The Kremlinology (Ha!) of the Sessions’ Huddle

A lot of people were startled by the report of Rod Rosenstein commenting on Friday that Matt Whitaker is a “superb” choice to be Acting Attorney General.

Deputy Attorney General Rod Rosenstein on Friday hailed acting Attorney General Matthew Whitaker as a “superb” choice to fill the role even as Whitaker’s past statements have prompted questions about his impartiality toward special counsel Robert Mueller’s investigation.

“I think he’s a superb choice for attorney general,” Rosenstein told a small group of reporters gathered outside of an investiture ceremony for US Attorney Zachary Terwilliger in Alexandria, Virginia. “He certainly understands the work, understands the priorities of the department.”

When asked about the Mueller probe at the same event, Rosenstein walked away.

Aside from reports that Rosenstein and Whitaker hate each other (indeed, the effort to fire Rosenstein in September was significantly hatched by Whitaker), there’s reason to believe Rosenstein was just flattering his new boss. The speech at which he made these comments included a comment not just mentioning Marbury versus Madison — the cornerstone of judicial review in this country, which Whitaker has said was wrongly decided — but mentioning it in the context of having the proper paperwork to serve as an official of DOJ.

The internet web site for the Eastern District of Virginia proudly states, and I quote, “John Marshall … was appointed by President Washington to serve as the first United States Attorney for the District of Virginia.”

Virginia’s claim to Chief Justice Marshall as the first U.S. Attorney is quite a distinction. But it is not entirely accurate. Now, it is literally true that John Marshall was appointed U.S. Attorney by President Washington. But he never actually served as U.S. Attorney.

In fact, Marshall responded to the President with a letter of his own. Marshall wrote, “[T]hank you … very sincerely for the honor … [but] I beg leave to declare that … with real regret[,] I decline ….”

Washington replied with yet another letter. He wrote, “As some other person must be appointed to fill the Office of Attorney for the district of Virginia, it is proper your Commission should be returned to me.” He wanted the document back!

Perhaps that explains why, when the case of Marbury versus Madison came along in 1803, Chief Justice Marshall focused so intently on the importance of the signed commission.

Apparently the audience, for the investiture of the new US Attorney in EDVA, laughed at Rosenstein’s comment, perhaps recognizing the reference to be a dig at Whitaker, perhaps recognizing something more.

Still, two days after Whitaker’s appointment, Rosenstein offered effusive and public flattery at a time of great uncertainty over events of the last week.

Rod Rosenstein has not survived as a senior DOJ official for thirteen years, through three presidential administrations and serving both parties, without knowing how to flatter his bosses. And I suspect, in this case, those skills may serve the country well.

Consider some details in this important CNN report, describing how and with whom, after John Kelly asked Jeff Sessions for his resignation on Wednesday morning, the Attorney General of the United States huddled, talking strategy.

Sessions met with the Deputy Attorney General, the Solicitor General, the head of Office of Legal Counsel, and the Principal Deputy Assistant Attorney General.

John Kelly, the White House chief of staff, asked Sessions to submit his resignation, according to multiple sources briefed on the call. Sessions agreed to comply, but he wanted a few more days before the resignation would become effective. Kelly said he’d consult the President.

Soon, the sources say, top Justice officials convened on the 5th floor suite of offices for the attorney general.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

With the exception of O’Callaghan, all of those men outranked Whitaker so long as Sessions officially remained Attorney General. We don’t actually know when his tenure ended. Sessions’ resignation letter is not dated, much less time-stamped; while Sessions may not know how to date important letters like this, Rosenstein and O’Callaghan surely do, but somehow it did not get dated.

Judges and Justices, Rosenstein would point out two days later, “focus[ ] intently on the importance of the signed commission.”

We do know that when Trump tweeted about Whitaker’s appointment at 2:44 PM, he used the future tense — “will become,” not “is” — to describe Whitaker’s tenure as Attorney General.

We also know that Sessions implemented a significant policy change on consent decrees close to the end of that day, a policy change the Trump Administration has built on in ensuing days. So at the time Sessions implemented that policy change (which the metadata suggests was close to the end of the day), he must have still retained the authority of Attorney General.

So for the sake of this Kremlinology, I will assume that Sessions remained Attorney General for the remainder of the day on Wednesday. That means that, for at least a half day after this went down, any orders he gave were binding and all those men huddling with him on Wednesday morning retained the relative seniority to Whitaker that they started the day with.

