Is Jerome Corsi Trying to Get Trump to Intervene (Again)?

When his former National Security Advisor was at risk for lying to the FBI and serving as an agent of a foreign government, Trump considered pardoning him to keep him from talking, but didn’t.

When his former Campaign Manager was at risk for serving as an agent of a foreign government (and, probably, a whole lot else), Trump considered pardoning him to keep him from talking, but didn’t.

I wonder if Jerome Corsi thinks his luck would be any better.

According to the conspiracy theorist’s own telling, he has been in discussions with Mueller’s investigators since late August. The following has happened recently:

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 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

The last time Corsi yanked the media chain, here’s what happened:

The reference to screaming and shouting appears to be based off Corsi’s claims of what went on in the grand jury.

So perhaps Corsi believes if he creates another media frenzy, Trump will take action.

Is it possible that whatever Corsi would tell investigators is more damning than what Mike Flynn and Paul Manafort have presumably already said? Recall that Roger Stone, in several of his many efforts to deflect any attention on his own actions, has suggested that Corsi had his own relationship with Trump (perhaps trying to suggest that if anything Corsi learned made its way to Trump, it would have been directly).

Stone suggested that the special counsel may actually be interested in Corsi’s relationship with Trump.

Corsi was a leading proponent of birtherism, the false conspiracy theory that Barack Obama was not born in the United States. In 2011, he wrote the book “Where’s the Birth Certificate?: The Case That Barack Obama is Not Eligible to be President.”

Around that time, Trump took up the conspiracy theory, questioning Obama’s citizenship and demanding that he release his birth certificate.

Stone said that during a conversation with Trump in 2011, “he said to me, ‘Who is this guy, Jerome Corsi?’” Stone recalled.

Stone said he asked Trump why he was inquiring about Corsi.

“I’ve been talking to him,” Stone recalled Trump saying.

Stone said that Corsi also met with Trump during the 2016 campaign.

And Corsi’s own lawyer has suggested Corsi declined to take part in criminal activity that Stone may have invited him to be a part of.

Gray said he was confident that Corsi has done nothing wrong. “Jerry Corsi made decisions that he would not take actions that would give him criminal liability,” he added, declining to elaborate.

Asked if Corsi had opportunities to take such actions, Gray said, “I wouldn’t say he was offered those opportunities. I would say he had communications with Roger Stone. We’ll supply those communications and be cooperative. My client didn’t act further that would give rise to any criminal liability.”

Of course, Corsi may not need a pardon to get himself out of the legal pickle he’s in. He may be counting on Acting Attorney General Matt Whitaker to bail him out. Whitaker was appointed the day before Corsi’s attempts to work the media; when firing Jeff Sessions, John Kelly made it clear Whitaker needed to be in place that day. And the same day that Corsi started this blitz, November 8, Michael Dreeben suggested both that Mueller could do all the things that prosecutors do without pre-approval — seeking immunity, making plea agreements, and bringing indictments — but also noted that subpoenaing a journalist is one of the things that requires Attorney General approval.

Prosecutors do this all the time. They seek immunity. They make plea agreements,. They bring indictments.

[snip]

If we want to subpoena a member of the media, or if we want to immunize a witness, we’re encouraged if we’re not sure what the policy or practice is, to consult with the relevant officials in the Department of Justice. If we wanted to appeal an adverse decision, we would have to get approval of the Solicitor General of the United States. So we’re operating within that sort of supervisory framework.

Given the other things Mueller’s team has said — notably, that any subpoenas they issued before Whitaker was appointed remain valid — it’s not clear Corsi even could roll back any cooperation he offered before Whitaker came in. But that doesn’t mean Corsi might not try, especially if past efforts proved to have some effect.

At the very least, Corsi may be trying to give Trump more basis to bitch about witch hunts.

Pence Plays Statesman While Trump Tweets Angrily from a Florida Retirement Resort

Apparently, The Sun and a bunch of other media outlets claim to be able to distinguish Mike Pence’s regular wide-browed dark glare from the look he gave Putin when the Russian leader tapped him on the shoulder for a chat at the gala dinner in the Singapore ASEAN meeting. Maybe they’re right? But this looks to me like the same dark glare he always uses to make his retrograde policies look serious.

I’m more interested, however, that Pence not only lectured Putin about interfering in the 2016 election, but told Josh Rogin he did so.

When the plenary ended, the two men huddled in the corner for about 15 minutes as staff, security and translators swarmed around them. Pence decided to confront Putin about Russia’s interference in U.S. democracy.

“So I looked at him and I said, ‘We know what happened in 2016,’ ” Pence told me in an interview. “And I said, ‘As the president has told you, we’re not having it.’ ”

Putin denied that Russia had done anything wrong, but Pence stuck to his guns.

“And I said, ‘Mr. President, I’m very aware of what you’ve said about that, but I’m telling you we’re not having it,’ ” Pence said. “I wanted to reiterate what the president has said. I thought it was important he hear that from the vice president, too.”

Mind you, Pence could be lying about this, but if he did, Russia would likely correct him publicly.

Pence is bragging about his tough stance with Putin in the wake of stories — including one in the NYT — reporting on Trump’s increasing suspicions about the loyalty of the one guy he can’t fire.

In recent weeks, with his electoral prospects two years from now much on his mind, Mr. Trump has focused on the person who has most publicly tethered his fortunes to him. In one conversation after another he has asked aides and advisers a pointed question: Is Mike Pence loyal?

Mr. Trump has repeated the question so many times that he has alarmed some of his advisers. The president has not openly suggested dropping Mr. Pence from the ticket and picking another running mate, but the advisers say those kinds of questions usually indicate that he has grown irritated with someone.

