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Trump Risks that Every Action Matt Whitaker Takes as Attorney General Can Be Legally Challenged

George Conway (Kellyanne’s spouse, whom Trump considered to be Solicitor General) continues his habit of criticizing Trump from a conservative legal stance. This time, he joins Neal Katyal, author of the Special Counsel regulations under which Mueller operates, to argue that Trump’s appointment of Matt Whitaker is unconstitutional because Trump can’t name someone who hasn’t been Senate confirmed when a Senate confirmed candidate is available. The whole op-ed — which relies on a recent Clarence Thomas concurrence — is worth reading, but my favorite line is where they call Whitaker a constitutional nobody.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

I’m just as interested in what three rising Democratic House Chairs (House Judiciary Committee’s Jerrold Nadler, HPSCI’s Adam Schiff, and Oversight and Government Reform’s Elijah Commings) did, along with Dianne Feinstein. In the wake of Jeff Sessions’ resignation, they sent letters to every relevant department warning them to preserve all records on the Mueller investigation and Sessions’ departure. In their press release, they referred to Sessions departure not as a resignation, but as a firing.

Last night, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Intelligence Committee Ranking Member Adam Schiff (D-CA), Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD), and Senate Judiciary Committee Ranking Member Dianne Feinstein sent letters to top Administration officials demanding the preservation of all documents and materials relevant to the work of the Office of the Special Counsel or the firing of Attorney General Jeff Sessions.

In their letters, the Members wrote:  “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office, and preservation of records is critical to ensure that we are able to do our work without interference or delay. Committees will also be investigating Attorney General Sessions’ departure. We therefore ask that you immediately provide us with all orders, notices, and guidance regarding preservation of information related to these matters and investigations.”

Letters were sent to the White House Counsel Pat Cipollone, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Gina Haspel, Deputy U.S. Attorney for the Southern District of New York Robert Khuzami, Treasury Secretary Steven Mnuchin, NSA Director Paul Nakasone, IRS Commissioner Charles Rettig, and Acting Attorney General Matt Whitaker. [my emphasis]

Even the letters themselves, while they don’t use the word “firing,” emphasize the involuntary nature of Sessions’ ouster.

Our understanding is that Attorney General Jeff Sessions has been removed at the request of the President. We ask that you confirm that the Justice Department has preserved all materials of related to any investigations by the Special Counsel’s office, including any related investigations conducted by any component of the Justice Department. We also ask that you preserve all the materials related to the departure of Attorney General Sessions.

While it’s not clear whether they more basis to believe this was a firing rather than a resignation, they’re proceeding as if it was, legally, a firing. That’s crucial because the only way that Whitaker’s appointment, as someone who is not Senate confirmed, would be legal under the Vacancies Reform Act is if Sessions legally resigned. The Democrats seem to suspect they can argue he did not.

And that’s important because (as Katyal and Conway argue) if his appointment is not legal, than nothing he does as Attorney General is valid.

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

Plus, by demanding preservation of the records and framing this in terms that suggest Whitaker’s appointment was not legal (I’m not sure I agree, but encourage HJC to ask Katyal and Conway to argue the case for them), HJC lays out a basis to claim standing to challenge this, particularly if and when Whitaker makes a decision (such as preventing HJC from obtaining any report Mueller writes) that will cause them injury as an independent branch of government.

Again, I’m not sure I agree with the Katyal/Conway legal argument, though if HJC can prove that Sessions was fired then it’s clear Whitaker was not legally appointed. But these two challenges pose a real risk for Trump. It risks not just decisions pertaining to the Mueller investigation, but even things like surveillance approvals, can be challenged by anyone harmed by them (who gets notice of it). That’s an unbelievable risk for a position as important as Attorney General.

Back when a guy named Robert Mueller had his FBI tenure extended two years in 2011, Tom Coburn worried that even that action, done with Senate approval, would make the approvals Mueller made under Section 215 (this was before we knew the scope of the phone dragnet) legally suspect.

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

Coburn was worried about one (or a few) surveillance programs. The Attorney General touches far more than the FBI Director, and Trump’s DOJ could spend just as much time in court trying to defend the actions of his hatchetman.

And it looks like both the author of the statute governing Mueller’s appointment and the people who will oversee DOJ in a few months have real questions about the legality of Whitaker’s appointment.

Has This Been the Plan Since August 2017?

Maggie Haberman just observed that Jeff Sessions’ resignation letter is not dated. (Update: NYCSouthpaw actually noted that before Maggie did.) While some of the details in it — such as his claim to have “prosecuted the largest number of violent offenders and firearm defendants in our nation’s history” — seem to reflect the full 22 months of his tenure, nothing in it clearly marks it as having been written today. So I think that is what probably happened.

But there’s a scenario that makes me wonder whether this isn’t what Trump has been planning since July 2017, the last time Trump got really furious with Jeff Sessions.

Consider this timeline:

July 19, 2017: Maggie and Mike tee up a question (obviously working from the White House script) about how investigating Trump’s finances would represent crossing a red line.

On July 25 and 26, 2017, Trump took to Twitter to bitch about Sessions.

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

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

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

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

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

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

On September 22, 2017, Whitaker was hired to be Sessions’ Chief of Staff.

In other words, Trump may have been pursuing this plan since July 2017.

