Yesterday, the DC Circuit held a hearing on Roger Stone aide Andrew Miller’s challenge of a grand jury subpoena. To make it crystal clear that the issues may have changed when Trump forced Jeff Sessions’ resignation the day before, the very first thing Judge Karen Henderson did was to instruct the sides to “Argue this case as if it were being argued yesterday morning.” She said then that they’d probably ask the lawyers to brief how Matt Whitaker’s appointment changed things, and today the panel ordered 10 page briefs, “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.” Those briefs aren’t due until November 19, suggesting there won’t be an immediate resolution to Miller’s testimony.

But it was just as interesting how the Whitaker hiring may have influenced what the parties said yesterday.

Whitaker’s nomination undermines the Miller/Concord challenge to Mueller

Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.

Dreeben lays out the scope of what Mueller can do with Whitaker in charge

I’m more fascinated by subtle ways that the nomination may be reflected in Michael Dreeben’s comments, though.

In their response to Miller’s challenge, Mueller’s team laid out that they had close supervision from Rod Rosenstein, but they didn’t get into specifics. It describes how the Attorney General receives information (in the form of urgent memos), and the AG can demand an explanation and intervene if he finds an action to be “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

The Special Counsel readily meets this test. The Attorney General receives a regular flow of information about the Special Counsel’s actions; he can demand an explanation for any of them; and he has power to intervene when he deems it appropriate to prevent a deviation from established Departmental practices. The regulation envisions deference by requiring the Attorney General to stay his hand unless he determines that an action is “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” 28 C.F.R. § 600.7(b) (emphasis added). But while the Attorney General must “give great weight to the views of the Special Counsel,” id., the provision affords the Attorney General discretion to assert control if he finds the applicable standard satisfied. This authority—coupled with the Attorney General’s latitude to terminate the Special Counsel for “good cause, including violation of Departmental policies,” 28 C.F.R. § 600.7(d)—provides substantial means to direct and supervise the Special Counsel’s decisions.

And the brief describes how Mueller has to ask for resources (though describes that as happening on a yearly basis) and uphold DOJ rules and ethical duties.

The Special Counsel is subject to equally “pervasive” administrative supervision and oversight. The Attorney General controls whether to appoint a Special Counsel and the scope of his jurisdiction. 28 C.F.R. § 600.4(a)-(b). Once appointed, the Special Counsel must comply with Justice Department rules, regulations, and policies. Id. § 600.7(a). He must “request” that the Attorney General provide Department of Justice employees to assist him or allow him to hire personnel from outside the Department. Id. § 600.5. The Special Counsel and his staff are “subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice.” Id. § 600.7(c). And, each year, the Attorney General “establish[es] the budget” for the Special Counsel and “determine[s] whether the investigation should continue.” Id. § 600.8(a)(1)-(2). The Attorney General’s initial control over the existence and scope of the Special Counsel’s investigation; his ongoing control over personnel and budgetary matters; his power to impose discipline for misconduct or a breach of ethical duties; and his authority to end the investigation afford the Attorney General substantial supervision and oversight, which supplements the Attorney General’s regulatory power to countermand the Special Counsel’s investigative and prosecutorial decisions. [my emphasis]

Significantly (given the Calebresi argument) the Mueller team briefed that US Attorneys are also inferior officers, though they get to act without pre-approval.

Miller asserts that the Special Counsel has the authority to make final decisions on behalf of the United States because the regulation “nowhere require[s] the Special Counsel to seek approval or get permission from the [Attorney General] before making final decisions about who to investigate, indict, and prosecute.” Br. 22. That was also true of United States commissioners—who could issue warrants for the arrest and detention of defendants—but who nonetheless “are inferior officers.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 353 (1931). And it is true for United States Attorneys, 28 U.S.C. § 547, who are also inferior officers. See Myers v. United States, 272 U.S. 52, 159 (1926); Hilario, 218 F.3d at 25-26; United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999); United States Attorneys—Suggested Appointment Power of the Attorney General— Constitutional Law (Article II, § 2, cl. 2), 2 Op. O.L.C. 58, 59 (1978) (“U.S. Attorneys can be considered to be inferior officers”).3 Few inferior-officer positions require a supervisor to review every single decision. See, e.g., Edmond, 520 U.S. at 665; C46 n.22. Thus, the Special Counsel’s authority to act without obtaining advance approval of every decision cannot transform the Special Counsel into a principal officer, requiring presidential appointment and Senate confirmation.

[snip]

More recently, Congress has enacted legislation allowing for the appointment of U.S. Attorneys by the President, with the advice and consent of the Senate, 28 U.S.C. § 541(a); by a court, id. § 546(d); or by the Attorney General, id. § 546(a)—the latter two appointment authorities manifesting Congress’s understanding that U.S. Attorneys are inferior officers. And every court that has considered the question has concluded that U.S. Attorneys are inferior officers. Thus, to the extent that the Special Counsel “can be accurately characterized as a U.S. Attorney-at-Large,” Br. 17; see 28 C.F.R. § 600.6 (Special Counsel has the “investigative and prosecutorial functions of any United States Attorney”), the Special Counsel, like any U.S. Attorney, would fall on the “inferior officer” side of the line.

This latter argument doesn’t address the Miller/Concord claim that Mueller should have been Senate approved, but that’s part of why the Whitaker appointment is so damaging to this argument.

Compare all that with what Dreeben did yesterday. He specifically listed things that prosecutors — whether they be AUSAs or US Attorneys (though a later argument could point out that AUSAs need the approval of a USA) — do all the time: seek immunity, make plea deals, and bring indictments.

Prosecutors do this all the time. They seek immunity. They make plea agreements,. They bring indictments.

Dreeben later specified specifically what they’d need to get pre-approval for: subpoenaing a member of the media or, in some cases, immunizing a witness.

We have to get approval requires just like US Attorneys do. If we want to subpoena a member of the media, or if we want to immunize a witness, we’re encouraged if we’re not sure what the policy or practice is, to consult with the relevant officials in the Department of Justice. If we wanted to appeal an adverse decision, we would have to get approval of the Solicitor General of the United States. So we’re operating within that sort of supervisory framework.

But otherwise, per Dreeben’s argument yesterday, they wouldn’t need Whitaker to pre-approve most actions, including indictments — only to respond to an urgent memo by saying such an action was outside normal DOJ behavior.

Given my suspicions that John Kelly may be the Mystery Appellant challenging a Mueller request, Dreeben’s very detailed description of US v. Nixon’s assumptions about special prosecutors is particularly notable. His comments were intended to use US v. Nixon to support the existence of prosecutors with some independence. He very specifically describes how US v. Nixon means that the President can’t decide what evidence a prosecutor obtains in an investigation.

The issue in that case was whether a dispute was justiciable when the President of the United States exerted executive privilege over particular tapes and a special prosecutor was preceding in court in the sovereign interests of the United States to obtain evidence for a pending criminal case. And the President’s position was, I’m President of the United States. I’m vested with all executive authority, I decide what evidence is to be used in a criminal case. This is just a dispute between me and someone who is carrying out on a delegated basis a portion of my authority, it is therefore not justiciable. And the Supreme Court’s reasoning was, well, it actually is, because under a legal framework, the President does not have day-to-day control over individual prosecutions. That authority is vested in the Attorney General who is the representative of the United States as sovereign, in court. And he, exercising the powers under 28 USC 515, 533, and a couple of other statutes that dealt with powers being vested in the Attorney General and powers being delegated down, but acting pursuant to those powers, appointed a special prosecutor and vested him with a unique set of powers and those powers enabled him to go into court and to meet head to head in an adversarial proceeding the President’s claim as President that particular tapes were covered by Executive Privilege as against the sovereign’s claim through the special prosecutor that these tapes were relevant and admissible in a pending criminal case. [my emphasis]

None of this is a revolutionary interpretation of US v. Nixon. But the mystery dispute pertains to Kelly’s testimony — or some other move on the part of the White House to dictate what Mueller can and cannot do — then the language is notable, particularly given that two of the judges in yesterday’s hearing, Judith Rogers and Sri Srinivasan, have been the judges working on the mystery appeal.

