After a Year of Page Views for Credulous Reports Trump Wanted to Do Mueller Interview, NYT Gets Page Views Admitting He Won’t

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President Trump told a lot of lies in his interview with Chris Wallace yesterday. He lied when he claimed he didn’t know Matt Whitaker opposed the Mueller investigation when Trump hired him (he even suggested there was some ambiguity in Whitaker’s attacks on Mueller). He lied when he claimed Georgia’s gubernatorial race was stacked against Brian Kemp, who cheated to win it. He lied when he claimed no one believes in the First Amendment more than he does. He lied when he claimed no one had done more for the military than he has (after saying “I really probably assumed [skipping an appearance at Arlington on Veterans Day] was fine”).

In other words, that interview was just like every other interview Trump does, an opportunity to float lies and have them treated seriously.

Which is why I’m amused by the headline takeaway NYT Maggie gave the story, treating Trump’s assertion that he won’t sit for an interview with Mueller’s team as a reversal.

President Trump said in an interview aired Sunday that he most likely would not sit for an interview with the special counsel, Robert S. Mueller III, asserting that “we’ve wasted enough time on this witch hunt and the answer is, probably, we’re finished.”

[snip]

His comments on the Mueller investigation marked an apparent reversal from a year of claiming that he was willing and eager to be interviewed by the special counsel, who is investigating possible collusion between the president’s campaign and Russian officials during the 2016 election. Mr. Trump’s legal team has blanched at the idea, fearing that the president might lie under oath, and has steadily narrowed the path for such an interview.

Of course, it’s not a reversal at all. Since at least March (when Mueller indicated to Jay Sekulow his questions would reflect real knowledge of Trump’s awareness of a conspiracy with the Russians), Trump and his advisors have been involved in a game whereby they used the press — starting with Maggie — to sustain a claim of cooperation when in fact they were really stalling.

A more honest headline might read, “Trump confirms we got taken as chumps.” Instead, the NYT will get some more page views without admitting that they’ve been getting page views for most of a year on reports that were not credible.

And that stalling is one of the aspects of the Mueller part of Wallace’s interview that is interesting. While Trump initially adopts the present progressive that Wallace uses to ask a question about Trump’s open book test, elsewhere he describes having completed the questions. He even asserts he’ll be handing them over “very soon.”

WALLACE: Your team is preparing written answers to questions about–

TRUMP: No, no, no, not my team. I’m preparing written answers. My — I — I’m the one that does the answering. Yes, are they writing them out?

WALLACE: Yes.

TRUMP: Yeah. They’re writing what I tell them to write.

WALLACE: Are they going to be submitted?

TRUMP: At some point very soon, yes. I’ve completed them.

WALLACE: So you’re — you are submitting—

TRUMP: And it wasn’t a big deal. By the way, it wasn’t a big deal. The answers — the questions were asked and answered. It wasn’t a big deal. You know, they make it like I had meetings for many, many hours — I got the questions, I responded, we wrote them out, I read them once, I read them a second time, we made some changes, that’s it. They’re very simple.

WALLACE: OK.

TRUMP: You know why? I did nothing wrong.

WALLACE: Here’s my question, though. You are submitting written answers–

TRUMP: Yes.

WALLACE: –to the special counsel about the issue of collusion but not on obstruction of justice?

TRUMP: Well there was no obstruction of justice.

WALLACE: I — I’m — let me — if i might, sir, just ask–

TRUMP: I think they’d probably agree with me.

WALLACE: If I may ask the question–

TRUMP: And all you have to do is look at Article II.

WALLACE: Is that your final position, that there’s going to be no sit-down interview and nothing written or in person on obstruction?

TRUMP: I would say probably. Probably. I mean, I can change my mind, but probably. I think we’ve–

WALLACE: No interview?

TRUMP: I think we’ve wasted enough time on this witch hunt and the answer is probably, we’re finished.

WALLACE: What are the odds? One in a hundred? What–What?

Trump has been stalling on answering these questions for weeks, first by failing to complete them before the election, then further stalling until Matt Whitaker got OLC’s approval to serve as Attorney General. At least from what he said to Wallace, he is now ready to hand them in, perhaps in a belief that Whitaker has a plan to kill the investigation once that happens (which might be why he said “we’re finished”).

I’ve said from the start that these questions may be the last step Mueller has before rolling out what he has been working on.

[T]his agreement may have as much to do with preparation for the post-election period in which Mueller can roll out any indictments he has been working on and Trump can start firing people. That is, before he makes any big moves in the case in chief, he has to get Trump on the record in some form or other. Better to get him on the record in sworn written statements than launch a subpoena fight that will last past that post-election period.

And one possible explanation for the fairly odd delay in submitting a status report in Paul Manafort’s case is that Mueller doesn’t want to say anything about Manafort’s cooperation until after he has Trump’s sworn answers.

So while Trump didn’t say precisely when he was going to turn in his overdue open book test, he at least asserted that he will do so.

The NYT headline probably should have read, “The 11-month NYT-assisted stall will soon be over.”

Update: As linked above, in a post trying to lay out the possible reasons why Mueller would delay a status report on Manafort until November 26 is that he wanted to get Trump’s answers before releasing the status report.

Politico reports that Trump may turn in his open book test tomorrow, before he heads to Mar-a-Lago for Thanksgiving.

Trump’s lawyers set an informal Thanksgiving deadline for the president to finalize his responses on topics surrounding the Russian hacking of the 2016 election, and he’s almost ready to submit them, according to two sources familiar with the conversations.

The president’s written answers — which carry the same legal burden for truthfulness as an in-person interview — are likely to be submitted as Trump settles into his Mar-a-Lago club in South Florida for the Thanksgiving holiday. Trump is scheduled to depart Washington, D.C., on Tuesday afternoon.

A Day after Maria Butina Argues Influence Operations Shouldn’t Be Charged as Spying, Plea Negotiations Start

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As a number of people reported, on Friday, the government and Maria Butina got the court to delay her case by two weeks so they can try to resolve it, suggesting they’re in plea negotiations.