If so, then Mueller may have already anticipated that, because he asked four questions about that episode in March, as well as questions about what he did in response to Sessions’ earlier recusal.

  • What did you think and do regarding the recusal of Mr. Sessions?
  • What efforts did you make to try to get him to change his mind?
  • Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
  • What did you think and what did you do in reaction to the news of the appointment of the special counsel?
  • Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
  • What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
  • What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
  • What was the purpose of your July 2017 criticism of Mr. Sessions?

Whatever it was, Trump obtained Sessions’ resignation before today’s press conference, so it’s possible Whitaker already tried to move against Mueller today, relying on the ground work he laid over a year ago.

The one thing that would suggest otherwise is the plea deal Manafort entered. I’ve argued that it is pardon proof, partly because it would include state charges and partly because Manafort would lose all his ill-gotten gains if Trump didn’t pardon him first. For reasons I won’t write up yet, I’m not sure that’s entirely true (though Manafort has provided a lot of information in the last several months).

That’d be way better planning than Trump has pulled off on any other thing. But then, protecting himself is the thing he’s best at.

Update: I’ve added a few things to this timeline.

Update: According to John Q Barrett, who spent some time in the CNN Green Room last year, his entire point for going on CNN was to curry favor with Trump.

Whitaker told me in June 2017 that he was flying out from Iowa to NYC to be on CNN regularly because he was hoping to be noticed as a Trump defender, and through that to get a Trump judicial appointment back in Iowa.

And this (very detailed) WaPo piece describes Trump as telling aides he would not recuse, which raises questions about whether Whitaker told him so directly.

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

Matt Whitaker Can’t Prevent Mueller from Unsealing Any Sealed Indictments

After spending a 1.5 hour press conference denying he “colluded” with Russia, Trump just proved he did by forcing Jeff Sessions to resign. He announced Sessions’ Chief of Staff, Matt Whitaker, will be the Acting Attorney General. DOJ has already announced Whitaker will take over oversight of the Mueller investigation. Before he was even hired as CoS, Whitaker pointed to the Red Line Trump’s stenographers at the NYT teed up for him, suggested Mueller had crossed it, and that that represented going too far.

He has also laid out how to kill the Mueller investigation — by defunding it.

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

It’s all going as I predicted it might in this TNR piece last week.

All that said, Mueller was surely expecting just such an eventuality. And the fact that they got Roger Stone attorney Tyler Nixon to testify Friday suggests they were prepping for it, getting the last bit of evidence against Stone in place.

The only question is whether they got the grand jury to approve whatever indictments they were working on. I’d be surprised if Mueller didn’t (unless Rod Rosenstein prevented him from doing so).

If that’s the case, then Whitaker is not going to help Trump get out of his legal troubles. That’s because Chief Judge Beryl Howell, not Whitaker, will make the decision about unsealing anything sealed in this grand jury investigation.

So if Mueller prepared for this very predictable eventuality, then Trump may have just fired a key player in his racist agenda for naught.

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. 

Trump Refuses to Keep This Country Safe from Terrorism

I thought a lot about two things over the weekend.

I thought about the line that disqualifies an otherwise excellent book on left wing terrorism in the 1970s, Days of Rage: “With the possible exception of the Ku Klux Klan,” author Bryan Burrough claimed close to the beginning of the book, “the United States until 1970 had never spawned any kind of true underground movement committed to terrorist acts.” The book, which spends a lot of time talking about left wing political violence in significant part stemmed out of a concern for the rights of African Americans, utterly dismissed (perhaps because it was so widely accepted it could barely be called “underground”?) America’s most persistent terrorist movement as such. The line has haunted me ever since as an example of the kind of blindness even experts have about the centrality of right wing terrorism in American history.

I thought, too, about Charlie Savage’s description in Power Wars of how Scott Brown’s team claimed that his polling showed he won the 2010 special election to replace Ted Kennedy chiefly because of perceptions of how Obama responded to Umar Farouk Abdulmutallab’s failed Christmas Eve bombing, because Brown attacked Obama for wanting to give terrorists due process. Once Republicans learned that, they doubled down, encouraging voters to become more afraid.

In a question-and-answer period following his prepared remarks, [Mitch] McConnell candidly acknowledged the political advantage of hammering away at the issue, citing Brown’s victory.

“If this approach of putting these people in U.S. courts doesn’t play in Massachusetts, I don’t know where it sells,” McConnell said, adding: “You can campaign on these issues anywhere in America.”

As Savage describes, that was when Obama started caving on his efforts to adopt a more reasonable approach to terrorism, first reversing Eric Holder’s decision to try the 9/11 defendants in NYC, then launching an 18-month campaign to drone kill Anwar al-Awlaki, and ultimately failing to close Gitmo or hold torturers to account.

Now, as Savage tells it, all that arose solely out of the Abdulmutallab case. He barely covered an event that preceded it, one where Republicans very much set up the Brown lines: when Pete Hoekstra leaked information obtained via FISA collection showing that Nidal Hasan had had communications with Awlaki before his attack on Fort Hood, using it to suggest the Obama Administration should have prevented the Fort Hood attack by adequately analyzing collected communications. Republican efforts to exact a cost from Obama for a more reasonable approach to terrorism (which included demanding that Obama call Hasan’s attack on a military target, terrorism) actually preceded the Abdulmutallab attack, and it was far more deliberate than made out.