And while the NYT pitches Trump’s questions about Pence’s loyalty in terms of picking a running mate for 2020 or installing Nick Ayers as Chief of Staff, it could have repercussions sooner rather than later.

After all, as I’ve long noted, Republicans in Congress like Pence more than they like Trump. So do some key Republican financial backers, starting with the Koch brothers.

Particularly given the way that Trump’s behavior led to huge losses in the midterms, more Republicans may seek to distance themselves from Trump. And depending on what and when Mueller unveils, that may become more urgent in days ahead. If Pence has already tried to distance himself from Trump’s Russian dalliance, that may make it easier.

Big Dick Toilets and Sasquatch Dolls: Matt Whitaker’s Qualifications To Be Dog-Catcher

I’ve followed the burgeoning scandal that the guy Trump appointed to play hatchet man to Mueller’s investigation is totally unqualified to be Acting Attorney General. But I’ve already lost track of all the reasons why. So I’m going to try to keep a running list here.

This will be updated as new issues are identified.

Legal problems with the appointment

While Steve Vladeck says it’s legal, and Marty Lederman and Walter Dellinger find OLC’s analysis, concluding that Matt Whitaker’s appointment is legal, to be plausible, a number of commentators disagree. Those include:

These arguments include a mix of constitutional (Appointments Clause) and legal (Vacancies Reform Act and the purpose of DOJ).

Numerous people are already challenging his appointment, including the state of Maryland, three Democratic Senators, and a number of criminal defendants. Quinta Jurecic is collecting all the litigation documents for those challenges here.

Other legal problems

In addition to the Constitutional and legal problems he raises, Neal Katyal also argues that Whitaker cannot legally supervise Mueller’s investigation.

David Kris points out that because of the legal questions surrounding Whitaker’s appointment and the certainty that defendants will challenge it, his appointment will create a whole bunch of downstream problems for DOJ.

A company for which Whitaker served on the board is under investigation by the FBI and FTC. Though Whitaker was subpoenaed by the FTC, he blew off that subpoena. FOIAed records show that Whitaker kept pitching the company even after receiving complaints.

One report on Trump’s efforts to get DOJ to prosecute Hillary Clinton and Jim Comey describes Whitaker prepping discussions about what it was doing in response; he reportedly “did not seem to cross any line,” but it remains to be seen whether that’s true.

Whitaker got four donations amounting to $8,800 to his 2014 Senate run in 2018, after he had started as Sessions’ Chief of Staff, which may amount to a violation of the Hatch Act. Following a complaint from watchdog group American Oversight, the Office of Special Counsel (the DOJ office in charge of reviewing such violations, among other things) opened an investigation into this.

Bureaucratic problems

There may be problems with the way that Whitaker was appointed.

As numerous people have noted, Jeff Sessions did not date his resignation, raising questions about when his authority really passed to Whitaker. (OLC says Sessions resigned on November 7.) Democrats in the House are also suggesting they believe Sessions’ forced resignation counts as a firing, which changes the options Trump would have to replace him under the Vacancies Reform Act.

Chris Geidner has reported that the White House won’t say when Whitaker was formally appointed.

Because Mueller has sought an interview with John Kelly (indeed, he’s a leading candidate to be the Mystery Appellant challenging a subpoena or something else from Mueller), it may be problematic that he played a key role in firing Jeff Sessions.

Conflict problems

Whitaker has a potential conflict with regards to the Mueller investigation tied to his relationship with Sam Clovis, who was in charge of crafting Trump’s outreach to Russia. Whitaker served as Clovis’ campaign manager in 2014.

Then, in a series of appearances Whitaker used to draw Trump’s attention, he commented on the Mueller investigation or the underlying conflict.

In a USAT column on July 5, 2016 and then multiple appearances on July 6, Whitaker suggested Hillary should have been prosecuted, partly by criticizing Jim Comey for making the decision.

On September 30, 2016, Whitaker suggested that if Trump won, he should restart the investigation into Hillary.

On May 19, 2017, Whitaker dismissed the possibility that Trump had committed obstruction of justice by firing Comey.

In July 2017, Whitaker interviewed with Don McGahn to take on the role of legal attack dog discrediting the Mueller investigation.

On July 13, 2017, Whitaker defended Donald Trump Jr taking the June 9, 2016 Trump Tower meeting.

In a CNN interview on July 26, 2017, Whitaker described how you could defund the Special Counsel and thereby end his work.

I could see a scenario where Jeff Sessions is replaced, it would recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt.

On July 27, 2017, Whitaker said it would be a mistake to provide Mueller any further protection.

On August 4, 2017, Whitaker recommended an article that describes, “with a little planning he could install a true believer to a political position at DOJ—as a sleeper agent—and then (after easing out Sessions) elevate him or her to attorney general.”

On August 6, 2017, Whitaker used the Red Line comment Maggie and Mike teed up to describe Mueller pursuing Trump’s finances as improper.

On August 11, 2017, Whitaker suggested the investigation into Paul Manafort was outside the scope of Mueller’s appointment. In that same appearance, he suggested Mueller had engaged in prosecutorial misconduct.

On August 15, 2017, Whitaker said Mueller’s appointment was a little fishy.

On August 25, 2017, Whitaker suggested searching Manafort’s condo with a dozen agents was designed to intimidate him.

On August 30, 2017, Whitaker suggested Mueller’s investigation was politically motivated and was misusing resources that should be used elsewhere.

In spite of the fact that many of these would seem to pose conflicts that DOJ normally concludes would ethically prohibit Whitaker’s involvement in the Mueller investigation, both Trump and Whitaker appear to have known he would not recuse from the Mueller investigation even before he was appointed, though Trump has claimed (evidence to the contrary) that he didn’t talk to Whitaker about such things before he appointed him.