Notably, along with submitting their brief in that appeal yesterday, Mueller’s team submitted a sealed appendix.

This sealed supplemental appendix may pertain to something Mueller just got, which would suggest that appeal may have everything to do with why Sessions was fired right away.

We’ll learn more when Mueller submits his brief on November 19 (though by then this will likely be ancient history).

But it sure seems like Dreeben was making the first argument about limits to how much Whitaker can tamper in the Mueller investigation.

Much attention is now being focused on the suitability of Matt Whitaker to server as Acting AG without having been Senate approved. I think there’s one more issue with it that I’ll return to.

But there’s another legally problematic part of the process of forcing Jeff Sessions to resign and appointing Whitaker as his replacement: John Kelly’s role in it.

That’s because Mueller asked John Kelly for an interview sometime around June. It was one of the first things the legally competent Emmet Flood did to assert a newly combative stance on the part of the White House.

Mr. Trump’s lawyers are quietly more combative, too, contesting a request from the special counsel to interview John F. Kelly, the White House chief of staff. Emmet T. Flood, the lead White House lawyer in dealing with the investigation, has demanded to know what investigators want to ask Mr. Kelly and has tried to narrow the scope of their questions. A month after the request was made, Mr. Kelly has not been questioned, though a White House official said he was willing to be.

Significantly, this was not an Executive Privilege claim, but rather a demand that Mueller tell Flood what questions he would ask Kelly. It’s entirely unclear what basis Flood invoked legally: the bullshit Executive Privilege without claiming it claims Trump has relied on thus far, an argument that he needed to know if the President would invoke Executive Privilege in response to a range of questions, or a stance that the White House can have some kind of visibility into the workings of the grand jury investigating the President.

As I have said, I think John Kelly is a likely candidate to be the Mystery Appellant, challenging some kind of Mueller demand in the DC Circuit (significantly, before some of the same judges who yesterday heard Andrew Miller’s subpoena challenge).

One way or another, Kelly is among the people about whom there is the most active dispute legal between the Special Counsel and the White House, a fight picked by the legally competent Emmet Flood.

And Kelly was the person who forced Jeff Sessions to resign on Wednesday. As far as is public (and there’s surely a great deal that we have yet to learn about who was in the decision to force Sessions to resign and when that happened and who dictated the form it would take).

But Kelly had the key role of conveying the President’s intent, in whatever form that intent was documented, to Sessions. If Trump’s past firings are any precedent, Kelly had a very big role in deciding how it would happen.

So the guy whose testimony Mueller may be most actively pursuing (indeed, one who might even be in a legal dispute with), effectuated a plan to undercut Mueller’s plans going forward.

That seems to create a whole slew of other potential legal problems no one has yet considered.

Rudy is working the press today (CNN, Politico), describing how the President’s advisors are trying to decide whether to hand in the open book test Mueller gave him back in October. He says he’s pretty sure that his client will get a 90% grade on his open book test.

“The questions they gave us, if they don’t know the answer to 90 percent of them now, I’d be shocked,” Giuliani said. “I guess the only thing I can do is, if they get his answers — if that’s what happens — is they’re going to check it against what they thought his answers were going to be, and I think it’s going to come out almost 100 percent.”

But his client is not going to turn in his open book test until he returns from Paris and thinks about it for a day.

A meeting with Trump to make a final decision on the first round of questions is expected soon after the president returns Sunday night from his trip to Paris for the 100th anniversary of the end of World War I, Guiliani said.

“We’re close,” Giuliani said. “I think the only thing that throws us off a little, which we explained to [Mueller], is that the president’s going to be away for about three, four days.”

“So, before we make a final decision — which I’m not sure I could tell you what that is, although I think we have an idea right now — but before we can make it, we really want the president to have a day home where he can just think about it, make sure he’s comfortable with it and then we’ll tell [Mueller] what the decision is,” the president’s lawyer added.

Of course, by the time this happens, Matt Whitaker will presumably have been briefed on the investigation — a briefing the contents of which he can share with Trump. And, depending on whether you think the Kremlin or the White House is a better source on these things, Trump will also have met with Vladimir Putin for lunch on Sunday.

As a reminder: The Watergate special prosecutor did not have to, and did not, wait for Nixon’s answers before he dropped the big conspiracy indictment. I’m not sure Mueller will, either. Indeed, I think it at least possible that this year long process of negotiating with Rudy and others about Trump questions has been a ploy to buy time, working Rudy’s mistaken assumption that Mueller thinks he needs Trump’s answers.

So all Rudy’s spinning about this open book test may actually be hurting his client.

George Conway (Kellyanne’s spouse, whom Trump considered to be Solicitor General) continues his habit of criticizing Trump from a conservative legal stance. This time, he joins Neal Katyal, author of the Special Counsel regulations under which Mueller operates, to argue that Trump’s appointment of Matt Whitaker is unconstitutional because Trump can’t name someone who hasn’t been Senate confirmed when a Senate confirmed candidate is available. The whole op-ed — which relies on a recent Clarence Thomas concurrence — is worth reading, but my favorite line is where they call Whitaker a constitutional nobody.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

I’m just as interested in what three rising Democratic House Chairs (House Judiciary Committee’s Jerrold Nadler, HPSCI’s Adam Schiff, and Oversight and Government Reform’s Elijah Commings) did, along with Dianne Feinstein. In the wake of Jeff Sessions’ resignation, they sent letters to every relevant department warning them to preserve all records on the Mueller investigation and Sessions’ departure. In their press release, they referred to Sessions departure not as a resignation, but as a firing.

Last night, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Intelligence Committee Ranking Member Adam Schiff (D-CA), Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD), and Senate Judiciary Committee Ranking Member Dianne Feinstein sent letters to top Administration officials demanding the preservation of all documents and materials relevant to the work of the Office of the Special Counsel or the firing of Attorney General Jeff Sessions.

In their letters, the Members wrote:  “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office, and preservation of records is critical to ensure that we are able to do our work without interference or delay. Committees will also be investigating Attorney General Sessions’ departure. We therefore ask that you immediately provide us with all orders, notices, and guidance regarding preservation of information related to these matters and investigations.”

Letters were sent to the White House Counsel Pat Cipollone, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Gina Haspel, Deputy U.S. Attorney for the Southern District of New York Robert Khuzami, Treasury Secretary Steven Mnuchin, NSA Director Paul Nakasone, IRS Commissioner Charles Rettig, and Acting Attorney General Matt Whitaker. [my emphasis]

Even the letters themselves, while they don’t use the word “firing,” emphasize the involuntary nature of Sessions’ ouster.

Our understanding is that Attorney General Jeff Sessions has been removed at the request of the President. We ask that you confirm that the Justice Department has preserved all materials of related to any investigations by the Special Counsel’s office, including any related investigations conducted by any component of the Justice Department. We also ask that you preserve all the materials related to the departure of Attorney General Sessions.

