John Kelly’s Legally Fraught Role in the Sessions Ouster

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.

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64 replies
  1. Trip says:

    Yep. You are smart Marcy. Regardless of who was fighting the subpoena, this history confirms how Kelly is in it up to his neck. He is the designated Trump henchman:

    John Kelly has reportedly told Jeff Sessions he won’t be fired
    Aug. 3, 2017

    New White House chief of staff John Kelly, in one of his first acts in his new post, called Attorney General Jeff Sessions to reassure him that his position was safe despite the recent onslaught of criticism he has taken from President Donald Trump… Kelly, who was appointed to the post the day before, described the president as still miffed at Sessions but did not plan to fire him or hope he would resign.
    Trump has seethed at Sessions, his one-time close ally, since the attorney general recused himself from the probe into Russia’s meddling into the 2016 election. The president viewed that decision as disloyal — the most grievous sin in Trump’s orbit. ..”We will see what happens,” Trump said of Sessions’ future when asked at a news conference last week. “Time will well. Time will tell.”
    https://www.businessinsider.com/john-kelly-has-reportedly-told-jeff-sessions-he-wont-be-fired-2017-8

    Reply
        • Trip says:

          But also that Kelly is the conduit of firing operations. How much he contributes to the terms, we don’t know because he hasn’t spoken with Mueller.

          Reply
          • Trip says:

            He was actively covering for Rob Porter, even after being aware of abuse allegations. That wasn’t only a directive from Trump (if it was at all). That was Kelly, himself, stretching truth until it snapped. It was his own deceitful narrative about Maxine Waters, too. He lied about what she said and did and a tape proved it. That was all Kelly.

            Reply
              • Trip says:

                IIRC, and I may not, didn’t he say something horrible about her being in the car (being an instigator of complaints about Trump’s call) with the widow of the dead soldier, after Trump basically said ‘he knew what he was in for when he signed up’? Maybe I am getting that wrong, I haven’t gone back to search. Maybe it was only Trump.

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                  • Trip says:

                    Nope: correction, that was Frederica Wilson too (with widow). Then Kelly attacked her and made up the story. After, Maxine Waters told him to apologize. So many shitty episodes, they all seem to blur into one. *my stupid mistake, and faulty recall on that one.*

                    Reply
    • earlofhuntingdon says:

      Trump, like the Krell, creates and recreates the instrumentalities of his world moment by moment.  His intentions may be limited and durable, but his promises are as ephemeral as his hairline.  Trump is most effusive in his praise of someone when he is about to fire him.

      Reply
  2. Peterr says:

    And Kelly was the person who forced Jeff Sessions to resign on Wednesday.

    I think this is an assumption without evidence.

    Was Kelly the one who told Sessions he was out? Yes. Was Kelly the one who told Sessions he couldn’t stay until the end of the week? Yes. Was this Kelly’s independent decision? I highly doubt it.

    Much more plausible, in my opinion, is that Trump was adamant in internal WH discussions that Session be gone by close of business Wednesday. “I want to bury his departure in the post-election pundit chatter, and I’ll even hold a presser to increase the distraction. Hell, I’ve been itching to smack down that Acosta guy, and that would be a perfect way to flood the news with other stuff. John, I want Sessions gone tomorrow. I want his resignation letter on my desk by 9am and the keys to his office by 5pm. Make it happen.”

    Kelly may have been the enforcer, but to say he had significant input into (or was the driving force behind) the decision to oust Session is going farther than the evidence supports.

    I lean toward your theory that Kelly is the Mystery Appellant, but I don’t think that Kelly’s actions to carry out what I believe was clearly a Trump-driven decision to get rid of Sessions is hardly a conflict. If there’s a conflict here that puts someone in jeopardy, it’s Trump’s problem, not Kelly’s.

    Reply
    • Avattoir says:

      So you’re saying our host is very probably correct, but not yet shown to be five sigma stick that puppy it into Schrodinger’s Equation correct?

      And you were seriously concerned that our host’s readers are able to tell the difference for themselves?