The point is, though, that it had the short term desired effect of breaking the Democratic super majority in the Senate and the longer term effect of making Obama reactive on terrorism, rather than proactive (even through the time, in 2013, when Massachusetts was successfully attacked at the Boston Marathon and polls showed people actually didn’t want any more limits on civil liberties). Republicans deliberately and successfully forced a president who wanted to be something other than a War on Terror President to instead be just that.

And now, 8 years after Mitch McConnell gleefully said Republicans should run on hard nose accountability for terrorist attacks everywhere, Republicans are whining that Democrats are treating Trump’s actions in advance of and in the wake of serial right wing terrorist attacks last week as a political issue.

In the wake of last week’s terrorist attacks, we have returned to a discussion we always have after such things, why we call Islamic terrorism terror, but call the targeting of black churches and Jewish synagogues hate crimes and the attempted assassination of Democratic figures bomb attacks. Popehat wrote a worthy lawsplainer, from the viewpoint of a former prosecutor, why domestic terrorists don’t get (immediately) labeled as terrorist attacks. 9/11 Commission staffer Daniel Byman acknowledged that while we don’t have the same legal structure for pursuing domestic terrorist as we do terrorism with a foreign nexus, for the Pittsburgh case, at least, we should probably use the T-word.

I’ve talked about why it is important to call domestic terrorism terrorism here: First, because not doing so results in an equal protection problem, where Muslims are more likely to be targeted in a sting because the FBI has greater access to the communications of still-innocent people with suspect people overseas. And, because calling something terrorism conceives of the possibility of a supporting network, and investigating that network might prevent deaths, such as those perpetrated by the networks of Eric Rudolph or Kevin Harpham.

But the government may not call these acts terrorism. That’s true, in part, because DOJ has invented a separate category to criminalize (impose the death penalty on) hateful motives with hate crimes designation. In addition, Jeff Sessions’ DOJ has adopted a deliberate policy of record-keeping to try to claim that the greatest threats come from outside the country, which is paralleled by their thus far unsuccessful attempt to brand the (US-born) MS-13 gang both as a threat sourced from Central American and as a threat to rival ISIS.

Trump’s effort to brand a group of refugees 1,000 miles from the border as a more urgent threat to the country than corruption or climate change or domestic gun violence — an effort which likely had a tie to both Cesar Sayoc’s terrorist attempt and Robert Bowers’ mass killing — is more of the same, an effort to claim that the most critical threats are foreign and anything he deems a threat is therefore un-American, also foreign.

Ultimately, the reason why the government won’t call last week’s attacks terrorism, however, is precisely the reason they should. Call them terror attacks, and the networks of support and enablers get investigated rather than just isolated men treated as lone wolves. Call them terror attacks, and we start to ask what responsibility Lou Dobbs or Steve King or Chris Farrell (or the people who vote for and fund them) — or Donald Trump — have for the attacks, in the same way we held Anwar al-Awlaki responsible for his role in the terrorist attacks that Scott Brown exploited to get elected.

Byman describes correctly how contentious this can be, because those espousing the same policies as terrorists don’t want to be associated with those terrorist acts.

[D]omestic terrorism often has a bigger political impact than jihadi violence. A foreign-based attack brings America together in the face of tragedy. But right-wing (and left-wing) violence is more likely to divide the country. Just this week, for example, 56-year-old Cesar Sayoc reportedly sent explosive packages to CNN, Democratic politicians, and others seen as “enemies” of Trump. Some right-wing voices immediately embraced conspiracy theories rather than recognizing his activities for what it was. Domestic terrorists poke at bigger political wounds than do jihadis, with at least some Americans sympathizing with their cause even as they reject their violent means.

In turn, observers often avoid the word “terrorism” because peaceful proponents of right-wing and left-wing causes don’t want to be lumped together, even by weak association, with terrorists. We can and should recognize that most political groups of all stripes abhor violence. Doing so—while also acknowledging that the groups and individuals who don’t belong in a separate category—will better enable the United States to isolate extremists and cut them off before the next tragedy.

Which is why this post bears the headline, “Trump refuses to keep this country safe from terrorism” rather than Trump fosters terrorism, even if I believe the latter to be the case.

Because until the time those willing to coddle Trump’s racism in the name of tribal loyalty are defeated politically, they will want to pitch questions about what to label Cesar Sayoc and Robert Bowers’ actions as an attack on themselves.

Instead, let’s make it an attack on Donald Trump’s basic competence as President, one the Republicans themselves, from top to bottom, have embraced.

It is the Republican party of Karl Rove and Mitch McConnell and Scott Brown and (Trump Ambassador to the Netherlands) Pete Hoekstra that says a President who won’t keep the country safe from terrorism must be defeated politically. Me, I’d rather deal with all this domestic terrorism by first closely tracking those accused of domestic violence (which would have the effect of preventing non-ideological mass killings along with the ideological mass killings and attempts) and by noting that under George W Bush and Obama, the FBI was actually pretty good at discovering right wing terrorism without the tools they have against Islamic terrorism. I’d rather Democrats run on the fear of losing health insurance or the impact of climate change or gun violence generally.