As CNN says in its report, the people huddling with Sessions included key players overseeing Mueller’s probe. Rosenstein and O’Callaghan provide the day-to-day oversight of the probe.

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

That day-to-day oversight is critical both to any claim that Mueller operates with constitutional authority and to any effort by Trump and Whitaker to undermine Mueller’s authority.

But CNN doesn’t talk about the important role played in the probe by the other two Senate-confirmed figures in the room, Solicitor General Noel Francisco and OLC head Steven Engel.

As Michael Dreeben, who formally reports to Francisco, noted Thursday (that is, the day after this huddle) during his DC Circuit argument defending the constitutionality of Mueller’s authority, Francisco must approve any appeal Mueller’s team makes (presumably, he must approve any appellate activity at all). The arguments Dreeben made publicly Thursday — as well as whatever arguments Mueller submitted in a brief in sealed form in the Mystery Appeal that same day — were arguments made with the approval of and under the authority of the Solicitor General, the third ranking official at DOJ.

Then there’s Engel. He’s the guy who decides, in response to questions posed by Executive Branch officials, how to interpret the law for the entire Executive Branch. It’s his office, for example, who would decide whether it would be legal for Mueller to indict the President. His office also interprets the laws surrounding things like the Vacancies Reform Act, whether any given presidential appointment is legal.

Which is why this passage of the CNN report is so significant.

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

In a room of men huddling with Jeff Sessions at a time he undeniably retained authority as Attorney General, at least one person — it might though is unlikely to be Sessions, it might be the Solicitor General who would argue the case legally, it might be the Deputy Attorney General or his deputy overseeing the Russian probe, it might be the guy who ultimately decides such things, or it might be several of them — at least one of those senior DOJ officials raised questions about whether Whitaker’s appointment would be constitutional. All of those men are sufficiently senior to ask Engel to write up a memo considering the question, and so long as Sessions retained the authority of Attorney General, he could decide whether to accept Engel’s advice or not. Sure, the President could override that (Obama overrode OLC, to his great disgrace, in Libya). But Trump would be on far shakier legal ground to do so without OLC’s blessing, and anyone operating in defiance of the OLC opinion could face legal problems in the future.

And an OLC opinion is precisely the kind of thing that Mueller’s team might submit to the DC Circuit — under the authority of the Senate approved and third-ranking Noel Francisco — in a sealed appendix to a challenge to Mueller’s authority.

I asked around this morning, of both those who think Whitaker’s appointment is not legal and those (like Steve Vladeck) who think it is. And it seems crystal clear: if Whitaker’s appointment is illegal, then that is a disability (just like recusal would be), and the regular DOJ succession would apply. In that case, the Deputy Attorney General would be acting Attorney General, for all matters, not just the supervision of the Special Counsel.

I don’t pretend to know what happened in that huddle or in the half day afterwards when Jeff Sessions uncontestedly retained his authority as Attorney General. I do know the rising House Judiciary Committee Chair has demanded that the paperwork behind it be preserved.

But I’m not really bugged that Rod Rosenstein is doing what he needs to do to remain the person who, if Whitaker’s appointment were illegal, would serve as the Acting Attorney General.

Update: Two more details I should have added in this post.

First, this meeting feels a lot like the ones in response to the 2004 Hospital Hero crisis, which was not just a fight about surveillance, but also about President’s abusing DOJ succession. That suggests the two different huddles at DOJ represent two different camps of loyalty. If that’s right, we might assume those officials in with Sessions might resign (or threaten to) if asked to do something they believed to be illegal. That would mean people with the analogous job titles as threatened to quit in the 2004 crisis — DAG, PDAAG, and SG — might threaten to quit here. Chris Wray would be the analogue to Robert Mueller in this situation; while he’s not reported to be involved on Wednesday, he was reportedly among those ready to quit in 2004.

Additionally, there have been worries about what would happen if Noel Francisco assumed oversight of the Mueller probe (which is what would have happened if Trump fired Rosenstein rather than replaced Sessions). That he was in the group trying to preserve the Mueller probe suggests he may be more supportive of it than people have assumed; remember, on top of approving Mueller’s appeals, he has been brought in at other key points.

So this Kremlinology also suggests there may be more resilience among top officials than assumed, as well.

