After 14 Years, Conspiracy Artist Jerome Corsi Continues to Successfully Yank the Media’s Chain

Before I address Jerome Corsi’s latest success at playing the media, let me review my theory of why Mueller’s team is so interested in Corsi with respect to Stone (which they’ve been pursuing since March).

Jerome Corsi probably knew not just that WikiLeaks would release Podesta emails, but also what they contained

On October 6, 2016, Jerome Corsi renewed an attack on John Podesta first floated in a Peter Schweitzer and Steve Bannon report released on August 1 (and funded by Rebekah Mercer).

Hillary Clinton’s presidential campaign manager, John Podesta, was on the executive board of a client of the Panamanian law firm Mossack Fonseca, which is at the heart of the the Panama Papers investigation into massive global offshore money-laundering.

The company for which Podesta served as a board member, Joule, also received $35 million from a Putin-connected Russian government fund at the same time then-Secretary of State Hillary Clinton spearheaded the transfer of U.S. advanced technology, some with military uses, as part of her “reset” strategy with Russia, according to a report titled “From Russia With Money,” released in August by the Government Accountability Institute. “Clinton Cash” author Peter Schweizer is president of GAI, and Steve Bannon, the CEO of the Trump campaign, is a director.

The Russian entities that funneled money to Joule and its related companies, and ultimately to Podesta, include a controversial Russian investor with ties to the Russian government, Viktor Vekselberg, and his Renova Group, a Russian conglomerate with interests in oil, energy and telecommunication.

It was a remarkably prescient report! Just hours later, WikiLeaks would start releasing John Podesta’s emails, and would you know it?!?, starting on October 11, those emails included documents pertaining to Podesta’s efforts to unwind his relationship with Joule. He and Roger Stone both returned to that attack on October 13, after WikiLeaks had released those files. And on October 17, Corsi finally got around to a post linking the released files to (claim to) substantiate the attack.

While that’s in no way proof, it certainly seems to suggest that either Corsi or Stone not only had advanced warning that WikiLeaks would release Podesta emails, but knew that those emails would include documents pertaining to Joule.

As it happens, though, Corsi and Stone spoke about Joule back in August, probably on August 14, before Stone predicted that it’d soon be Podestas’ time in the barrel. Corsi explained that conversation in March 2017, at a time when Stone was pushing Randy Credico to back his explanations for the Podesta comment, this way:

On Aug. 14, 2016, the New York Times reported that a secret ledger in Ukraine listed cash payments for Paul Manafort, a consultant to the Ukraine’s former President Viktor F. Yanukovych.

When this article was published, I suggested to Roger Stone that the attack over Manafort’s ties to Russia needed to be countered.

My plan was to publicize the Government Accountability Institute’s report, “From Russia With Money,” that documented how Putin paid substantial sums of money to both Hillary Clinton and John Podesta.

Putin must have wanted Hillary to win in 2016, if only because Russian under-the-table cash payments to the Clintons and to Podesta would have made blackmailing her as president easy.

On Aug. 14, 2016, I began researching for Roger Stone a memo that I entitled “Podesta.”

Stone has explained whatever digital tracks and the timing of that conversation slightly differently, claiming first that it pertained to a reference to a Schweitzer piece, but probably currently relying on this piece.

If Stone and Corsi plotted on August 14 to return to the Joule attack after WikiLeaks released files on it, then that conversation would have shortly follow the trip to Italy in late July and early August that, according to Corsi, Mueller appears to believe is where Corsi learned about the Podesta emails.

But Corsi says — in spite of apparent emails in Mueller’s possession proving otherwise — he figured out WikiLeaks would release Podesta’s emails just by “forensic analysis.”

“I connect the dots,” he said. “I didn’t need any source to tell me.”

Corsi said he determined in August that WikiLeaks head Julian Assange had obtained Podesta’s emails and was likely to release them in October — and he said several emails he sent in the summer of 2016 would confirm that fact. But he said his awareness was simply a logical deduction, not inside information from WikiLeaks.

[snip]

Corsi said that he had “sources” who had given him 1,000 pages of information over the summer of 2016 on how the Democratic Party’s computers worked. He said he did a “forensic analysis” of those emails to infer that Podesta’s were missing from the batch.

“Whoever was in that server, had to have seen Podesta’s emails,” he said. “It was a guess, but it was a conclusion that Assange had Podesta’s emails. … He was going to release them in October. Assange always releases things strategically.”

Which brings us to where we are today. After twice getting the media all worked up over claims about plea deals, Corsi now says he is rejecting a plea deal on one count of perjury.

Matt Whitaker May Determine What Happens Next

It’s not just that Corsi has succeeded in yanking the media’s chain, twice setting off press tizzies closely covering the claims of a man whose job is getting the press to embrace elaborate lies. It’s that Corsi’s chain-yanking have occurred at key times in the Matt Whitaker era. Consider this timeline:

November 7: Trump fires Jeff Sessions and replaces him by the end of day with designated hatchet man Matt Whitaker

November 8: In hearing in Andrew Miller subpoena challenge, Michael Dreeben lays out what Mueller can do with and without Attorney General appointment, noting that subpoenaing a journalist requires AG approval

November 8: On his podcast, Corsi suggests something big is going down with Mueller

November 9: Corsi appears before the grand jury and doesn’t give the answer — regarding how he learned that WikiLeaks would release John Podesta’s emails — that prosecutors expected; they told him they were going to charge him with perjury

November 12: On his podcast, Corsi says he expects to be indicted; a huge media frenzy follows

November 13: The media frenzy continues until (he claims), moments before starting an MSNBC interview, his lawyer tells him to call it off

November 15: Trump tweet apparently reflects Corsi’s claim of prosecutors yelling at him to give specific testimony they seek

November 19: In supplemental filing in Miller case, Mueller says he retains full authority of US Attorney until and uniless appointing regulations get changed

November 23: Corsi goes to the WaPo (off the record), AP, and MSNBC (the latter two both on the record) to tell them he is in plea negotiations

November 26: Corsi announces he has been offered, but will reject, a plea deal to one count of perjury, accuses Mueller of Gestapo tactics, and claims he will file a complaint with Whitaker

I’ve been wondering since November 9 whether Whitaker and Mueller had differences of opinion about what should happen with Jerome Corsi. We don’t actually know, yet, what kind of role Whitaker has played in overseeing Mueller’s investigation yet, partly because it’s not clear whether he’d be read in before the conclusion of an ethics review that it’s not at all clear he would pass (he can refuse to recuse anyway, but that will pose risks to his law license).

Still, it seems likely that, going forward, Whitaker will have an opportunity to weigh in on what happens to Corsi. If Mueller decides, once Corsi refuses a plea deal, to charge Corsi with that lie and perhaps others (or a role in a larger conspiracy), Whitaker may have an opportunity to veto it. And DOJ would presumably treat Corsi, a clear propagandist, but one with prior ties to the President, as a journalist.

To be clear, Corsi would be charged for lies to the grand jury. Even assuming he claimed he did so to protect a source, he’d be in a different position than (say) when James Risen refused to say anything about a source. He’d have already lied.

Still, by treating Corsi with heightened First Amendment privileges, Whitaker could add layers of review to any new charges (again, assuming anything Corsi says is true).

Meanwhile, Corsi has told multiple outlets that he wants to accuse Mueller of advising Corsi to lie to FINRA about pleading guilty.

Corsi has also added a new twist to the saga, claiming that he plans to file a complaint with Acting Attorney General Matt Whitaker over Mueller’s team’s alleged recommendation that he keep his plea deal a secret from the Financial Industry Regulatory Authority (FINRA).

“FINRA requires by law that I immediately report anything that might affect my ability to hold securities licenses,” Corsi explained. “So I asked the special counsel’s team how they expected me to fulfill my legal obligation to FINRA if they want me to keep the plea deal a secret. And they said, ‘you don’t have to tell FINRA because this will all be under seal.’ So I told them I was going to file criminal charges against them with Whitaker, because they just advised me to commit a crime.” The special counsel’s office declined to comment.

By making claims that are probably bullshit and were probably made in front of his attorney, Corsi risks really screwing up his legal representation.

But all this is pretty obviously theater performed for two audience members: Donald Trump (who has already publicly responded) and Matt Whitaker (who believes in Bigfoot and time travel). So it may work!

Does Mueller need Corsi’s prosecution, or does he need his testimony?

Nevertheless, if Corsi serially lied to investigators, I would imagine Whitaker would eventually approve of charges against him.

But that may not be what Mueller wants (and Corsi may know that).

While it seems clear part of Corsi’s lies pertain to how he learned that WikiLeaks had and would release Podesta’s emails, Corsi told Nashsa Bertrand that the lie pertained to an email he sent to Roger Stone telling him to go see Assange.

Corsi told me that he emailed Stone in 2016 (he didn’t specify what month) telling him to “go see Assange”—an email that prosecutors showed him during an interview earlier this year that Corsi apparently had not voluntarily produced. “I couldn’t remember any of my 2016 emails,” Corsi said. “I hadn’t looked at them. So they let me amend my testimony, but now they want to charge me for the initial day [of my interview with prosecutors] when I said I didn’t remember that email. I won’t plead guilty to it.”

Corsi’s story doesn’t make sense — not least because if this really were about his original interview, it would be charged as False Statements, not Perjury — but if what Mueller needs is an account of Corsi’s August communications with Stone, then Corsi’s current stunt may actually achieve part of its objective.