But not Republicans. Republicans believe that a President who refuses to take a very aggressive approach to terrorism should not be President. So for those Republicans, let’s make this an issue not of the ways Trump’s network fostered actions like we saw last week, but how Trump’s Administration has chosen not to combat terrorism.

Paul Manafort Is One of 37 People in an Omertà with the President

Apparently, Bob Woodward committed some journalism along with canonizing racist John Kelly and wife-beater Rob Porter in his book: he got a number for how many people are included the Joint Defense Agreement that gives Rudy Giuliani such confidence the President is not at risk: 37.

And Politico committed still more journalism and answered the question we’ve all been asking: yes, Paul Manafort is among those 37.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time where as long as our clients authorize it therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege not just from our point of view but from theirs,” he said.

That means when John Dowd complained that the raid of Manafort’s condo (where his eight iPods were seized), that was based on privileged conversations between lawyers. And when, in January, Trump confidently said he was sure Manafort would protect him, that was based on privileged conversations between lawyers.  And when, just before the EDVA trial, Kevin Downing was ostentatiously saying there was no way Manafort was flipping, and when he was balking on a plea with Mueller immediately after the trial, he was also talking to Rudy Giuliani.

Mind you, Rudy G will learn right away if Manafort starts considering cooperating, rather than just pleading, because Manafort will have to (finally!) drop out of the JDA before those discussions start.

And while I suspect Mueller has slowly been peeling away people like Sam Patten, that the JDA is so big likely means some or most of the following people are part of the omertà (and Michael Cohen, Rick Gates, and Mike Flynn were part of it):

  • Paul Manafort and Konstantin Kilimnik
  • Jared Kushner
  • The Trump Org defendants: Don Jr, Rhonna Graff
  • Bill Burck’s clients: Steve Bannon, Reince Priebus, Don McGahn (and up to three more)
  • Victoria Toensing’s clients: Mark Corallo, Erik Prince, Sam Clovis
  • The hush payment recipients: Hope Hicks, Brad Parscale, Keith Schiller
  • Roger Stone and his buddies: Stone, Michael Caputo, Sam Nunberg, Andrew Miller, plus some (probably)

That’s 20. Some other likely (and enticing) JDA members are: Devin Nunes, Jeff Sessions, Tom Barrack, Keith Kellogg, John Mashburn, KT McFarland, JD Gordon, Walid Phares, Stephen Miller, Sean Spicer, Rob Porter, Corey Lewandowski, John Kelly. Heck, it’s not even clear that George Papadopoulos is not part of the JDA.

But that still leaves space in the JDA for people who were already comparing notes with known members of the JDA, including Rinat Akhmetshin, Rob Goldstone, and Ike Kaveladze (along with Emin and Aras Agalarov, who are all represented by Scott Balber).

No wonder Rudy thinks he knows everything that Mueller has.

That’s why the collective panic on the discovery that Stone’s phone was likely among the ~10 or so that Mueller got warrants for in the wake of Rick Gates’ cooperation agreement is so interesting, and also why Manafort, playing his part as point, tried so hard to find out who the other four AT&T users whose phones were obtained with his own.

These guys may be good at omertà. But every single one we’ve seen so far has shitty OpSec; they’ve been saying their co-conspiracy communications on their phones and on iCloud. Plus there are people like Omarosa wandering among them, dismissed as irrelevant even while they record everything they hear. And meanwhile, Mueller is chipping away at the edges, people they haven’t considered (like Patten). And all the while he’s been building his case against Stone and Don Jr.

Bill Clinton Did Not Win an Election By Getting a Blowjob: The Danger of Lindsey Graham’s Willful Ignorance about Russian Interference

In his statement in Brett Kavanaugh’s confirmation hearing yesterday, Lindsey Graham embodied the problem with Republicans’ deliberate ignorance about Russian interference in the 2016 election.

As part of his statement, he raised the time Joe Biden pointed out what a hypocrite Brett Kavanaugh was for believing presidents should not be investigated during their term but nevertheless thought it necessary to ask Bill Clinton the following questions:

If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?

[snip]

If Monica Lewinsky says that she gave you oral sex in the Oval Office area, would she be lying?

If Monica Lewinsky says that you ejaculated in her mouth on two occasions in the Oval Office, would she be lying?

Lindsey did so to suggest Biden’s comments about the Clinton investigation refute the claim that Trump picked Kavanaugh to protect himself from investigation, as if the investigation of Clinton for a blowjob was as legitimate as Mueller’s investigation into whether Trump cheated to win the election.

To justify such an absurd claim, Lindsey suggests that the Mueller investigation is only about whether Trump acted improperly when he fired Comey.

When it comes to the pillar of political virtue, Comey. Harry Reid: “That he’s been a supporter of Comey, and led the fight to get him confirmed, as he believed Comey was a principled public servant. With the deepest regret, I now see that I was wrong.” Mr. Nadler, from NY. “The President can fire him for cause and ought to. He violated the guidelines and put his thumb on the scale of an election.” Mr. Cohen, from Tennessee, a Democrat. “Call on Comey to resign his position, effective immediately, I’m sureupon reflection of this action he will submit his letter of resignation for the nation’s good.” To my Democratic friends,  you were all for getting rid of this guy. Now all of a sudden the country is turning upside down cause Trump did it.

