U.S. Reactions to Recent Developments in Cameroon

Over the last several years, Cameroon, a country of 15.7 million people on the west coast of Africa, has been engaged in armed conflict between its central government, which is controlled by the population’s 2/3 majority of Francophones (French-speaking people), and the minority Anglophones (English-speaking people).[1]

As covered in a prior post, in a September 10 speech Cameroon President Paul Biya called for a National Dialogue about the conflict between the country’s Anglophones and Francophones. Here we will examine U.S. actions and statements about Cameroon this year, before and after that speech.

State Department Statements About Cameroon [2]

Surprisingly for this blogger, the State Department has not issued any statement, pro or con, on the Biya speech or the National Dialogue. Instead, the Department, before and after the speech, has issued negative comments about the country other than the brief congratulations on its National Day on May 20 while also noting that the U.S. “supports the people of Cameroon, and remains committed to working with Cameroonians to strengthen democracy, governance, human rights, and rule of law.”

On February 6, 2019, the U.S. suspended certain military aid to Cameroon because of alleged human rights abuses by the country’s security forces. The Department said, “The reason for this action was concern over alleged human rights abuses by the country’s security forces. We do not take these measures lightly, but we will not shirk from reducing assistance further if evolving conditions require it. We emphasize that it is in Cameroon’s interest to show greater transparency in investigating credible allegations of gross violations of human rights security forces, particularly in the Northwest, Southwest, and Far North Regions.”

On April 9, 2019, Cameroon was included in a general Department Media Note about Updates to Safety and Security Messaging for U.S. Travelers, which stated that its public Travel Advisories for Cameroon and some other countries had “added a new risk indicator [K] to our public Travel Advisories in order to communicate more clearly to U.S. citizens the risks of kidnapping and hostage taking by criminal and terrorist actors around the world.”

On July 9, 2019, the Department publicly designated Cameroon’s Inspector General of the Cameroonian Gendarmerie, Colonel Jean Claude Ango Ango, due U.S. to his involvement in significant corruption related to wildlife trafficking. Pursuant to a federal statute, the Colonel and his wife were ineligible for entry into the U.S.

And on October 31, President Trump announced that effective January 1, the U.S. would suspend Cameroon’s participation in a U.S. preferential trade program because “the Government of Cameroon currently engages in gross violations of internationally recognized human rights. . . . Despite intensive engagement between the United States and the Government of Cameroon, Cameroon has failed to address concerns regarding persistent human rights violations being committed by Cameroonian security forces.  These violations include extrajudicial killings, arbitrary and unlawful detention, and torture.”

An individual, perhaps with Cameroonian connections (Joel Ademisoye), registered objections to this U.S. suspension of that country’s eligibility for certain trade benefits. He said, “interestingly and unfortunately, President Trump has weaponized and turned the [African Growth and Opportunity Act] AGOA into an economic instrument to intervene, ameliorate and solve a political crisis in Cameroon.” This is “an inappropriate way to address a volatile political issue that centers on historic, cultural and linguistic fault lines in Cameroon. Preventing Cameroon access to the U.S. market would have significant negative effects on the powerless and poor in Cameroon.” Instead, he opines, “Mr. Trump should restrict the supply of military weapons to and ban assistance for police training to the Biya administration because of its effective employment of the country’s security forces to oppress, subjugate and kill the Anglophone people in Cameroon and deny them their human rights.”

 U.S. Embassy in Cameroon [3]

On October 1, the U.S. Embassy issued its only statement regarding the National Dialogue, which was mentioned in President Biya’s speech. It was made to clarify the role of the U.S. in Cameroon’s National Dialogue by saying the U.S. “is a neutral observer of the process and, while we have offered to play a role in identifying an eventual solution, we would need to be asked by both sides before taking on this role. The United States remains a committed partner and friend of Cameroon.  Our desire is for all Cameroonians to live in peace.  The Embassy urges all involved in the conflict in the Anglophone Northwest and Southwest to abjure further violence and enter into an open-ended dialogue.”

The Embassy also has made the following comments on some of the continued unrest in the country.