In support of this motion, the parties state that they continue to engage, as they did prior to yesterday’s defense filing, in negotiations regarding a potential resolution of this matter and that those negotiations would be potentially hindered by simultaneously engaging in motions practice. The parties further agree that to make the best and most efficient use of the Court’s time and resources to decide any motions in the event those negotiations are unsuccessful, it would be prudent to continue the upcoming hearing and its accompanying motions schedule for approximately two weeks.

As part of that delay, Butina withdrew a motion submitted on Thursday without prejudice (meaning she can resubmit it if plea talks fail). The motion asked the court to declare 18 USC 951 (which is what the US government charges foreign spies with) unconstitutional as applied to influence operations.

The motion lays out a bunch of hypothetical cases with vague parallels to Butina’s to lay out the danger of using 951 to prosecute those conducting influence operations. Some are farcical, in which a thoughtful grandmother takes on the role that Aleksandr Torshin does in Butina’s operation.

An unregistered, lonely grandson from an unpopular, provincial country accepts the advice of his grandmother about how to make friends. She thoughtfully directs him to go to prayer groups and same-interest meetups to meet people with common interests. He violates section 951 if the grandmother is a foreign official, even though the grandmother provided such direction while visiting the United States on holiday.

A non-hypothetical comparison, however, is more apt, arguing convincingly that an Israeli influence tour might be prosecuted if Israelis were treated with the suspicion Russians currently are.

Consider recent events regarding Israeli soldiers touring cities across the United States for the 11th Israeli Soldiers Tour to speak at venues, including college campuses, to raise awareness of the realities of their service.10 Sponsored by StandWithUs, an Israel advocacy group funded and supported by hasbara organizations and the Israeli government, these soldiers travel the United States to conduct influence operations intended to pacify U.S. views, change foreign policy, and put a human face on the Israeli military. Is there any doubt that such unregistered agents could be charged under the same interpretation of section 951 used against Maria– for operating in the United States as “agents” of Israel when directed to go to U.S. schools and then brief their IDF11 military commanders on their reception in the United States? Is there any doubt that they wouldn’t be? The point is not that such activities are improper. They are not. However, they are precisely the kind of educational exchanges and necessary uninhibited marketplace of ideas that are sought and encouraged when foreign students and visitors like Maria are admitted to U.S. universities.

The motion ultimately argues that before using 951 against an influence operation the statute should have the kind of limits that exist in the FARA statute.

To resolve the constitutional problem presented by the statute’s broad application, this court should—at least as to political activities—narrow the sweep of section 951 so that it aligns more closely with the constitutional safeguards recognized by Congress in the Foreign Agent Registration Act (known as “FARA”).

Worse, as for cases involving ‘political activities,’ it allows the government to pursue harsher penalties with additional restraints on individual liberty, compare 18 U.S.C. § 951 (10 years imprisonment) with 22 U.S.C. § 618 (5 years imprisonment), without enduring the additional cost of satisfying higher burdens of proof, see 22 U.S.C. §§ 611(o) and 618(a) (authorizing prosecution only for “willful” violations and specific kinds of “political activities”), thus circumventing the inherent check on government overreaching that the Fifth Amendment Due Process Clause was designed to instill. If left unchecked, federal investigators and prosecutors will have strong incentives to prosecute political activity cases under section 951 instead of FARA, so they can reap the law-enforcement benefits of section 951’s penalties without paying the price of higher burdens of proof.

To avoid that distortion, this court should consider the catch-all, sweeping application of section 951 when applied to political activities, in comparison with the statutory restraints of FARA as applied to the same, in assessing whether section 951 exposes Maria to the risk of arbitrary enforcement. Such an approach would provide an accurate answer to the doctrinal question at hand: whether section 951 is constitutionally deficient (and/or in need of a limiting construction) because it “confers on police a virtually unrestrained power to arrest and charge persons with a violation” thereby permitting “policemen, prosecutors, and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358.

It’s a fair argument, at least in this case. Back in August, I did two posts pointing out there was little difference between what Paul Manafort was accused of in his DC case and Maria Butina was accused of.

It’s unclear whether the plea negotiations are a response to this motion or not. Some of the evidence against Butina described thus far suggests her operation has the approval of Putin himself (though the Israeli StandWithUs tour is the kind of thing Bibi Netanyahu likely loves). But other evidence — such as a claim she’s coordinating with FSB (which, after all, is the closest analogue to the FBI) appears sketchy. So while it’s possible that Butina is a privately funded spy running an influence operation on behalf of the Russian government, it’s also true that to prove that, the government may have to share more classified information than they care to. And while I’m skeptical the constitutional challenge to 951 would work (in part because courts are loathe to tamper with national security law, in part because the claim that Butina chose to come to the US as a student does seem to have been chosen with the influence operation in mind), the government probably wants to retain their ability to use it with clearcut spies engaging in influence operations.

So I could imagine the government might be willing to settle this with either a FARA plea (which would further reinforce the FARA regime Mueller has introduced) or a visa fraud charge, particularly if Butina were willing to implicate Paul Erickson and other Americans who had helped her efforts.

The Theory of Prosecution You Love for Julian Assange May Look Different When Applied to Jason Leopold

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The WaPo confirmed something Seamus Hughes disclosed last night: Sometime before August 22, EDVA had filed a sealed complaint (not indictment) against Julian Assange.

WikiLeaks founder Julian Assange has been charged under seal, prosecutors inadvertently revealed in a recently unsealed court filing — a development that could significantly advance the probe into Russian interference in the 2016 election and have major implications for those who publish government secrets.

The disclosure came in a filing in a case unrelated to Assange. Assistant U.S. Attorney Kellen S. Dwyer, urging a judge to keep the matter sealed, wrote that “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.” Later, Dwyer wrote the charges would “need to remain sealed until Assange is arrested.”

Dwyer is also assigned to the WikiLeaks case. People familiar with the matter said what Dwyer was disclosing was true, but unintentional.

The confirmation closely follows a WSJ story describing increased confidence that the US will succeed in extraditing Assange for trial.

