One Thing Not Mentioned in Mueller Requests from the White House: The Putin Phone Call

Yesterday, three different outlets published versions of the list of stuff Robert Mueller has requested of the White House. The NYT describes Mueller asking for details of the in-person meeting with Russians after Comey’s firing, as well as details of Comey and Flynn’s firing,

Mueller’s office sent a document to the White House that detailed 13 different areas that investigators want more information about. Since then, administration lawyers have been scouring White House emails and asking officials whether they have other documents or notes that may pertain to Mr. Mueller’s requests.

One of the requests is about a meeting Mr. Trump had in May with Russian officials in the Oval Office the day after James B. Comey, the F.B. I director, was fired. That day, Mr. Trump met with the Russian foreign minister, Sergey V. Lavrov, and the Russian ambassador to the United States, Sergey I. Kislyak, along with other Russian officials. The New York Times reported that in the meeting Mr. Trump said that firing Mr. Comey relieved “great pressure” on him.

Mr. Mueller has also requested documents about the circumstances of the firing of Michael T. Flynn, who was Mr. Trump’s first national security adviser. Additionally, the special counsel has asked for documents about how the White House responded to questions from The Times about a June 2016 meeting at Trump Tower. That meeting was set up by Donald Trump Jr., the president’s eldest son, to get derogatory information from Russians about Hillary Clinton.

WaPo adds communications with Paul Manafort to the list and fleshes out the nature of the requests on Flynn and Comey.

Mueller has requested that the White House turn over all internal communications and documents related to the FBI interview of Flynn in January, days after he took office, as well as any document that discusses Flynn’s conversations with then­-Russian Ambassador Sergey Kislyak in December. Mueller has also asked for records about meetings then-Deputy Attorney General Sally Yates held with White House counsel Don McGahn in late January to alert him to Justice Department concerns about Flynn, as well as all documents related to Flynn’s subsequent ouster by the White House.

Regarding Comey, Mueller has asked for all documents related to meetings between Trump and Comey while Comey served at the FBI, records of any discussions regarding Comey’s firing and any documents related to a statement by then-press secretary Sean Spicer made on the night Comey was fired.

Here’s CNN’s mostly derivative version.

There’s one thing that’s not explicitly on this list (though it might be included in the larger request for details on Flynn’s firing): details surrounding the January 28th phone conversation between Trump and Putin, which included a bunch of people who happen to no longer be at the White House.

As a number of Democrats noted in the Sally Yates hearing before Senate Judiciary Committee, the call took place in the immediate wake of Yates’ two conversations with Don McGahn about Flynn’s potential for compromise by the Russians because of his lies about his conversation with Sergey Kislyak.

HIRONO: Others of my colleagues have mentioned, and you yourself, Mr. Clapper, said that RT is a Russian mouthpiece to spread propaganda. And, of course, we know that General Flynn attended a gala hosted by — or a 10th anniversary gala for RT in December, 2015, where he sat next President Putin and got paid over $33,000 for that.

Mr. Clapper, given the conversation that Ms. Yates provided to the White House regarding — and this is during the January 26th and 27th timeframe — regarding General Flynn, should he have sat in on the following discussions?

On January 28th, he participated in an hour-long call, along with President Trump, to President Putin. And on February 11th, he participated in a discussion with Prime Minister Abe and the president at Mar-a-Lago to discuss North Korea’s missile tests.

Should he — given the — the information that had already been provided by Ms. Yates, should he have participated in these two very specific instances?

In comments on Yates’ testimony when it got canceled on March 28, Adam Schiff focused on the possible explanation for why Flynn was kept on, through that meeting and for 18 days total after Yates’ warning to the White House.

In other words, the big question surrounding Flynn’s firing seems to have as much to do with why he wasn’t fired as why he was, eventually, 18 days after getting notice he was in trouble with DOJ. And the import of including him in that phone call with Putin seems to be a part of that.

Again, that may well be included in the universe of documents on Flynn’s firing (I’d love to see Yates’ firing in there as well, as the Muslim ban was used as an excuse to fire her just as she was raising concerns about Flynn). But it seems important to learn why Trump felt the need to keep Flynn on even after his communications with the Russians had gotten him in legal trouble.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

18 replies
  1. Rugger9 says:

    Well, there are a couple of Raw Story articles today, one on topic and the other OT but linked in a roundabout way.

