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The Parallel Tracks of Disclosure on Why Manafort Shared Campaign Polling Data with His Russian Co-Conspirator

No one knows what the first half of this sentence says:

[redacted] the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

But it almost certainly includes language acknowledging evidence that might support (but ultimately was not enough to indict on) a conspiracy charge.

I have twice before demonstrated that the Barr Memo — and so this full sentence — is nowhere near as conclusive with respect to exonerating Trump as a number of people have claimed (and Trump’s equivocations about releasing the report). This post showed how little Barr’s Memo actually incorporates from the Mueller Report. And this post shows that the memo ignores Stone’s coordination with WikiLeaks, presumably because he didn’t coordinate directly with the Russian government.

But (as I’ve said elsewhere), the public record on Paul Manafort’s conduct also makes it clear that the Mueller Report includes inconclusive information on whether the Trump campaign conspired with Russians. This came up extensively, in the discussion of Manafort’s sharing of polling data at his August 2, 2016 meeting with Konstantin Kilimnik, at the February 4 breach hearing.

At the beginning of that discussion, ABJ asked whether Manafort had lied to the grand jury about his motives for sharing polling data. [Throughout this, I’m bolding the redactions but including the content where it’s obvious.]

JUDGE AMY BERMAN JACKSON: I think we can go on to the question of the [redacted; sharing of polling data]. And I don’t have that many questions, mainly because I think it’s pretty straightforward what you’re saying.

So, I would want to ask you whether it’s part of your contention that he lied about the reason [redacted; he shared the data]. I know initially he didn’t even agree that that [redacted; he had shared private polling data], and he didn’t even really agree in the grand jury. He said it just was public information. But, I think there’s some suggestion, at least in the 302, as to what the point was of [redacted].

And so, I’m asking you whether that’s part of this, if he was lying about that?

Because Mueller’s team only needed ABJ to rule that Manafort lied, Andrew Weissmann explained they didn’t need her to reach the issue of motive. But they did discuss motive. Weissmann describes that it wasn’t just for whatever benefit sharing the polling data might provide the campaign, but it would also help Manafort line up his next gig and (probably) get out of debt to Deripaska.

MR. WEISSMANN: So, I don’t think the Court needs to reach that issue, and I don’t know that we’ve presented evidence on the — that issue.

THE COURT: You didn’t. So you just don’t want me to think about it, that’s okay.

MR. WEISSMANN: No. No. No. I’m going to answer your question.

THE COURT: All right.

MR. [WEISSMANN]: I’m just trying to, first, deal with what’s in the record. And I think that in the grand jury, Mr. Manafort said that from his perspective, [redacted], which he admitted at that point was with — he understood that it was going to be given by [redacted] to the [redacted; Ukrainian Oligarchs] and to Mr. [redacted; possibly Deripaska], both. That from his perspective, it was — there was no downside — I’m paraphrasing — it was sort of a win-win. That there was nothing — there was no negatives.

And I think the Government agrees with that, that that was — and, again, you’re just asking for our — if we are theorizing, based on what we presented to you, that we agree that that was a correct assessment.

But, again, for purposes of what’s before you on this issue, what his ultimate motive was on what he thought was going to be [redacted] I don’t think is before you as one of the lies that we’re saying that he told.

It’s more that what he specifically said was, he denied that he had told Mr. Gates [redacted; to bring the polling data to the meeting]. That he would not, in fact, have [redacted] and that he left it to [redacted].

Weissmann then goes on to allege that Manafort lied about sharing this polling data because if he didn’t, it would ruin his chance of getting a pardon.

And our view is, that is a lie. That that is really under — he knew what the Gates 302s were. It’s obviously an extremely sensitive issue. And the motive, I think, is plain from the [redacted], is we can see — we actually have — we can see what it is that he would be worried about, which is that the reaction to the idea that [long redaction] would have, I think, negative consequences in terms of the other motive that Mr. Manafort could have, which is to at least augment his chances for a pardon.

And the proof with respect to that is not just Mr. Gates. So that I will say there’s no contrary evidence to Mr. Gates, but you don’t have just Mr. Gates’s information. You have a series of emails where we know that Mr. Kilimnik, in fact, is reporting [redacted]

And probably the best piece of evidence is you have Mr. Manafort asking Mr. Gates to [redacted; print out polling data]. So, it’s — there’s — from three weeks ago, saying: [redacted].

In an effort to understand why this lie was important, ABJ returns to Manafort’s motive again, which leads Weissmann to point out that the question of why Manafort shared the polling data goes to the core of their inquiry.

THE COURT: I understand why it’s false. And I’m not sure I understand what you said at the beginning, that you — and I understand why you’ve posited that he might not want to be open about this, given the public scrutiny that foreign contacts were under at the time. But, I’m not sure I understand what you’re saying where you say you agree with him when he said it had no downside.

So, this is an important falsehood because it was false? Or is there some larger reason why this is important?

MR. WEISSMANN: So — so, first, in terms of the what it is that the special counsel is tasked with doing, as the Court knows from having that case litigated before you, is that there are different aspects to what we have to look at, and one is Russian efforts to interfere with the election, and the other is contacts, witting or unwitting, by Americans with Russia, and then whether there was — those contacts were more intentional or not. And for us, the issue of [redacted] is in the core of what it is that the special counsel is supposed to be investigating.

My answer, with respect to the Court’s question about what it is — what the defendant’s intent was in terms of what he thought [redacted] I was just trying to answer that question, even though that’s not one of the bases for saying there was a lie here. And so I was just trying to answer that question.

And what I meant by his statement that there’s no downside, is that can you imagine multiple reasons for redacted; sharing polling data]. And I think the only downside —

Weissmann ultimately explains that there was no downside to Manafort to sharing the polling data during the campaign, but there was a downside (angering Trump and therefore losing any hope of a pardon) to the information coming out now.

THE COURT: You meant no downside to him?

MR. WEISSMANN: Yes.

THE COURT: You weren’t suggesting that there was nothing — there’s no scenario under which this could be a bad thing?

MR. WEISSMANN: Oh, sorry. Yes. I meant there was no downside — Mr. Manafort had said there was no downside to Mr. Manafort doing it.

THE COURT: That was where I got confused.

MR. WEISSMANN: Sorry.

THE COURT: All right.

MR. WEISSMANN: And meaning all of this is a benefit. The negative, as I said, was it coming out that he did this.

In her breach ruling, ABJ agreed that Manafort’s sharing of polling data was a key question in Mueller’s inquiry, as it was an intentional link to Russia. She establishes this by noting that Manafort knew the polling data would be shared with someone in Russia (probably Deripaska; though note, this is where ABJ gets the nationality of the two Ukranian oligarchs wrong, which Mueller subsequently corrected her on).

Also, the evidence indicates that it was understood that [redacted] would be [redacted] from Kilimnik [redacted] including [redacted], and [redacted]. Whether Kilimnik is tied to Russian intelligence or he’s not, I think the specific representation by the Office of Special Counsel was that he had been, quote, assessed by the FBI, quote, to have a relationship with Russian intelligence, close quote. Whether that’s true, I have not been provided with the evidence that I would need to decide, nor do I have to decide because it’s outside the scope of this hearing. And whether it’s true or not, one cannot quibble about the materiality of this meeting.

In other words, I disagree with the defendant’s statement in docket 503, filed in connection with the dispute over the redactions, that, quote, the Office of Special Counsel’s explanation as to why Mr. Manafort’s alleged false statements are important and material turns on the claim that he is understood by the FBI to have a relationship with Russian intelligence.