Update: Fixed that “supervision of the Attorney General” phrase as noted by several in comments. Thanks!

68 replies
  1. Trip says:

    Such complicated political/legal maneuvering. Thank you @Marcy (and also @Avattoir) for explaining it. It’s so incredibly deep.

  2. Alan says:

    > In that case, the Deputy Attorney General would be acting Attorney General, for all matters, not just the supervision of the Attorney General.

    supervision of the Special Counsel?

    > I don’t pretend to know what happened in that huddle or in the half day afterwards when Jeff Sessions’ uncontestedly retained his as Attorney General.


  3. Jenny says:

    Thanks Marcy for uncovering more layers upon layers upon layers. All of this continues to smell rotten. More exposure of the corruption and obstruction by this maniacal administration. Ugh.

  4. cue says:

    > I don’t pretend to know what happened in that huddle or in the half day afterwards when Jeff Sessions’ uncontestedly retained his as Attorney General.

  5. BobCon says:

    I’m reminded of Armando Ianucci’s great movie, The Death of Stalin, and the scenes of nervous inner circle weasels having hushed meetings in back rooms and in parked cars as they try to survive the turmoil of the brutal totalitarian narcissist’s reign.

    It has a great cast, including Steve Buscemi, Michael Palin, and Simon Russell Beale, and Iannucci’s writing is incredibly sharp.

    • Avattoir says:

      I think it’s been well over a year since I made it clear that Iannucci would do the screen play for the cable series to Marcy’s book on this.

      Buscemi cinches the obvious part here (For those who haven’t seen it, Buscemi’s Krushchev comes closest to … the good guy? It’s relative.). Casting Whitaker’s a cinch: an empty football helmet would do, once  seasoned in toxic sludge.

      • BobCon says:

        “I think it’s been well over a year since I made it clear that Iannucci would do the screen play for the cable series to Marcy’s book on this.”

        It’s hard to imagine any writer having a better facility with English language swearing than Iannucci, that’s for sure.

  6. Trip says:

    @Marcy, what is your take on Sessions? A secret cooperating witness with immunity? He lied about his contacts with Russians during the campaign. If he had only truly been discussing some Christian children’s tour group in Moscow, there wouldn’t have been any need for the lie. Then he recused (which he should have). Clearly, he’s a racist just like Trump, and he was ambitious, putting his support behind Trump early to get the AG position. On the other hand, he seemed to be working in concert with others to support the investigation and keep it going.

  7. General Sternwood says:

    So Rosenstein is the AG in Avignon, while Whitaker is the AG in Rome? Or is it the other way around?

    • readerOfTeaLeaves says:

      Probably a solid analogy.  Currently, Rosenberg* in Avignon, fending off captivity by acting the suppliant.  Whitaker taking claim to Rome, for all the good it will do him.  Schism unfolding.

      * ‘-berg’, originating by way of about 4 language variants from ‘tower’

  8. earlofhuntingdon says:

    The CNN article describes Sessions as realizing only late in the game that Whitaker was “self-dealing.”  That seems unlikely for a guy who had been AG for over a year, and before that had been a USA for a dozen years and a Senator for eighteen.  You don’t do that by being politically or bureaucratically naive.  By the time of Whitaker’s appointment, Trump had been publicly humiliating Sessions for months over his recusal.

    That Whitaker was self-dealing, a mole for the White House, and more than that should have been obvious to Sessions from the way in which he became his COS.

    Whitaker’s background and personality describe him as one of the GOP’s army of ambitious but disposable thugs.  His desultory tenure as USA in Iowa was not much training for being COS to the AG – although it made him more qualified than some of the BushCheney era COS to the AG.  His later career should have disqualified him from either obtaining any security clearance or employment at the DoJ.

    • emptywheel says:

      Sessions a loyal tribalist, a tribalism that was likely solidified by all the years in the Senate. I think it has never crossed his mind that someone in his tribe — to say nothing of a man he went way out on a limb — would betray that support.

      • earlofhuntingdon says:

        Despite Trump fouling the usual tribal and political norms, a man-child for whom promises are air and loyalty a one-way street?

      • A Person says:

        I think more likely that Sessions saw how and why Whitaker was brought in, and, shrewd in ever attempting to balance loyalties, limited independence and tolerance for beatings to survive, tolerated (knowing) and watched to see how the wind would blow.