    The first story is about how Spicey kept copious notes of his meetings in the WH, so I would think it is only a matter of time before Mueller asks for them.
    http://www.rawstory.com/2017/09/spicer-may-seek-revenge-on-trump-by-turning-over-detailed-notes-to-mueller-report/

    The other is about how Kaiser Donald’s bodyguard is well connected to Felix Sater, including getting Felix out of jail as an informant.
    http://www.rawstory.com/2017/09/trusted-trump-bodyguard-gary-uher-is-linked-to-ex-con-felix-sater-who-is-key-in-russia-probes/

    One last bonus OT story is about the Daily Beast scoop regarding the Trump flash mobs in FL (and PA, as it turns out) being organized by Russian handlers. IMHO, if this checks out it is a smoking gun with respect to conspiring with a foreign power in an election, which is a crime. It will be interesting to find out if Jared’s data was used to target the “right” audience. I also would expect to see the same ho-hum crickets response from the GOP because they believe that the Russians will always back their party. They will learn, however, that Putin backs Putin and it will only be a matter of time before the GOP gets dumped like a gigolo’s leftovers.
    http://www.thedailybeast.com/russians-appear-to-use-facebook-to-push-pro-trump-flash-mobs-in-florida

  2. scribe says:

    Fair to assume that Mueller did not ask for the records on the Putin call b/c that call would implicate the President’s exclusive authority to conduct foreign affairs of the United States.   As such, he could say pretty much anything he wanted to and not be called to account – in criminal court, though the courts of public opinion and of politics are a different matter.

    Moreover, the conduct of the foreign relations of the United States – whether good, bad, indifferent, honest or thoroughly corrupt – and the content and/or participants of phone calls (or diplomatic cables,  special emissaries, etc.) would seem to me to be prime territory for an appropriate invocation of the state secrets doctrine.  Much more so and far closer to the core purpose of the doctrine than a B-29 crashing on a test flight and the government wanting to cover up dimwittery, etc. (That B-29 fact pattern is from Reynolds v. United States, the source and still leading case on the state secrets doctrine.)  Indeed, one of the things that got Chelsea Manning 7 years in the jug was putting diplomatic cables into the public domain.

    Just sayin’.

    • Peterr says:

      Agree on both counts.

      I’d love to see Yates’ firing in there as well

      Yes, but I think Mueller may be holding back on asking for this right now — as well as perhaps docs/notes related to the Putin call — until he’s gotten this current batch of stuff.

      First, it allows him to put the WH in the position of having granted information in the initial case before digging in their heels on Yates/Putin requests. That is, they will have already demonstrated that some docs are appropriate to hand over and would have to distinguish the docs in a subsequent denial from the docs that received an earlier approval.

      Second, the data received in this request may contain material that would bolster a later request for the Yates or Putin information, making it that much harder to deny producing it. Take it one step at a time, rather than jump for the whole thing. This also gets at your second point. If you’re going to ask for something as delicate (diplomatically as well as judicially delicate) as the Putin stuff, you better have a lot of other stuff to support your request to make it clear to the judge who would inevitably have to rule on the request that this isn’t a fishing expedition but the logical extension of an ongoing criminal investigation.

      Third, and at least as important as the first two: not asking for the Yates firing docs and notes and the Putin docs and notes at this stage of the investigation leaves Trump and his minions sitting on pins and needles. When, if ever, will Mueller and his team ask for these other things? Trump is inclined to say and do stupid things when he feels boxed in, or when waiting for the next shoe to drop, and waiting to make this request strikes me as a classic “box them in” kind of move.

      See “Damocles, Sword of” and “Henry IV, Shakespeare, ‘uneasy lies the head . . .'”

       

      • Avattoir says:

        I confess to not understanding your point 2 (maybe all on me), but as between the 1st & 3rd:

        We’re already witnessed very public feints at & also actual albeit unsupported (to me, so far at least, unsupportable), not to mention facially technically defective, invocations of executive privilege (or else some blahblah ‘he’s my preznit/boss’ “privilege”).

        SO – if I’m looking to indict – meaning, I’m planning out the trial’s unfolding – quite apart from obtaining info / evidence, I want to wash out detritus, including potential delays from an enervating cycle of bogus claims & repeated efforts to appeal adverse rulings up to SCOTUS.

        IMO against that, your 3rd rationale seems to me unnecessary. But, I hasten to add (b/c this seems equally if not more relevant), it’s also inconsistent with Mueller’s rep for a straight-at-you style that, AOT, gets to indictments earlier rather than later.