Mueller probably doesn’t want to charge Corsi — and certainly not Corsi alone — because he’s such a gaslighter the trial will be a pain in the ass (and while he’s got a credible lawyer, he obviously doesn’t have any control over Corsi’s stunts). What Mueller probably wants is the testimony he needs to be able to charge Stone as part of a larger conspiracy.

The bigger question, though, is whether Mueller needs that testimony before he takes his next investigative steps.

Yevgeniy Prigozhin Continues to Troll Both Online and in the Courts

xkcd comic used under Creative Commons license — available online at https://imgs.xkcd.com/comics/free_speech.png

The trolls are engaging in lawfare again.

For some time, I’ve been fascinated by the way, particularly in the wake of the 2016 election tampering, Russians have engaged in lawfare to score political points against the US. There were the multiple lawsuits pertaining to the Steele dossier. There was Concord Management’s unexpected defense in the Internet Research Agency indictment. Last week, Yevgeniy Prigozhin’s trolls struck again, this time suing Facebook for deleting the account of Federal Agency of News on April 3, 2018.

I’m a bit mystified by this suit. It may be a moonshot bid to learn more about Mueller’s investigation and insinuate that Facebook is an agent of the US government. More likely, it may be as much about pressuring Facebook in Russia as it is about winning reinstatement on Facebook.

Another Prigozhin attempt to use lawfare to embarrass the US government (and their willing partner Facebook!)

As with Concord’s defense, Prigozhin has hired legit American lawyers for the lawfare. But unlike Concord’s defense, it’s not clear how seriously to take this effort. The suit complains, in significant part, that Facebook has deprived FAN of its First Amendment rights.

FAN’s publications and posts on Facebook were the exercise of its constitutionally protected freedom of speech to inform the general public of historical and current events in politics, entertainment and other areas of public interest.

Facebook violated FAN’s First Amendment rights by deleting the contents of FAN’s Facebook Page and blocking FAN’s access to its Facebook account.

Facebook took action against FAN in an effort to silence and deter FAN’s free speech.

Facebook violated FAN’s First Amendment rights solely on account of its and its members’ national origin.

As xkcd famously explained once, that’s not the way the First Amendment works. It only prevents the government from limiting speech. Facebook is a private company, and it can boot whatever users it sees fit. But FAN may be trying to do two things. First, by treating Facebook’s terms of service as a contract, it claims it fulfilled its side of the relationship, but Facebook nevertheless deleted its account.

FAN complied with the terms of the Contract by properly registering with Facebook, paying any fees that were due and complying with all applicable terms of service.

At no time did FAN violate the terms of the contract.

Despite its contractual obligation to provide FAN with access to Facebook. Facebook breached the contract by removing FAN’s Facebook account and blocking FAN’s content without a legitimate reason.

Then, by tying Facebook’s efforts to crack down on Russian trolls to US government efforts to respond to Russia’s 2016 operation, I suspect it is trying to argue that Facebook deleted FAN’s account as an agent of the US government, thereby amounting to a First Amendment violation. The very first section of the complaint’s Background description details, “Facebook and the United States Government Target Russian Websites.” Among other details to substantiate that effort, it cites:

  • The January 2017 Intelligence Community Assessment that described “a close Putin ally with ties to Russian intelligence” funding the Internet Research Agency
  • Former Facebook CISO Alex Stamos’ statements, which went overboard in trying to assure people they were hunting down all Russian influence operations, “even those with very weak signals of a connection and not associated with any known organized effort”
  • Mark Zuckerberg’s comments that Facebook was “actively working with the U.S. government on its ongoing investigations into Russian interference”

As the lawsuit lays out, when Facebook removed FAN’s account in April, both Stamos and Zuck said they were doing so solely because FAN was controlled by the Internet Research Association.

All that said, it’s still highly unlikely this will work. I’m not sure if any of the CA-specific complaints will either, but like I said, this is a moonshot.

Prigozhin’s corporate laundromat

To make the argument at all, of course, FAN has to dismiss the presumed and explicit reasons Facebook banned them, starting with the accusation that they’re tied to IRA. In part, that involves claiming that IRA was disbanded in 2016.

Upon information and belief, the IRA was liquidated on or about December 28, 2016.

It also describes the new digs FAN got in 2015, after cohabiting with IRA for a year.

At the time of FAN’s incorporation and until in or about the middle of 2015, FAN and the IRA were located in the same building at 55A Savushkina Street, Saint Petersburg, the Russian Federation, 197183.

In or about the beginning of 2015, FAN searched for new premises that would be more convenient for its business with regard to a larger space for the office premises. On July 1, 2015, FAN moved to a business center at 23J Krasnogvardeiskiy Lane, Saint Petersburg, 197342.

But it also involves denying claims made in the complaint against Elena Alekseevna Khusyaynova that was filed in September but not unsealed until October, events that post-dated Facebook’s banning of FAN by over five months. In that complaint, FBI Agent David Holt had alleged that FAN was one of the entities that helped obscure Project Lakhta’s disinformation efforts.

Beginning in or around mid-2014 and continuing to the present, Project Lakhta obscured its conduct by operating through a number of Russian entities, including Internet Research Agency LLC (“IRA”), Internet Research LLC, MediaSintez LLC, GlavSet LLC, MixInfo LLC, Azimut LLC, NovInfo LLC, Nevskiy News LLC (a/k/a “NevNov”), Economy Today LLC, National News LLC, Federal News Agency LLC (a/k/a “FAN”), and International News Agency (a/k/a “MAN”).

The complaint claims FAN has nothing to do with these efforts, in part by denying (correctly, by all public accounts) that Lakhta is a legal entity.

FAN has no knowledge of “Project Lakhta”. There is no known business or other organization in the Russian Federation that operates under such name. To the extent it is some sort of informal organization, FAN is unaware of its membership, goals or methods of operation.

FAN is not an entity within “Project Lakhta” and has no relationship with “Project Lakhta”, the IRA or GlavSet. To the contrary, FAN is a news gathering and dissemination organization. In that capacity, FAN gathers news from conventional sources and adheres to journalistic standards in its operations.

Denying any tie to IRA and Lakhta, however, also involves making claims about Khusyaynova that directly conflict with the claims in the complaint. Khusyaynova, the lawsuit claims, is FAN’s accountant, but that’s the only place she works.

Ms. Khusyaynova has been FAN’s chief accountant since at least August 2, 2016. As such, Ms. Khusyaynova has been involved in FAN’s day-to-day accounting operations, including the purchase of office equipment and furniture and payments for advertising or other business contracts as assigned by Mr. Zubarev in his capacity as the General Director of FAN.

As the Chief Accountant, Ms. Khusyaynova’s duties are akin to those of a bookkeeper in the United States. She is not an officer of FAN, does not exercise discretionary authority over the editorial content of FAN’s publications and is not aware of what stories are going to be published or not published.

To the best of FAN’s knowledge, Ms. Khusyaynova’s sole employment is with FAN. In fact, she has explicitly stated that FAN is her sole employer and that she does not provide any services to any other entity and denies any involvement with “Project Lakhta”.

FAN has no reason to believe that Ms. Khusyaynova or any of its employees were providing services to another entity, much less to an entity under the umbrella of “Project Lakhta”.

And it’s not just Khusyaynova about whom FAN must make claims that dispute those made by the US government. The complaint does the same of Aleksandra Yurievna Krylova, who was accused in the IRA indictment of planning and carrying out an intelligence gathering trip to the US in 2014.

Defendant ALEKSANDRA YURYEVNA KRYLOVA (Крылова Александра Юрьевна) worked for the ORGANIZATION from at least in or around September 2013 to at least in or around November 2014. By approximately April 2014, KRYLOVA served as director and was the ORGANIZATION’s third-highest ranking employee. In 2014, KRYLOVA traveled to the United States under false pretenses for the purpose of collecting intelligence to inform the ORGANIZATION’s operations.

[snip]

Only KRYLOVA and BOGACHEVA received visas, and from approximately June 4, 2014 through June 26, 2014, KRYLOVA and BOGACHEVA traveled in and around the United States, including stops in Nevada, California, New Mexico, Colorado, Illinois, Michigan, Louisiana, Texas, and New York to gather intelligence. After the trip, KRYLOVA and BURCHIK exchanged an intelligence report regarding the trip.

Here, the lawsuit has a bit more difficulty just dismissing ties. It admits that Krylova was the founder and first director of FAN, but in that passage of the lawsuit declines to mention when that was.

The founder and first General Director of FAN was Aleksandra Yurievna Krylova. The Special Counsel has alleged that Krylova was an employee of the IRA from in or around September 2013 to in or around November 2014. FAN has no knowledge of this allegation and therefore does not know if it is accurate or not.

But as the lawsuit admits elsewhere, FAN was incorporated on May 22, 2014.

On May 22, 2014, FAN was incorporated in order to satisfy public needs of Russian and foreign legal entities and individuals by way of gathering, transmitting and supplying domestic and international news reports and other publications of public interest.

So at the time Krylova traveled to the US (while hiding her true purpose, thereby committing visa fraud), she had just recently formed FAN.

All this is no big deal, the lawsuit suggests, because FAN doesn’t know anything about it and besides it has been a long time.

Anna Vitalyevna Botneva succeeded Krylova as General Director of FAN, on November 17, 2014, and on December 24, 2014, Krylova sold 100% of the company’s shares to Botneva.