While it’s not clear whether they more basis to believe this was a firing rather than a resignation, they’re proceeding as if it was, legally, a firing. That’s crucial because the only way that Whitaker’s appointment, as someone who is not Senate confirmed, would be legal under the Vacancies Reform Act is if Sessions legally resigned. The Democrats seem to suspect they can argue he did not.

And that’s important because (as Katyal and Conway argue) if his appointment is not legal, than nothing he does as Attorney General is valid.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

Plus, by demanding preservation of the records and framing this in terms that suggest Whitaker’s appointment was not legal (I’m not sure I agree, but encourage HJC to ask Katyal and Conway to argue the case for them), HJC lays out a basis to claim standing to challenge this, particularly if and when Whitaker makes a decision (such as preventing HJC from obtaining any report Mueller writes) that will cause them injury as an independent branch of government.

Again, I’m not sure I agree with the Katyal/Conway legal argument, though if HJC can prove that Sessions was fired then it’s clear Whitaker was not legally appointed. But these two challenges pose a real risk for Trump. It risks not just decisions pertaining to the Mueller investigation, but even things like surveillance approvals, can be challenged by anyone harmed by them (who gets notice of it). That’s an unbelievable risk for a position as important as Attorney General.

Back when a guy named Robert Mueller had his FBI tenure extended two years in 2011, Tom Coburn worried that even that action, done with Senate approval, would make the approvals Mueller made under Section 215 (this was before we knew the scope of the phone dragnet) legally suspect.

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

Coburn was worried about one (or a few) surveillance programs. The Attorney General touches far more than the FBI Director, and Trump’s DOJ could spend just as much time in court trying to defend the actions of his hatchetman.

And it looks like both the author of the statute governing Mueller’s appointment and the people who will oversee DOJ in a few months have real questions about the legality of Whitaker’s appointment.

Just over a year ago, I worried that if and when Brian Benczkowski was confirmed as DOJ Criminal Division chief, it would probably provide Trump with a mole in the Mueller investigation. It took Benczkowski a long time, but after he was confirmed on July 11 of this year, he may have gotten visibility into parts of the Mueller investigation that relied on Criminal Division resources.

Whether or not Benczkowski shared anything he may have learned with Trump, we can be fairly certain that Matt Whitaker, whom Trump has just made Acting Attorney General, could share the information. Authority to do so stems from an OLC memo Jay Bybee wrote back in 2002.

Benczkowski could share information about wiretaps and proceedings from the grand jury directly with the president.

The cause for concern comes from an old Department of Justice interpretation of the PATRIOT Act. Along with expanding surveillance authorities, the PATRIOT Act permitted any government lawyer to share national security-related grand jury or wiretap information with any government official as long as it would help them perform their job better. The measure was passed in response to the September 11 attacks, with an eye to sharing counterterrorism information more broadly. But the authorization of such sharing explicitly extended to “clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power”—precisely the kind of nation-state spying at the heart of the Russian investigation.

A July 22, 2002, memo from the Justice Department’s Office of Legal Counsel, written by Jay Bybee, the author of the infamous torture memos, held that, under the statute, the president could get grand jury information without the usual notice to the district court.

[snip]

Bybee’s memo relies on and reaffirms several earlier memos. It specifically approves two rationales for sharing grand jury information with the president that would be applicable to the Russian investigation. A 1997 memo imagined that the president might get grand jury information “in a case where the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated by the grand jury investigation.” And a 2000 memo imagined that the president might need to “obtain grand jury information relevant to the exercise of his pardon authority.”

The memo envisioned such authority to be delegable, but ultimately puts the AG in charge of deciding what information the President gets.

The 2002 memo generally supports the notion that the attorney general should decide whether the president needs to see a particular piece of information.

And it doesn’t require any paper trail for the sharing of such information.

And the memo cites an old opinion from the Iran-Contra scandal to argue that the president doesn’t have to memorialize any such delegations in writing. “Such a directive may be set forth in a formal executive order, in a less formal presidential memorandum, … or pursuant to an oral instruction from the President to the Attorney General or other appropriate officials.” So Trump could order someone to share information without leaving a paper trail.

Given that the entire purpose of this move seems to be about tampering with the Mueller inquiry, we should assume Whitaker will do as imagined, and let the President know what Mueller has been up to.

Maggie Haberman just observed that Jeff Sessions’ resignation letter is not dated. (Update: NYCSouthpaw actually noted that before Maggie did.) While some of the details in it — such as his claim to have “prosecuted the largest number of violent offenders and firearm defendants in our nation’s history” — seem to reflect the full 22 months of his tenure, nothing in it clearly marks it as having been written today. So I think that is what probably happened.

But there’s a scenario that makes me wonder whether this isn’t what Trump has been planning since July 2017, the last time Trump got really furious with Jeff Sessions.

Consider this timeline:

July 19, 2017: Maggie and Mike tee up a question (obviously working from the White House script) about how investigating Trump’s finances would represent crossing a red line.

On July 25 and 26, 2017, Trump took to Twitter to bitch about Sessions.

July 26, 2017: In a CNN interview, Whitaker describes how you could defund the Special Counsel and thereby end his work.

I could see a scenario where Jeff Sessions is replaced, it would recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt.

On July 27, 2017, Whitaker said it would be a mistake to provide Mueller any further protection.

August 4, 2017: Whitaker recommends an article that describes, “with a little planning he could install a true believer to a political position at DOJ—as a sleeper agent—and then (after easing out Sessions) elevate him or her to attorney general.”

August 6, 2017: Whitaker uses the Red Line comment Maggie and Mike teed up to describe Mueller pursuing Trump’s finances as improper.

On August 25, 2017, Whitaker suggested searching Manafort’s condo with a dozen agents was designed to intimidate him.

On September 22, 2017, Whitaker was hired to be Sessions’ Chief of Staff.

In other words, Trump may have been pursuing this plan since July 2017.

If so, then Mueller may have already anticipated that, because he asked four questions about that episode in March, as well as questions about what he did in response to Sessions’ earlier recusal.

• What did you think and do regarding the recusal of Mr. Sessions?
• What efforts did you make to try to get him to change his mind?
• Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
• What did you think and what did you do in reaction to the news of the appointment of the special counsel?
• Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
• What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
• What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
• What was the purpose of your July 2017 criticism of Mr. Sessions?

Whatever it was, Trump obtained Sessions’ resignation before today’s press conference, so it’s possible Whitaker already tried to move against Mueller today, relying on the ground work he laid over a year ago.

The one thing that would suggest otherwise is the plea deal Manafort entered. I’ve argued that it is pardon proof, partly because it would include state charges and partly because Manafort would lose all his ill-gotten gains if Trump didn’t pardon him first. For reasons I won’t write up yet, I’m not sure that’s entirely true (though Manafort has provided a lot of information in the last several months).

That’d be way better planning than Trump has pulled off on any other thing. But then, protecting himself is the thing he’s best at.

Update: I’ve added a few things to this timeline.

Update: According to John Q Barrett, who spent some time in the CNN Green Room last year, his entire point for going on CNN was to curry favor with Trump.

Whitaker told me in June 2017 that he was flying out from Iowa to NYC to be on CNN regularly because he was hoping to be noticed as a Trump defender, and through that to get a Trump judicial appointment back in Iowa.

And this (very detailed) WaPo piece describes Trump as telling aides he would not recuse, which raises questions about whether Whitaker told him so directly.

Trump has told advisers that Whitaker is loyal and would not have recused himself from the investigation, current and former White House officials said.

And with the election done (and some big successes in MI), we resume our regularly scheduled Russian investigation.