  • On October 5, the Embassy welcomed Cameroon’s “decision to drop charges against Maurice Kamto and other members and supporters of the Cameroon Renaissance Movement (MRC) arrested following election protests earlier this year.  Their release from prison today is a constructive step toward relieving political tensions and affirming the government’s commitment to respect for fundamental freedoms.  We hope further measures will be taken in the wake of the recently concluded National Dialogue, leading to the restoration of peace in the Northwest and Southwest Regions.”
  • On October 11, the Embassy condemned “the horrific late September aggravated assault, murder, and beheading of a female prison official and mother of three in the Northwest Region of Cameroon.  We extend our deepest condolences to her surviving family. We urge the authorities to undertake a thorough and balanced investigation of this and other atrocities and bring the perpetrators to a fair and transparent trial.”“More violence is not the answer.  We call on both sides to the conflict in the Northwest and Southwest to abjure further violence and to enter into an open-ended dialogue without pre-conditions.”
  • On November 12, it was a “Demonstration Alert” about “the potential for demonstrations and unrest related to a reported ban on motorcycle taxis in certain areas within Yaoundé.  There is currently a heightened law enforcement presence at roundabouts and other intersections throughout the city.”
  • On November 20, it was a “Security Alert,” which stated, “S. citizens in the North and Far North Regions of Cameroon should take all necessary precaution to prevent attacks, kidnappings, or other associated actions by terrorist groups seeking to retaliate for the death of ISIS leader Abu Bakr al-Baghdadi.   The Embassy reminds U.S. citizens that our April 9, 2019, Travel Advisory for Cameroon advises no travel to these regions due to the threat of crime, kidnapping, and terrorism.”

In addition, the U.S. Embassy has made the following recent positive comments about the country that say or suggest the U.S. was still supporting the Cameroon government.[5]

  • On September 26, the Embassy published U.S. remarks congratulating Cameroon on “the many successes of the PREDICT 2 project, funded by the United States government.  This project is just one of the many ways that the United States is partnering every day with Cameroon for a healthy, prosperous, and peaceful future for the people of this country.”
  • On October 17, the U.S. Ambassador presented self-help and refugee awards to seven Cameroonians. He emphasized that the U.S. “is a committed partner to all Cameroonians who are striving to improve the governance, prosperity, peace, and health of their fellow citizens. . . . We know that it is Cameroonians who will bring sustainable solutions to the critical problems of their country.”
  • On October 18, the U.S. Ambassador awarded “over 42 million FCFA to seven Cameroonian organizations working for the development, health, and prosperity of their communities” as “an example of the [U.S.] commitment to its partnership with Cameroon.”
  • On October 20, the U.S. Ambassador to Cameroon gave a speech in Yaoundé (the country’s capitol) congratulating Cameroon and certain other African countries for progress in fighting the disease of meningitis.
  • On October 24, the Embassy welcomed the “voluntary return” of groups of refugees to the neighboring country of the Central African Republic (CAR) and congratulated the “governments of Cameroon and [CAR and ] UN High Commissioner of Refugees “for their cooperation and goodwill.” The U.S. “is the largest donor of humanitarian assistance in Cameroon, having contributed over $87 million since 2018 to humanitarian actors to provide food, water, shelter, and other services benefitting refugees and other vulnerable populations.  We encourage other countries to contribute more to the urgent needs of refugees and vulnerable populations in Cameroon in a way that supports progress toward stability, good governance, and self-reliance. We recognize the hospitality of the government of the Republic of Cameroon and of the Cameroonian people in continuing to host more than 400,000 refugees from neighboring countries.  Protecting the rights of refugees and ensuring they have access to jobs and education for their children is fundamental.”
  • On October 30, the Embassy congratulated Cameroon on the first international certification of a blood bank in the country.
  • On October 31, the U.S. Embassy in Cameroon released a statement expressing deep sadness over “the loss of life, destruction of homes, and displacement of people due to floods and landslides in the neighborhood of Gouache near the West Region’s capital city of Bafoussam.  We convey our deepest condolences to the families of those who have died or been injured and to the Government of Cameroon.  The United States expresses its solidarity with the people of the West region and stands ready to work with the regional and national authorities as they respond to the humanitarian needs resulting from this natural disaster.”
  • On November 1, the U.S. Embassy released a statement about the previously mentioned U.S. decision to terminate certain trade benefits for the country as of January 1, 2020. But its headline was “U.S. Commitment to Cameroon Remains Strong Despite Change in AGOA Status.” The statement itself said the U.S. remains “committed to working with Cameroon to [meet the criteria for that trade status]. In 2018, Cameroon exported roughly $220 million in goods and services to the United States; $63 million was exported under AGOA, over 90 percent of which was crude petroleum.  The United States is a committed partner and friend of Cameroon, and we will continue to pursue robust and diverse commercial ties, working with other tools at our disposal toward realizing the enormous potential of this relationship for our mutual prosperity and economic growth.”

Conclusion

The difference in the messaging of the State Department and the Embassy is striking. While it is easy to understand the Embassy’s desire to maintain good relations with the country, this blogger finds it unusual that this messaging was not repeated or endorsed by the Department.