Financial problems

As noted by CREW when they released Whitaker’s financial disclosures, his disclosures got doctored (or “Kushnered,” as I’m now referring to serial attempts to belatedly fix glaring problems in official disclosures) four times after the time he was appointed AAG.

CREW has already filed a FOIA for those revisions.

What the records show is just as alarming.

The non-profit Whitaker worked at to, first, beat up Hillary Clinton and then audition to kill the Mueller investigation, Foundation for Accountability and Civic Trust, has obscure funding and genesis. It keeps changing its name. Whitaker’s salary, which went from $63,000 for part time work to $660,000 a year, made up most of its expenditures in the period before he became Sessions’ Chief of Staff. One of the guys listed as a director, James Crumley, claimed not to remember its existence. Another, Noah Wall, didn’t know he was listed as Director. While claiming to be non-partisan, it overwhelmingly attacked Democrats (and Hillary specifically), a possible violation of IRS regulations. As OpenSecrets notes, its funding comes from a black hole pass through, but the organization seems to have ties to other judiciary-related dark money groups.

The 14 companies in Iowa Whitaker worked for (reportedly, past tense) have never filed paperwork noting that, so on paper he still works for them.

In 2016, Whitaker abandoned a taxpayer-funded apartment rehabilitation project, defaulting on loans and hiding from creditors.

World Patent Marketing — the company the FBI is investigating — was totally fraudulent, pretending to help review patents without doing so. Among those the company defrauded are veterans. Among the things it marketed were Big Dick Toilets, Sasquatch dolls, and time travel.

Abuse as (or invoking past history as) US Attorney

Whitaker has already abused his position as a government prosecutor, both while serving and since.

In 2006, he prosecuted a Democratic politico, Matt McCoy and even paid an informant to incriminate him. The jury acquitted McCoy after deliberating for just 25 minutes.

Then, when serving on the advisory board for a World Patent Marketing, he threatened people who complained, including threatening them with legal retribution.

Temperament

Both on his legal views and his other beliefs, Whitaker has a temperament far outside the mainstream.

When running for Senate, Whitaker argued that judges should have a biblical view and said that Marbury v. Madison — the foundation of judicial review in this country — was among the worst Supreme Court decisions.

He was among the US Attorneys who imposed the harshest sentences in drug prosecutions.

Update: Since it has attracted a lot of attention, I owe this title in part to HowdyQuicksell, but the Dog Catcher accusation (which will probably ensure no DOJ spox will ever again return my calls) is my own.

It Is Objectively False that Trump Provided Unprecedented Cooperation; Stop Parroting Rudy Claiming He Did

If a President makes an expansive new claim to Executive Privilege and the press reports the opposite, did it really happen?

That’s a question presented by the coverage of yesterday’s news that after a year of resistance, President Trump finally provided the answers to his open book test to Mueller. That’s because a slew of journalists repeated Rudy Giuliani’s claim, made in his official statement, that Trump has provided “unprecedented cooperation” with Mueller’s team, without noting that the claim is objectively false.

I showed back in February — when the press first started parroting this claim credulously, which was first made by John Dowd — that it was not true.

A simple comparison of the Bush White House’s cooperation the CIA leak case, which investigated events that occurred in a more narrow period two month period of time, showed Dowd’s claim about cooperation on discovery and witnesses was overblown.

More importantly, a key detail distinguished George W Bush’s cooperation from Trump’s: Bush sat for an interview with Patrick Fitzgerald and answered questions about the orders he gave, while President, to at least one of his Assistants and the Vice President about an exclusive executive authority, declassification.

Bush sat for an interview in June 2004, and Cheney — who himself made some grossly false statements in his tenure — sat for one in May 2004 and a little-known follow-up that August. According to Cheney’s autobiography, “[T]he second session was conducted under oath so that [his] testimony could be submitted to the grand jury.”

[snip]

[Randall] Samborn, the Fitzgerald spokesperson who was famously reticent during the whole CIA leak investigation, offered an expansive rebuttal to Dowd’s claim that this White House has offered unprecedented cooperation. “Trump’s team can claim all the cooperation it wants, and whether justifiably so or not, it seems to me that it all gets negated, if at the end, he personally refuses to be questioned when so much substance depends on what he knew and did, as well as his state of mind.”

Any refusal to sit for an interview, Samborn said, was central evaluating the level of cooperation.

“That’s sort of the ultimate in noncooperation,” he explained, “especially after saying he looks forward to being interviewed and under oath.”

By limiting his cooperation to an open book test, Trump has stopped far short of the cooperation Bush offered.

And yet, because Rudy included the claim in the statement he released to the press, many news outlets are repeating that false claim, uncontested. The outlets that subscribe to the AP feed are propagating false claim today, because Eric Tucker repeated that line from Rudy’s statement with no correction to it.  Unsurprisingly, Fox News parroted Rudy. But so did some more credible outlets, like NBC, ABC, CNN, and Reuters. Even the WaPo’s otherwise superb report from Carol Leonnig and Robert Costa repeated the claim in the last line of their story.

NYT’s Maggie and Mike, incidentally, avoided repeating Rudy’s claim, choosing to include the part of his statement that provided quasi-factual numbers, but leaving out the superlative claim.

It’s bad enough that most of the press has repeated Rudy and Dowd’s claim uncritically since January. But for yesterday’s stories, it is all the more important to get it right. That’s because Trump is not just refusing to answer questions on Mueller’s obstruction investigation, he’s also refusing to answer questions about the transition period, before any claim of Executive Privilege should kick in. While that’s consistent with what Trump did with Hope Hicks’ and Corey Lewandowski’s testimony to the House Intelligence Committee, it nevertheless represents an expansion of accepted claims to executive power.