Yesterday, the WaPo reported that the two Stone associates who, it reported on October 21, claimed they could corroborate Roger Stone’s claim that Randy Credico was his go-between with WikiLeaks have testified to the grand jury.

Two Stone associates, filmmaker David Lugo and attorney Tyler Nixon, also told The Post that Credico acknowledged in conversations last year being the source of material for Stone’s statements and tweets about WikiLeaks.

Nixon said he would be willing to testify before the grand jury about a dinner at which Credico fretted that his liberal friends would be displeased that he was a source for the arch-conservative Stone. Lugo provided The Post with text messages in which Credico said: “I knew Rodger [sic] was going to name me sooner or later and so I told you that I’m the so-called back Channel.”

Chuck Ross had more details (first) about Nixon’s interaction with the FBI and Mueller’s team.

I feel about this reporting the same way I feel about the Roger Stone stories generally: that virtually all of the reporting is missing the point of what Mueller is looking at. Indeed, the far more interesting detail in the WaPo report is that Jerome Corsi (who, remember, said that he avoided legal exposure with something related to Stone) has spent weeks chatting with Mueller’s team.

Separately, conservative writer Jerome Corsi was interviewed by investigators over three days last week and appears to be emerging as a key witness in the Mueller investigation into Stone’s activities.

In an appearance on his live-streamed Internet show Monday, Corsi told viewers that he has been in near-continuous contact with Mueller’s team in recent weeks.

“It’s been two months, on a really constant basis in the Mueller investigation. It’s been one of the biggest pushes of my life,” said Corsi, who added that he could provide no specifics of his interactions with Mueller.

As I’ve laid out here, Corsi spoke with Stone on what appears to be a critical day in August 2016, and then posted an attack on John Podesta that preceded, but seemed to anticipate, the release of his stolen emails in October 2016.

So Corsi knows (or at least has non-falsifiable information about) the real story, whereas Credico still feels like a failed cover story for Stone.

Which is why (as always) I’m more interested in the timeline of all this than what Lugo and Nixon had to say (and I agree with Credico’s attorney that their stories don’t actually refute what Credico has said).

Jerome Corsi was first interviewed by Mueller’s team on September 6, in what he hoped would be an interview that staved off a grand jury appearance the next day, the same day as Credico’s appearance. Not only did the interview not satisfy Mueller, they called him back to the grand jury on September 21, and (according to Corsi) he has remained in close contact with Mueller’s team since — and he doesn’t seem that bothered by that.

Meanwhile, when the WaPo initially reported that Lugo claimed he could undermine Credico’s claims that he was not Stone’s back channel, he had already testified, two days earlier on October 19 (meaning Mueller found him themselves, which makes sense because he communicated directly with Credico). But Mueller only contacted Nixon after the WaPo story — perhaps because his public comments eliminated any question that he would involve attorney-client privilege or perhaps because they didn’t know about him beforehand. He was interviewed on October 26, then testified before the grand jury November 2, last Friday.

Nixon rather ostentatiously told the always credulous Ross that he offered up his willingness to Stone to go to the press about the November 2017 dinner.

He also said Stone did not pressure him to speak to the media or testify before the grand jury.

“Never once did he ever prompt me on anything,” Nixon said of Stone. “I voluntarily said ‘You know Roger, I know that we had this dinner.’”

Which may be how and why WaPo learned about him and Lugo, as he attempts to undermine the story against him.

Between the two of them, however, they show only that Credico referred to himself as the back channel in spring 2017 and then showed hesitancy — when he was being subpoenaed by the House to testify about just that issue — to be public identified as Stone’s source in November 2017. Yet Stone forced that issue by publicly IDing Credico as his source after he was subpoenaed.

Stone’s story — his attribution to learning that Wikileaks had emails from Hillary’s server on July 25 and then vaguely his other WikiLeaks knowledge to Credico — still doesn’t explain his actions in August 2016. And that happens to be the area that Corsi does know about, and is surely one of the topics he has spent two months explaining to Mueller.

Corsi, of course, during the same spring 2017 period when Credico was talking about being IDed as Stone’s source, offered up an explanation for Stone’s comments, an explanation that didn’t make sense at the time.

Mueller is not interviewing witnesses to test Credico’s story about whether he really was Stone’s go-between. He’s interviewing witnesses to learn about Stone crafted a cover story that still makes no sense.

In an interview last week, Rudy Giuliani explained that Trump had finished the open book test Mueller had given the President, but that they were withholding the answers until after tomorrow’s election, after which they’ll re-enter negotiations about whether Trump will actually answer questions on the Russian investigation in person or at all.

“I expect a day after the election we will be in serious discussions with them again, and I have a feeling they want to get it wrapped up one way or another.”

Meanwhile, one of the first of the post-election Administration shake-up stories focuses, unsurprisingly, on the likelihood that Trump will try to replace Jeff Sessions and/or Rod Rosenstein (though doesn’t headline the entire story “Trump set to try to end Mueller investigation,” as it should).

Some embattled officials, including Attorney General Jeff Sessions, are expected to be fired or actively pushed out by Trump after months of bitter recriminations.

[snip]

Among those most vulnerable to being dismissed are Sessions and Deputy Attorney General Rod J. Rosenstein, who is overseeing special counsel Robert S. Mueller III’s Russia investigation after Sessions recused himself. Trump has routinely berated Sessions, whom he faults for the Russia investigation, but he and Rosenstein have forged an improved rapport in recent months.

As I note in my TNR piece on the subject, there are several paths that Trump might take to attempt to kill the Mueller investigation, some of which might take more time and elicit more backlash. If Trump could convince Sessions to resign, for example, he could bring in Steven Bradbury or Alex Azar to replace him right away, meaning Rosenstein would no longer be Acting Attorney General overseeing Mueller, and they could do whatever they wanted with it (and remember, Bradbury already showed himself willing to engage in legally suspect cover-ups in hopes of career advancement with torture). Whereas firing Rosenstein would put someone else — Solicitor General Noel Francisco, who already obtained an ethics waiver for matters pertaining to Trump Campaign legal firm Jones Day, though it is unclear whether that extends to the Mueller investigation — in charge of overseeing Mueller immediately.

This may well be why Rudy is sitting on Trump’s open book test: because they’ve gamed out several possible paths depending on what kind of majority, if any, Republicans retain in the Senate (aside from trying to defeat African American gubernatorial candidates in swing states, Trump has focused his campaigning on retaining the Senate; FiveThirtyEight says the two most likely outcomes are that Republicans retain the same number of seats or lose just one, net). But they could well gain a few seats. If they have the numbers to rush through a Sessions replacement quickly, they’ll fire him, but if not, perhaps Trump will appease Mueller for a few weeks by turning in the answers to his questions.

That’s the background to what I focused on in my TNR piece last week: the Mueller report that Rudy has been talking about incessantly, in an utterly successful attempt to get most journalists covering this to ignore the evidence in front of them that Mueller would prefer to speak in indictments, might, instead, be the failsafe, the means by which Mueller would convey the fruits of his investigation to the House Judiciary Committee if Trump carries out a Wednesday morning massacre. And it was with that in mind that I analyzed how the Watergate Road Map served to do just that in this post.

In this post, I’d like to push that comparison further, to see what — if Mueller and his Watergate prosecutor James Quarles team member are using the Watergate precedent as a model — that might say about Mueller’s investigation. I’ll also lay out what a Mueller Road Map, if one awaits a Wednesday Morning Massacre in a safe somewhere, might include.