      You, sir, could well be anti-Pelosi Dem House caucus material. Two subbasement floors under the Dome, bring your own stapler.

      Reply
      • orionATL says:

        i thought peterr’s question was a very reasonable, not least because i had the same thought :).

        maybe you could use your lawyer’s knowledge and decades of experience to tell us non-l’s whether a subordinate can be charged with obstruction and under what circumstances of following orders or being self-motivated by orders to some critical extent.

        it’s the “will no one rid me …” problem – who gets charged with murder?

        Reply
      • Peterr says:

        I’m saying that our host is likely correct when she said “Kelly had the key role of conveying the President’s intent” but not so much when she said “Kelly was the person who forced Jeff Sessions to resign on Wednesday.” Trump’s intent has been clear for months, and Kelly was the axe Trump used on Tuesday night/Wednesday morning to very quickly separate Sessions from the DOJ.

        Kelly can be both the Mystery Appellant and a loyal servant to the guy who’s been trying to get rid of Sessions for over a year. These are not mutually exclusive. Trump’s animus has been vivid and public for months. If you can point me to something that shows Kelly as the driving force behind Sessions’ ouster, rather than Trump, I’d love to see it.

        Reply
  3. Trip says:

    He’s an active participant in what some perceive as carrots and sticks, and/or doing the dirty work of removing Trump’s latest apprentice vote offs. But clearly, it’s a group effort

    Remember this?

    ‘Meet the Press’ Plays Tape of John Kelly Firing Omarosa Manigault Newman

    “I think it’s important to understand that if we make this a friendly departure, we can all be, you know, you can look at your time here at the White House as a year of service to the nation, and then you can go on without any difficulty in the future relative to your reputation,” Kelly tells her in the recording.https://variety.com/2018/politics/news/omarosa-trump-john-kelly-1202902713/

    Then:
    Omarosa tape: Lara Trump tried to buy my silence with campaign job

    In the clips, Lara Trump is heard offering to pay Omarosa $15,000 a month for a  “flexible” campaign job in exchange for remaining silent about what she saw during her year working at the White House.~USA Today Aug. 16, 2018

    No one likes Omarosa, but she brought receipts.

    Reply
    • Nancy says:

      Speaking of which, does anyone else wonder why the Omarosa radio silence of late?  Logic would indicate that if she taped once she taped more than once.  She did her book circuit, dropped a few tidbits, and then silence.  Who convinced her to zip up–her attorneys or SCO?

      Reply
    • oldoilfieldhand says:

      No one likes Omarosa

      Likely because she was not only perfectly cast but played her role to perfection. It may be time to stop watching TV people…says one of the lucky Americans to have never viewed even a single episode of Trump TV.

      Reply
      • Trip says:

        The items I linked to were on the net. Omarosa has also spoken with Mueller. Whether she played an important role in the investigation remains to be seen. But she did strike fear in the Trump administration.

        Reply
  4. Frank Probst says:

    I honestly don’t understand why Trump never does the firings himself.  This is a man whose signature phrase on reality TV was “You’re fired!”  The only thing I can come up with is that the go-betweens are making sure that they get resignation letters so that all of these departures can legally be considered to be resignations, which is much easier to do if Trump isn’t in the room running his mouth.  Still, the man loves humiliating people.  You’d think he’d do at least a handful of firings himself, just for the sheer glee of it.

    Reply
    • Trip says:

      He’s a coward and a bully. He’ll fire someone on twitter because it doesn’t require looking at or listening to the person he discharges. He played dumb in tapes with Omarosa after she was fired. He used to have Michael Cohen do all of his dirty work for him, remember?

      It must have taken some serious rehearsing and practice to slam Acosta to his face at the presser. But he did need a giant distraction.