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redacted] Kilimnik and [redacted] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

Elsewhere, in discussing Manafort’s efforts to downplay Kilimnik’s role in his own witness tampering, ABJ refers to Kilimnik as Manafort’s “Russian conspirator.”

Earlier in the hearing ABJ notes that Manafort’s excuse for why he forgot details of the August 2 meeting only reinforce the likelihood that he shared the polling data to benefit the campaign.

You can’t say you didn’t remember that because your focus at the time was on the campaign. That relates to the campaign. And he wasn’t too busy to arrange and attend the meeting and to send Gates [redacted] that very day. It’s problematic no matter how you look at it.

If he was, as he told me, so single-mindedly focused on the campaign, then the meeting he took time to attend and had [redacted] had a purpose [redacted; to benefit the campaign]. Or, if it was just part of his effort to [redacted; line up the next job], well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.

She further notes that Manafort took this meeting with his Russian partner in Ukrainian influence peddling even though he was already under press scrutiny for those Ukrainian ties.

[T]he participants made it a point of leaving separate because of the media attention focused at that very time on Manafort’ relationships with Ukraine.

Her ruling also explains at length why sharing polling data would be useful to Kilimnik, citing from Rick Gates’ 302s at length.

In other words, these two filings — to say nothing of the backup provided in the January 15 submission, which includes all but one of Gates’ 302s describing the sharing of the polling data — lay out in some detail the evidence that Manafort clandestinely met with Konstantin Kilimnik on August 2, 2016, in part to share polling data he knew would be passed on to at least one other Russian, probably Deripaska.

And here’s why that’s interesting.

Back in early March, the WaPo moved to liberate all the documents about Manafort’s breach determination. On March 19, Mueller attorneys Adam Jed and Michael Dreeben asked for an extension to April 1, citing the “press of other work.”

The government respectfully requests an extension of time—through and including April 1, 2019—to respond to the motion. The counsel responsible for preparing the response face the press of other work and require additional time to consult within the government.

Three days later, Mueller announced he was done, and submitted his report to Barr. Then, on March 25, all of Mueller’s attorneys withdrew from Manafort’s case, which they haven’t done in other cases (the main pending cases are Mike Flynn, Concord Management, and Roger Stone). Then, on March 27, Mueller and Jonathan Kravis, the AUSA taking over a bunch of Mueller’s cases, asked for another extension, specifically citing the hand-off to Kravis and two others in the DC US Attorney’s Office.

The government respectfully requests a further two-week extension of time—to and including April 15, 2019—to respond to the motion. The Special Counsel’s Office has been primarily handling this matter. On March 22, the Special Counsel announced the end of his investigation and submitted a report to the Attorney General. This matter is being fully transitioned to the U.S. Attorney’s Office. Because of this transition, additional time will be required to prepare a response.

On March 29, Barr wrote the Judiciary Leadership and told them he’d release his redacted version of the Mueller report — which he’ll be redacting with the Mueller’s team — by mid-April, so around April 15.

So there are currently two parallel efforts considering whether to liberate the details of Manafort’s sharing of polling data with Kilimnik and through him Russia:

  • The Barr-led effort to declassify a report that Mueller says does not exonerate Trump for obstruction, including the floating of a pardon to Manafort that (in Weissmann’s opinion) led Manafort to lie that and why he shared Trump campaign polling data to be passed on to Russians, which will be done around April 15
  • The DC USAO-led effort to unseal the materials on Manafort’s lies, for which there is a status report due on April 15

Kevin Downing — the Manafort lawyer whose primary focus has been on preserving Manafort’s bid for a pardon — already expressed some concern about how the breach documents would be unsealed, to which ABJ sort of punted (while suggesting that she’d entertain precise the press request now before her.

MR. DOWNING: Your Honor, just one other general question: How are we going to handle the process of unredacted down the road? I mean, there’s been a lot of redactions in this case, and the law enforcement basis for it or ongoing grand jury investigations. What is going to be the process to — is the Office of Special Counsel going to notify the Court that the reason stated for a particular redaction no longer exists, or still survives? Is it going to be some sort of process that we can put in place?

THE COURT: Well, in one case, I know with all the search warrants, it was an evolving process. There were things that were withheld from you and then you got them but they were still withheld from the press and then the press got them. But usually things have to be triggered by a motion or request by someone. There may be reasons related to the defense for everything to stay the way it is.

I, right now, without knowing with any particularity what it is that you’re concerned about, or if — and not having the press having filed anything today, asking for anything, I don’t know how to answer that question. But I think that is something that comes up in many cases, cases that were sealed get unsealed later. And if there’s something that you think should be a part of the public record that was sealed and there’s no longer any utility for it, obviously you could first find out if it’s a joint motion and, if not, then you file a motion.

But for now, the prosecutors in DC will be in charge of deciding how much of the information — information that Barr might be trying to suppress, not least because it’s the clearest known evidence how a floated pardon prevented Mueller from fully discovering whether Trump’s campaign conspired with Russia — will come out in more detail via other means.

Update: And now, over a month after Mueller’s correction, three weeks after sentencing, and a week after the entire Mueller team moved on, Manafort submitted his motion for reconsideration from Marc. They’re still fighting about redactions.

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. 

Yesterday Noel Francisco Raised the Stakes on the Mystery Appellant

Back when President Trump fired Jeff Sessions, there was a CNN report describing how two competing groups of people discussed what to do in response. It described that Solicitor General Noel Francisco was in the Sessions huddle, a huddle focused, in part, on how to protect the Mueller investigation.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

[snip]

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

Francisco’s presence in the Sessions/Rosenstein huddle was significant for a number of reasons: If Rosenstein had been fired while Big Dick Toilet Salesman was Acting Attorney General, he would be the next superior officer, confirmed by the Senate, in the chain of command reviewing Mueller’s activities. As Michael Dreeben testified in the days after the firing, Francisco would have (and has had) to approve any appeals taken by Mueller’s team. In addition, it was significant that someone who is pretty fucking conservative was huddling with those who were trying to protect the investigation.

That’s why I’m interested in several details from the Mueller response to the Mystery Appellant challenge to a Muller subpoena submitted to SCOTUS yesterday.

First, as I expected, the government strongly rebuts Mystery Appellant’s claim that they are a foreign government (which was the spin in their own brief). Rather they are a commercial enterprise that a foreign government owns.

As the petition acknowledges (Pet. 1 n.1), petitioner is not itself a foreign government, but is a separate commercial enterprise that a foreign government owns.

That makes a ton of difference to the analysis, because the government has a much greater leeway in regulating businesses in this country than it does foreign governments.

Indeed, in one of the key parts of the brief, the government lays out the import of that: because if foreign owned companies were immune from subpoena, then on top of whatever problems it would create for regulating the foreign-owned corporation, it would also mean American citizens could deliberately use those foreign-owned corporations to shield their own criminal behavior.

