CAFE BRIEF 05/17: Future of Roe v. Wade, Flynn’s cooperation, and a brewing constitutional showdown

CAFE BRIEF 05/17: Future of Roe v. Wade, Flynn’s cooperation, and a brewing constitutional showdown


On the docket for Monday’s episode of the CAFE Insider podcast: Preet Bharara and Anne Milgram will render judgment on the newly unsealed Flynn memos, John Durham’s probe into the origins of the Russia investigation, Alabama’s new abortion law, and more politically charged legal matters. To listen, join the CAFE Insider community. Thank you to everyone for supporting our work!

May 17th, 2019

This past week, Alabama passed the country’s strictest abortion law designed to overturn Roe v. Wade; Trump’s lawyers continued to fight congressional oversight; and newly unsealed memos revealed unknown information about Michael Flynn’s cooperation. Let’s dive in!

WASHINGTON, DC – FEBRUARY 10: National Security Adviser Michael Flynn sits before U.S. President Donald Trump and Japanese Prime Minister Shinzo Abe hold a joint press conference at the White House on February 10, 2017 in Washington, DC. The two answered questions from American and Japanese press. (Photo by Mario Tama/Getty Images)

Flynn’s Cooperation

According to newly un-redacted portions of an addendum to a sentencing memo filed by the Special Counsel’s Office in Michael Flynn’s case, the former national security adviser to President Trump notified prosecutors of “multiple instances, both before and after his guilty plea, where either he or his attorneys received communications from persons connected to the Administration or Congress that could have affected both his willingness to cooperate and the completeness of that cooperation.”

Flynn also “provided a voicemail recording of one such communication,” the prosecutors wrote. District Court Judge Emmet Sullivan ordered Mueller’s team to file — by May 31 deadline — transcripts of the voicemail and any other audio recordings of Flynn, “including, but not limited to, audio recordings of [his] conversations with Russian officials.” Judge Sullivan also ordered portions of the Mueller report that relate to Flynn and remain redacted to be made public, The Washington Post reports.

Future of Roe v. Wade

The Alabama State Senate voted 25-6 to approve a near-total abortion banthat makes it a felony for a doctor to perform an abortion at any stage of pregnancy. Legislators carved out exceptions for lethal fetal anomalies and situations where there is grave risk to the mother’s life, but denied an amendment that would permit abortions in cases of rape and incest. Alabama Governor Kay Ivey signed the bill into law on Wednesday.

Last month, the bill’s sponsor, Alabama state Rep. Terri Collins, said that the goal was to design “a vehicle to revisit the constitutionally flawed Roe v. Wadedecision.” Adam Liptak of The New York Times points out that because of the inherent conflict with Roe, “[l]ower courts will almost certainly strike down the Alabama statute and other direct bans on abortion,” and that the Supreme Court “is more likely to chip away at the constitutional right to abortion…than to overturn it outright.”

Shaping Cohen’s False Testimony

The House Intelligence Committee is investigating whether lawyers for President Trump and his family obstructed the Committee’s investigation into Russia’s election interference. The four attorneys in question allegedly helped shape Michael Cohen’s false testimony before Congress in 2017, and discussed the possibility of a presidential pardon with witnesses to induce their cooperation.

On March 14, 2019, Committee Chairman Rep. Adam Schiff sent a letter to the attorneys requesting documents related to the allegations and an interview before the Committee. In response, legal counsel for the attorneys in question argued that the Committee’s information request is “far afield from any proper legislative purpose” and it may violate attorney-client and work-product privileges. The attorneys missed the Committee’s May 10 deadline for complying with the requests, and Schiff is reportedly prepared to issue a subpoena to compel cooperation. The New York Times published the correspondence between the attorneys and the Committee, as well as the document request list.

The legal woes of Trump’s personal attorneys may be far from over, though. Just Security recently identified 18 references to potential wrongdoing by Trump’s personal lawyers in the Mueller report.

Mazars hearing

On Tuesday, Congress’s ability to investigate President Trump had its first major test in U.S. District Court Judge Amit Mehta’s courtroom in Washington, DC. Last month, Trump filed a lawsuit against House Oversight and Reform Committee Chairman Elijah Cummings to block the Committee’s subpoena for eight years of his financial records from accounting firm, Mazars USA. Representing Trump, William Consovoy argued that a review of Trump’s financial disclosures is not under Congress’s purview because it is not associated with a specific legislative agenda. Judge Mehta gave the parties until the end of the week to submit additional documents and expects to rule on the matter shortly thereafter.

Consovoy’s position has broad implications for congressional oversight. It implies that Congress has little, if any, power to investigate a president, and mirrors the arguments raised by White House Counsel Pat Cipollone in a May 15 letter to House Judiciary Committee Chairman Jerry Nadler.

Washington Post columnist Dana Milbank points out that “[e]ven the Watergate investigation would have been illegal under the theory offered by Trump’s team.” Milbank also notes that Consovoy’s aggressive stance made it seem as if “Trump’s lawyers expected defeat in the lower court and were looking for a higher court to reinterpret the law in Trump’s favor or, more likely, for the appeals to stretch until after the 2020 election.”

Disgraced Hollywood producer Harvey Weinstein arrives State Supreme Court in Manhattan with his new team of lawyers Jose Baez (2nd L), Ronald Sullivan (L) in New York on January 25, 2019. (Photo by TIMOTHY A. CLARY / AFP) (Photo credit should read TIMOTHY A. CLARY/AFP/Getty Images)

What else?

  • Donald Trump Jr. has reached a deal with the Senate Intelligence Committee to answer questions in a private, time-limited interview next month.
  • Harvard University law professor Ronald Sullivan Jr. has withdrawn from the legal team that will defend Harvey Weinstein in his upcoming sexual assault trial. Just days earlier, Sullivan was removed from his position as faculty dean after facing intense criticism on campus for his decision to represent the disgraced movie mogul.
  • The Justice Department has asked Judge Emmet Sullivan to halt the emoluments lawsuit against the President so that an appeals court can review the Judge’s rulings before the case advances as it involves unprecedented legal questions of “extraordinary significance.”
  • Trump issued full pardons on Wednesday to former Republican legislator Patrick Nolan, convicted of accepting illegal campaign contributions in 1994, and to former newspaper publisher Conrad Black, convicted of fraud in 2007. The pardons, according to The Washington Post’s news analysis, are “self-serving,” and test the “limits of what is appropriate.”
  • Four House committee chairmen wrote letters to Attorney General Bill Barr and White House Counsel Pat Cipollone reiterating their April 8 request for documents and testimony related to the Justice Department’s legal position in Texas v. United States, in which the Department argues that the Affordable Care Act should be struck down in its entirety. The chairmen set a May 27 deadline for the documents and testimony.

Stay Informed,

Adrienne Cobb & the CAFE team

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