World EXCLUSIVE: In court filing, FBI accidentally reveals name of Saudi official suspected of directing support for 9/11 hijackers Michael Isikoff Chief Investigative Correspondent•New information about suspected Saudi connection to 9/11 hijackers revealed WASHINGTON — The FBI inadvertently revealed one of the U.S. government’s most sensitive secrets about the Sept. 11 terror attacks: the identity of a mysterious Saudi Embassy official in Washington who agents suspected had directed crucial support to two of the al-Qaida hijackers. The disclosure came in a new declaration filed in federal court by a senior FBI official in response to a lawsuit brought by families of 9/11 victims that accuses the Saudi government of complicity in the terrorist attacks. The declaration was filed last month but unsealed late last week. According to a spokesman for the 9/11 victims’ families, it represents a major breakthrough in the long-running case, providing for the first time an apparent confirmation that FBI agents investigating the attacks believed they had uncovered a link between the hijackers and the Saudi Embassy in Washington.The Saudi Arabian Embassy in Washington. (Chip Somodevilla/Getty Images)It’s unclear just how strong the evidence is against the former Saudi Embassy official — it’s been a subject of sharp dispute within the FBI for years. But the disclosure, which a senior U.S. government official confirmed was made in error, seems likely to revive questions about potential Saudi links to the 9/11 plot. It also shines a light on the extraordinary efforts by top Trump administration officials in recent months to prevent internal documents about the issue from ever becoming public. “This shows there is a complete government cover-up of the Saudi involvement,” said Brett Eagleson, a spokesman for the 9/11 families whose father was killed in the attacks. “It demonstrates there was a hierarchy of command that’s coming from the Saudi Embassy to the Ministry of Islamic Affairs [in Los Angeles] to the hijackers.”Still, Eagleson acknowledged he was flabbergasted by the bureau’s slip-up in identifying the Saudi Embassy official in a public filing. Although Justice Department lawyers had last September notified lawyers for the 9/11 families of the official’s identity, they had done so under a protective order that forbade the family members from publicly disclosing it.Now, the bureau itself has named the Saudi official. “This is a giant screwup,” Eagleson said.Brett Eagleson, and his mother, Gail Eagleson, with Donald and Melania Trump. (Brett Eagleson)After being contacted by Yahoo News on Monday, Justice Department officials notified the court and withdrew the FBI’s declaration from the public docket. “The document was incorrectly filed in this case,” the docket now reads. But FBI and Justice Department officials declined to comment on how the erroneous disclosure had been made. A Saudi government spokesman, meanwhile, did not respond to multiple requests for comment. The Saudi government has consistently denied any connection to the 9/11 hijackers, telling the New York Times and ProPublica in January: “Saudi Arabia is and has always been a close and critical ally of the U.S. in the fight against terrorism.” Ironically, the declaration identifying the Saudi official in question was intended to support recent filings by Attorney General William Barr and acting Director of National Intelligence Richard Grenell barring the public release of the Saudi official’s name and all related documents, concluding they are “state secrets” that, if disclosed, could cause “significant harm to the national security.”The declaration was filed by Jill Sanborn, the assistant director of the FBI’s counterterrorism division. Her declaration fleshes out some of the assertions Barr and Grenell have used in their filings, arguing that publicly disclosing internal FBI files — including “interview reports, telephone and bank records, source reporting documents and foreign government information” — would reveal intelligence sources and methods of collection and would hamper the willingness of foreign governments to assist the FBI on sensitive cases.But while Sanborn’s 40-page declaration blacks out the Saudi official’s name in most instances, in one it failed to do so — a discrepancy first noted this week by a Yahoo News reporter. In a portion describing the material sought by lawyers for the 9/11 families, Sanborn refers to a partially declassified 2012 FBI report about an investigation into possible links between the al-Qaida terrorists and Saudi government officials. That probe, the existence of which has only become public in the past few years, initially focused on two individuals: Fahad al-Thumairy, a Saudi Islamic Affairs official and radical cleric who served as the imam of the King Fahd Mosque in Los Angeles and Omar al-Bayoumi, a suspected Saudi government agent who assisted two terrorists, Khalid al-Mihdhar and Nawaf al-Hazmi, who participated in the hijacking of the American Airlines plane that flew into the Pentagon, killing 125.After the two hijackers flew to Los Angeles on Jan. 15, 2000, al-Bayoumi found them an apartment, lent them money and set them up with bank accounts.