The confirmation that Assange has been charged has set off a frenzy, both among Assange supporters who claim this proves their years of claims he was indicted back in 2011 and insisting that charging him now would amount to criminalizing journalism, and among so-called liberals attacking Assange lawyer Barry Pollack’s scolding of DOJ for breaking their own rules.

I’ve long been on record saying that I think most older theories of charging Assange would be very dangerous for journalism. More recently, though, I’ve noted that Assange’s actions with respect to Vault 7, which had original venue in EDVA where the Assange complaint was filed (accused leaker Joshua Schulte waived venue in his prosecution), go well beyond journalism. That said, I worry DOJ may have embraced a revised theory on Assange’s exposure that would have dire implications for other journalists, most urgently for Jason Leopold.

There are, roughly, four theories DOJ might use to charge Assange:

  • Receiving and publishing stolen information is illegal
  • Conspiring to release stolen information for maximal damage is illegal
  • Soliciting the theft of protected information is illegal
  • Using stolen weapons to extort the US government is illegal

Receiving and publishing stolen information is illegal

The first, theory is the one that Obama’s DOJ rejected, based on the recognition that it would expose NYT journalists to prosecution as well. I suspect the Trump Administration will have the same reservations with such a prosecution.

Conspiring to release stolen information for maximal damage is illegal

The second imagines that Assange would be charged for behavior noted in the GRU indictment — WikiLeaks’ solicitation, from someone using the persona of Guccifer 2.0, of material such that it would be maximally damaging to Hillary Clinton.

On or about June 22, 2016, Organization 1 sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [Democratic National Convention] is approaching and she will solidify bernie supporters behind her after.” The Conspirators responded, “ok . . . i see.” Organization 1 explained, “we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

After failed attempts to transfer the stolen documents starting in late June 2016, on or about July 14, 2016, the Conspirators, posing as Guccifer 2.0, sent Organization 1 an email with an attachment titled “wk dnc link1.txt.gpg.” The Conspirators explained to Organization 1 that the encrypted file contained instructions on how to access an online archive of stolen DNC documents. On or about July 18, 2016, Organization 1 confirmed it had “the 1Gb or so archive” and would make a release of the stolen documents “this week.”

Significantly, WikiLeaks (but not Roger Stone) was referred to in the way an unidicted co-conspirator normally is, not named, but described in such a way to make its identity clear.

This is a closer call. There is a Supreme Court precedent protecting journalists who publish stolen newsworthy information. But it’s one already being challenged in civil suits in ways that have elicited a lot of debate. Prosecuting a journalist for trying to do maximal damage actually would criminalize a great deal of political journalism, starting with but not limited to Fox. Note that when the founders wrote the First Amendment, the norm was political journalism, not the so-called objective journalism we have now, so they certainly didn’t expect press protections to be limited to those trying to be fair to both sides.

Such a charge may depend on the degree to which the government can prove foreknowledge of the larger agreement with the Russians to damage Hillary, as well as the illegal procurement of information after WikiLeaks expressed an interest in information damaging Hillary.

Mueller might have evidence to support this (though there’s also evidence that WikiLeaks refused to publish a number of things co-conspirators leaked to them, including but not limited to the DCCC documents). The point is, we don’t know what the fact pattern on such a prosecution would look like, and how it would distinguish the actions from protected politically engaged journalism.

Soliciting the theft of protected information is illegal

Then there’s the scenario that Emma Best just hit on yesterday: that DOJ would prosecute Assange for soliciting hacks of specific targets. Best points to Assange’s close coordination with hackers going back to at least 2011 (ironically, but in a legally meaningless way, with FBI’s mole Sabu).

This is, in my opinion, a possible way DOJ would charge Assange that would be very dangerous. I’m particularly worried because of the way the DOJ charged Natalie Mayflower Edwards for leaking Suspicious Activity Reports to Jason Leopold. Edwards was charged with two crimes: Unauthorized Disclosure of Suspicious Activity Reports and Conspiracy to Make Unauthorized Disclosures of Suspicious Activity Reports (using the same Conspiracy charge that Mueller has been focused on).

In addition to describing BuzzFeed stories relying on SARs that Edwards saved to a flash drive by October 18, 2017 and then January 8, 2018, it describes a (probably Signal) conversation from September 2018 where Leopold — described in the manner used to describe unindicted co-conspirators — directed Edwards to conduct certain searches for material that ended up in an October story on Prevezon, a story published the day before Edwards was charged.

As noted above, the October 2018 Article regarded, among other things, Prevezon and the Investment Company. As recently as September 2018, EDWARDS and Reporter-1 engaged in the following conversation, via the Encrypted Application, in relevant part:

EDWARDS: I am not getting any hits on [the CEO of the Investment Company] do you have any idea what the association is if I had more information i could search in different areas

Reporter-1: If not on his name it would be [the Investment Company]. That’s the only other one [The CEO] is associated with Prevezon Well not associated His company is [the Investment Company]

Based upon my training and experience, my participation in the investigation, and my conversations with other law enforcement agents familiar with the investigation, I believe that in the above conversation, EDWARDS was explaining that she had performed searches of FinCEN records relating to Prevezon, at Reporter-l’s request, in order to supply SAR information for the October 2018 Article.

Edwards still has not been indicted, two weeks after her arraignment. That suggests it’s possible the government is trying to persuade her to plead and testify against Leopold in that conspiracy, thereby waiving indictment. The argument, in that case, would be that Leopold went beyond accepting stolen protected information, to soliciting the theft of the information.

This is the model a lot of people are embracing for an Assange prosecution, and it’s something that a lot of journalists not named Jason Leopold also do (arguably, it’s similar but probably more active than what James Rosen got dubbed a co-conspirator in the Stephen Jin-Woo Kim case).

Charging Leopold in a bunch of leaks pertaining to Russian targets would be a nice way (for DOJ, not for journalism) to limit any claim that just Assange was being targeted under such a theory. Indeed, it would placate Trump and would endanger efforts to report on what Mueller and Congress have been doing. Furthermore, it would be consistent with the aggressive approach to journalists reflected in the prosecution of James Wolfe for a bunch of leaks pertaining to Carter Page, which involved subpoenaing years of Ali Watkins’ call records.

