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Three Times William Barr Said Trading Pardons for False Testimony Was Obstruction of Justice

In the discussion of the Bill Barr memo in the last two days, the discussion of Barr’s claimed views on obstruction have mostly focused on the crazier parts of the memo that got him the job, and not even the passage at the bottom of the first page where he claimed to believe that if a President suborned perjury, it’d be a crime for him just as it would be for anyone else.

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

There has been far less attention to what he said in his confirmation hearing (where Lindsey Graham did not put him under oath). There were three substantive exchanges about what might constitute obstruction of justice for a President. And all of them get perilously close to behavior that Barr, now ensconced as Attorney General, claimed Sunday did not amount to obstruction of justice.

When Barr answered these questions, he appeared to have little awareness that Trump had floated pardons to — at least — Paul Manafort, Mike Flynn, and Michael Cohen. The first time he got asked about a pardon for false testimony, he stated clearly that would be a crime.

Patrick Leahy, specifically invoking Barr’s sanction of the Caspar Weinberger pardon that squelched the Iran-Contra investigation, asked Barr about pardons.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Then, in this exchange from Amy Klobuchar, it appeared to take Barr several questions before he realized she knew more about the evidence than he did, and started couching his answers.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Klobuchar: OK. And you wrote on page one that if a President knowingly destroys or alters evidence, that would be obstruction?

Barr: Yes.

Klobuchar: OK. So what if a President drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

Barr: Again, I’d have to know the specifics.

Shortly after that exchange, Lindsey Graham tried to clarify the issue, asking the pardon question at a more basic level, coaching another not to testify, as Trump has done on Twitter repeatedly.

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Lindsey: So if there’s some evidence that the President tried to conceal evidence? That would be obstruction of justice, potentially?

Barr: [nods]

Admittedly, by the third exchange, both Lindsey and Barr were hedging far more carefully about the set of facts.

But on three different occasions during his confirmation hearing, Barr made some kind of statement that said floating pardons for false testimony would be a crime.

And then, on Sunday, he said it wasn’t a crime.

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

The Mueller Report Has Been Delivered

The Senate and House Judiciary Committees have officially been notified that the William Barr received the Mueller report. He notified them that neither the Acting Attorney General nor he vetoed any prosecutorial decision.

He told the Chairs and Ranking Members he may be able to inform them of the main jist of the report this weekend. And he will work with Mueller and Rod Rosenstein on how much else can be released.

Update: DOJ is now saying that there are no outstanding indictments, and no more expected.

On Narrating Donald Trump: “Shoot me like I’m shot on ‘The Apprentice'”


Pretty much everyone I know is recommending this New Yorker profile describing how Mark Burnett created Donald Trump’s current image (and with it his electoral prospects).

Along with describing how both Trump and Burnett came to turn the popularity of the show into a marketing vehicle and a Trump’s telling claim that he initially hesitated before signing onto reality teevee because the, “contractors, politicians, mobsters, and everyone else I have to deal with in my business … don’t like, as they’re talking to me, having cameras all over the room,” the piece describes how the show depicted not reality, but a heavily edited narrative trying to retroactively justify Trump’s capricious firing decisions each week.

The result created the illusion that a serially bankrupt joker was, instead, a king.

Burnett has often boasted that, for each televised hour of “The Apprentice,” his crews shot as many as three hundred hours of footage. The real alchemy of reality television is the editing—sifting through a compost heap of clips and piecing together an absorbing story. Jonathon Braun, an editor who started working with Burnett on “Survivor” and then worked on the first six seasons of “The Apprentice,” told me, “You don’t make anything up. But you accentuate things that you see as themes.” He readily conceded how distorting this process can be. Much of reality TV consists of reaction shots: one participant says something outrageous, and the camera cuts away to another participant rolling her eyes. Often, Braun said, editors lift an eye roll from an entirely different part of the conversation.

At the end of each episode, Trump determined which competitor should be “fired.” But, as Braun explained, Trump was frequently unprepared for these sessions, with little grasp of who had performed well. Sometimes a candidate distinguished herself during the contest only to get fired, on a whim, by Trump. When this happened, Braun said, the editors were often obliged to “reverse engineer” the episode, scouring hundreds of hours of footage to emphasize the few moments when the exemplary candidate might have slipped up, in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense. During the making of “The Apprentice,” Burnett conceded that the stories were constructed in this way, saying, “We know each week who has been fired, and, therefore, you’re editing in reverse.” Braun noted that President Trump’s staff seems to have been similarly forced to learn the art of retroactive narrative construction, adding, “I find it strangely validating to hear that they’re doing the same thing in the White House.”

Such sleight of hand is the industry standard in reality television. But the entire premise of “The Apprentice” was also something of a con. When Trump and Burnett told the story of their partnership, both suggested that Trump was initially wary of committing to a TV show, because he was so busy running his flourishing real-estate empire. During a 2004 panel at the Museum of Television and Radio, in Los Angeles, Trump claimed that “every network” had tried to get him to do a reality show, but he wasn’t interested: “I don’t want to have cameras all over my office, dealing with contractors, politicians, mobsters, and everyone else I have to deal with in my business. You know, mobsters don’t like, as they’re talking to me, having cameras all over the room. It would play well on television, but it doesn’t play well with them.”

“The Apprentice” portrayed Trump not as a skeezy hustler who huddles with local mobsters but as a plutocrat with impeccable business instincts and unparalleled wealth—a titan who always seemed to be climbing out of helicopters or into limousines. “Most of us knew he was a fake,” Braun told me. “He had just gone through I don’t know how many bankruptcies. But we made him out to be the most important person in the world. It was like making the court jester the king.” Bill Pruitt, another producer, recalled, “We walked through the offices and saw chipped furniture. We saw a crumbling empire at every turn. Our job was to make it seem otherwise.

[snip]

Trump took to his part more nimbly than anyone might have predicted. He wouldn’t read a script—he stumbled over the words and got the enunciation all wrong. But off the cuff he delivered the kind of zesty banter that is the lifeblood of reality television. He barked at one contestant, “Sam, you’re sort of a disaster. Don’t take offense, but everyone hates you.” Katherine Walker told me that producers often struggled to make Trump seem coherent, editing out garbled syntax and malapropisms. “We cleaned it up so that he was his best self,” she said, adding, “I’m sure Donald thinks that he was never edited.” [my emphasis]

Throughout, the piece both implicitly and explicitly suggests that the White House is adopting techniques from the show in burnishing Trump’s power. Or, at least, Trump is asking that his handlers replicate the same frames of power that Burnett used.

The show’s camera operators often shot Trump from low angles, as you would a basketball pro, or Mt. Rushmore. Trump loomed over the viewer, his face in a jowly glower, his hair darker than it is now, the metallic auburn of a new penny. (“Apprentice” employees were instructed not to fiddle with Trump’s hair, which he dyed and styled himself.) Trump’s entrances were choreographed for maximum impact, and often set to a moody accompaniment of synthesized drums and cymbals. The “boardroom”—a stage set where Trump determined which candidate should be fired—had the menacing gloom of a “Godfather” movie. In one scene, Trump ushered contestants through his rococo Trump Tower aerie, and said, “I show this apartment to very few people. Presidents. Kings.” In the tabloid ecosystem in which he had long languished, Trump was always Donald, or the Donald. On “The Apprentice,” he finally became Mr. Trump.

[snip]

Trump has succeeded in politics, in part, by borrowing the tropes of the show. Jonathon Braun pointed out to me that when Trump announced his candidacy, in 2015, he did so in the atrium of Trump Tower, and made his entrance by descending the gold-colored escalator—choreography that Burnett and his team had repeatedly used on the show. After Trump’s announcement, reports suggested that people who had filled the space and cheered during his speech had been hired to do so, like TV extras, for a day rate of fifty dollars. Earlier this year, the White House started issuing brief video monologues from the President that strongly evoke his appearances on Burnett’s show. Justin McConney, a former director of new media for the Trump Organization, told New York that, whenever Trump works with camera people, he instructs them, “Shoot me like I’m shot on ‘The Apprentice.’ ” [my emphasis]

One of the most interesting details in the piece is that Democrats actively (and successfully) lobbied musical talent to blow off Trump’s inauguration, themselves performing a kind of script-writing that has haunted Trump since.