The emphasis, here, should be on Trump’s claim to be above the law even before he took an oath to protect and defend the Constitution.

Instead, a bunch of copy and paste journalism has made it the opposite.

Trump Refuses to Answer Why He Ordered Mike Flynn to Placate the Russians on Sanctions

As I have repeatedly argued, a key detail of the Russian investigation that has never been adequately explained is the firing of Mike Flynn. Contrary to what Trump’s propaganda in early January 2017 suggested, it was no secret within the White House that Flynn had discussed delaying any response to Obama’s sanctions with Sergei Kislyak. Indeed, it is virtually certain Flynn did so on the Trump’s orders, conveyed via KT McFarland, and many of the people involved in creating Trump’s public explanations knew that.

Which is why it’s so interesting that Trump has refused to answer questions about the transition (in addition to questions about after inauguration).

But after months of negotiations with Mueller’s team, Trump’s lawyers have refused to answer any questions about his time as president-elect or president, arguing that the special counsel is not legally entitled to details about executive decision-making.

If, as I’ve posited, sanctions relief was one of the payoffs in a quid pro quo for election assistance, then by refusing to answer questions about the transition, Trump would effectively be refusing to go on the record about why he chose to undermine Obama’s policy (on this, and on assistance to Israel, probably among other things).

Now consider how this fits with regards to timing.

The WaPo reports that Trump was going to return his open book test to Mueller last Thursday, but balked, claiming they had questions about the legitimacy of the investigation.

Trump’s lawyers originally planned to submit the answers to Mueller last Thursday, but put on the brakes.

Giuliani said there were “more questions raised about the legitimacy of the investigation that we had to discuss and look into,” declining to elaborate.

That makes it more likely that the 10-day delay in a status report on Paul Manafort’s cooperation — from last Friday to next Monday — reflects Mueller’s effort to delay releasing that report until after he had received Trump’s responses (which, remember, he once said he’d return a day or so after returning from Paris).

It’s also possible that Trump got his first report on the status of the investigation from Whitaker last Thursday, one day after OLC released its memo deeming Whitaker’s appointment legal. Today, Chuck Schumer sent DOJ Inspector General Michael Horowitz a letter asking for an investigation into Whitaker’s communications with the White House, but I read it to relate exclusively to activity prior to his appointment as Acting Attorney General.

Or, less controversially, he may have gotten assurances from Whitaker that he, as Acting AG slash hatchetman, would deem transition period activities as protected by Executive Privilege.

And since we’re reading tea leaves, consider the additional motion Mueller submitted in the Mystery Appellant case.

Particularly given the motion Mueller submitted yesterday — which argued that any subpoena the Special Counsel issued before Whitaker’s appointment remains valid — I wonder whether the recent activity reflects Whitaker’s tampering as well, perhaps reflecting notice, after the OLC memo, that Whitaker does not agree with the subpoena. Today’s sealed motion is around 25% longer than yesterday’s brief, so it may be notice of that argument.

(I think the new motion raises the chances, slightly, that the Mystery Appellant is Trump, but if it were someone — like John Kelly — making an Executive Privilege claim, Whitaker’s intervention may rely on the same justification Trump might have made last week about withholding transition materials.)

In other words, not only is Trump trying to avoid providing sworn testimony about one key event in this investigation — his order to placate the Russians on sanctions — but there are other hints that Whitaker has started his work to undermine the Mueller investigation.

Still, it may be too little too late. Mike Flynn’s sentencing continues as scheduled, with his probation officer submitting his presentencing report today. The government will have to submit a report on his cooperation on December 4, in advance of his December 18 sentencing. So Mueller must feel confident he knows all the circumstances of those conversations with Kislyak regardless of Trump’s willingness to talk about it.

James Baker Channels a Road Map He and Comey and Andrew McCabe Might Navigate

Some weeks ago, I used Leon Jaworski’s Road Map to imagine what an equivalent Robert Mueller Road Map, packaging grand jury information to share with the House Judiciary Committee, might look like.

Among other things I showed the close parallel between John Dean’s attempt to craft a cover story and Don McGahn’s attempts to do the same. That section included how Nixon worked Henry Petersen, then Assistant Attorney General for Criminal Division, to try to influence the investigation.

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 Petersen 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. [my emphasis]

Another section showed how Nixon was commenting on what he had said to Petersen and Attorney General Kleindienst was like Trump’s comments on Jim Comey and other DOJ officials.

That was all written from the outside.

Today, former FBI General Counsel James Baker performs the same task. He doesn’t describe the effort as such. Rather, he just says he finds certain things — particularly those having to do with Henry Petersen — attracted his (and Sarah Grant’s, with whom he wrote this) attention.

One of the aspects of the recently released Watergate “road map” and related documents that attracted our attention is the set of materials pertaining to interactions, direct and indirect, between President Richard M. Nixon and two senior Department of Justice officials.

The whole post starts with a description of how Petersen told Nixon that Haldeman and Ehrlichman were implicated in the break-in and advised him to fire them, only to have the President respond that he would not.

One of the officials later testified: “He said he couldn’t believe it. You know, just these are fine upstanding guys. Just couldn’t be, you know.” He impressed on the president, “We are here to alert you. We think we’ve got something. We could be wrong, but we are telling you it’s time for you to move to protect yourself and the presidency.” And he urged the president to “get rid” of the staffers in question; the president responded, “‘Yeah, and I don’t think I should. I’ve got to think about this and that and a thousand other things.’”

The parallel here, of course, is Mike Flynn, whom Sally Yates recommended Trump fire, but whom Trump kept on for almost two weeks because he had ordered him to engage in the suspect behavior in question.

The post goes on to describe how Nixon got that top DOJ figure to provide information on a DOJ investigation investigating him personally.