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[1] See generally List of Posts to dwkcommentareis—Topical: CAMEROON.

[2] State Dep’t, Cameroon’s National Days National Day (May 20, 2019); U.S. Announces Suspension of Military Aid to Cameroon, dwkcommentaries.com (Feb. 7, 2019); U.S. Announces Suspension of Military Aid to Cameroon, dwkcommentaries.com (Feb. 7, 2019); State Dep’t, U.S. Department of State Announces Updates to Safety and Security Messaging for U.S. Travelers (April 9, 2019); State Dep’t, Public Designation, Due to Involvement in Significant Corruption, of the Republic of Cameroon’s Jean Claude Ango Ango (July 9, 2019); White House, Message to the Congress (Oct. 31, 2019); Paquette, Trump ends trade benefits for Cameroon over ‘persistent human rights violations,’ Wash. Post (Nov. 1, 2019; Letter to Editor from Joel Ademisoye,  Wash. Post (Nov. 6, 2019).

[3] U.S. Embassy, PRESS RELEASE: Clarification of U.S. role In Cameroon’s National Dialogue (Oct. 3, 2019); U.S. Embassy, The Charge d’Affairs’ Speech during the Closeout Ceremony of the USAID Predict Project (Sept. 26, 2019); U.S. Embassy, U.S. Embassy, Media Publishers Called to be Good Managers (Oct. 3, 2019); U.S. Embassy, Ambassador PeterBarlerin’s Remarks at the 2018 Ambassador’s Special Self-Help and Julia Taft Refugee Fund Small Grant Presentation Ceremony (Oct. 17, 2019); U.S. Embassy, PRESS RELEASE: Ambassador Awards Grants to Help Local Communities (Oct. 18, 2019);U.S. Embassy, Speech by U.S. Ambassador Peter Henry Barlerin On the occasion of the 16th Annual Meeting on Surveillance, Preparedness and Response to Meningitis (Oct. 23, 2019); U.S. Embassy, PRESS RELEASE: United States Welcomes Voluntary Return of Central African Refugees (Oct.24, 2019); U.S. Embassy, PRESS RELEASE: United States Congratulates Cameroon for Certification of Blood Bank (Oct. 30, 2019); U.S. Embassy, PRESS RELEASE: United States Condolences to Those Affected by Landslide in West Region (Oct. 31, 2019); U.S. Embassy, PRESS RELEASE: U.S. Commitment to Cameroon Remains Strong Despite Change in AGOA Status (Nov. 1, 2019).

 

Cuba Tells European Union That Ferrer Is Not a Political Detainee 

On November 26, 2019, Norma Goicochea, Cuba’s Ambassador to the European Union (EU), released an open letter to the European Parliament asserting that José Daniel Ferrer is not a political detainee on the island.[1] The following alleged grounds were provided for that conclusion:

  • On October 1 Ferrer was arrested “in response to the complaint filed by his countryman Sergio García, who accused him and three other individuals of kidnapping him for a whole night,” severely beating him and leaving him in hospital admission.
  • Ferrer now is awaiting trial on charges from that incident.
  • The U.S. and its diplomatic mission in Cuba have been “guiding, instigating and financing the violent and destabilizing behavior of Ferrer while intending “to fabricate the image of [him as] a persecuted and mistreated” political dissident.
  • Moreover, “the US embassy in Havana [has concentrated] in recent months on the failed purpose of recruiting mercenaries, of promoting division and confusion in [Cuba], of identifying the areas of the [Cuban] economy against which [to] direct coercive measures, and [of] trying to slander and discredit the management of the Cuban Government and the Revolution. ”
  • In Cuba, “as in many countries where the rule of law prevails, it is the law that establishes the procedures and circumstances that warrant detention; as well as the terms [for holding a] detainee . . . subject to precautionary measures, [and when a] criminal proceeding must be initiated or [dismissed.]”
  • “Ferrer has received a visit from his wife and children and received proper medical attention.” In addition, he “performs regular physical exercises and, upon request, religious assistance is provided. I can assure you that all references to [his] physical disappearance, alleged physical abuse, torture or receiving insufficient food are false. These lies are deliberately conceived and guided by the United States Government and its Embassy in Havana.”

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[1] Cuba points to the European Union that José Daniel Ferrer is not a political detainee, Cubadebate (Nov. 26, 2019).  Earlier blog posts have discussed recent events regarding Ferrer.

 

 

U.N. Human Rights Council Considers Cameroon’s Human Rights Issues 

In  early 2019, the U.N. High Commissioner for Human Rights Michelle Bachelet on behalf of the U.N. Human Rights Council visited Cameroon to assess its human rights record in the Francophone-Anglophone crisis. Afterwards the Council published a press release about the visit.[1] Here is what it said.