A Democratic political operative who was involved in a back-channel campaign to dissuade big-name stars from appearing at the event told me that Burnett had tried to enlist musicians to perform. “Mark was somebody we were actively working against,” the operative said. Trump’s wish list included Elton John, Aretha Franklin, and Paul Anka—who, he hoped, would sing “My Way”—but they all claimed to be otherwise engaged. The event ended up with sparse crowds and a feeble roster of performers.

Because I dawdled before reading the piece, I was reading it at the same time as reading coverage of the shutdown. That coverage highlights the results of running a Reality Teevee star as President. There’s NYT report that the reason why Trump has shut down the government to get Congress to fund him a wall is because Sam Nunberg and Roger Stone (and Steve Bannon) used the wall as a mnemonic device to get Trump to repeat his lines.

“How do we get him to continue to talk about immigration?” Sam Nunberg, one of Mr. Trump’s early political advisers, recalled telling Roger J. Stone Jr., another adviser. “We’re going to get him to talk about he’s going to build a wall.”

[snip]

“As a messaging strategy, it was pretty successful,” [anti-immigration activist Mark] Krikorian said. “The problem is, you got elected; now what do you do? Having made it his signature issue, Trump handed the Democrats a weapon against him.”

We’ve shut down the entire government because an entertainment professional always refused to memorize his lines (or as someone on Twitter noted, use a teleprompter), and so the unstable hacks who managed him early on invented a policy promise that not even hardline anti-immigration experts want.

And Trump seems to be judging the advice on the shutdown he receives based on how sycophantically his interlocutors judge his “performance” trying to ratchet up pressure for a wall.

Trump spent much of Saturday on the phone with allies, talking through his positioning on the shutdown and hearing their reviews of his Rose Garden performance, according to a person close to him. Two people regularly on his call list — Rep. Mark Meadows (R-N.C.) and Sen. Lindsey O. Graham (R-S.C.) — have encouraged Trump to take a hard line and refuse to agree to reopen the government unless wall funding is secured, the person said.

Trump, who doesn’t understand the successful tycoon that starred in The Apprentice was the product of heavy editing, has now taken to editing himself, trying to fulfill the things the Campaign Reality Teevee star said over and over, based off what Mark Meadows and Lindsey Graham  tell him.

The New Yorker profile, however, offers scant solutions to the problem that Burnett created — just his ex-wife imploring him to tell Trump he’s not actually living a reality show, as if that will fix the problem.

One day this past fall, Burnett got a call from his first wife, Kym Gold, with whom he remains friendly. Gold was upset about what was happening in the country, and asked Burnett to intervene with Trump. “We had it out,” she told me. “I said, ‘You’ve got to help our children, for the future and safety of this country.’ ” Gold implored Burnett, “Tell him this is not a reality show. This is real life. You’re the President. You’re saying things you cannot say—to reporters, to other world leaders.”

But that wouldn’t fix it even if Burnett were willing to risk losing access to Trump by telling him.

The problem, and any potential solutions, is something I’ve been thinking about for some time. No one is going to cure Trump of his addiction to being framed to look powerful. If he doesn’t get that high from his White House handlers, he will continue to fire them and look elsewhere, to people who are even better trained at flattery than Burnett. Trump now believes he can produce himself, based largely on the feedback of nutjobs like Ann Coulter and Sean Hannity.

I’m not actually advocating letting Trump frame himself as a king. But I also think that much of Democrats’ response involves trying to fact check Trump rather than reframe him. Your typical Trump voter isn’t going to give a damn that Trump is lying until some policy he has bragged about (up to and including the shutdown, but also his trade wars) ends up making them feel personally betrayed.

Mind you, I think Nancy Pelosi understands all this. She understands (like that other great female politician, Angela Merkel) that Trump will lose more if he is shown looking weak next to a woman than if someone proves his 100,000th lie.

That last of the self-imagined productive sycophants left with John Kelly. Trump now has a temporary Chief of Staff, one who will be gone once Trump decides to internalize Mick Mulvaney’s labeling of Trump’s position on the wall as “childish.” That creates a vacuum in the function of framing Trump’s image.

Update, January 12: This important op-ed from an OLC veteran describes how lawyers there do much the same as what editors on The Apprentice does.

But when I was at OLC, I saw again and again how the decision to trust the president failed the office’s attorneys, the Justice Department and the American people. The failure took different forms. Sometimes, we just wouldn’t look that closely at the claims the president was making about the state of the world. When we did look closely, we could give only nudges. For example, if I identified a claim by the president that was provably false, I would ask the White House to supply a fig leaf of supporting evidence. Or if the White House’s justification for taking an action reeked of unconstitutional animus, I would suggest a less pungent framing or better tailoring of the actions described in the order.

I often wondered, though, whether my attempts to remove the most basic inaccuracies from the face of a presidential order meant that I was myself failing to carry out my oath to protect and defend the Constitution. After all, the president had already submitted, through his early drafts or via Twitter, his reasons for issuing a particular order. I sometimes felt that, rather than engaging in professionally responsible advocacy, my OLC colleagues and I were using the law to legitimize lies.

I felt more than a twinge of recognition this month when reading a New Yorker article about Trump and the reality-TV show “The Apprentice.” Jonathan Braun, an editor on “The Apprentice,” described how editors would “reverse engineer” episodes after Trump made impulsive decisions about firing a contestant. The article described editors “scouring hundreds of hours of footage . . . in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense.” Like a staff member at “The Apprentice,” I occasionally caught myself fashioning a pretext, building an alibi.

Dear Lindsey: Not Even Trump Gives a Shit What You Think about the Whitaker Appointment

About the most competent thing Trump managed with his ham-handed roll out of a hatchet man to oversee the Mueller investigation was to pick someone with close ties to Senate Judiciary Chair Chuck Grassley. Matt Whitaker has driven all around Iowa with Grassley.

And somehow, Whitaker managed to have Gary Barnett, whose Linked In profile says he still works as Jeff Flake’s Chief Counsel, installed as his new Chief of Staff in time to attend Whitaker’s takeover strategy huddle, while Sessions huddled with Senate confirmed officials.

So whatever else he is or is not, Whitaker is certainly well wired with one of the committees that would have oversight on his actions.

Perhaps that’s why Lindsey Graham and CBS Face the Nation thought he’d be a good guest to opine that everything pertaining to Whitaker’s appointment is hunky dory.

Graham told “Face the Nation” host Margaret Brennan on Sunday he believes the acting attorney general was “appointed appropriately” and “legally,” and he’s “confident” Whitaker won’t interfere in Mueller’s ongoing investigation.

“I talked with Matt yesterday,” Graham said. “I’m going to meet with him next week when we get our schedules aligned here. I think he was appropriately appointed legally. I don’t think he has to recuse himself. I am confident the Mueller investigation will be allowed to come to a good solid conclusion, that there’ll be no political influence put on Mr. Mueller by Mr. Whitaker to do anything other than Mr. Mueller’s job. I’m confident that Mr. Mueller will be allowed to do his job without interference.”

To be clear: I’m not minimizing the degree to which Trump has eliminated one possible source of resistance to his hatchet man plan, by picking someone wired into SJC (and backed vocally by Leonard Leo, since Republican SJC members appear to answer to him).

But by picking Whitaker, Trump has affirmatively told the Senate they — and the professionals for whom they have spent the time to advise and consent — are expendable. After all, the sole reason to appoint Whitaker rather than rely on normal succession is to prevent Rosenstein from having oversight of investigations into Trump.