In addition, on two occasions President Nixon asked Petersen for written summaries of aspects of the Justice Department’s investigation, including information regarding Haldeman and Ehrlichman: “[H]e asked for a full exposition. Having got into it this far, he felt he needed all the information, and I said I would undertake to . . . try to do that.” The president asked Petersen “to be kept informed of these things” but did not expect Petersen to divulge grand jury material. Petersen said that he ultimately determined that he could not provide any additional information at that time because it would have involved disclosing grand jury material; the president accepted that conclusion. In the following two weeks, however, Petersen did provide the president with “very general” information about the investigation, and the president on one occasion asked him, “‘Well, what else is new?’”

According to the president’s logs, between March 13, 1973, and April 30, 1973, President Nixon had seven meetings and initiated 19 phone calls with Petersen. These calls included four on April 15, 1973, after Kleindienst and Petersen met with the president to recommend that he fire Haldeman and Ehrlichman, including one call from 11:45 p.m. to 11:53 p.m. It is difficult to recount concisely the details of all of these communications to the extent that they are reflected in the information that we reviewed. Suffice it to say that these communications and other information in the attachments to the road map indicate that the Justice Department provided the White House with certain information about the course of the investigation on an ongoing basis.

The president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated.

The post also explains how Nixon tried to influence Petersen to speed up the investigation and by offering promotions.

On at least one occasion, President Nixon commented to Petersen on the pace of the investigation. Petersen testified: “Well, there was some discussion about the need for, you know—‘Hurry up and get this over with.’ ‘Yes. We’ll make haste as reasonably as we can.’”

President Nixon also discussed Petersen’s future role with him, as they concurrently discussed a live investigative matter. Petersen testified: “there were statements, during the course of the President’s conversations with me, ‘Now, you’ll have to serve as White House counsel,’ or, ‘You’re the adviser to the President now,’ which I, frankly, thought was a little heavy handed.”

It lays out how Nixon asked the top DOJ official whether he, personally, was under investigation.

Similarly, the Watergate Task Force report referenced above states that on April 27, 1973, “the President asked Petersen if he had any information implicating the President himself. Petersen said he did not.” The president, in other words, was asking the head of the Criminal Division whether he was personally under investigation.

And then it shows how HJC included such abuses in its articles of impeachment.

How was all of this presidential contact with the Justice Department understood in the context of Watergate? Pretty harshly. For example, Article II, paragraph 5, of the House Judiciary Committee’s July 27, 1974, Articles of Impeachment states in part that President Nixon:

In disregard of the rule of law, . . . knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

President Nixon resigned on Aug. 9, 1974, and was pardoned by President Gerald Ford on Sept. 8, 1974.

As I noted in the post where I drew these parallels, we’re not in 1974 anymore, and there are a lot of reasons to doubt Trump will be impeached for acting in a similar manner as Nixon did.

But James Baker definitely seems to think the parallels are there.

Mueller Says He Still Exercises the Full Authority of a US Attorney

Mueller’s team has submitted the supplemental brief Judge Henderson ordered the day after Matt Whitaker was appointed, explaining whether his appointment affects Andrew Miller’s challenge to a subpoena he got back in June.

As to the issue at hand (whether his subpoena of Miller is legal), Mueller says Whitaker’s appointment changes nothing, because everything being challenged pertains to his May 17, 2017 appointment, not anything that happened since.

The President’s designation of Acting Attorney General Matthew G. Whitaker on November 7, 2108, has no effect on this case.

[snip]

All of those arguments turn on the May 17, 2017 appointment of the Special Counsel and the legal and regulatory frameworks that existed at the time of appointment. None of those arguments is affected by the change in the identity of the Acting Attorney General while this case is on appeal.

But the brief is interesting because it is the first opportunity Mueller has had to lay out how he understands what happened and how Whitaker’s appointment affects his authority.

As to what happened, Mueller makes no contest that Jeff Sessions resigned.

On November 7, 2018, Attorney General Jefferson B. Sessions resigned from office

Democrats in the House are contesting that, but Mueller is not.

Nor does Mueller question the validity of the OLC conclusion that Whitaker’s appointment is legal.

The Office of Legal Counsel has determined that the designation of the Acting Attorney General is valid as a statutory and constitutional matter. See Office of Legal Counsel, Designating an Acting Attorney General (Nov. 14, 2018), https://www.justice.gov/olc/file/1112251/download. I

None of that is surprising. He works for DOJ and it’s not his place to challenge what DOJ says about DOJ.

What’s more interesting (though not at all controversial) is that Mueller maintains he still has the full authority of a US Attorney.

Similarly, by regulation, the Special Counsel has and continues to “exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6; see United States v. Nixon, 418 U.S. 683, 695 (1974) (“So long as [a] regulation is extant it has the force of law.”).

He relies on US v. Nixon to lay out what it will take to withdraw that authority: changing the regulations he operates under.

Perhaps most important, though, is that Mueller argues that Whitaker’s appointment cannot change the validity of the subpoena (and, one would assume by extension, anything else) that occurred before Whitaker’s appointment.

Because the subpoenas here issued under the signature of the Special Counsel’s Office long before the change in the identity of the Acting Attorney General, that change cannot affect the validity of the subpoenas. And the designation of a different Acting Attorney General while the case is on appeal cannot vitiate the district court’s order holding Miller in contempt.

This would seem to suggest that if Mueller has anything banked — sealed indictments or complaints — then he holds that nothing changes their validity or the DC District’s authority to preside over them.

He also maintains that he retains the authority to appear before the Court.

Second, the change in identity of the Acting Attorney General has no effect on the Special Counsel’s authority to appear in this case. The Special Counsel continues to hold his office despite the change in the identity of the Acting Attorney General.