Petitioner’s interpretation would, as the court of appeals recognized, lead to a result that Congress could not have intended—i.e., that “purely commercial enterprise[s] operating within the United States,” if majority- owned by a foreign government, could “flagrantly violate criminal laws” and ignore criminal process, no matter how domestic the conduct or egregious the violation. Supp. App. 10a. Banks, airlines, software companies, and similar commercial businesses could wittingly or unwittingly provide a haven for criminal activity and would be shielded against providing evidence even of domestic criminal conduct by U.S. citizens. See id. at 10a-11a. Although petitioner declares that result to be “precisely what Congress intended,” Pet. 25, it cannot plausibly be maintained that Congress and the Executive Branch—which drafted the FSIA—would have adopted such a rule “without so much as a whisper” to that effect in the Act’s extensive legislative history, Samantar, 560 U.S. at 319.8

In an unbelievably pregnant footnote to that passage, the government then notes that Mystery Appellant’s suggestion that the President could retaliate if foreign-owned corporations engaged in crime via something like sanctions ignores what tools are available if foreign-owned corporations don’t themselves engage in crime, but instead serve as a shield for the criminal activity of US citizens.

8 Petitioner suggests (Pet. 26) that Congress would not have been troubled by barring federal criminal jurisdiction over foreign state-owned enterprises because the President could use tools such as economic sanctions to address foreign instrumentalities “that commit crimes in the United States.” That overlooks not only the legal and practical limits on sanctions, but also the threshold need to acquire evidence through grand jury subpoenas in order to determine whether a crime has been committed—including by U.S. citizens.

Consider: There is significant evidence to believe that a foreign country — Russia — bribed Trump to give them sanctions relief by floating a $300 million business deal. There is also evidence that, after a series of back channel meetings we know Zainab Ahmed was investigating, such funds may have come through a Middle Eastern proxy, like Qatar. There is not just evidence that Qatar did provide funds no one in their right mind would have provided to the President’s family, in the form of a bailout to Jared Kushner’s albatross investment in 666 Fifth Avenue. But they’re already laying the groundwork to claim they accidentally bailed him out, without realizing what they were doing.

So if Russia paid off a bribe to Trump via Qatar, and Qatar is trying to hide that fact by claiming Qatar Investment Authority is a foreign government that can only be regulated in this country by sanctions imposed by the guy who is trading sanctions to get rich … well, you can see why that’s a non-starter.

Finally — going back to why I’m so interested that Francisco was in the Sessions/Rosenstein huddle — just Francisco’s name is on the brief, even though Dreeben and Scott Meisler surely had a role in drafting it.

This was noted to me by Chimene Keitner, who is an actual expert in all this (and did her own very interesting thread on the response).

I’m sure I understand only a fraction of the significance that just Francisco signed the brief. But two things I do understand: One, Francisco is giving this argument a great deal of weight with SCOTUS, signaling the import of winning this argument.

Additionally, however, it means he stands as a shield for Mueller’s work on this appeal. If Trump wants to retaliate against DOJ for exposing the payoff to a quid pro quo, the President is going to have to fire another Senate-confirmed officer to do it, and fire one against whom he hasn’t laid a claim of partisanship. As I’ve already noted, by dint of this company being a foreign company, Mueller likely already knows what he’s getting via SIGINT. This subpoena is likely significantly an attempt to parallel construct evidence for use at trial. And the brief seems to make it clear that Mueller suspects some US citizen used this foreign-owned corporation to shield his own criminal behavior.

Which might explain why Francisco sees the need and import of shielding Mueller in this step.

Update: I’m seeing people misunderstanding the significance of my point (which, again, was suggested by someone more expert than me and most journalists on this). It’s not just that Francisco appears — that’s normal. It’s that only he appears, when we know that several other people had to have worked on the brief. That is, it’s the fact that Dreeben is not named.

As comparison, here’s the signature line for another brief that DOJ submitted (as amicus) today:

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 Supreme Court Has Already Agreed that the Mystery Appellant Caused a “Direct Effect” in the United States

I’d like to make a minor — but I think important — point about the DC Circuit opinion in the Mystery Appellant challenge to what is believed to be a Robert Mueller subpoena. Assuming that this is a challenge to a Special Counsel subpoena, then the Supreme Court has already agreed with Mueller — in dissolving a stay of financial penalties for blowing off a subpoena — that some company owned by a foreign country took an action outside the US that had an effect inside the US, in an investigation into what happened during an election.

This post will assume that this is a Mueller subpoena. Some of the evidence backing that assumption includes:

  • DC District Chief Judge Beryl Howell issued the original order; she presides over Mueller’s grand jury
  • A lawyer asked for Mueller’s latest sealed filing on the day a response from the Mystery Appellant was due
  • Greg Katsas recused from consideration of this case; he had said he would recuse on Mueller related issues
  • The secrecy for the hearing before the DC Circuit, and arguably the review process for this challenge, were exceptional
  • Mueller lawyers Michael Dreeben and Zainab Ahmad were seen returning to his office after the DC Circuit hearing

Judges David Tatel, Thomas Griffith, and Stephen Williams issued their order on December 18. The Mystery Appellant appealed to the Supreme Court, and over Christmas John Roberts took briefing on that appeal. Last week the Supreme Court declined to uphold the stay, effectively agreeing with the Circuit’s decision.

And that’s important, because a key part of the now-public (though still partly sealed) DC Circuit opinion explains how the presumed Mueller request overcomes the sovereign immunity of the company in question. The request must involve — among other things — an exception to sovereign immunity.

Taking section 1604 ‘s grant of immunity as a given, the government must check three boxes for the contempt order to stand. First, there must be a valid grant of subject-matter jurisdiction. Second, one of the Act’s exceptions to immunity must apply. And third, the contempt sanctions must be a permissible remedy. According to the district court, the government satisfies all three. We agree.

Mueller claimed that this qualified as an exception because the request involves an “act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere [when] that act causes a direct effect in the United States.”

Moving to those exceptions, in its ex parte filing the government steers us to the third clause of section 1605(a)(2). That provision denies immunity in an “action … based … upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere [when] that act causes a direct effect in the United States.” Ordinarily, the Corporation would bear the burden to establish that the exception does not apply. See EIG Energy FundXIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 344- 45 (D.C. Cir. 2018) (“[T]he foreign-state defendant bears the burden of establishing the affirmative defense of immunity,” including “‘proving that the plaintiff’s allegations do not bring its case within a statutory exception to immunity.”‘ (quoting Phoenix Consulting Inc. v. Republic of Angola, 216 F .3d 36, 40 (D.C. Cir. 2000))).

And because Mueller relied on an ex parte filing to make that case, all the judges involved — Howell, Tatel, Griffith, Williams, Roberts, and whoever else at SCOTUS reviewed this — relied on the argument that Mueller’s lawyers laid out about the request.

Here, however, the government relies primarily on ex parte evidence unavailable to the Corporation. We have repeatedly approved the use of such information when “necessary to ensure the secrecy of ongoing grand jury proceedings,” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1075 (D.C. Cir. 1998), and we do so again here. But where the government uses ex parte evidence, we think the burden falls on the government to establish that the exception applies, and we will conduct a searching inquiry of the government’s evidence and legal theories as a substitute for the adversarial process.

In a sealed discussion of Mueller’s ex parte filing, the DC Circuit finds a “reasonable probability” that that section covers this subpoena. It goes further and states that it doesn’t have to decide what the gravamen of the subpoena is, which suggests that something about this request makes it very clear that the company both possess the records and that they are relevant to Mueller’s investigation.

The “gravamen” of a subpoena may be the mere fact that an entity possesses the documents in question. Alternatively, the “gravamen” may be related to the content of the records and why they may be relevant to the government’s investigation. Indeed, the correct approach may well vary with the facts of a given case. Here, however, we need not resolve that issue [redacted]

There’s some other redacted discussion that dismisses a claim made by the corporation that will be interesting for the history books. But the DC Circuit is clear that the request — as laid out in an ex parte filing presumably written by Mueller’s lawyers — clears the subject matter question.

