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Sunday, January 6, 2019
CNS Publishes Columnist's Advice to Trump on How To Obstruct Legal Probes

It's not often you see a media outlet giving a platform to tell someone how to obstruct a criminal investigation, but does exactly that by publishing a Dec. 18 column by right-wing lawyer Mark Fitzgibbons.

Fitzgibbons is having a fit over incoming New York Attorney General Letitia Bell's intent to investigate President Trump's business interests, declaring her a "Democrat [sic] political activist" who is "out to destroy Donald Trump and anyone qround him." He complains that "New York law gives its Attorney General broad powers to conduct arbitrary investigations, broader even than those of the federal government. These powers are open to abuse by politically driven zealots, and are dangerous." But he then adds: "The good news is that they are also ripe for constitutional challenges." Fitzgibbons then outlines the strategies he thinks Trump shoulduse to obstruct any Bell-led investigation, no matter how legitimate:

There nevertheless is leverage Trump can bring against James, and expose the lawlessness and unconstitutionality about what she has threatened. The following include observations from my recent continuing legal education paper and presentation, “Civil Investigative Demands: Fourth Amendment Enigmas and Strategies to Respond,” and are not to be construed as legal advice.

First, Mr. Trump needs to treat Ms. James as a legal existential threat. He should assemble a “dream team” of lawyers, ones who do not have regular business before the New York Attorney General so they are not tempted to compromise Trump’s interests. Trump should put on this team what I call warrior lawyers. Warriors have the mentality that he or she might get hurt, but assuredly their opponent will get hurt. Trump’s legal team needs to send a strong signal that there will be a tremendous downside for Ms. James.

Trump’s team should make a constitutional challenge against the Attorney General’s arbitrary power to search. For this Trump should hire Professor Philip Hamburger, whose scholarship on the constitutional problems with the administrative state is not only unmatched, but positions him as among the best lawyers who grasp the true danger of the judgeless searches James will employ.


There are other legal tactics Trump may use. One is that his legal team and all the lawyers for his business empire, family, and associates enter into what are called “common interest agreements.” These agreements allow the lawyers to share information while being protected by the legal privilege of confidentiality.

When responding to James’ judgeless, arbitrary search writs, Trump’s team should smother James with objections. And even when complying with the civil investigative demands, Trump’s team should preserve trade secret and constitutional objections.

Since civil investigative demand enforcement proceedings almost always preclude discovery, Trump should use Freedom of Information Act requests to expose patterns of lawbreaking within James’ office. State attorneys general have a history of failing to respect FOIA laws. Acting lawlessly like that plays to one of Trump’s strengths, which is to name names and humiliate government lawbreakers. Especially with elected state attorneys general, showing they have exposure of a pattern of violating the law can be a hot potato.

That's a lot of legal advice for something that is supposedly "not to be construed as legal advice."

Posted by Terry K. at 3:48 PM EST
Updated: Sunday, January 6, 2019 6:04 PM EST

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