The Watergate prosecutors moved from compiling evidence to issuing the Road Map in just over six months

As early as August 1973, George Frampton had sent Archibald Cox a “summary of evidence” against the President. Along with laying out the gaps prosecutors had in their evidence about about what Nixon knew (remember, investigators had only learned of the White House taping system in July), it noted that any consideration of how his actions conflicted with his claims must examine his public comments closely.

That report paid particular attention to how Nixon’s White House Counsel had created a report that created a transparently false cover story. It described how Nixon continued to express full confidence in HR Haldeman and John Ehrlichman well after he knew they had been involved in the cover-up. It examined what Nixon must have thought the risks an investigation posed.

The Archives’ Road Map materials show that in the same 10 day period from January 22 to February 1, 1974 when the Special Prosecutor’s office was negotiating with the President’s lawyers about obtaining either his in-person testimony or at least answers to interrogatories, they were also working on a draft indictment of the President, charging four counts associated with his involvement in and knowledge of the bribe to Howard Hunt in March 1973. A month later, on March 1, 1974 (and so just 37 days after the time when Leon Jaworski and Nixon’s lawyers were still discussing an open book test for that more competent president), the grand jury issued the Road Map, a request to transmit grand jury evidence implicating the President to the House Judiciary Committee so it could be used in an impeachment.

Toto we’re not in 1974 anymore … and neither is the President

Let me clear about what follows: there’s still a reasonable chance Republicans retain the House, and it’s most likely that Republicans will retain the Senate. We’re not in a position where — unless Mueller reveals truly heinous crimes — Trump is at any imminent risk of being impeached. We can revisit all this on Wednesday after tomorrow’s elections and after Trump starts doing whatever he plans to do in response, but we are in a very different place than we were in 1974.

So I am not predicting that the Mueller investigation will end up the way the Watergate one did. Trump has far less concern for his country than Nixon did — an observation John Dean just made.

And Republicans have, almost but not quite universally, shown little appetite for holding Trump to account.

So I’m not commenting on what will happen. Rather, I’m asking how advanced the Mueller investigation might be — and what it may have been doing for the last 18 months — if it followed the model of the Watergate investigation.

One more caveat: I don’t intend to argue the evidence in this thread — though I think my series on what the Sekulow questions say stands up really well even six months later. For the rest of this post, I will assume that Mueller has obtained sufficient evidence to charge a conspiracy between Trump’s closest aides and representatives of the Russian government. Even if he doesn’t have that evidence, though, he may still package up a Road Map in case he is fired.

Jaworski had a draft indictment around the same time he considered giving Nixon an open book test

Even as the Watergate team was compiling questions they might pose to the President if Jaworski chose to pursue that route, they were drafting an indictment.

If the Mueller investigation has followed a similar path, that means that by the time Mueller gave Trump his open book test in October, he may have already drafted up an indictment covering Trump’s actions. That’s pretty reasonable to imagine given Paul Manafort’s plea deal in mid-September and Trump’s past statements about how his former campaign manager could implicate him personally, though inconsistent with Rudy’s claims (if we can trust him) that Manafort has not provided evidence against Trump.

Still, if the Jaworski Road Map is a guide, then Mueller’s team may have already laid out what a Trump indictment would look like if you could indict a sitting President. That said, given the complaints that DOJ had drafted a declination with Hillary before her interview, I would assume they would keep his name off it, as the Watergate team did in editing the Nixon indictment.

Then, a month after drawing up a draft indictment, Jaworski’s grand jury had a Road Map all packaged up ready to be sent to HJC.

Another crucial lesson of this comparison: Jaworksi did not wait for, and did not need, testimony from the President to put together a Road Map for HJC. While I’m sure he’ll continue pursuing getting Trump on the record, there’s no reason to believe Mueller needs that to provide evidence that Trump was part of this conspiracy to HJC.

Given that I think a Mueller report primarily serves as a failsafe at this point, I would expect that he would have some version of that ready to go before Wednesday. And that’s consistent with the reports — enthusiastically stoked by the President’s lawyers — that Mueller is ready to issue his findings.

If a Mueller report is meant to serve as a Road Map for an HJC led by Jerrold Nadler starting in January, then it is necessarily all ready to go (and hopefully copied and safely stored in multiple different locations), even if it might be added to in coming months.

The Road Map Section I included evidence to substantiate the the conspiracy

As I laid out here, the Watergate Road Map included four sections: 

I. Material bearing on a $75,000 payment to E. Howard Hunt and related events

II. Material bearing on the President’s “investigation”

III. Material bearing on events up to and including March 17, 1973

IV. The President’s public statements and material before the grand jury related thereto

The first section maps very closely to the overt acts laid out in the February 1 draft indictment, incorporating two acts into one and leaving off or possibly redacting one, but otherwise providing the grand jury evidence — plus some interim steps in the conspiracy — that Jaworski would have used to prove all the overt acts charged in the conspiracy charge from that draft indictment.

If Mueller intended to charge a quid pro quo conspiracy — that Trump accepted a Russian offer to drop dirt, possibly emails explicitly, in response for sanctions relief (and cooperation on Syria and other things) — then we could imagine the kinds of overt acts he might use to prove that:

• Foreknowledge of an offer of dirt and possibly even emails (Rick Gates and Omarosa might provide that)
• Trump involvement in the decision to accept that offer (Paul Manafort had a meeting with Trump on June 7, 2016 that might be relevant, as would the immediate aftermath of the June 9 meeting)
• Trump signaling that his continued willingness to deliver on the conspiracy (as early as the George Papadopoulos plea, Mueller laid out some evidence of this, plus there is Trump’s request for Russia to find Hillary emails, which Mueller has already shown was immediately followed by intensified Russian hacking attempts)
• Evidence Russia tailored releases in response to Trump campaign requests (Roger Stone may play a key role in this, but Mueller appears to know that Manafort even more explicitly asked Russia for help)
• Evidence Trump moved to pay off his side of the deal, both by immediately moving to cooperate on Syria and by assuring Russia that the Trump Administration would reverse Obama’s sanctions

Remember, to be charged, a conspiracy does not have to have succeeded (that is, it doesn’t help Trump that he hasn’t yet succeeded in paying off his debt to Russia; it is enough that he agreed to do so and then took overt acts to further the conspiracy).

In other words, if Mueller has a Road Map sitting in his safe, and if I’m right that this is the conspiracy he would charge, there might be a section that included the overt acts that would appear in a draft indictment of Trump (and might appear in an indictment of Trump’s aides and spawn and the Russian representatives they conspired with), along with citations to the grand jury evidence Mueller has collected to substantiate those overt acts.

Note, this may explain whom Mueller chooses to put before the grand jury and not: that it’s based off what evidence Mueller believes he would need to pass on in sworn form to be of use for HJC, to (among other things) help HJC avoid the protracted fights over subpoenas they’ll face if Democrats do win a majority.

