The Invisible Game of Chicken: The Things the People Claiming to Understand the Manafort Extension Don’t Know (Nor Do I)

There’s a lot of tea reading around the fact that the parties asked for a 10-day extension in the first status report on how well Paul Manafort has been cooperating. Originally the report (set two months ago when he flipped) was set for tomorrow, which is . the last Friday before Thanksgiving. The motion asks for an extension to November 26, which is the first Monday after Thanksgiving.

Some people have suggested that means the key issue on which Manafort is cooperating is close to done, but not done, and from that promised indictments tomorrow (since what grand jury in its right constitution-saving mind would work the day after Thanksgiving).

That may be right, but there are a lot more pieces in play than just that, including:

Trump’s open book test

Sometime in October, Mueller gave Trump his open book test of questions to answer. It already seemed like Trump was stalling until he tried his Matt Whitaker ploy. And this week, Trump’s lawyers have continued to dick around about whether they’re even going to answer all the questions.

There’s good reason not to reveal publicly whether Manafort is cooperating fully until you’ve gotten whatever answers you’re going to get or given up waiting. If you reveal in a status report that Mueller’s team thinks Manafort hasn’t been cooperating, then Trump would feel more free to lie. If you reveal Manafort has been cooperating fully, including about Trump’s actions (in contradiction to some reports that he hasn’t been), then Trump will be more likely to avoid answering.

So there’s good reason to wait until after Trump has turned in his open book test or gotten a D on the exam.

Whitaker’s ethics review and first briefing

While Matt Whitaker has blessing from the Office of Legal Counsel to oversee Mueller, there’s no indication he has undergone his ethics review on whether he can supervise Mueller. Indeed, contrary to much panic that I think stemmed from Jerome Corsi’s specific comments about how mean prosecutors are, I’m not at all convinced Whitaker has even been read into the Mueller investigation yet (this report seems to suggest he has not).

There are lots of reason to delay action — on both voting up indictments and revealing details about Manafort’s cooperation — until there’s more clarity on Whitaker’s role. Indeed, if Mueller has truly shocking things, things that even Whitaker would be unwilling to veto, it might serve him well to hold them, and make Whitaker buy off on them.

And that uncertainty might lead to a Manafort delay.

The Maryland challenge to Whitaker’s authority

Tuesday Maryland’s Attorney General, Brian Frosh, submitted his promised challenge to Whitaker’s appointment. This challenge — and others we should expect — won’t be decided anytime soon, but they may lead Mueller to delay until, at least, he knows he can continue to ensure the legality of his actions by reporting them through Rosenstein.

Manafort’s forfeitures

On October 9, Mueller’s team started the process for seizing the $46 million of assets Manafort had taken in his plea deal. Others with an ownership stake in the assets have a month to contest the seizure. Just the bank holding the mortgage on his Trump Tower apartment challenged the seizure.

That means around about now, the rest of his assets (they won’t really be worth $46 million, but they’re worth a lot) will begin to be put beyond the reach of presidential pardon.

Monday’s briefing

Meanwhile, there are two things going on at the DC Circuit.

Yesterday, the Mystery Appellant challenging some action Mueller took submitted a reply brief to Mueller’s brief submitted (in the wake of the Whitaker appointment) last Thursday. Today a notice of some sort was filed.

This stuff may be relevant — we don’t know! But the developments in this appeal may affect Mueller’s willingness to show more cards (though it won’t be resolved until December at the earliest).

We do know, however, that Mueller has to turn in a briefing describing how Whitaker’s appointment affects his own authority. That may well be the first that we understand what he knows to have occurred since Whitaker’s appointment and how he sees it affecting his own authority — and whether he think he has mitigated any risk that his actions will be invalidated by reporting through Rosenstein.

Sure, the delay might be a handful of indictments to drop tomorrow or even next Friday. But right now all we can be sure of is that Mueller and Trump are playing either a secret game of Chicken — or Chess. And we’ve seen just a tiny fraction of the plays so far.

All that said, one thing that that çomes after this date is the next Trump Putin meeting — which will be in Argentina during the G-20, which starts November 30.

54 replies
  1. Fran of the North says:

    EW, I’m not certain that your link to the ‘Whitaker read into the Mueller Investigation” is to the right spot. It points at a Josh Dawsey tweet re: L Graham. None the less, keep up the good work. Your insight and ability to dispel the fog is much appreciated.  Best, FDN

  2. earlofhuntingdon says:

    Mueller’s probably playing chess, Trump chicken.  But the Don is the kind of guy who assumes every other driver will pull off the road first.

