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Leo’s Lane: Balls and Strikes versus Checks and Balances

Last week, a group of Federalist Society members kicked off the annual meeting by announcing a new group, calling itself Checks and Balances, led by Kellyanne Conway’s spouse, George.

On its face, it’s not clear what function the group will have, aside from focusing even more attention on George and Kellyanne’s differing views on the President. I assume, however, the statement the 14 lawyers signed is meant to embarrass other conservative lawyers into remembering the principles they lay out in their statement.

We believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse. We believe these principles apply regardless of the part of persons in power. We believe in a “a government of laws, not of men.”

We believe in the Constitution. We believe in free speech, a free press, separation of powers, and limited government. We have faith in the resiliency of the American experiment.

That said, I want to look at a few details of timing and intent.

The WaPo has an article that describes why some of the signers joined the group. Attacks on DOJ, Trump’s cultivation of racists, and attacks on the free press.

As to Conway, though, it focuses on the appointment of Matt Whitaker (though also includes Trump’s claim to want to end birthright citizenship).

Other members have pointed to Trump’s ouster of Jeff Sessions as attorney general and installation of Matthew G. Whitaker as acting attorney general.

Conway, the group organizer, said, “There wasn’t any one thing; it’s a long series of events that made me think that a group like this could do some good.”

Conway has authored a series of articles attacking Trump’s politics, most recently an opinion piece in the New York Times that called Whitaker’s appointment unconstitutional.

“It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid,” Conway wrote. He similarly called the president’s plan to end birthright citizenship unconstitutional.

That’s interesting given the role multiple NYT stories have described Federalist Society Executive Vice President Leonard Leo had in the hiring of Whitaker. After the NYT almost got Rod Rosenstein fired (probably relying at least in part on Whitaker as a source), it described Leo recommending Whitaker to be Sessions’ Chief of Staff back in 2017.

Leonard Leo, the influential head of the conservative legal organization the Federalist Society who has taken leaves from the role to periodically advise the president since the transition, recommended Mr. Whitaker for his job with Mr. Sessions, according to a person briefed on the job search.

[snip]

“He has the trust and confidence of any number of people within the Justice Department and within the law enforcement community, but also the White House,” Mr. Leo said of Mr. Whitaker.

Installing Whitaker as Chief of Staff last year is one of the reasons Whitaker’s appointment would be legal under the Vacancies Reform Act (though the appointment’s legality is still very much under debate), because it meant he had been in a senior position at DOJ long enough to qualify. And hyping Whitaker at that moment was a key step in prepping his installation after Sessions’ eventual firing.

NYT emphasized again, once Whitaker had been installed, Leo’s role in his installation.

At this point, let me take a detour. Most of the lawyers who signed onto Checks and Balances are thrilled with the way Trump has been packing the court with conservative judges. Which would mean, by extension, they’re thrilled with Leo’s role in the Administration (indeed, in all recent Republican administrations) for the way he has provided the Executive branch a steady supply of vetted conservatives to get approved for lifetime appointments. Conway himself has said Trump “deserves a tremendous amount of credit for that. I’ll be the first to clap my hands for it.”

Yet, in the NYT story on the group, Conway suggested that Republicans were so happy with Trump’s success in packing the courts that they overlooked other things like rule of law.

Mr. Conway, who has long been a member of and contributor to the Federalist Society, said he had nothing but admiration for its work. But he added that some conservative lawyers, pleased with Mr. Trump’s record on judicial nominations and deregulation, have been wary of criticizing him in other areas, as when he attacks the Justice Department and the news media.

“There’s a perception out there that conservative lawyers have essentially sold their souls for judges and regulatory reform,” Mr. Conway said. “We just want to be a voice speaking out, and to encourage others to speak out.”

In championing Whitaker, Leo has stepped beyond his traditional role — vetting and supporting judicial candidates — into a different one, which might either be judged as interfering in DOJ’s operations or, more alarmingly and accurately, helping the President (who has succeeded so well at packing the courts) undermine a criminal investigation into his own conduct.

Leonard Leo has stepped outside his lane. And George Conway, at least, is pushing back.

And that’s why I find Leo’s response to the group so interesting. He gave Axios a screed of bullet points talking about how offended he is by the move.