None of this analysis tells us enough about the company for us to guess what foreign company it is. The WaPo says it is a financial institution. I happen to think that Qatar or the Emirates’ investment authority are the most likely candidates but that’s just an educated guess.

Still, if this is indeed a Mueller subpoena, given the topic of Mueller’s inquiry and his fairly clear discipline at staying within the scope of it, that nevertheless is a signifiant revelation. That’s because Mueller is investigating events relating to an election. And most acts by a company owned by a foreign country that cause an effect in this country — if they have some relationship with that election — would be illegal. It could be the payoff for a bribe. It could be a more direct expenditure associated with the campaign. It could be a payment associated with activities that occurred during the campaign.

Maybe it’s something far more obscure. But any of the obvious applications here would all implicate a foreign country influencing — directly or indirectly — the election. And SCOTUS has already reviewed that Mueller argument, and found it reasonable.

That doesn’t mean SCOTUS has reviewed the evidence the company has, it doesn’t mean the company will turn over the evidence (though it would already incurred something like $300,000 to avoid compliance), it doesn’t mean the evidence proves whatever crime Mueller has cited in demanding it.

But SCOTUS has, at a minimum, found Mueller’s argument that such evidence would be relevant to his criminal investigation reasonable.

Update: Added language to make what happened — SCOTUS dissolved the stay — technically correct.

Update: And SCOTUS is now debating whether to allow the Mystery Appellant to file cert under seal or not.

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. 

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

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

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

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

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

November 8: On his podcast, Corsi suggests something big is going down with Mueller

November 9: Corsi appears before the grand jury and doesn’t give the answer — regarding how he learned that WikiLeaks would release John Podesta’s emails — that prosecutors expected; they told him they were going to charge him with perjury

November 12: On his podcast, Corsi says he expects to be indicted; a huge media frenzy follows

November 13: The media frenzy continues until (he claims), moments before starting an MSNBC interview, his lawyer tells him to call it off

November 23: Corsi goes to the WaPo (off the record), AP, and MSNBC (the latter two both on the record) to tell them he is in plea negotiations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Kremlinology (Ha!) of the Sessions’ Huddle

A lot of people were startled by the report of Rod Rosenstein commenting on Friday that Matt Whitaker is a “superb” choice to be Acting Attorney General.

Deputy Attorney General Rod Rosenstein on Friday hailed acting Attorney General Matthew Whitaker as a “superb” choice to fill the role even as Whitaker’s past statements have prompted questions about his impartiality toward special counsel Robert Mueller’s investigation.

“I think he’s a superb choice for attorney general,” Rosenstein told a small group of reporters gathered outside of an investiture ceremony for US Attorney Zachary Terwilliger in Alexandria, Virginia. “He certainly understands the work, understands the priorities of the department.”

When asked about the Mueller probe at the same event, Rosenstein walked away.

Aside from reports that Rosenstein and Whitaker hate each other (indeed, the effort to fire Rosenstein in September was significantly hatched by Whitaker), there’s reason to believe Rosenstein was just flattering his new boss. The speech at which he made these comments included a comment not just mentioning Marbury versus Madison — the cornerstone of judicial review in this country, which Whitaker has said was wrongly decided — but mentioning it in the context of having the proper paperwork to serve as an official of DOJ.

The internet web site for the Eastern District of Virginia proudly states, and I quote, “John Marshall … was appointed by President Washington to serve as the first United States Attorney for the District of Virginia.”

Virginia’s claim to Chief Justice Marshall as the first U.S. Attorney is quite a distinction. But it is not entirely accurate. Now, it is literally true that John Marshall was appointed U.S. Attorney by President Washington. But he never actually served as U.S. Attorney.

In fact, Marshall responded to the President with a letter of his own. Marshall wrote, “[T]hank you … very sincerely for the honor … [but] I beg leave to declare that … with real regret[,] I decline ….”

Washington replied with yet another letter. He wrote, “As some other person must be appointed to fill the Office of Attorney for the district of Virginia, it is proper your Commission should be returned to me.” He wanted the document back!

Perhaps that explains why, when the case of Marbury versus Madison came along in 1803, Chief Justice Marshall focused so intently on the importance of the signed commission.

Apparently the audience, for the investiture of the new US Attorney in EDVA, laughed at Rosenstein’s comment, perhaps recognizing the reference to be a dig at Whitaker, perhaps recognizing something more.

Still, two days after Whitaker’s appointment, Rosenstein offered effusive and public flattery at a time of great uncertainty over events of the last week.

Rod Rosenstein has not survived as a senior DOJ official for thirteen years, through three presidential administrations and serving both parties, without knowing how to flatter his bosses. And I suspect, in this case, those skills may serve the country well.

Consider some details in this important CNN report, describing how and with whom, after John Kelly asked Jeff Sessions for his resignation on Wednesday morning, the Attorney General of the United States huddled, talking strategy.

Sessions met with the Deputy Attorney General, the Solicitor General, the head of Office of Legal Counsel, and the Principal Deputy Assistant Attorney General.

John Kelly, the White House chief of staff, asked Sessions to submit his resignation, according to multiple sources briefed on the call. Sessions agreed to comply, but he wanted a few more days before the resignation would become effective. Kelly said he’d consult the President.

Soon, the sources say, top Justice officials convened on the 5th floor suite of offices for the attorney general.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

With the exception of O’Callaghan, all of those men outranked Whitaker so long as Sessions officially remained Attorney General. We don’t actually know when his tenure ended. Sessions’ resignation letter is not dated, much less time-stamped; while Sessions may not know how to date important letters like this, Rosenstein and O’Callaghan surely do, but somehow it did not get dated.

Judges and Justices, Rosenstein would point out two days later, “focus[ ] intently on the importance of the signed commission.”

We do know that when Trump tweeted about Whitaker’s appointment at 2:44 PM, he used the future tense — “will become,” not “is” — to describe Whitaker’s tenure as Attorney General.

We also know that Sessions implemented a significant policy change on consent decrees close to the end of that day, a policy change the Trump Administration has built on in ensuing days. So at the time Sessions implemented that policy change (which the metadata suggests was close to the end of the day), he must have still retained the authority of Attorney General.

So for the sake of this Kremlinology, I will assume that Sessions remained Attorney General for the remainder of the day on Wednesday. That means that, for at least a half day after this went down, any orders he gave were binding and all those men huddling with him on Wednesday morning retained the relative seniority to Whitaker that they started the day with.

As CNN says in its report, the people huddling with Sessions included key players overseeing Mueller’s probe. Rosenstein and O’Callaghan provide the day-to-day oversight of the probe.

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

That day-to-day oversight is critical both to any claim that Mueller operates with constitutional authority and to any effort by Trump and Whitaker to undermine Mueller’s authority.

But CNN doesn’t talk about the important role played in the probe by the other two Senate-confirmed figures in the room, Solicitor General Noel Francisco and OLC head Steven Engel.

As Michael Dreeben, who formally reports to Francisco, noted Thursday (that is, the day after this huddle) during his DC Circuit argument defending the constitutionality of Mueller’s authority, Francisco must approve any appeal Mueller’s team makes (presumably, he must approve any appellate activity at all). The arguments Dreeben made publicly Thursday — as well as whatever arguments Mueller submitted in a brief in sealed form in the Mystery Appeal that same day — were arguments made with the approval of and under the authority of the Solicitor General, the third ranking official at DOJ.