  3. jf-fl says:

    ah, I understand why you were grasping for emmet flood sign-off on temp AG.

    Somebody who could play chess w/mueller (flood) might just let Trump yell “king me” even though it makes no sense, because if you can’t control the rules of the game then perhaps preventing them from being enforced is the best strategy?    And you were trying to use flood to affirm your worst fear.

    Given flood is I believe only temporarily in his position before he returns to a prestigious law practice- that strains credibility to me.  You seem to be worried he’d  agree that invalidating the whole federal legal system intentionally was a good idea, simply to protect one person.    Perhaps a non-zero probability but I don’t think we’re there yet.   We might be headed there if we move slowly enough.   Even most trumpkins do not want to give up democracy for Trump, and flood didn’t even want a permanent job w/him.

  4. Eureka says:

    All that said, one thing that that çomes after this date is the next Trump Putin meeting — which will be in Argentina during the G-20, which starts November 30.

    Oh, boy.  So if I am tempted to stick with my prior gut notions, then three more Fridays it is (though very unwise of me to possibly double down on my tired thought, while tired).  I’d take that bet if it was re Junior, though.

    I can’t think right now of circumstances where he would ever actually turn in the open book test.  It would be after the fact of something, I just can’t think what would be enough to trigger the call for ‘pencils down.’

    • earlofhuntingdon says:

      Trump and Giuliani seem to treat the open book test answers as a dangle, like a presidential pardon for Manafort.

      Giuliani’s statements about what he likes and doesn’t like about it see to be attempts to distract Mueller’s people (good luck with that) and play to the base: el Trump is working hard, he cares about the law and his people, but his own prosecutors – as in any good banana republic – sometimes go too far in their zeal such that he might need to punish them to protect the revolucion.

      • Eureka says:

        Trump, Rudy, and their FedSoc Doomsday Cult leaders are such dedicated LARPers that the next generation may not realize this as analogy, what with Dole setting up in our newly sub-tropical backyards.

  5. Kai-Lee says:

    “We do know, however, that Mueller has to turn in a briefing describing how Whitaker’s appointment affects his own authority.”

    Please, Mr Mueller, be sure to address how the many investigations are currently being threatened by Whitaker’s “information-sharing” with Trump and his legal team. Disgusting.

  6. Barry says:

    EW – I’m wondering what you make of OLC ( Engel) concluding that Whitaker is constitutionally appointed. Given the reporting that Engel was part of the Sessions/Rosenstein gaggle rather than the Whitaker gaggle on D-Day, and given the convincing (to me) op-ed by Katyal and Conway which concluded that it was not a constitutional appointment, I was disappointed and confused by Engel’s legal defense of that action. Does it mean that the Katyal-Conway argument is not as overwhelmingly clear as they suggest and might reasonably be refuted by Engel’s? Or is Engle a partisan Trump man? Or is Engel part of the suggested chess game beyond the ken of mere mortals?

    • Trip says:

      Seems like a significant fuck-up from a group perennially characterized as extremely careful and detail oriented. It almost makes it come across as ‘an accident on purpose’. But then again, there must be enormous pressure, especially with the firing of Sessions and the installation of the pretend AG. This guy, Seitu Sulayman Kokayi, isn’t remotely connected to Assange, right?

      • bmaz says:

        Eh, I dunno, it strikes me it was just a fuckup. A significant one, but truly an unfortunate mistake. What was more interesting to me is that EDVA came right out and said “Yep, we got him, it’s coming”.

      • Someguy says:

        I don’t think that it makes sense as a reflection of stress from the Sessions firing or Whitaker installation, since the document itself was filed on August 22 – it just wasn’t noticed until now.

  7. Trip says:

    Does this nexus reach Netanyahu yet?

    John Hannah, Dick Cheney’s former national security adviser:

    Mueller’s team has been looking into the communications and political dealings of John Hannah, the former Cheney adviser who later worked on Trump’s State Department transition team. This includes interactions with Lebanese-American businessman and fixer George Nader, who brokered meetings between foreign dignitaries and team Trump, and Joel Zamel, a self-proclaimed social media guru with deep ties to Israeli intelligence. The Daily Beast previously reported that the three men met with a top Saudi general in the days leading up to Trump’s inauguration to discuss plans to undermine and overthrow the government of Iran.