A redacted copy of a three-and-a-half page October 2012 FBI “update” about the investigation stated that FBI agents had uncovered “evidence” that Thumairy and Bayoumi had been “tasked” to assist the hijackers by yet another individual whose name was blacked out, prompting lawyers for the families to refer to this person as “the third man” in what they argue is a Saudi-orchestrated conspiracy.Describing the request by lawyers for the 9/11 families to depose that individual under oath, Sanborn’s declaration says in one instance that it involves “any and all records referring to or relating to Jarrah.”The reference is to Mussaed Ahmed al-Jarrah, a mid-level Saudi Foreign Ministry official who was assigned to the Saudi Embassy in Washington, D.C., in 1999 and 2000. His duties apparently included overseeing the activities of Ministry of Islamic Affairs employees at Saudi-funded mosques and Islamic centers within the United States. Relatively little is known about Jarrah, but according to former embassy employees, he reported to the Saudi ambassador in the United States (at the time Prince Bandar), and that he was later reassigned to the Saudi missions in Malaysia and Morocco, where he is believed to have been serving as recently as last year, having been promoted to the position of cultural counselor.
Jarrah has been on the radar screen of the lawyers for the 9/11 families for some time and is among nine current or former Saudi officials who they suspect have important information about the case and have sought to either question them or get access to FBI documents that mention them.
The families have also tapped former agents to help investigate the activities of the potential witnesses, including Jarrah. Jarrah “was responsible for the placement of Ministry of Islamic Affairs employees known as guides and propagators posted to the United States, including Fahad Al Thumairy,” according to a separate declaration by Catherine Hunt, a former FBI agent based in Los Angeles who has been assisting the families in the case.
Hunt conducted her own investigation into the support provided to the hijackers in Southern California. “The FBI believed that al-Jarrah was ‘supporting’ and ‘maintaining’ al-Thumairy during the 9/11 investigation,” she said in her declaration.The Sanborn declaration represents the first public confirmation that the so-called “third man” referred to in the 2012 report was in fact an accredited Saudi diplomat. But all of the FBI evidence the agents had gathered about Jarrah and his communications about the hijackers remain under seal. Elsewhere in her declaration, Sanborn asserts that the contention that Jarrah “tasked” Thumairy and Bayoumi with assisting the hijackers was more a “theory” of the agents working the case rather than a conclusion based on hard evidence.One former bureau official familiar with the FBI investigation into the matter, and who asked to speak confidentially, says that agents had developed strong evidence of meetings and communications among Jarrah, Thumairy and Bayoumi in which assistance to Mihdhar and Hazmi, the two hijackers, was believed to have been discussed. But the agents were unable to prove that Jarrah, who the agents found had flown to Los Angeles to meet with Thumairy, knew that Mihdhar and Hazmi were members of al-Qaida and were plotting the attacks on U.S. soil, resulting in bitter divisions within the bureau about what to make of the contacts the agents had uncovered.
“We just didn’t have enough evidence” to move the case forward, said the former official.
Complicating the question is whether FBI agents would ever get an opportunity to question and potentially confront Jarrah. “There was no reason to believe the Saudis would ever give us access to him,” said the former official.
Over time, with the rise of the Islamic State in 2014 and 2015, senior bureau officials grew weary of the issue and reassigned most of the top counterterrorism agents working on the case to what were viewed as more pressing priorities.
“There were definitely people at FBI headquarters who wanted this closed,” the former official said.
Suspicions about a possible Saudi role in 9/11 are as old as the attacks themselves. In the immediate aftermath of the attacks, investigators quickly concluded that 15 of the 19 hijackers were of Saudi origin.