  • “I find the underlying premise of the group rather offensive,” Leo told me. “The idea that somehow they need to have this voice because conservatives are somehow afraid to talk about the rule of law during the Trump administration.”
  • “And my response to that is, no, people aren’t afraid, many people just don’t agree that there’s a constitutional crisis and don’t agree with the people who have signed up with this group.”

Several of those bullet point screeds focused on the Jeff Sessions’ firing.

  • “I measure a president’s sensitivity to the rule of law by his actions, not his off-the-cuff comments, tweets or statements. And the president has obviously had lots of criticisms about former Attorney General Sessions and about the department, but at the end of the day, he hasn’t acted upon those criticisms.
  • “He’s allowed the department to have an awful lot of freedom and independence. … He can say what he wants to say, but at the end of the day, words don’t threaten the rule of law, actions do. I’ve been to 48 countries around the world. I know a constitutional crisis, and I know what a rule of law crisis is. Lots of countries have them. This country doesn’t right now.”

Leo seems to be having fun playing DOJ kingmaker, on top of the great success he has had playing judicial kingmaker under Trump. But it seems at least some conservatives don’t believe that’s his role to play.

Update: I asked Conway about this and got a response after the post was published. He says this is not about Leo at all.

It’s a response to Trump and the need for conservative lawyers generally to say something about him. It’s got nothing to do with Leonard.

What OLC Says Happened with Matt Whitaker’s Appointment

DOJ has released the memo they say justifies the appointment of Matt Whitaker to be their boss. I’ll have some things to say about the legal arguments later (and smarter people who have JDs will surely weigh in as well).

I’d like to look at four things the OLC memo says about what happened with the Whitaker appointment, because they’re at least as important as the legal argument.

Never in the history of DOJ has someone attempted this stunt

Much of the memo reviews the history of appointments, purporting to find analogous appointments to this one. But it only cites one example where someone who wasn’t Senate confirmed served as Acting Attorney General.

While designations to the office of Attorney General were less frequent, we have identified at least one period in 1866 when a non-Senate-confirmed Assistant Attorney General served as Acting Attorney General.

The Department of Justice didn’t exist in 1866. It was only authorized — significantly, for the purpose of giving the Attorney General supervision over the US Attorneys — in 1870.

In 1861, Congress finally agreed that the Attorney General should have supervisory powers over the work of the United States Attorneys, although at first this role was shared with the Solicitor of the Treasury.

While there had been earlier calls for the creation of a separate legal department that would supervise the work of federal lawyers, it was not until after the end of the Civil War that Congress began to give serious consideration to the matter. In late 1867, the Senate Committee on the Judiciary asked Attorney General Henry Stanbery to respond to several questions concerning the efficiency of the government’s legal departments. Stanbery replied that a solicitor general was needed to argue the government’s cases before the Supreme Court, and that the centralization of the government’s legal business under one department would improve the quality of the work. In 1868, after the House Judiciary Committee asked Stanbery to respond to a similar inquiry, Representative Thomas Jenckes of Rhode Island introduced a bill to establish a department of justice. This bill was referred to the Joint Select Committee on Retrenchment, a committee impaneled to consider legislation to reduce the size and cost of government. In addition, the Chairman of the House Judiciary Committee, Representative William Lawrence of Ohio, introduced a similar bill which was referred to that committee.

As I’ll return to when I get to the legal issues, the distinction between this appointment, which gives Whitaker supervisory authority over SDNY and Mueller, and that one, may be very important.

But for now, suffice it to say that even OLC admits that this has almost never happened before.

The White House asked for this opinion

I’ve been harping on this line of the CNN report describing Jeff Sessions and those who would like to protect the Mueller investigation a lot.

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.

Steven Engel, the guy who signed this memo, was in that room, along with Sessions, Deputy Attorney General Rod Rosenstein, Solicitor General Noel Francisco, and Rosenstein’s deputy Ed O’Callaghan. The story suggests that Engel hadn’t considered the question yet, and I’ve been wondering since that report whether one of those men asked for the memo.

They didn’t — at least not according to this memo.

This Office had previously advised that the President could designate a senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General, and this memorandum explains the basis for that conclusion.

It is addressed to the “Counsel to the President,” which strongly implies that person asked for the memo. It doesn’t say, however, when the Counsel to the President asked for this memorandum.

