Posts

Thread: House Judiciary Committee Hearing with John Dean

Here’s a post dedicated to the House Judiciary Committee’s hearing today at 2:00 p.m. EDT. I will add content as we go along.

Former White House counsel John Dean will testify today. You’ll recall he served under Richard M. Nixon’s administration. The right-wing media sphere has already been making noise about the HJC taking testimony from a convicted felon.

Except he’s *their* convict, a Republican who pleaded guilty to obstruction of justice for his role in covering up Nixon’s Watergate scandal. I’m sure he’ll have plenty to say about criminality in the White House and subsequent cover-ups.

More here later — bring related chatter here.

UPDATE — 2:30 p.m. —

Via CNN: Justice Department strikes deal with House Democrats over Mueller report evidence, Nadler says

Yeesh. This is like Watergate all over again. Back then Nixon had agreed to accommodate the HJC with access to some of the Oval Office tapes, but the person who would screen them was Senator Stennis who had a hearing disability. We won’t know if Barr truly fulfills the spirit of this agreement with Nadler or pulls a Nixonian Stennis compromise. The HJC took Nixon to court.

Minority Ranking Member Doug Collins (R-GA) attacked Dean as expected and attacked the hearing saying the committee’s priorities are upside down. If the country had been attacked as Nadler said then committee should be focused on that.

Which we all know is bullshit since the House has already passed legislation  — the very first bill of the 116th Congress, H.R. 1 For The People Act 2019 — intended to secure elections from attack by foreign influence which paid legislators to skew districts via gerrymandering, manipulated races by way of dark money donations to legislators, and hid additional financial influence through undisclosed financial statements including tax returns.  That bill is sitting on Senate Majority Leader Mitch McConnell’s desk, buried under ~150 other bills he’s bottlenecked. If Collins has a problem with priorities he should have a chat with McConnell and ask why McConnell is uninterested in protecting this country’s elections.

UPDATE — 2:35 p.m. —

Following John Dean’s opening statement, former U.S. Attorney Joyce White Vance is up. Nice to see a familiar face which will be helpful in news coverage. She’s definitely read the Special Counsel report, and she’s able to explain what she’s seen in it as a former prosecutor which would spur her to indict.

UPDATE — 2:40 p.m. —

Heritage Foundation’s John G. Malcolm, vice president of the Institute for Constitutional Government. “Less enthusiastic” about Mueller because he didn’t make a “traditional prosecutorial judgment” for Barr, blah-blah. Followed by apologia for Trump who must surely be innocent because he was so cooperative providing “over a million pages of documents, allowed key members of his staff to be interviewed, and submitted written answers to questions.” Sure, sure, right.

You know this is what Collins will tee off, the beat down on Mueller’s job performance while disregarding SCO report Volume II, pages 1-2 in which Mueller explains why he can’t make a “traditional prosecutorial judgment.”

UPDATE — 2:45 p.m. —

Another familiar face, former U.S. Attorney Barbara McQuade, has also read the SCO report. She’s explaining the obstruction of justice charges she read in the report.

I’m sure the GOP will come out swinging but it’s really tough to get around this wham-wham-wham beat down ticking off the obstruction.

____

I’ll add the panelists’ statements here after the hearing. ~Rayne

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

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

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

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

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

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

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

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

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

That was all written from the outside.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Roadmap to the Nixon and/or Mueller Roadmap

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

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

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

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

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

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

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

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

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

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

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

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

Communications regarding Nixon’s testimony

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

C. Communications of the Special Prosecutor’s Office

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

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

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

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

A. Communication from the Grand Jury to Nixon

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

B. Nixon’s communications with the Special Prosecutor

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

Draft Indictment of the President, February 1, 1974

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

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

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

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

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

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

The Road Map

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

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

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

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

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

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

 

Dean and Bush and Pardons

John Dean’s piece on FISA reads with all the angst of someone who–after a number of people have demonstrated his error–is hoping to persuade Barack Obama to get him out of the hole he created for himself. "Please, Obama," Dean seems to be saying, "hold Bush accountable so I don’t have to admit immunity really is immunity."

One gaping problem with Dean’s argument is the absence of any discussion of statutes of limitation. Even if Obama did what Dean wanted–and announced he would direct his AG to immediately review the warrantless wiretap program–the Republicans in the Senate could just filibuster approval of Obama’s AG until, say, April 26, 2009 (five years and 45 days after the authorization signed by Alberto Gonzales on March 11), and the statute of limitations on the known crimes would expire.

But the proposition I find really ridiculous is Dean’s contention that Bush isn’t going to issue blanket pardons of all the law-breakers in his Administration.

Given the downside, it is not clear whether Bush would issue a pardon in this context.

If it were issued by Bush, however, a blanket pardon to his “national security” miscreants would require acceptance by them of the fact that they had broken the law, and thus an admission of guilt. Were Bush to issue such a remarkable pardon, it would, of course, cement his historical stature as several notches below even that of Richard Nixon, who refused to pardon those who (many “for national security reasons”) engaged in the so-called Watergate abuses of presidential power on his behalf. Not many presidents want to be viewed by history as worse than Nixon. And a blanket pardon would be an admission by Bush that his war on terror has been a lawless undertaking, operating beyond the bounds of the Constitution and statutes that check the powers of the president and the executive branch. It would be an admission by Bush, too, of his own criminal culpability (which is why Nixon refused to grant his aides a pardon.)

Bush is very politically savvy. He knows that a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election. Most Americans are deeply concerned about Bush/Cheney’s conduct of foreign affairs and national security, which ignores American laws and treaty obligations. Read more

A Response to Dean: The Failure, So Far, Has Been Congress’

John Dean thinks Patrick Fitzgerald may have gone soft on the White House.

If McClellan’s testimony suggests that Special Counsel Patrick Fitzgerald, for any reason, gave Karl Rove and Dick Cheney a pass when, in fact, there was a conspiracy – which is still ongoing – to obstruct justice, then these hearings could trigger the reopening of the case. But this is a pretty large “If.”

[snip]

As experienced a prosecutor as Fitzgerald is, he was playing in a very different league when investigating the Bush White House. These folks make Nixon’s White House look like Little Leaguers – and based on what is known about the Plame investigation, I have long suspected that Fitzgerald was playing out of his league. (See, for example, here and here.)

I would counter Dean and suggest it was not Fitzgerald, but Congress, which dropped the ball.

Dean suggests that we don’t know what Fitzgerald found.

Yet since no one knows what Fitzgerald learned, except those who cannot speak of what they know, it is not possible to determine whether he might have been outfoxed by the White House.

Um, not quite. While it is true we don’t know the contents of Rove’s grand jury appearances nor those of many other key players, we do know quite a bit beyond the details surrounding Libby’s narrow perjury charge. With the caveat that some of the following can only be supported with circumstantial evidence, here’s what we do know:

  • Dick Cheney declassified Valerie Wilson’s identity (either with Bush’s implicit or explicit approval) and told Libby to leak it to Judy Miller. He may have instructed Libby to leak details about her name and status to Novak during his July 9 conversation as well. But since he declassified Valerie’s identity, the legal status of that leak is–at best–unclear. After that leak, those in the White House who knew about it operated as if it was a legal leak of non-classified information.
  • The stories of Rove, Armitage, Novak, and Libby have significant discrepancies, meaning (in spite of what the Administration’s backers claim) we don’t yet have an adequate explanation for the leak to Novak. Probably, some of Rove’s testimony was perjurious, but there is no credible witness to that fact (since Armitage was himself either lying or a terrible witness), so it would be difficult to charge. Read more