      Reply
      • orionATL says:

        trip –

        in think you have nailed one of trump’s key psych characteristics; he is not the tough guy he presents himself to the public to be. he sure is mean as hell, vindictive to a fault, and in love with using his hoard of gold to sic lawyers on his “enemies”, even small businessmen and tenents, all at a distance, but i bet he’s a lot less tough face-to-face except with his familiars – wife and staff. in fact, i get this sense from little comments here and there about his behavior in those face-to-face situations.

        so i wonder if when it comes to being face-to-face with a smart lawyer knowledgable about the details of his actions, he crumples like a cheap chair (or resorts to his welk-know habit of lying).

        Reply
        • Trip says:

          I think women are a different story. Supposedly he abused his first wife; Ivanna (sp?) alleged a rape in divorce papers, then later recanted. He has also been accused of sexually assaulting a few women. He smacked Don Jr (to the ground) for not being dressed in a suit for a baseball game. He might be more hands on in the bullying when he has direct control, and where the people are more physically or mentally vulnerable to/than him. If he wasn’t such a douchenozzle, I could almost feel sorry for Junior, because I think it’s likely he has been mentally and physically abused as a method to attain loyalty.

          Reply
          • Trip says:

            Non sequitur, but kind of connected, Trump is the only president, in recent history, who doesn’t have a beloved pet. Food for thought.

            Reply
                • orionATL says:

                  let’s put it this way, it was an attempt at humor.

                  that’s the problem with this damned in-human internet conversation – no tone of voice to hear, no facial expressions to watch. we’re effectively deaf and blind because the pure written word is ambiguous, so easily misinterpretable. we try desperately to make up for this with smileys, emoticons, italics, bolding, capital letters, weird punctuation, but they’re piss poor substitutes.

                  Reply
                  • oldoilfieldhand says:

                    I got it! “Well played sir”*

                    Quoting Charles P Pierce and an avid comment reader here on Marcy’s web site. For practice at interpreting snark, I recommend Marcy’s Twitter feed.

                    Reply
                  • Trip says:

                    Meh, I knew the eating it part was a joke (on the food for thought portion). I just didn’t know if he had attempted to seem marginally human, or compassionate, by getting a pet. I thought I may have missed it.

                    Reply
                • Allison Holland says:

                  i think its a reference to sauroman who ate grima after turning him into a dog. saroman betrayed the west because he felt in this way he could keep his power by bowing down to and working with the enemy. they even had secret communications. hah! though trump is no wizard. he is a fool but a very cunning one.

                  Reply
            • Mary McCurnin says:

              He has never owned a pet. I read somewhere that his parents didn’t think that classy folk had pets and that The Donald believes this, too. I must be real trash since I have three dawgs.

              Reply
              • Trip says:

                His kids kill endangered species of animals. I don’t think they have much respect for life, only their own. That’s why I would be surprised if they ever loved and cared for anything/anyone outside of themselves. Although they are not beyond putting forth an act.

                Reply
    • pseudonymous in nc says:

      I dunno, I think it fits with the pathological narcissism. This has been a week of narcissistic injury and narcissistic rage.

      Reply
      • Trip says:

        If you are replying to me, yes, that’s true. But he distracted against his ego injury by making the conversation about the press, not his enormous election losses, nor his plot to kill off Sessions, because the losses represented a real threat legally. Don’t forget, the apprentice wasn’t real. He had to ‘perform’. Of course heavy doses of editing helped. But it was an act.

        Reply
        • pseudonymous in nc says:

          I was replying to Frank. And yes, “The Apprentice” was a performance. Even the Acosta nonsense this week was done at a remove from the actual injury; I showed that clip from the press conference to a mental health professional and it made her wince. “I’ll tell you what: CNN should be ashamed of itself having you working for them.  You are a rude, terrible person.  You shouldn’t be working for CNN.” It’s textbook.

          Reply
      • BobCon says:

        It’s also classic mob boss behavior. Never commit a crime yourself, never even give a direct order to commit a crime. Instead, wonder to your subordinate why Johnny’s sausage factory is doing such good business, and ask him to find out if Johnny has ever had any accidents there with the meat grinders, because wouldn’t that be a shame.

        Reply
        • BobCon says:

          To expand on this theme, it’s a common tactic in criminal organizations for a boss to maintain control over subordinates by coercing them to commit crimes.

