relevant to its determination whether to impeach the president, it needs that information as quickly as possible.” But it’s too early to tell whether that will be the case — or if, instead, the House’s focus on a separate investigation into Trump’s dealings with Ukraine will sap the urgency from these cases. During Trump’s term, federal lawyers have defended him against three lawsuits alleging he is violating the Constitution by continuing to do business with foreign governments through his family business. Two of those lawsuits, which focus on the Consti- tution’s foreign emoluments clause, are still pending. Another was dismissed, but the plaintiffs are asking for a rehearing. But, under Trump, the department has also taken on an expanded role — as legal firepower to a highly litigious president, who has carried over his longtime habit of using lawsuits to stymie his enemies. For Trump, “the idea is to beat the system,” even if he can’t beat the cases, said James D. Zirin, a

former federal prosecutor and the author of a new book called “Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits.” “It’ll achieve delay.... The wheels of justice grind very slowly.” Jay Sekulow, a private attorney for Trump, said his team consults with the Justice Department when necessary. The team Seku- low oversees has the job of advo- cating for the president’s personal interests. The Justice Depart- ment has an interest in preserv- ing executive authority. The two confer, he said, when Trump’s personal arguments in- tersect in some way with presidential power. He noted that, in two cases, a judge actually asked the Justice Department if it wanted to intervene. “Any discussions that would take place would be because of the institutional interests the Jus- tice Department would have re- garding legal issues we had raised, to include, [constitutional] authority, separation of pow- ers, among other things,” Sekulow said. He said the consultations usually involve William Conso- voy, another private attorney for Trump, and James M. Burnham, a deputy assistant attorney general. “The courts have asked for the views of the Justice Department, which is typical in these kinds of cases, going back to President Clinton,” Sekulow said. The Justice Department de- clined to comment for this story. In two other cases, the Justice

Department has supported Trump as he seeks to block congressional investigations of his finances — by suing the committees investigating him, and suing the companies the committees subpoenaed for records. One of those cases involves a House Oversight Committee subpoena to Trump’s accountants, Mazars USA, seeking his tax returns. The other involves subpoenas to two of Trump’s banks, Deutsche Bank and Capital One, seeking documents related to loans he received. In both cases, Trump said the subpoenas are invalid because they lack a “legitimate legislative purpose” — that is, they’re not tied to pending legislation. The argument is that Congress should not investigate the president’s conduct; that’s a job for prosecutors. “A congressional demand for the President’s personal records raises the specter that members of the Legislative Branch are im- permissibly attempting to inter- fere with or harass the Head of the Executive Branch,” according to a Justice Department brief filed at the U.S. Court of Appeals for the D.C. Circuit as part of the case involving Mazars USA. In that filing, Justice Depart- ment attorneys echoed arguments made by Trump’s privately paid attorneys. They said Con- gress “may not issue a subpoena for purposes of ‘law enforce-

ment.’ ” So far, federal judges have rejected Trump’s argument. “Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office,” U.S. District Judge Amit Mehta wrote in Washington in refusing to block the House subpoena for Trump’s accounting firm records. “This court is not prepared to roll back the tide of history.” But the cases aren’t over. The subpoenas are on hold. In both cases, Trump appealed his losses to federal circuit courts. The Justice Department also advised the Treasury Department to refuse a request from the House Ways and Means Commit- tee to inspect Trump’s tax returns. The law says the returns must be turned over when requested. But the Justice Department still said no: Its reasoning was again that there was no “legitimate legislative purpose” behind the request, so it was not valid. Democrats have sued to get the returns, and that case is still pending. In the Manhattan district attorney suit, Trump’s private attorneys have turned their arguments from those other lawsuits inside out. Before, they said Congress should not obtain Trump’s records because that job was reserved for prosecutors. In this separate case, Trump’s private attorneys have said prosecutors shouldn’t obtain them. That job, they said, was reserved for Congress. “The Framers eliminated this possibility, and assigned the task to... Congress” by creating the impeachment process, Trump’s private attorneys wrote. They asked a judge to stop the subpoena: “Because [Vance’s] subpoena attempts to criminally investigate a sitting president, it is unconsti- tutional.” Vance’s investigation is focused on hush-money payments made just before the 2016 election to two women who said they had sexual encounters with Trump. He has denied having relation- ships with the women. Trump’s former attorney and “fixer,” Michael Cohen, pleaded guilty to campaign-finance viola- tions for helping arrange those payments. Cohen said he’d been reimbursed by the Trump Organi- zation. Federal prosecutors later effectively concluded their investigation without charging anyone else at the company. After that, Vance’s office — which has the power to bring charges in New York state courts