Emmet Flood is the Counsel to the President who asked for this opinion

More specifically, the memo is addressed to Emmet T. Flood Counsel to the President.

Emmet Flood has two roles in the White House now. Until Pat Cipollone is installed as White House Counsel, Flood is Acting White House Counsel (or, as addressed here, Counsel to the President, which is how OLC addresses the White House Counsel).

But he’s also the lawyer in the White House Counsel’s office in charge of defending the President in investigations by (among others) Robert Mueller.

Legally, that’s interesting but (because the President can appoint whoever the fuck he wants as White House Counsel) not all that important. But it does answer the question I keep asking — given what a clusterfuck this appointment is, was Emmet Flood, who is eminently competent, involved? Yes — at least by the time the White House realized they needed some legal cover for it.

So maybe Flood really was hoping to create a legal morass.

Jeff Sessions resigned, probably

Finally, the memo answers a question that the House Judiciary Committee has already raised some doubt about: whether Sessions resigned, or was fired. The memo explains,

Attorney General Sessions submitted his resignation “[a]t [the President’s] request,” Letter for President Donald J. Trump, from Jefferson B. Sessions III, Attorney General, but that does not alter the fact that the Attorney General “resign[ed]” within the meaning of section 3345(a).

But it doesn’t seem so sure (or at least recognizes that someone, and probably not just HJC, will challenge this legally). It continues:

Even if the Attorney General had declined to resign and was removed by the President, he still would have been rendered “otherwise unable to perform the functions and duties of the office” for purposes of section 3345(a).

As I’ll return to in the legal analysis, the remainder of the footnote, which claims the Vacancies Reform Act still would have permitted the appointment of Whitaker, is one of the most problematic parts of the memo.

Which is why it is notable that the memo dodges most analysis of whether a forced resignation really is legally a resignation.

WSJ’s Curious Mueller Editorial

I want to look back at something that has been puzzling me: a Wall Street Journal editorial issued by the end of the day Wednesday arguing that Mueller should not be fired. The next day, Rupert Murdoch paid Mitch McConnell a personal visit on the Hill.

While not as shrill or fact-free as its columnist, Kim Strassel, the WSJ editorial page has been steadily critical of the Mueller investigation, dismissing any possibility it will identify “collusion” and repeating GOP claims that it as sprawled beyond Mueller’s original remit (as well as parroting GOP claims that the FBI framed the Trump campaign). A column on the Paul Manafort plea deal, for example, warned that leaks from the investigation (which have never happened) would undermine public confidence in the investigation.

Leaks or other news about his investigation will undermine public confidence in a probe that has already wandered far from its original Russia remit and has now lasted 16 months without a resolution.

So it’s not like WSJ has been friendly to the Mueller investigation.

That said, their columns on the Mueller investigation as frequently criticize Trump’s incompetence in dealing with it and DOJ. That sentiment shows up in the two most relevant recent editorial columns on the investigation. This column from late August argues that Trump’s attacks on Jeff Sessions put Republican majorities at risk in November, which would lead to impeachment.

We will point out that Mr. Trump’s attacks on his own Attorney General this week are wrong and politically counterproductive.

The President is still furious that Mr. Sessions recused himself from the Russia probe, which has since become the sprawling Robert Mueller investigation that threatens his Presidency. But railing against Mr. Sessions can’t change that, and it gives the appearance of trying to politicize the department.

[snip]

The biggest political threat to Mr. Trump is a Democratic election victory in November, which will trigger a drive for impeachment. Mr. Trump isn’t going to persuade anyone to vote for Republicans by railing against a Republican Attorney General he selected.

And this September column about the possibility of firing Rosenstein emphasizes the impact that would have on Republican majorities.

The immediate battle now is over the midterm election and whether Mr. Trump can stay in office as the impeachment assault begins from Nancy Pelosi’s Democrats. Mr. Trump can make personnel changes after the midterms if Republicans still hold the Senate and he can get someone confirmed.

Murdoch’s American flagship paper doesn’t like the Mueller investigation. But that has as much to do with the ways it leads Trump to do stupid things that imperil Republican rule as that it poses a risk for Trump personally.

With that as background, consider the column. It starts by complaining (again) about how badly Trump treated Sessions.