The 9/11 commission, which extensively investigated the question, ultimately concluded that, while Saudi Arabia had long been viewed as the primary source of al-Qaida funding, “we have found no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization.”
But the 9/11 commission also acknowledged there were significant gaps in the record, especially relating to a critical two-week period after Mihdhar and Hazmi flew into Los Angeles in January 2000 after attending an al-Qaida planning summit in Kuala Lumpur that the CIA had monitored.
Moreover, the panel’s investigators had deep suspicions about the role of Thumairy, a radical cleric known for delivering anti-Western sermons, who they believed had lied to them about ever having met the hijackers or even knowing Bayoumi, who did provide extensive support to the hijackers. Thumairy told agents he did not know Bayoumi despite phone records showing the two of them had been in frequent contact.
The lingering questions about the Saudi role prompted the FBI in the mid-2000s to quietly initiate a “subfile” investigation — whose code name, Operation Encore, was first revealed by the New York Times and ProPublica in January — that focused on the activities of Mihdhar and Hazmi in Southern California and their interactions with Thumairy, Bayoumi and others.
The agents working the case reinterviewed key witnesses and uncovered phone records and other material that the 9/11 commission had never seen. One of the former agents now assisting the 9/11 families, Steven Moore, a former assistant special agent in Los Angeles, wrote in a 2017 declaration for the families that Thumairy “was the primary point of contact for Hazmi and Mihdhar in Los Angeles,” was aware in advance of their travel to the United States and even invited Hazmi, the future hijacker, to lead prayers at the King Fahd mosque.
Moore’s conclusion: “Based on evidence we gathered during the course of our investigation, I concluded that diplomatic and intelligence personnel of the Kingdom of the Saudi Arabia knowingly provided material support to the two 9/11 hijackers and facilitated the 9/11 plot. My colleagues in our investigation shared that conclusion.”
But even while the agents hit a roadblock when they were unable to persuade FBI headquarters about the strength of their evidence, the 9/11 families who wanted to hold the Saudi government accountable got a huge break in 2016, when Congress overrode a veto by then-President Obama and passed the Justice Against Sponsors of Terrorism Act, which allowed them to bring a lawsuit against the kingdom in federal court.The fight for access to key documents and evidence has dragged on ever since, with repeated battles between the lawyers for the families on one side, and lawyers for the FBI, the Justice Department and the Saudi government on the other.Last Sept. 11, a group of the families, their lawyers and two of the former agents helping them met with President Trump at the White House and raised their concerns about their lack of access to the material they were seeking.“We told him, ‘Please, Mr. President, help us, please declassify the documents. Our government has been covering up the Saudi role,” said Eagleson. Trump was receptive and even got energized after being told that among those who had resisted disclosure in the past were former FBI directors Robert Mueller and James Comey. Trump at one point said they were “scum” and vowed to help the families. “Hey Melania,” Trump said at one point, referring to the first lady, who attended the meeting and posed for photos with the family members along with the president, according to one of the former agents present who asked not to be identified. “Listen to these guys — the same scum that is fighting me is now fighting the 9/11 families.”Trump vowed to help, according to those in the meetings. “He shook all of our hands and said, ‘Don’t worry, I’m going to help you guys,’” said Eagleson. “We left that meeting feeling elated,” he said. “We were finally going to see the documents.’” The White House did not respond to Yahoo News’ request for comment. The very next day, on Sept. 12, Justice Department lawyers gave the families the identity of the third man — but under the condition that they couldn’t publicly disclose it. That same day, Barr filed his first motion with the court declaring all the material being sought by the families as “state secrets” that could not be shared. “We felt we had been stabbed in the back,” said Eagleson
Americans like to think of their nation as exceptional. There’s even a term for it: American exceptionalism.
“We,” Clinton scoffed in 2015, “are the United States of America.”
Yet when it comes to the coronavirus pandemic — or, more specifically, how we transition from the state of suspended animation known as “lockdown” into the even more vexing phase known as “reopening” — anxious Americans of all political persuasions have been more than happy to look to foreign countries as potential models.
Recently, two countries in particular have emerged as touchstones: Sweden, for conservatives, and Germany, for liberals.