Then there’s Engel. He’s the guy who decides, in response to questions posed by Executive Branch officials, how to interpret the law for the entire Executive Branch. It’s his office, for example, who would decide whether it would be legal for Mueller to indict the President. His office also interprets the laws surrounding things like the Vacancies Reform Act, whether any given presidential appointment is legal.

Which is why this passage of the CNN report is so significant.

At least one Justice official in the room mentioned that there would be legal questions about whether Whitaker’s appointment as acting attorney general is constitutional.

In a room of men huddling with Jeff Sessions at a time he undeniably retained authority as Attorney General, at least one person — it might though is unlikely to be Sessions, it might be the Solicitor General who would argue the case legally, it might be the Deputy Attorney General or his deputy overseeing the Russian probe, it might be the guy who ultimately decides such things, or it might be several of them — at least one of those senior DOJ officials raised questions about whether Whitaker’s appointment would be constitutional. All of those men are sufficiently senior to ask Engel to write up a memo considering the question, and so long as Sessions retained the authority of Attorney General, he could decide whether to accept Engel’s advice or not. Sure, the President could override that (Obama overrode OLC, to his great disgrace, in Libya). But Trump would be on far shakier legal ground to do so without OLC’s blessing, and anyone operating in defiance of the OLC opinion could face legal problems in the future.

And an OLC opinion is precisely the kind of thing that Mueller’s team might submit to the DC Circuit — under the authority of the Senate approved and third-ranking Noel Francisco — in a sealed appendix to a challenge to Mueller’s authority.

I asked around this morning, of both those who think Whitaker’s appointment is not legal and those (like Steve Vladeck) who think it is. And it seems crystal clear: if Whitaker’s appointment is illegal, then that is a disability (just like recusal would be), and the regular DOJ succession would apply. In that case, the Deputy Attorney General would be acting Attorney General, for all matters, not just the supervision of the Special Counsel.

I don’t pretend to know what happened in that huddle or in the half day afterwards when Jeff Sessions uncontestedly retained his authority as Attorney General. I do know the rising House Judiciary Committee Chair has demanded that the paperwork behind it be preserved.

But I’m not really bugged that Rod Rosenstein is doing what he needs to do to remain the person who, if Whitaker’s appointment were illegal, would serve as the Acting Attorney General.

Update: Two more details I should have added in this post.

First, this meeting feels a lot like the ones in response to the 2004 Hospital Hero crisis, which was not just a fight about surveillance, but also about President’s abusing DOJ succession. That suggests the two different huddles at DOJ represent two different camps of loyalty. If that’s right, we might assume those officials in with Sessions might resign (or threaten to) if asked to do something they believed to be illegal. That would mean people with the analogous job titles as threatened to quit in the 2004 crisis — DAG, PDAAG, and SG — might threaten to quit here. Chris Wray would be the analogue to Robert Mueller in this situation; while he’s not reported to be involved on Wednesday, he was reportedly among those ready to quit in 2004.

Additionally, there have been worries about what would happen if Noel Francisco assumed oversight of the Mueller probe (which is what would have happened if Trump fired Rosenstein rather than replaced Sessions). That he was in the group trying to preserve the Mueller probe suggests he may be more supportive of it than people have assumed; remember, on top of approving Mueller’s appeals, he has been brought in at other key points.

So this Kremlinology also suggests there may be more resilience among top officials than assumed, as well.

Update: Fixed that “supervision of the Attorney General” phrase as noted by several in comments. Thanks!

Are Mueller and Matt Whitaker Already Battling over Immunity or a Plea Deal for Jerome Corsi?

From the very first reporting on Jerome Corsi’s testimony to Robert Mueller, his lawyer hinted that he may have been invited — but declined — to engage in criminal activity with Roger Stone.

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

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

Yesterday on his broadcast, Corsi seemed a lot less certain that he has avoided legal jeopardy.

He billed the broadcast as a historic one and made it clear it was all about Mueller, even while he feigned that he was not commenting on Mueller. He announced he would not broadcast Friday, because he’d be with his lawyers, and suggested he might not broadcast Monday. He invoked both Stone and Alex Jones in his comments. Chuck Ross laid out some of this here, including that he invoked Jeremiah 20:11, presumably as a veiled attack on Mueller.

But the Lord is with me as a mighty terrible one; therefore my persecutors shall stumble, and they shall not prevail; they shall be greatly ashamed; for they shall not prosper; their everlasting confusion shall never be forgotten,

Corsi also invokes Jesus’ superior access to truth before Pontius Pilate.

What Ross doesn’t lay out — but I have — is that Roger Stone’s excuses for his “Podesta time in a barrel” comments seem to be a retroactive excuse for some attacks he and Corsi made on John Podesta that seem to reflect some pre-knowledge that the Podesta emails Russia leaked in October 2016 would include information on Podesta’s ties to Joule Unlimited. Corsi returned to the attack in October 2016 even before WikiLeaks started releasing the emails and Stone adopted without showing signs of reading the emails he relied on. The awareness that the Podesta dump would include emails on Joule seems to date back to mid-August 2016, precisely the period when Stone (and his associate, Lee Stranahan) were first engaging with Guccifer 2.0, and it happened just two weeks after Stone flipflopped on his claimed beliefs about who did the DNC hack.

So, in his broadcast, Corsi suggests something about his two month cooperation with Mueller coming to a head, and he may have been the means by which Stone knew of what the Podesta emails included ahead of time. But with all that, Corsi’s lawyer suggests Stone is the one with the really serious exposure.

It may be that Mueller is pressuring Corsi to cop a plea deal. That might explain two months of close work with Mueller’s team. But Corsi’s concerns about his immediate future may, instead, suggest that Mueller has immunized Corsi, because if he refused to testify about something having immunity, then he could be jailed right away.

As I’ve laid out, in the hearing on Andrew Miller’s challenge yesterday, Michael Dreeben seemed to be arguing about which actions Mueller could take without getting Matt Whitaker’s approval first.

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

[snip]

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

While none of those issues pertain to Miller, all of them might apply to Corsi, including the subpoena for a journalist. To prevent any of these actions — immunizing a witness, making a plea agreement, or even bringing indictments — Whitaker would have to deem them “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

Perhaps Corsi is praying that Whitaker will rescue him from Mueller-as-Pontius Pilate by deeming that conspiring with Russian assets to attack a political opponent is totally normal?

In Thursday Hearing, Mueller’s Team Gets Specific about What They Can Do without Whitaker’s Pre-Approval

Yesterday, the DC Circuit held a hearing on Roger Stone aide Andrew Miller’s challenge of a grand jury subpoena. To make it crystal clear that the issues may have changed when Trump forced Jeff Sessions’ resignation the day before, the very first thing Judge Karen Henderson did was to instruct the sides to “Argue this case as if it were being argued yesterday morning.” She said then that they’d probably ask the lawyers to brief how Matt Whitaker’s appointment changed things, and today the panel ordered 10 page briefs, “addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.” Those briefs aren’t due until November 19, suggesting there won’t be an immediate resolution to Miller’s testimony.

But it was just as interesting how the Whitaker hiring may have influenced what the parties said yesterday.

Whitaker’s nomination undermines the Miller/Concord challenge to Mueller

Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.

Dreeben lays out the scope of what Mueller can do with Whitaker in charge

I’m more fascinated by subtle ways that the nomination may be reflected in Michael Dreeben’s comments, though.