Mr. Sessions deserved better than the public humiliations dealt by President Trump. As a Senator from Alabama, Jeff Sessions was the first Washington figure of any stature to embrace Mr. Trump’s candidacy. Mr. Trump wants loyalty up but not down.

It then describes the appointment of Matt Whitaker without comment or judgment.

Sessions’ temporary successor will be the AG’s chief of staff, Matthew Whitaker, who presumably will hold the job until a successor is nominated.

Most of the column argues for a solid Attorney General replacement. The WSJ seems to be complaining — as they did in some of their other editorials — that the White House should exercise more influence over DOJ. They do want someone respectable as Attorney General, however.

It is important that the White House get this one right.

The Attorney General shouldn’t fire Mr. Mueller, as the President essentially said himself at his Wednesday news conference. Mr. Trump needs an individual of stature and judgment who will have the trust of the department’s lawyers, who is capable of independence, but who also understands that the Justice Department is part of the executive branch and not a law unto itself.

But the WSJ, with as little comment as it makes about Whitaker, also states clearly that any new Attorney General shouldn’t fire Mueller and claims Trump himself has agreed, probably a reference to this answer from Trump at the press conference that day.

Q    Thank you, Mr. President.  Going back to the Russia investigation and the potential investigations from the now- Democratic majority in Congress, some say that you could stop all this by declassifying —

THE PRESIDENT:  I could.  I could fire everybody right now.  But I don’t want to stop it, because politically, I don’t like stopping it.  It’s a disgrace.  It should have never been started because there was no crime.  It is — everybody has conflicts.  They all have conflicts over there that are beyond anything that anybody has ever seen in terms of conflicts — from the fact that people ask for jobs; from the fact that they have very good friends on the other side, like really good friends, like Comey — who, by the way, lied and leaked, and also leaked classified information.  Nothing happened there.  It might, perhaps.  Maybe something is happening that I don’t know about.

I stay away from it.  But do you know what I do?  I let it just go on.  They’re wasting a lot of money, but I let it go on because I don’t want to do that.

The day after the election, Trump took a rash step to end the Mueller investigation by firing Sessions and hiring Whitaker. And WSJ almost immediately responded by warning Trump not to do any further damage to the party with his impulsive efforts to undermine Mueller.

Neal Katyal Helps Mueller Write Monday’s Brief

As I noted in this thread, last week the DC Circuit asked Mueller and Andrew Miller’s teams to submit a 10-page brief next Monday, “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.”

It shouldn’t have any role in Miller’s subpoena. After all, at the time that action was taken, Mueller’s authority had no defects (unless Miller wins this challenge, which is unlikely, even at SCOTUS). It might, however, have an effect going forward, and Monday’s brief is an opportunity for Mueller to make that case publicly, and make it both for this challenge and the Mystery Appellant challenge, if that one pertains to Mueller’s authority. (Sri Srinivasan and Judith Rogers, two of the three judges hearing Miller’s appeal, have been involved in the Mystery Appeal as well, so know the substance of it.)

As luck would have it, a key expert just provided Mueller’s team important material for their brief.

Neal Katyal was (as he has written extensively) the author for the special counsel regulations that Mueller works under. Last week, he teamed up with conservative lawyer George Conway to argue that Whitaker’s appointment is unconstitutional. Today, he published a piece arguing that Whitaker cannot supervise Mueller.

In it, he raises two problems: first, he says that he and his colleagues at DOJ — and those on Capitol Hill with whom Katyal consulted — did not envision something like what Trump has done to happen.

My Justice Department colleagues and I, along with a bipartisan group on Capitol Hill, worked through many possible scenarios before we settled on the rules that now govern Mueller’s investigation. Everyone in the debate recognized that any enhancement in the special counsel’s accountability had to come from additional supervision by the attorney general. After all, the power to supervise is the power to destroy. The attorney general can stop a special counsel from investigating altogether or stop them from taking a specific step (such as subpoenaing a president). He can read every file of the counsel, and he may even attempt to give information about the investigation to the president in real time. And he plays a crucial role in determining what report by Mueller, if any, is given to Congress and ultimately the public.

But no one — and I mean no one — ever thought the regulations we wrote would permit the president to install some staff member of his choice from the Justice Department to serve as acting attorney general and thereby oversee the special counsel. Such a proposal would have been laughed off Capitol Hill within a nanosecond as fundamentally at odds with the most cardinal principle that no one is above the law.