— began asking for documents related to the payments, as well as seeking tax returns for Trump and his businesses from Mazars. Vance has rejected Trump’s arguments, saying the president is seeking to “invent and enforce a new presidential ‘tax return privilege’ ” that would bar anyone from seeing his returns. “No such privilege exists in the law,” Vance’s office wrote. The Justice Department’s filing in the case doesn’t explicitly support Trump’s assertion of immunity from investigation. Instead, it urges District Judge Victor Mar- rero to slow the case down, keep the subpoenas on hold and listen carefully to Trump’s arguments. Vance’s office has said the Jus- tice Department is overstepping its bounds and infringing on “the State’s sovereign right to enforce its criminal laws free from federal interference.” Legal experts have said Trump’s arguments are a sharp departure from existing prec- edent: In the 1970s, for instance, the Supreme Court ruled unani- mously that President Richard M. Nixon had to turn over Oval Office tape recordings sought by prosecutors. “What [Trump is] asking for, it seems implicitly, is for lower federal courts to ignore U.S. v. Nixon, or ultimately for the Supreme Court to overrule U.S. v. Nixon,” said Jed Shugerman, a law profes- sor at Fordham University. In his lawsuit against Vance, Trump cited a 2018 blog post written by Shugerman — quoting a line saying that presidents can’t do their job well if they’re being prosecuted. But Shugerman said Trump is misconstruing his argument. He believes presidents shouldn’t be prosecuted while in office — hauled out of Washington and into a courtroom. But Shugerman said that doesn’t mean presidents can’t be investigated, for possible prosecution after they leave office. If presidents can’t even be investigated, he said, that might incentivize them toward worse behavior. “It creates a perverse incentive for a president to then break more laws to get reelected,” since the president would face no investigation for those, either, Shuger- man said. “It gives him carte blanche as long as he wins two terms.” [email protected] [email protected]

Robert Barnes, Carol D. Leonnig and Rosalind S. Helderman contributed to this report.

Justice Department helps Trump fight financial probes

TOM BRENNER/REUTERS Attorney General William P. Barr’s Justice Department has taken on an expanded role by supporting the president when he sues others, not just when he is sued. Recent cases involve his private finances.

Engagement in private lawsuits by president is a step beyond the norm

BY ANN E. MARIMOW AND ELLEN NAKASHIMA

When Michael K. Atkinson ad-
dressed senators at his confirma-
tion hearing last year to become
the watchdog for the nation’s
intelligence community, he
promised a robust program to
encourage whistleblowers — one
that “validates moral courage
without compromising national
security and without retaliation.”
Atkinson returned to Congress
on Friday after the alarms he
raised from a whistleblower set
in motion the House impeach-
ment inquiry into President
Trump’s phone call with his
Ukrainian counterpart. Atkinson
is also battling for legal protec-
tions for the unnamed person
who issued the complaint, whom
the president has called “fake”
and “vicious.”
As a former federal prosecutor
in Washington, Atkinson is well
suited to his high-pressure role at
the epicenter of the unfolding
investigation, according to for-
mer colleagues. He helped send
two Democratic congressmen to
prison and oversaw a sprawling
campaign finance investigation
involving a former D.C. mayor.
Atkinson is unflappable, under-
stated and cautious, they say, but
also unafraid to speak up when
he disagrees.
“He plans many steps ahead;
he’s not impulsive. He had to have
known that taking this action
was going to have repercussions,”
said former colleague Matthew
Jones, who was chief of staff to
Atkinson’s boss, then-U.S. Attor-
ney Ronald C. Machen Jr. “He’s
not a person who goes out on a
limb in any way.”

Trump picked Atkinson for inspector general of the intelligence community in late 2017, and he was confirmed in May 2018. Sixteen months later, Atkinson was locked in a stalemate with the Justice Department and the acting director of national intelligence, who had refused to trans- mit the whistleblower’s complaint to Congress within seven days as required by law. The law requires Atkinson to notify Congress when he is “un- able to resolve” a difference with the intelligence director on a matter involving one of the inspector general’s duties. He sent two letters to Congress in Sep- tember, informing the intelligence panels that a complaint existed, and told the committees he was continuing efforts to obtain direction from acting director Joseph Maguire as to how the whistleblower could bring con- cerns to Congress. Atkinson then testified in a closed-door hearing, and was back for a follow-up closed-door session Friday with the House Intelligence Committee. “It could have all been squashed by the Justice Depart- ment, but he persisted,” said Mary McCord, who worked close- ly with Atkinson when she led the Justice Department’s national security division and Atkinson was her senior counsel, and when both were in the U.S. attorney’s office in Washington. “As soon as I saw that this was coming from him, that was all I needed to know to credit the report, because I know him to be a careful, thoughtful, meticulous prosecutor,” McCord said. “He doesn’t seek the limelight. He doesn’t seek attention.” Atkinson’s notification prompted a subpoena from House Intelligence Committee Chairman Adam B. Schiff (D-Ca- lif.) to Maguire to turn over the complaint. Several days later, me-