This would be what he would need to unseal any existing indictments.

None of that is that controversial. But it does make it clear that he views his authority to continue unchecked even with Trump’s hatchet man in place.

Time Machine: 2011 to 2012 WikiLeaks Is not 2018 WikiLeaks

Since DOJ confirmed last week that it does have at least one sealed criminal complaint against Julian Assange, WikiLeaks has adopted a notable defense strategy. In most of their responses, WikiLeaks has claimed a continuity between what it has done in the last two years and what it was doing in 2010, when the US government first took aggressive action against WikiLeaks.

For example, this timeline claims vindication of persistent claims among WikiLeaks supporters that Assange had already been indicted, even while linking to reports that make it clear DOJ has changed its approach recently (and ignoring, entirely, the NYT report that says the charge dates to this summer and which WikiLeaks’ Twitter feed attacks elsewhere).

November: US prosecutors inadvertently reveal that Julian has been charged under seal (i.e., confidentially) in the US – something which WikiLeaks and others have long said but which has been denied by some US officials. The document making the admission was written by Assistant US Attorney Kellen S Dwyer. The Wall Street Journal reports that “over the past year, US prosecutors have discussed several types of charges they could potentially bring against Mr. Assange”. It notes that charges against Julian could include violating the US Espionage Act, which criminalises releasing information regarding US national defence.

Assange’s UK lawyer, Jennifer Robinson, did the same in an appearance with MSNBC. She claimed  that the charge came out of the investigation started in 2010 in response to WikiLeaks’ publication of US Diplomatic cables, the Iraq war logs, the Afghan war logs, which she argues (correctly, I’d agree) was demonstrated to be in the public interest and had been published by other media outlets, including the NYT. She says this criminal charge proves it was correct for Assange to have sought asylum from Ecuador. And she emphasized that Assange would be extradited “for publishing truthful information.” She repeated “public interest” over and over.

Another Tweet RTed by WikiLeaks claims that Assange had been indicted as early as 2011 and the Australian government knew about it.

Finally, another Tweet purports to lay out the possible charges against Assange, which it describes as:

  • Espionage: 18 U.S.C. § 793(d) – imprisonment up to 10 years
  • Conspiracy to commit espionage: 18 U.S.C. § 793(g) – imprisonment up to 10 years
  • The theft or conversion of property belonging to the United States government: 18 U.S.C. § 641 – imprisonment up to 10 years
  • Violation of the Computer Fraud and Abuse Act: 18 U.S.C. § 1030 – imprisonment up to 10 years
  • (general) Conspiracy: 18 U.S.C. § 371 – imprisonment up to 5 years

It bases that claim on this post from early 2015 describing the late 2014 notice to WikiLeaks of warrants served on Google two and a half years earlier (so around June 2012, which is when Assange first took refuge in the Ecuadorian embassy).

In other words, WikiLeaks is working public opinion by pretending it is being prosecuted for the stuff it did in 2011, even to the point of claiming that news of a recent complaint proves that Assange has been indicted all this time. It is true that the prosecutor who made the cut-and-paste error that revealed the existence of a complaint, Kellen Dwyer, has reportedly been on the WikiLeaks investigative team for years. But that doesn’t mean, at all, that the US prosecution is in any way related to those earlier actions.

The reports of both the WSJ and NYT seem to prove the opposite. Whether because the Trump Administration that WikiLeaks worked so hard to elect turned out to be far less respectful of freedom of the press than the Obama Administration, or because the US started collecting more aggressively on WikiLeaks and therefore learned more about its operations, or because the nature of Assange’s more recent actions are fundamentally different from what he did in 2011, DOJ came to charging Assange this summer when Eric Holder refused to do so. Indeed, while no one has confirmed this one way or another, the assumption has been that Assange’s charges relate either to his involvement in the 2016 Russian hack-and-leak (though that would presumably be charged in DC) or his involvement in the 2017 Vault 7 and Vault 8 files as well as his exploitation of them.

The possible crimes may have expanded, too. Espionage is definitely still a possibility, particularly given how DOJ charged accused Vault 7 leaker Joshua Schulte, including possibly suggesting his leaks were designed to help another nation (presumably Russia). If Assange had advance knowledge of any of the Russian hacks (or the Peter Smith negotiated efforts to obtain Hillary’s server emails), he might be exposed to CFAA as well. And if he is charged by Mueller, he will surely be charged with at least one conspiracy charge as well; WikiLeaks was already described as an unindicted co-conspirator in the GRU indictment.

But there may well be other charges, starting with extortion or something akin to it for the way Assange tried to use the threat of the release of the Vault 7 documents to obtain a pardon. Some of his actions might also amount to obstruction. Yochai Benkler’s latest post also imagines Assange may have coordinated more closely with Russian intelligence, which might lead to different charges.

WikiLeaks’ attempts to rest on its earlier laurels is telling, for several reasons. It suggests they and their supporters don’t seem to want to defend Assange’s more recent actions. I find it remarkable, for example, that Robinson didn’t mention how many stories the NYT and WaPo wrote based on the 2016 files, which would support her argument that the files were newsworthy.

The attempt to pretend Assange is being prosecuted for his earlier actions seems to serve another purpose — to defend his years of asylum claims, which are also the basis for his claims to be a victim of US political targeting (and the premise for his demands for immunity on threat of releasing the Vault 7 files). Don’t get me wrong. I think some of the things DOJ is known or suspected to have done in 2010 and 2011 are problematic. But those did not directly merit an asylum claim (and in fact they preceded Assange’s asylum claim by over a year).

That may, in turn, serve to obscure what Assange wanted immunity for in coercive negotiations that started in 2017: Was it 2011, his role in publishing the State cables? Or was it 2016, as his offers to explain what (he claims) really happened in 2016 would suggest?