The Road Map Section II described how the White House Counsel tried to invent a cover story

After substantiating what would have been the indictment against Nixon, the Watergate Road Map showed how Nixon had John Dean and others manufacture a false exonerating story. The Road Map cited things like:

• Nixon’s public claims to have total confidence in John Dean
• Nixon’s efforts to falsely claim to the Attorney General, Richard Kleindienst, that former AG John Mitchell might be the most culpable person among Nixon’s close aides
• Nixon’s instructions to his top domestic political advisor, John Ehrlichman, to get involved in John Dean’s attempts to create an exculpatory story
• Press Secretary Ron Ziegler’s public lies that no one knew about the crime
• Nixon’s efforts to learn about what prosecutors had obtained from his close aides
• Nixon’s private comments to his White House Counsel to try to explain away an incriminating comment
• Nixon’s ongoing conversations with his White House Counsel about what he should say publicly to avoid admitting to the crime
• Nixon’s multiple conversations with top DOJ official Henry Petersen, including his request that Peterson not investigate some crimes implicating the Plumbers
• Nixon’s orders to his Chief of Staff, HR Haldeman, to research the evidence implicating himself in a crime

This is an area where there are multiple almost exact parallels with the investigation into Trump, particularly in Don McGahn’s assistance to the President to provide bogus explanations for both the Mike Flynn and Jim Comey firings — the former of which involved Press Secretary Sean Spicer and Chief of Staff Reince Priebus, the latter of which involved Trump’s top domestic political advisor Stephen Miller. There are also obvious parallels between the Petersen comments and the Comey ones. Finally, Trump has made great efforts to learn via Devin Nunes and other House allies what DOJ has investigated, including specifically regarding the Flynn firing.

One key point about all this: the parallels here are almost uncanny. But so is the larger structural point. These details did not make the draft Nixon indictment. There were just additional proof of his cover-up and abuse of power. The scope of what HJC might investigate regarding presidential abuse is actually broader than what might be charged in an indictment.

The equivalent details in the Mueller investigation — particularly the Comey firing — have gotten the bulk of the press coverage (and at one point formed a plurality of the questions Jay Sekulow imagined Mueller might ask). But the obstruction was never what the case in chief is, the obstruction started when Trump found firing Flynn to be preferable to explaining why he instructed Flynn, on December 29, to tell the Russians not to worry about Obama’s sanctions. In the case of the Russia investigation, there has yet to be an adequate public explanation for Flynn’s firing, and the Trump team’s efforts to do so continue to hint at the real exposure the President faces on conspiracy charges.

In other words, I suspect that details about the Comey firing and Don McGahn’s invented explanations for it that made a Mueller Road Map might, as details of the John Dean’s Watergate investigation did in Jaworski’s Road Map, as much to be supporting details to the core evidence proving a conspiracy.

The Road Map Section III provided evidence that Nixon knew about the election conspiracy, and not just the cover-up

The third section included some of the most inflammatory stuff in Jaworski’s Road Map, showing that Nixon knew about the campaign dirty tricks and describing what happened during the 18 minute gap. Here’s where I suspect Jaworski’s Road Map may differ from Mueller’s: while much of this section provides circumstantial evidence to show that the President knew about the election crimes ahead of time, my guess is (particularly given Manafort’s plea) that Mueller has more than circumstantial evidence implicating Trump. In a case against Trump, the election conspiracy — not the cover-up, as it was for Nixon — is the conspiracy-in-chief that might implicate the President.

The Road Map Section III described Nixon’s discussions about using clemency to silence co-conspirators

One other area covered by this section, however, does have a direct parallel: in Nixon’s discussions about whether he could provide clemency to the Watergate defendants. With both Flynn and Manafort cooperating, Mueller must have direct descriptions of Trump’s pardon offers. What remains to be seen is if Mueller can substantiate (as he seems to be trying to do) Trump willingness to entertain any of the several efforts to win Julian Assange a pardon. There’s no precedent to treat offering a pardon as a crime unto itself, but it is precisely the kind of abuse of power the founders believed merited impeachment. Again, it’s another thing that might be in a Mueller Road Map that wouldn’t necessarily make an indictment.

The Road Map Section IV showed how Nixon’s public comments conflicted with his actions

We have had endless discussions about Trump’s comments about the Russian investigation on Twitter, and even by March, at least 8 of the questions Sekulow imagined Mueller wanted to ask pertained to Trump’s public statements.

• What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
• What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
• What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
• What was the purpose of your May 12, 2017, tweet?
• What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
• What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
• What was the purpose of your July 2017 criticism of Mr. Sessions?
• What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

The Watergate Road Map documents a number of public Nixon comments that, like Trump’s, are not themselves criminal, but are evidence the President was lying about his crimes and cover-up. The Watergate Road Map describes Nixon claiming that:

• He did not know until his own investigation about efforts to pay off Watergate defendants
• He did not know about offers of clemency
• He did not know in March 1973 there was anything to cover up
• His position has been to get the facts out about the crime, not cover them up
• He ordered people to cooperate with the FBI
• He had always pressed to get the full truth out
• He had ordered legitimate investigations into what happened
• He had met with Kleindienst and Peterson to review what he had learned in his investigation
• He had not turned over evidence of a crime he knew of to prosecutors because he assumed Dean already had
• He had learned more about the crimes between March and April 1973

Admittedly, Trump pretended to want real investigations — an internal investigation of what Flynn had told the FBI, and an external investigation into the election conspiracy — for a much briefer period than Nixon did (his comments to Maria Bartiromo, which I covered here, and Lester Holt, which I covered here, are key exceptions).

Still, there are a slew of conflicting comments Trump has made, some obviously to provide a cover story or incriminate key witnesses, that Mueller showed some interest in before turning in earnest to finalizing the conspiracy case in chief. A very central one involves the false claims that Flynn had said nothing about sanctions and that he was fired for lying to Mike Pence about that; probably at least 7 people knew those comments were false when Sean Spicer made them.  Then there are the at least 52 times he has claimed “No Collusion” or the 135 times he has complained about a “Witch Hunt” on Twitter.

Trump’s lawyers have complained that his public comments have no role in a criminal investigation (though the likelihood he spoke to Putin about how to respond as the June 9 meeting story broke surely does). But Mueller may be asking them for the same reason they were relevant to the Watergate investigation. They are evidence of abuse of power.

The Road Map included the case in chief, not all the potential crimes

Finally, there is one more important detail about the Road Map that I suspect would be matched in any Mueller Road Map: Not all the crimes the Special Prosecutor investigated made the Road Map. The Watergate team had a number of different task forces (as I suspect Mueller also does). And of those, just Watergate (and to a very limited degree, the cover-up of the Plumbers investigation) got included in the Road Map.

Here, we’ve already seen at least one crime get referred by Mueller, Trump’s campaign payoffs. I’ve long suggested that the Inauguration pay-to-play might also get referred (indeed, that may be the still-active part of the grand jury investigation that explains why SDNY refuses to release the warrants targeting Michael Cohen). Mueller might similarly refer any Saudi, Israeli, and Emirate campaign assistance to a US Attorney’s office for investigation. And while it’s virtually certain Mueller investigated the larger network of energy and other resource deals that seem to be part of what happened at the Seychelles meetings, any continuing investigation may have been referred (indeed, may have actually derived from) SDNY.

In other words, while a Mueller Road Map might include things beyond what would be necessary for a criminal indictment, it also may not include a good number of things we know Mueller to have examined, at least in passing.

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 other day, I noted that the Roadmap being FOIAed by Ben Wittes and friends and previously FOIAed by Geoffrey Shepard might serve as a guide, of sorts, for the kind of report Robert Mueller might write such that it could easily be shared with the House Judiciary Committee, particularly in case Mueller got fired.

This week, the National Archives released all parts of the road map they’ve been able to map to previously public items; the FOIAs continue for the grand jury materials not previously released. Lawfare did this post on what got released.

I’m going to lay out what got released. Some of this had already been released, but in this post I’m going to lay out how it all relates together, with an eye towards what we know is going on in the Mueller investigation right now. My treatment here is not in the order that NARA has released them; I’ve rearranged them to show how the Special Prosecutor kept a running memo of what evidence there was against Nixon, which led to an attempt to get Nixon’s testimony, which led to a draft indictment, which led to the Road Map packaging up the evidence behind the indictment to send to the House Judiciary Committee.