The High Commissioner “welcomed the Government’s openness to work with the UN Human Rights Office, and the rest of the UN, to seek effective solutions to the major human rights and humanitarian crises caused by the serious unrest and violence taking place in the west and north of the country.”

She said, ““I believe there is a clear – if possibly short – window of opportunity to arrest the crises that have led to hundreds of thousands of internally displaced people, as well as the killings and brutal human rights violations and abuses that have affected the northern and western areas of the country,” Bachelet said. “But it will not be easy to turn these situations around. It will take significant actions on the part of the Government, and substantial and sustained support from the international community – including us in the UN.”

She added, ““The challenges are immense, and the situation involving some ten or more separatist movements in the North-West and South-West regions risks spiraling completely out of control, if serious measures are not taken to reduce tensions and restore trust. There is also a general understanding that the root causes and underlying grievances must also be tackled if long-term stability is to return to a country that had, until just a few years ago, been one of the most settled and peaceful in the region.”

These problems coincide with “other major challenges, including cross-border incursions by armed groups and criminal organizations along its eastern border with the Central African Republic. At the same time, in the north of the country, the armed forces are struggling to cope with the depredations and suicide attacks perpetrated by Boko Haram and, in the far north around Lake Chad, the population is being terrorized and  attacked by another extremist organization, the so-called Islamic State in West Africa (ISWA). In addition, Cameroon is hosting hundreds of thousands of refugees from the Central African Republic and Nigeria.”

“In several regions, civilians and soldiers have been killed and mutilated, and entire villages have been burned.  Children have been abducted and forced to join the armed groups, and have even been utilized as unwitting suicide bombers by Boko Haram. In the two western regions, schools, hospitals and other key infrastructure has been targeted and destroyed by the various separatist groups; and government employees, including teachers who have dared to continue teaching, have been targeted and killed or abducted.”

“The security forces have also been accused of committing serious violations, including extra-judicial killings and torture, against civilians and captured fighters in both the north and the west.”

Bachelet said she believed that two new Cameroonian bodies—the National Commission for the Promotion of Bilingualism and Multiculturalism and the National Disarmament, Demobilization and Reintegration Committee—“can potentially make important contributions over time to better understand and deal with the crisis in the two western regions, and to encourage increasing numbers of fighters to lay down their arms and reintegrate into society in both the north and the west. Nevertheless, one should not underestimate the daunting challenges both bodies are facing, and I offered to share advice and important lessons we have learned from similar efforts in other parts of the world.”

She “also offered to provide advice and assistance to the Government – similar to that being provided to the G5 forces in the Sahel – to help ensure that military operations are in compliance with international human rights standards and violations are prevented, when military forces are engaged in counter-terrorism operations and combat against armed groups.”

Although government troops faced great challenges, “it is essential that members of the security forces who commit serious violations are held accountable.” Indeed, “every violation committed by Government forces is not only unlawful, but also counter-productive as it plays into the hands of the extremist groups, by feeding local resentment and aiding recruitment. The armed forces must win and keep the trust of local populations, and to do that they must keep scrupulously within the framework of international law and standards. If they fail to do that, they will not defeat an enemy that thrives on civilian mistrust of the authorities. In the meantime, the civilians trapped between these two powerful, if asymmetric, opposing forces, are increasingly vulnerable to lethal abuses and violations by both sides.”

The High Commissioner urged the government “to be fully transparent about such cases. It is essential that crimes are punished, and are seen to be punished. If there is impunity, then there is an assumption of immunity – and this will lead to more crimes being committed, and a further decline in trust in the armed forces, which will only compound the challenges they face. The maintenance of morale is important, but deterring unlawful actions by members of the security forces is imperative. This particular issue is damaging Cameroon’s international standing, and undermining international support for efforts to combat the armed groups operating on its territory.”

Another condemnation was leveled by the High Commissioner at “the targeting of civilians by all armed groups, as well as the torching of schools and medical facilities by the separatist groups in the North-West and South-West regions. “There is no logic to their behavior,” she said. “If they are arguing for more autonomy, why seek to deprive their own children of education, why kill the teachers, and destroy the health facilities? This is not idealistic, it is nihilistic. The only way to solve the issues in the two western regions is through dialogue, including in-depth analysis of the root causes of the unrest, and I urge all sides including the Government to make a strenuous effort to end the fighting and begin peace talks.”