    • earlofhuntingdon says:

      CNN also has these quotes from the FedSoc’s Len Leo:

      Leonard Leo, the influential executive vice president of the Federalist Society, recommended to then-White House counsel Don McGahn that Whitaker would make a good chief of staff for Sessions.

      “I recommended him and was very supportive of him for chief of staff for very specific reasons,” Leo said Friday.

      “Jeff Sessions needed a reliable conservative, a strong manager, and someone who had credibility who had previously served the department,” he added. “Whitaker was a very good former US attorney and is a very good manager. He’s a no-nonsense, get-it-done kind of guy.”

      Leo is playing games again.  Whitaker’s association with the DoJ was as a mediocre, one-term USA in Iowa, not an office known for generating a large number of complex cases or for being difficult to manage.  Whitaker has no other management experience.  But he is a bull in a china shop – presumably, the characteristic Leo and Trump really want.

      Whitaker is reliably conservative.  In fact, he’s off the wall.  He believes that federal judges should pass a religious test – despite those being explicitly forbidden.  In a veiled anti-semitic remark, Whitaker thinks the reference book for that test should be the Christian New Testament, not the Levitical or Jewish bible.

      Astoundingly, Whitaker disagrees with the foundational case of Marbury v. Madison.  In one of the Supreme Court’s earliest cases, Chief Justice John Marshall held that the federal courts are the final arbiters for determining the meaning of the Constitution and of federal law – not Congress and not the President.  Even Brett Kavanaugh thinks that is still good law.

      • harpie says:

        JJ Macnab tweets:

        6:37 PM – 9 Nov 2018 The new acting AG is a Tenther? [Bangs head on keyboard.]

        >>> Links to this CNN article: 

        Whitaker said he supports state’s rights to nullify federal law  Andrew Kaczynski, CNN Updated 12:05 PM ET, Sat November 10, 2018 

        [2013 Iowa Senate campaign speech]:

        “Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?”

        • earlofhuntingdon says:

          Except as a persuasive thug, Whitaker does not appear to have the academic or legal experience one would expect of a lawyer on the White House Counsel’s.  His whole association with this administration would see to merit investigation.

        • BobCon says:

          I think Whitaker’s deeply compromised legal status is one more sign that Leo and Trump’s other top personnel advisors see that kind of exposure as a feature, not a bug.

          They want guys like Kavanaugh, Pruitt, Zinke, Ross, Kushner and Price holding offices, and I don’t think it’s only as a sign of extreme moral flexibility. It’s an opportunity for control.

      • D4V1D says:


        Whitaker thinks the reference book for that test should be the Christian New Testament, not the Levitical or Jewish bible.

        When Evangelicals want to use the Bible to make a socially conservative point, it’s Leviticus they refer too.

        • earlofhuntingdon says:

          They alternate, depending on whether they want to portray themselves and their targets as objects of an avenging or healing God, Old Testament wrath or supposed New Testament salvation.  They are political more than religious tools that even the devil can cite when useful.

    • Esme says:

      much like the girlfriend of a cheating husband, you never think it’ll happen to you… or maybe Sessions was just battle fatigued ?

  9. Jonathan says:

    Dropped a word: ” in the half day afterwards when Jeff Sessions’ uncontestedly retained his ###### as Attorney General”

  10. earlofhuntingdon says:

    The NRA is taking deserved shit – after the latest mass shooting in Thousand Oaks, CA – over its messaging to doctors that says, “stay in your lane.”  That is, STFU about guns and practice medicine.

    Among the many doctors to respond, a medical examiner in SFO, who talks to too many parents about their dead kids, told the NRA to “fuck off.”  She described the number of people being killed by guns in America as a “public health crisis.”  Indeed, it is.

    One thing a Democratic Congress should do early in its tenure is take the shackles off the CDC.  For decades, Congress has forbidden them to research guns and death in America.  That prohibition should be turned into a mandate.

    If nothing else, the work would document the problem, something the NRA has worked hard to avoid for decades.  It might also lead to some honest solutions to this family, social, and public health crisis.

  11. Michael says:

    Marcy, you told us we shouldn’t panic because there might be sealed indictments. There’s been no indictments unsealed yet and Rosenstein tried to delay Sessions’ resignation. Now should we start to panic?

    • Avattoir says:

      Also, you’ll need a towel.