The same guy who recently endorsed the idea of Trump firing Jeff Sessions once Kavanaugh gets confirmed then claimed he would do everything to protect the Mueller investigation. He says that even while suggesting he agrees with Kavanaugh that the president shouldn’t be investigated.

There’s a process to find out what happened in the 2016 election. It’s called Mr. Mueller. And I will do everything I can to make sure he finishes his job without political interference. And I’m here to tell anybody in the country that listens, that this is so hypocritical of my friends on the other side. When it was their President, Kavanaugh was right. When you’re talking about Roe v. Wade, it’s okay to promise the nation it will never be overturned. It’s okay to pick a Democratic staff member of this committee, but it’s not okay to pick somebody who’s been a lifelong Republican.

Which brings us to the stunning bit. Having just misrepresented the scope of the Mueller investigation — completely ignoring that the primary investigation is about whether Trump conspired with a hostile foreign power to win the election — Lindsey then suggests that Democrats should have no influence over judges because they lost the election the legitimacy of which Mueller continues to investigate (and about which Mueller has already provided evidence that the scope of Russia’s help for Trump went further than initially known).

People see through this. You had a chance, and you lost. If you want to pick judges from your way of thinking, then you better win an election.

After discussing his support for Sonia Sotomayor and Elena Kagan, Lindsey then suggests that stripping the last limits on presidential power is just a game (even while admitting he likes Trump best of all for getting two SCOTUS picks).

I hope people in the country understand this game. It’s a game that I’m sad to be part of. It’s gotten really bad. The antidote to our problems in this country when it comes to judges and politics is not to deny you a place on the Supreme Court. This is exactly where you need to be, this is exactly the time you need to be there, and I’m telling President Trump, “You do some things that drive me crazy, you do some great things. You have never done anything better, in my view, than to pick Gorsuch and Kavanaugh.  Cause you had an opportunity to put well-qualified conservatives on the court — men steeped in the rule of law — who will apply analysis not politics to their decision-making, and you knocked it out of the park, and I say to my friends on the other side: you can’t lose the election and pick judges.

Lindsey ends, again, by taunting Democrats that they can’t have any input on Supreme Court justices if they lose an election.

An election the investigation of which Lindsey claims to, but is not, protecting. An election the investigation of which may be stymied by the confirmation of Brett Kavanaugh.

Of course, this is only possible because of the way four different efforts in Congress — including Lindsey’s own — have served to obscure the matters under investigation. You’ve got Lindsey’s investigation and Bob Goodlatte’s — both more worried about a single FISA order that even a conservative Republican has told me was based on overwhelming evidence — than whether the guy making lifetime appointments cheated to get that authority. You’ve got Devin Nunes’ investigation, better described as an information gathering effort to help Trump get away with any cheating he engaged in than an investigation of whether he did cheat. Finally, there is Richard Burr’s investigation which, while on its face is more credible, nevertheless is not pursuing leads that support a case that Trump conspired with Russia to win the election.

Lindsey Graham is concerned about lies Christopher Steele may have told under oath in the UK, but not lies Don Jr clearly told his own committee. His big rush to stack SCOTUS suggests the reason for that has everything to do with a need to sustain a fiction that those SCOTUS choices are the result of a legitimate election win rather than willfully conspiring with a foreign adversary to get those choices.

Those Sexy Details in the Papadopoulos Sentencing Memo Aren’t Intended for Your Consumption

In this post, I argued that George Papadopoulos’ sentencing memo was written to make a case to Donald Trump for a pardon, not to judge Randolph Moss for no prison time (even though that’s what he asks for).

It would follow logically, then, that the details of his testimony Papapdopoulos chose to highlight in a claim that “George provided investigators with critical information” — details that have attracted much of the press coverage of this memo — also aren’t intended for our benefit, but for Trump and other co-conspirators.

Jeff Sessions lies as much as “young George” Papadopoulos

Consider the one that has attracted the most attention, revealing that (according to Papadopoulos), he told the government that Trump approved of his plan to pursue a meeting with Putin and — even more importantly — Jeff “Sessions … appeared to like the idea.”

On March 31, 2016, he joined Mr. Trump, Senator Jeff Sessions, and other campaign officials for a “National Security Meeting” at the Trump Hotel. George’s photograph at this meeting flashed around the world via Twitter. Eager to show his value to the campaign, George announced at the meeting that he had connections that could facilitate a foreign policy meeting between Mr. Trump and Russian President Vladimir Putin. While some in the room rebuffed George’s offer, Mr. Trump nodded with approval and deferred to Mr. Sessions who appeared to like the idea and stated that the campaign should look into it.

At a minimum, after 11 months of being prevented from sharing this detail, including it here tells all the other co-conspirators what Papadopoulos said. The allegation is not new; at least two other participants in the meeting offered a similar version to Reuters in March (and presumably to the FBI before that). Still, Papadopoulos provides the detail in such a way and at such a time that it’s sure to generate pressure on Sessions, just as Trump is trying to convince Republican members of Congress he should fire the Attorney General. Not to mention that Papadopoulos raises an example of a person who has thus far avoided all consequences for lying in official settings.