[snip]

At the time of Ms. Krylova’s indictment, she had no connection with FAN for more than three years.

At the time of Krylova’s indictment, of course, she also had had no connection with IRA for the same length of time.

FAN is silent about how long Botneva ran the show and how long she remained the sole shareholder. What it does make clear is that Evgeniy Lvovich Zubarev — the guy who’s being fronted as a plaintiff and the one who presumably would be asked to claim to have ignorance of IRA’s ties to FAN and Khusyaynova’s day job — became the sole shareholder last year.

Since August 2, 2016, Evgeniy Lvovich Zubarev has been the General Director of FAN, and since April 5, 2017, he has been the sole shareholder of the company.

In preparation of the Concord Management challenge of the IRA indictment, Prigozhin got himself named the director, which would give him the opportunity to claim to need to review discovery. This feels like the opposite: the creation of a figurehead who can claim to be dumb and dissociated from Prigozhin’s other efforts.

I highly doubt this well get very far (in part, because FAN would have to provide better proof than it has provided that these things are true).

A set-up to claim Facebook is conducting influence operations in Russia

Which finally brings us to where I think this is going. A First Amendment claim here in the US is unlikely to get anywhere, though it does give Russian propagandists an opportunity to claim Russia is being deplatformed by American social media along with the Nazis and terrorists.

But how Russia will use this argument within Russia is another matter. The lawsuit describes its injury, in part, in terms of a loss of access in Russia.

As of October 2018, FAN is ranked among the Top 35 most visited websites in Russia by LiveInternet, one of the largest Russian internet blogging platforms; among the Top 20 by Mail.ru, a Russian internet company which reaches approximately 86% of Russian internet users per month; and among the Top 25 by Rambler, a Russian search engine and one of the biggest Russian web portals.

Many of FAN’s subscribers are also Facebook users who for at least the past four years were able to access FAN through Facebook and who did, in fact, access FAN through Facebook.

That is, FAN is making an argument that it has lost Russian readers, not just American ones, because of Facebook’s actions.

And, in the last line of the introduction, the lawsuit uses language that (I could imagine) Russia might use in the future to accuse Facebook of conducting its own influence operations.

Facebook seeks to dictate news content based upon its own political view point thereby attempting to influence the public media coverage of internal political events in the Russian Federation.

After laying out a claim that Facebook was acting as an agent of the US government in cutting off trolls, it ends with a suggestion that Facebook’s real goal here is to influence “internal political events” within Russia.

That, I suspect, is the real purpose of this effort, setting up a future attack against Facebook operating in Russia.

Route 66 Trash Talk

Time for some sports trash talk, so let’s get hip to that California trip.

California is still burning. The death toll is now officially at 71 and the number additionally classified as missing is up to 1,011. This is an immense disaster, and there is increasing speculation that PG&E, including by PG&E itself, may have played a key role in the start of the Camp Fire. The old Route 66 ended in Santa Monica after “more than two thousand miles all the way”. In Santa Monica now, people on the beach can see the smoke of their neighbor Malibu burning to the ground. The rest of western California is faring no better and the Cal-Stanford “Big Game” has been postponed for the first time since JFK was assassinated as a result. It is not good on the coast with the most, keep them in your thoughts.

In NCAA games that will be played today, for this late in the season, there are not that many fascinating match ups. One I will be watching is Iowa State at Texas. As I noted earlier in the yeah, ISU is being led by Brock Purdy, a true freshman phenom that came from the Phoenix area. The kid is seriously good, and makes ISU a scary team since he took over the team early into the season. The game is in Austin, but Texas may have a real problem on their hands. Cinci at UCF may actually be a fair game, but big edge to currently undefeated UCF at home in Orlando. West Virginia at Oklahoma State could be pretty good. WV is clearly the favorite, but OSU is capable of getting hot and blowing up the scoreboard, so this is a potential upset special. Utah at Colorado and Arizona at Pirate Mike Leach’s Washington State Cougars are very import and games in the Pac-12 worth paying attention to. As are my Sun Devils who are up in Autzen to play the Quackers in a late night game. Autzen is a brutally tough place to play, and the Ducks almost always win there. ASU has really improved through the season, but hard to see them having enough to beat the Ducks tonight.

In the Pros, Seattle put a stake in the heart of Aaron Rodgers and the Pack on Thursday night. Close and very good game, and one Green Bay “should” have won, but the loss was catastrophic to their playoff chances. Washington at the Texans looks pretty interesting. Both teams are 6-3 and need to maintain their momentum. I’ll take the Texans at home and with Deshaun Watson starting to really blow up. Iggles are at Nawlins to visit Drew Breeeees and the Saints. Sorry Philly fans, that is too steep a mountain, and the loss puts your playoff chances in even more jeopardy than Green Bay. The Sunday Night game of Minnesota at Bears should be really good. Both teams evenly matched. But the Bears are at home, and Mitch Trubisky is on a little roll, so I’ll take the Bears in that one. The best game of the week is, of course, the Monday Night pairing of Chiefs at Rams. The game was originally scheduled to be played in Mexico City, but the turf at Stadium Azteca was just too beat up and in poor shape. So now the game is in LA, where the air quality is not the greatest currently. Yikes. No idea who wins this game, but it ought to be great. Rams have a better defense, and are at home now, so I’ll go with the Rams.

Alright, that is it for this week’s Trash. As you can tell, it is all about Route 66. It is an all time great song, and a great boogie. The early versions by Nat King Cole and The Stones are superb. But for a while now, the two versions I have loved the most are by Asleep At The Wheel and Diana Krall. So you get those two today! Happy motoring, and rock on.

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.

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!

Did Emmet Flood Mean to Create a Legal Morass, or Is He Off His Game?

As I’ve often said, Trump departed from his usual habit by hiring Emmet Flood, someone who is eminently qualified to help the President (or, as he did with Cheney, Vice President) stave off legal jeopardy from a Special Counsel or Congress. Which is why I’m trying to figure out whether the legal morass Trump created — presumably on Flood’s advice, given that Flood is serving as both the Mueller investigation White House Counsel lead and, until Pat Cipollone gets fully cleared, White House Counsel generally — by forcing Jeff Sessions’ resignation and replacing him with Matt Whitaker.

It’s not clear when Sessions’ authority ended

Start with the fact that it’s not clear when Jeff Sessions stopped acting as Attorney General. As numerous people have noted, he didn’t date the copy of his resignation letter that got released publicly.

He left DOJ in ceremonial fashion just after 5 PM on Wednesday night, which would suggest he may have remained AG until that time. If that’s right, then anything that Mueller and Rosenstein did that day would still operate under the older authority.

Indeed, DOJ issued an order under Sessions’ authority, imposing new limits on consent decrees used to reign in abusive local police departments, yesterday evening, a full day after he departed. He initialed it (dated 11/7/18), but the metadata on it shows the document wasn’t created until almost 5PM on Wednesday and was modified over a full day after that. (h/t zedster)

So he was at least still AG sometime after 4:53PM on Wednesday — and possibly well after that — or this consent decree policy is void.

Whitaker’s appointment may not be legal

Then there are the proliferating number of people — most prominently Neal Katyal and George Conway but also including John Yoo and Jed Sugarman — who believe his appointment is unconstituional.

There are two bases on which this might be true. First, the forced resignation of Jeff Sessions may in fact be a legal firing, something the House Judiciary Democrats are arguing with increasing stridency, most recently in a letter to Bob Goodlatte asking that he hold an emergency hearing on Sessions’ ouster, support legislation protecting Mueller, and join in requests for information about the ouster from the White House and DOJ. If Sessions was fired, there’s little question that Trump can only replace him with someone who is Senate confirmed.

But Katyal, Conway, and others argue that because the AG is a principal officer, whoever serves in that position must be Senate confirmed. Significantly, the Katyal/Conway argument begins by throwing what Steven Calabresi has said back at conservatives.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

This is probably why people like Yoo are joining in this argument — because if Whitaker’s appointment is legal, than a whole slew of other appointments of the kind that conservatives hate would also be legal.

Whitaker may be disabled with conflicts

Then there are Whitaker’s conflicts, which are threefold. Whitaker:

  • Repeatedly claimed that the Mueller probe was out of control, in spite of the fact he had no real information to base that on
  • Judged that Trump had neither “colluded” nor committed obstruction
  • Not only undermined the investigation, but suggested the underlying conduct — including meeting with Russians to obtain dirt on Hillary Clinton at the June 9 meeting — was totally cool
  • Served as Sam Clovis’ campaign manager in 2014; Clovis was a key player in Trump’s efforts to cozy up to the Russians in 2016 and was one of the earliest known witnesses to testify before the grand jury

CNN captures many of these statements here.

The Clovis one may be the most important. 28 CFR 45.2 requires ethics exemption or recusal if a person has a political relationship with the subject of an investigation.

[N]o employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:

(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

Defining “political relationship” to include service as a principal advisor to a candidate.

Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof;

And, as Mueller noted in their response to Andrew Miller’s appeal, recusal would amount to a “disability” that would put the DAG back in charge.

Finally, interpreting “disability” under Section 508 to include recusal makes logical and practical sense. Section 528 requires the Attorney General to recuse himself when he has a conflict of interest. Section 508 ensures that at all times an officer is heading the Department of Justice. If the Attorney General is recused, it is necessary that someone can head the Department for that investigation. It is inconceivable that Congress intended Section 508 to reach physical disability, but not to reach legal requirements that disabled the Attorney General from participating in certain matters.