      And peanuts (for the salt, in a suitable portion). You need both for an emergency exit. If that’s out, then the towel at least might still prove useful in the impending “absolute shower” (Terry-Thomas).

        • earlofhuntingdon says:

          I beg to differ.  “A towel is about the most massively useful thing an interstellar hitchhiker can have.”  According to Mr. Adams,

          [I]t has great practical value.  You can wrap it around you for warmth as you bound across the cold moons of Jaglan Beta; you can lie on it on the brilliant marble-sanded beaches of Santraginus V, inhaling the heady sea vapors; you can sleep underneath it beneath the stars which shine so redly on the desert world of Krakafoon…wet it for use in hand-to-hand combat; wrap it round your head to ward off noxious fumes or…wave your towel in emergencies as a distress signal, and of course dry yourself off with it if it still seems to be clean enough.

          So, celebrate Towel Day every May 25th and have another Pan Galactic Gargle Blaster.  The Vogons could be here any day now.

        • Avattoir says:

          When an app came out last year that turned Toad’s tweets into those of a pre-schooler learning to print with crayons, pretty sure I wasn’t alone here in using it (Helps in understanding the mindset.)

          NOW I’d like to see an app that converts everything Toad says into Vogon poetry:

          so I can avoid just as assiduously every crude croak he emits.

        • Kick the darkness says:

          Unfortunately there is no avoiding it.  We are all gibbeted in the ride.  In the end it will all be set down in Vogon poetry as some sort of horrific ballad.

          Raindrops threaten toxic puddles of orange porridge.
          Wisely he abstains from rain in the country of the Pyrenees.
          Shelter Leader, O shelter haste!
          Forsooth, do not tip your hand!
          Spend your time in TV land!
          For to show your true Vogon face.
          With mussed up hair all out of place.
          You’d rue, tis true, lathering the gathering at Suresnes. 
          A reveal at thunder peal, stain at Hauts-de-Seine, Abhorage!

        • Avattoir says:

          Vogon poetry (I like to think of it more as peotry) is quite the pop pastime (I once attended a dinner party with Vogon poetry as the theme, with the paper that guests were provided to write on being contained in an envelope secured by a piece of green putty.)

          But it does have some constraints, not least of which being that each work must include, ideally conclude, with the line: “See if I don’t.”

          The rule is sufficiently wide-spread that participants are often granted sufficient slack to comply with “SIID”.

        • Kick the darkness says:

          Interesting-thanks.  Had no idea it was such a thing.  “See if I don’t” could almost be an obligate last line syllable train wreck for Vogon Haiku.

    • Kick the darkness says:

      Whatever happens at this point, come January seems like Schiff or other House chairs should be able to request or subpoena (need to if info is classified?) information from Mueller if that’s what it takes.  It would be better to let Mueller finish and play his hand, obviously, especially since that might lead directly to indictments.  But with the election what Mueller’s team has found out should be able to see the light of day.  Maybe I’m being too optimistic.

  12. J R in WV says:


    While I agree with your point to force the CDC and other federal agencies to research gun violence in this country, I think while the Senate is in the hands of the Republicans, it is a pipe dream. That is for the next two years.

    • earlofhuntingdon says:

      Good reason for the Senate to change hands in 2020, although the House can keep it in the news with a few hearings. It’s not like one would expect angst and the number of shootings to go down when Trump assumes the role of fearmonger-in-chief.

      • Valley girl says:

        Also, as I’m sure you know, Trump loves Violence, in whatever form.  Early on I wrote about this on another blog site, compiling clips from the 2016 election.  And, I’ve seen some other compilations since then.

        I don’t have a clear answer as to why Trump loves Violence.  Does applauding violence allow him to get thrills from imaging what he could do with his fists or a AR-15 in hand?

        Narcissists, where ever they fall on the scale, are very angry people.

        • Kick the darkness says:

          Violence, directed against the Other, unfortunately appears to be a key part of what seals the deal between authoritarian followers and the social dominators that would lead them.

  13. Jose says:

    Actually, there is a fairly straightforward solution to the Whitaker issue, if you do decide to “plot against him”. Indict and arrest him for fraud and extortion in Florida. The evidence is there, and moreover cable news would be wise to bring on their shows victims of the scheme that he facilitated and perhaps even the people he intimidated to not report it to the authorities.