In short, pursuing Leopold for a conspiracy to leak charge would be consistent with — and for DOJ, tactically advantageous — the theory under which most people want Assange charged.

Using stolen weapons to extort the US government is illegal

Finally, there’s the fourth possibility, and one I think is highly likely: charging Assange for his serial efforts to extort a pardon from the US government by threatening to release the Vault 7 (and ultimately, a single Vault 8 live malware) files.

This post shows how, starting in January 2017, Assange (and Oleg Deripaska) representative Adam Waldman was reaching out to top DOJ officials trying to negotiate a deal and using the release of the Vault 7 documents as leverage.

This post shows how, the second time Assange tweeted Don Jr asking for an Ambassadorship, he included a threatening reference to Vault 8, WikiLeaks’ name for the actual malware stolen and leaked from CIA, the first file from which Assange had released days earlier.

[B]ack in November 2017, some outlets began to publish a bunch of previously undisclosed DMs between Don Jr and Wikileaks. Most attention focused on Wikileaks providing Don Jr access to an anti-Trump site during the election. But I was most interested in Julian Assange’s December 16, 2016 “offer” to be Australian Ambassador to the US — basically a request for payback for his help getting Trump elected.

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

In the wake of the releases, on November 14, 2017, Assange tweeted out a follow-up.

As I noted at the time, the offer included an implicit threat: by referencing “Vault 8,” the name Wikileaks had given to its sole release, on November 9, 2017 of an actual CIA exploit (as opposed to the documentation that Wikileaks had previously released), Assange was threatening to dump more hacking tools, as Shadow Brokers had done before it. Not long after, Ecuador gave Assange its first warning to stop meddling in other countries politics, explicitly pointing to his involvement in the Catalan referendum but also pointing to his tampering with other countries. That warning became an initial ban on visitors and Internet access in March of this year followed by a more formal one on May 10, 2018 that remains in place.

Notably, Ecuador may have warned Assange back then to stop releasing America’s malware from their Embassy; those warnings have laid the groundwork for the rigid gag rules recently imposed on Assange on risk of losing asylum.

Immediately after this exchange, accused Vault 7/8 leaker Joshua Schulte had some Tor accesses which led to him losing bail. They didn’t, however, lead BOP to take away his multiple devices (!?!?!). Which means that when they raided his jail cell on or around October 1, they found a bunch of devices and his activity from 13 email and social media accounts. Importantly, DOJ claims they also obtained video evidence of Schulte continuing his efforts to leak classified information.

The announcement of that raid, and the additional charges against Schulte, coincided with a period of increased silence from WikiLeaks, broken only by last night’s response to the confirmation Assange had been charged.

I think it possible and journalistically safe to go after Assange for releasing stolen weapons to extort a criminal pardon. But most of the other theories of prosecuting Assange would also pose real risks for other journalists that those rooting for an Assange prosecution appreciate and rely on.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Invisible Game of Chicken: The Things the People Claiming to Understand the Manafort Extension Don’t Know (Nor Do I)

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There’s a lot of tea reading around the fact that the parties asked for a 10-day extension in the first status report on how well Paul Manafort has been cooperating. Originally the report (set two months ago when he flipped) was set for tomorrow, which is . the last Friday before Thanksgiving. The motion asks for an extension to November 26, which is the first Monday after Thanksgiving.

Some people have suggested that means the key issue on which Manafort is cooperating is close to done, but not done, and from that promised indictments tomorrow (since what grand jury in its right constitution-saving mind would work the day after Thanksgiving).

That may be right, but there are a lot more pieces in play than just that, including:

Trump’s open book test

Sometime in October, Mueller gave Trump his open book test of questions to answer. It already seemed like Trump was stalling until he tried his Matt Whitaker ploy. And this week, Trump’s lawyers have continued to dick around about whether they’re even going to answer all the questions.

There’s good reason not to reveal publicly whether Manafort is cooperating fully until you’ve gotten whatever answers you’re going to get or given up waiting. If you reveal in a status report that Mueller’s team thinks Manafort hasn’t been cooperating, then Trump would feel more free to lie. If you reveal Manafort has been cooperating fully, including about Trump’s actions (in contradiction to some reports that he hasn’t been), then Trump will be more likely to avoid answering.

So there’s good reason to wait until after Trump has turned in his open book test or gotten a D on the exam.

Whitaker’s ethics review and first briefing

While Matt Whitaker has blessing from the Office of Legal Counsel to oversee Mueller, there’s no indication he has undergone his ethics review on whether he can supervise Mueller. Indeed, contrary to much panic that I think stemmed from Jerome Corsi’s specific comments about how mean prosecutors are, I’m not at all convinced Whitaker has even been read into the Mueller investigation yet (this report seems to suggest he has not).

There are lots of reason to delay action — on both voting up indictments and revealing details about Manafort’s cooperation — until there’s more clarity on Whitaker’s role. Indeed, if Mueller has truly shocking things, things that even Whitaker would be unwilling to veto, it might serve him well to hold them, and make Whitaker buy off on them.

And that uncertainty might lead to a Manafort delay.

The Maryland challenge to Whitaker’s authority

Tuesday Maryland’s Attorney General, Brian Frosh, submitted his promised challenge to Whitaker’s appointment. This challenge — and others we should expect — won’t be decided anytime soon, but they may lead Mueller to delay until, at least, he knows he can continue to ensure the legality of his actions by reporting them through Rosenstein.

Manafort’s forfeitures

On October 9, Mueller’s team started the process for seizing the $46 million of assets Manafort had taken in his plea deal. Others with an ownership stake in the assets have a month to contest the seizure. Just the bank holding the mortgage on his Trump Tower apartment challenged the seizure.

That means around about now, the rest of his assets (they won’t really be worth $46 million, but they’re worth a lot) will begin to be put beyond the reach of presidential pardon.

Monday’s briefing

Meanwhile, there are two things going on at the DC Circuit.