Bachelet “also raised the issue of lack of access for both international and national human rights workers – including the National Commission on Human Rights and Freedoms – and the humanitarian agencies, to the affected regions. The lack of access is feeding international and local mistrust: including mistrust of the casualty figures; suspicions and competing narratives about who is responsible for which violations and abuses; and reluctance to give full support to the Government’s efforts to deal with these crises, for fear that the lack of access and lack of clarity is masking something untoward. Limited access is also hampering the efforts of the humanitarian agencies to reach victims, and this in turn may fuel further population movements. So, as much access as possible – within the limits of what is safe – would be an important positive step forward in terms of building confidence, and I appreciate the attention the Government has given to this particular request.”

Yet another concern was “the shrinking of civic space in Cameroon, noting that some of the civil society organizations, religious leaders, opposition politicians and diplomats she met with described how certain rights and freedoms, especially those of peaceful association and assembly, had been eroded in recent months. Human rights defenders described how they have been facing harassment by the police, and many of the High Commissioner’s interlocutors raised the issue of the arrest of leading opposition politician Maurice Kamto and more than 150 of his supporters.”

A specific criticism was raised about the “practice of charging civilians before military courts.”

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[1] UN Office of High Commissioner, Bachelet welcomes Cameroon’s willingness to cooperate to tackle human rights crises (May 6, 2019). Also relevant are previous posts about Cameroon.

 

State Department’s New U.S.-Cuba Relations Fact Sheet

On November 22, the State Department published its new U.S.-Cuba “Bilateral Relations Fact Sheet.”[1] Here is what it said.

“U.S.-CUBA RELATIONS “

“The United States seeks a stable, prosperous, and free country for the Cuban people. The United States pursues limited engagement with Cuba that advances our national interests and empowers the Cuban people while restricting economic practices that disproportionately benefit the Cuban government or its military, intelligence, or security agencies at the expense of the Cuban people. The U.S. government seeks to promote human rights, religious freedom, and democracy, encourages the development of telecommunications and the internet in Cuba, supports the growth of Cuba’s nascent private sector and civil society, and engages in areas that advance the interests of the United States and the Cuban people. The United States is committed to supporting safe, orderly, and legal migration from Cuba through the effective implementation of the U.S.-Cuba Migration Accords. Due to injuries sustained by our diplomatic community in Havana, visa processing for most Cuban applicants is presently taking place in third countries.”

“Bilateral Economic Relations”

“Although economic sanctions remain in place, the United States is the largest provider of food and agricultural products to Cuba, with exports of those goods valued at $220.5 million in 2018.  The United States is also a significant supplier of humanitarian goods to Cuba, including medicines and medical products, with total value of all exports to Cuba of $275.9 million in 2018. Remittances from the United States, estimated at $3.5 billion for 2017, play an important role in Cuba’s state-controlled economy.”

“Travel to Cuba” 

“Travel to Cuba for tourist activities remains prohibited, and U.S. federal regulations restrict travel to Cuba to licensed travelers engaged in certain specified activities. Anyone physically present in the United States, regardless of citizenship and nationality, must comply with these regulations.  Individuals seeking to travel to Cuba are not required to obtain licenses from the Treasury Department’s Office of Foreign Assets Control (OFAC) if their travel is authorized under a general license.  For travel not covered by a general license, travelers must seek OFAC authorization in the form of a specific license. Further information on the licensing process or the categories of authorized travel can be found on OFAC’s website.  Those contemplating travel to Cuba should also consult the consular information page about the country.”

“Transactions Involving Cuba”

“Transactions by persons subject to U.S. jurisdiction involving Cuba are generally prohibited unless specifically authorized by OFAC. For more information on transactions, please consult OFAC’s website.”

“Certain exports to Cuba must be licensed by the Department of Commerce’s Bureau of Industry and Security (BIS). Further information on exports to Cuba can be found on the BIS website. Most imports from Cuba and other Cuban-origin goods (e.g., merchandise purchased or otherwise acquired in Cuba or of Cuban origin acquired in a third country) are prohibited, although importation of Cuban-origin information and informational materials (for example, publications, films, posters, photographs, tapes, compact discs, and certain artwork) are exempt from the prohibition.  Exports of certain items to Cuba that are intended to improve the living conditions, support independent economic activity, strengthen civil society, improve the free flow of information and facilitate lawful travel and commerce are generally authorized without a license (see here).  Moreover, certain goods and services produced by independent Cuban entrepreneurs are eligible for importation into the United States – for more information, see the State Department’s Section 515.582 List.  Further information on imports from Cuba can be found on the OFAC website.”

