The Boente Resignation and the Reported Charge[s]/Indictment[s]

Back in May, I argued (based on the since proven incorrect assumption that Deputy Attorney General Rod Rosenstein would be unlikely to hire a non-DOJ employee like Robert Mueller as Special Counsel), Dana Boente might be the best solution to investigate the Comey firing.

[T]here’s no reason to believe he isn’t pursuing the investigation (both investigations, into Wikileaks and Trump’s associates) with real vigor. He is a hard ass prosecutor and if that’s what you want that’s what you’d get. His grand jury pool is likely to be full of people with national security backgrounds or at least a predisposition to be hawks.

But — for better and worse — Boente actually has more power than a Special Counsel would have (and more power than Fitz had for the Plame investigation), because he is also in charge of NSD, doing things like approving FISA orders on suspected Russian agents. I think there are problems with that, particularly in the case of a possible Wikileaks prosecution. But if you want concentrated power, Boente is a better option than any AUSA. With the added benefit that he’s The Last USA, which commands some real respect.

Yesterday, at about 6:30, WaPo reported Boente’s resignation. An hour or so later, CNN first reported that Robert Mueller has approved charges against at least one person who might be arrested on Monday. Not long after that, former DOJ spox Matt Miller revealed that Boente told friends this week he was looking forward to returning full time to his US Attorney post after John Demers takes over as the confirmed Assistant Attorney General for National Security.

Miller assumes that means Boente was forced out, rather than chose to announce his departure — he’ll stay until someone is confirmed in his place — after some things he started (such as the investigation into Mike Flynn) are coming to closure.

I don’t believe, contrary to what Rachel Maddow has floated, that Boente is stepping down solely or primarily to be a witness. Mueller already has a list of people who witnessed Trump’s obstruction. He doesn’t need Boente and he’d be better off with Boente at the helm of related investigations than sitting before a grand jury.

So if Boente was forced out, it suggests the charges announced have led to a Trump decision to get rid of Boente, perhaps yet another person he believed would protect him or his close associates.

Or perhaps there’s this. I pointed out two weeks ago that an 2002 OLC memo (one interpreting language that Viet Dinh, who’s a tangential player in this whole affair, wrote) held that the President could order lawyers to share grand jury information with him.

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. It also found that the president could delegate such sharing without requiring a written order that would memorialize the delegation.

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.”

If you set aside Trump’s own role in obstructing the investigation—including the firing of former FBI Director James Comey—these rationales are defensible in certain cases. In fact, the Justice Department has already shared information (though not from a grand jury) with the White House for one of these very reasons. In January, acting Attorney General Sally Yates warned White House Counsel Don McGahn that Russians might be able to blackmail then-National Security Advisor Mike Flynn. As Yates explained in her congressional testimony in May, after Flynn’s interview with the FBI, “We felt that it was important to get this information to the White House as quickly as possible.” She shared it so the White House could consider firing Flynn: “I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action.”

A similar situation might occur now that the investigation has moved to a grand jury investigation, if someone remaining in the White House—the most likely candidate is the president’s son-in-law, Jared Kushner—were found to be compromised by Russian intelligence. In Kushner’s case, there are clear hints that he has been compromised, such as when he asked to set up a back channel with the Russians during the transition.

If Trump were to rely on the memo, he might order a Justice Department lawyer to tell him what evidence Mueller had against Kushner, or whether Mike Flynn or former campaign manager Paul Manafort were preparing to cooperate with Mueller’s prosecutors if they didn’t get an immediate pardon. Unlike Yates, Trump would have an incentive to use such information to undercut the investigation into Russia’s meddling.

I argued in that piece that those who currently have visibility onto the investigation — Rod Rosenstein and Boente — would be unlikely to share such information.

But that doesn’t prevent Trump (or Sessions, on his behalf) from asking.

So one possibility is that — as things move towards the next volatile state of affairs — Trump asked Boente to do something he refused.

Update: CNN had the Boente story mid-afternoon, and they say the resignation was long planned. Which may mean the indictment yesterday was something (or things) he had been working on at EDVA for some time.

Update: NBC has yet more conflicting details, reporting that Jeff Sessions’ Chief of Staff told Boente on Wednesday he should submit his resignation so Trump can start the replacement process.

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55 replies
  1. orionATL says:

    why wouldn’t boente insist on being fired if he was asked to do the unacceptable? doing so would certainly draw media attention.

  2. pdaly says:

    Neither the CNN report of Mueller’s sealed grand jury indictment(s) nor the news of Boente’s resignation are visible on the online pages of the Washington Post or the New York Times.
    Odd.

    • Brad Casali says:

      WSJ and Reuters have confirmed (for the sealed indictment).

      Though, I agree–this hasn’t been the only time CNN has been alone in declaring things.  I suspect, though, that WaPo and NYT will confirm, but maybe after it’s unsealed.