More importantly, while SJC could have a hearing and Lindsey promises he’ll meet with Whitaker, none of that will have an immediate effect. SJC has absolutely no way to prevent Whitaker from burning up all the norms critical to a functioning DOJ, including recusal where it clearly is called for. There’s not even a way to prevent Whitaker from trumping up some charge and firing Mueller before any such meeting happens.

And it’s not SJC’s place to judge if Whitaker’s appointment is illegal. That role belongs to OLC (whose head, Steven Engel, has already been in at least one discussion about whether it is constitutional) and the Courts. If the question gets to the latter, SJC is not among the leading entities that might have standing to challenge it.

Having Lindsey’s seal of approval might make it easier for Whitaker to last out the two months or so until Democrats take the House. But that will have zero role in whether Whitaker blows up the Constitution.

Lindsey (and CBS) think he matters here. That’s quaint.

The Record Supports Christine Blasey Ford

This may sound counterintuitive. But the Republican-led whitewash hearing into allegations that Brett Kavanaugh assaulted Christine Blasey Ford actually ended up supporting her case, not Kavanaugh’s.

Ford withstood Rachel Mitchell’s interrogation

As bmaz noted, the Republicans hired a skirt: Maricopa sex crimes prosecutor Rachel Mitchell.

Mitchell conducted all of the questioning — save one impetuous outburst from Lindsey Graham — of Ford. And Mitchell tried diligently to challenge Ford’s account. She started by asking Ford to review all her statements and correct and inconsistencies in her past statements, something she did not do thoroughly with Kavanaugh. She then challenged Ford’s story in a few places, first by shadowing the Ed Whelan theory that the house in question must belong to the parents of Kavanaugh’s doppelganger, Chris Garrett (later testimony would make clear Garrett was how Ford first got introduced to the Kavanaugh crowd); Ford dismissed that by answering that the house in question might be in a broader area. Mitchell tried to suggest that Ford’s symptoms — including PTSD and anxiety — might come from other reasons; but because this is Ford’s academic expertise, Ford swatted those away with science. Mitchell made much of the fact that Ford declined to travel to DC in spite of her dislike of air travel, even though she travels for a yearly family visit and vacations. Mitchell also tried to insinuate that some political actors either coached her or paid for Ford’s polygraph, but Ford’s lawyers pointed out they had paid for it, as is the norm. And Ford’s own timeline simply didn’t support the claim she was politically coached. Mitchell invented a claim, out of an indistinct claim by Ford, that she had wanted to keep her testimony confidential up until the original hearing. In the end, Mitchell got Ford to admit — relying on her expertise — that five minute sessions like this hearing weren’t the best way to get the truth from victims of trauma, which would seem to support a longer investigation, not the kind of hearing Mitchell had been paid to star in.

Ford withstood all those questions with grace (and the timely intervention of her attorneys).

Kavanaugh spent 45 minutes ranting like a belligerent drunk

Chuck Grassley unwisely let each witness take as much time as they wanted for opening statements.

After Ford took a normal amount of time, Kavanaugh, bidding for Trump’s support, took a full 45 minutes for his statement.

His statement was delivered shrilly, with an angry red face, just short of screaming. Coming after hours of testimony he was sometimes a violent drunk, Kavanaugh looked during his statement like the drunk you avoid in the parking lot of a bar, because it’s just not worthwhile human interaction. I don’t rule out him drinking while watching Ford’s testimony, nor did others.

In short, Kavanaugh looked like a guy who could not manage rage, just as numerous witnesses had described him being as as a drunk.

The Mark Judge Safeway timing suggests a late June/early July assault

One reason Ford repeatedly said she’d like an FBI interview is because she assumed that if she could date an exchange she had with Mark Judge after her assault, she might be able to narrow down when the actual event occurred. Republicans want to avoid having Judge’s public comments about drunken debauchery in the time period reviewed by any credible questioner.

Judge has written about that in his book, describing working at the local Safeway for a few weeks to pay for Football camp.

According to Kavanaugh’s calendar, football camp started on August 23 that year.

Ford testified that her exchange with Judge took place 6 to 8 weeks after the incident.

Ford: We had always been friendly with one another. I wouldn’t characterize him as not friendly. He looked ill. Says it happened 6-8 weeks after the incident.

If Judge was working for the few weeks prior to Football camp to pay for it and his and Kavanaugh’s exchange with Ford happened 6 to 8  weeks earlier, that would put the assault in early July.

That would mean this entry, for an event on Thursday, July 1, 1982, in Kavanaugh’s calendar would be solidly within that range.

The Republicans fire their prosecutor after she corroborates Ford’s story

And Kavanaugh’s testimony actually supports Ford.

Start with the claim, in his opening rant, that he usually only drank on weekends. That makes no sense because Judge’s book about the period describes being dysfunctionally hungover routinely while he worked at the Potomac Safeway to earn money for Football camp.

Kavanaugh claims this had to be a weekend bc they all worked. But Judge said he routinely went to work badly hungover.

Then Mitchell started questioning Kavanaugh. She started by asking him to review the definition of sexual assault, as she asked Ford to do. Kavanaugh got a weird set to his lips.

Shortly thereafter, she turned to his calendar, getting him to confirm that he wrote everything in there. In her next round, Mitchell’s first questions were about the July 1 entry. After filibustering about the earlier workout session (about which he wasn’t asked), Kavanaugh admitted that the entry showed he got together at Tim Gaudet’s —  with Mark Judge and PJ Smith — and Chris Garrett, whose nickname is Squi.

In other words, Kavanaugh confirmed he was at a small gathering with the boys Ford said were there, as well as the guy who had introduced her to these boys.

Durbin’s questioning followed, after which Lindsey Graham took over questioning from Mitchell and went on a tear, calling it an unethical sham. Having gotten Kavanaugh to identify a get-together that matched Ford’s description, Mitchell was done questioning for the day.

Effectively, the GOP hired a prosecutor to question a victim, but decided the alleged perpetrator could not withstand the same prosecutor’s questions as soon as she had him identify a get-together that resembled the one described by Ford.

Kavanaugh thrice stopped short of denying being a blackout drunk

One problem with Kavanaugh’s testimony is that he and his alleged accomplice, Mark Judge, are reported to be blackout drunks. Judge even wrote a book admitting to the fact. So Kavanaugh went to some lengths trying to avoid admitting that he had ever blacked out, even while he admitted, “I like beer,” over and over.

The first came, in her first round, when Mitchell asked Kavanaugh what he considered too many beers.

Mitchell: What do you consider to be too many beers?

Kav: I don’t know, whatever the chart says.

[snip]

Mitchell: Have you ever passed out from drinking?

Kav: Passed out would be no, but I’ve gone to sleep. I’ve never blacked out. That’s the allegation, and that’s wrong.

That’s when Republican Senators started to look worried. They gave Kavanaugh one of his three lifeline breaks.

Kavanaugh repeatedly dismissed his freshman roommate’s claim that he was a shy man who became belligerent after drinking by pointing to the squabble that one freshman roommate had with another, as if the normal animus between freshman roommates makes the observation of one invalid.

Finally, Blumenthal raised an incident from college that Kavanaugh had admitted he didn’t recall, only to have Kavanaugh insist he remembered all of it.

Let me ask you this. In a speech that you gave, you described, quote, falling out of the bus onto the front steps of the Yale Law School, at 4:45 AM.

Kavanaugh interrupted to try to prevent Blumenthal from finishing the quote.

The quote ends that you tried to piece things back together, end quote, to recall what happened that night. Meaning?

I know what happened. I know what happened that night.

The appellate court judge actually didn’t claim that he remembered it, just that he knows what happened.