I’m not going to deal with the negotiations on the grand jury materials; I may return to that in the future. My goal here is to show how investigative materials — including some that were not evidence of a crime but were evidence of Presidential bad faith — got packaged up to send to the House Judiciary Committee. I’ll do a follow-up post with more observations on what this might tell us, if Mueller is following this road map.

Summary of Evidence (Draft 2, Prepared for Archibald Cox in August 1973, earlier June 7, 1973 memo)

Starting in June 1973, before Cox was fired, he started pulling together all the evidence against Nixon.

This draft memo from August 1973 includes examples of Nixon’s evolving story about whether he knew of CREEP and the break-in in advance, about efforts to impede the FBI investigation (including by calling Patrick Gray to weigh in), about offers of clemency, all of which are similar to what I’m sure Mueller has about Trump’s knowledge in real time of the Russian operation.

The memo lays out what circumstantial evidence there is to support he did have foreknowledge, in some cases referencing the evidence directly, in others pointing to where the evidence would be. At one point it states the old adage, “what did the President know and when did he know it,” this way: “it would be important to know whether, and precisely when, the President may have known about the payoffs.” It clearly labels what is supposition or circumstantial and in places describes what would need to be established to substantiate foreknowledge of something.

The evidence cited includes grand jury testimony, Senate testimony, paperwork, and the press (for witnesses’ public claims). As evidence of some things, it describes “discrepancies between his public statements urging a full investigation and claiming such an investigation had been conducted, and the President’s actual failure to cause a thorough investigation to be made or assure that one was being made.” (33)

We joke about Mueller having a file of all Trump’s incriminating tweets, but a memo like this is probably how the Mueller team keeps running track of what solid evidence, circumstantial evidence, and exculpatory evidence against Trump they have.

Summary of Evidence August 24, 1973, adding Plumbers, Dirty Tricks, ITT, and Campaign Contributions

This is a finalized version of the above with a cover memo giving credit to the people who worked on each section.

Communications regarding Nixon’s testimony

There are three subsections here, without an introduction. I’ll deal with them out of order.

C. Communications of the Special Prosecutor’s Office

The more interesting part of these communications, for current purposes, show the Special Prosecutor’s Office negotiating for Nixon’s testimony and considering whether to present interrogatories — what I call an open book test — to him. These are the kinds of negotiations we know to be going on right now between Mueller’s team and Trump, surely using some of the very same arguments.

While by January 29, 1974, the Special Prosecutor had decided against giving Nixon questions to answer under oath, the correspondence does include efforts to get each of the task forces (note, Mueller’s team appears to be organized into task forces as well) to come up with the interrogatories they would pose to the President in January 1974, as in these questions about investigations of people on Nixon’s enemies list.

We just have the interrogatories from two task forces, which amount to around 31 questions. Remember that by March, Mueller’s team already had over 40 questions for Trump, though they had not, as far as we know, yet presented them as formal interrogatories to him. Trump has reportedly finished the interrogatories Mueller gave him, but he’s sitting on them until after Tuesday’s election.

Starting in September 1974, the Special Prosecutor paperwork turns to obtaining Nixon’s testimony, leading through the generation of questions for ultimate his 1975 questioning.

A. Communication from the Grand Jury to Nixon

Then there are communications from the grand jury to Nixon, both in this early 1974 period and in 1975 when they actually did get his testimony. Most remarkably, on January 30, 1974 (the day after the Special Prosecutor had given up on interrogatories), the foreperson, Vladimir Pregelj, wrote Nixon describing why they needed his testimony. Note how he describes that prosecutors would soon make recommendations about “major phases of our investigation.”

B. Nixon’s communications with the Special Prosecutor

Finally, there is Nixon’s side of the communications with the Special Prosecutor’s office, including their explanation in September 1974 of why Nixon could never get a fair trial. This correspondence is less interesting (to me, at least), but Rudy Giuliani has probably used some of it to model his memo of why Trump shouldn’t be investigated.

Draft Indictment of the President, February 1, 1974

As much as anything else, I’m fascinated by the date of the indictment Jaworski’s team drafted: February 1, 1974. This shows that shortly after giving up on the idea of presenting interrogatories to Nixon, two days after the jury foreperson said the Special Prosecutor would soon present recommendations to the grand jury, and at a time when the Special Prosecutor was still fighting the President’s lawyer’s efforts to avoid testifying, Jaworski’s team had a draft indictment.

The indictment charged four crimes — bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation. While it was originally titled US v. Nixon, an edit suggested it should be In Re June 5, 1972 Grand Jury, the investigation actually obstructed.

On top of introducing Nixon and the FBI, the introduction of the indictment describes the burglary the investigation of which Nixon obstructed. Then, Count One uses five paragraphs to describe generally how the conspiracy worked. Paragraph 11 lays out three actions Nixon took on March 21, 22, and 23, 1973 (basically, ordering payment to Howard Hunt). Then paragraph 12 and a series of numbered paragraphs thereafter lay out the 9 overt acts behind the conspiracy.

1. March 16: Hunt meets with O’Brien
2. March 21: Dean meets with Nixon
3. March 21: Nixon meets with Dean and Haldeman and instructs bribe to Hunt be paid [handwritten marginal note to add conversation with Mitchell]
4. March 21: LaRue provides messenger cash for Bittman
5. March 21: Nixon meets with Dean, Haldeman, and Ehrlichman and instructs Dean to write up report on Watergate
6. March 22: Mitchell tells Dean, Haldeman, and Ehrlichman that Hunt’s money problem has been taken care of
7. March 22: Nixon meets with Dean, Haldeman, Ehrlichman, and Mitchell and again discuss Dean writing up report on Watergate
8. March 22: Ehrlichman tells Krogh that Mitchell has taken care of Hunt’s testimony
9. March 23: Haldeman tells Dean to prepare report on Watergate

The remaining Counts restate the underlying act — bribing Hunt — and tie it to the other crimes.

There are an additional 9 redacted pages that were deemed protected grand jury materials (this stuff might get unsealed depending on the outcome of an appeal before the DC Circuit right now).

The Road Map

The Road Map was filed under seal on March 1, 1974 (that is, just a month after Jaworski’s office gave up on interrogatories from the President and drafted an indictment against him). It includes an introduction, then an elaboration of the overt acts from the draft indictment, with the connecting steps between them, as follows (I’ve kept the overt acts from the indictment in bold):

1. March 16: Hunt meets with O’Brien (cites 3 grand jury transcript passages)
2. March 19: O’Brien meets with Dean (cites Dean grand jury transcript and visitor log)
3. March 19: Dean means with Ehrlichman about Hunt (cites two grand jury excerpts)
4. March 20: Dean talks to Mitchell about Hunt (cites tape recording and Dean grand jury)
5. March 21: Dean meets with Nixon, then with Dean and Haldeman and instructs bribe to Hunt be paid [note this combines overt acts 5 and 6 from the indicment] (includes extensive description of the meeting, cites two recordings of meeting)
6. March 21: Haldeman talks to Mitchell (cites two grand jury excerpts and Haldeman’s phone log)
7. March 21: Mitchell talks to LaRue (cites LaRue’s grand jury)
8. March 21: Haldeman meets with Ehrlichman and Dean about how to handle things (cites meeting logs, recording, grand jury)
9. March 21: Nixon meets with Dean, Haldeman, and Ehrlichman to discuss how to handle things (cites recording)
10. March 21: LaRue provides messenger cash for Bittman (cites five grand jury witnesses and seven exhibits)
11. March 22: Mitchell tells Dean, Haldeman, and Ehrlichman that Hunt’s money problem has been taken care of [note indictment overt act 5 — the first meeting about the report — is taken out of this chronology] (cites grand jury testimony of all three)
12. March 22: Nixon meets with Dean, Haldeman, Ehrlichman, and Mitchell and again discuss Dean writing up report on Watergate which Nixon can later “rely” on (cites tape recording and Haldeman’s notes)
13. March 22: Ehrlichman tells Krogh that Mitchell has taken care of Hunt’s testimony (cites Krogh grand jury testimony)
14. Redacted [note Haldeman order to Dean would appear here in chronology]