    Then, authorize Mueller to proceed with his report and the indictments he’s surely been preparing and laying for the grand jury of all those who conspired with Russia. At that point, the political issue is kind of off DOJ’s hands and becomes Congress’ problem. It may admittedly stay Congress’ problem for the next two years, at least with regards to Donald Trump.

    Finally, move the prosecutions and trials of other co-conspirators that are not the President under the control of the SDNY, DC and EDVA US Attorneys and announce that DOJ hopes to indict the President whenever they’re able to on a series of specific criminal charges, and dissolve the Office of Special Counsel.

    You could also legitimately coordinate both enforcement actions: an arrest from Florida of Whitaker and the roll out of the end game of the Mueller investigation under established Department practice, and avoid having to report anything to Whitaker by not making any moves until that happens. Mueller is not required to report unless and until he takes action, so Whitaker may not even be able to spy for the White House unless he barges in trying to see what Mueller is up to and takes active steps in that direction, which is not a given for now.

    • Avattoir says:

      Once again (for I’ve lost track how many times):

      Any ‘report’ contemplated under the DoJ regulations that provide for a Special Counsel is ONLY that associated with when the SC’s work is “concluded”.

      If you somehow envision Mueller issuing a written ‘report’, the regulations do NOT contemplate such PRECEDING further activity ‘by’ the SC, which activity would include indictments.

      Also, you seem to use the word “report” in a way that conflates that which the DoJ’s SC enabling regulation contemplates, with the sort of consultation that the OSC has described to various courts in several of the proceedings since last fall. Mueller sitting down with Rosenstein to discuss where things have gone and might go does NOT qualify as a “report” under the DoJ’s SC enabling regulation.

      • bmaz says:

        Remember when there was all that talk about interim reports on partial issues? This were giddy times. Wasn’t happening then, not happening now. It gets mind numbing after a while.

      • Jose says:

        The Special Counsel regulations aren’t the only source of authority for Mueller to write a report, and in fact the one he may be relying on is a different beast altogether.

        It is also not clear whether its a single report, whether its a presentment, an indictment or whether he’s using multiple grand juries to conduct the investigations separately or just a single one.

        Here’s an article by Lawfare on some of the options available to him:

        As a reminder, Leon Jaworski also had no express mandate to write or send any kind of report to Congress or make it public.

        In any case, just because people contemplate that Mueller will write some kind of spare report, that it will conclude the investigation and be sent to Congress or whatever. That’s just rampant speculation, but the issue remains which is essentially: when the Department of Justice decides to bring a criminal case against the President of the United States for violating federal law, or decides that if it were able to it should pursue such a case, how does it handle that situation?

        Leon Jaworski took the route of issuing a sealed grand jury report to be delivered to Congress that touched on conduct which was Jaworski’s ultimate provenance (in support of criminal prosecution) as well as “bad conduct” by the President that would aid impeachment inquiries,  after members of the grand jury and his team weren’t successful in persuading him to either indict Nixon or deliver a presentment against him.

        If anything, I expect that the best precedent for what Mueller might do is what Mueller did the last time he had to write a report, when he investigated the NFL’s role in the Ray Rice incident.

        That kind of report would be far more comprehensive than the Jaworski report, contain extensive legal theory and analysis, but avoid some of the pitfalls that plagued the Starr report by making no admonitions towards impeachment, and instead staying squarely within his rightful jurisdiction of what federal crimes were committed and how the grand jury would like to prosecute them. Such a report I suspect would be accompanied by a presentment (which would be public, in case the report is made to be sent confidentially to Congress due to various considerations), or at least make clear that if Trump weren’t President he would be indicted by the grand jurors for the offenses they list.

        In any case, always remember that Mueller isn’t a Special Counsel appointed pursuant to the regulations, merely that Rosenstein made those regulations applicable to him. This means looking at the regulations as a source of authority is misguided, as his mandate is actually defined by the order(s) (classified and unclassified) that appointed him instead.

        • bmaz says:

          I know you are fixated on this, but it is overwrought baloney. The “report” is likely to be in the form of speaking indictments. The rest is hyped up speculation and pie in the sky extrapolation. And that is assuming the core effort of the SC is not scotched altogether.

