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Michael Cohen’s HPSCI Testimony Proves Trump Lied in his Answers to Mueller

Yesterday, the House Intelligence Committee released transcripts of Michael Cohen’s February 28 and March 6 testimony before the committee. Together they’re utterly damning for a bunch of reasons:

  • GOPers (with former US Attorney John Ratcliffe incompetently replacing Trey Gowdy as their designated “adult”) thought they could prove that Cohen hadn’t been offered a pardon, but proved the opposite; on top of looking like blithering idiots, it basically put them in the position of laying out proof of — then shrugging away — crime after Trump crime
  • As I anticipated at the time, Cohen makes clear that any Joint Defense Agreement involving him lasted only so long as Trump believed Cohen could hurt him
  • On top of providing details about the editing of his false statement, Cohen lays out how in conversations before the first draft, Jay Sekulow got him to shorten the timeframe of the Moscow Trump Tower deal
  • Cohen confirmed that — as I laid out in January — there was a gap in the documents shared with HPSCI necessary to sustain the false story

Perhaps most surprising, though, Cohen’s testimony establishes that Trump lied to Robert Mueller in his sworn answers.

Trump’s responses on Trump Tower questions were the least responsive of his many non-responsive answers

Far too little attention has been focused on Trump’s downright contemptuous responses to Mueller’s questions, many of which conflict with the testimony of numerous loyal Trump people. Worst of all were Trump’s response to seven questions on the Trump Tower deal.

a. In October 2015, a “Letter of Intent,” a copy of which is attached as Exhibit B, was signed for a proposed Trump Organization project in Moscow (the “Trump Moscow project”).

i. When were you first informed of discussions about the Trump Moscow project? By whom? What were you told about the project?

ii. Did you sign the letter of intent?

b. In a statement provided to Congress, attached as Exhibit C, Michael Cohen stated: “To the best of my knowledge, Mr. Trump was never in contact with anyone about this proposal other than me on three occasions, including signing a non-binding letter of intent in 2015.” Describe all discussions you had with Mr. Cohen, or anyone else associated with the Trump Organization, about the Trump Moscow project, including who you spoke with, when, and the substance of the discussion(s).

c. Did you learn of any communications between Michael Cohen or Felix Sater and any Russian government officials, including officials in the office of Dmitry Peskov, regarding the Trump Moscow project? If so, identify who provided this info1mation to you, when, and the substance of what you learned.

d. Did you have any discussions between June 2015 and June 2016 regarding a potential trip to Russia by you and/or Michael Cohen for reasons related to the Trump Moscow project? If yes, describe who you spoke with, when, and the substance of the discussion(s).

e. Did you at any time direct or suggest that discussions about the Trump Moscow project should cease, or were you informed at any time that the project had been abandoned? If yes, describe who you spoke with, when, the substance of the discussion(s), and why that decision was made.

f. Did you have any discussions regarding what information would be provided publicly or in response to investigative inquiries about potential or actual investments or business deals the Trump Organization had in Russia, including the Trump Moscow project? If yes, describe who you spoke with, when, and the substance of the discussion(s).

g. Aside from the Trump Moscow project, did you or the Trump Organization have any other prospective or actual business interests, investments, or arrangements with Russia or any Russian interest or Russian individual during the campaign? If yes, describe the business interests, investments, or arrangements.

In response, Trump wrote three paragraphs.

Response to Question III, Parts (a) through (g)

Sometime in 2015, Michael Cohen suggested to me the possibility of a Trump Organization project in Moscow. As I recall, Mr. Cohen described this as a proposed project of a general type we have done in the past in a variety of locations. I signed the non-binding Letter of Intent attached to your questions as Exhibit B which required no equity or expenditure on our end and was consistent with our ongoing efforts to expand into significant markets around the world.

I had few conversations with Mr. Cohen on this subject. As I recall, they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

I vaguely remember press inquiries and media reporting during the campaign about whether the Trump Organization had business dealings in Russia. I may have spoken with campaign staff or Trump Organization employees regarding responses to requests for information, but I have no current recollection of any particular conversation, with whom I may have spoken, when, or the substance of any conversation. As I recall, neither I nor the Trump Organization had any projects or proposed projects in Russia during the campaign other than the Letter of Intent.

The first paragraph is factually accurate. The last paragraph is correct (as far as we know) with respect to having no other proposed projects, but is utterly non-responsive to a question about the response to investigative questions (including these ones) regarding the project, in part because Trump only agreed to answer questions pertaining to the campaign period.

The middle paragraph, however, is inconsistent with the documentary record, but consistent with the false statement that Cohen is now sitting in prison for.

After Cohen pled guilty, Mueller offered Trump a chance to correct his testimony, but he refused

Because I get into why that is, consider that, in the wake of Cohen’s plea, Trump admitted to remembering that the deal may have gone through the end of the campaign (the LOI was only withdrawn after the election) and Rudy ran his mouth admitting that the project went through November. In response, Mueller asked follow-up questions.

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

On this matter, then, Trump made comments to the public after submitting his responses to Mueller that made it clear his claims to not recall these matters were false. When Mueller gave him the opportunity to fix his testimony, he refused.

Part of Trump’s response exactly replicates the lies Cohen told, in a statement prepared with the input of Jay Sekulow, to Congress

With that in mind, consider the substance of that middle paragraph. It repeats the key lies that Cohen pled guilty to in December:

  • Trump and Cohen only have a few (three) conversations about the deal rather than ten or more
  • Trump did not know of any travel plans to Russia
  • Trump didn’t discuss the project with anyone else at Trump Org, including Ivanka and Don Jr
  • Cohen’s attempt to contact Dmitry Peskov in January 2016 was via a public email address and proved unsuccessful

Compare those lies with the three main lies Cohen pled guilty to.

  • The Moscow Project ended in January 201 6 and was not discussed extensively with others in the Company.
  • COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  • COHEN did not recall any Russian government response or contact about the Moscow Project.

Not knowing (or caring) that his former fixer was already cooperating with Mueller, Trump repeated precisely the same lies Cohen is now in prison for, did so under oath, and refused to fix those responses when given an opportunity to.

Cohen’s testimony, however, makes these lies even more damning.