Yesterday, the Mystery Appellant challenging some action Mueller took submitted a reply brief to Mueller’s brief submitted (in the wake of the Whitaker appointment) last Thursday. Today a notice of some sort was filed.

This stuff may be relevant — we don’t know! But the developments in this appeal may affect Mueller’s willingness to show more cards (though it won’t be resolved until December at the earliest).

We do know, however, that Mueller has to turn in a briefing describing how Whitaker’s appointment affects his own authority. That may well be the first that we understand what he knows to have occurred since Whitaker’s appointment and how he sees it affecting his own authority — and whether he think he has mitigated any risk that his actions will be invalidated by reporting through Rosenstein.

Sure, the delay might be a handful of indictments to drop tomorrow or even next Friday. But right now all we can be sure of is that Mueller and Trump are playing either a secret game of Chicken — or Chess. And we’ve seen just a tiny fraction of the plays so far.

All that said, one thing that that çomes after this date is the next Trump Putin meeting — which will be in Argentina during the G-20, which starts November 30.

On Rick Gates’ Expansive Cooperation

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Much has been made from something in a status update in Rick Gates’ case the other day. In asking for a two month delay on sentencing (the last one was for three months), the parties revealed that Gates is cooperating on “several ongoing investigations.”

1. The parties previously filed a Joint Status Report on August 10, 2018 and proposed to send an ensuing report within ninety days and no later than November 10, 2018. To date, the status of this matter has not changed substantially since the August report, as defendant Gates continues to cooperate with respect to several ongoing investigations, and accordingly the parties do not believe it is appropriate to commence the sentencing process at this time.

2. The parties respectfully request that they provide a joint status report within sixty days, no later than January 15, 2019.

So he’s working on more than Mueller’s investigation (if he’s even still focusing on that; I’ve seen no report of him appearing at Mueller’s office).

That actually shouldn’t be that big a surprise. As part of his plea agreement, Sam Patten — who like Gates had close ties to Konstantin Kilimnik — is required to cooperate with “this Office, the Special Counsel’s Office, and other law enforcement authorities.” That means Patten is, at a minimum, cooperating with Mueller and a separate investigation out of the DC US Attorney’s Office (with whom he signed his plea). Plus, when Kyle Freeny left Mueller’s office last month, she may have brought some part of the money laundering investigation Mueller was doing with her; one obvious candidate might be Trump’s Inauguration Pay-to-Play.

Trump Appointee Dabney Friedrich Continues to Trounce the Trolls’ Hopes of Discrediting Mueller

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Dabney Friedrich, the Trump appointee presiding over the Concord Management challenge to its indictment, just released her opinion rejecting their attempt to argue they can’t be indicted for conspiring to illegally tamper in our elections. The indictment effectively argued that Yevgeniy Prigozhin’s trolls deceptive tactics — including not just failing to register as foreigners trying to influence US politics, but also social media users hiding they were foreign — prevented the US government from ensuring foreigners don’t participate in our elections.

The key passage in the opinion is this one, which upholds the government’s contention that it doesn’t have to prove that Concord broke the underlying laws protecting elections. It only has to prove that Concord conspired to undermine lawful government functions.

Concord is correct that the indictment must identify the lawful government functions at issue with some specificity. And it does. See Indictment ¶¶ 9, 25–27. A defraud-clause conspiracy need not, however, allege an agreement to violate some statutory or regulatory provision independent of § 371.

With this passage, a Trump judge affirms the underlying theory behind all of Mueller’s interlocking conspiracies.

But I think what Friedrich did with Concord’s claim that, because trolling on social media involves First Amendment concerns, the bar for willingness is raised higher is as important. She dismissed this claim by treating Concord’s trolling as fraud, not just lying.

Concord’s remaining argument—that the indictment implicates protected speech—fares no better. There is no doubt that speech is of “primary importance . . . to the integrity of the election process,” Citizens United, 558 U.S. 310, 334 (2010), or that political speech “occupies the highest rung of the hierarchy of First Amendment values,” Janus v. Am. Fed’n of State, Cnty. and Mun. Emps., Counsel 31, 138 S. Ct. 2448, 2476 (2018) (internal quotation marks omitted). However, the indictment does not focus on the defendants’ speech, or its content, but on a course of deceptive conduct. See, e.g., Indictment ¶¶ 4–7, 30, 32, 36, 39, 41, 43, 48, 51. Although the Supreme Court made clear in United States v. Alvarez that “false statements” are not automatically unprotected, 567 U.S. 709, 717–22 (2012) (plurality opinion), it distinguished such statements from “fraud,” which involves “legally cognizable harm,” id. at 719, and remains one of the few historical categories of unprotected speech, id. at 717. Indeed, the Court approved of statutes prohibiting false statements to government officials, perjury, impersonating an officer, and pretending to speak on behalf of the government because such statutes “implicate fraud or speech integral to criminal conduct.” Id. at 721. Consistent with these principles, the Fifth Circuit in United States v. Daly rejected a claim that a conspiracy to defraud the United States by impeding and impairing the lawful functions of the IRS implicated the First Amendment. 756 F.2d 1076, 1082 (5th Cir. 1985).

The same is true here. The conspiracy to defraud does not implicate the First Amendment merely because it involved deceptive statements like claiming to represent U.S. entities, claiming to be U.S. persons, and providing false statements on visa applications. 9

9 Even if the indictment did implicate protected speech, the United States’ “compelling interest . . . in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process,” Bluman, 800 F. Supp. 2d at 288, might well sustain the charge against Concord.

Friedrich puts the government on notice that it will have to prove Concord knew it was interfering with government functions (which will be much easier with evidence laid out in the Elena Alekseevna Khusyaynova complaint, at least going forward).