Kavanaugh refuses to call Mark Judge

As a reminder, Ford alleges that Brett Kavanaugh tried to rape her in the presence of admitted dead drunk Mark Judge. Republicans refused to call Judge over and over.

Then Kavanaugh refused to answer questions about Judge’s own accounts of the period. In response to a question from Patrick Leahy about whether he was the drunk described as Bart O’Kavanaugh in Judge’s book, Kavanaugh refused to answer.

3rd Q: Are you Bart O’Kavanaugh.

Kav: not answering.

Kav finally says, “you’d have to ask him.” Which is the point.

Blumenthal noted to Kavanaugh that Judge’s statement was just six cursory and conclusory sentences signed by Judge’s lawyer, not a sworn statement.

So here’s what we saw yesterday: Christine Blasey Ford was unflappable and consistent. By comparison, Kavanaugh — at least in his statement — appeared to be precisely what he denied he was. His denials that he was a blackout drunk (and therefore that he assaulted Ford but didn’t remember it) were not credible and stopped well short of supporting his claim. And his own calendar, and the Republicans own prosecutor, identified a get-together that matches the time and attendees identified by Ford.

The GOP tried to set up a whitewash of this evidence. But instead, it failed, and they were left with screaming men.

And that won’t stop them from voting out his nomination.

Manafort Turns State’s Evidence: “It’s Time for Some Game Theory”

It took a day for the President to complain after his former campaign manager, having spent the week proffering up testimony, flipped on Friday. When he did, Trump tied the Mueller investigation to polls (and upcoming midterm elections) for the first time in a Tweet.

Of course, his freebie legal PR hack, Rudy Giuliani has been tying midterms to the investigation for some time in his insistence that no indictments can come between now and then. Rudy should be happy, then, that Paul Manfort’s plea avoids a four week trial for Trump’s campaign manager right in the middle of election season.

But he’s not.

I mean, at first, Rudy put a brave face on things Friday, claiming,

Once again an investigation has concluded with a plea having nothing to do with President Trump or the Trump campaign. The reason: the President did nothing wrong and Paul Manafort will tell the truth.

But almost immediately after making that statement, Rudy took out the part about Manafort telling the truth.

Roger Stone, who’s shrewder than Rudy, immediately suggested anything Manafort may be saying (or may already have said) implicating him would be a lie.

I am uncertain of the details of Paul’s plea deal but certain it has no bearing on me since neither Paul Manafort or anyone else can testify truthfully that I am involved in Russian collusion, WikiLeaks collaboration or any other illegal act pertaining to the 2016 election.

Though of course, Stone’s seeming awareness that Mueller might pursue Manafort testimony about Stone reveals his brave comment for the lie it is.

I’m more interested, however, in Rudy’s (and John Dowd’s) apparent desperation to stave off a mass prisoner’s dilemma.

Manafort first proffered testimony Monday, September 10. Rudy was still boasting about how much he knew about Manafort’s thinking for a Thursday Politico story — though he based that off conversations before and after the EDVA trial, which had ended three weeks earlier.

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.

Immediately after Manafort’s cooperation was announced, both NPR and the same Politico team that had been quoting Rudy’s bravura reported that someone close to Manafort said there would be no cooperation against the President. In later stories, both quote Sarah Huckabee Sanders and Rudy claiming Manafort’s cooperation has nothing to do with the President.

Despite Manafort’s having led the campaign, the White House has sought to distance itself from him and his case.

“This had absolutely nothing to do with the president or his victorious 2016 presidential campaign,” press secretary Sarah Huckabee Sanders said Friday. “It is totally unrelated.”

Trump’s personal lawyer Rudy Giuliani echoed that idea, adding that “the president did nothing wrong.”

But the NPR version includes this correction.

Editor’s note: An early version of this story published before all the court documents in the case were available contained a characterization from a person familiar with the case that said Manafort’s cooperation would be limited. When charging documents and other materials appeared, they did not support that and the characterization was removed.

And the Politico noted how quickly Rudy backed off his claim that Manafort would testify truthfully.

Of course, anyone who has read the plea agreement closely — up to and including the government’s ability to declare Manafort in breach of the agreement with only a good faith rather than preponderance of the evidence standard —

— and it’s clear that if Mueller’s team wants Manafort to testify about Trump, he will.

Meanwhile, Rudy is yelling on Twitter that the morning shows aren’t taking his word about what Manafort is testifying about over what the clear text of the plea agreement suggests.

I’m more interested still that John Dowd emailed the lawyers for the (reportedly 37, though the number is likely smaller now) other witnesses in the Joint Defense Agreement, claiming outlandishly that Manafort has no evidence on Trump.

The President’s lawyers — the one who currently “works” for him for “free” and the one who allegedly doesn’t work for him anymore but recently got lionized in Woodward’s book as his main source about the Mueller investigation, and in that role was shown to be either an idiot or a fantasist, that the “free” one cites to claim that Woodward exonerates the President — are working very hard to convince others that Manafort’s plea deal doesn’t mean the calculation both other witnesses and the Republican party have been making has to change.

They’re trying to stave off an awful game of prisoner’s dilemma.

Consider if you’re one of the other 37 (which might be down to 34 given known cooperators, or maybe even fewer given how uncertain Rudy seems to be about Don McGahn’s third session of testimony) members of the Joint Defense Agreement, especially if you’re one who has already testified before the grand jury about matters that Manafort (and Gates) might be able to refute. So long as there’s no chance Trump will be touched, you’re probably still safe, as you can count on Trump rewarding those who maintain the omertà or at the very least working to kill the Mueller inquiry shortly after the election.

But if you have doubts about that — or concerns that other witnesses might have doubts about that — you still have an opportunity to recall the things you claimed you could not recall a year ago. Depending on how central your testimony is, you might even be able to slip in and fix your testimony unnoticed.

So each of 37 (or maybe just 30) people are considering whether they have to recalculate their decisions about whether to remain loyal to the President or take care of themselves.

Meanwhile, there’s the Republican party. Admittedly, the Republicans are unlikely to do anything until they rush through Brett Kavanaugh’s confirmation, even if doing so without first inquiring about the allegation that he assaulted a girl when he was in high school will damage their electoral prospects with women in November.

But once they’ve got Kavanaugh confirmed (assuming no big news breaks in the Mueller investigation before that), then the calculation may change. Right now, a lot of Republicans believe they have to stick with Trump through the election, if only to ensure the GOP base turns out. But if Trump’s poll numbers continue to sink — and as the numbers of those who strongly disapprove of Trump continue to grow — Republicans in certain kinds of districts (especially suburbs) will have an incentive to distance themselves from the President.

All that’s a straight calculation based on whether Trump will help or hurt more, come November. But the Republican party, from Trump’s endless repetition of “no collusion;” to Devin Nunes’ naked attempt to obstruct the Mueller investigation; to Chuck Grassley and Lindsey Graham’s referral of Christopher Steele rather than Don Jr for perjury charges; to Mark Meadows’ latest attempts to turn Lisa Page and Peter Strzok’s attempts to chase down someone leaking about Carter Page into a suggestion they themselves leaked; to Richard Burr’s cynical boasts that his committee hasn’t found stuff they wouldn’t chase down if they had been told of it, has invested everything on a gamble that Trump was telling the truth (or, more cynically, that he could stave off discovery of any conspiracy he entered into with Russia).

Republicans have invested a whole lot into attempting to give the President a clean bill of health.

Meanwhile, his campaign manager — a guy many of them have worked with — is presumably now doing the opposite, telling Mueller precisely what the Republicans have been working so hard to suppress for 18 months.

At some point, the ones who have been playing along even while admitting that the President probably did conspire with Russia (I know of some who believe that’s likely), will make their move.

If the GOP were less dysfunctional, they’d do it sooner rather than later, cut their losses with Trump to try to salvage the Pence presidency (whom they like far more anyway). But for now, that calculation of whether or not to do so is likely happening in private.