The offer of emails came during a discussion finalizing a meeting

An even more delicious mention is the specific description Papadopoulos gives of the meeting at which Joseph Mifsud told him the Russians had Hillary emails they planned to release to help Trump.

George strived to organize a meeting with the Russian government and help the Trump campaign promote its foreign policy objective: improve U.S. and Russian relations. He believed that such a meeting would be a boon for the campaign as Mr. Trump had not yet hosted any major foreign policy events with officials from other countries.

George joined Professor Mifsud for breakfast in London on April 26, 2016, with the intention of finalizing plans for the foreign policy meeting. It was during this breakfast meeting, however, that Professor Mifsud told George that individuals in Moscow possessed “dirt” on candidate Hillary Clinton in the form of “thousands of emails.” Not knowing what to make of this comment, George continued his efforts to make the Trump – Russia meeting a reality. [my emphasis]

Papadopoulos’ statement of the offense had made it clear that Mifsud mentioned the emails in the context of Papadopoulos’ efforts to set up a meeting.

On or about April 25, 2016, defendant PAPADOPOULOS emailed [Stephen Miller — see this story confirming Miller as the “Senior Policy Advisor” in the document]: “The Russian government has an open invitation by Putin for Mr. Trump to meet him when he is ready []. The advantage of being in London is that these governments tends to speak more openly in “neutral” cities.

On or about April 26, 2016, defendant PAPADOPOULOS met the Professor for breakfast at a London hotel. During this meeting, the Professor told defendant PAPADOPOULOS that he had just returned from a trip to Moscow where he had met with high-level Russian government officials. The Professor told defendant PAPADOPOULOS that on that trip he (the Professor) learned that the  Russians had obtained “dirt” on then-candidate Clinton. The Professor told defendant PAPADOPOULOS, as defendant PAPADOPOULOS later described to the FBI, that “They [the Russians] have dirt on her”; “the Russians had emails of Clinton”; “they have thousands of emails.”

[snip]

[T]he day after his meeting at the hotel with the Professor, on or about April 27, 2016, defendant PAPADOPOULOS emailed [Miller]: “Have some interesting messages coming in from Moscow about a trip when the time is right.”

Also on or about April 27, 2016, defendant PAPADOPOULOS emailed a [Corey Lewandowski] “to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right.”

The Schiff memo and Alexander Downer have subsequently added the detail that Mifsud specifically told Papadopoulos that, “the Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging,” to assist Trump’s campaign.

Remember, Papadopoulos worked with Lewandowski to draft Trump’s first foreign policy speech, delivered on April 27, which Papadopoulos reportedly told Ivan Timofeev (whose entire existence Papadopoulos’ lies had managed to hide from the FBI at first) was a signal to meet. That speech included these lines:

I believe an easing of tensions, and improved relations with Russia from a position of strength only is possible, absolutely possible. Common sense says this cycle, this horrible cycle of hostility must end and ideally will end soon. Good for both countries.

Some say the Russians won’t be reasonable. I intend to find out. If we can’t make a deal under my administration, a deal that’s great — not good, great — for America, but also good for Russia, then we will quickly walk from the table. It’s as simple as that. We’re going to find out.

Obviously, the tie between Russia releasing stolen emails and foreign policy meetings was always implicit. But Papadopoulos has just revealed that Mifsud said Russia might release emails in the context of setting up a meeting, after having floated such a meeting with Miller the day before.

The breakfast meeting ties the release of the stolen emails to help the Trump campaign and foreign policy meetings together directly. And having just sat through such a meeting, Papadopoulos worked with Stephen Miller and Corey Lewandowski to send a message to Russian that Trump was willing to meet — and would pursue improved relations with Russia.

Papadopoulos tells the Greeks of the dirt offer just in time to pass Putin a message

I’m most interested, however, in the inclusion of Papadopoulos’ admission he told the Greek Foreign Minister about the Russian offer of dirt just before Putin came to town on May 27, 2016.

George provided investigators with critical information. George told investigators about his interactions and meetings with other members of the campaign. He detailed a meeting in late May 2016 where he revealed to the Greek Foreign Minister that the Russians had “dirt” on Hillary Clinton. He explained that this meeting took place days before President Vladimir Putin traveled to Greece to meet with Greek officials.

Remember, Natalia Veselnitskaya dates the idea for the June 9 meeting to a conversation she had with Aras Agalarov at “the end of May” 2016.

Around the end of May 2016, during a conversation with a good acquaintance of mine, being my client, Aras Agalarov on a topic that was not related to the United States, I shared the story faced when defending another client, Denis Katsyv, about how terribly misled the US Congress had been by the tax defrauder William Browder, convicted in Russia, who, through his lobbyists and his close-minded rank-and-file Congress staffers, succeeded in adopting the Act in the name of a person whom Browder practically hardly ever knew. I considered it my duty to inform the Congress people about it and asked Mr. Agalarov if there was any possibility of helping me or my colleagues to do this. I do not remember who of us was struck by the idea that maybe his son could talk about this with Donald Trump, Jr., who, although a businessman, was sure to have some acquaintances among Congress people.

But it’s not just the tantalizing possibility that Papadopoulos left some kind of message for Putin just before Aras Agalarov started setting up the June 9 meeting.