Although the § 371 conspiracy alleged does not require willfulness, the parties’ disagreement may be narrower than it first appears. The government concedes that § 371 requires the specific intent to carry out the unlawful object of the agreement—in this case, the obstruction of lawful government functions. Gov’t’s Opp’n at 16 (“Because Concord is charged with conspiring to defraud the United States, . . . the requisite mental state is the intent of impairing, obstructing, or defeating the lawful function of any department of government through deception.” (internal quotation marks omitted)). Further, the government agrees that to form the intent to impair or obstruct a government function, one must first be aware of that function. See Hr’g Tr. at 40 (“[Y]ou can’t act with an intent to impair a lawful government function if you don’t know about the lawful government function.”). Thus, Concord is correct—and the government does not dispute—that the government “must, at a minimum, show that Concord knew what ‘lawful governmental functions’ it was allegedly impeding or obstructing.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. Here, as alleged in the indictment, the government must show that Concord knew that it was impairing the “lawful functions” of FEC, DOJ, or DOS “in administering federal requirements for disclosure of foreign involvement in certain domestic activities.” Indictment ¶ 9. But Concord goes too far in asserting that the Special Counsel must also show that Concord knew with specificity “how the relevant laws described those functions.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. A general knowledge that U.S. agencies are tasked with collecting the kinds of information the defendants agreed to withhold and conceal would suffice. Concord will have further opportunities—with jury instructions and in trial and post-trial motions, if any—to ensure that the government proves enough knowledge to support a specific intent to thwart at least one of the three government functions alleged in the indictment.

But it’s not clear Concord will sustain this legal challenge that long.

While regulation of elections for Americans is less onerous than it is for foreigners, the notion that trolling is fraud may be useful for other kinds of people tampering in elections.

What OLC Says Happened with Matt Whitaker’s Appointment

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DOJ has released the memo they say justifies the appointment of Matt Whitaker to be their boss. I’ll have some things to say about the legal arguments later (and smarter people who have JDs will surely weigh in as well).

I’d like to look at four things the OLC memo says about what happened with the Whitaker appointment, because they’re at least as important as the legal argument.

Never in the history of DOJ has someone attempted this stunt

Much of the memo reviews the history of appointments, purporting to find analogous appointments to this one. But it only cites one example where someone who wasn’t Senate confirmed served as Acting Attorney General.

While designations to the office of Attorney General were less frequent, we have identified at least one period in 1866 when a non-Senate-confirmed Assistant Attorney General served as Acting Attorney General.

The Department of Justice didn’t exist in 1866. It was only authorized — significantly, for the purpose of giving the Attorney General supervision over the US Attorneys — in 1870.

In 1861, Congress finally agreed that the Attorney General should have supervisory powers over the work of the United States Attorneys, although at first this role was shared with the Solicitor of the Treasury.

While there had been earlier calls for the creation of a separate legal department that would supervise the work of federal lawyers, it was not until after the end of the Civil War that Congress began to give serious consideration to the matter. In late 1867, the Senate Committee on the Judiciary asked Attorney General Henry Stanbery to respond to several questions concerning the efficiency of the government’s legal departments. Stanbery replied that a solicitor general was needed to argue the government’s cases before the Supreme Court, and that the centralization of the government’s legal business under one department would improve the quality of the work. In 1868, after the House Judiciary Committee asked Stanbery to respond to a similar inquiry, Representative Thomas Jenckes of Rhode Island introduced a bill to establish a department of justice. This bill was referred to the Joint Select Committee on Retrenchment, a committee impaneled to consider legislation to reduce the size and cost of government. In addition, the Chairman of the House Judiciary Committee, Representative William Lawrence of Ohio, introduced a similar bill which was referred to that committee.

As I’ll return to when I get to the legal issues, the distinction between this appointment, which gives Whitaker supervisory authority over SDNY and Mueller, and that one, may be very important.

But for now, suffice it to say that even OLC admits that this has almost never happened before.

The White House asked for this opinion

I’ve been harping on this line of the CNN report describing Jeff Sessions and those who would like to protect the Mueller investigation a lot.

At least one Justice official in the room mentioned that there would be legal questions about whether Whitaker’s appointment as acting attorney general is constitutional.

Steven Engel, the guy who signed this memo, was in that room, along with Sessions, Deputy Attorney General Rod Rosenstein, Solicitor General Noel Francisco, and Rosenstein’s deputy Ed O’Callaghan. The story suggests that Engel hadn’t considered the question yet, and I’ve been wondering since that report whether one of those men asked for the memo.

They didn’t — at least not according to this memo.

This Office had previously advised that the President could designate a senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General, and this memorandum explains the basis for that conclusion.

It is addressed to the “Counsel to the President,” which strongly implies that person asked for the memo. It doesn’t say, however, when the Counsel to the President asked for this memorandum.

Emmet Flood is the Counsel to the President who asked for this opinion

More specifically, the memo is addressed to Emmet T. Flood Counsel to the President.

Emmet Flood has two roles in the White House now. Until Pat Cipollone is installed as White House Counsel, Flood is Acting White House Counsel (or, as addressed here, Counsel to the President, which is how OLC addresses the White House Counsel).

But he’s also the lawyer in the White House Counsel’s office in charge of defending the President in investigations by (among others) Robert Mueller.

Legally, that’s interesting but (because the President can appoint whoever the fuck he wants as White House Counsel) not all that important. But it does answer the question I keep asking — given what a clusterfuck this appointment is, was Emmet Flood, who is eminently competent, involved? Yes — at least by the time the White House realized they needed some legal cover for it.

So maybe Flood really was hoping to create a legal morass.

Jeff Sessions resigned, probably

Finally, the memo answers a question that the House Judiciary Committee has already raised some doubt about: whether Sessions resigned, or was fired. The memo explains,

Attorney General Sessions submitted his resignation “[a]t [the President’s] request,” Letter for President Donald J. Trump, from Jefferson B. Sessions III, Attorney General, but that does not alter the fact that the Attorney General “resign[ed]” within the meaning of section 3345(a).

But it doesn’t seem so sure (or at least recognizes that someone, and probably not just HJC, will challenge this legally). It continues:

Even if the Attorney General had declined to resign and was removed by the President, he still would have been rendered “otherwise unable to perform the functions and duties of the office” for purposes of section 3345(a).