From there, the road map includes a bunch of stuff not included in the indictment:

15 through 28: Nixon’s attempts at a cover-up

29 through 43: Nixon’s foreknowledge of dirty tricks and the coverup up to March 17, including the missing 18 minutes, and immediate response to Watergate, including offers of pardons

44 through 53: Nixon’s lies about wanting an investigation

In a letter sent Thursday to Paul Crotty, the judge in the case of alleged Vault 7 WikiLeaks source, Joshua Schulte, prosecutors described the investigation conducted when, “in or about early October 2018,” they discovered he had been communicating clandestinely with third parties outside of the Metropolitan Corrections Center, where he has been held since December. They described discovering a truly stupendous amount of communications gear to store in a jail cell, amounting to multiple cell phones and other devices, from which Schulte was running 13 email and social media accounts.

In or about early October 2018, the Government learned that Schulte was using one or more smuggled contraband cellphones to communicate clandestinely with third parties outside of the MCC. The Government and the FBI immediately commenced an investigation into Schulte’s conduct at the MCC. That investigation involved, among other things, the execution of six search warrants and the issuance of dozens of grand jury subpoenas and pen register orders. Pursuant to this legal process, in the weeks following the Government’s discovery of Schulte’s conduct at the MCC, the FBI has searched, among other things, the housing unit at the MCC in which Schulte was detained; multiple contraband cellphones (including at least one cellphone used by Schulte that is protected with significant encryption); approximately 13 email and social media accounts (including encrypted email accounts); and other electronic devices.

Now, the prosecutors use that word “encrypted” twice, as if it means extra spooky, but these days, a cellphone with significant encryption could mean an iPhone (though in jail Schulte might be able to get state of the art spook or crook phones) and “encrypted email accounts” often means ProtonMail.

In any case, that’s a whole lot of legal process for a one month investigation of someone sitting in a jail cell (Schulte was moved to solitary when the investigation started on October 1), but then Schulte allegedly had a shit-ton of hardware. The 6 search warrants were presumably used for Schulte’s devices, and the “dozens of grand jury subpoenas and pen registers” would probably have been used for those email and social media accounts, perhaps with both used for each account (I have a working theory that for encrypted comms it may take more than one pen register to get the data).

Schulte was using all this hardware and software, according to the prosecutors, to — among other things — do two things: send details about the search warrants to investigate him, as well as yet more classified information, to third parties.

As a result of these searches and other investigative steps, the Government discovered that Schulte had, among other things, (i) transmitted classified information to third parties, including by using an encrypted email account, and (ii) transmitted the Protected Search Warrant Materials to third parties in direct contravention of the Court’s Protective Order and the Court’s statements at the May 21 conference.

The prosecutors included a superseding indictment with their letter, adding two extra counts to his already life sentence-threatening indictment: a new Count Eleven, which is contempt of court for blowing off the protective order covering his search warrant starting in April, and a new Count Four, which is another count of transmitting and attempting to transmit unlawfully possessed national defense information (793(e)) during the period he has been in MCC.

With regards to Count Eleven, on Monday a letter Schulte sent to Judge Crotty that was uploaded briefly to PACER (I believe this is the third time Schulte has succeeded in getting such letters briefly uploaded to the docket), revealing that he had been moved to solitary, but also complaining about corrections the government had made to his original search warrant:

I beg you Judge Crotty to read the first search warrant affidavit and the government’s Brady letter; the FBI outright lied in that affidavit and now acknowledge roughly half of these lies. Literally, they [sic] “error” on seeing dates of 3/7 where there were only 3/2 dates and developing their entire predicate based on fallacious reasoning and lies. They “error” in seeing three administrators where there were “at least 5” (ie. 10). They [sic] “error” in where the C.I. was stolen who had access, and how it could be taken — literally everything.

While I absolutely don’t rule out the government either focused on Schulte back in March 2017 for reasons not disclosed in the search warrant application, or that they parallel constructed the real reasons badly (both of which would be of significant interest, but both of which his very competent public defender can deal with), the docket suggests the Vault 7 case against him got fully substantiated after the porn case, perhaps because of the stuff he did last year on Tor that got him jailed in the first place. As I noted, that Tor activity closely followed one of Julian Assange’s more pubic extortion attempts using the Vault 8 material Schulte is accused of sharing, though Assange has made multiple private extortion attempts both before and since.

Which brings me to the second new charge, transmitting and attempting to transmit national defense information to a third party, with a time span of December 2017 to October 2018. Effectively, the government claims that even after Schulte was jailed last December, he continued to share classified information.

I’m particularly interested in the government’s use of “attempted” in that charge, not used elsewhere. The time period they lay out, after all, includes a period when Ecuador restricted Julian Assange’s communication. Effectively, the government revealed on Wednesday that they have video evidence of Schulte sharing classified information with … someone.

Meanwhile, in the Ecuadoran embassy in London, things have been heating up between Assange and his hosts.

About halfway through the period after which Schulte had been put into solitary so the government could investigate a bunch of communications devices they claim they didn’t know about before around October 1, Ecuador announced what seemed to be a relaxation of restrictions on Assange, but actually was more of an ultimatum. He could have visitors, but first they’d have to apply 3 days in advance and supply their social media handles and identifying details for any devices they wanted to bring with them. Assange, too, has to register all his devices, and only use Ecuador’s wifi. If anyone uses unapproved devices, they’ll be deemed a security threat to Ecuador under the protection of the UK, basically giving the UK reason to prosecute them to protect Ecuador. Assange has to have regular medical exams; if he has a medical emergency, he’ll be treated off site. Starting on December 1, he has to start paying for food and other supplies. He has to start cleaning up the joint. He has to start taking care of his cat.

Assange immediately sued over the new rules. But he lost that suit on Monday. But even as he appeals that verdict, according to Courage Foundation, Ecuador has restricted even legal visits, something that hadn’t been the case before. Those restrictions appear to have been put in place on Wednesday, the same day the new Schulte charges were rolled out. They’ll remain in place until Monday.

A piece by Ryan Goodman and Bob Bauer renewed discussion this morning about the First Amendment limits on suing or prosecuting WikiLeaks for conspiring with Russia to swing the 2016 election; I hope to respond to it later, but wrote about the same lawsuit in this post. I think their view dangerously risks political journalism.

But I also think that you don’t necessarily need to charge WikiLeaks in the conspiracy to sustain a conspiracy charge; you can make them unindicted co-conspirators, just like Trump would be. I have long noted that you could charge Assange, instead, for his serial attempts to extort the United States, an effort that has gone on for well over 18 months using the very same files that Schulte is alleged to have leaked to WikiLeaks (extortion attempts which may also involve Roger Stone). Assange has accomplished those extortion attempts, in part, with the assistance of his lawyers, who up until this week (as far as I understand from people close to Assange) were still permitted access to him.

Say. Have I observed yet that these events are taking place in the last days before Mueller’s election season restrictions end?

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.