Whitaker’s former company is under FBI investigation

Then there’s the news that a company for which Whitaker provided legal services is under criminal investigation.

The Federal Bureau of Investigation is conducting a criminal investigation of a Florida company accused of scamming millions from customers during the period that Matthew Whitaker, the acting U.S. attorney general, served as a paid advisory-board member, according to an alleged victim who was contacted by the FBI and other people familiar with the matter.

The investigation is being handled by the Miami office of the FBI and by the U.S. Postal Inspection Service, according to an email sent to the alleged victim last year by an FBI victim specialist. A recording on a phone line set up by the Justice Department to help victims said Friday the case remains active.

When Whitaker was subpoenaed, he blew it off.

Whitaker, named this week by President Trump as acting attorney general, occasionally served as an outside legal adviser to the company, World Patent Marketing, writing a series of letters on its behalf, according to people familiar with his role.

But he rebuffed an October 2017 subpoena from the Federal Trade Commission seeking his records related to the company, according to two people with knowledge of the case.

But the public record shows that when customers complained, Whitaker threatened them, invoking his background as a former US Attorney.

In emails uncovered by the FTC investigation, Whitaker personally threatened a customer who complained, according to a story in the Miami New Times that was picked up by other news outlets.

The emails the FTC obtained, in fact, suggests Whitaker used his background as a U.S. attorney to try to silence customers who claimed they were defrauded by the company and sought to take their complaints public.

In this case, Whitaker sent an intimidating email to a customer on August 25, 2015, who had contacted World Patent Marketing with his grievances and and filed a complaint with the Better Business Bureau.

The FTC docket reviewed by New Times contains an email exchange on page 362 of 400 that described what happened next.

Rather than expressing concern about the customer’s charge of being cheated,  Whitaker wrote him to let him know that he, Whitaker, was “a former United States Attorney for the Southern District of Illinois…Your emails and message from today seem to be an apparent attempt at possible blackmail or extortion.”

“You also mentioned filing a complaint with the Better Business Bureau and to smear WPM’s reputation online. I am assuming you know that there could be serious civil and criminal consequences for you if that is in fact what you and your ‘group’ is doing. Understand we take threats like this quite seriously…Please conduct yourself accordingly.”

This doesn’t necessarily impact the Mueller probe itself. But it suggests that Whitaker has real corruption problems that will undermine his actions as AG.

Trump and Whitaker may have spoken about the Mueller probe — and Trump is already lying about it

Shortly after Whitaker was appointed, WaPo reported that Trump told multiple people that Whitaker was “loyal” and wouldn’t recuse.

Trump has told advisers that Whitaker is loyal and would not have recused himself from the investigation, current and former White House officials said.

Then WaPo reported that Whitaker has no intention of recusing, reporting that would necessarily predate any discussion with DOJ’s ethical advisors.

Acting attorney general Matthew G. Whitaker has no intention of recusing himself from overseeing the special-counsel probe of Russian interference in the 2016 election, according to people close to him who added they do not believe he would approve any subpoena of President Trump as part of that investigation.

[snip]

On Thursday, two people close to Whitaker said he does not plan to take himself off the Russia case. They also said he is deeply skeptical of any effort to force the president’s testimony through a subpoena.

Special counsel Robert S. Mueller III has been negotiating for months with Trump’s attorneys over the terms of a possible interview of the president. Central to those discussions has been the idea that Mueller could, if negotiations failed, subpoena the president. If Whitaker were to take the threat of a subpoena off the table, that could alter the equilibrium between the two sides and significantly reduce the chances that the president ever sits for an interview.

Meanwhile, when asked today, Trump claimed (in spite of all the briefings Whitaker has attended in recent weeks) that he didn’t know him, even though he went on Fox and hailed him after the most recent attempt to use him to kill the Mueller probe.

“I don’t know Matt Whitaker,” Mr. Trump told reporters as he left Washington for a weekend trip to Paris. But the president stressed that he did know Mr. Whitaker’s reputation well, calling him “a very respected man.”

[snip]

In addition, the president’s claim that he did not know Mr. Whitaker was called into question by Mr. Trump’s own words from just about a month ago, when he said in a “Fox & Friends” interview: “I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker.”

Mr. Whitaker has also visited the Oval Office several times and is said to have an easy chemistry with the president, according to people familiar with the relationship. And the president has regarded Mr. Whitaker as his eyes and ears at the Justice Department.

As CNN notes, Whitaker seemed to have been actively plotting for his boss’ job since the NYT stupidly tried to get Rosenstein fired (which I suspect means Whitaker was a source for the NYT).

A source close to Sessions says that the former attorney general realized that Whitaker was “self-dealing” after reports surfaced in September that Whitaker had spoken with Kelly and had discussed plans to become the No. 2 at the Justice Department if Rosenstein was forced to resign.

In recent months, with his relationship with the President at a new low, Sessions skipped several so-called principals meetings that he was slated to attend as a key member of the Cabinet. A source close to Sessions says that neither the attorney general nor Trump thought it was a good idea for Sessions to be at the White House, so he sent surrogates.

Whitaker was one of them.

But Sessions did not realize Whitaker was having conversations with the White House about his future until the news broke in late September about Rosenstein.

All of this raises huge questions about whether Whitaker and Trump (or Kelly) had an agreement in place, that he would get this post (and shortly after be nominated for a judgeship in IA), so long as he would agree to kill the Mueller probe.

Debates over the legality of Whitaker’s appointment parallel challenges to Mueller’s authority

Then there’s the point I raised earlier today. If Whitaker’s appointment is legal, then so is Mueller’s, which undercuts one of the other efforts to undermine Mueller’s authority.

Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.

John Kelly’s involvement may (and I suspect does) present added conflicts

Then there’s John Kelly’s role, as someone who had a key role in the firing but whose testimony Mueller is currently pursuing (possibly via subpoena).

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.

CNN provides more context for Kelly’s role, showing him to be involved in the last attempt to install Whitaker and suggesting that Kelly consulted Trump before refusing Sessions’ request to stay through the week.

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.

[snip]

Rosenstein and [PDAAG Ed] 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.

Soon, Whitaker strode into Sessions’ office and asked to speak one-on-one to the attorney general; the others left the two men alone. It was a brief conversation. Shortly after, Sessions told his huddle that his resignation would be effective that day.

O’Callaghan had tried to appeal to Sessions, noting that he hadn’t heard back about whether the President would allow a delay. 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. Someone also reminded Sessions that the last time Whitaker played a role in a purported resignation — a few weeks earlier in September, with Rosenstein — the plan collapsed.

Sessions never heard in person from the President — the man who gained television fame for his catch-phrase “You’re fired” doesn’t actually like such confrontation and prefers to have others do the firing, people close to the President say. Kelly called Sessions a second time to tell him the President had rejected his request for a delay.

Nevertheless, a guy Mueller is trying to interview was right there in the loop, making two efforts to install someone whose sole apparent job is to undercut Mueller.

Everything Whitaker touches may turn to shit

Now, maybe Flood would still have bought off on this — though the multiple reports now claim no one at the White House knew about Whitaker’s problems suggest he may not have been in the vetting loop (because, again, he’s competent and knows the import of vetting).

But there’s one more thing to account for. Everything Whitaker touches may turn to legal shit. It’s a point Katyal and Conway make.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

This appointment could embroil DOJ in legal challenges for years, at least, as plaintiffs and defendants claim that DOJ took some action against them that can only be authorized by a legal Attorney General.

While I don’t think it’s likely, it’s possible that’s the point. As I noted earlier, on Thursday Mueller’s team seemed to be staking a claim that they can continue to operate as they have been.

But their authority, or at least Mueller’s and the others who aren’t AUSAs temporarily reassigned to Mueller, all stems from a legally valid Attorney General or Acting one. If Mueller continues to operate while the legally problematic Whitaker claims to authorize them, what does that do for their actions?

That may be why the DC Circuit wants more (public) briefing on this question in the Andrew Miller case. By appointing a totally inappropriate AG, Trump might just be pursuing his longterm strategy of chaos.

Is this Don McGahn’s last fuck-up?

This entire post is premised on two things: first, that Emmet Flood is among the rare people in Trump’s orbit who is very competent. It also assumes that because both these issues — White House Counsel until Cipollone takes over, and White House Counsel in charge of protecting Trump from the Mueller investigation — would fall solidly in Flood’s portfolios, he would have a significant role in the plot.

Perhaps not. Federalist Society’s Leonard Leo is claiming (in a CNN report that should be read in its entirety) he worked on the plan with Don McGahn.

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.

So maybe this scheme was, instead, planned out by Don McGahn (who has been officially gone since October 17).

But that would raise questions of its own — notably, why this plan was on ice for so long. And why Flood wasn’t in the loop (and why the White House continues to neglect the most basic vetting of people they put in charge of huge parts of our government).

I expect basic competence out of Emmet Flood. But this whole scheme could only be judged competent if the point was to totally discredit anything DOJ does, including but not limited to the Mueller probe.

Why Are We Still Talking about Randy Credico?

And with the election done (and some big successes in MI), we resume our regularly scheduled Russian investigation.

Yesterday, the WaPo reported that the two Stone associates who, it reported on October 21, claimed they could corroborate Roger Stone’s claim that Randy Credico was his go-between with WikiLeaks have testified to the grand jury.

Two Stone associates, filmmaker David Lugo and attorney Tyler Nixon, also told The Post that Credico acknowledged in conversations last year being the source of material for Stone’s statements and tweets about WikiLeaks.