As I’ll return to in the legal analysis, the remainder of the footnote, which claims the Vacancies Reform Act still would have permitted the appointment of Whitaker, is one of the most problematic parts of the memo.

Which is why it is notable that the memo dodges most analysis of whether a forced resignation really is legally a resignation.

WSJ’s Curious Mueller Editorial

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I want to look back at something that has been puzzling me: a Wall Street Journal editorial issued by the end of the day Wednesday arguing that Mueller should not be fired. The next day, Rupert Murdoch paid Mitch McConnell a personal visit on the Hill.

While not as shrill or fact-free as its columnist, Kim Strassel, the WSJ editorial page has been steadily critical of the Mueller investigation, dismissing any possibility it will identify “collusion” and repeating GOP claims that it as sprawled beyond Mueller’s original remit (as well as parroting GOP claims that the FBI framed the Trump campaign). A column on the Paul Manafort plea deal, for example, warned that leaks from the investigation (which have never happened) would undermine public confidence in the investigation.

Leaks or other news about his investigation will undermine public confidence in a probe that has already wandered far from its original Russia remit and has now lasted 16 months without a resolution.

So it’s not like WSJ has been friendly to the Mueller investigation.

That said, their columns on the Mueller investigation as frequently criticize Trump’s incompetence in dealing with it and DOJ. That sentiment shows up in the two most relevant recent editorial columns on the investigation. This column from late August argues that Trump’s attacks on Jeff Sessions put Republican majorities at risk in November, which would lead to impeachment.

We will point out that Mr. Trump’s attacks on his own Attorney General this week are wrong and politically counterproductive.

The President is still furious that Mr. Sessions recused himself from the Russia probe, which has since become the sprawling Robert Mueller investigation that threatens his Presidency. But railing against Mr. Sessions can’t change that, and it gives the appearance of trying to politicize the department.

[snip]

The biggest political threat to Mr. Trump is a Democratic election victory in November, which will trigger a drive for impeachment. Mr. Trump isn’t going to persuade anyone to vote for Republicans by railing against a Republican Attorney General he selected.

And this September column about the possibility of firing Rosenstein emphasizes the impact that would have on Republican majorities.

The immediate battle now is over the midterm election and whether Mr. Trump can stay in office as the impeachment assault begins from Nancy Pelosi’s Democrats. Mr. Trump can make personnel changes after the midterms if Republicans still hold the Senate and he can get someone confirmed.

Murdoch’s American flagship paper doesn’t like the Mueller investigation. But that has as much to do with the ways it leads Trump to do stupid things that imperil Republican rule as that it poses a risk for Trump personally.

With that as background, consider the column. It starts by complaining (again) about how badly Trump treated Sessions.

Mr. Sessions deserved better than the public humiliations dealt by President Trump. As a Senator from Alabama, Jeff Sessions was the first Washington figure of any stature to embrace Mr. Trump’s candidacy. Mr. Trump wants loyalty up but not down.

It then describes the appointment of Matt Whitaker without comment or judgment.

Sessions’ temporary successor will be the AG’s chief of staff, Matthew Whitaker, who presumably will hold the job until a successor is nominated.

Most of the column argues for a solid Attorney General replacement. The WSJ seems to be complaining — as they did in some of their other editorials — that the White House should exercise more influence over DOJ. They do want someone respectable as Attorney General, however.

It is important that the White House get this one right.

The Attorney General shouldn’t fire Mr. Mueller, as the President essentially said himself at his Wednesday news conference. Mr. Trump needs an individual of stature and judgment who will have the trust of the department’s lawyers, who is capable of independence, but who also understands that the Justice Department is part of the executive branch and not a law unto itself.

But the WSJ, with as little comment as it makes about Whitaker, also states clearly that any new Attorney General shouldn’t fire Mueller and claims Trump himself has agreed, probably a reference to this answer from Trump at the press conference that day.

Q    Thank you, Mr. President.  Going back to the Russia investigation and the potential investigations from the now- Democratic majority in Congress, some say that you could stop all this by declassifying —

THE PRESIDENT:  I could.  I could fire everybody right now.  But I don’t want to stop it, because politically, I don’t like stopping it.  It’s a disgrace.  It should have never been started because there was no crime.  It is — everybody has conflicts.  They all have conflicts over there that are beyond anything that anybody has ever seen in terms of conflicts — from the fact that people ask for jobs; from the fact that they have very good friends on the other side, like really good friends, like Comey — who, by the way, lied and leaked, and also leaked classified information.  Nothing happened there.  It might, perhaps.  Maybe something is happening that I don’t know about.

I stay away from it.  But do you know what I do?  I let it just go on.  They’re wasting a lot of money, but I let it go on because I don’t want to do that.

The day after the election, Trump took a rash step to end the Mueller investigation by firing Sessions and hiring Whitaker. And WSJ almost immediately responded by warning Trump not to do any further damage to the party with his impulsive efforts to undermine Mueller.

Neal Katyal Helps Mueller Write Monday’s Brief

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As I noted in this thread, last week the DC Circuit asked Mueller and Andrew Miller’s teams to submit a 10-page brief next Monday, “addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.”

It shouldn’t have any role in Miller’s subpoena. After all, at the time that action was taken, Mueller’s authority had no defects (unless Miller wins this challenge, which is unlikely, even at SCOTUS). It might, however, have an effect going forward, and Monday’s brief is an opportunity for Mueller to make that case publicly, and make it both for this challenge and the Mystery Appellant challenge, if that one pertains to Mueller’s authority. (Sri Srinivasan and Judith Rogers, two of the three judges hearing Miller’s appeal, have been involved in the Mystery Appeal as well, so know the substance of it.)

As luck would have it, a key expert just provided Mueller’s team important material for their brief.

Neal Katyal was (as he has written extensively) the author for the special counsel regulations that Mueller works under. Last week, he teamed up with conservative lawyer George Conway to argue that Whitaker’s appointment is unconstitutional. Today, he published a piece arguing that Whitaker cannot supervise Mueller.

In it, he raises two problems: first, he says that he and his colleagues at DOJ — and those on Capitol Hill with whom Katyal consulted — did not envision something like what Trump has done to happen.