Whichever it is, WikiLeaks seems to have a lot staked on making a defense of Assange’s 2011 activities. Which suggests they’re a lot less confident they can defend his 2016 and 2017 activities.

After a Year of Page Views for Credulous Reports Trump Wanted to Do Mueller Interview, NYT Gets Page Views Admitting He Won’t

President Trump told a lot of lies in his interview with Chris Wallace yesterday. He lied when he claimed he didn’t know Matt Whitaker opposed the Mueller investigation when Trump hired him (he even suggested there was some ambiguity in Whitaker’s attacks on Mueller). He lied when he claimed Georgia’s gubernatorial race was stacked against Brian Kemp, who cheated to win it. He lied when he claimed no one believes in the First Amendment more than he does. He lied when he claimed no one had done more for the military than he has (after saying “I really probably assumed [skipping an appearance at Arlington on Veterans Day] was fine”).

In other words, that interview was just like every other interview Trump does, an opportunity to float lies and have them treated seriously.

Which is why I’m amused by the headline takeaway NYT Maggie gave the story, treating Trump’s assertion that he won’t sit for an interview with Mueller’s team as a reversal.

President Trump said in an interview aired Sunday that he most likely would not sit for an interview with the special counsel, Robert S. Mueller III, asserting that “we’ve wasted enough time on this witch hunt and the answer is, probably, we’re finished.”

[snip]

His comments on the Mueller investigation marked an apparent reversal from a year of claiming that he was willing and eager to be interviewed by the special counsel, who is investigating possible collusion between the president’s campaign and Russian officials during the 2016 election. Mr. Trump’s legal team has blanched at the idea, fearing that the president might lie under oath, and has steadily narrowed the path for such an interview.

Of course, it’s not a reversal at all. Since at least March (when Mueller indicated to Jay Sekulow his questions would reflect real knowledge of Trump’s awareness of a conspiracy with the Russians), Trump and his advisors have been involved in a game whereby they used the press — starting with Maggie — to sustain a claim of cooperation when in fact they were really stalling.

A more honest headline might read, “Trump confirms we got taken as chumps.” Instead, the NYT will get some more page views without admitting that they’ve been getting page views for most of a year on reports that were not credible.

And that stalling is one of the aspects of the Mueller part of Wallace’s interview that is interesting. While Trump initially adopts the present progressive that Wallace uses to ask a question about Trump’s open book test, elsewhere he describes having completed the questions. He even asserts he’ll be handing them over “very soon.”

WALLACE: Your team is preparing written answers to questions about–

TRUMP: No, no, no, not my team. I’m preparing written answers. My — I — I’m the one that does the answering. Yes, are they writing them out?

WALLACE: Yes.

TRUMP: Yeah. They’re writing what I tell them to write.

WALLACE: Are they going to be submitted?

TRUMP: At some point very soon, yes. I’ve completed them.

WALLACE: So you’re — you are submitting—

TRUMP: And it wasn’t a big deal. By the way, it wasn’t a big deal. The answers — the questions were asked and answered. It wasn’t a big deal. You know, they make it like I had meetings for many, many hours — I got the questions, I responded, we wrote them out, I read them once, I read them a second time, we made some changes, that’s it. They’re very simple.

WALLACE: OK.

TRUMP: You know why? I did nothing wrong.

WALLACE: Here’s my question, though. You are submitting written answers–

TRUMP: Yes.

WALLACE: –to the special counsel about the issue of collusion but not on obstruction of justice?

TRUMP: Well there was no obstruction of justice.

WALLACE: I — I’m — let me — if i might, sir, just ask–

TRUMP: I think they’d probably agree with me.

WALLACE: If I may ask the question–

TRUMP: And all you have to do is look at Article II.

WALLACE: Is that your final position, that there’s going to be no sit-down interview and nothing written or in person on obstruction?

TRUMP: I would say probably. Probably. I mean, I can change my mind, but probably. I think we’ve–

WALLACE: No interview?

TRUMP: I think we’ve wasted enough time on this witch hunt and the answer is probably, we’re finished.

WALLACE: What are the odds? One in a hundred? What–What?

Trump has been stalling on answering these questions for weeks, first by failing to complete them before the election, then further stalling until Matt Whitaker got OLC’s approval to serve as Attorney General. At least from what he said to Wallace, he is now ready to hand them in, perhaps in a belief that Whitaker has a plan to kill the investigation once that happens (which might be why he said “we’re finished”).

I’ve said from the start that these questions may be the last step Mueller has before rolling out what he has been working on.

[T]his agreement may have as much to do with preparation for the post-election period in which Mueller can roll out any indictments he has been working on and Trump can start firing people. That is, before he makes any big moves in the case in chief, he has to get Trump on the record in some form or other. Better to get him on the record in sworn written statements than launch a subpoena fight that will last past that post-election period.

And one possible explanation for the fairly odd delay in submitting a status report in Paul Manafort’s case is that Mueller doesn’t want to say anything about Manafort’s cooperation until after he has Trump’s sworn answers.

So while Trump didn’t say precisely when he was going to turn in his overdue open book test, he at least asserted that he will do so.

The NYT headline probably should have read, “The 11-month NYT-assisted stall will soon be over.”

Update: As linked above, in a post trying to lay out the possible reasons why Mueller would delay a status report on Manafort until November 26 is that he wanted to get Trump’s answers before releasing the status report.

Politico reports that Trump may turn in his open book test tomorrow, before he heads to Mar-a-Lago for Thanksgiving.

Trump’s lawyers set an informal Thanksgiving deadline for the president to finalize his responses on topics surrounding the Russian hacking of the 2016 election, and he’s almost ready to submit them, according to two sources familiar with the conversations.