I’m in no way promising Manafort’s plea deal will set off two parallel floods of rats fleeing the Trump JDA or his presidency generally. These are Republicans, after all, and I’m sure they still would prefer obstructing the whole thing away.

I don’t think a mass abandonment of Trump is going to happen anytime soon.

But Trump’s lawyers do seem worried that could happen.

Trump needs his fellow Republicans to believe that Paul Manafort isn’t providing evidence that incriminates him. Because if they start to believe that, their calculations behind support for him may change, and change quickly.

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. 

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.

Peter Strzok Is a Sideshow to Information that Directly Implicates the President

On Thursday, the House Judiciary Committee will hold a public shaming of Peter Strzok, in yet another attempt to prove that the Mueller investigation is hopelessly tainted by Strzok’s belief — shared at the time by Republicans Lindsey Graham and Ted Cruz — that Donald Trump is “an opportunist” who is “not fit to be President of the United States” and “Donald Trump can’t be trusted with common sense. Why would we trust him in the White House?”

But Strzok and his testimony is, in significant respect, a sideshow to evidence that directly implicates Donald Trump.

I say that based on the following information related to my own interview with the FBI.

  • DOJ probably used a clean team with me to ensure it shared nothing it already knew with me
  • Peter Strzok had no connection to my interview
  • Information I provided would change the importance of evidence otherwise obtained publicly

DOJ probably used a clean team with me

First, as I have suggested, I believe the team that interviewed me was a “clean team,” a prosecutor and FBI agents who weren’t centrally involved in the investigation I provided information on. I say that because the agents came into the interview with almost no information about either me or the person I was discussing.

My interview consisted of three sessions with two breaks. In the first session, the lead agent questioned me aggressively about a detail about the person I was discussing; he didn’t believe I had adequately vetted the detail. By the third session, however, he said something that suggested he had since confirmed the detail he had earlier challenged me on. From that I conclude that the FBI already knew of this person, but the agents who interviewed me did not.

I believe they didn’t know about me because, while the second agent seemed to know I would happily make small talk about cycling in northern Michigan, neither knew how well I know FBI surveillance (for the love of J Edgar Hoover, why would you put agents in a room with me without making that clear?). To be very clear: in the interview, they did not disclose anything I didn’t already know. But I did find myself citing information publicly available in the DIOG about the FBI’s rules on journalists to them. Given that that issue is one I’ve reported on more than virtually anyone else, I conclude they simply were unfamiliar with my work.

Peter Strzok had no connection to my interview

This point has gotten muddled, though I have tried to be very meticulous about it. As far as I understand things, I was not interviewed by Mueller’s team. Rather, I provided information to the FBI about a subject matter that was not part of the Mueller investigation at the time. One of the prosecutors who was in the loop on, but did not participate in, my interview was later incorporated into the Mueller team, and public reports say that one of the subject matters was as well.

Thus, whether my interview happened before or after Strzok was removed from Mueller’s team (remember I’m deliberately not sharing what date it happened), it doesn’t seem possible that he had any upstream or downstream involvement in it. So even if you believe Strzok tainted everything downstream of him, my information was neither up- nor downstream of him. It came into Mueller’s possession via a parallel stream.

Information I provided may have changed the importance of other publicly available information — information that implicates Trump directly

I apologize, but I’m going to be deliberately obscure on this point (and will neither confirm nor deny if I’m asked, as it’s not something I’ve run by the Mueller team). As I have said, I don’t think I was the first person to provide information on the person I went to the FBI about. I’ll add that this person has no discernible tie to Trump or the Republican Party. But I do think I was the first person to provide certain information about him that may have widened the scope of FBI’s understanding of the matter.

Subsequent to my interview with the FBI, I realized certain things about publicly available information. I’ve never shared that realization with the government, but it’s a realization they undoubtedly came to on their own from the same publicly available information.

And that realization I had and the government surely also had would have changed the importance of evidence Mueller received via means unrelated to Peter Strzok.

That evidence likely implicates the President directly.

Let me reiterate: when I went to the FBI, I did not believe this person had a direct tie to Trump or the Republicans at all and I know of none, still. The text about Mike Flynn is the only thing that provably suggested any tie (and that, only in conjunction with the Jared Kushner and Mike Flynn corroboration of it — at the time I received it I thought it was bullshit).  Any suspicions I had about a tie between information I had — and understood — when I went into that interview with the FBI and the Trump team would have been speculative and in any case tangential to the central point of what I went to the FBI about.

I believe that when the government had the same realization I had, the scope of their understanding about the person in question would have eventually expanded, though probably not as far as the information I provided may have. Which is to say the information that implicates the President in no way relies on my information, though my information would have made the import far more obvious. In any case, none of this comes from me. It’s just the evidence that is publicly available.

So tomorrow, as House Judiciary Republicans spend half the day or longer publicly flogging Peter Strzok, know that all that flogging cannot change the fact that key evidence in Mueller’s possession, evidence which I suspect implicates the President directly, has absolutely no tie to Peter Strzok at all. None. Tomorrow will be just one big giant show that in no way can alter the provenance of key, damning evidence in Mueller’s possession.

The Special Counsel’s office declined to comment for this post.

Name the Social Media Author: Lisa Page and Peter Strzok? Or Lindsey Graham and Ted Cruz?

In Lindsey Graham’s questioning of DOJ IG Michale Horowitz in today’s hearing on the IG Report on the investigation of Hillary Clinton, he said, repeatedly, “none of this is normal.” By that, he meant the comments that Peter Strzok and Lisa Page had made about Trump back in 2016. (1:45)

Would you say that this investigation was done by the book?

[snip]

The whole idea that this is normal, folks, there’s nothing here normal. I don’t want you think the FBI does this day in and day out. This is not normal.

He then reviewed a couple of Peter Strzok and Lisa Page’s texts.

Trump’s not ever going to be come president right? right?

No, no he won’t. We’ll stop him.

[snip]

I want to believe the path you threw out in Andy’s office, that there’s no likelihood he’ll become President. It’s like an insurance policy.

[snip]

God Trump is a loathsome human.

Lindsey then repeated that such comments were not normal.

None of this is normal, folks.

Senator Graham, as a former longtime government lawyer as a JAG, should talk to Senator Graham how abnormal such thoughts about Donald Trump are.

“As early as March, these people hated Trump,” Graham said in the hearing, horrified by the thought that someone could come to such conclusions that early.

Former Texas Attorney General Ted Cruz was also alarmed about the mean things that Strzok and Page had said in their social media about Donald Trump. (3:04)

These are difficult days in the Department of Justice and the Federal Bureau of Investigation. Both the Department and the Bureau have long — decades long, in the Department’s case, century’s long traditions of fair and impartial administration of justice. There are thousands of honorable good men and women that work at the Bureau, that work at the Department of Justice, and yet their integrity has been called into question by misconduct and political bias at the highest level.

Cruz went on to quiz Horowitz about the things that Peter Strzok, as lead investigator, had said about Trump.

Is it true that during the period of the investigation in late 2015 and in 2016, when Mr. Strzok was in charge, he used an FBI device to call President [sic] Trump a quote Effing idiot, although I don’t believe he abbreviated it, a loathsome human, and a disaster?

Did he also say multiple times that, quote, Donald Trump cannot be President?

And on August 6, 2016, when FBI Counsel Lisa Page said to Strzok that, quote, maybe you’re meant to stay where you are because you’re meant to protect the country from this menace, meaning President [sic] Trump. Did Mr. Strzok reply that, quote, I can protect our country at many levels?

[snip]

And is it true that there are many similar statements by Mr. Strzok in the report?

[snip]

Does any of that conduct give anyone confidence in the fairness in the enforcement of justice?

These are some of the thoughts that this self-imagined arbiter of integrity had to say about Donald Trump during the period he defined, 2015 to 2016.