  3. orionATL says:

    we are now in the flowering stage of a special time in american history, a time in which a political party, the republican, led by a politically naieve authoritarian, president trump, has acquired control of all levers of political power at the highest, federal, level of government, including control of all legal and judicial levers of power as well as all congressional oversight.

    the critical factor is not merely having control of all three branches of government at once. the critical factor is being willing to use that power to acquire and then retain their political power over time contravening any mores, laws, or rules that might challenge that retention.

    this drive to attain and then retain power at the federal level was built on a far-sighted plan to attain overwhelming political power at the state level beginning in say 2005. it was made successful by 1) the easy availability of billions of dollars from individuals and orgainizations that stood to benefit from republican dominance, and 2) the ignorance about their political system and the ease with which they were emotionally manipulated of tens of millions of american voters.

  4. Bay State Librul says:

    The only newspaper that has confirmed the indictments is WSJ

    “At least one person was charged Friday in connection with Special Counsel Robert Mueller’s criminal investigation into alleged Russian meddling in the 2016 presidential election, according to people familiar with the matter.”

    It was a CNN scoop, NYT and MSNBC are working overtime to confirm the obvious

    Who leaked it. Not Mueller?

    • emptywheel says:

      There are people in positions to know WHETHER a grand jury charge has been filed, without knowing THAT it has.

      And there are Members of Congress who might get a heads up on such things who can leak legally.

      This may be a combination of these two factors.

      • Brad Casali says:

        Based on the sourcing, ‘people briefed on the matter’, leaves it to be a very narrow group of people.  I don’t think it’s Congress.  The obvious would be a DOJ member because who else would be ‘briefed’ on a sealed indictment?

        Ben Wittes wrote a (useful, IMO) piece about sourcing, and mentioned in a Twitter thread that he suspects, based on the sourcing, it *could* be someone very close to the DOJ.  Renato Mariotti (whom I also suggest following), a former Federal Prosecutor, seemed to suggest similar.

        Here’s the useful story about sourcing:

        https://www.lawfareblog.com/how-read-news-story-about-investigation-eight-tips-who-saying-what

        • bmaz says:

          Mariotti is a dope. And if you do not think this “could” be someone from a Congressional Committee with jurisdiction, you are rolling yourself. It absolutely could be, and a host of other locations in and around Washington.

      • Brad Casali says:

        Presumably, the defense attorney would have no idea at the point when the indictment was sealed.

        Defense attorneys aren’t allowed to take part in GJs.  If it’s steal sealed, the indicted party doesn’t know yet.

        • SpaceLifeForm says:

          The person to be indicted certainly has a very strong hunch based on the GJ questions, and certainly can consult with his/her lawyer.

          • Brad Casali says:

            True.  But does one who’s going to be indicted need to be called to testify?  It’s possible that this may have happened with witnesses and documents, and the person wasn’t called.

            • bmaz says:

              No. The target never “has” to be called to a GJ, and rarely is. When they do a target letter is appropriate.

        • bmaz says:

          Brad, so the defense attorney can’t possibly know?

          Really? That is funny, I wonder how I ever made arrangements with so many different prosecutors and courts to walk my client in to the I/A to self surrender on just such “sealed” indictments over all these decades?

  5. JerryN says:

    So here’s a maybe plausible narrative based on that supposition:

    Boente is asked to do something he considers untoward & refuses.
    He is either asked or chooses to resign.
    He lets it be known to the Mueller team that this has happened.
    Mueller’s team fears that this is preliminary to an effort to end their investigation.
    They reason that an indictment makes it harder to shut them down without legitimating an obstruction of justice charge.
    They pick the individual that they have the best case against and get a sealed indictment.

    Given the OLC memo, I’m assuming that the White House knows who is named in the indictment. It must be killing them not to leak it (yet).

  6. gedouttahear says:

    If the WH knows who has been indicted, then the person from whom they start distancing the prez and heavily trash tomorrow will be the one.

  7. earlofhuntingdon says:

    I suspect that in this instance, FDR was wrong. Fear itself is not the only thing the Trumpster has to fear. Nor is it the fear of displacement and neutering that Hillary evokes in Trump and his supporters.

    Donald’s biographers seem to agree that what Donald fears most are violent oedipal consequences – not from doing the wrong thing, but from getting caught and having to tell dad. That’s one of those pieces of personal baggage that must follow Donald to every golf course in the world, and into the White House.

    Now what naughty thing has Mueller caught Donald or one of his team doing that would frighten the most powerful man in America?

  8. earlofhuntingdon says:

    Nice work.  Entirely plausible.

    Trump seems addicted to humiliation, the more vicious the better.  Attempting to ruin careers, family finances, self-esteem by illegitimately firing someone would give Donald a considerable high.  He’s made a career of it.  (Donald has the authority to fire Boente, but without good cause it’s wrong.  If he is obstructing an investigation by doing so – again? – it would be illegal.)

    Trump’s vision of loyalty is entirely one-sided.  It moves only toward Trump.  It is never reciprocated, the idea is ludicrous.  Assuming that there is something or many things for Mueller to find, then a lack of abject loyalty – the kind that would make the malleable Jeff Sessions blanche – from Boente would evoke more than the usual ire in Trump.   What to do when the GOP majority makes Sessions’s spine look ramrod straight?