Nixon said he would be willing to testify before the grand jury about a dinner at which Credico fretted that his liberal friends would be displeased that he was a source for the arch-conservative Stone. Lugo provided The Post with text messages in which Credico said: “I knew Rodger [sic] was going to name me sooner or later and so I told you that I’m the so-called back Channel.”

Chuck Ross had more details (first) about Nixon’s interaction with the FBI and Mueller’s team.

I feel about this reporting the same way I feel about the Roger Stone stories generally: that virtually all of the reporting is missing the point of what Mueller is looking at. Indeed, the far more interesting detail in the WaPo report is that Jerome Corsi (who, remember, said that he avoided legal exposure with something related to Stone) has spent weeks chatting with Mueller’s team.

Separately, conservative writer Jerome Corsi was interviewed by investigators over three days last week and appears to be emerging as a key witness in the Mueller investigation into Stone’s activities.

In an appearance on his live-streamed Internet show Monday, Corsi told viewers that he has been in near-continuous contact with Mueller’s team in recent weeks.

“It’s been two months, on a really constant basis in the Mueller investigation. It’s been one of the biggest pushes of my life,” said Corsi, who added that he could provide no specifics of his interactions with Mueller.

As I’ve laid out here, Corsi spoke with Stone on what appears to be a critical day in August 2016, and then posted an attack on John Podesta that preceded, but seemed to anticipate, the release of his stolen emails in October 2016.

So Corsi knows (or at least has non-falsifiable information about) the real story, whereas Credico still feels like a failed cover story for Stone.

Which is why (as always) I’m more interested in the timeline of all this than what Lugo and Nixon had to say (and I agree with Credico’s attorney that their stories don’t actually refute what Credico has said).

Jerome Corsi was first interviewed by Mueller’s team on September 6, in what he hoped would be an interview that staved off a grand jury appearance the next day, the same day as Credico’s appearance. Not only did the interview not satisfy Mueller, they called him back to the grand jury on September 21, and (according to Corsi) he has remained in close contact with Mueller’s team since — and he doesn’t seem that bothered by that.

Meanwhile, when the WaPo initially reported that Lugo claimed he could undermine Credico’s claims that he was not Stone’s back channel, he had already testified, two days earlier on October 19 (meaning Mueller found him themselves, which makes sense because he communicated directly with Credico). But Mueller only contacted Nixon after the WaPo story — perhaps because his public comments eliminated any question that he would involve attorney-client privilege or perhaps because they didn’t know about him beforehand. He was interviewed on October 26, then testified before the grand jury November 2, last Friday.

Nixon rather ostentatiously told the always credulous Ross that he offered up his willingness to Stone to go to the press about the November 2017 dinner.

He also said Stone did not pressure him to speak to the media or testify before the grand jury.

“Never once did he ever prompt me on anything,” Nixon said of Stone. “I voluntarily said ‘You know Roger, I know that we had this dinner.’”

Which may be how and why WaPo learned about him and Lugo, as he attempts to undermine the story against him.

Between the two of them, however, they show only that Credico referred to himself as the back channel in spring 2017 and then showed hesitancy — when he was being subpoenaed by the House to testify about just that issue — to be public identified as Stone’s source in November 2017. Yet Stone forced that issue by publicly IDing Credico as his source after he was subpoenaed.

Stone’s story — his attribution to learning that Wikileaks had emails from Hillary’s server on July 25 and then vaguely his other WikiLeaks knowledge to Credico — still doesn’t explain his actions in August 2016. And that happens to be the area that Corsi does know about, and is surely one of the topics he has spent two months explaining to Mueller.

Corsi, of course, during the same spring 2017 period when Credico was talking about being IDed as Stone’s source, offered up an explanation for Stone’s comments, an explanation that didn’t make sense at the time.

Mueller is not interviewing witnesses to test Credico’s story about whether he really was Stone’s go-between. He’s interviewing witnesses to learn about Stone crafted a cover story that still makes no sense.

What the Watergate Road Map Might Say about a Mueller Road Map

In an interview last week, Rudy Giuliani explained that Trump had finished the open book test Mueller had given the President, but that they were withholding the answers until after tomorrow’s election, after which they’ll re-enter negotiations about whether Trump will actually answer questions on the Russian investigation in person or at all.

“I expect a day after the election we will be in serious discussions with them again, and I have a feeling they want to get it wrapped up one way or another.”

Meanwhile, one of the first of the post-election Administration shake-up stories focuses, unsurprisingly, on the likelihood that Trump will try to replace Jeff Sessions and/or Rod Rosenstein (though doesn’t headline the entire story “Trump set to try to end Mueller investigation,” as it should).

Some embattled officials, including Attorney General Jeff Sessions, are expected to be fired or actively pushed out by Trump after months of bitter recriminations.

[snip]

Among those most vulnerable to being dismissed are Sessions and Deputy Attorney General Rod J. Rosenstein, who is overseeing special counsel Robert S. Mueller III’s Russia investigation after Sessions recused himself. Trump has routinely berated Sessions, whom he faults for the Russia investigation, but he and Rosenstein have forged an improved rapport in recent months.

As I note in my TNR piece on the subject, there are several paths that Trump might take to attempt to kill the Mueller investigation, some of which might take more time and elicit more backlash. If Trump could convince Sessions to resign, for example, he could bring in Steven Bradbury or Alex Azar to replace him right away, meaning Rosenstein would no longer be Acting Attorney General overseeing Mueller, and they could do whatever they wanted with it (and remember, Bradbury already showed himself willing to engage in legally suspect cover-ups in hopes of career advancement with torture). Whereas firing Rosenstein would put someone else — Solicitor General Noel Francisco, who already obtained an ethics waiver for matters pertaining to Trump Campaign legal firm Jones Day, though it is unclear whether that extends to the Mueller investigation — in charge of overseeing Mueller immediately.

This may well be why Rudy is sitting on Trump’s open book test: because they’ve gamed out several possible paths depending on what kind of majority, if any, Republicans retain in the Senate (aside from trying to defeat African American gubernatorial candidates in swing states, Trump has focused his campaigning on retaining the Senate; FiveThirtyEight says the two most likely outcomes are that Republicans retain the same number of seats or lose just one, net). But they could well gain a few seats. If they have the numbers to rush through a Sessions replacement quickly, they’ll fire him, but if not, perhaps Trump will appease Mueller for a few weeks by turning in the answers to his questions.

That’s the background to what I focused on in my TNR piece last week: the Mueller report that Rudy has been talking about incessantly, in an utterly successful attempt to get most journalists covering this to ignore the evidence in front of them that Mueller would prefer to speak in indictments, might, instead, be the failsafe, the means by which Mueller would convey the fruits of his investigation to the House Judiciary Committee if Trump carries out a Wednesday morning massacre. And it was with that in mind that I analyzed how the Watergate Road Map served to do just that in this post.

In this post, I’d like to push that comparison further, to see what — if Mueller and his Watergate prosecutor James Quarles team member are using the Watergate precedent as a model — that might say about Mueller’s investigation. I’ll also lay out what a Mueller Road Map, if one awaits a Wednesday Morning Massacre in a safe somewhere, might include.

The Watergate prosecutors moved from compiling evidence to issuing the Road Map in just over six months

As early as August 1973, George Frampton had sent Archibald Cox a “summary of evidence” against the President. Along with laying out the gaps prosecutors had in their evidence about about what Nixon knew (remember, investigators had only learned of the White House taping system in July), it noted that any consideration of how his actions conflicted with his claims must examine his public comments closely.

That report paid particular attention to how Nixon’s White House Counsel had created a report that created a transparently false cover story. It described how Nixon continued to express full confidence in HR Haldeman and John Ehrlichman well after he knew they had been involved in the cover-up. It examined what Nixon must have thought the risks an investigation posed.

The Archives’ Road Map materials show that in the same 10 day period from January 22 to February 1, 1974 when the Special Prosecutor’s office was negotiating with the President’s lawyers about obtaining either his in-person testimony or at least answers to interrogatories, they were also working on a draft indictment of the President, charging four counts associated with his involvement in and knowledge of the bribe to Howard Hunt in March 1973. A month later, on March 1, 1974 (and so just 37 days after the time when Leon Jaworski and Nixon’s lawyers were still discussing an open book test for that more competent president), the grand jury issued the Road Map, a request to transmit grand jury evidence implicating the President to the House Judiciary Committee so it could be used in an impeachment.

Toto we’re not in 1974 anymore … and neither is the President

Let me clear about what follows: there’s still a reasonable chance Republicans retain the House, and it’s most likely that Republicans will retain the Senate. We’re not in a position where — unless Mueller reveals truly heinous crimes — Trump is at any imminent risk of being impeached. We can revisit all this on Wednesday after tomorrow’s elections and after Trump starts doing whatever he plans to do in response, but we are in a very different place than we were in 1974.

So I am not predicting that the Mueller investigation will end up the way the Watergate one did. Trump has far less concern for his country than Nixon did — an observation John Dean just made.

And Republicans have, almost but not quite universally, shown little appetite for holding Trump to account.

So I’m not commenting on what will happen. Rather, I’m asking how advanced the Mueller investigation might be — and what it may have been doing for the last 18 months — if it followed the model of the Watergate investigation.