Mind you, this is just a regulation, so the several references Kaytal makes to Congress do not amount to legislative intent. Still, it does provide guidance about what the intent of the regulations were.

Katyal then describes the problem — one that directly relates to the substance of Miller’s argument. Even if Whitaker’s appointment is legal as an emergency appointment, he still needs a superior officer to supervise him. It would need to be either Rosenstein or Trump himself.

If the defenders’ claims were true, all that would mean is that Whitaker is an inferior officer who doesn’t need to be confirmed by the Senate. In that situation, someone else, a principal officer, would still need to be in place to supervise Mueller — who is also an inferior officer. That responsibility would fall once again to Rosenstein under the succession statute Congress authorized.

Sometimes, an inferior officer has to supervise other inferior officers with no principal — say, if no one else has been confirmed at the start of an administration. Or in a more hypothetical scenario, imagine a military conflict in which casualties meant there were no Senate-confirmed officials in a department. But fortunately, today’s Justice Department isn’t dealing with challenges anything like those. There are Senate-confirmed officials at the helm.

And regardless of those issues, there is yet another problem, specific to the Mueller investigation. In an emergency situation where an acting head is named, the president is, ultimately, the responsible official who supervises temporary, unconfirmed stand-ins. The idea is that there would at least be someone accountable to the public above the acting officer in those situations — and as Harry Truman put it, the buck always stops with the president.

Here, though, the idea that the president could be trusted to supervise Whitaker as he oversees Mueller’s work is absurd.

It was this kind of problem that made me ask whether bolloxing up the legality of Mueller’s action was the entire point (because otherwise I can’t imagine how Emmet Flood bought off on this action, given the troubles it may cause).

But as I’ve said, it actually seems that these issues would create a legal disability on Whitaker’s part, meaning his back-up — Rosenstein — would be required to take over.

Democrats have already asked DOJ’s top ethics official whether he has given Whitaker advice on another possible source of disability, recusal obligations.

I suspect, though, that Mueller will be just one party in a position to argue that Whitaker cannot legally supervise him.

Which, again, is what I don’t mind that Rosenstein sucked up to him so effusively last Friday. Because so long as he remains there, as the Senate-confirmed official with authority to supervise Mueller, he may well end up remaining in that position.

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!

Did Emmet Flood Mean to Create a Legal Morass, or Is He Off His Game?

As I’ve often said, Trump departed from his usual habit by hiring Emmet Flood, someone who is eminently qualified to help the President (or, as he did with Cheney, Vice President) stave off legal jeopardy from a Special Counsel or Congress. Which is why I’m trying to figure out whether the legal morass Trump created — presumably on Flood’s advice, given that Flood is serving as both the Mueller investigation White House Counsel lead and, until Pat Cipollone gets fully cleared, White House Counsel generally — by forcing Jeff Sessions’ resignation and replacing him with Matt Whitaker.

It’s not clear when Sessions’ authority ended

Start with the fact that it’s not clear when Jeff Sessions stopped acting as Attorney General. As numerous people have noted, he didn’t date the copy of his resignation letter that got released publicly.

He left DOJ in ceremonial fashion just after 5 PM on Wednesday night, which would suggest he may have remained AG until that time. If that’s right, then anything that Mueller and Rosenstein did that day would still operate under the older authority.

Indeed, DOJ issued an order under Sessions’ authority, imposing new limits on consent decrees used to reign in abusive local police departments, yesterday evening, a full day after he departed. He initialed it (dated 11/7/18), but the metadata on it shows the document wasn’t created until almost 5PM on Wednesday and was modified over a full day after that. (h/t zedster)

So he was at least still AG sometime after 4:53PM on Wednesday — and possibly well after that — or this consent decree policy is void.

Whitaker’s appointment may not be legal

Then there are the proliferating number of people — most prominently Neal Katyal and George Conway but also including John Yoo and Jed Sugarman — who believe his appointment is unconstituional.

There are two bases on which this might be true. First, the forced resignation of Jeff Sessions may in fact be a legal firing, something the House Judiciary Democrats are arguing with increasing stridency, most recently in a letter to Bob Goodlatte asking that he hold an emergency hearing on Sessions’ ouster, support legislation protecting Mueller, and join in requests for information about the ouster from the White House and DOJ. If Sessions was fired, there’s little question that Trump can only replace him with someone who is Senate confirmed.