But would either approach really work in the U.S.?
The country has enforced strict lockdowns, tested systematically and based policy changes on clear, data-driven metrics such as R0, the effective reproduction rate of the virus as expressed by the estimated number of people one infected person subsequently goes on to infect. As a result, Chancellor Angela Merkel — who has a doctorate in quantum chemistry — proudly announced last week that Germany could “afford a bit of courage” and start to reopen most parts of its economy and society.
New daily infections had dropped under 1,000 for the first time in more than six weeks. R0 had fallen to 0.65, well below the threshold of 1.0 that divides a growing outbreak from a shrinking one. Fewer than 7,000 Germans had died — a far lower mortality rate than in most neighboring countries. As a result, shops reopened for business, with restaurants, hotels, classrooms and even pro soccer matches set to come next.
“To many of [President] Trump’s critics,” the Times noted, “the strategy that has won Ms. Merkel praise and Germany a reprieve … is precisely the one the United States should have followed.”
Unless, that is, it should have followed Sweden’s. For months now, conservatives and libertarians have been touting the Swedish way as a corrective to what they see as America’s unnecessarily strict lockdown measures.
“Sweden is fighting coronavirus with common-sense guidelines that are much less economically destructive than the lockdowns in most U.S. states,” wrote T.J. Rodgers, CEO of Cypress Semiconductor Corporation, in an April 26 Wall Street Journal op-ed that was widely circulated in conservative circles.
“Since people over 65 account for about 80% of Covid-19 deaths, Sweden asked only seniors to shelter in place rather than shutting down the rest of the country; and since Sweden had no pediatric deaths, it didn’t shut down elementary and middle schools. Sweden’s containment measures are less onerous than America’s, so it can keep them in place longer to prevent Covid-19 from recurring. Sweden did not shut down stores, restaurants and most businesses.”
Ultimately, Rodgers concluded, Sweden “may prove that many aspects of the U.S. shutdown were mistakes — ineffective but economically devastating — and point the way to correcting them.”
Obviously, the U.S. can’t go back in time. But going forward, it would seem Americans have a choice: Try to be more methodical, like Germany — or loosen up for good, like Sweden.
The correct answer, as with so much else when it comes to the coronavirus, is that it depends. In this case, it depends on what Americans are willing to tolerate: more government, or more death.
Conservatives are right when they say Sweden hasn’t closed schools, stores and restaurants. Even bars and nightclubs remain open, and Stockholm has not ordered Swedes to wear masks or socially distance. But that isn’t the whole story, either. The government has encouraged people to keep their distance, and people have largely complied — a product of Swedes’ unusually high levels of trust in authority.
“We are famous for following the rules,” Katarina Eckerberg, a political science professor at Umeå University, recently told Business Insider. Sweden also provides comprehensive, immediate sick pay, meaning that people who are infected with COVID-19 have no financial incentive to go to work and spread the virus further. And multigenerational households are uncommon, so younger family members tend not to infect their older, more vulnerable relatives.
Even so, Sweden has been forced to accept a lot of death as a consequence of its soft approach. In neighboring Norway, which did lock down, 224 people have died from the coronavirus. In Sweden, that number is 15 times higher: 3,313.
Many of the victims were poor immigrants or seniors in elder-care facilities. Framed as a percentage of the population, Sweden has lost 328 people per million residents — one of the 10 highest death rates in the world. Even the U.S., the undisputed epicenter of the pandemic, has a lower death rate (248 per million). If America’s death rate were as bad as Sweden’s, about 30,000 more Americans — 110,000, total — would be dead right now from the coronavirus.
This loss of life is supposed to be part of a trade-off. Yes, vulnerable people die, the argument goes. But they might have died anyway. In return, Sweden maintains a higher level of economic activity, and as the virus spreads, people acquire immunity. The result: a quicker recovery and more resistance to future outbreaks.