These are, of course, different things. Cruz and Lindsey were publicly sharing their thoughts about how unfit Donald Trump was to be President, how outrageous his racism, how unhinged he was. Strzok and Page were engaging in what they foolishly treated as private conversations, but did so on government owned devices at a time when they were conducting politically charged investigations.

I don’t mean to defend the decisions of Strzok and Page with regards to how they shared their thoughts about the unacceptability of Donald Trump.

But I will defend the principle that it is solidly normal to say that Trump is unacceptable.

And there are no better witnesses to that than Lindsey Graham and Ted Cruz.

There’s one other lesson Lindsey teaches us. “I’m glad I don’t text and email,” he also said. If Graham and Cruz’ personal devices were investigated with the scrutiny that Strzok and Page’s were, Strzok and Page might look tame by comparison.

The Sekulow Questions, Part Five: Attempting a Cover-Up by Firing Comey

In this series, I have been showing a framework for the investigation that the Mueller questions, as imagined by Jay Sekulow, maps out. Thus far I have shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him.

This post lays out the questions on obstruction that lead up to Comey’s firing on May 9, 2017.

February 14, 2017: What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?

On February 13, Trump fired Mike Flynn. The explanation he gave was one of the concerns Sally Yates had given to Don McGahn when she told him about the interview, that Flynn had lied to Mike Pence about having discussed sanctions relief with Sergey Kislyak on December 29, 2016. Except, coming from Trump, that excuse makes no sense, both because he had already shown he didn’t care about the counterintelligence implications of that lie by including Flynn in the January 28 phone call with Putin and other sensitive meetings. But also because at least seven people in the White House knew what occurred in Flynn’s calls, and Pence probably did too.

Against that backdrop, the next day, Trump had Jim Comey stay late after an oval office meeting so he could ask him to drop the investigation into Flynn. Leading up to this meeting, Trump had already:

  • Asked Comey to investigate the pee tape allegations so he could exonerate the President
  • Asked if FBI leaks
  • Asked if Comey was loyal shortly after asking him, for the third time, if he wanted to keep his job
  • Claimed he distrusted Flynn’s judgment because he had delayed telling Trump about a congratulatory call from Putin

After Trump asked everyone in the meeting to leave him and Comey alone, both Jeff Sessions and Jared Kushner lingered.

While the description of this meeting usually focuses on the Flynn discussion, according to Comey’s discussion, it also focused closely on leaks, which shows how Trump linked the two in his mind.

Here’s what Comey claims Trump said about Flynn:

He began by saying he wanted to “talk about Mike Flynn.” He then said that, although Flynn “hadn’t done anything wrong” in his call with the Russians (a point he made at least two more times in the conversation), he had to let him go because he misled the Vice President, whom he described as “a good guy.” He explained that he just couldn’t have Flynn misleading the vice President and, in any event, he had other concerns about Flynn, and had a great guy coming in, so he had to let Flynn go.

[a discussion of Sean Spicer’s presser explaining the firing and another about the leaks of his calls to Mexican and Australian leaders]

He then referred at length to the leaks relating to Mike Flynn’s call with the Russians, which he stressed was not wrong in any way (“he made lots of calls”), but that the leaks were terrible.

[Comey’s agreement with Trump about the problem with leaks, but also his explanation that the leaks may not have been FBI; Reince Priebus tries to interrupt but Trump sends him away for a minute or two]

He then returned to the topic of Mike Flynn, saying that Flynn is a good guy, and has been through a lot. He misled the Vice President but he didn’t do anything wrong on the call. He said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied by saying, “I agree he is a good guy,” but said no more.

In addition to providing Trump an opportunity to rebut Comey, asking this question might aim to understand the real reason Trump fired Flynn.

March 2, 2017: 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?

On March 2, citing consultations with senior department officials, Sessions recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States,” while noting that, “This announcement should not be interpreted as confirmation of the existence of any investigation or suggestive of the scope of any such investigation.” At that point, Dana Boente became Acting Attorney General for the investigation.

Note that this question isn’t just about Trump’s response to Sessions’ recusal — it’s also about what he did in advance of it. That’s likely because even before Sessions recused, Trump got Don McGahn to try to pressure the Attorney General not to do so. He also called Comey the night before and “talked about Sessions a bit.” When Sessions ultimately did recuse, Trump had a blow-up in which he expressed a belief that Attorneys General should protect their president.

[T]he president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him. Mr. Trump said he had expected his top law enforcement official to safeguard him the way he believed Robert F. Kennedy, as attorney general, had done for his brother John F. Kennedy and Eric H. Holder Jr. had for Barack Obama.

Mr. Trump then asked, “Where’s my Roy Cohn?”

In the days after the Sessions recusal, Trump also kicked off the year-long panic about being wiretapped.

On Thursday, Jeff Sessions recused from the election-related parts of this investigation. In response, Trump went on a rant (inside the White House) reported to be as angry as any since he became President. The next morning, Trump responded to a Breitbart article alleging a coup by making accusations that suggest any wiretaps involved in this investigation would be improper. Having reframed wiretaps that would be targeted at Russian spies as illegitimate, Trump then invited Nunes to explore any surveillance of campaign officials, even that not directly tied to Trump himself.

And Nunes obliged.

Don McGahn and Jeff Sessions, among others, have already provided their side of this story to Mueller’s team.

March 2 to March 20, 2017: 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?

As Sekulow has recorded Mueller’s question, the special counsel wants to know what Trump already knew of the investigation into Mike Flynn before Comey publicly confirmed it in Congressional testimony. This may be a baseline question, to measure how much of Trump’s response was a reaction to the investigation becoming public.

But there are other things that went down in the weeks leading up to Comey’s testimony. Devin Nunes had already made considerable efforts to undermine the investigation; he would have been briefed on the investigation on March 2 (see footnote 75), the same day as Sessions recused.Trump went into a panic on March 4, just days after Sessions recusal, about being wiretapped; I’m wondering if there’s any evidence that Trump or Steven Bannon seeded the Breitbart story that kicked off the claim of a coup against Trump. Also of note is Don McGahn’s delay in conveying the records retention request about the investigation to the White House, even as Sean Spicer conducted a device search to learn who was using encrypted messengers.

March 20, 2017: What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.

On March 20, in testimony to the House Intelligence Committee, Comey publicly confirmed the counterintelligence investigation into Trump’s campaign.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In addition to questions about the investigation (including the revelation that FBI had not briefed the Gang of Eight on it until recently; we now know the briefing took place the day Jeff Sessions recused which suggests FBI avoided letting both Flynn and Sessions know details of it), Republicans used the hearing to delegitimize unmasking and the IC conclusion that Putin had affirmatively supported Trump.

Sekulow’s questions (or NYT’s rendition of them) lump the hearing, at which Admiral Mike Rogers also testified, in with Trump’s pressure on his spooks to issue a statement that he wasn’t under investigation. Two days after the hearing, Trump pressured Mike Pompeo and Dan Coats to intervene with Comey to stop the investigation.

It’s possible that the term “intelligence officials” includes HPSCI Chair Devin Nunes. On March 21, Nunes made his nighttime trip to the White House to accelerate the unmasking panic. Significantly, the panic didn’t just pertain to Flynn’s conversations with Sergey Kislyak; it also focused on the revelation of Mohammed bin Zayed al Nahyan’s secret trip to New York and probably other conversations with the Middle Eastern partners that have become part of this scandal.

The day after Nunes’ nighttime trip, Trump called Coats and Rogers (and probably Pompeo) and asked them to publicly deny any evidence of a conspiracy between Trump’s campaign and Russia; NSA documented the call to Rogers.

It’s now clear that the calls Nunes complained about being unmasked actually are evidence of a conspiracy (and as such, they probably provided an easy roadmap for Mueller to find the non-Russian conversations).