One more caveat: I don’t intend to argue the evidence in this thread — though I think my series on what the Sekulow questions say stands up really well even six months later. For the rest of this post, I will assume that Mueller has obtained sufficient evidence to charge a conspiracy between Trump’s closest aides and representatives of the Russian government. Even if he doesn’t have that evidence, though, he may still package up a Road Map in case he is fired.

Jaworski had a draft indictment around the same time he considered giving Nixon an open book test

Even as the Watergate team was compiling questions they might pose to the President if Jaworski chose to pursue that route, they were drafting an indictment.

If the Mueller investigation has followed a similar path, that means that by the time Mueller gave Trump his open book test in October, he may have already drafted up an indictment covering Trump’s actions. That’s pretty reasonable to imagine given Paul Manafort’s plea deal in mid-September and Trump’s past statements about how his former campaign manager could implicate him personally, though inconsistent with Rudy’s claims (if we can trust him) that Manafort has not provided evidence against Trump.

Still, if the Jaworski Road Map is a guide, then Mueller’s team may have already laid out what a Trump indictment would look like if you could indict a sitting President. That said, given the complaints that DOJ had drafted a declination with Hillary before her interview, I would assume they would keep his name off it, as the Watergate team did in editing the Nixon indictment.

Then, a month after drawing up a draft indictment, Jaworski’s grand jury had a Road Map all packaged up ready to be sent to HJC.

Another crucial lesson of this comparison: Jaworksi did not wait for, and did not need, testimony from the President to put together a Road Map for HJC. While I’m sure he’ll continue pursuing getting Trump on the record, there’s no reason to believe Mueller needs that to provide evidence that Trump was part of this conspiracy to HJC.

Given that I think a Mueller report primarily serves as a failsafe at this point, I would expect that he would have some version of that ready to go before Wednesday. And that’s consistent with the reports — enthusiastically stoked by the President’s lawyers — that Mueller is ready to issue his findings.

If a Mueller report is meant to serve as a Road Map for an HJC led by Jerrold Nadler starting in January, then it is necessarily all ready to go (and hopefully copied and safely stored in multiple different locations), even if it might be added to in coming months.

The Road Map Section I included evidence to substantiate the the conspiracy

As I laid out here, the Watergate Road Map included four sections: 

I. Material bearing on a $75,000 payment to E. Howard Hunt and related events

II. Material bearing on the President’s “investigation”

III. Material bearing on events up to and including March 17, 1973

IV. The President’s public statements and material before the grand jury related thereto

The first section maps very closely to the overt acts laid out in the February 1 draft indictment, incorporating two acts into one and leaving off or possibly redacting one, but otherwise providing the grand jury evidence — plus some interim steps in the conspiracy — that Jaworski would have used to prove all the overt acts charged in the conspiracy charge from that draft indictment.

If Mueller intended to charge a quid pro quo conspiracy — that Trump accepted a Russian offer to drop dirt, possibly emails explicitly, in response for sanctions relief (and cooperation on Syria and other things) — then we could imagine the kinds of overt acts he might use to prove that:

  • Foreknowledge of an offer of dirt and possibly even emails (Rick Gates and Omarosa might provide that)
  • Trump involvement in the decision to accept that offer (Paul Manafort had a meeting with Trump on June 7, 2016 that might be relevant, as would the immediate aftermath of the June 9 meeting)
  • Trump signaling that his continued willingness to deliver on the conspiracy (as early as the George Papadopoulos plea, Mueller laid out some evidence of this, plus there is Trump’s request for Russia to find Hillary emails, which Mueller has already shown was immediately followed by intensified Russian hacking attempts)
  • Evidence Russia tailored releases in response to Trump campaign requests (Roger Stone may play a key role in this, but Mueller appears to know that Manafort even more explicitly asked Russia for help)
  • Evidence Trump moved to pay off his side of the deal, both by immediately moving to cooperate on Syria and by assuring Russia that the Trump Administration would reverse Obama’s sanctions

Remember, to be charged, a conspiracy does not have to have succeeded (that is, it doesn’t help Trump that he hasn’t yet succeeded in paying off his debt to Russia; it is enough that he agreed to do so and then took overt acts to further the conspiracy).

In other words, if Mueller has a Road Map sitting in his safe, and if I’m right that this is the conspiracy he would charge, there might be a section that included the overt acts that would appear in a draft indictment of Trump (and might appear in an indictment of Trump’s aides and spawn and the Russian representatives they conspired with), along with citations to the grand jury evidence Mueller has collected to substantiate those overt acts.

Note, this may explain whom Mueller chooses to put before the grand jury and not: that it’s based off what evidence Mueller believes he would need to pass on in sworn form to be of use for HJC, to (among other things) help HJC avoid the protracted fights over subpoenas they’ll face if Democrats do win a majority.

The Road Map Section II described how the White House Counsel tried to invent a cover story

After substantiating what would have been the indictment against Nixon, the Watergate Road Map showed how Nixon had John Dean and others manufacture a false exonerating story. The Road Map cited things like:

  • Nixon’s public claims to have total confidence in John Dean
  • Nixon’s efforts to falsely claim to the Attorney General, Richard Kleindienst, that former AG John Mitchell might be the most culpable person among Nixon’s close aides
  • Nixon’s instructions to his top domestic political advisor, John Ehrlichman, to get involved in John Dean’s attempts to create an exculpatory story
  • Press Secretary Ron Ziegler’s public lies that no one knew about the crime
  • Nixon’s efforts to learn about what prosecutors had obtained from his close aides
  • Nixon’s private comments to his White House Counsel to try to explain away an incriminating comment
  • Nixon’s ongoing conversations with his White House Counsel about what he should say publicly to avoid admitting to the crime
  • Nixon’s multiple conversations with top DOJ official Henry Petersen, including his request that Peterson not investigate some crimes implicating the Plumbers
  • Nixon’s orders to his Chief of Staff, HR Haldeman, to research the evidence implicating himself in a crime

This is an area where there are multiple almost exact parallels with the investigation into Trump, particularly in Don McGahn’s assistance to the President to provide bogus explanations for both the Mike Flynn and Jim Comey firings — the former of which involved Press Secretary Sean Spicer and Chief of Staff Reince Priebus, the latter of which involved Trump’s top domestic political advisor Stephen Miller. There are also obvious parallels between the Petersen comments and the Comey ones. Finally, Trump has made great efforts to learn via Devin Nunes and other House allies what DOJ has investigated, including specifically regarding the Flynn firing.

One key point about all this: the parallels here are almost uncanny. But so is the larger structural point. These details did not make the draft Nixon indictment. There were just additional proof of his cover-up and abuse of power. The scope of what HJC might investigate regarding presidential abuse is actually broader than what might be charged in an indictment.

The equivalent details in the Mueller investigation — particularly the Comey firing — have gotten the bulk of the press coverage (and at one point formed a plurality of the questions Jay Sekulow imagined Mueller might ask). But the obstruction was never what the case in chief is, the obstruction started when Trump found firing Flynn to be preferable to explaining why he instructed Flynn, on December 29, to tell the Russians not to worry about Obama’s sanctions. In the case of the Russia investigation, there has yet to be an adequate public explanation for Flynn’s firing, and the Trump team’s efforts to do so continue to hint at the real exposure the President faces on conspiracy charges.

In other words, I suspect that details about the Comey firing and Don McGahn’s invented explanations for it that made a Mueller Road Map might, as details of the John Dean’s Watergate investigation did in Jaworski’s Road Map, as much to be supporting details to the core evidence proving a conspiracy.

The Road Map Section III provided evidence that Nixon knew about the election conspiracy, and not just the cover-up

The third section included some of the most inflammatory stuff in Jaworski’s Road Map, showing that Nixon knew about the campaign dirty tricks and describing what happened during the 18 minute gap. Here’s where I suspect Jaworski’s Road Map may differ from Mueller’s: while much of this section provides circumstantial evidence to show that the President knew about the election crimes ahead of time, my guess is (particularly given Manafort’s plea) that Mueller has more than circumstantial evidence implicating Trump. In a case against Trump, the election conspiracy — not the cover-up, as it was for Nixon — is the conspiracy-in-chief that might implicate the President.

The Road Map Section III described Nixon’s discussions about using clemency to silence co-conspirators

One other area covered by this section, however, does have a direct parallel: in Nixon’s discussions about whether he could provide clemency to the Watergate defendants. With both Flynn and Manafort cooperating, Mueller must have direct descriptions of Trump’s pardon offers. What remains to be seen is if Mueller can substantiate (as he seems to be trying to do) Trump willingness to entertain any of the several efforts to win Julian Assange a pardon. There’s no precedent to treat offering a pardon as a crime unto itself, but it is precisely the kind of abuse of power the founders believed merited impeachment. Again, it’s another thing that might be in a Mueller Road Map that wouldn’t necessarily make an indictment.

The Road Map Section IV showed how Nixon’s public comments conflicted with his actions

We have had endless discussions about Trump’s comments about the Russian investigation on Twitter, and even by March, at least 8 of the questions Sekulow imagined Mueller wanted to ask pertained to Trump’s public statements.