But those benefits might be a mirage. Why? Because economic demand is down everywhere, and even Swedes aren’t spending like they used to. So while new figures show that in March Sweden performed better than much of Europe — it recorded a decline in gross domestic product of 0.3 percent versus 3.8 percent for the EU as a whole — the country’s central bank now estimates that GDP will contract by 7 percent to 10 percent this year, with unemployment peaking between 9 percent and 10.4 percent.
“It is too early to say that we would do better than others,” Christina Nyman, a former deputy head of monetary policy at Sweden’s central bank, told the Financial Times. “We think Sweden will end up more or less the same.”
At the same time, Stockholm’s top epidemiologist — the scientist behind his country’s soft approach to the pandemic — claims that a quarter of the population has already been infected, which could indicate that a large number of Swedes have developed some immunity to the virus. But given that this would indicate a higher level of prevalence than in New York, which has suffered nearly 10 times as many coronavirus deaths as Sweden, his estimate is probably too optimistic. This suggests, in turn, that Sweden’s case count and death count will continue to climb and that the Swedes aren’t nearly as close to “herd immunity” as they think.The German approach presents a different challenge. There the death rate is strikingly low: just 91 people per million, compared to 408 per million in neighboring France and 508 per million in neighboring Italy. Yet over the weekend, the Robert Koch Institute — the German equivalent to the Centers for Disease Control and Prevention — announced that R0 (the virus’s reproduction number) had nearly doubled in the three days since the relaxation of lockdown restrictions, surging from 0.65 (which suggested a shrinking epidemic) to 1.1 (which suggests an epidemic that is growing exponentially). An outbreak is only considered under control when R0 falls below 1.0. “There are signs that the reproduction number is going back up again,” Professor Thomas Hotz of Technische Universität Ilmenau told the Guardian. “If you see how people have started acting in the big cities, it doesn’t completely surprise me.”The rising infection rate shouldn’t be surprising. In the absence of herd immunity or a vaccine, the virus will spread whenever and wherever people interact. But Germany, as usual, was prepared. Under a new emergency “snap back” mechanism, hospitals, care homes or entire municipalities revert to lockdown if they cumulatively register more than 50 new infections per 100,000 inhabitants within seven days. The idea is that this localized braking system will eliminate the need for a nationwide lockdown by slowing the spread of COVID-19 before it grows into a second wave. So far, three German municipalities have breached the new threshold and returned to lockdown: one in the northern state of Schleswig-Holstein, one in eastern Thuringia and one in western North-Rhine Westphalia. This is smart policy. The question is whether America is disciplined and methodical enough to implement a centrally planned, locally enforced snap-back regime and whether quarantine-weary, liberty-loving Americans would even tolerate it. So far, the U.S. coronavirus response has been a contradictory patchwork of mixed messaging and undertesting, with each state left largely to its own devices. Meanwhile, according to a new Morning Consult poll, just 36 percent of Americans say they’re still self-quarantining, down from a peak of 55 percent, and 32 percent say they’ve visited family or friends in the past week, the highest share in nearly two months. A full 68 percent say they would not participate in a contact-tracing program established by the federal government — a critical safeguard that Germany already has up and running. In other words, neither the Swedish nor the German approach seems particularly well-suited to the American predicament. And so the U.S. will likely continue to muddle through the risky process of reopening, with some states steering toward Sweden (only with less obedience and perhaps more dire health consequences) and others trying to emulate Germany (only with less organization and perhaps more public resistance).At least Americans will continue to do things their own way.Cover thumbnail photo: German Chancellor Angela Merkel and Sweden’s Prime Minister Stefan Lofven. (Anders Wiklund/TT News Agency via Reuters, Andreas Gora, Pool/Getty Images)