          If you want to make sure Johnny the Sausage King doesn’t rat on you, pressure him to slip an old Thoroughbred into every batch of salami. Johnny will think twice before risking his business by talking to the police.

          I would not be surprised if one of the reasons Giuliani and company are so eager to wrap everyone into JDAs isn’t just to get information to help Trump’s defense. By knowing the cover stories of all of the witnesses, it gives them enormous insight into the witnesses’ potential risks of exposure, and pressure points to keep them in line.

          Reply
          • pseudonymous in nc says:

            I can go with the clean hands / plausible deniability argument, but he also lies all the time about everything. His lawyers know that he’s lying to them (I assume) and their job is to determine what he’s lying about and an approximation of the truth.

            More than that, when you have an organisation whose boss is a narcissistic liar, you’re going to have associates operating off those lies, and their underlings operating off what the associates translate out of those lies. If there is a conspiracy indictment that features Person-1 during the campaign, or an obstruction one for afterwards, I think we’ll get a sense of how that works at a second and third remove. We already have a sense of it around the Flynn resignation, the Comey firing and the cover-up for Uday’s meeting. We even have it from Papadopoulos who was clearly working an agenda that he felt was endorsed by his boss.

            Reply
            • BobCon says:

              The question of nailing down intentions in the legal arena is going to be a doozy. I think we got a good preview of one avenue of the GOP’s defense of Trump in the Senate Intelligence hearings with Comey.

              NPR ran a typically idiotic report which cited a GOP senator disputing Comey’s claim that when Trump asked him if there was a way to go easy on Flynn, he was pressuring him to go easy on Flynn. The Senator argued, and NPR all but endorsed, that Trump is a direct guy and wouldn’t pressure someone in such an indirect way.

              I wouldn’t be surprised if Mueller has already questioned Priebus, Manafort and others at length on the specifics of how Trump works his will, and how they nail down decisions in the face of the nebula flowing out of the President’s mouth.

              Reply
        • orionATL says:

          actually, i think trump said something like this once, maybe talking to one of his biographers or media storytellers, it may have been in connection with f. sater’s work in selling trump condo’s.
          something like: i am always keep a little distance between myself and those type of guys, the later being mafioso. that makes sense given his experience building towers that need concrete, for example.

          Reply
    • Peterr says:

      The glee is not in the firing, but in the public adulation for being The Boss Who Lowered The Boom. Firing someone in private does not carry nearly the same endorphin rush for him, and also carries considerable risk.

      I have a feeling that once upon a time, Trump fired someone to his face, and that someone then proceeded to tell Trump in explicit detail and supported by a wealth of facts just how stupid Trump was. “OK, my project failed and I’m fired. Congratulations. But that won’t solve your problems. We warned you months ago that it would fail if we did X and not Y, but you demanded that we do X. We warned you weeks ago that what we said would happen looks like it’s happening, and you demanded we keep to your plan. Well, we did, and low and behold, every damn thing we told you would happen to screw this project over actually happened. Every damn one of them. [insert details here]. You can fire me, and cling to your public facade that you’re a genius. But you and I both know the truth.  I didn’t screw up here — you did, and now you’re trying to cover your ass. You’ve got my NDA, so you feel confident that this story will never get out. But even with that NDA, you and I both know what happened here. And you and I both also know that I’m the only one who will leave this room and sleep well at night.”

      And that was the last person Trump ever fired face to face.

      Reply
      • earlofhuntingdon says:

        Oh, I think Trump has a personality that would luxuriate in publicly humiliating others.  He must feel orgasmic when he makes someone else lose, makes them feel the shame and the fear of being outed as a fake that must be his daily companions.  But the real power comes from being able to do it at a distance, even to pretend to be surprised or uninvolved.

        Reply
    • orionATL says:

      well, here are a few choice words from a guy who has been there – to the white house that is – about a trump characteristic that gave him the chills:

      see the huffington post

      “POLITICS 
      11/10/2018 03:35 am ET…

      Bob Woodward Reveals What Donald Trump Trait Gave Him ‘A Chill’ “

      Reply
  5. harpie says:

    Marcy:

    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).