    (mentioned in link) Foundation for Defense of Democracies:

    Shortly after its founding, FDD quickly became a prominent member of a group of neoconservative think tanks and advocacy groups—including the American Enterprise Institute and the Hudson Institute—that were influential in shaping the early foreign policy priorities of the George W. Bush administration…FDD is the successor organization of a group called EMET, an education initiative founded earlier in 2001 as part of an effort to gain support for Israel’s response to the Palestinian Intifada and to diminish public outcry against Israeli actions.[11] Regarding EMET, Slate reported in mid-2015: “On April 24, 2001, three major pro-Israel donors incorporated an organization called EMET (Hebrew for ‘truth’). In an application to the Internal Revenue Service for tax-exempt status, [FDD president Clifford May] explained that the group ‘was to provide education to enhance Israel’s image in North America and the public’s understanding of issues affecting Israeli-Arab relations.’”[12]

    • Trip says:

      It’s interesting, maybe a little ironic, that the cult voted for Trump as someone ‘significantly different’ from the establishment, while in reality, they were rubber stamping the return of the Cheney Neocons. Same goes for the Republicans who jumped ship from Trump, but were part of the cheerleading squad for prior GOP administrations, like Dubya’s.

      This explains the McConnell blind eye to all Trump fuckery. Trump’s just a cover for the old gang; their new authoritarian puppet.

      • Trip says:

        Eli Clifton‏Verified account @EliClifton

        Alan Dershowitz sits on board and paid $120K by group that published articles warning of a “jihadist takeover” of Europe leading to a “Great White Death” and claiming Somali refugees were turning Sweden into the “Rape Capital of the West.”

        Eli Clifton‏Verified account @EliClifton Nov 14

        Eli Clifton Retweeted Joe Bernstein

        Posobiec, working for Rebel Media, allegedly hired a neo-Nazi and said he was “sympathetic to those beliefs.” Rebel co-produced 12 anti-Muslim videos with the Mercer funded, and Alan Dershowitz and John Bolton advised, Gatestone Institute. … @AlanDersh

        Joe Bernstein‏Verified account @Bernstein

        Wow, the DC neo-Nazi who seems to have been planning a follow-up to the Pittsburgh massacre worked for Jack Posobiec

        • orionATL says:

          isn’t this interesting.

          not just old “came to jehovah” dershowitz getting bushels of  shekels, but national security advisor john bolton as well,  producing destabalizing media content to be deployed in europe. trump knows how to pick’em; they know to pick trump.

  8. Frank Probst says:

    My money is on Mueller pausing on any indictments (and even grand jury testimony) until the Whitaker situation is resolved, because there’s a question as to whether or not he’s being supervised by a Senate-approved principal (or whatever the legal term is), which has been the basis for every challenge to his appointment in the first place.  He may decide to farm out a lot of his work to various AUSAs, who are already Senate-confirmed, like he did with Michael Cohen (and the dumbass who was trying to gin up sexual assault allegations against Mueller himself).  And he may have been doing this anyway, because he knew there would be antics after the midterms.  I think that questioning witnesses via FBI agents will still be “in bounds”, since they ultimately report to a Senate-approved FBI chief, so I don’t think he’ll suspend his entire investigation.

    There’s been chatter that Manafort isn’t being fully cooperative.  That’s almost certainly coming from Team Manafort, and I frankly don’t understand it.  He may be telegraphing information to Trump (which is why Trump is implying that Mueller is trying to squeeze witnesses into giving false testimony), but I can’t see why.  His plea deal is pretty much “pardon proof”.  It may be a last-ditch attempt to save whatever assets haven’t been seized yet, but as you note, most of them have probably already been taken.  I suppose there’s the possibility that Manafort IS cooperating fully, and his lawyers are just lying to the media about it.  That would create an “excuse” for why Manafort keeps getting dragged in to be interviewed so many times.  Maybe they’re dragging him in so many times because he has so much to say.

  9. Viget says:

    Or maybe he is just stalling. Pretending to cooperate to keep salacious details out of the public eye. After all, SDNY was about to indict Cohen with all sorts of details about Trump’s involvement in the indictment, and then suddenly Cohen cops a plea. Same is true with Manafort, he is about to go to trial in DC with promises of all sorts of embarrassing info to come out, and then suddenly a plea deal. Also, the Russian mob may be threatening Manafort and his family… better to be broke than dead.

    Stalling seems like the best tack for Team Trump. The longer they obstruct the more they can clamor for Mueller to wrap it up.

    I also agree with Mueller being left in legal limbo until this whole Whitaker mess is resolved, more stalling, which does suggest maybe Flood came up with the idea.