In their response to Miller’s challenge, Mueller’s team laid out that they had close supervision from Rod Rosenstein, but they didn’t get into specifics. It describes how the Attorney General receives information (in the form of urgent memos), and the AG can demand an explanation and intervene if he finds an action to be “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

The Special Counsel readily meets this test. The Attorney General receives a regular flow of information about the Special Counsel’s actions; he can demand an explanation for any of them; and he has power to intervene when he deems it appropriate to prevent a deviation from established Departmental practices. The regulation envisions deference by requiring the Attorney General to stay his hand unless he determines that an action is “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” 28 C.F.R. § 600.7(b) (emphasis added). But while the Attorney General must “give great weight to the views of the Special Counsel,” id., the provision affords the Attorney General discretion to assert control if he finds the applicable standard satisfied. This authority—coupled with the Attorney General’s latitude to terminate the Special Counsel for “good cause, including violation of Departmental policies,” 28 C.F.R. § 600.7(d)—provides substantial means to direct and supervise the Special Counsel’s decisions.

And the brief describes how Mueller has to ask for resources (though describes that as happening on a yearly basis) and uphold DOJ rules and ethical duties.

The Special Counsel is subject to equally “pervasive” administrative supervision and oversight. The Attorney General controls whether to appoint a Special Counsel and the scope of his jurisdiction. 28 C.F.R. § 600.4(a)-(b). Once appointed, the Special Counsel must comply with Justice Department rules, regulations, and policies. Id. § 600.7(a). He must “request” that the Attorney General provide Department of Justice employees to assist him or allow him to hire personnel from outside the Department. Id. § 600.5. The Special Counsel and his staff are “subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice.” Id. § 600.7(c). And, each year, the Attorney General “establish[es] the budget” for the Special Counsel and “determine[s] whether the investigation should continue.” Id. § 600.8(a)(1)-(2). The Attorney General’s initial control over the existence and scope of the Special Counsel’s investigation; his ongoing control over personnel and budgetary matters; his power to impose discipline for misconduct or a breach of ethical duties; and his authority to end the investigation afford the Attorney General substantial supervision and oversight, which supplements the Attorney General’s regulatory power to countermand the Special Counsel’s investigative and prosecutorial decisions. [my emphasis]

Significantly (given the Calebresi argument) the Mueller team briefed that US Attorneys are also inferior officers, though they get to act without pre-approval.

Miller asserts that the Special Counsel has the authority to make final decisions on behalf of the United States because the regulation “nowhere require[s] the Special Counsel to seek approval or get permission from the [Attorney General] before making final decisions about who to investigate, indict, and prosecute.” Br. 22. That was also true of United States commissioners—who could issue warrants for the arrest and detention of defendants—but who nonetheless “are inferior officers.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 353 (1931). And it is true for United States Attorneys, 28 U.S.C. § 547, who are also inferior officers. See Myers v. United States, 272 U.S. 52, 159 (1926); Hilario, 218 F.3d at 25-26; United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999); United States Attorneys—Suggested Appointment Power of the Attorney General— Constitutional Law (Article II, § 2, cl. 2), 2 Op. O.L.C. 58, 59 (1978) (“U.S. Attorneys can be considered to be inferior officers”).3 Few inferior-officer positions require a supervisor to review every single decision. See, e.g., Edmond, 520 U.S. at 665; C46 n.22. Thus, the Special Counsel’s authority to act without obtaining advance approval of every decision cannot transform the Special Counsel into a principal officer, requiring presidential appointment and Senate confirmation.

[snip]

More recently, Congress has enacted legislation allowing for the appointment of U.S. Attorneys by the President, with the advice and consent of the Senate, 28 U.S.C. § 541(a); by a court, id. § 546(d); or by the Attorney General, id. § 546(a)—the latter two appointment authorities manifesting Congress’s understanding that U.S. Attorneys are inferior officers. And every court that has considered the question has concluded that U.S. Attorneys are inferior officers. Thus, to the extent that the Special Counsel “can be accurately characterized as a U.S. Attorney-at-Large,” Br. 17; see 28 C.F.R. § 600.6 (Special Counsel has the “investigative and prosecutorial functions of any United States Attorney”), the Special Counsel, like any U.S. Attorney, would fall on the “inferior officer” side of the line.

This latter argument doesn’t address the Miller/Concord claim that Mueller should have been Senate approved, but that’s part of why the Whitaker appointment is so damaging to this argument.

Compare all that with what Dreeben did yesterday. He specifically listed things that prosecutors — whether they be AUSAs or US Attorneys (though a later argument could point out that AUSAs need the approval of a USA) — do all the time: seek immunity, make plea deals, and bring indictments.

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

Dreeben later specified specifically what they’d need to get pre-approval for: subpoenaing a member of the media or, in some cases, immunizing a witness.

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

But otherwise, per Dreeben’s argument yesterday, they wouldn’t need Whitaker to pre-approve most actions, including indictments — only to respond to an urgent memo by saying such an action was outside normal DOJ behavior.

Given my suspicions that John Kelly may be the Mystery Appellant challenging a Mueller request, Dreeben’s very detailed description of US v. Nixon’s assumptions about special prosecutors is particularly notable. His comments were intended to use US v. Nixon to support the existence of prosecutors with some independence. He very specifically describes how US v. Nixon means that the President can’t decide what evidence a prosecutor obtains in an investigation.

The issue in that case was whether a dispute was justiciable when the President of the United States exerted executive privilege over particular tapes and a special prosecutor was preceding in court in the sovereign interests of the United States to obtain evidence for a pending criminal case. And the President’s position was, I’m President of the United States. I’m vested with all executive authority, I decide what evidence is to be used in a criminal case. This is just a dispute between me and someone who is carrying out on a delegated basis a portion of my authority, it is therefore not justiciable. And the Supreme Court’s reasoning was, well, it actually is, because under a legal framework, the President does not have day-to-day control over individual prosecutions. That authority is vested in the Attorney General who is the representative of the United States as sovereign, in court. And he, exercising the powers under 28 USC 515, 533, and a couple of other statutes that dealt with powers being vested in the Attorney General and powers being delegated down, but acting pursuant to those powers, appointed a special prosecutor and vested him with a unique set of powers and those powers enabled him to go into court and to meet head to head in an adversarial proceeding the President’s claim as President that particular tapes were covered by Executive Privilege as against the sovereign’s claim through the special prosecutor that these tapes were relevant and admissible in a pending criminal case. [my emphasis]

None of this is a revolutionary interpretation of US v. Nixon. But the mystery dispute pertains to Kelly’s testimony — or some other move on the part of the White House to dictate what Mueller can and cannot do — then the language is notable, particularly given that two of the judges in yesterday’s hearing, Judith Rogers and Sri Srinivasan, have been the judges working on the mystery appeal.

Notably, along with submitting their brief in that appeal yesterday, Mueller’s team submitted a sealed appendix.

This sealed supplemental appendix may pertain to something Mueller just got, which would suggest that appeal may have everything to do with why Sessions was fired right away.

We’ll learn more when Mueller submits his brief on November 19 (though by then this will likely be ancient history).

But it sure seems like Dreeben was making the first argument about limits to how much Whitaker can tamper in the Mueller investigation.

 

Dragons Caught in the Crossfire: On the Genealogy of the Current and Future Mueller Investigation

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

Lawfare has one of the best summaries of the Russian hack indictment on Friday. It does an excellent job of laying out what the indictment shows technically and legally. But I really wish it didn’t start with this passage.