  • What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
  • What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
  • What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
  • What was the purpose of your May 12, 2017, tweet?
  • What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
  • What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
  • What was the purpose of your July 2017 criticism of Mr. Sessions?
  • What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

The Watergate Road Map documents a number of public Nixon comments that, like Trump’s, are not themselves criminal, but are evidence the President was lying about his crimes and cover-up. The Watergate Road Map describes Nixon claiming that:

  • He did not know until his own investigation about efforts to pay off Watergate defendants
  • He did not know about offers of clemency
  • He did not know in March 1973 there was anything to cover up
  • His position has been to get the facts out about the crime, not cover them up
  • He ordered people to cooperate with the FBI
  • He had always pressed to get the full truth out
  • He had ordered legitimate investigations into what happened
  • He had met with Kleindienst and Peterson to review what he had learned in his investigation
  • He had not turned over evidence of a crime he knew of to prosecutors because he assumed Dean already had
  • He had learned more about the crimes between March and April 1973

Admittedly, Trump pretended to want real investigations — an internal investigation of what Flynn had told the FBI, and an external investigation into the election conspiracy — for a much briefer period than Nixon did (his comments to Maria Bartiromo, which I covered here, and Lester Holt, which I covered here, are key exceptions).

Still, there are a slew of conflicting comments Trump has made, some obviously to provide a cover story or incriminate key witnesses, that Mueller showed some interest in before turning in earnest to finalizing the conspiracy case in chief. A very central one involves the false claims that Flynn had said nothing about sanctions and that he was fired for lying to Mike Pence about that; probably at least 7 people knew those comments were false when Sean Spicer made them.  Then there are the at least 52 times he has claimed “No Collusion” or the 135 times he has complained about a “Witch Hunt” on Twitter.

Trump’s lawyers have complained that his public comments have no role in a criminal investigation (though the likelihood he spoke to Putin about how to respond as the June 9 meeting story broke surely does). But Mueller may be asking them for the same reason they were relevant to the Watergate investigation. They are evidence of abuse of power.

The Road Map included the case in chief, not all the potential crimes

Finally, there is one more important detail about the Road Map that I suspect would be matched in any Mueller Road Map: Not all the crimes the Special Prosecutor investigated made the Road Map. The Watergate team had a number of different task forces (as I suspect Mueller also does). And of those, just Watergate (and to a very limited degree, the cover-up of the Plumbers investigation) got included in the Road Map.

Here, we’ve already seen at least one crime get referred by Mueller, Trump’s campaign payoffs. I’ve long suggested that the Inauguration pay-to-play might also get referred (indeed, that may be the still-active part of the grand jury investigation that explains why SDNY refuses to release the warrants targeting Michael Cohen). Mueller might similarly refer any Saudi, Israeli, and Emirate campaign assistance to a US Attorney’s office for investigation. And while it’s virtually certain Mueller investigated the larger network of energy and other resource deals that seem to be part of what happened at the Seychelles meetings, any continuing investigation may have been referred (indeed, may have actually derived from) SDNY.

In other words, while a Mueller Road Map might include things beyond what would be necessary for a criminal indictment, it also may not include a good number of things we know Mueller to have examined, at least in passing.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

A Roadmap to the Nixon and/or Mueller Roadmap

The other day, I noted that the Roadmap being FOIAed by Ben Wittes and friends and previously FOIAed by Geoffrey Shepard might serve as a guide, of sorts, for the kind of report Robert Mueller might write such that it could easily be shared with the House Judiciary Committee, particularly in case Mueller got fired.

This week, the National Archives released all parts of the road map they’ve been able to map to previously public items; the FOIAs continue for the grand jury materials not previously released. Lawfare did this post on what got released.

I’m going to lay out what got released. Some of this had already been released, but in this post I’m going to lay out how it all relates together, with an eye towards what we know is going on in the Mueller investigation right now. My treatment here is not in the order that NARA has released them; I’ve rearranged them to show how the Special Prosecutor kept a running memo of what evidence there was against Nixon, which led to an attempt to get Nixon’s testimony, which led to a draft indictment, which led to the Road Map packaging up the evidence behind the indictment to send to the House Judiciary Committee.

I’m not going to deal with the negotiations on the grand jury materials; I may return to that in the future. My goal here is to show how investigative materials — including some that were not evidence of a crime but were evidence of Presidential bad faith — got packaged up to send to the House Judiciary Committee. I’ll do a follow-up post with more observations on what this might tell us, if Mueller is following this road map.

Summary of Evidence (Draft 2, Prepared for Archibald Cox in August 1973, earlier June 7, 1973 memo)

Starting in June 1973, before Cox was fired, he started pulling together all the evidence against Nixon.

This draft memo from August 1973 includes examples of Nixon’s evolving story about whether he knew of CREEP and the break-in in advance, about efforts to impede the FBI investigation (including by calling Patrick Gray to weigh in), about offers of clemency, all of which are similar to what I’m sure Mueller has about Trump’s knowledge in real time of the Russian operation.

The memo lays out what circumstantial evidence there is to support he did have foreknowledge, in some cases referencing the evidence directly, in others pointing to where the evidence would be. At one point it states the old adage, “what did the President know and when did he know it,” this way: “it would be important to know whether, and precisely when, the President may have known about the payoffs.” It clearly labels what is supposition or circumstantial and in places describes what would need to be established to substantiate foreknowledge of something.

The evidence cited includes grand jury testimony, Senate testimony, paperwork, and the press (for witnesses’ public claims). As evidence of some things, it describes “discrepancies between his public statements urging a full investigation and claiming such an investigation had been conducted, and the President’s actual failure to cause a thorough investigation to be made or assure that one was being made.” (33)

We joke about Mueller having a file of all Trump’s incriminating tweets, but a memo like this is probably how the Mueller team keeps running track of what solid evidence, circumstantial evidence, and exculpatory evidence against Trump they have.

Summary of Evidence August 24, 1973, adding Plumbers, Dirty Tricks, ITT, and Campaign Contributions

This is a finalized version of the above with a cover memo giving credit to the people who worked on each section.

Communications regarding Nixon’s testimony

There are three subsections here, without an introduction. I’ll deal with them out of order.

C. Communications of the Special Prosecutor’s Office

The more interesting part of these communications, for current purposes, show the Special Prosecutor’s Office negotiating for Nixon’s testimony and considering whether to present interrogatories — what I call an open book test — to him. These are the kinds of negotiations we know to be going on right now between Mueller’s team and Trump, surely using some of the very same arguments.

While by January 29, 1974, the Special Prosecutor had decided against giving Nixon questions to answer under oath, the correspondence does include efforts to get each of the task forces (note, Mueller’s team appears to be organized into task forces as well) to come up with the interrogatories they would pose to the President in January 1974, as in these questions about investigations of people on Nixon’s enemies list.

We just have the interrogatories from two task forces, which amount to around 31 questions. Remember that by March, Mueller’s team already had over 40 questions for Trump, though they had not, as far as we know, yet presented them as formal interrogatories to him. Trump has reportedly finished the interrogatories Mueller gave him, but he’s sitting on them until after Tuesday’s election.

Starting in September 1974, the Special Prosecutor paperwork turns to obtaining Nixon’s testimony, leading through the generation of questions for ultimate his 1975 questioning.

A. Communication from the Grand Jury to Nixon

Then there are communications from the grand jury to Nixon, both in this early 1974 period and in 1975 when they actually did get his testimony. Most remarkably, on January 30, 1974 (the day after the Special Prosecutor had given up on interrogatories), the foreperson, Vladimir Pregelj, wrote Nixon describing why they needed his testimony. Note how he describes that prosecutors would soon make recommendations about “major phases of our investigation.”

B. Nixon’s communications with the Special Prosecutor

Finally, there is Nixon’s side of the communications with the Special Prosecutor’s office, including their explanation in September 1974 of why Nixon could never get a fair trial. This correspondence is less interesting (to me, at least), but Rudy Giuliani has probably used some of it to model his memo of why Trump shouldn’t be investigated.

Draft Indictment of the President, February 1, 1974

As much as anything else, I’m fascinated by the date of the indictment Jaworski’s team drafted: February 1, 1974. This shows that shortly after giving up on the idea of presenting interrogatories to Nixon, two days after the jury foreperson said the Special Prosecutor would soon present recommendations to the grand jury, and at a time when the Special Prosecutor was still fighting the President’s lawyer’s efforts to avoid testifying, Jaworski’s team had a draft indictment.

The indictment charged four crimes — bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation. While it was originally titled US v. Nixon, an edit suggested it should be In Re June 5, 1972 Grand Jury, the investigation actually obstructed.

On top of introducing Nixon and the FBI, the introduction of the indictment describes the burglary the investigation of which Nixon obstructed. Then, Count One uses five paragraphs to describe generally how the conspiracy worked. Paragraph 11 lays out three actions Nixon took on March 21, 22, and 23, 1973 (basically, ordering payment to Howard Hunt). Then paragraph 12 and a series of numbered paragraphs thereafter lay out the 9 overt acts behind the conspiracy.

  1. March 16: Hunt meets with O’Brien
  2. March 21: Dean meets with Nixon
  3. March 21: Nixon meets with Dean and Haldeman and instructs bribe to Hunt be paid [handwritten marginal note to add conversation with Mitchell]
  4. March 21: LaRue provides messenger cash for Bittman
  5. March 21: Nixon meets with Dean, Haldeman, and Ehrlichman and instructs Dean to write up report on Watergate
  6. March 22: Mitchell tells Dean, Haldeman, and Ehrlichman that Hunt’s money problem has been taken care of
  7. March 22: Nixon meets with Dean, Haldeman, Ehrlichman, and Mitchell and again discuss Dean writing up report on Watergate
  8. March 22: Ehrlichman tells Krogh that Mitchell has taken care of Hunt’s testimony
  9. March 23: Haldeman tells Dean to prepare report on Watergate

The remaining Counts restate the underlying act — bribing Hunt — and tie it to the other crimes.