“Cuba Restricted List” 

“Direct financial transactions with certain entities and sub-entities under the control of, or acting for or on behalf of, the Cuban military, intelligence, or security services are also generally prohibited.  For more information, see the State Department’s Cuba Restricted List; Treasury’s regulations at 31 Code of Federal Regulations (CFR) part 515.209, here; and Commerce’s regulations at 15 CFR parts 730-774, here.”

“Cuba’s Membership in International Organizations”

“Cuba and the United States belong to a number of the same international organizations, including the United Nations and the World Trade Organization, but usually take opposing positions on international issues.  Cuba was suspended from participation in the Organization of American States in 1962.  Its suspension was lifted in 2009; however, it has not engaged in the dialogue required for further participation in OAS processes.  At the invitation of host governments, Cuba attended the Summit of the Americas in 2015 and 2018.”

“Bilateral Representation”

“Principal U.S. embassy officials are listed in the Department’s Key Officers List.”

“Cuba is represented in the United States by the Cuban Embassy in Washington, DC.”

“More information about Cuba is available from the Department of State and other sources, some of which are listed here:

CIA World Factbook Cuba Page
U.S. Embassy
USAID Cuba Page
History of U.S. Relations With Cuba
Office of the U.S. Trade Representative Countries Page
U.S. Census Bureau Foreign Trade Statistics
Office of Foreign Assets Control Sanctions Page
Bureau of Industry and Security Cuba
Travel Information

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[1] State Dep’t, U.S.Relations with Cuba: Bilateral Relations Fact Sheet (Nov. 22, 2019).

 

Two Federal Appellate Courts Uphold Subpoenas for Trump Accounting Records  (Updated 11/22/19)   

Over the last two weeks two federal appellate courts have upheld different subpoenas to the Mazars USA accounting firm for records relating to Donald J. Trump.

D.C. Circuit Court of Appeals

As discussed in a prior post, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on October 11, 2019, upheld (2-1) a subpoena by an U.S. House of Representatives committee to Mazars for certain Trump accounting records.

A month later, on November 13, that court denied, 8-3, Trump’s motion for the full (en banc) court to review that decision of the three-judge panel.[1] As is typical, there was no opinion by the eight judges denying the motion. However, two of the three dissenting judges, wrote opinions.

Judge Gregory Katsas joined by Judge Karen Henderson, said, “this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary. For the second time in American history, an Article III court has undertaken to enforce a congressional subpoena for the records of a sitting President. The first time this was attempted with then President Nixon, this court refused to enforce the subpoena, stressing “the availability of impeachment foreclosed any conclusion that the records at issue were ‘demonstrably critical to the responsible fulfillment’ of Congress’s legislative prerogatives, even when Congress was investigating significant allegations of presidential misconduct. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731–33 (D.C. Cir. 1974) (en banc).”

The other dissenting opinion, by Judge Neomi Rao, who also was joined by Judge Henderson, emphasized that this subpoena was not really justifiable by the congressional power to enact new laws. It was really a subpoena looking for impeachable offenses, which is not part of the legislative power.

Afterwards an attorney for Trump said that he would now petition the U.S. Supreme Court to review the case.

And on November 15, his attorneys did just that by asking Chief Justice John Roberts, who is responsible for emergency requests from the D.C. Circuit, for a stay of proceedings while the Supreme Court considers his petition for review of the merits of the lower court’s decision. This request argued for such a stay for the following reasons: (I) “There is a reasonable probability that the Court will grant certiorari to determine whether the Committee’s subpoena is lawful.” (II) “There is a fair prospect that this Court will reverse the D.C. Circuit’s decision upholding the subpoena.” (III) “Applicants will suffer irreparable harm without a stay.” (IV) “The balance of equities and relative harms weigh strongly in favor of granting a stay.” [2]

On November 18, the attorneys for the House Committee filed a letter with the Supreme Court announcing that they planned to file an opposition to the requested stay on November 22, but that out of courtesy to the Court the Committee does not oppose “a short ten-day administrative stay, beginning on November 20, 2019, to enable the Court to receive an opposition by the Committee and then rule on the request for a stay. Thereafter the same day, Chief Justice Roberts ordered “that the mandate of . . . [the D.C. Circuit] is hereby stayed pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court.”[3]

One of Trump’s attorneys, William S. Consovoy, “said the Supreme Court’s intervention was imperative. Under the lower court’s decision, ‘any committee of Congress can subpoena any personal information from the President; all the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information. Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of Presidents will become our new normal in times of divided government — no matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.”