This was the investigation over which the president of the United States fired James Comey as FBI director.

This is the investigation Comey confirmed on March 20, 2017, when he told Congress, “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.”

This was also the investigation that multiple congressional committees have spent more than a year seeking to discredit—most recently Thursday, when two House panels hauled the former deputy assistant director of the FBI’s Counterintelligence Department, Peter Strzok, a career FBI agent who worked on the Russia probe, up to Capitol Hill for 10 hours of public, televised, abusive conspiracy theorizing. When the president of the United States derides the Mueller investigation as a “witch hunt,” and when congressional Republicans scream at FBI agents, this is the investigation they are trying to harass out of existence.

I get the sentiment. I get criticizing Republicans for attacking the “Mueller probe” (or whatever you want to call it). I’ve criticized the Republicans for doing that myself. But it is assuredly not the case that Friday’s indictment is the “investigation over which the president of the United States fired James Comey as FBI director” or the investigation Comey confirmed in March of 2017.

The investigation that resulted in Friday’s indictment is, rather, the result of investigations conducted primarily in San Francisco and Pittsburgh. At the time Comey confirmed the counterintelligence investigation into Trump’s camp and at the time Comey got fired for not shutting the Trump counterintelligence investigation down, those San Francisco and Pittsburgh investigations were totally separate. Those two investigations almost certainly had little if any involvement from Peter Strzok (indeed, they involved a bunch of FBI cyber agents, a division of FBI that Strzok never tired of mocking in his texts to Lisa Page). The DOJ press release from Friday states that explicitly.

This case was investigated with the help of the FBI’s cyber teams in Pittsburgh, Philadelphia and San Francisco and the National Security Division.

Those two investigations (plus the separate one noted in Philadelphia that started later, as I understand it from what a lawyer who represented a witness in that investigation described to me) got moved under the Mueller umbrella sometime in or just before November, and now the GRU officer part of the investigation will be moved back to Pittsburgh where it started, to languish forever like some other nation-state hacker indictments investigated by Western District of Pennsylvania.

There are several reasons, besides exactitude, I’m harping on this point.

First, House Republicans, working in tandem with the President, have made the CI investigation Comey confirmed the end-all and be-all of the investigation, a way of simplifying it so as to villainize and discredit it. An entire stable of right wing journalists and members of Congress are trying to discredit something in the early stages of the investigation — whether it’s the inclusion of the Steele dossier among other evidence to obtain a FISA order on long-time suspected Russian asset Carter Page, the use of a lifelong Republican operative to conduct interviews in the least intrusive way, or the fact that even as he was losing the fight to investigate aggressively, Peter Strzok shared a widespread belief that Trump was not fit to be President. They believe that if they can do so, they can claim everything downstream of those actions is tainted. They’re doing so even while launching conspiracies off of stories that clearly show the existence of four counterintelligence investigations focused on the Russian operation, just one of which is known to have targeted Trump’s people.

“Crossfire Hurricane” was one of the code names for four separate investigations the FBI conducted related to Russia matters in the 2016 election.

“At a minimum, that keeps the hurry the F up pressure on him,” Strzok emailed Page on Oct. 14, 2016, less than four weeks before Election Day.

Four days later the same team was emailing about rushing to get approval for another FISA warrant for another Russia-related investigation code-named “Dragon.”

The GOP is literally bitching that the FBI was expediting FISA applications targeted at likely Russian targets during an ongoing Russian attack.

It is important to show how each of these attacks on the CI investigation into Trump is bullshit.

  • It is common to use information from consultants like Steele or paid informants in FISA applications. Their credibility is measured, in significant part, based on past credibility. And whatever you think about the impropriety of using oppo research (as DOJ also did with Clinton Cash) and whatever the likelihood that in this case Steele’s intelligence network got fed disinformation, it is the case that in 2016, Steele’s track record with the DOJ was far more reliable than a host of other consultants that presumably get included in FISA applications.
  • The FBI is permitted to use human informants at the assessment level (and when Stefan Halper interviewed Papadopoulos, it appears to have been a full investigation), and using a Republican operative like Halper to question George Papadopoulos was both less likely to affect the election in any way, and legally less dangerous for Papadopoulos than an undercover FBI officer would have been.
  • Strzok definitely believed Trump was unfit to be President, but (as I noted), he fought to use more aggressive investigative methods with both Hillary and Trump, and he lost that fight both times.

Ultimately, when you ask people wielding these complaints as if they’re a big deal what investigative steps against Page (after he left the campaign) or Papadopoulos (when he remained on it) would have been acceptable, they start to scramble, because (and I say this as someone who exposed herself to significant FBI scrutiny by going to them as a witness) these were reasonable steps to take. And the other favorite suggestion — that Trump would have responded to a defensive briefing — ignores that Trump hired Mike Flynn as his National Security Advisor even after President Obama gave him far more explicit warnings about the counterintelligence concerns about Flynn at the time.

At some point, GOP hoaxsters have to commit to whether they think it is legitimate to investigate suspected Russian spies or not, and if so how.

It is equally important to note that — as is demonstrably the case both with the GRU indictment rolled out Friday and with the information I provided — there is a ton of really damning evidence that never touched Peter Strzok. As I explained the other day, you can put information I provided to a team that had nothing to do with the Mueller team at the time I spoke to them, together with several other pieces of information Mueller obtained via other means (some of it was public!), and get right to the question of Trump conspiring with Russians to win the election.

Treating a range of investigations as only one investigation plays into the Trump game of discrediting an overly simplistic caricature of the investigation.

The other reason those covering the Russian investigation should be far more careful with what the investigation consisted of over time is, without understanding where the investigation came from, you can’t understand where the investigation is going. There have been a slew of reports reading dockets and citing anonymous DOJ and Trump sources. Some show an awareness of why prosecutors get added to dockets in particular cases. Others completely ignore things that are in the public record.

It is my well-educated opinion that we’re seeing several things with recent developments. First, where possible, Mueller is handing off things (the Concord Management and GRU hack prosecutions) that don’t need to be politically protected. He has also handed off issues (the Cohen search) that don’t relate directly to conspiring with Russians, even while any prosecution there could result in cooperation on the conspiracy case; though note, Mueller’s reported investigation of inauguration funding would also implicate Cohen. I suspect, eventually, he’ll hand off things that amount to garden variety corruption, as distinct from graft tied directly to the election money laundering.

But when reports say Mueller is preparing to wrap it up, I suspect the reality is Mueller is close to taking steps that will lay out a case for conspiracies with Russia involving people very close to Trump, which will make it much harder for Trump to refuse an interview without putting himself at risk to be indicted personally. Those steps will show what a farce six months of Trump-planted stories emphasizing a focus on obstruction have been. That prosecution Mueller’s team will see through, I imagine, not least because that’s precisely why he included four appellate specialists on his team, including Solicitor General star lawyer Michael Dreeben.

Update: Tweaked the San Francisco/Pittsburgh discussion because it was confusing several people.