But Katyal, Conway, and others argue that because the AG is a principal officer, whoever serves in that position must be Senate confirmed. Significantly, the Katyal/Conway argument begins by throwing what Steven Calabresi has said back at conservatives.

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.

This is probably why people like Yoo are joining in this argument — because if Whitaker’s appointment is legal, than a whole slew of other appointments of the kind that conservatives hate would also be legal.

Whitaker may be disabled with conflicts

Then there are Whitaker’s conflicts, which are threefold. Whitaker:

  • Repeatedly claimed that the Mueller probe was out of control, in spite of the fact he had no real information to base that on
  • Judged that Trump had neither “colluded” nor committed obstruction
  • Not only undermined the investigation, but suggested the underlying conduct — including meeting with Russians to obtain dirt on Hillary Clinton at the June 9 meeting — was totally cool
  • Served as Sam Clovis’ campaign manager in 2014; Clovis was a key player in Trump’s efforts to cozy up to the Russians in 2016 and was one of the earliest known witnesses to testify before the grand jury

CNN captures many of these statements here.

The Clovis one may be the most important. 28 CFR 45.2 requires ethics exemption or recusal if a person has a political relationship with the subject of an investigation.

[N]o employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:

(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

Defining “political relationship” to include service as a principal advisor to a candidate.

Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof;

And, as Mueller noted in their response to Andrew Miller’s appeal, recusal would amount to a “disability” that would put the DAG back in charge.

Finally, interpreting “disability” under Section 508 to include recusal makes logical and practical sense. Section 528 requires the Attorney General to recuse himself when he has a conflict of interest. Section 508 ensures that at all times an officer is heading the Department of Justice. If the Attorney General is recused, it is necessary that someone can head the Department for that investigation. It is inconceivable that Congress intended Section 508 to reach physical disability, but not to reach legal requirements that disabled the Attorney General from participating in certain matters.

Whitaker’s former company is under FBI investigation

Then there’s the news that a company for which Whitaker provided legal services is under criminal investigation.

The Federal Bureau of Investigation is conducting a criminal investigation of a Florida company accused of scamming millions from customers during the period that Matthew Whitaker, the acting U.S. attorney general, served as a paid advisory-board member, according to an alleged victim who was contacted by the FBI and other people familiar with the matter.

The investigation is being handled by the Miami office of the FBI and by the U.S. Postal Inspection Service, according to an email sent to the alleged victim last year by an FBI victim specialist. A recording on a phone line set up by the Justice Department to help victims said Friday the case remains active.

When Whitaker was subpoenaed, he blew it off.

Whitaker, named this week by President Trump as acting attorney general, occasionally served as an outside legal adviser to the company, World Patent Marketing, writing a series of letters on its behalf, according to people familiar with his role.

But he rebuffed an October 2017 subpoena from the Federal Trade Commission seeking his records related to the company, according to two people with knowledge of the case.

But the public record shows that when customers complained, Whitaker threatened them, invoking his background as a former US Attorney.

In emails uncovered by the FTC investigation, Whitaker personally threatened a customer who complained, according to a story in the Miami New Times that was picked up by other news outlets.

The emails the FTC obtained, in fact, suggests Whitaker used his background as a U.S. attorney to try to silence customers who claimed they were defrauded by the company and sought to take their complaints public.

In this case, Whitaker sent an intimidating email to a customer on August 25, 2015, who had contacted World Patent Marketing with his grievances and and filed a complaint with the Better Business Bureau.

The FTC docket reviewed by New Times contains an email exchange on page 362 of 400 that described what happened next.

Rather than expressing concern about the customer’s charge of being cheated,  Whitaker wrote him to let him know that he, Whitaker, was “a former United States Attorney for the Southern District of Illinois…Your emails and message from today seem to be an apparent attempt at possible blackmail or extortion.”

“You also mentioned filing a complaint with the Better Business Bureau and to smear WPM’s reputation online. I am assuming you know that there could be serious civil and criminal consequences for you if that is in fact what you and your ‘group’ is doing. Understand we take threats like this quite seriously…Please conduct yourself accordingly.”