My Justice Department colleagues and I, along with a bipartisan group on Capitol Hill, worked through many possible scenarios before we settled on the rules that now govern Mueller’s investigation. Everyone in the debate recognized that any enhancement in the special counsel’s accountability had to come from additional supervision by the attorney general. After all, the power to supervise is the power to destroy. The attorney general can stop a special counsel from investigating altogether or stop them from taking a specific step (such as subpoenaing a president). He can read every file of the counsel, and he may even attempt to give information about the investigation to the president in real time. And he plays a crucial role in determining what report by Mueller, if any, is given to Congress and ultimately the public.

But no one — and I mean no one — ever thought the regulations we wrote would permit the president to install some staff member of his choice from the Justice Department to serve as acting attorney general and thereby oversee the special counsel. Such a proposal would have been laughed off Capitol Hill within a nanosecond as fundamentally at odds with the most cardinal principle that no one is above the law.

Mind you, this is just a regulation, so the several references Kaytal makes to Congress do not amount to legislative intent. Still, it does provide guidance about what the intent of the regulations were.

Katyal then describes the problem — one that directly relates to the substance of Miller’s argument. Even if Whitaker’s appointment is legal as an emergency appointment, he still needs a superior officer to supervise him. It would need to be either Rosenstein or Trump himself.

If the defenders’ claims were true, all that would mean is that Whitaker is an inferior officer who doesn’t need to be confirmed by the Senate. In that situation, someone else, a principal officer, would still need to be in place to supervise Mueller — who is also an inferior officer. That responsibility would fall once again to Rosenstein under the succession statute Congress authorized.

Sometimes, an inferior officer has to supervise other inferior officers with no principal — say, if no one else has been confirmed at the start of an administration. Or in a more hypothetical scenario, imagine a military conflict in which casualties meant there were no Senate-confirmed officials in a department. But fortunately, today’s Justice Department isn’t dealing with challenges anything like those. There are Senate-confirmed officials at the helm.

And regardless of those issues, there is yet another problem, specific to the Mueller investigation. In an emergency situation where an acting head is named, the president is, ultimately, the responsible official who supervises temporary, unconfirmed stand-ins. The idea is that there would at least be someone accountable to the public above the acting officer in those situations — and as Harry Truman put it, the buck always stops with the president.

Here, though, the idea that the president could be trusted to supervise Whitaker as he oversees Mueller’s work is absurd.

It was this kind of problem that made me ask whether bolloxing up the legality of Mueller’s action was the entire point (because otherwise I can’t imagine how Emmet Flood bought off on this action, given the troubles it may cause).

But as I’ve said, it actually seems that these issues would create a legal disability on Whitaker’s part, meaning his back-up — Rosenstein — would be required to take over.

Democrats have already asked DOJ’s top ethics official whether he has given Whitaker advice on another possible source of disability, recusal obligations.

I suspect, though, that Mueller will be just one party in a position to argue that Whitaker cannot legally supervise him.

Which, again, is what I don’t mind that Rosenstein sucked up to him so effusively last Friday. Because so long as he remains there, as the Senate-confirmed official with authority to supervise Mueller, he may well end up remaining in that position.

Dear Lindsey: Not Even Trump Gives a Shit What You Think about the Whitaker Appointment

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About the most competent thing Trump managed with his ham-handed roll out of a hatchet man to oversee the Mueller investigation was to pick someone with close ties to Senate Judiciary Chair Chuck Grassley. Matt Whitaker has driven all around Iowa with Grassley.

And somehow, Whitaker managed to have Gary Barnett, whose Linked In profile says he still works as Jeff Flake’s Chief Counsel, installed as his new Chief of Staff in time to attend Whitaker’s takeover strategy huddle, while Sessions huddled with Senate confirmed officials.

So whatever else he is or is not, Whitaker is certainly well wired with one of the committees that would have oversight on his actions.

Perhaps that’s why Lindsey Graham and CBS Face the Nation thought he’d be a good guest to opine that everything pertaining to Whitaker’s appointment is hunky dory.

Graham told “Face the Nation” host Margaret Brennan on Sunday he believes the acting attorney general was “appointed appropriately” and “legally,” and he’s “confident” Whitaker won’t interfere in Mueller’s ongoing investigation.

“I talked with Matt yesterday,” Graham said. “I’m going to meet with him next week when we get our schedules aligned here. I think he was appropriately appointed legally. I don’t think he has to recuse himself. I am confident the Mueller investigation will be allowed to come to a good solid conclusion, that there’ll be no political influence put on Mr. Mueller by Mr. Whitaker to do anything other than Mr. Mueller’s job. I’m confident that Mr. Mueller will be allowed to do his job without interference.”

To be clear: I’m not minimizing the degree to which Trump has eliminated one possible source of resistance to his hatchet man plan, by picking someone wired into SJC (and backed vocally by Leonard Leo, since Republican SJC members appear to answer to him).

But by picking Whitaker, Trump has affirmatively told the Senate they — and the professionals for whom they have spent the time to advise and consent — are expendable. After all, the sole reason to appoint Whitaker rather than rely on normal succession is to prevent Rosenstein from having oversight of investigations into Trump.

More importantly, while SJC could have a hearing and Lindsey promises he’ll meet with Whitaker, none of that will have an immediate effect. SJC has absolutely no way to prevent Whitaker from burning up all the norms critical to a functioning DOJ, including recusal where it clearly is called for. There’s not even a way to prevent Whitaker from trumping up some charge and firing Mueller before any such meeting happens.

And it’s not SJC’s place to judge if Whitaker’s appointment is illegal. That role belongs to OLC (whose head, Steven Engel, has already been in at least one discussion about whether it is constitutional) and the Courts. If the question gets to the latter, SJC is not among the leading entities that might have standing to challenge it.

Having Lindsey’s seal of approval might make it easier for Whitaker to last out the two months or so until Democrats take the House. But that will have zero role in whether Whitaker blows up the Constitution.

Lindsey (and CBS) think he matters here. That’s quaint.

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