    • orionATL says:

      what i’m going to say now was the subject of a long comnent i wrote that got “404’ed” about three weeks ago. i ain’t gonna rebuild it, but:

      – mueller owes the citizens of this country a summary of what he did and of what problems he uncovered, including efforts to manipulate american public opinion for the benefit of foreign governments and hyper-wealthy individuals.

      – mueller would be a fool not to publish a summary document that states at least barebones summaries of his general approach (e.g., confraudus) to the oec charge from rosenstein, and a summary of each of his indictments, plea bargins, etc. his approach to the presidency also needs to be summarized. these documents are essential to counter the deliberate misrepresentation of the osc investigation by republican propagandists.

  14. Taxidermist says:

    First, thanks EW for another great article piecing this broad criminal enterprise together.

    I’m frustrated that even as everything in the last two years has unfolded, there isn’t more attention in the media to the architects behind it. The Federalist Society is as bad for this country as the NRA, with their long-con strategy to erode democracy while amassing vast wealth and power. If more people saw them for the poison they are, we could maybe stave off this rapid destruction of laws and institutions that the majority of Americans value and believe in. We need a compiled list of their perpetrators on the bench and the damage they’ve collectively done.

  15. SpaceLifeForm says:

    Timestamp: There is one and DOJ knows what it is. It is not 2018-11-07.

    RR: ‘Superb’ choice. He is correct.

    Two groups: Most certainly on purpose, one ethics angle, the other pure legal esp. wrt to Russia investigation. On purpose. Making sure DOJ can defend against future collusion attack.

  16. bbleh says:

    Insightful analysis, but I’m left with a sinking feeling about “Kremlinology” in what purportedly is a “government of laws and not of men.”

  17. Thomas Paine says:

    Sooooo….if the paperwork hasn’t exactly followed the tweet, and Sessions has left the building, then Rosenstein is in charge, and the the team can tell Whitaker whatever he wants to hear to keep him “fat, dumb and happy” and out of the way – right ?  In the meantime, Mueller gets every pending indictment in the hands of the Grand Jury(s) and THEY proceed according to plan.  Figluzzi thinks these indictments will speak with such detail that no report to Congress will be required or necessary, since it will all be laid out in public and protected by Judges in the DC Circuit (Merrick Garland).  How freaking ironic.

  18. Tracy says:

    Excellent reporting, Marcy!! Thanks!! Feels like you’ve hit the nail on the head!

    This leaves me more hopeful than I was yesterday. I hope that these huddling fellows were as clever as this, and locked something in amongst themselves.

    I also even feel better in the event that Noel F somehow makes it into the probe oversight role.

    The non-dated doc is certainly peculiar, seems significant.

    I love how you dissected this key huddle!

  19. orionATL says:

    ew writes:

    “… Rod Rosenstein has not survived as a senior DOJ official for thirteen years, through three presidential administrations and serving both parties, without knowing how to flatter his bosses. And I suspect, in this case, those skills may serve the country well….”

    “will serve the country well” – i think that is exactly the case. i am counting on it.

    rosenstein can be thought of as a specialist politician. by that i mean he specializes in being adept at high-level political  manuevering in a bureaucracy, as opposed to the more common political maneuvering in groups of co-equals like a city council or state senate.

    rosenstein pretty clearly managed the nytimes’ effort to short-circuit his tenure very well, going to the white house and placating at least kelly if not trump too. then, after the white house took time for its kavanaugh immolation, rosenstein had a chummy little fly-down with trump to florida. one presumes he made promises he could keep to trump without giving away critical ground. we’ll see. at any rate, he survived and he may prove to be the shield the osc needs to either continue its efforts or to wind them down in a stable way.

    for one, whitman may find himself relying on rosenstein’s deep knowledge of how doj works, how you get things done inside. if as i suspect rosenstein is skilled at being amiable, he may prove a valuable source of advise for whitman within doj, one who is less covertly condescending than other doj officials. on the other hand, whitman may prove to be merely a pass-thru for white house orders regarding osc, immigration, aca. we’ll see who comes out ahead. i’d put more money on the pros like rosenstein than i would on any of trump’s perpetually blundering political strategists.

  20. Kick the darkness says:

    In light of some of the above comments I got to thinking that from Trump’s Round-up ready ecocatastrophe of words, there must be some hidden Haiku gems.  I thought to go looking for some and realized it was likely that somebody had already been all over it.  And indeed.

    My whole energy —
    who cares? We do a building.
    It doesn’t mean anything.

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