    Those judges, today, via @dsamuelsohn:

    6:34 AM – 9 Nov 2018 DC Circuit just ordered Mueller/Miller attorneys to file briefs by 11/19 “addressing what, if any, effect the 11/7/18 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.”  https://politi.co/2ATjaBf  @politico

     

    Reply
    • earlofhuntingdon says:

      An odd demand from the DC Circuit. It is entitled to assume things are as they were until a party informs it of a change.

      Is it avoiding something, prejudging something, or fishing for whether Mueller has already been told to stop doing things or to do them differently, and to put the latter on the record.  Presumably, its judges are in the loop for whatever scuttlebutt is already circulating about Whitaker’s actions.

      Reply
      • orionATL says:

        very odd.

        i’m willing to go all the way and say some of those judges have already been told the plot. on the other hand, they can speculate about the obvious as readily as we can, and with a lot more insight, given their experience.

        Reply
        • orionATL says:

          come to think of it, they have every incentive to ask merely on speculation because they may get to drop a political hot potato and lighten their work load at the same time.

          Reply
        • orionATL says:

          thanks, ew.

          i think i’m going to have to start my own chronology –

          one that tracks by category the extraordinary number of posts you put out on this hydra-headed trump story.😯

          Reply
  6. Jenny says:

    Kelly drank the Orange Kool-aid long ago.  He enmeshed himself in the toxic White House when he chose to be part of the maniacal administration.  Kelly created his own reality.

    Reply
  7. Allison Holland says:

    Racists turning on each other.

    Its so sad. Perhaps all the children taken from their parents who must be very cold today as winter winds blow unceasingly through the flaps of their little tents out in the middle of nowhere,’s nowhere. Perhaps they have violins with which to play an exit tune for the  civil rights hater ex A. G.. Actually no, they have no books or instruments for joy or play.

    When a racist hates another racist they pull as many people as they can into their fight.  Our only comfort which is not very comfortable is that in destroying each other their not so secret identities and those pulled into the fray can be more truly revealed.

    I never say chief of staff Kelley.  I always say the racist Kelley.  I never say A.G. Sessions.  I always say civil rights hater Sessions or racist Sessions depending upon whose rights he is boot stomping uponthat day or afternoon, depending.

    I called my senators today to ask about viewpoints on Whitaker. They are going to get back to me. The hope I have is that the rot in the whitehouse and its staunch supporters like my two senators is that it is dry rot; which crumbles due to a sincere lack of structural integrity. Holes left in the middle and around the edges as pieces flick off and drop out of sight. I havent seen the traitor Manafort lately, poor man without his hair dye and gout i hear. He is rotting. Where there is no light there is just the crumbling like burnt toast. When i burn toast i use it as compost. I believe and I hope that the thoughtful Mueller will have a lovely garden this spring .

    Reply
  8. Eureka says:

    Back when the NYT Anonymous op-ed came out, my first instinct had been that Kelly (or an approved Kelly staffer) was the author. I could be totally wrong, but I am trying to wrap all this ^ around all that…

    Reply
  9. Mo says:

    The country is in a CONSTITUTIONAL CRISIS!

    People need to care about what is going on!

    U.S.A. is a great country, but the country WILL end up with a dictatorship if the people don’t do something!

    Reply
  10. oldoilfieldhand says:

    Where were you on Thursday @ 5:00 P.M.? I was in front of the local courthouse, with like minded patriot citizens of this potentially great country who are woke and worried about the gaslighting of Democracy. We were united, all vocally and visually expressing our right to disagree with the selection of Whittaker as the Acting Attorney General. My only regret is that I forgot the pot and wooden spoon that Digby recommended we all put in the trunk of our car for VOLUME!

    Reply
  11. Raven Eye says:

    BLUF: If Trump initiated acts that (for example) are later determined to have obstructed justice, can Kelly immunize his participation by claiming he was “just following orders”?

    Reply

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