There are an additional 9 redacted pages that were deemed protected grand jury materials (this stuff might get unsealed depending on the outcome of an appeal before the DC Circuit right now).

The Road Map

The Road Map was filed under seal on March 1, 1974 (that is, just a month after Jaworski’s office gave up on interrogatories from the President and drafted an indictment against him). It includes an introduction, then an elaboration of the overt acts from the draft indictment, with the connecting steps between them, as follows (I’ve kept the overt acts from the indictment in bold):

  1. March 16: Hunt meets with O’Brien (cites 3 grand jury transcript passages)
  2. March 19: O’Brien meets with Dean (cites Dean grand jury transcript and visitor log)
  3. March 19: Dean means with Ehrlichman about Hunt (cites two grand jury excerpts)
  4. March 20: Dean talks to Mitchell about Hunt (cites tape recording and Dean grand jury)
  5. March 21: Dean meets with Nixon, then with Dean and Haldeman and instructs bribe to Hunt be paid [note this combines overt acts 5 and 6 from the indicment] (includes extensive description of the meeting, cites two recordings of meeting)
  6. March 21: Haldeman talks to Mitchell (cites two grand jury excerpts and Haldeman’s phone log)
  7. March 21: Mitchell talks to LaRue (cites LaRue’s grand jury)
  8. March 21: Haldeman meets with Ehrlichman and Dean about how to handle things (cites meeting logs, recording, grand jury)
  9. March 21: Nixon meets with Dean, Haldeman, and Ehrlichman to discuss how to handle things (cites recording)
  10. March 21: LaRue provides messenger cash for Bittman (cites five grand jury witnesses and seven exhibits)
  11. March 22: Mitchell tells Dean, Haldeman, and Ehrlichman that Hunt’s money problem has been taken care of [note indictment overt act 5 — the first meeting about the report — is taken out of this chronology] (cites grand jury testimony of all three)
  12. March 22: Nixon meets with Dean, Haldeman, Ehrlichman, and Mitchell and again discuss Dean writing up report on Watergate which Nixon can later “rely” on (cites tape recording and Haldeman’s notes)
  13. March 22: Ehrlichman tells Krogh that Mitchell has taken care of Hunt’s testimony (cites Krogh grand jury testimony)
  14. Redacted [note Haldeman order to Dean would appear here in chronology]

From there, the road map includes a bunch of stuff not included in the indictment:

15 through 28: Nixon’s attempts at a cover-up

29 through 43: Nixon’s foreknowledge of dirty tricks and the coverup up to March 17, including the missing 18 minutes, and immediate response to Watergate, including offers of pardons

44 through 53: Nixon’s lies about wanting an investigation

 

US Government Reveals It Has Video Evidence of Joshua Schulte Sharing Classified Information as Ecuador Restricts Assange’s Legal Visits

In a letter sent Thursday to Paul Crotty, the judge in the case of alleged Vault 7 WikiLeaks source, Joshua Schulte, prosecutors described the investigation conducted when, “in or about early October 2018,” they discovered he had been communicating clandestinely with third parties outside of the Metropolitan Corrections Center, where he has been held since December. They described discovering a truly stupendous amount of communications gear to store in a jail cell, amounting to multiple cell phones and other devices, from which Schulte was running 13 email and social media accounts.

In or about early October 2018, the Government learned that Schulte was using one or more smuggled contraband cellphones to communicate clandestinely with third parties outside of the MCC. The Government and the FBI immediately commenced an investigation into Schulte’s conduct at the MCC. That investigation involved, among other things, the execution of six search warrants and the issuance of dozens of grand jury subpoenas and pen register orders. Pursuant to this legal process, in the weeks following the Government’s discovery of Schulte’s conduct at the MCC, the FBI has searched, among other things, the housing unit at the MCC in which Schulte was detained; multiple contraband cellphones (including at least one cellphone used by Schulte that is protected with significant encryption); approximately 13 email and social media accounts (including encrypted email accounts); and other electronic devices.

Now, the prosecutors use that word “encrypted” twice, as if it means extra spooky, but these days, a cellphone with significant encryption could mean an iPhone (though in jail Schulte might be able to get state of the art spook or crook phones) and “encrypted email accounts” often means ProtonMail.

In any case, that’s a whole lot of legal process for a one month investigation of someone sitting in a jail cell (Schulte was moved to solitary when the investigation started on October 1), but then Schulte allegedly had a shit-ton of hardware. The 6 search warrants were presumably used for Schulte’s devices, and the “dozens of grand jury subpoenas and pen registers” would probably have been used for those email and social media accounts, perhaps with both used for each account (I have a working theory that for encrypted comms it may take more than one pen register to get the data).

Schulte was using all this hardware and software, according to the prosecutors, to — among other things — do two things: send details about the search warrants to investigate him, as well as yet more classified information, to third parties.

As a result of these searches and other investigative steps, the Government discovered that Schulte had, among other things, (i) transmitted classified information to third parties, including by using an encrypted email account, and (ii) transmitted the Protected Search Warrant Materials to third parties in direct contravention of the Court’s Protective Order and the Court’s statements at the May 21 conference.

The prosecutors included a superseding indictment with their letter, adding two extra counts to his already life sentence-threatening indictment: a new Count Eleven, which is contempt of court for blowing off the protective order covering his search warrant starting in April, and a new Count Four, which is another count of transmitting and attempting to transmit unlawfully possessed national defense information (793(e)) during the period he has been in MCC.

With regards to Count Eleven, on Monday a letter Schulte sent to Judge Crotty that was uploaded briefly to PACER (I believe this is the third time Schulte has succeeded in getting such letters briefly uploaded to the docket), revealing that he had been moved to solitary, but also complaining about corrections the government had made to his original search warrant:

I beg you Judge Crotty to read the first search warrant affidavit and the government’s Brady letter; the FBI outright lied in that affidavit and now acknowledge roughly half of these lies. Literally, they [sic] “error” on seeing dates of 3/7 where there were only 3/2 dates and developing their entire predicate based on fallacious reasoning and lies. They “error” in seeing three administrators where there were “at least 5” (ie. 10). They [sic] “error” in where the C.I. was stolen who had access, and how it could be taken — literally everything.

While I absolutely don’t rule out the government either focused on Schulte back in March 2017 for reasons not disclosed in the search warrant application, or that they parallel constructed the real reasons badly (both of which would be of significant interest, but both of which his very competent public defender can deal with), the docket suggests the Vault 7 case against him got fully substantiated after the porn case, perhaps because of the stuff he did last year on Tor that got him jailed in the first place. As I noted, that Tor activity closely followed one of Julian Assange’s more pubic extortion attempts using the Vault 8 material Schulte is accused of sharing, though Assange has made multiple private extortion attempts both before and since.

Which brings me to the second new charge, transmitting and attempting to transmit national defense information to a third party, with a time span of December 2017 to October 2018. Effectively, the government claims that even after Schulte was jailed last December, he continued to share classified information.

I’m particularly interested in the government’s use of “attempted” in that charge, not used elsewhere. The time period they lay out, after all, includes a period when Ecuador restricted Julian Assange’s communication. Effectively, the government revealed on Wednesday that they have video evidence of Schulte sharing classified information with … someone.

Meanwhile, in the Ecuadoran embassy in London, things have been heating up between Assange and his hosts.

About halfway through the period after which Schulte had been put into solitary so the government could investigate a bunch of communications devices they claim they didn’t know about before around October 1, Ecuador announced what seemed to be a relaxation of restrictions on Assange, but actually was more of an ultimatum. He could have visitors, but first they’d have to apply 3 days in advance and supply their social media handles and identifying details for any devices they wanted to bring with them. Assange, too, has to register all his devices, and only use Ecuador’s wifi. If anyone uses unapproved devices, they’ll be deemed a security threat to Ecuador under the protection of the UK, basically giving the UK reason to prosecute them to protect Ecuador. Assange has to have regular medical exams; if he has a medical emergency, he’ll be treated off site. Starting on December 1, he has to start paying for food and other supplies. He has to start cleaning up the joint. He has to start taking care of his cat.

Assange immediately sued over the new rules. But he lost that suit on Monday. But even as he appeals that verdict, according to Courage Foundation, Ecuador has restricted even legal visits, something that hadn’t been the case before. Those restrictions appear to have been put in place on Wednesday, the same day the new Schulte charges were rolled out. They’ll remain in place until Monday.

A piece by Ryan Goodman and Bob Bauer renewed discussion this morning about the First Amendment limits on suing or prosecuting WikiLeaks for conspiring with Russia to swing the 2016 election; I hope to respond to it later, but wrote about the same lawsuit in this post. I think their view dangerously risks political journalism.

But I also think that you don’t necessarily need to charge WikiLeaks in the conspiracy to sustain a conspiracy charge; you can make them unindicted co-conspirators, just like Trump would be. I have long noted that you could charge Assange, instead, for his serial attempts to extort the United States, an effort that has gone on for well over 18 months using the very same files that Schulte is alleged to have leaked to WikiLeaks (extortion attempts which may also involve Roger Stone). Assange has accomplished those extortion attempts, in part, with the assistance of his lawyers, who up until this week (as far as I understand from people close to Assange) were still permitted access to him.

Say. Have I observed yet that these events are taking place in the last days before Mueller’s election season restrictions end?

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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