Papadopoulos’ statement of the offense describes him emailing Paul Manafort about Russia’s desire to set up a meeting, which Manafort forwarded to the government’s most important now cooperating witness, Rick Gates, telling him that the candidate wasn’t going to do such meetings himself — someone else in the campaign would.

On or about May 21, 2016, defendant PAPADOPOULOS emailed another high-ranking Campaign official, with the subject line “Request from Russia to meet Mr. Trump.” The email included the May 4 MFA Email and added: “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss.”2

2 The government notes that the official forwarded defendant PAPADOPOULOS’s email to another Campaign official (without including defendant PAPADOPOULOS) and stated:

“Let[‘]s discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

The House Intelligence Majority Report, however, reveals that that Papadopolous sent that email from Greece.

(U) While on a trip to Athens, Greece in May 2016, Papadopoulos sent an email to Manafort stating that he expected to soon receive “an official invitation for Mr. Trump to visit Greece sometime this summer should his schedule allow.”183 In the same email to Manafort, Papadopoulos also forwarded a meeting Invitation from Ivan Timofeev, Director or [sic] Programs for the Russian International Affairs Council, and claimed that “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss. thought it would be prudent to send to you.”184

(U) As of May 2016, Manafort had not yet been elevated to campaign chairman, but had a long track record of work abroad. Manafort forwarded Papadopoulos’ email to his business and campaign deputy [Rick Gates] noting that we need someone to communicate that D[onald] T[rump] is not doing these trips.” 185 Manafort and [Gates] agreed to assign a response of a “general letter” to “our correspondence coordinator.” the person responsible for “responding to all mail of non-importance.”186

While it’s clear nothing in that email could have reflected a discussion of passing a message to Putin via Papadopoulos’ Greek contacts, it does show that Papadopoulos used the opportunity of a verbal offer from Greece to raise a Russian meeting with Manafort directly. Manafort responded by saying other campaign aides would do such meetings. Papadopoulos then somehow saw reason to tell Greece’s Foreign Minister that the Russians were offering dirt to help Trump just before Putin arrived. And that’s precisely the timeframe when the June 9 meeting setting up a Russian meeting with Trump’s senior-most campaign officials, including Manafort, got born.

Maybe it’s all a big fat coinkydink, but Papadopoulos seems to believe it important enough to tell all his co-conspirators (even while it makes his repeated claims not to have told the campaign itself laughable), possibly because he knows the FBI has evidence from the Greeks as well.

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. 

Twenty Comey Questions Do Not Eliminate Trump’s Obstruction Exposure

As I laid out a few weeks ago, 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.

As Trump’s legal teams shift their efforts to stall Mueller’s investigation, the press is shifting their problematic reporting on what legal exposure Trump has. As part of its report that Trump’s legal team has made a “counteroffer” to have Trump sit for an interview covering just collusion, the WSJ repeats Rudy Giuliani’s bullshit that Trump’s obstruction only covers the Comey firing.

The president’s legal team is open to him answering questions about possible collusion with Moscow, Mr. Giuliani said, but is less willing to have Mr. Trump discuss questions about obstruction of justice. “We think the obstruction of it is handled by Article 2 of the Constitution,” Mr. Giuliani said, referring to the provision that gives the president executive authority to appoint and dismiss members of his administration.

Mr. Mueller is investigating whether Trump associates colluded with Russia’s efforts to interfere in the 2016 U.S. election, and whether Mr. Trump sought to obstruct justice in the firing of former Federal Bureau of Investigation director James Comey in May 2017, while the FBI’s Russia probe was under way. Mr. Trump has repeatedly denied collusion and obstruction, and Moscow has denied election interference.

[snip]

Mr. Giuliani said in an interview Monday that the reasons Mr. Trump has given for firing the former FBI director are “more than sufficient” and that as president, he had the power to fire any member of his administration.

This is just more parroting of Rudy’s spin, just as the old line that Trump was primarily at risk for obstruction.

Here’s the list of questions Jay Sekulow understood Mueller wanting to ask sometime in March, as presented by the NYT. I’ve bolded what I consider collusion questions (including the June 9 statement, as abundant evidence suggests that reflects direct collusion with Putin on the framing of their quid pro quo). I’ve italicized the questions that exclusive address Comey.

  1. What did you know about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?
  2. What was your reaction to news reports on Jan. 12, 2017, and Feb. 8-9, 2017?
  3. What did you know about Sally Yates’s meetings about Mr. Flynn?
  4. How was the decision made to fire Mr. Flynn on Feb. 13, 2017?
  5. After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?
  6. What was your opinion of Mr. Comey during the transition?
  7. What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?
  8. What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?
  9. What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?
  10. What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?
  11. What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?
  12. What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.
  13. What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?
  14. What was the purpose of your calls to Mr. Comey on March 30 and April 11, 2017?
  15. What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
  16. What did you think and do about Mr. Comey’s May 3, 2017, testimony?
  17. Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?
  18. What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
  19. What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
  20. What was the purpose of your May 12, 2017, tweet?
  21. What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?
  22. What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
  23. What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
  24. What did you think and do regarding the recusal of Mr. Sessions?
  25. What efforts did you make to try to get him to change his mind?
  26. Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
  27. What did you think and what did you do in reaction to the news of the appointment of the special counsel?
  28. Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
  29. What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
  30. What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
  31. What was the purpose of your July 2017 criticism of Mr. Sessions?
  32. When did you become aware of the Trump Tower meeting?
  33. What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?
  34. During a 2013 trip to Russia, what communication and relationships did you have with the Agalarovs and Russian government officials?
  35. What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?
  36. What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?
  37. What discussions did you have during the campaign regarding Russian sanctions?
  38. What involvement did you have concerning platform changes regarding arming Ukraine?
  39. During the campaign, what did you know about Russian hacking, use of social media or other acts aimed at the campaign?
  40. What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?
  41. What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?
  42. What did you know during the transition about an attempt to establish back-channel communication to Russia, and Jared Kushner’s efforts?
  43. What do you know about a 2017 meeting in Seychelles involving Erik Prince?
  44. What do you know about a Ukrainian peace proposal provided to Mr. Cohen in 2017?