    • bmaz says:

      “Or maybe he is just stalling”. Naw, that’s not how this works, and he sure as hell is not taking direction from “Team Trump” at this point.

      And for Frank Probst above, while it is not impossible, I very highly doubt Mueller is on hold because of Whitaker. First off, there is still a legitimate DAG present and whether it sucks of not, the OLC opinion on Whitaker gives cover.

      People are getting FAR too worked up over an innocuous little ten day set off of a freaking status conference. Relax.

  10. Vern says:

    This seems important …

    Laura Rosen via Digby:

    “… The takeaway for at least my contact was that McConnell thought we are headed for a Constitutional crisis, that Trump would take some precipitous action, regarding his legal exposure, and that McConnell seemingly intended to try to protect him.”

  11. Trip says:

    Josh Dawsey‏Verified account @jdawsey1

    Former Attorney General Jeff Sessions was presented with a saber at a steak and eggs breakfast today for Federalist Society members. First public appearance since his ouster. He received several standing ovations, per attendee.

    Rewards for symbolic Seppuku (claims of resignation vs firing)?

  12. Kansas Watcher says:

    Don’t be surprised if trump ride home with Putin after next g20.

    At this point I would have transferred ever asset I have to a country US has no agreement with and gtfo.

    Seriously. Where’s the trump money lately.

  13. Someguy says:

    A 10-day delay over Thanksgiving doesn’t really seem like enough time to accommodate much of anything.  It’s not like there’s a firm deadline for Trump “answers” and it doesn’t seem like a non-cooperating Manafort is suddenly going to remedy that in that period, although I guess that’s possible.  In any event, it’s a very short extension.

  14. Thomas says:

    Given that Whitaker’s appointment is unconstitutional, would it be unethical for Mueller’s prosecutors to feed him false information for the purpose of observing whether it surfaces in Trump’s tweets?

  15. Mark Ospeck says:

    Marcy, just a games-player (not a lawyer) speculation:
    Former Fed prosecutor P Butler obs there are 36 sealed indicts in Fed district court in DC, 18 since end of Aug.
    Also, recent Mueller grand jury questions have focused a lot on Stone and Trump JR.
    Would not have Rosenstein/Mueller anticipated Trump appointing stooge AG immediately after the election, and have already put in sealed indictments that are untouchable now by Whitaker? Also, that embedded within the indicts will be Mueller’s report about the criminal conspiracy between the Trump campaign and Russia to defraud the US election? Could be why Trump is freaking out. One question for lawyers would be-can acting stooge crony AG Whitaker retract, take back already sealed JD indicts?

    • bmaz says:

      I like Paul a lot. But that is freaking absurd. And, frankly, Butler should know better.

      Seriously, why do people keep willfully buying off on this crap?

      • Mark Ospeck says:

        Why would this Rosenstein/Mueller strategy be wrong?   Please address specifics and speak to why Paul Butler is so well off base, and also to my question. Why are us non lawyer folks buying off on this absurd kind of crap?  Like Neil Young said, “tell me why”

        • bmaz says:

          Because there is not one shred of fucking evidence there are “36 sealed indictments, 18 since end of August” relating to this case, and that is on you and Butler to support with evidence, not me. And I guarantee you, neither you nor Paul, have squat as to evidence. There are “sealed matters” in every District court all the time. Hey, sometimes I do that. But there is not one shred of evidence that any, much less that many in that time frame, are from Mueller in DDC. If you have it, show it. I know people that really watch that clerk’s office and say this is complete bunk. I trust that.

          And, the specter of “sealed indictments” has been a feature of people wanting to make the Mueller probe more than it is from the start. The only one that substantively remained sealed for much longer than necessary to effect the arrest or jurisdiction of the subject is Papadopolous.

          Why don’t you tell me why you buy into this?

          • Mark Ospeck says:

            Please address the question. Why would this ‘already sealed indictments + report’ strategy not be a good one for R/M?  Trump came in immediately after the midterms, replacing Sessions with his crony Whitaker.  Obvious move.  Games players were expecting just such a race between this and the Mueller indicts. Best strategy would then be for R/M to preempt, i.e. to already have sealed indicts ready to go, so that Trump stooge Whitaker would have no power over them. My q for lawyers was whether the fake AG would be able to actually undo these sealed indicts.

            • bmaz says:

              I’ll tell you what, disingenuous sir, that has appeared here for a week or less, and under at least two, if not more, sock puppet names, how about you show your “proof”. Otherwise GTFO and shut up.