    • orionATL says:

      reciprocity is key in interpersonal relations. but people keep an internal score; beware when the score is one-sided.

  9. pdaly says:

    The New York Times finally has a piece tonight online (written by Matt Apuzzo) that quotes Trump lawyer Ty Cobb indicating Manafort is likely to receive an indictment.
    The article also mentions Flynn but not in same sentence as the word indictment.

    Looks like the article will run in Sunday’s paper but not on the front page:
    “A version of this article appears in print on October 29, 2017, on Page A19 of the New York edition with the headline: Trump Is Confident Ex-Aides Don’t Have Evidence to Offer Mueller, Lawyer Says.”

    • pdaly says:

      Actually, on second reading Cobb is not quoted directly that Manafort has been told to expect the indictment. Those words appear outside of quotes.

  10. gedouttahear says:

    I think Manafort is a wonderful choice: He’s probably got (at least) money-laundering jeopardy up the waz and foreign agent non-registering jeopardy and who knows what else; but the delightful part is he probably doesn’t have great fealty to trump and as I recall  — TA DA . .. — he was at the trump tower meet with the ruskies. I wonder if he was sitting between jared and don jr.

  11. orionATL says:

    the rule for proper behavior re grand juries apparently is that you don’t “share” grand jury info outside the legal igloo the grand jury and prosecutors work in, until the prosecutors make it public.

    but some info (that an indictment has been handed down) about the mueller counsel investigation has been shared with cnn and wsj.

    lately ew has been telling us that our prez gets a pass on grand jury secrecy rules. he can be informed of grand jury decisions according to an olc memo written by doj clerk (now appellate judge) john byeby.

    so it seems a reasonable conclusion that the white house could have told a cnn and a wsjournal reporter that mueller had obtained an indictment.

    to what purpose? well….

    actually the tip off to prez being told could have been a week or so ago. to estimate, just check out when prez started to rumble and roll about his election opponent (clinton) and the “loss of control” to russia of uranium ore which trump attributes to clinton.

    can you believe? – yellow cake stars again in another critical episode of republican presidential lying to the nation.

    • bmaz says:

      Well, understand that once the indictment is returned, that fact, even if “sealed” is no longer protected information under Rule 6(e). It may be a leak of sealed information, but that is different. And depending on who freed up the information, it may not even be improper.

      • orionATL says:

        thanks bmaz for that detailed info.

        it is always worrisome, intimidating actually, to speak out out of ignorance, but the alternative is to remain silent. in this situation, the various knowledgeable experts who comment here often prove invaluably informative.

        • bmaz says:

          Naw, never wrong. And, to be clear, in 98% of cases, you would never have this kind of knowledge come out. But this is under a microscope, and there are a LOT of people working the seams that know what they are doing.

          But, hopefully, this is why this is a good forum. There are people here that discuss and explain stuff. That has always been the hallmark of Emptywheel both in posts, and in the comment section.

  12. Desider says:

    I’m less curious *who* will be indicted, and much more anxious about *what* will follow. If you recall the Kosovo War, how we thought our air campaign had Serbia on its heels, and then suddenly Milosevic started pushing all the Albanians towards the border.
    Well, Trump’s not as clever as Milosevic, but I expect some huge and unhinged response, one that will test Mueller & others’ preparedness on him being fired, accused being pardoned, etc. With Nunes & Grassley and others still smoothing Trump’s way, even the crassly illegal defying all precedent might fly.
    When the going gets tough, the weird turn pro. Game on.
    [note I expect we’ll reach several more of these points before this whole nightmare is hopefully resolved – this isn’t a Louise Mensch chick-spy flick where marshalls go gather up the suspects and power is transferred to the nice guy somewhere 4th or 5th in line. Sadly.]
    [and like Orion I’m careful to not speculate on anything legal, as I know fuck all about it]

  13. rosalind says:

    having learned to never bet against EW, who posits: “The best chess move would be for Mueller to indict someone no one is thinking of, having Trump pardon Manafort, only to toss that to NYS.” I shall put my $$ down on: Mikey Flynn Jr.

    • Rugger9 says:

      That would not be a bad choice and he might be one of several.  However I don’t think the frantic wall of BS would occur for Flynn’s kid if he were alone, since I do not think he knows enough to threaten Trump.  General Flynn on the other hand does and he is also caught up in the same sort of shady dealings that affect Manafort.

      I would still place the bet on Paul, though since most of the recently released information is tied to him, not as much to Flynn who will get his eventually.  On the other hand, Flynn was in the actual administration while Manafort operated outside of the WH after being cashiered from the campaign, so there is good reason to think Gen Flynn is the first winner (plus, this would tie an obstruction charge directly to Trump if he fires Mueller).  One wonders how many notes Spicey brought with him to talk with Mueller.

      Bottom line, I think this is still all about insurance against Trump firing Mueller and these were the easiest ones to get in hand.  Even though ham sandwiches can be indicted in many jurisdictions for murder, it is still a formal step that would require explanation.

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