In accordance with that order, the House Committee on November 21 submitted its opposition to the Trump motion. It argued that the Court’s precedents involving Presidents Richard M. Nixon and Bill Clinton make clear that the chief executive enjoys no special privilege to be free from investigation or legal action and that a stay would cause irreparable harm to the Congress and the public, outweighing whatever harm enforcement of the subpoena would cause Trump and Mazars. The House Committee also argued that if the Court agrees to a stay of a lower court’s order, the Court should expedite a decision on whether to order a full briefing and a hearing on the case.[4]

Second Circuit Court of Appeals

Such a petition to the Supreme Court would join a similar one by Trump from a November 4 unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City upholding a state grand jury subpoena for accounting records from the Mazars firm relating to a probe into whether the accounting for payments Mr. Trump’s former lawyer, Michael Cohen, made to two women violated state laws against falsifying business documents. .[5]

During the oral appellate argument of this case, one of the judges asked the Trump attorney if local authorities could investigate President Trump if he shot someone on Fifth Avenue in New York City, and the attorney said the authorities could not so investigate.

After the Second Circuit’s decision, Jay Sekulow, an attorney for Trump, said that Trump would ask the U.S. Supreme Court to review the case because, he claimed, ““The issue raised in this case goes to the heart of our republic. The constitutional issues are significant.”

In fact, on November 14, Trump petitioned the Supreme Court for a review of the following issues in this case: (I) “Whether the President is absolutely immune is an important and unsettled issue of federal law that the Court should resolve” and (II)   “The Second Circuit incorrectly decided this important immunity question.” The petition also alleged, “For the first time in our nation’s history, a state or local prosecutor has launched a criminal investigation of the President of the United States and subjected him to coercive criminal process. . . . Politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”[6]

In a contemporaneous statement, Sekelow stated, “”The Second Circuit decision is wrong and should be reversed. In our petition, we assert that the subpoena violates the U.S. Constitution and therefore is unenforceable. We are hopeful that the Supreme Court will grant review in this significant constitutional case and reverse the dangerous and damaging decision of the appeals court.”

The Department of Justice also filed with the Supreme Court an amicus brief supporting Trump’s petition while saying that there are instances when a local prosecutor might legally seek a president’s documents — but that this was not one of them.[7]

Trump filed this petition so immediately because of his attorneys’ agreement with the New York prosecuting attorneys whereby the latter “agreed not to seek the tax returns until the case is resolved by the Supreme Court” so long as Trump agreed to “a very quick briefing schedule, one that would allow the Supreme Court to announce whether it will hear the case as soon as next month and to issue a decision by June, as the presidential election enters its final stages.”

Conclusion

Now the parties to these cases will be joined by all of us in the U.S. and elsewhere for the briefing on whether the Supreme Court should grant such review, the Court’s decision on these petitions and, if review is granted, the briefing and oral arguments in that court and its ultimate decision (in the midst of the 2020 presidential campaign).

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[1]  Order, Trump v. Mazars USA, LLP and Committee on Oversight and Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Nov. 13, 2019); Savage, Court Rejects Trump’s Appeal in Fight to Keep Financial Records from Congress, N.Y. Times (Nov. 13, 2019); Reuters, U.S. Appeals Court Again Backs House Request for Trump Tax Documents, N.Y. Times (Nov. 14, 2019).

[2] Emergency Application for a Stay of Mandate Pending the Filing and Disposition of a Petition for a Writ of Certiorari, Trump v. Mazars USA, LLP, Committee on Oversight and Reform of the U.S. House of Representatives, No. 19A545 (Nov. 15, 2019); Liptak, Trump Again Asks Supreme Court to Block Release of His Financial Records, N.Y. Times (Nov. 15, 2019); Hurley & Freifeld, Trump asks Supreme Court to block disclosure of financial records to Congress, Reuters (Nov. 15, 2019); Barnes & Marimow, Trump appeals to Supreme Court again, this time to block House committee’s subpoena seeking his financial records, Wash. Post (Nov. 15, 2019).

[3] Letter, House Committee to Clerk of Supreme Court, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Order, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019) Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Barnes, Supreme Court puts temporary hold on Trump financial records ruling, Wash. Post (Nov. 18, 2019); Liptak, Chief Justice Gives Trump Temporary Reprieve in Financial Records Case, N.Y. Times (Nov. 18, 2019).

[4] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); House Committee, Opposition to Emergency Application for a Stay of Mandate, No. 19A545 (Sup. Ct. Nov. 21, 2019).

[5] Opinion, Trump v. Vance, No. 19-3204 (2d Cir. Nov. 4, 2019); Weiser & Liptak, Trump Taxes: Appeals Court Rules President Must Turn Over 8 Years of Tax Returns, N.Y. Times (Nov. 14, 2019); Neumeister, Appeals court agrees Trump tax returns can be turned over, Wash. Post (Nov. 4, 2019).