Supreme Court appears split on whether Congress and prosecutors can see Trump’s tax returns Luppe B. Luppen and Hunter Walker-Yahoo News•The U.S. Supreme Court heard arguments Tuesday in two cases that could help decide the limits of presidential accountability and whether President Trump can continue to defy lawmakers and local prosecutors seeking to view his tax and business records. While past decisions on presidential accountability involving Richard Nixon and Bill Clinton had unanimous outcomes, questions from the nine justices did not leave observers of the unprecedented live arguments with a clear sense of how the court might rule. Trump’s returns have been the subject of intense speculation since the 2016 election, when he broke with long-standing tradition and became the first modern presidential candidate not to make his returns public. Since then, multiple investigators, including House Democrats, have sought the documents amid questions about Trump’s foreign business ties and potential conflicts of interest involving his real estate empire. Along with deciding the fate of Trump’s financial secrets, the pair of Supreme Court cases have major implications for the rule of law; they will determine the investigative powers, if any, that state and local officials or Congress have over the president. It’s a question that has added urgency for those Trump critics who believe the Department of Justice has covered for the president by hastily wrapping up the Russia probe and dropping the criminal charges against Trump’s former national security adviser Michael Flynn. If the Justice Department is indeed uninterested in pursuing investigations against the Trump administration, that leaves Congress and local officials as one of the last sources of potential presidential accountability.The first case heard by the court concerned subpoenas for financial records that committees of the House of Representatives had issued to Trump’s accounting firm, Mazars USA, and to one of his major bankers, Deutsche Bank. The second case covered a similar subpoena issued to Mazars by a grand jury empaneled for the office of Manhattan District Attorney Cyrus Vance Jr. as part of its investigation of “a potential crime” alleged to have occurred at Trump’s private business, which is headquartered in New York, in connection with the payment of hush money to women during the campaign.Both Mazars and Deutsche Bank have said they intend to comply with a valid subpoena, and in both cases, lower courts held the subpoenas to be valid. Trump’s lawyers appealed each case all the way to the Supreme Court in the hopes of obtaining a different decision.
In both cases, advocates for the investigators pointed the ourt to its past precedents.
Douglas Letter, representing the House in the first case, cited cases in which the court found that Congress’s power to develop legislation implies a broad investigative powers. The court also instituted a rule of deference to congressional committee chairmen so long as they outlined a “legislative purpose” for their investigative activities.
In the second case, Carey Dunne, the lawyer for the Manhattan DA’s office, relied on the principle that the public has a right to “every man’s evidence” in a criminal investigation unless it is protected by some legally recognized privilege. He also pointed to the court’s more recent jurisprudence — cases involving former Presidents Nixon and Clinton — that found a president doesn’t have any absolute privilege from giving evidence to criminal or civil proceedings.
“This court has long held that American presidents are not above having to provide evidence in response to a law enforcement inquiry,” Dunne said.
In both cases, Trump’s attorneys argued the president’s unique role makes him vulnerable to partisan attacks.
“The fact that they seek personal documents doesn’t mean that they’re not targeting the president,” Trump attorney Patrick Strawbridge said during arguments in the case involving the House subpoenas.
“Indeed, both the Oversight Committee and the House Intelligence Committee have identified the president in his role as president as one of the motivating factors for their investigation,” Strawbridge added.
Jay Sekulow, who represented Trump in the second case involving the Manhattan district attorney’s probe, argued local prosecutors do not have authority to investigate the president.
“No county district attorney in our nation’s history has issued criminal process against a sitting president, and for good reason: The Constitution doesn’t allow it,” Sekulow said in his opening remarks.
Sekulow went on to argue that granting the Manhattan prosecutor access to Trump’s financial documents “weaponizes 2,300 local DA’s” in the country.
“The decision would allow any DA to harass, distract and interfere with a sitting president,” Sekulow said. “It subjects the president to local prejudice.”
The attorney for the Manhattan prosecutor responded that most local district prosecutors would be unlikely to have jurisdiction over the president, whose business is headquartered in New York.
Sekulow’s opening statement touched on the second major element of Trump’s attorneys defense in both cases — the idea that undue investigations could distract the president from more important work. Sekulow made this case with a hypothetical:
“I’m going to call the president of the United States today and say, ‘I know you’re handling a pandemic right now for the United States but I need to spend a couple … hours with you going over a subpoena of documents that are wanted by, here, the New York county district attorney.’”
Because of the unique concerns of partisan attacks and the presidential workload, Sekulow repeatedly argued that “the president is not to be treated as an ordinary citizen.”