        This last bit may be unnecessary: I observed the ‘flush’em’ out tactic used a few times when I worked in prosecution offices (Don’t recall using it myself but memory tends to be forgiving.), plus I’ve had it tried several times against ‘me’ (to wit: my clients thru their attorney), also several times, and, again FWIW (b/c the sample’s small & may inflate coincidence, tho I suspect otherwise) always involving federal charges.

    • bmaz says:

      Yeah, I dunno about state secrets coverage here, not sure can ascertain that without better facts. But, indeed, it is a better claim than in Reynolds, which gestated the pernicious claim. Turns out, almost any invocation by the Government is superior to that in Reynolds. Which is seriously maddening. And that is not to say the others are meritorious, just that the foundation of “state secrets” to start with is a pathetic joke.

  3. Rugger9 says:

    Semi-related: Booman Tribune (http://www.boomantribune.com/) has an interesting backgrounder on Manafort and Flynn being Russian assets (and why), and it covered one of the things that had been nagging me in the back of my brain: why did Manafort work for free for Trump, when every other job we have seen reported about has been of the “will do what you want for lotsa money” variety.  So, since ideology or noble altruism aren’t Manafort’s thing, it seems someone had to pay for him.  As for rising to the top in Trumpworld, it does also appear that Manafort is good at what he does so that may not be as problematic as for example, why Jared did (or Lewandowski).

    As other possibilities get debunked, we are seeing what could very well be a serious threat to Kaiser Donald’s administration.  Flynn because of his flag rank can be prosecuted under the UCMJ, and if I were charitable to the Army (it goes against the grain) their JAGs are probably waiting to see what Mueller does first.  However, the evidence needed is already there to send him to Leavenworth to make little rocks out of big ones.

    Will the Congressional GOP do anything?  Not until Kaiser D signs Cassidy-Graham.  K-D is needed to keep the fire off of Pence until after the GOP agenda is passed through.

  4. scribe says:

    Frankly I think anything that was said in the Putin call, and the discussions surrounding it, is pretty much out of bounds because it goes to the core of the President’s conduct of foreign policy.   If a President cannot talk confidentially with foreign leaders, and discuss those talks confidentially with his advisers before, during and/or after they take place, and prepare for them and analyze them afterward, foreign leaders won’t talk confidentially with the President.  And the President is the sole judge of what is, and is not, relevant to his conduct of foreign policy. You’ve got 3 major roadblocks to getting that information:  the President’s core Constitutional duty for the conduct of foreign policy (his and his alone), executive privilege (discussions with his advisers), state secrets (all of it).  I think each of them would be individually sufficient and, IMHO, Mueller thinks the same way.

    Remember the hue and cry when Obama was caught commiserating with Sarkozy that Netanyahu “lies to me every day”, so Sarko shouldn’t have felt singled out for receiving BiBi’s lies?  It created a real tiff between the US and Israel (and its backers in the US)(, and would have been worse but for the fact the Israelis knew just how accurate Obama’s complaint was, and therefore couldn’t do much more than bitch and moan for an appropriate period).  In the scheme of things, that was minor.

    Digging out what Putin and Trump talked about – the topics – let alone what exactly was said might be fun, but it would do long-term damage to the US’s ability to do diplomacy and foreign policy discussions with foreign leaders.  Not just in this current administration but for generations to come.   The foreigners would say (rightly, because ours is a precedent-based system and this would set a major precedent):  “I’ll have this confidential discussion with you and 6 months or a year later it will be on the front page of the New York Times?  And maybe “in evidence” in a criminal trial?  #1 I might be embarrassed or worse by my candor getting out.  #2 You can’t keep confidences and therefore can’t be trusted to fulfill your promises.  Pass.” And future Presidents, knowing #1 and #2 above, would have to factor into their discussions that the foreign head of state might be even less candid than they are now, because of their fear of the confidential discussions getting out.

    I see the analogue of this all the time at work.  I do English and foreign-language discovery projects for litigation.  Reading hundreds of emails and internal documents a day from corporate email servers.  There is rarely any “good” material in the English-language side because they all know “if you write it down, one day the lawyers will get a hold of it”.   OTOH, once you get into the foreign-language stuff, all the “good” material comes tumbling out.  My parents would have said “like Fibber McGee’s closet”.  That’s because the foreign-language people grew up in an environment where (unlike in the US) lawyers can’t do discovery on their stuff and the lawyers won’t get a hold of it.   Or, as a colleague once put it “the stuff they don’t want the [relevant, intrusive, nosy regulators*] to see, they never put in English”.  Because the foreigners figure the stupid, lazy Americans won’t make the effort, they put all sorts of stuff in their emails we never would.