By my count there are:

Comey obstruction: 17

Other obstruction: 13

Collusion: 14

There aren’t quite 20 Comey questions, but it’s close.

By getting a journalist to uncritically parrot Rudy’s claim that all the obstruction questions pertain to Comey, the White House has buried some of the more egregious examples of obstruction, including (offering pre-emptive pardons to Flynn and Manafort, and whoever else) the gross abuse of the pardon power, and threatening the Attorney General. It also obscures the obstruction for which there are now cooperating witnesses (including, but not limited to, Flynn).

Probably, Trump is trying this ploy because a range of things — Manafort’s imminent trial, Cohen’s likely imminent cooperation, Mueller’s acute focus on Stone, and whatever else Putin told him — give him an incentive to have an up-to-date understanding of the current status of the collusion investigation. If he can do that in a way that makes it harder to charge some of the egregious obstruction Trump has been engaged in, all the better.

Whatever it is, it is malpractice to credulously repeat Rudy’s claim that Trump is only on the hook for obstruction for firing Comey.

Trump Is Willing to Pay for Joint Defense for Hope Hicks, But Not for France

As I laid out last week, 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. 

I keep coming back to this exchange between Dana Bash and Rudy Giuliani over the weekend.

BASH:  But let’s just focus on one of the things that you said…

GIULIANI: Go.

BASH: … that there is no evidence — you say that the special counsel hasn’t produced evidence.

But they haven’t said that they have no evidence. They have — you say that there have been leaks. They have been remarkably tight-lipped, aside from what they have had to do with indictments and such.

GIULIANI: No, they haven’t. They leaked reports. They leaked reports. They leaked meetings. They’re leaking on Manafort right now. They leaked Cohen before it happened.

BASH: But this is an ongoing investigation. We don’t really know what they have and what they don’t have. That’s fair, right?

GIULIANI: Well, I have a pretty good idea because I have seen all the documents that they have. We have debriefed all their witnesses. And we have pressed them numerous times.

BASH: You have debriefed all of their witnesses?

GIULIANI: Well, I think so, I mean, the ones that were — the ones that were involved in the joint defense agreement, which constitutes all the critical ones.

They have nothing, Dana. They wouldn’t be pressing for this interview if they had anything. [my emphasis]

Rudy asserts that every critical witness is a member of a Joint Defense Agreement involving Trump.

That’s a big Joint Defense Agreement. It also suggests that if Mueller can learn who is in it, he’s got a map of everyone that Trump himself thinks was involved in the conspiracy with Russia.

Some people will be obvious — not least, because they share lawyers. Witnesses with shared lawyers include:

Erik Prince, Sam Clovis, Mark Corallo (represented by Victoria Toensing)

Reince Priebus, Steve Bannon, Don McGahn (represented by William Burck)

Don Jr, Rhona Graff (represented by Trump Organization lawyer Alan Futerfas)

Almost certainly, it includes the key witnesses who’ve been moved onto various parts of the Reelection campaign, including 2020 convention security head Keith Schiller (represented by Stuart Sears) and Brad Parscale (defense attorney unknown).

Others are obvious because we know they’re centrally involved — people like Jared Kushner (represented by Abbe Lowell) and Hope Hicks (represented by Robert Trout). Indeed, Hicks may also fall into the category of shared lawyers — at least from the same firm — as Trout Cacheris & Janis got paid $451,779 by the RNC in April for representing Hope and two other witnesses.

One implication from this (which would be unbelievable, if true) is that Paul Manafort remains a part of the Joint Defense Agreement. But that is the only way that Trump can assess his vulnerability — as he has in the past, and appears to have shared with the Russians — to go exclusively through Manafort.

There are other implications of claiming that every critical witness is part of the Joint Defense Agreement — including that the Attorney General (represented by Iran-Contra escape artist lawyer Charles Cooper) must be part of it too. So, too, must Stephen Miller (defense attorney unknown).

But here’s the really telling thing. A key part of Trump’s foreign policy — one he’ll be focusing on relentlessly in advance of next week’s NATO summit — is that other members of the United States’ alliances are freeloaders. He’s demanding that NATO members all start paying their own way for our mutual defense.

But Trump is willing to make sure that those protecting him get paid (even if he’s not willing to pay himself). (I stole this observation from an interlocutor on Twitter.)

Which is saying something about what Trump is willing to do when he, himself, is at risk.