He and Strawbridge also raised the specter of a flood of subpoenas from multiplying congressional committees or district attorneys all over the country. Dunne, the lawyer for the Manhattan district attorney, suggested that concern was greatly exaggerated.
“The supposed floodgates have been open for generations,” Dunne replied to that argument, “and there’s never been a flood.”
Conservative and liberal Justices found some common ground in the congressional subpoenas case, aggressively questioning Letter, the House’s general counsel, on his refusal to identify a limit on the legislative purposes the House could potentially use to justify investigation of the president.
“Could you give me a plausible example of a subject that you think is beyond any legislation that Congress could write?” Chief Justice Roberts asked early in the session.
Letter could not.
Time and again, the Justices returned to this point. In an argument that would almost inevitably focus on the separation of powers, the House’s lawyer had come to court without a proposed constraint on the type of information the legislative branch could forcibly extract from the head of the executive branch.
Carey Dunne, the Manhattan DA’s attorney, avoided that stumbling block, proposing to the Justices that his office should be permitted to impose burdens on the presidency with subpoenas for documents if it made a showing of “objective need” and of a likelihood that the subpoenas would produce relevant evidence. Sekulow and the DOJ argued in effect that no subpoenas burdening the president in any way, whether as the target of an investigation or simply as a witness, should be allowed until his term is over. Dunne countered that waiting until Trump is out of office could block legitimate prosecutions due to the statute of limitations for criminal charges.
“The clock is ticking,” Dunne said.
It was clear that the court knew its ruling could have far reaching implications. Both liberal and conservative justices explained over the course of the morning’s arguments that they were grappling with how to frame rules for Trump that could apply to future presidents as well. Nevertheless, the arguments also highlighted how Trump is a one-of-a-kind officeholder.
Unique among his predecessors, Trump came to the White House after a lifetime spent in the private sector. Other presidents placed all their investments into an independently administered blind trust; Trump chose to maintain close ties to his business empire and its attendant potential conflicts of interest through a revocable trust administered by his sons. Unlike other presidents, Trump chose to keep his tax returns and the details of his financial affairs secret.
This constellation of presidential choices, though hardly referenced in oral argument, lay at the heart of the unprecedented confrontation in the Supreme Court this morning. Dunne explained that the DA’s jurisdiction over Trump is tied to his Manhattan-based business, and that the DA had to respond to public reports of impropriety at the company, namely its role in payments made by Trump’s now incarcerated personal attorney, Michael Cohen, to adult film star Stormy Daniels.
“The subpoena … was not born of any political animus or intent to harass. Instead, it was prompted by public reports that certain business transactions in our jurisdiction were possibly illegal. Given those allegations, our office would have been remiss not to follow up in response,” Dunne said.
Because of the coronavirus pandemic, the Supreme Court has, since last week, been holding oral arguments by telephone conference, and in an unprecedented move it has opened up live audio of these conferences to the public. This gave court watchers across the nation a chance to listen in on the nine justice’s questioning for hints at how they might rule. That opportunity was particularly interesting since Trump has appointed two justices to the nation’s highest court — Neil Gorsuch and Brett Kavanaugh — and the president’s critics have suggested a scenario in which his appointees might try to shield him from legitimate legal jeopardy.
The court’s questioning in both cases revealed a panel mostly divided on ideological lines and past commitments. However, on the whole, Kavanaugh and Gorsuch didn’t stake out clear positions and instead used their time to sharpen the inquiries of other justices.
Rulings in the two cases are expected in June or July, as the presidential campaign is in full swing. The court could, however, defy that timetable by ordering further argument or holding over the cases to the next term. For his part, Dunne alluded to the statute of limitations and argued that any further delay would play into Trump’s hands and shield him from accountability.“Frankly, we’ve already lost nine months of time in this investigation due to this lawsuit,” Dunne told the court. “And again, you know, every minute that goes by is — without even a decision on the merits here — granting the same kind of temporary absolute immunity that the president is seeking.”
Anthony Fauci Warns States: Reopening Too Early Could ‘Trigger an Outbreak You May Not Be Able to Control’