  16. Mark Ospeck says:

    I don’t need “proof.”  Not interested in fighting with you, bmaz.  Like I said, I’m not a lawyer. I do not understand the rules regarding the sealing/unsealing of indictments.

    Is there a lawyer or prosecutor who can answer the following hypothetical?  Say for ex. Rosenstein/Mueller sealed a detailed indictment of Roger Stone in Fed district court which implicated the Trump campaign in a criminal conspiracy with Russia (thinking along the lines of the original 80 p. Cohen indict which incriminated Trump as an unindicted co conspirator. It subsequently got cut down  to 20 p. after the Cohen plea deal, and we, the GP, lost information).  Obviously, I’m thinking about how one would legally go about constructing a “dead-man” switch.  #1 can a sealed indict have a trigger for unsealing?  #2 Can it also have a “clock “? Say for the sake of argument that Wed 21 Nov it is automatically unsealed ? #3 If DAG Rosenstein in his supervisory role initially signed off on this for Mueller, including the trigger and the clock, can the sealed indict then subsequently be withdrawn by Trump crony AG Whitaker? #4 If Whitaker tried this sort of thing, would JD have to go to court where Rosenstein vs. Whitaker would have to be decided by a judge? #5 Would the GP even find out if there had been such a court decision?  If it was an already filed open indictment, I don’t think that Whitaker would subsequently be able to undo it.

    As you can see I don’t understand the JD, Fed district court rules for how the sealed indictment mechanism works.  Obviously, bmaz disagrees with my line of thinking.  Fine.  No problem.  But is there another  lawyer/prosecutor out there who is able to address some of my points?

    • Trip says:

      That sounds remarkably like Trump and Giuliani = Disingenuous commenter plus an attorney that specializes in battshittery.

  17. Mark Ospeck says:

    bmaz, you kind of remind me of Ernest Borgnine’s character Shack from The Emperor of the North. There is little or no content in your comments against my arguments. Just unsupported claims, insults, trolling. I hope your arguments in court are more soundly developed.

    • bmaz says:

      You keep returning with the same bleating bullshit based on bogus hypotheses and assumed facts that are not the actual case. I gave you a substantive answer the first time, and you are still at it. When you have non-batshit “content” to respond to, I will be happy to do so. If you want to witness trolling, take a look in the mirror Mark. And I do just fine in court, thanks. You know why? Because I do not issue bullshit, nor have patience for those that do.

  18. Mark Ospeck says:

    bmaz, are you being paid to block?  I mean, that is a logical question.  Marcy’s Emptywheel  invites comments by all sorts of us non lawyers, not prosecutors–folks who are mainly clueless about the details of how exactly the law works.  I know I am. However, some uncomfortable questions could potentially be asked by us, the great unwashed—those who don’t understand all the legal back and forths–just like I would not expect lawyers to understand quantum mechanics :)

    From a games player perspective I would expect that EW could become a problem site for certain individuals, and that if those individuals had any brains at all, that they would anticipate the need for paying a blocker to intimidate the non lawyers.  You, being a professional, I’m  sure that you get it– having to deal with a lot of that troublesome, so-called “expert,” testimony.  There are these scientists, physicists, mathematicians, some of whom might be able to throw sand into the main reduction gears.  btw, I think you are vg at your job.  I could be wrong, but have you made as a paid blocker.

    • bmaz says:

      First off, I am not paid at all, not one red cent, and never have been. Secondly, what the living fuck is wrong with you? Third, if I wanted your comments gone, they would be gone. Lastly, seriously, keep buggering up our threads with bleating and demanding bullshit and we will see how that needs to be reevaluated. Try to add something useful.

  19. Mark Ospeck says:

    Marcy, guess that you did actually give your stars (like bmaz) the power to block.

    bmaz is great and v skillfull, btw. You will otherwise notice how your blog has descended, become not so much an honest back and forth about anything that means all that much of anything at all.  I was just commenting about possible Mueller investigation strategy.  Who cares?

    • nobodynobody says:

      You not understanding legal concepts, background, or legal anything does not also entitle you to explanations from other people.  You asking for legal advice for free that others pay hundreds of dollars an hour for and then being offended when people won’t give it to you is pretty disingenuous.  He was being nice and so far you’ve just thrown a fit because you didn’t like his answer.  Coming in here as a new person and calling someone who runs this place a ‘paid blocker’, whatever the fuck that is, when you have no idea what’s going on, is disingenuous.

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