dia reports revealed the complaint centered on Trump’s phone call with the Ukrainian president. On the call, Trump repeat- edly pressed Volodymyr Zelensky to investigate former vice president Joe Biden and his son Hunt- er Biden. The disclosures touched off calls from Congress for the White House to release a summary of Trump’s phone call — and for the whistleblower’s complaint to be made public. Earlier this week, Atkinson pushed back against unsubstan- tiated allegations in conservative media outlets — and picked up in a tweet by the president — that the whistleblower submission form had been altered to enable complaints that were not based on firsthand knowledge. The whistleblower had acknowledged in the complaint not being “a direct witness” in most cases. In a statement posted online, Atkinson said the form has been in place since May 2018. There is no requirement in the law, he noted, that a complainant pos- sess firsthand knowledge. Whistleblower attorney Brad-

ley Moss said Atkinson, by “ac- tions including providing official counterpoints to the political spin coming out of the White House and its media allies, has done more than anyone ever imagined that a politically ap- pointed IG could have done.” Atkinson, 55, grew up in New York’s Oswego County. When asked in his Senate confirmation questionnaire whether he had ever run afoul of the law, Atkin- son, known as a straight arrow with a dry wit, wrote that as a high school senior, he paid a $ fine for illegally fishing for trout “out of season, at night, and with a spear.” Atkinson graduated from Syra- cuse University, and after law school at Cornell University he spent 11 years as a lawyer in private practice in Washington. He and his wife, the managing partner at a D.C. law firm, have two sons and live in Maryland, according to the Senate form. It was after the 9/11 attacks that Atkinson decided to join the government. “I wanted more challenges, greater responsibilities and dif-

ferent rewards,” he said at his January 2018 hearing. “Although my annual salary was reduced by nearly two-thirds from my time at the law firm, my sense of professional accomplishment was never higher.” Inside the intelligence community leadership, Atkinson is viewed as “quiet, reserved” and one you “trust with investigations,” said one senior U.S. intelligence official who was not au- thorized to comment on the rec- ord and spoke on the condition of anonymity. During his initial closed-door testimony before the House Intel- ligence Committee last month, Atkinson focused largely on what the law requires of his office. He said he interviewed witnesses to help determine the complaint’s credibility but did not identify the witnesses he interviewed, said a person familiar with the session. Atkinson was “credible,” said the individual, speaking on the condition of anonymity to de- scribe a closed session. He was “emotional in the sense that he was disturbed by being stymied and felt like he wasn’t able to do his job,” the person said. Atkinson brought to the task his 15 years of investigating and taking on complex, high-stakes corruption cases involving elected officials, corporate executives and government contractors. He helped prosecute former congressman William Jefferson (D-La.) in a bribery case that uncovered $90,000 hidden in foil in Jefferson’s freezer. His work led to convictions of the sons of two prominent Demo- crats. Jesse L. Jackson Jr., the former Illinois congressman and son of the Rev. Jesse L. Jackson, pleaded guilty in 2013 to stealing hundreds of thousands of dollars in campaign money to pay for an extravagant lifestyle. Former D.C. Council member Michael A. Brown, son of former commerce

secretary Ronald H. Brown Jr., pleaded guilty the same year after he was photographed taking wads of cash in a gym bag and coffee mug from undercover federal agents. On the other side of the courtroom from Atkinson in both cases was defense attorney Reid Wein- garten. He said Atkinson, unlike other prosecutors who might have sought an overly harsh sen- tence or leaked details to the media, “handled himself with class, intelligence, with sensitivity and with strength.” “The evidence was dreadful, but there was a sensitivity,” Wein- garten said. “He didn’t rub it in my face.” As part of a far-reaching campaign finance investigation, At- kinson negotiated the plea agree- ment with former D.C. contractor Jeffrey Thompson. He alleged in 2014 that then-Mayor Vincent C. Gray (D) knew about Thompson’s unreported, illegal “shadow campaign” on Gray’s behalf. Gray, now a D.C. Council member, was never charged, and he accused Thompson of lying. His support- ers called the plea a sweetheart deal and criticized prosecutors for the timing — publicly naming Gray just weeks before he lost his primary bid for reelection. Atkinson disclosed the identity of “Mayoral Candidate A” in court only after he was ordered to do so by the judge. He was also the driving force in exposing a network of corrupt public officials and government contractors for the Army Corps of Engineers who stole more than $30 million through inflated bill- ings and fake invoices. At the sentencing for the mas- termind, Atkinson urged the judge to send a message to thousands of public officials and contractors who must decide daily “whether to give in to the tempta- tion of government corruption.” [email protected] [email protected]

Before confirmation, inspector general pledged to protect whistleblowers

Atkinson spent years as federal prosecutor in public corruption cases

ASTRID RIECKEN FOR THE WASHINGTON POST Michael K. Atkinson, the intelligence community inspector general, arrives for meetings Friday on Capitol Hill.

The Washington Post - 05.10.2019

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