This doesn’t necessarily impact the Mueller probe itself. But it suggests that Whitaker has real corruption problems that will undermine his actions as AG.

Trump and Whitaker may have spoken about the Mueller probe — and Trump is already lying about it

Shortly after Whitaker was appointed, WaPo reported that Trump told multiple people that Whitaker was “loyal” and wouldn’t recuse.

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

Then WaPo reported that Whitaker has no intention of recusing, reporting that would necessarily predate any discussion with DOJ’s ethical advisors.

Acting attorney general Matthew G. Whitaker has no intention of recusing himself from overseeing the special-counsel probe of Russian interference in the 2016 election, according to people close to him who added they do not believe he would approve any subpoena of President Trump as part of that investigation.

[snip]

On Thursday, two people close to Whitaker said he does not plan to take himself off the Russia case. They also said he is deeply skeptical of any effort to force the president’s testimony through a subpoena.

Special counsel Robert S. Mueller III has been negotiating for months with Trump’s attorneys over the terms of a possible interview of the president. Central to those discussions has been the idea that Mueller could, if negotiations failed, subpoena the president. If Whitaker were to take the threat of a subpoena off the table, that could alter the equilibrium between the two sides and significantly reduce the chances that the president ever sits for an interview.

Meanwhile, when asked today, Trump claimed (in spite of all the briefings Whitaker has attended in recent weeks) that he didn’t know him, even though he went on Fox and hailed him after the most recent attempt to use him to kill the Mueller probe.

“I don’t know Matt Whitaker,” Mr. Trump told reporters as he left Washington for a weekend trip to Paris. But the president stressed that he did know Mr. Whitaker’s reputation well, calling him “a very respected man.”

[snip]

In addition, the president’s claim that he did not know Mr. Whitaker was called into question by Mr. Trump’s own words from just about a month ago, when he said in a “Fox & Friends” interview: “I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker.”

Mr. Whitaker has also visited the Oval Office several times and is said to have an easy chemistry with the president, according to people familiar with the relationship. And the president has regarded Mr. Whitaker as his eyes and ears at the Justice Department.

As CNN notes, Whitaker seemed to have been actively plotting for his boss’ job since the NYT stupidly tried to get Rosenstein fired (which I suspect means Whitaker was a source for the NYT).

A source close to Sessions says that the former attorney general realized that Whitaker was “self-dealing” after reports surfaced in September that Whitaker had spoken with Kelly and had discussed plans to become the No. 2 at the Justice Department if Rosenstein was forced to resign.

In recent months, with his relationship with the President at a new low, Sessions skipped several so-called principals meetings that he was slated to attend as a key member of the Cabinet. A source close to Sessions says that neither the attorney general nor Trump thought it was a good idea for Sessions to be at the White House, so he sent surrogates.

Whitaker was one of them.

But Sessions did not realize Whitaker was having conversations with the White House about his future until the news broke in late September about Rosenstein.

All of this raises huge questions about whether Whitaker and Trump (or Kelly) had an agreement in place, that he would get this post (and shortly after be nominated for a judgeship in IA), so long as he would agree to kill the Mueller probe.

Debates over the legality of Whitaker’s appointment parallel challenges to Mueller’s authority

Then there’s the point I raised earlier today. If Whitaker’s appointment is legal, then so is Mueller’s, which undercuts one of the other efforts to undermine Mueller’s authority.

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.

John Kelly’s involvement may (and I suspect does) present added conflicts

Then there’s John Kelly’s role, as someone who had a key role in the firing but whose testimony Mueller is currently pursuing (possibly via subpoena).

Kelly is among the people about whom there is the most active dispute legal between the Special Counsel and the White House, a fight picked by the legally competent Emmet Flood.

And Kelly was the person who forced Jeff Sessions to resign on Wednesday. As far as is public (and there’s surely a great deal that we have yet to learn about who was in the decision to force Sessions to resign and when that happened and who dictated the form it would take).

But Kelly had the key role of conveying the President’s intent, in whatever form that intent was documented, to Sessions. If Trump’s past firings are any precedent, Kelly had a very big role in deciding how it would happen.

So the guy whose testimony Mueller may be most actively pursuing (indeed, one who might even be in a legal dispute with), effectuated a plan to undercut Mueller’s plans going forward.