Timeline

June 15, 2016: Likely start date for FBI investigation into hack of DNC/DCCC (the genesis for Friday’s indictment)

July 31, 2016: Peter Strzok opens up Operation Crossfire

October 21, 2016: Carter Page FISA approved

January 12, 2017: Carter Page FISA reauthorized

February 18, 2017: Reuters describes a tripartite division of investigation, with DNC hack investigation in Pittsburgh, Guccifer 2.0 investigation in San Francisco, and Trump CI investigation in DC

Early April, 2017: Carter Page FISA reauthorized

May 2017: I learn of Philadelphia investigation targeted in some way at Guccifer 2.0

May 17, 2017: Rod Rosenstein appoints Robert Mueller to take over Operation Crossfire

June 29, 2017: Carter Page FISA reauthorized

August 2, 2017: Mueller investigation includes, at a minimum, George Papadopoulos obstruction, Paul Manafort graft, collusion (including June 9 meeting), and obstruction

October 5, 2017: Papadopoulos pleads guilty (waiving venue)

Mid-October, 2017: Technical witness preparing for interview with Mueller’s team

October 30, 2017: Papadopoulos guilty plea unsealed

Early November, 2017: Mueller adds cyber prosecutor Ryan Dickey

November 2, 2017: WSJ reports DOJ will prosecute GRU hackers, reports that Pittsburgh, San Francisco, Philadelphia, along with DC remain in charge of investigation

December 1, 2017: Mike Flynn pleads guilty

February 12, 2018: Richard Pinedo pleads guilty, waives venue

February 16, 2018: Internet Research Agency (Concord Management) indictment

February 20, 2018: Alex van der Zwaan pleads guilty

February 22, 2018: Paul Manafort indicted in EDVA, refuses to waive venue

March 1, 2018: NBC reports that Mueller — not main DOJ — will prosecute GRU hackers

April 9, 2018: Michael Cohen searches executed by SDNY; SDNY investigation, covering taxi medallion fraud and hush money payments, is likely just part of his criminal exposure

May 3, 2018: Mueller adds Uzo Asonye to EDVA team prosecuting Paul Manafort at request of Judge TS Ellis

June 22, 2018: Mueller brings in DOJ team to prosecute Concord Management, freeing up tech-focused Mueller prosecutors

July 13, 2018: Mueller indicts GRU hackers, sends prosecution back to Pittsburgh

Did Mueller’s Team Decide They No Longer Need Manafort to Flip?

One detail of the attacks TS Ellis made on Mueller’s team on Friday has gotten a lot of attention: his insinuation that Mueller’s team was only charging Manafort with bank fraud and tax evasion to get him to flip on Trump.

THE COURT: Apparently, if I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. That seems to me to be obvious because they all long predate any contact or any affiliation of this defendant with the campaign. So I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.

It looks to me instead that what is happening is that this investigation was underway. It had something. The special prosecutor took it, got indictments, and then in a time-honored practice which I’m fully familiar with — it exists largely in the drug area. If you get somebody in a conspiracy and get something against them, you can then tighten the screws, and they will begin to provide information in what you’re really interested in. That seems to me to be what is happening here. I’m not saying it’s illegitimate, but I think we ought to be very clear about these facts and what is happening.

[snip]

THE COURT: That’s right, but your argument says, Even though the investigation was really done by the Justice Department, handed to you, and then you’re now using it, as I indicated before, as a means of persuading Mr. Manafort to provide information.

It’s vernacular by the way. I’ve been here a long time. The vernacular is to sing. That’s what prosecutors use, but what you’ve got to be careful of is they may not just sing. They may also compose.

[snip]

THE COURT: It factually did not arise from the investigation. Now, saying it could have arised under it is another matter, but factually, it’s very clear. This was an ongoing investigation. You all got it from the Department of Justice. You’re pursuing it. Now I had speculated about why you’re really interested in it in this case. You don’t really care about Mr. Manafort’s bank fraud. Well, the government does. You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.

In spite of Ellis’ repeated suggestion that Mueller was just trying to get Manafort to flip and that that might not be illegitimate, Michael Dreeben never took Ellis’ bait, each time returning to the government’s argument that the indictment was clearly authorized by Rod Rosenstein’s  initial appointment memo, and in any case Manafort can’t challenge his indictment based off whether Mueller adhered to internal DOJ regulations.

THE COURT: Where am I wrong in that regard?

MR. DREEBEN: The issue, I think, before you is whether Mr. Manafort can dismiss the indictment based on his claim.

[snip]

In any event, your point, if I can distill it to its essence, is that this indictment can be traced to the authority the special prosecutor was given in the May and August letters. That, as far as you’re concerned, is the beginning and end of the matter.

MR. DREEBEN: Yes, Your Honor, it is the beginning and almost the end. And this is my last point, I promise.

THE COURT: All right.

MR. DREEBEN: The special counsel regulations that my friend is relying on are internal DOJ regulations. He referred to them as if they’re a statute. I want to be clear. They are not enacted by Congress. They are internal regulations of the Department of Justice.

Dreeben’s refusal to engage is all the more striking given one of the differences between the 45-page government response dated April 2 for Manafort’s DC challenge and the 30-page government response dated April 10 for Manafort’s EDVA challenge.

The two briefs are very similar and in some passages verbatim or nearly so. The DC version has more discussion of the Acting Attorney General’s statutory authority to appoint a Special Counsel — language like this:

Finally, Manafort’s remedial arguments lack merit. The Acting Attorney General had, and exercised, statutory authority to appoint a Special Counsel here, see 28 U.S.C. §§ 509, 510, 515, and the Special Counsel accordingly has authority to represent the United States in this prosecution. None of the authorities Manafort cites justifies dismissing an indictment signed by a duly appointed Department of Justice prosecutor based on an asserted regulatory violation, and none calls into question the jurisdiction of this Court.

It includes a longer discussion about how a Special Counsel differs from a Ken Starr type Independent Counsel. It cites some DC-specific precedents. And in general, the discussion in the DC brief is more extensive than the EDVA.

Generally, the differences are probably explained by differing page limits in DC and EDVA.

But along the way, an interesting passage I noted here got dropped: in addition to the general language about a special counsel appointment including the investigation of obstruction of that investigation, the DC brief noted the underlying discussion on Special Counsel regulations envisions the prosecution of people if “otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.” 64 Fed. Reg. at 37,039. “Rather than leaving the issue to argument and misunderstanding as to whether the new matters are included within a vague category of ‘related matters,’ the regulations clarify that the decision as to which component would handle such new matters would be made by the Attorney General.” Id.9

9 The allusion to “related matters” refers to the Independent Counsel Act’s provision that the independent counsel’s jurisdiction shall include “all matters related to” the subject of the appointment (28 U.S.C. § 593(b)(3)), which prompted the D.C. Circuit to observe that “the scope of a special prosecutor’s investigatory jurisdiction can be both wide in perimeter and fuzzy at the borders.” United States v. Wilson, 26 F.3d 142, 148 (D.C. Cir.), cert. denied, 514 U.S. 1051 (1995).

This exclusion, too, likely arises from page limits (and its exclusion may explain why Dreeben didn’t point to it in Friday’s argument).

But given Ellis’ focus on it, I find the exclusion notable.

Again, it’s most likely this is just a decision dictated by page limits. But it’s possible that Mueller’s team believed this language less important to include in any decisions issued in EDVA than DC. For example, the existing cooperation agreements were all signed in DC, even where (with George Papadopoulos and Richard Pinedo) at least some of the crimes occurred elsewhere. If Manafort ever flips, that plea agreement will presumably go through DC as well.

Or maybe, given Rick Gates’ cooperation, Mueller’s team has decided they can proceed without Manafort flipping, and instead send him to prison the same way Al Capone went: with tax charges rather than the most heinous crimes.