The president’s written answers — which carry the same legal burden for truthfulness as an in-person interview — are likely to be submitted as Trump settles into his Mar-a-Lago club in South Florida for the Thanksgiving holiday. Trump is scheduled to depart Washington, D.C., on Tuesday afternoon.

A Day after Maria Butina Argues Influence Operations Shouldn’t Be Charged as Spying, Plea Negotiations Start

As a number of people reported, on Friday, the government and Maria Butina got the court to delay her case by two weeks so they can try to resolve it, suggesting they’re in plea negotiations.

In support of this motion, the parties state that they continue to engage, as they did prior to yesterday’s defense filing, in negotiations regarding a potential resolution of this matter and that those negotiations would be potentially hindered by simultaneously engaging in motions practice. The parties further agree that to make the best and most efficient use of the Court’s time and resources to decide any motions in the event those negotiations are unsuccessful, it would be prudent to continue the upcoming hearing and its accompanying motions schedule for approximately two weeks.

As part of that delay, Butina withdrew a motion submitted on Thursday without prejudice (meaning she can resubmit it if plea talks fail). The motion asked the court to declare 18 USC 951 (which is what the US government charges foreign spies with) unconstitutional as applied to influence operations.

The motion lays out a bunch of hypothetical cases with vague parallels to Butina’s to lay out the danger of using 951 to prosecute those conducting influence operations. Some are farcical, in which a thoughtful grandmother takes on the role that Aleksandr Torshin does in Butina’s operation.

An unregistered, lonely grandson from an unpopular, provincial country accepts the advice of his grandmother about how to make friends. She thoughtfully directs him to go to prayer groups and same-interest meetups to meet people with common interests. He violates section 951 if the grandmother is a foreign official, even though the grandmother provided such direction while visiting the United States on holiday.

A non-hypothetical comparison, however, is more apt, arguing convincingly that an Israeli influence tour might be prosecuted if Israelis were treated with the suspicion Russians currently are.

Consider recent events regarding Israeli soldiers touring cities across the United States for the 11th Israeli Soldiers Tour to speak at venues, including college campuses, to raise awareness of the realities of their service.10 Sponsored by StandWithUs, an Israel advocacy group funded and supported by hasbara organizations and the Israeli government, these soldiers travel the United States to conduct influence operations intended to pacify U.S. views, change foreign policy, and put a human face on the Israeli military. Is there any doubt that such unregistered agents could be charged under the same interpretation of section 951 used against Maria– for operating in the United States as “agents” of Israel when directed to go to U.S. schools and then brief their IDF11 military commanders on their reception in the United States? Is there any doubt that they wouldn’t be? The point is not that such activities are improper. They are not. However, they are precisely the kind of educational exchanges and necessary uninhibited marketplace of ideas that are sought and encouraged when foreign students and visitors like Maria are admitted to U.S. universities.

The motion ultimately argues that before using 951 against an influence operation the statute should have the kind of limits that exist in the FARA statute.

To resolve the constitutional problem presented by the statute’s broad application, this court should—at least as to political activities—narrow the sweep of section 951 so that it aligns more closely with the constitutional safeguards recognized by Congress in the Foreign Agent Registration Act (known as “FARA”).

Worse, as for cases involving ‘political activities,’ it allows the government to pursue harsher penalties with additional restraints on individual liberty, compare 18 U.S.C. § 951 (10 years imprisonment) with 22 U.S.C. § 618 (5 years imprisonment), without enduring the additional cost of satisfying higher burdens of proof, see 22 U.S.C. §§ 611(o) and 618(a) (authorizing prosecution only for “willful” violations and specific kinds of “political activities”), thus circumventing the inherent check on government overreaching that the Fifth Amendment Due Process Clause was designed to instill. If left unchecked, federal investigators and prosecutors will have strong incentives to prosecute political activity cases under section 951 instead of FARA, so they can reap the law-enforcement benefits of section 951’s penalties without paying the price of higher burdens of proof.

To avoid that distortion, this court should consider the catch-all, sweeping application of section 951 when applied to political activities, in comparison with the statutory restraints of FARA as applied to the same, in assessing whether section 951 exposes Maria to the risk of arbitrary enforcement. Such an approach would provide an accurate answer to the doctrinal question at hand: whether section 951 is constitutionally deficient (and/or in need of a limiting construction) because it “confers on police a virtually unrestrained power to arrest and charge persons with a violation” thereby permitting “policemen, prosecutors, and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358.

It’s a fair argument, at least in this case. Back in August, I did two posts pointing out there was little difference between what Paul Manafort was accused of in his DC case and Maria Butina was accused of.

It’s unclear whether the plea negotiations are a response to this motion or not. Some of the evidence against Butina described thus far suggests her operation has the approval of Putin himself (though the Israeli StandWithUs tour is the kind of thing Bibi Netanyahu likely loves). But other evidence — such as a claim she’s coordinating with FSB (which, after all, is the closest analogue to the FBI) appears sketchy. So while it’s possible that Butina is a privately funded spy running an influence operation on behalf of the Russian government, it’s also true that to prove that, the government may have to share more classified information than they care to. And while I’m skeptical the constitutional challenge to 951 would work (in part because courts are loathe to tamper with national security law, in part because the claim that Butina chose to come to the US as a student does seem to have been chosen with the influence operation in mind), the government probably wants to retain their ability to use it with clearcut spies engaging in influence operations.

So I could imagine the government might be willing to settle this with either a FARA plea (which would further reinforce the FARA regime Mueller has introduced) or a visa fraud charge, particularly if Butina were willing to implicate Paul Erickson and other Americans who had helped her efforts.

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