March 30, 2017: What was the purpose of your call to Mr. Comey on March 30?

On March 30, Trump called Comey on official phone lines and asked him to exonerate him on the Russia investigation. According to Comey, the conversation included the following:

He then said he was trying to run the country and the cloud of this Russia business was making that difficult. He said he thinks he would have won the health care vote but for the cloud. He then went on at great length, explaining that he has nothing to do with Russia (has a letter from the largest law firm in DC saying he has gotten no income from Russia). was not involved with hookers in Russia (can you imagine me, hookers? I have a beautiful wife, and it has been very painful). is bringing a personal lawsuit against Christopher Steele, always advised people to assume they were being recorded in Russia. has accounts now from those who travelled with him to Miss Universe pageant that he didn’t do anything, etc.

He asked what he could do to lift the cloud. I explained that we were running it down as quickly as possible and that there would be great benefit, if we didn’t find anything, to our Good Housekeeping seal of approval, but we had to do our work. He agreed, but then returned to the problems this was causing him, went on at great length about how bad he was for Russia because of his commitment to more oil and more nukes (ours are 40 years old).

He said something about the hearing last week. I responded by telling him I wasn’t there as a volunteer and he asked who was driving that, was it Nunes who wanted it? I said all the leadership wanted to know what was going on and mentioned that Grassley had even held up the DAG nominee to demand information. I said we had briefed the leadership on exactly what we were doing and who we were investigating.

I reminded him that I had told him we weren’t investigating him and that I had told the Congressional leadership the same thing. He said it would be great if that could get out and several times asked me to find a way to get that out.

He talked about the guy he read about in the Washington Post today (NOTE: I think he meant Sergei Millian) and said he didn’t know him at all. He said that if there was “some satellite” (NOTE: I took this to mean some associate of his or his campaign) that did something, it would be good to find that out, but that he hadn’t done anything and hoped I would find a way to get out that we weren’t investigating him.

Trump also raised “McCabe thing,” yet another apparent attempt to tie the retention of McCabe to public exoneration from Comey.

Given the news that Sergei Millian had been pitching George Papadopoulos on a Trump Tower deal in the post-election period, I wonder whether Trump’s invocation of him in conjunction with “some satellite” is a reference to Papadopoulos, who had already been interviewed twice by this time. Nunes would have learned of his inclusion in the investigation in the March 2 CI briefing.

On top of the clear evidence that this call represented a (well-documented, including a contemporaneous call to Dana Boente) effort to quash the investigation and get public exoneration, the conversation as presented by Comey also includes several bogus statements designed to exonerate him. For example, Millian had actually worked with Trump in past years selling condos to rich Russians. Trump never did sue Steele (Michael Cohen sued BuzzFeed and Fusion early this year, but he dropped it in the wake of the FBI raid on him). And the March 8 letter from Morgan Lewis certifying he didn’t get income from Russia is unrelated to whether he has been utterly reliant on investment from Russia (to say nothing of the huge sums raised from Russian oligarchs for his inauguration). In other words, like the earlier false claim that Trump hadn’t stayed overnight in Moscow during the Miss Universe pageant and therefore couldn’t have been compromised, even at this point, Trump’s attempts to persuade the FBI he was innocent were based off false claims.

March 30, 2017: Flynn asks for immunity

Mike Flynn first asked Congress for immunity on March 30, 2017, with Trump backing the effort in a tweet.

A later question deals with this topic — and suggests Trump may have contacted Flynn directly about immunity at this time, but that contact is not public, if it occurred.

April 11, 2017: What was the purpose of your call to Mr. Comey on April 11, 2017?

At 8:26AM on April 11, Comey returned a call to Trump. Trump asked again for Comey to lift the cloud on him.

He said he was following up to see if I did what he had asked last time–getting out that he personally is not under investigation. I relied that I had passed the request to the Acting AG and had not heard back from him. He spoke for a bit about why it was so important. He is trying to do work for the country, visit with foreign leaders, and any cloud, even a little cloud gets in the way of that. They keep bringing up the Russia thing as an excuse for losing the election.

[snip]

He then added, “Because I have been very loyal to you, very loyal, we had that thing, you know.”

[snip]

He then said that I was doing a great job and wished me well.

April 11, 2017: What was the purpose of your April 11, 2017, statement to Maria Bartiromo?

On April 12, Fox Business News broadcast an interview with Maria Bartiromo (Mueller must know it was recorded on April 11, so presumably after the call with Comey). There are three key aspects of the interview. First, in the context of Trump’s failures to staff his agencies, Bartiromo asks why Comey is still around [note, I bet in Hope Hicks’ several days of interviews, they asked her if these questions were planted]. Given public reports, Trump may have already been thinking about firing Comey, though Steve Bannon, Reince Priebus, and Don McGahn staved off the firing for weeks.

TRUMP:  I wish it would be explained better, the obstructionist nature, though, because a lot of times I’ll say why doesn’t so and so have people under him or her?

The reason is because we can’t get them approved.

BARTIROMO:  Well, people are still wondering, though, they’re scratching their heads, right, so many Obama-era staffers are still here.

For example, was it a mistake not to ask Jim Comey to step down from the FBI at the outset of your presidency?

Is it too late now to ask him to step down?

TRUMP:  No, it’s not too late, but, you know, I have confidence in him.  We’ll see what happens.  You know, it’s going to be interesting.

On the same day he had asked Comey to publicly state he wasn’t being interviewed, Trump said he still had confidence in Comey, even while suggesting a lot of other people were angling for the job (something he had also said in an earlier exchange with Comey).  Trump immediately pivoted to claiming Comey had kept Hillary from being charged.

TRUMP: But, you know, we have to just — look, I have so many people that want to come into this administration.  They’re so excited about this administration and what’s happening — bankers, law enforcement — everybody wants to come into this administration.  Don’t forget, when Jim Comey came out, he saved Hillary Clinton.  People don’t realize that.  He saved her life, because — I call it Comey [one].  And I joke about it a little bit.

When he was reading those charges, she was guilty on every charge.  And then he said, she was essentially OK.  But he — she wasn’t OK, because she was guilty on every charge.

And then you had two and then you had three.

But Hillary Clinton won — or Comey won.  She was guilty on every charge.

BARTIROMO:  Yes.

TRUMP:  So Director Comey…

BARTIROMO:  Well, that’s (INAUDIBLE)…

TRUMP:  No, I’m just saying…

BARTIROMO:  (INAUDIBLE)?

TRUMP:  Well, because I want to give everybody a good, fair chance.  Director Comey was very, very good to Hillary Clinton, that I can tell you.  If he weren’t, she would be, right now, going to trial.

From there, Bartiromo asks Trump why President Obama had changed the rules on sharing EO 12333 data. Trump suggests it is so his administration could be spied on, using the Susan Rice unmasking pseudo scandal as shorthand for spying on his team.

BARTIROMO:  Mr. President, just a final question for you.

In the last weeks of the Obama presidency, he changed all the rules in terms of the intelligence agencies, allowing them to share raw data.

TRUMP:  Terrible.

BARTIROMO:  Why do you think he did this?

TRUMP:  Well, I’m going to let you figure that one out.  But it’s so obvious.  When you look at Susan Rice and what’s going on, and so many people are coming up to me and apologizing now.  They’re saying you know, you were right when you said that.

Perhaps I didn’t know how right I was, because nobody knew the extent of it.

Undoubtedly, Mueller wants to know whether these comments relate to his comments to Comey (and, as I suggested, Hope Hicks may have helped elucidate that). The invocation of Hillary sets up one rationale for firing Comey, but one that contradicts with the official reason.

But the conversation also reflects Trump’s consistent panic that his actions (and those of his aides) will be captured by wiretaps.

May 3, 2017: What did you think and do about Mr. Comey’s May 3, 2017, testimony?