    And, frankly, if Mueller were to go for the Putin conversation and the surrounding information it would give Trump all the pretext he needed to fire his ass.  And I think Permanent Washington would back him on it because they recognize this is the kind of thing which would screw US diplomacy for generations.

    So, don’t let yourselves be blinded by your lust of Trump’s scalp.  Or rug.

    *  Agency name omitted.

  5. Bay State Librul says:

    Scribe,

    I disagree. What you have here is potentially treason.

    All this legal fucking mumbo-jumble does not apply to Don the Con.

    He is fucking evil and demented.

    Don’t you get it?

     

     

  6. scribe says:

    “Treason” is specifically defined in both the Constitution as follows:

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The definition in the criminal code tracks that Constitutional language exactly.

    Don’t go throwing words around when you can’t back them up.

    In the first instance, the United States IS NOT at war with Russia. As a definitional matter, therefore, Russia CANNOT be an “enemy” to “adhere to”. Nor has there been any rational suggestion that Trump or his advisers “lev[ied] war against the United States”.

    Was The Donaldt out of line in his dealings with Russia, if and to the extent they exist[ed]? Maybe.
    What are the limits of what one can do in the conduct of a Presidential campaign? IF you win, just about anything you did is OK. IF you lose, you lose.
    Can you solicit the help of a foreign government (or some of it’s agents, full- or part-time) to help you win the election? Sure, if you’re willing to pay the price when it comes out. But that price is almost invariably one paid in the political, not criminal, realm.

    I’m being quite realistic about this.

    You’re going to hate me for this, but I’m used to it already: Donald Trump is the greatest gift Democracy has received in at least 75 years. NOT the Democratic Party, but Democracy as a practice and system. And Hillary Clinton would have been the worst poison Democracy could ever have taken. Go read: https://thebaffler.com/blessed-and-brightest/what-happened She’d be wonking you and me to death.

    Gawd. Be grateful. If only because had HRC been elected, we’d be “enjoying” the second coming of Helen Reddy.

  7. bmaz says:

    This is exactly right. I have said this forever on the internet, and predominantly here: If you are blathering about “treason”, you are almost undoubtedly an idiot.

    Scribe is exactly right. And it is NOT just the language, it is the historical law too. You have to be “at war”. AUMF’s and whatnot have clouded that line, but Russia is nowhere on the “treason” side of it. If you think so, you are a dope.

    There are LOTS of problems with the Trumpalo actions. Don’t make inquirers look stupid by falsely making it about “treason”.

  8. Bay State Librul says:

    You can call me an idiot but one can make the case as one writer said that “collusion with Russia in a cyber war designed to intervene in the election for President of America so Russia could put someone in office that would be favorable to their nation over the interest of our nation is treason”

    Try thinking out of the legal box

  9. Bay State Librul says:

    Scribe

    If you think that Don the Con is a gift then you have been coned. The President is mental and is not a well man. You are living in na na land. We need more folks like Maxine Waters

  10. Bay State Librul says:

    Final thoughts,

    My company made all employees take a mandatory ethics class. I grumbled and grumbled some more, then took the 50 minute film. It was a great refresher.

    Many working class stiffs get the point

    One said, “In today’s world, how do we define the difference between loyalty to country, treason and a legitimate business venture? The lines have become so blurred. Somehow, we, that is all of us, must delineate where business ends and treason starts.”

    For me, treason has started. The Con’s act of the deal is cruel, unethical, and dishonest. We are in the midst of a constitutional crises. God save the Commonwealth and Mueller.

    • Rugger9 says:

      Constitutionally, bmaz is quite correct, and he also correctly notes that the activities reported violated more than a few laws (and the UCMJ for Flynn) so while we may not get legal treason it will be a distinction without a real difference if/when Mueller drops the hammer.

      Talking Points Memo had an interesting post about the possibility that Manafort is now the designated fall guy.  If so, then Paul’s trip to Asia might be into exile and out of reach of Mueller.  Why Mueller, et al. haven’t taken away Manafort’s passport equally baffles me, especially after the type of raid appeared to assume destruction-of-evidence-type criminality was afoot.

      http://talkingpointsmemo.com/edblog/are-trumpers-trying-to-make-manafort-their-latest-fall-guy

      • bmaz says:

        You have to have charges pending and seizure of passport by the court pursuant thereto at a detention hearing. They are not there yet.

        But, too, do not sleep on Flynn. I think in many ways he is as at risk as is Manafort. Both have staff in the lurch you don’t hear about, but are there, and in Flynn’s case, a namesake son too.

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