[6] Petition for Writ of Certiorari, Trump v. Vance, No. —- (U.S. Sup Ct. Nov. 14, 2019); Liptak, Trump Asks Supreme Court to Bar Release of His Tax Returns, N.Y. Times (Nov. 14, 2019); Barnes & Marimow, Trump asks Supreme Court to shield his tax returns from prosecutors, setting up historic separation-of-powers showdown, Wash. Post (Nov. 14, 2019); Bravin, Kendall & Ramey, Trump Asks Supreme Court to Block New York Subpoena for Tax Records, W.S.J. (Nov. 14, 2019); Samuelson & Gerstein, Trump lawyers take fight over tax returns to Supreme Court, Politico (Nov. 14, 2019); deVogue, Trump asks Supreme Court to block subpoena for tax returns, CNN.com (Nov. 14, 2019).

[7] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); Liptak, Justice Dept. Urges Supreme Court to Back Trump in Tax Records Case, N.Y. Times (Nov. 22, 2019); Vance, Jr.,  Brief in Opposition, No. 19-635 (Sup. Ct. Nov. 21, 2019).

 

 

 

 

Two Federal Appellate Courts Uphold Subpoenas for Trump Accounting Records

Over the last two weeks two federal appellate courts have upheld different subpoenas to the Mazars USA accounting firm for accounting records relating to Donald J. Trump.

D.C. Circuit Court of Appeals

As discussed in a prior post, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on October 11, 2019, upheld (2-1) in an opinion by Judge David S. Tatel a subpoena by an U.S. House of Representatives committee to Mazars, USA for certain accounting records of Donald J. Trump.

A month later, on November 13, that court denied, 8-3, Trump’s motion for the full (en banc) court to review that decision of the three-judge panel.[1] As is typical, there was no opinion by the eight judges denying the motion. However, two of the three dissenting judges, wrote opinions.

Judge Gregory Katsas joined by Judge Karen Henderson, said, “this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary. For the second time in American history, an Article III court has undertaken to enforce a congressional subpoena for the records of a sitting President. The first time this was attempted with then President Nixon, this court refused to enforce the subpoena, stressing “the availability of impeachment foreclosed any conclusion that the records at issue were ‘demonstrably critical to the responsible fulfillment’ of Congress’s legislative prerogatives, even when Congress was investigating significant allegations of presidential misconduct. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731–33 (D.C. Cir. 1974) (en banc).”

The other dissenting opinion, by Judge Neomi Rao, who also was joined by Judge Henderson, emphasized that this subpoena was not really justifiable by the congressional power to enact new laws. It was really a subpoena looking for impeachable offenses, which is not part of the legislative power.

Afterwards an attorney for Trump said that he would now petition the U.S. Supreme Court to review the case.

Second Circuit Court of Appeals

Such a petition would join a similar one by Trump from a November 4 unanimous decision by Chief Judge Robert Katzmann for a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City upholding a subpoena by the District Attorney of the County of New York in Manhattan for similar accounting records from the Mazars accounting firm.[2]  During the oral argument of this case, one of the judges asked the Trump attorney if local authorities could investigate President Trump if he shot someone on Fifth Avenue in New York City, and the attorney said the authorities could not so investigate.

After that decision, Jay Sekulow, an attorney for Trump, said that Trump would ask the U.S. Supreme Court to review the case because, he claimed, ““The issue raised in this case goes to the heart of our republic. The constitutional issues are significant.”

Conclusion

Now the parties to these cases will be joined by all of us in the U.S. and elsewhere for the briefing on whether the Supreme Court should grant such review, the Court’s decision on these petitions and, if review is granted, the briefing and oral arguments in that court and its ultimate decision (in the midst of the 2020 presidential campaign).

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[1]  Order, Trump v. Mazars USA, LLP and Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Nov. 13, 2019); Savage, Court Rejects Trump’s Appeal in Fight to Keep Financial Records from Congress, N.Y. Times (Nov. 13, 2019); Reuters, U.S. Appeals Court Again Backs House Request for Trump Tax Documents, N.Y. Times (Nov. 14, 2019).

[2] Opinion, Trump v. Vance, No. 19-3204 (2d Cir. Nov. 4, 2019); Weiser & Liptak, Trump Taxes: Appeals Court Rules President Must Turn Over 8 Years of Tax Returns, N.Y. Times (Nov. 4, 2019); Neumeister, Appeals court agrees Trump tax returns can be turned over, Wash. Post (Nov. 4, 2019)