On May 3, Comey testified to the Senate Judiciary Committee. It covered leaks (including whether he had ever authorized any, a question implicated in the Andrew McCabe firing), and the hacked email raising questions about whether Lynch could investigate Hillary. Comey described his actions in the Hillary investigation at length. This testimony would be cited by Rod Rosenstein in his letter supporting the firing of Comey. In addition, there were a number of questions about the Russia investigation, including questions focused on Trump, that would have driven Trump nuts.

Along with getting a reaction to the differences between what Comey said in testimony and Trump’s own version (which by this point he had shared several times), Mueller likely wants to know what Trump thinks of Comey’s claim that FBI treated the Russian investigation just like the Hillary one.

With respect to the Russian investigation, we treated it like we did with the Clinton investigation. We didn’t say a word about it until months into it and then the only thing we’ve confirmed so far about this is the same thing with the Clinton investigation. That we are investigating. And I would expect, we’re not going to say another peep about it until we’re done. And I don’t know what will be said when we’re done, but that’s the way we handled the Clinton investigation as well.

In a series of questions that were likely developed in conjunction with Trump, Lindsey Graham asked whether Comey stood by his earlier claim that there was an active investigation.

GRAHAM: Did you ever talk to Sally Yates about her concerns about General Flynn being compromised?

COMEY: I did, I don’t whether I can talk about it in this forum. But the answer is yes.

GRAHAM: That she had concerns about General Flynn and she expressed those concerns to you?

COMEY: Correct.

GRAHAM: We’ll talk about that later. Do you stand by your house testimony of March 20 that there was no surveillance of the Trump campaign that you’re aware of?

COMEY: Correct.

GRAHAM: You would know about it if they were, is that correct?

COMEY: I think so, yes.

GRAHAM: OK, Carter Page; was there a FISA warrant issued regarding Carter Page’s activity with the Russians.

COMEY: I can’t answer that here.

GRAHAM: Did you consider Carter page a agent of the campaign?

COMEY: Same answer, I can’t answer that here.

GRAHAM: OK. Do you stand by your testimony that there is an active investigation counterintelligence investigation regarding Trump campaign individuals in the Russian government as to whether not to collaborate? You said that in March…

COMEY: To see if there was any coordination between the Russian effort and peoples…

GRAHAM: Is that still going on?

COMEY: Yes.

GRAHAM: OK. So nothing’s changed. You stand by those two statements?

Curiously (not least because of certain investigative dates), Sheldon Whitehouse asked some pointed questions about whether Comey could reveal if an investigation was being starved by inaction.

WHITEHOUSE: Let’s say you’ve got a hypothetically, a RICO investigation and it has to go through procedures within the department necessary to allow a RICO investigation proceed if none of those have ever been invoked or implicated that would send a signal that maybe not much effort has been dedicated to it.

Would that be a legitimate question to ask? Have these — again, you’d have to know that it was a RICO investigation. But assuming that we knew that that was the case with those staging elements as an investigation moves forward and the internal department approvals be appropriate for us to ask about and you to answer about?

COMEY: Yes, that’s a harder question. I’m not sure it would be appropriate to answer it because it would give away what we were looking at potentially.

WHITEHOUSE: Would it be appropriate to ask if — whether any — any witnesses have been interviewed or whether any documents have been obtained pursuant to the investigation?

Richard Blumenthal asked Comey whether he could rule Trump in or out as a target of the investigation and specifically within that context, suggested appointing a special counsel (Patrick Leahy had already made the suggestion for a special counsel).

BLUMENTHAL: Have you — have you ruled out the president of the United States?

COMEY: I don’t — I don’t want people to over interpret this answer, I’m not going to comment on anyone in particular, because that puts me down a slope of — because if I say no to that then I have to answer succeeding questions. So what we’ve done is brief the chair and ranking on who the U.S. persons are that we’ve opened investigations on. And that’s — that’s as far as we’re going to go, at this point.

BLUMENTHAL: But as a former prosecutor, you know that when there’s an investigation into several potentially culpable individuals, the evidence from those individuals and the investigation can lead to others, correct?

COMEY: Correct. We’re always open-minded about — and we follow the evidence wherever it takes us.

BLUMENTHAL: So potentially, the president of the United States could be a target of your ongoing investigation into the Trump campaign’s involvement with Russian interference in our election, correct?

COMEY: I just worry — I don’t want to answer that — that — that seems to be unfair speculation. We will follow the evidence, we’ll try and find as much as we can and we’ll follow the evidence wherever it leads.

BLUMENTHAL: Wouldn’t this situation be ideal for the appointment of a special prosecutor, an independent counsel, in light of the fact that the attorney general has recused himself and, so far as your answers indicate today, no one has been ruled out publicly in your ongoing investigation. I understand the reasons that you want to avoid ruling out anyone publicly. But for exactly that reason, because of the appearance of a potential conflict of interest, isn’t this situation absolutely crying out for a special prosecutor?

Chuck Grassley asked Comey the first questions about what would become the year-long focus on Christopher Steele’s involvement in the FISA application on Carter Page.

GRASSLEY: On — on March 6, I wrote to you asking about the FBI’s relationship with the author of the trip — Trump-Russia dossier Christopher Steele. Most of these questions have not been answered, so I’m going to ask them now. Prior to the bureau launching the investigation of alleged ties between the Trump campaign and Russia, did anyone from the FBI have interactions with Mr. Steele regarding the issue?

COMEY: That’s not a question that I can answer in this forum. As you know, I — I briefed you privately on this and if there’s more that’s necessary then I’d be happy to do it privately.

GRASSLEY: Have you ever represented to a judge that the FBI had interaction with Mr. Steele whether by name or not regarding alleged ties between the Trump campaign and Russia prior to the Bureau launching its investigation of the matter?

COMEY: I have to give you the same answer Mr. Chairman.

In a second round, Whitehouse asked about a Trump tweet suggesting Comey had given Hillary a free pass.

WHITEHOUSE: Thank you.

A couple of quick matters, for starters. Did you give Hillary Clinton quote, “a free pass for many bad deeds?” There was a tweet to that effect from the president.

COMEY: Oh, no, not — that was not my intention, certainly.

WHITEHOUSE: Well, did you give her a free pass for many bad deeds, whatever your intention may have been?

COMEY: We conducted a competent, honest and independent investigation, closed it while offering transparency to the American people. I believed what I said, there was not a prosecutable case, there.

Al Franken asked Comey whether the investigation might access Trump’s tax returns.

FRANKEN: I just want to clarify something — some of the answers that you gave me for example in response to director — I asked you would President Trump’s tax returns be material to the — such an investigation — the Russian investigation and does the investigation have access to President Trump’s tax returns and some other questions you answered I can’t say. And I’d like to get a clarification on that. Is it that you cant say or that you can’t say in this setting?

COMEY: That I won’t answer questions about the contours of the investigation. As I sit here I don’t know whether I would do it in a closed setting either. But for sure — I don’t want to begin answering questions about what we’re looking at and how.

Update: Contemporaneous reporting makes it clear that Trump was particularly irked by Comey’s admission that “It makes me mildly nauseous to think that we might have had some impact on the election,” as that diminished Trump’s win. (h/t TC)

May 9, 2017: Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?

The May 3 hearing is reportedly the precipitating event for Trump heading to Bedminster with Ivanka, Jared, and Stephen Miller on May 4 and deciding to fire Comey. Trump had Miller draft a letter explaining the firing, which Don McGahn would significantly edit when he saw it on May 8. McGahn also got Sessions and Rosenstein, who were peeved about different aspects of the hearing (those focused on Comey’s actions with regards to Hillary), to write letters supporting Comey’s firing.

Given that Mueller has the original draft of the firing letter and testimony from McGahn, Rosenstein, and Sessions, this question will largely allow Trump to refute evidence Mueller has already confirmed.

RESOURCES

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

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

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

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes