Editor's Note: Elie Honig is a CNN legal analyst and a former federal and state attorney. The opinions expressed in this comment are yours. See more reviews at cnne.com/opinion
(CNN) - Anyway, the Manhattan district attorney's subpoena to President Donald Trump Mazars USA's financial firm is bad news for Trump. And that's why Trump's lawyers are trying so desperately to reject the subpoena.
New revelations about the subpoena show that prosecutors focus on alleged crimes that go beyond clandestine payments made by the Trump Organization to two women who alleged they had relationships with Trump (Trump denies the issues). Prosecutors also focus on a series of financial transactions that could be related to possible tax fraud, insurance fraud, and bank fraud.
Here's why this should worry Trump and his team. Criminal charges related to paying money in secret are notoriously difficult to prove because they are based on evidence of intent: Were the payments made to influence an election or for some other reason (including bad but not criminal reasons, such as avoiding personal shame)?
Federal prosecutors in the Southern District of New York investigated the payments for years, but only brought charges against one person, the former attorney for President Michael Cohen, who pleaded guilty, before closing the investigation. (Although the SDNY noted in a court filing that Cohen had acted "in coordination with and under the direction of Individual 1," clearly, Trump) and former Justice Department policy councils against charging an acting president.)
But New York prosecutors now seem focused on more easily verifiable documented fraud. New York prosecutors said their investigation is based, at least in part, on public reports. In fact, prosecutors are reportedly investigating possible tax fraud based on intentional misrepresentations of the value of the Trump Organization's assets, as reported by Pro Publica last year.
And Cohen testified in Congress in February 2019 that he believed Trump inflated the value of his assets to guarantee bank loans and insurance policies. (Trump's attorneys have denied any wrongdoing.) If the black and white financial documents back up any of these allegations, if they show, for example, that Trump or anyone else intentionally inflated or deflated the value of the assets of the Trump Organization, then a garden variety fraud charge could to be in order. As a prosecutor, I learned that the simplest charges are often the most powerful and most difficult for defendants to overcome.
This case is the continuation of a battle that has already gone badly for Trump. He initially fought the subpoena on the grounds that, as the incumbent president, he had "absolute immunity" from the criminal investigation. The Supreme Court firmly rejected that argument with a 7-2 vote, with Chief Justice John Roberts and Trump-appointed judges Neil Gorsuch and Brett Kavanaugh joining the four traditionally liberal judges in a cross-ideological majority.
The court sent the case back to the lower court to allow Trump to raise objections that any non-presidential subpoena recipient can raise in the lower courts. But those objections are seldom successful. In my 14 years as a prosecutor, I never had a subpoena recipient who could nullify (essentially defeat) a criminal subpoena.
New York prosecutors clearly still have work to do. They must prevail in the pending subpoena dispute, which seems likely, and then put all the pieces together to determine whether state-level criminal charges are fair and justified against Trump or anyone else in the Trump Organization.
But statements that prosecutors made in court Monday indicate they are determined to move quickly and are focused on the most easily verifiable possible charges.
Now your questions
Nicolaus (Illinois): Asked if the President could postpone the election, Attorney General William Barr said he did not know. Is there a clear answer under our legal system?
There is a clear answer: No, the President cannot unilaterally postpone the general elections. It was curious that the attorney general did not know; I wish it has been updated since then.
The Constitution specifically empowers Congress to set the date for the presidential elections, and requires that the date be uniform throughout the country. Exercising that constitutional authority, Congress long ago passed a federal law that sets the date for general elections as the Tuesday after the first Monday in November, which falls in November 3 in 2020. Congress could pass a new law establishing a different country election date, but that would require majority votes in the Democrat-controlled House and Republican-controlled Senate, plus the President's signature.
Even in the extremely unlikely event that Congress passes and the president signs legislation postponing the 2020 general election, the date can only be pushed back so far. The twentieth amendment to the Constitution requires that the terms of the president and vice president end at noon on January 20. The Constitution can, of course, be amended, but that requires votes from two-thirds of the House and Senate, plus ratification by three-quarters of all state legislatures. That is simply not going to happen, either as a political or practical matter, before January 2021.
Charles (Georgia): As President of the United States Supreme Court, what power does John Roberts have over federal judges in the lower courts?
Not much. As Chief Justice of the Supreme Court, Roberts has several important powers related to the Supreme Court itself, including presiding over oral argument sessions and internal conferences, assigning decisions to other judges (when in the majority), and managing the building and operations of the court. .
But when it comes to lower federal courts, the chief justice has little power. He serves as president of the United States Judicial Conference and other committees. You can appoint certain judges to various policy committees and rulemaking bodies, and report to Congress on changes to federal procedural rules.
But the president of the court does not have the ability to nominate, appoint, remove or discipline federal judges. It has nothing to say about their cases or decision making. Therefore, the Chief Justice of the Supreme Court has limited, almost entirely ministerial, oversight of the lower federal courts.
Janice (Indiana): Does the president have the authority to send federal forces to a state or city without a request from the local government?
Yes, but it is important to keep two things separate: the army versus the federal police. First, regarding the military, according to the Insurrection Act of 1807, the president has the authority to deploy federal troops in certain circumstances: (1) when requested by a state governor, (2) when necessary to "suppress" the Illegal "obstruction" or "rebellion" or (3) when necessary to avoid interference with federal or state law enforcement. While a request from a governor is required under the first of those provisions, it is not required under the second and third.
Separately, the President has virtually unlimited control over where and when to deploy federal agents (for example, the FBI or DEA). There is no law that requires the federal government to receive an invitation from state or local authorities, although in my experience, law enforcement is safer and more effective when federal, state, and local agencies communicate and coordinate with each other.
There are real questions about whether federal law enforcement officers have been wisely deployed in Portland and elsewhere, and about the tactics used by those officers, including the reported use of excessive force and arrests without probable cause. But there is no law that requires an agreement or consent from state or local authorities before the federal government can deploy law enforcement officers.
Three questions to watch
1) Will Trump continue to suggest that there should be possible delays on Election Day?
2) Will we see a resolution in the legal battle between the Governor of Georgia and the Mayor of Atlanta on the mask mandates?
3) Now that the Court of Appeals has decided to re-listen to the Michael Flynn case "en banc", by a panel of the 10 eligible (uncontested) judges of the Court of Appeals, will Flynn's conviction remain intact?