The Trump Organization withheld the documents that would have made it clear Cohen was lying from the Committees

Again, as I noted back in January, there is no way that the lies Cohen told SSCI and HPSCI would have been sustainable if the committees had gotten all the documents they asked for. Specifically, three emails referenced in Cohen’s statement of the offense could not have been turned over to the committees without them figuring out he was lying.

On or about January 14, 2016 , COHEN emailed Russian Official 1’s office asking for assistance in connection with the Moscow Project.

On or about January 16, 2016, COHEN emailed Russian Official 1’s office again , said he was trying to reach another high- level Russian official, and asked for someone who spoke English to contact him.

On or about January 20, 2016, COHEN received an email from the personal assistant to Russian Official 1 (“Assistant 1”) , stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.

Cohen’s story (and the one Trump submitted as his sworn testimony) is that he tried emailing Dmitry Peskov’s office just once, and that via a public email address. But as Mueller describes it — citing three emails from Cohen and one response from Peskov’s assistant Elena Poliakova — he wrote one email in which he fat-fingered the address for Peskov’s email, one to the general press line, and a second to Peskov’s email. In response, Poliakova wrote back, stating, “I can’t get through to both your phones. Pls, call me.”

On January 11, 2016, Cohen emailed the office of Dmitry Peskov, the Russian government’s press secretary, indicating that he desired contact with Sergei Ivanov, Putin’s chief of staff. Cohen erroneously used the email address “[email protected]” instead of “Pr [email protected] .ru,” so the email apparently did not go through.346 On January 14, 2016, Cohen emailed a different address ([email protected]) with the following message:

Dear Mr. Peskov, Over the past few months, I have been working with a company based in Russia regarding the development of a Trump Tower-Moscow project in Moscow City. Without getting into lengthy specifics, the communication between our two sides has stalled. As this project is too important, I am hereby requesting your assistance. I respectfully request someone, preferably you; contact me so that I might discuss the specifics as well as arranging meetings with the appropriate individuals. I thank you in advance for your assistance and look forward to hearing from you soon.347

Two days later, Cohen sent an email to [email protected], repeating his request to speak with Sergei Ivanov.348 Cohen testified to Congress, and initially told the Office, that he did not recall receiving a response to this email inquiry and that he decided to terminate any further work on the Trump Moscow project as of January 2016. Cohen later admitted that these statements were false. In fact, Cohen had received (and recalled receiving) a response to his inquiry, and he continued to work on and update candidate Trump on the project through as late as June 2016.349

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.351

346 1/11/16 Email, Cohen to [email protected] (9: 12 a.m.).

347 1/14/16 Email, Cohen to [email protected] (9:21 a.m.).

348 1/16/16 Email, Cohen to [email protected] (10:28 a.m.).

349 Cohen Information ,i,i 4, 7. Cohen’s interactions with President Trump and the President’s lawyers when preparing his congressional testimony are discussed further in Volume II. See Vol. II, Section 11.K.3, infra.

350 1/20/1 6 Email, Poliakova to Cohen (5 :57 a.m.) (“Mr. Cohen[,] I can’t get through to both your phones. Pis, call me.”).

351 Telephone records show a 20-minute call on January 20, 2016 between Cohen and the number Poliakova provided in her email. Call Records of Michael Cohen After the call, Cohen saved Poliakova’s contact information in his Trump Organization Outlook contact list. 1/20/16 Cohen Microsoft Outlook Entry (6:22 a.m.).

The Poliakova email, by itself, would prove all the claims that Cohen got no response to be false.

As Cohen explained it, since he was no longer at Trump Organization anymore, he had to rely on Trump Org lawyers (probably Alan Garten) to comply with discovery requests. That probably means Garten is responsible for withholding the emails — particularly the Poliakova one — not just from Congress, but from Cohen.

Q Now, in your February 28th interview before this committee you mentioned that Alan Futerfas and Alan Garten, the two lawyers who were tied to The Trump Organization, were responsible for the document production that you produced to the committee in response to this committee’s May of 2017 subpoena. ls that accurate?

A That’s accurate.

[snip]

Q Do you have any information about why The Trump Organization would have withheld from this committee production of the January 141h, 2016, email from you to Peskov’s office?

A I do not.

Q Same question as to the January 161h, 2016, email from you to Peskov’s office regarding Sergei lvanov?

A I also do not.

Q Same question with regards to the January 20th,2016, email from Elena Poliyakova (ph)?

A I do not

THE CHAIRMAN: Mr. Cohen, what Mr. Mitchell is asking about is you’ve testified that the members of the joint defense agreement were aware that the written testimony that you were going to give to this committee was false. Documents that would have contradicted that timeline, namely, the three that Mr. Mitchell just referenced, were not produced to this committee. ls there any insight you can shed as to who might have been involved in withholding documentary evidence that would have contradicted your written false testimony?

MR. COHEN: Again, it would be other members of the joint defense team, but specifically at The Trump Organization level.

For reasons I’ll return to, Cohen was one of the only Trump people who got subpoenaed and therefore whose document compliance would be legally binding. But that means that Trump Org failed to comply with a subpoena issued not by Adam Schiff, but by Devin Nunes.

Cohen didn’t talk about these emails with Joint Defense Agreement lawyers, but he talked about the Poliakova one (and the follow-up call) with Trump

All that’s damning enough, especially since Trump claimed to Mueller that the documents turned over to his office would match his story (this is not the only sworn response where Trump falsely claimed the documentary record matches his testimony).

All the more so, though, because Trump is the one person that Cohen spoke to at Trump Org about receiving this Poliakova email (in addition to Felix Sater, who wrote the next day to say Putin’s office had contacted him, seemingly in response).

Indeed, immediately after his call with Poliakova, Cohen talked to Trump about how well versed she was on issues that mattered for their deal.

Q At what time did you speak to anyone at The Trump Organization about this email?

A About this specific email? I did not

Q Never?

A No. Well, actually, I apologize, that’s not true, I spoke to Mr. Trump about it.

Q When was that?

A That was after I had spoken to Ms. Poliyakova (ph).

[snip]

THE CHAIRMAN: And did I hear you to say that you spoke to Mr. Trump about your conversation with Mr. Peskov’s office?

MR. COHEN: Yes, with Ms. Poliyakova (ph).

THE CHAIRMAN: And was the conversation you had with Mr. Trump about that conversation with Ms. Poliyakova (ph) in person or by phone?

MR. COHEN: lt was in person.

THE CHAIRMAN: And how soon after your conversation with her on the phone did that take place?

MR. COHEN: Right afterwards.

THE CHAIRMAN: Can you tell us about the conversation you had with Ms Poliyakova (ph)?

MR. COHEN: I just found that she was very professional and her questions regarding the project were insightful. As an assistant, I was impressed, and I just made mention to him that I had spoken to an assistant for Peskov, and I was, again, incredibly impressed with her line of questioning regarding the project. And I made mention how nice it would be to have an assistant who asked such pertinent questions.

[snip]

THE CHAIRMAN: And by the detailed nature of her questions, you could tell that they knew a great deal about the project?

MR. COHEN: Yes.

THE CHAIRMAN: And what kind of questions did she have for you about the project?

MR. COHEN: The areas that obviously we would want to be building in. I don’t want to try to recollect the specific questions, but there were just very profess — they were very professional, talking about like the size of the project, the scope, length of time, where the construction crews were going to come from. I mean, it was a pretty insightful conversation.

Even if you buy that Trump forgot this conversation and the other seven he claims to have forgotten about a deal he very much wanted, you still need to explain why his responses, which allegedly account for the documentary evidence, nevertheless repeat the story that Cohen told based on a documentary record that Trump lawyers ensured was incomplete.

Given the great lengths Trump went to to not answer any of Mueller’s questions, it would take some doing for him to tell a demonstrable lie.

But he did just that with regards to the Trump Tower meeting — and refused to fix his testimony after he made it clear, publicly, that he had lied.

As I disclosed last 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. 

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

In the Barr Memo usurping Congress’ role in determining whether the evidence presented in the Mueller Report amounts to obstruction, he based a lot of his judgment finding no obstruction on the fact that Mueller “did not establish” that Trump and his campaign conspired with Russia.

In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.

The line is unbelievably cynical for several reasons. First, right at the beginning of the report, Mueller points out that his use of “did not establish” does not mean “there was no evidence.”

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Yet in spite of that warning, Barr nevertheless claims that Mueller’s observation that he did not establish Trump’s involvement in a crime related the Russia’s election interference amounts to an “absence of such evidence.”

Moreover, Barr takes that quote out of the context of Mueller’s discussions about the corrupt motives that Trump might have to obstruct the investigation. (I’ve bolded the actual sentence Barr quotes, but included both of Mueller’s discussions of Trump’s implication in potential crimes.)

In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500

[snip]

Second, many obstruction cases involve the attempted or actual cover-up of an underlying crime. Personal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose, see, e.g. , United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988), or that he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F.3d 558, 591 (2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense. See United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017) (stating, in applying the obstruction sentencing guideline, that “obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime”). Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events-such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians could be seen as criminal activity by the President, his campaign, or his family.

In both of these discussions, Mueller suggests that Trump may have believed his orders to Roger Stone to optimize WikiLeaks’ releases might be a crime when he obstructed the investigation; and in the discussion Barr extracts the quote from, he also suggests that Trump may have believed the June 9 meeting amounted to a crime.

The former is important given that Trump blatantly lied in his responses to Mueller about talking to Stone about his efforts to optimize WikiLeaks releases, even though at least three witnesses say he did. The prosecutorial decision with regards to WikiLeaks spans Volume I pages 176 to 179, but aside from a footnote explaining why they didn’t charge WikiLeaks for trafficking in stolen property, it is entirely redacted. The prosecutorial decision on Stone optimizing the release of stolen documents spans 188 to 190; it is also largely redacted, though it’s clear there were First Amendment concerns about pursuing it. Note that prosecutors continue to investigate Stone.

By contrast, the discussion of Mueller’s decision not to charge the June 9 meeting as a campaign finance violation is not redacted. Ultimately, Mueller’s team decided not to prosecute it because they did not have admissible evidence that Don Jr and the others knew taking the meeting and the offered dirt was illegal (which raises questions about whether they have hearsay or SIGINT suggesting they did), and because they had a hard time placing a value on the information offered.

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (“knowing” and “willful”), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Justice Manual§ 9-27.220.

[snip]

There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109(d)(l)(A)(i).

[snip]

Additionally, in light of the unresolved legal questions about whether giving “documents and information” of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.

[snip]

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting. [my emphasis]

This analysis is critically important for a number of reasons.

First, the Report did not say this was not a crime. Rather, it said that under Justice Manual guidelines, Mueller’s team should not prosecute the case because they were unlikely to get and sustain a conviction. The analysis suggests there was a crime, but not one Mueller would win conviction on at trial.

That, by itself, blows Barr’s analysis on obstruction out of the water, because Mueller argued that this probably was a crime. Barr says Trump could not have obstructed justice because there was no underlying crime, but in fact, Mueller said there was a crime, just not one that could be prosecuted successfully.

But it’s crucially important to an impeachment inquiry for another reason (and explains one of the apparent referrals for attempted witnesses tampering of Rudy Giuliani friend Robert Costello to SDNY — though I suspect the fact that the passages  describing Trump’s attempt to tamper with Cohen’s testimony are unredacted means SDNY will not prosecute).

Mueller’s analysis of Don Jr’s receipt of dirt from foreigners could not be prosecuted because it wasn’t clear there was a crime and he didn’t have evidence that those who engaged in the crime knew it was a crime.

But SDNY has already decided that Trump’s hush payments are a crime. And in that case, it’s far harder for Trump to claim he didn’t know it was a crime for corporations to donate to presidential campaigns, because FEC investigated him and Cohen for it in 2011. A pity for Trump that he continues to alienate the guy who saved him from legal repercussions on that crime the last time, Don McGahn.

Mueller treats the question of whether Trump obstructed Cohen’s testimony in its own section, separate from his pressure on Mike Flynn, Paul Manafort, and Roger Stone not to cooperate. After laying out Jay Sekulow’s role in suborning Cohen’s false testimony on the Moscow Trump Tower deal, Mueller actually mentions the hush payments as part of the obstruction consideration.

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign period payments to women. 1008 However, those events, as described here, are potentially relevant to the President’s and his personal counsel’s interactions with Cohen as a witness who later began to cooperate with the government.

The report shows how, as he did with the Trump Tower deal, Cohen released false statements covering up the President’s actions. It describes the search of Cohen’s property and Trump’s reaction. It describes elaborate efforts to convey to Cohen he’d be “taken care of” if he did not cooperate.

Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House. 1031 Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him. 1032 According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine. 1033 Cohen understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down. 1034

The report describes how, after Cohen pled guilty to the hush payments and implicated Trump in them, Trump turned on him.

On August 21, 2018, Cohen pleaded guilty in the Southern District of New York to eight felony charges, including two counts of campaign-finance violations based on the payments he had made during the final weeks of the campaign to women who said they had affairs with the President. 1044 During the plea hearing, Cohen stated that he had worked “at the direction of’ the candidate in making those payments. 1045 The next day, the President contrasted Cohen’s cooperation with Manafort’s refusal to cooperate, tweeting, “I feel very badly for Paul Manafort and his wonderful family. ‘Justice’ took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’-make up stories in order to get a ‘deal.’ Such respect for a brave man!”1046

Only after that does it focus, again, on Trump’s efforts to cover up the Trump Tower Moscow deal, and Trump’s retaliation against Cohen for cooperating on that issue.

When the report conducts the analysis of whether this amounts to obstruction, it includes the SDNY case in both the “nexus to an official proceeding” and “intent” sections.

Nexus to an official proceeding. The President’s relevant”conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.

[snip]

The President’s concern about Cohen cooperating may have been directed at the Southern District of New York investigation into other aspects of the President’s dealings with Cohen rather than an investigation of Trump Tower Moscow

In other words, even though Mueller didn’t prosecute the hush payments, he treated as one of the things Trump was attempting to obstruct with Cohen’s testimony.

This analysis renders Barr’s judgment — that Trump could not commit obstruction of justice because he didn’t commit the underlying crime — utterly irrelevant and wrong with regards to the President’s efforts to obstruct Cohen’s testimony.

Even with the June 9 meeting, Barr is wrong: Mueller believed there as a crime, he just didn’t believe he could prosecute it.

But SDNY has already decided — and obtained a guilty plea naming Trump as a co-conspirator — that the hush payment investigation that Trump was also obstructing was a crime, with the necessary proof that the criminals knew it was a crime. The 2011 precedent would further back that case.

Barr’s attempt to exonerate Trump on obstruction heavily depends on the fact that DOJ didn’t find a crime involving Trump.

Except DOJ did.

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

As I disclosed last 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. 

The Carr Correction and the Barr Pseudo Exoneration

Last week, Buzzfeed released part of a package of materials that Michael Cohen’s lawyers provided to Congress in what appears a last minute bid to stay out of prison. While it still represents just Cohen’s self-interested view (and not any of the corroborating information that Mueller’s team surely has), it makes it clear why Buzzfeed felt justified in claiming that Trump “directed” Cohen to lie. The most shocking new detail is that after Cohen testified, Trump’s lawyer (this package doesn’t reveal whether it was Jay Sekulow or someone else) called Cohen to congratulate him.

Trump knew with certainty that Cohen continued to discuss the Moscow Trump Tower project well beyond January 31, 2016. Yet after the testimony, Cohen received a call from Trump’s attorney, who congratulated him on the testimony – and said his “client” was happy with Cohen’s testimony.

Still, a call from one lawyer in a joint defense agreement to someone else in the JDA — a call that by description Cohen didn’t record — is not sufficient evidence to charge someone with suborning perjury.

Nevertheless, this new evidence may explain why Buzzfeed remains confident in its characterization that Trump directed Cohen to lie.

More importantly, it raises even more questions about why Peter Carr corrected the Buzzfeed characterization. As I noted at the time, someone from Rod Rosenstein’s office called Mueller’s office before they did make a correction. And the next day, Rudy Giuliani claimed credit for getting Mueller to correct the story.

And here we are, not three months later, learning new details of how closely involved Trump’s lawyers were in orchestrating Cohen’s testimony while Attorney General Bill Barr (who had been appointed but not confirmed at the time of the story) withholds Mueller’s own view of those documents, and just weeks after Barr and Rosenstein usurped the role of Congress to declare that the President’s behavior — including efforts, however inadequately supported by admissible evidence, to suborn perjury — does not amount to criminal obstruction of justice.

The details behind Rosenstein’s call and Rudy’s victory lap are not yet public; they’re certainly something the House Judiciary Committee should pursue.

But we can see how important that correction, unique in the history of the Mueller investigation, was to what has come since. The Buzzfeed story elicited the kinds of response that the long trajectory of seeing Trump direct lies should have, the recognition that that such actions might amount to impeachable offenses (which is different than Barr’s judgment about obstruction of justice, even assuming many things didn’t make that judgment suspect). By “correcting” a statement that seems utterly reasonable now, DOJ preserved the opportunity for Rosenstein and Barr to weigh in, however inappropriately.

Even at the time, it appeared that Rosenstein’s (office’s) intervention and Rudy’s victory lap (to say nothing of the campaign rolled out against Buzzfeed, including CNN doing a hit piece against Jason Leopold) should have gotten more attention than the hyperparsing of a word that was readily explainable on its face. That’s all the more clear now.

Had Buzzfeed not been corrected for what now seems an even more defensible word choice, Barr would not have had the opportunity to put his thumb on the scale of injustice.

As I disclosed last 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. 

There’s a Decent Chance Jon Karl’s Source Is Being or Was Investigated for Obstruction

Jonathan Karl, ABC White House correspondent, reported yesterday with a certainty I’m hearing from none of the DOJ beat reporters that Mueller’s report will amount to nothing.

Sources familiar with the investigation believe there are no more indictments coming from the special counsel. If Mueller follows the guidance of the man who appointed him and supervised his investigation, he cannot publicly disparage those who have not been charged with a crime.

From that, he spun out a letter Rod Rosenstein wrote at a time when Republicans were trying to expose some bureau and CIA informants, and ignored the intent of the Mueller Report, to suggest that Mueller can’t say anything bad (in a confidential report to Bill Barr, not to Congress) about Trump.

[W]e don’t need to speculate on the scope – the man who appointed Mueller has already given us a potential road map on what to expect from the special counsel.

The bottom line: Do not expect a harsh condemnation of President Donald Trump or any of his associates if they have not been charged with crimes.

I said yesterday I have no idea what The Mueller Report will bring — or even if The Mueller Report is actually where we’ll learn about Mueller’s findings. I said that, while there’s abundant evidence of a conspiracy between Trump and the Russians, it may never get charged, including for reasons that have to do with DOJ’s treatment of sitting presidents. That remains true.

But what is also likely true is that at least one of Jonathan Karl’s sources saying that they “believe there are no more indictments coming from” Mueller is either currently or already has been investigated for obstruction.

That’s because the chief source of claims like this — particularly in reporting from White House correspondents — is one or another of Trump’s lawyers, especially Right Wing operative Jay Sekulow and TV lawyer Rudy Giuliani. And we now know that both would have at least been scrutinized for obstruction.

In Sekulow’s case, Michael Cohen says the lawyer edited his perjurious statement to Congress. And even in the Sekulow denial — as reported by ABC News — he denies just that he changed the timeline of Cohen’s statement, not that he edited it.

During a closed-door hearing with the House Intelligence Committee on Wednesday, Michael Cohen, the former personal attorney and fixer to President Donald Trump, shared documents and emails with committee members showing what he said were edits to the false statement he provided to Congress in 2017, in an effort to bolster his public testimony last week, according to two sources familiar with the matter.

Testifying publicly before the House Oversight Committee last week, Cohen said Trump’s current personal lawyer Jay Sekulow changed the former Trump loyalist’s statement to the House and Senate Intelligence Committees regarding the duration of discussions about the Trump Tower Moscow project before he submitted it to Capitol Hill.

Last week Sekulow denied the claims in a statement to ABC News.

“Today’s testimony by Michael Cohen that attorneys for the President edited or changed his statement to Congress to alter the duration of the Trump Tower Moscow negotiations is completely false.”

Mueller cited Cohen’s description of his communications with the White House in this period — and specifically the circumstances of preparing the statement — among the ways he helped the investigation.

Third, Cohen provided relevant and useful information concerning his contacts with persons connected to the White House during the 2017–2018 time period.

Fourth, Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it.

With regards to Rudy, ABC News was among the outlets that recently provided details of what appears to be a pardon dangle to Cohen after he was raided.

In the weeks following the federal raids on former Michael Cohen’s law office and residences last April, President Donald Trump’s former lawyer and confidant was contacted by two New York attorneys who claimed to be in close contact with Rudy Giuliani, the current personal attorney to Trump, according to sources with direct knowledge of the discussions.

The outreach came just as Cohen, who spent more than a decade advocating for Trump, was wrangling with the most consequential decision of his life; whether to remain in a joint defense agreement with the president and others, or to flip on the man to whom he had pledged immutable loyalty. The sources described the lawyers’ contact with Cohen as an effort to keep him in the tent.

Yet for all the attention paid to what Cohen was willing to say about the president, his reluctance to answer a question about the last communications he had with Trump or someone acting on his behalf made news on its own. Cohen clammed up and claimed that federal prosecutors were actively probing that very issue.

“Unfortunately, this topic is something that’s being investigated right now by the Southern District of New York, and I’ve been asked by them not to discuss and not to talk about these issues,” Cohen said.

The sources familiar with the contacts said the two lawyers first reached out to Cohen late in April of last year and that the discussions continued for about two months. The attorneys, who have no known formal ties to the White House, urged Cohen not to leave the joint defense agreement, the sources told ABC News, and also offered a Plan B. In the event Cohen opted to exit the agreement, they could join his legal team and act as a conduit between Cohen and the president’s lawyers.

At one point in the discussions, one of the attorneys sent Cohen a phone screenshot to prove they were in touch with Giuliani, the sources said.

According to ABC’s sources, this matter is currently under investigation by SDNY.

I mean, it’s certainly possible that someone else is sourcing Karl’s seeming unique certainty about what will come of the Mueller report. It’s certainly possible that ABC’s White House correspondent has better sources at DOJ than all the DOJ reporters who say they don’t know. It’s certainly possible his sources don’t include someone that DOJ had at least reason to believe had participated in obstruction.

But if Karl’s sources are people that his own outlet has reported to be under investigation for obstruction, he ought to at least temper his certainty that they can be believed.

Update: Rudy has gone on the record with exactly the line that Karl regurgitated yesterday.

As I disclosed last 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. 

The Metadata of the HJC Requests

While the rest of us were looking at the content of the letters the House Judiciary Committee was sending out to witnesses yesterday, @zedster was looking at the metadata. The requests have dates and times reflecting three different production days: towards end of the work day on March 1 (Friday), a slew starting just after 3PM on March 3 (Sunday), with some individualized documents between then and Sunday evening, with a ton of work being done until 1:30 AM March 4 (Monday morning), and four more trickling in after that.

I think the production dates likely reflect a number of different factors.

First, the letters are boilerplate, which may explain why most of those were done first. Three things might explain a delay on any of those letters: either a late decision to include them in the request, delayed approval by SDNY or Mueller for the request, or some difficulty finding the proper addressee for the letter (usually, but not always, the person’s counsel of record). Not all of these addresses are correct: as one example, Erik Prince reportedly has gotten a new lawyer since Victoria Toensing first represented him, but has refused to tell reporters who represents him now; his letter is addressed to Toensing.

One other possible explanation for late dates on the letters is that the decision to call them came out of Michael Cohen’s testimony last week (and some of those witnesses would have had to have been approved by SDNY as well). As an example, the last document in this set is the one to Viktor Vekelsberg, which clearly relates to Michael Cohen (though interest in him may have come out of Cohen’s HPSCI testimony).

The other two late letters are Cambridge Analytica and Donald Trump Revocable Trust. Both appear to be revisions — a third revision for the former and a second for the latter.

That said, the letters completed after March 1 are interesting: Aside from some institutional letters (like FBI and GSA), they appear to be likely subjects of ongoing investigative interest, whether because of the investigation into Trump’s inauguration, Roger Stone’s prosecution, Maria Butina’s cooperation, ongoing sensitivities relating to Paul Manafort, or the National Enquirer.

Some of these topics happen to be the last topics listed on the Schedule As (I got this from Jared Kushner’s Schedule A which is one of if not the most extensive), including WikiLeaks, Manafort’s sharing of polling data (with the Ukrainian oligarchs, but no Oleg Deripaska), Michael Cohen’s Russian-related graft, and Transition graft, including with the Gulf States. There’s no separate category of documents tied to the NRA.

The Schedule As were based off boilerplate and tailored very loosely based on the recipient; this may have been an area where prosecutors weighed in. These later approvals include a slew of Cambridge Analytica people (remember, Sam Patten, who had ties to the organization, was not included in this request at all). Alexander Nix’s Schedule A is a revision. So is Trump Organization lawyer Alan Garten’s. Some of the people central to any obstruction inquiry — Don McGahn, Jeff Sessions, former McGahn Chief of Staff Annie Donaldson, and Jay Sekulow — were among the last Schedule As printed out.

All of this is just reading tea leaves.

But it does seem to reflect some ongoing sensitivities (the Gulf States, Cambridge Analytica, and obstruction) that got approved last, with some areas (Oleg Deripaska) being significantly excluded.

As I disclosed last 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. 

The May 18, 2017 Meeting with Trump, Jay Sekulow, and Michael Cohen

One of the things that happened in yesterday’s Michael Cohen testimony is that Gerald Connolly seems to have dated a meeting between the President, Cohen, and Jay Sekulow: May 18, 2017. That’s based off a May 16 email that refers to a Thursday meeting.

Gerry Connolly: There was an email from a special assistant to the President to a Deputy White House Counsel, and the email is dated May 16, 2017 and it says, and I quote, POTUS, meaning the President, requested a meeting on Thursday with Michael Cohen and Jay Sekulow. Any idea what this might be about, end-quote? Do you recall being asked to come to the White House on or around that time, with Mr. Sekulow, May of 2017?

Michael Cohen: Off the top of my head sir, I don’t. I recall being in the White House with Jay Sekulow and it was in regard to the document production as well as my appearance before the House Select Intel.

Thursday that week would have been May 18.

As Cohen lays out in the rest of the clip, at the meeting Trump told him to cooperate but then repeated the lines (Cohen says he knew) Trump wanted him to use: There is no Russia, there is no collusion, there is no deal. This stuff has to end.

If that is, indeed, when Cohen and Sekulow started working on Cohen’s perjurious testimony, it is remarkable timing. This post has a timeline of Cohen’s evolving lies. Of note, the timing in May looks like this:

May 9: Trump fires Jim Comey

May 16: Trump asks for a meeting with Sekulow and Cohen

May 17: Rod Rosenstein appoints Mueller

May 18: Cohen, Sekulow, and Trump meet during which Trump lays out the party line

May 30: Cohen says he won’t cooperate with HPSCI

May 31: HPSCI subpoenas Cohen and his law firm

Among other things, this means that Trump was laying out a party line even before Mueller got appointed. It also means that They recognized the risk of this testimony before the HPSCI request moved to a subpoena.

Remember, according to his testimony yesterday, Cohen claimed Sekulow edited his testimony, including by foreshortening the time during which the Trump Tower deal remained active during the election (though Sekulow denies it).

As I disclosed last 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. 

Quid Pro Quo Redux, Part One: The Trump Tower Dangle

Last May, I wrote a series using the questions (as imagined by Jay Sekulow) Mueller had posed to Trump to lay out what theory of investigation Mueller might be pursuing — and what details we know about it. We’ve learned a lot more about the investigation and confirmed that the investigation focusing on Trump personally includes both a criminal and a counterintelligence component. I wanted to update the series. Because we know so much more about both sides of this quid pro quo, the organization of the series will be somewhat different.

November 9, 2013: During a 2013 Trip To Russia, What Communication and Relationships Did You Have with the Agalarovs and Russian Government Officials?

On November 9, 2013, Aras Agalorov helped Trump put on Miss Universe in Moscow; Trump Tower meeting attendees Rob Goldstone and Ike Kaveladze were both involved, as were Don Jr, Michael Cohen, and Keith Schiller. If the pee tape — or any kompromat involving “golden showers,” as Jim Comey claims Trump called it — exists, it was made on November 8, 2013.

The prior trip set up the 2016 quid pro quo in several ways. First, it deepened Trump’s desire for a Moscow Trump Tower — an effort the Agalrovs and Trumps pursued for years after the meeting. It established Trump’s enthusiasm for Vladimir Putin — though Putin reportedly disappointed Trump’s desire for a meeting on that prior occasion. It also introduced Trump to a bunch of other oligarchs.

Just after Trump kicked off his presidential bid, Emin invited Trump to his father’s birthday party in Moscow on November 8 (PDF 17), the first of a series of outreaches during Trump’s campaign which would continue through the election. The Agalarovs would remain the key handlers of the Trump family until shortly after the election, when first Sergei Kislyak, then Putin himself, would take over interacting with Trump and his family.

September 25, 2015 to November 2016: What Communication did you have with Michael D. Cohen, Felix Sater, and others, including foreign nationals, about Russian real estate developments during the campaign

By September 25, 2015, Felix Sater and Michael Cohen already had a Moscow design study completed for a Trump Tower in Moscow. Days later, Andrey Rozov was promising to build Donald Trump the tallest tower in Europe. In October 2015, Felix Sater (whose actions in brokering this deal seemed designed to ensure that Trump’s willingness to work with Russian military intelligence and sanctioned banks would leave a digital paper trail) started pitching the centrality of Putin to the deal. On October 28, at a time when his presidential bid was meeting unexpected success, Trump signed a Letter of Intent on a deal that stood to make him a fantastic sum of $300 million.

In the days after getting the signed letter of intent and in response to Trump publicly complimenting Putin at a press conference, Sater bizarrely tied the deal to getting Trump elected. He claimed to believe that if Putin complimented Trump’s deal-making prowess at a press conference tied to a then hypothetical Trump trip to Moscow, it would help Trump’s election chances.

Michael my next steps are very sensitive with Putins very very close people, we can pull this off. Michael lets go. 2 boys from Brooklyn getting a USA president elected.

Sater first tried to get commitments for both Cohen and Trump to travel to Moscow (with the documents to prove it) in December 2015. While Cohen was willing to share his passport, he held off on Trump’s. Perhaps as a result of Cohen’s increasing impatience with Sater’s swapping out a lightly sanctioned bank for a more compromising one, Cohen said he wanted to take more control. That led to him to reach out to Dmitry Peskov directly (who had been involved in Trump’s efforts to meet Putin in 2013), which in turn led him to have a 20 minute call with Peskov’s personal assistant on January 21, 2016. Over the course of that conversation, she would have taken notes recording Cohen committing to Trump’s willingness to work through a former GRU officer and with sanctioned banks to get his $300 million deal. By the next day, Putin’s office had that in hand, the first of many receipts he would obtain on Trump, making him susceptible to compromise regardless of what happened.

Cohen smartly shifted negotiations to the encrypted communication app Dust for a time. But when Sater renewed discussions about a trip to Russia to make this happen in May 2016, he did so on texts that would be accessible to law enforcement. And Cohen made it clear Trump had to seal the nomination before he would risk making his coziness with Putin public, making it crystal clear that the election and the Trump Tower deal remained linked in his brain.

Both Trump and Don Jr were thoroughly briefed on these negotiations. That means when Don Jr accepted a meeting offering dirt on Hillary as part of Russia’s support for Trump, he would have known that a $300 million real estate deal might depend on taking the meeting. Don Jr took the June 9, 2016 meeting and — per four sworn witnesses’ statements — agreed to revisit Magnitsky sanctions if his father won.

At almost exactly the moment that meeting broke up, Felix Sater texted Cohen to take the next step on a deal, a trip for him to St. Petersburg, potentially to meet with Putin personally. Oleg Deripaska and Sergei Millian (the latter of whom Cohen had also worked with in the past) would also have been at the event.

In the days after the Trump Tower meeting, Sater and Cohen were scrambling to put together the trip to St. Petersburg at the last minute. But they looked like they would pull it off, only to have the WaPo report, on June 14, 2016, that Russia hacked the DNC postpone the plans for the trip.

That said, Cohen only said, “he would not be traveling at that time.” The news that Russia hacked Trump’s opponent didn’t kill the deal. It just made it more difficult.

On July 22, 2016 — the day that WikiLeaks released the DNC emails — George Papadopoulos (possibly with the coaching of Ivan Timofeev) and Sergei Millian seem to have picked up keeping discussions of a deal alive from Cohen and Sater.

According to the President’s current teevee lawyer, Trump answered Mueller’s questions on this topic to allow for the possibility that the Russian deal remained active through November. He’s just not committing to any story about how long the deal remained (or remains) active.

One thing to remember about this Trump Tower deal. The deal was too good to be true (and to some degree that’s the point!). But it fed all of Trump’s character weaknesses. The promise of having the tallest tower in Europe would feed Trump’s narcissism. The fairly ridiculous claim Trump Organization stood to make $300 million off of it would have been irresistible to the highly indebted family.

And in exchange for that, Trump showed repeated and sustained willingness to deal with GRU-tied individuals and sanctioned banks. And at the June 9 meeting, his spawn made it clear he’d trade policy considerations to get the deal.

As I disclosed last 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. 

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn 302

Mike Flynn statement of the offense

Mike Flynn cooperation addendum

Peter Strzok 302 (describing Flynn’s interview)

Michael Cohen statement of the offense

Internet Research Agency indictment

GRU indictment

Senate Judiciary Committee materials on June 9 meeting

BuzzFeed documents on Trump Tower deal

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

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.

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. 

No, Mueller Probably Didn’t Subpoena Trump, Yet

Nelson Cunningham, who has far better legal qualifications than I do but who, as far as I’ve seen, has written very little on the Mueller investigation has taken Politico’s very good reporting on a second appeal involving the Mueller inquiry and started a parlor game among people convinced this means Trump got a subpoena. Jay Sekulow has already denied the report.

Cunningham bases his argument on the following observations, along with the observation that the initial court filings came the day after Rudy Giuliani announced he had completed writing a challenge to an as yet unserved subpoena:

  • The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court – and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
  • The appeals court itself responded with remarkable speed, too. One day after getting the witness’s motion, the court gave the special counsel just three days to respond – blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
  • At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
  • Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s 8 days after the midterm elections). Oral arguments are set for December 14.

I suspect the subpoena — if that’s what this is — is either for a White House figure (John Kelly or Don McGahn might be possibilities), a lawyer (Trump Organization lawyers Alan Garten and Alan Futerfas both had non-privileged conversations about the pushback on the June 9 meeting, as did Agalarov lawyer Scott Balber), or a journalist (Chuck Johnson and Lee Stranahan have denied having been contacted by Mueller; Hannity would be another possibility).

I’ve laid out the underlying timeline, below. There are three dockets involved in the mystery challenge: 18-gj-41-BAH, which is sealed, and 18-3068 and 18-3071 before the DC Circuit. For point of comparison, I’ve included Andrew Miller’s appeal of a grand jury subpoena in the timeline (which Cunningham doesn’t mention at all), in italics, as well; those docket numbers are 18-gj-34-BAH and 18-3052. I’ve also included some key public reports that Cunningham doesn’t mention that provide key context.

Miller’s docket easily disproves one of Cunningham’s arguments: that the appeal itself was very quick. Miller, like the mystery challenger, both filed their appeal within days (suggesting that timing came from Beryl Howell, not the appellants). With Miller, there was a pause to litigate the issue of Concord Management’s status, but that pause was litigated on the same accelerated schedule as the jurisdictional issue for the mystery appellant. With the mystery appellant, there appeared to be some slam dunk procedural issue for why the Circuit did not yet have jurisdiction. It was suggested to me that the mystery person may not have taken the legal step of being held in contempt before appealing, as Miller did, which would explain the quick jurisdictional response for the mystery challenger.

Miller’s docket also shows that the results of motion to expedite aren’t that dramatic. With no expedited schedule, Miller’s initial schedule (including the Concord litigation) provided him 24 days for his opening brief, gave Mueller 16 days to respond, and Miller 5 days to reply, with 41 days for the Circuit to consider the appeal or a total of 85 days after the filing. As Cunningham notes, the mystery appellant got just 11 days to file the initial brief, Mueller got two weeks to respond, and the mystery appellant got 7 days to reply. The Circuit gave themselves a month to consider the appeal, or a total of 65 days from second appeal. But that works out to be 81 days from the initial September 24 appeal, about the same amount of time as Miller’s appeal. The expedited time here mostly came out of the appellant’s time for the initial brief and the Circuit consideration (which might be a fair outcome given the appeal without jurisdiction); Mueller’s schedule remains roughly similar. It has been suggested that the mystery appellant’s decision to appeal in spite of that procedural flaw may have provided more urgency for the appeal (for example, if Howell had not stayed contempt for the mystery appellant, then the risk of jailing would be greater than it would be for Miller, for whom she stayed the contempt).

Finally, Cunningham doesn’t consider something else in the public record. On October 11, right in the middle of this litigation, CNN revealed that Mueller had given Trump — and Trump was working on — a set of questions pertaining to conspiracy. The other day, Bloomberg reported that Trump had finished answers to that question, but was withholding them pending the outcome of the election. It’s possible that the White House would voluntarily answer questions on conspiracy while litigating a subpoena for testimony on obstruction. Perhaps they would adopt that approach if their subpoena challenge pertains exclusively to actions Trump took as President, and if that were the case, that might explain the real reason Rudy was stalling on returning the answers, to see if the subpoena challenge worked. If that were the case, though, he would have to invent new reasons to explain the delay from November 6 past December 14, when the case will be heard (and he has promised to appeal any subpoena to SCOTUS). Alternately, Rudy could be stalling on the answers to await the appeal and using the election as his excuse just to avoid making this appeal public before the election.

One other thing that might support Cunningham’s argument that he doesn’t raise is Brett Kavanaugh’s confirmation on October 6. Having confirmed Kavanaugh might explain the decision to ask for en banc consideration of what is probably a slam dunk procedural issue, in hopes of short circuiting the route to SCOTUS. But everyone in this investigation, including Yevgeniy Prigozhin’s team, have tailored their actions to Kavanaugh’s presence on SCOTUS since even before he was confirmed.

Still, I think all that less likely than other explanations, not least because this White House has never kept things like this secret, nor would they if they could use it to argue that Trump needs a good electoral turnout to keep him safe, legally.

I’m at least as intrigued by the way the timeline overlaps with Don McGahn’s last big press push, around the same time as the initial filing before Beryl Howell. A lawyer like McGahn would also have reason to want to avoid the jurisdictional step of being held in contempt (indeed, if he had been held in contempt, it might explain one reason for the urgency of the appeal). It’s also one possible explanation for why someone would skip that step — another being that whoever is making this challenge is even less well-lawyered than Miller. Finally, if it were McGahn appealing a grand jury subpoena, Katsas’ recusal would be a no-brainer (though he has said he would recuse more generally).

There are, still, plenty of other possibilities, though. And Cunningham’s case is nowhere near as strong as suggested once you compare it with what happened with the relatively anonymous, powerless Andrew Miller challenge in the very same matter.

Timeline

6/13/2018: Date filed (18-gj-34-BAH) [For more on Miller’s stalling, since May 10, on this subpoena, see this post]

7/6/2018: Report that Emmet Flood had been contesting Mueller request for John Kelly testimony for a month

8/10/2018: Date of judgment (18-gj-34-BAH)

8/14/2018: Notice of appeal (18-3052)

8/15/2018: Clerks order to file initial submissions on 8/30/2018 (18-3052)

8/16/2018: Per curium order setting briefing Appellant 9/7/2018, Appellee 9/23/2018, Reply 9/28/2018  (18-3052)

8/15/2018: Rudy Giuliani states, “we’re pretty much finished with our memorandum opposing a subpoena”

8/16/2018: Date filed (18-gj-41-BAH)

8/18/2018: NYT story describing third Don McGahn interview claiming unprecedented cooperation for a White House Counsel

8/30/2018 : Statement of issues (18-3052)

8/30/2018: Motion to extend time to file to 9/10/2018  (18-3052)

9/10/2018: Motion to extend time to file to 9/11/2018  (18-3052)

9/12/2018: Appellant brief submitted; Length of Brief: 10,869 Words (18-3052)

9/19/2018: Date of judgment (18-gj-41-BAH)

9/24/2018: Notice  of appeal  (18-3068)

9/27/2018: Motion to stay underlying appeal  (18-3068)

9/28/2018: Per curium order directing response from Mueller (18-3068)

9/28/2018: Appellee brief submitted  (18-3052)

10/01/2018: Mueller response in opposition (18-3068)

10/01/2018: Appellant response  (18-3068)

10/03/2018: Per curium order dismissing case for lack of jurisdiction  (18-3068)

10/05/2018: Date of order  (18-gj-41-BAH)

10/05/2018: Petition for re-hearing en banc  (18-3068)

10/6/2018: Brett Kavanaugh confirmed

10/09/2018: Appellant brief submitted (18-3052)

10/09/2018: Notice of appeal (18-3071)

10/10/2018: Appeal docketed (18-3071)

10/10/2018: Joint motion to expedite  (18-3071)

10/11/2018: Report that Trump preparing answers to Mueller’s questions about conspiracy with Russia

10/12/2018: Per curium order granting motion to expedite Appellant 10/23/2018, Appellee 11/07/2018, Reply 11/14/2018:  (18-3071)

10/22/2018: Hearing scheduled for 12/14/201 (18-3071)

10/22/2018: Appellant brief submitted; Length of Brief: 12904 words (18-3071)

10/24/2018: Per curium order denying re-hearing en banc (with Greg Katsas recused) (18-3068)

10/29/2018: Rudy Giuliani states legal team has prepared written responses to several dozen questions from Special Counsel Robert Mueller but say they won’t submit them until after next week’s elections and only if they reach a broader agreement with Mueller on terms for the questioning

11/8/2018: Hearing scheduled (85 days after filing)

12/14/2018: Hearing scheduled (65 days after filing) (18-3071)