CNN provides more context for Kelly’s role, showing him to be involved in the last attempt to install Whitaker and suggesting that Kelly consulted Trump before refusing Sessions’ request to stay through the week.

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.

[snip]

Rosenstein and [PDAAG Ed] 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.

Soon, Whitaker strode into Sessions’ office and asked to speak one-on-one to the attorney general; the others left the two men alone. It was a brief conversation. Shortly after, Sessions told his huddle that his resignation would be effective that day.

O’Callaghan had tried to appeal to Sessions, noting that he hadn’t heard back about whether the President would allow a delay. 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. Someone also reminded Sessions that the last time Whitaker played a role in a purported resignation — a few weeks earlier in September, with Rosenstein — the plan collapsed.

Sessions never heard in person from the President — the man who gained television fame for his catch-phrase “You’re fired” doesn’t actually like such confrontation and prefers to have others do the firing, people close to the President say. Kelly called Sessions a second time to tell him the President had rejected his request for a delay.

Nevertheless, a guy Mueller is trying to interview was right there in the loop, making two efforts to install someone whose sole apparent job is to undercut Mueller.

Everything Whitaker touches may turn to shit

Now, maybe Flood would still have bought off on this — though the multiple reports now claim no one at the White House knew about Whitaker’s problems suggest he may not have been in the vetting loop (because, again, he’s competent and knows the import of vetting).

But there’s one more thing to account for. Everything Whitaker touches may turn to legal shit. It’s a point Katyal and Conway make.

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

This appointment could embroil DOJ in legal challenges for years, at least, as plaintiffs and defendants claim that DOJ took some action against them that can only be authorized by a legal Attorney General.

While I don’t think it’s likely, it’s possible that’s the point. As I noted earlier, on Thursday Mueller’s team seemed to be staking a claim that they can continue to operate as they have been.

But their authority, or at least Mueller’s and the others who aren’t AUSAs temporarily reassigned to Mueller, all stems from a legally valid Attorney General or Acting one. If Mueller continues to operate while the legally problematic Whitaker claims to authorize them, what does that do for their actions?

That may be why the DC Circuit wants more (public) briefing on this question in the Andrew Miller case. By appointing a totally inappropriate AG, Trump might just be pursuing his longterm strategy of chaos.

Is this Don McGahn’s last fuck-up?

This entire post is premised on two things: first, that Emmet Flood is among the rare people in Trump’s orbit who is very competent. It also assumes that because both these issues — White House Counsel until Cipollone takes over, and White House Counsel in charge of protecting Trump from the Mueller investigation — would fall solidly in Flood’s portfolios, he would have a significant role in the plot.

Perhaps not. Federalist Society’s Leonard Leo is claiming (in a CNN report that should be read in its entirety) he worked on the plan with Don McGahn.

Leonard Leo, the influential executive vice president of the Federalist Society, recommended to then-White House counsel Don McGahn that Whitaker would make a good chief of staff for Sessions.

“I recommended him and was very supportive of him for chief of staff for very specific reasons,” Leo said Friday.

So maybe this scheme was, instead, planned out by Don McGahn (who has been officially gone since October 17).

But that would raise questions of its own — notably, why this plan was on ice for so long. And why Flood wasn’t in the loop (and why the White House continues to neglect the most basic vetting of people they put in charge of huge parts of our government).

I expect basic competence out of Emmet Flood. But this whole scheme could only be judged competent if the point was to totally discredit anything DOJ does, including but not limited to the Mueller probe.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On Rosenstein, We Shall See …

For a panicked two hours today, it appeared that Rod Rosenstein had either resigned or been fired. Instead, he was attending a regularly scheduled Principal’s Committee after having talked at some length to Trump and John Kelly about the NYT report he was acting erratically in the wake of Trump firing Jim Comey and boasting that he had done so to end the Russian investigation (though the NYT’s reporting wasn’t even that responsible).

The two men will meet again Thursday, as Trump’s SCOTUS nominee gets grilled about an increasing number of sexual assault accusations, to decide Rosenstein’s future.

It’s not entirely clear who would then oversee Mueller if Rosenstein gets fired, but Marty Lederman argues according to normal succession, Solicitor General Noel Francisco would supervise Mueller, but because he has a conflict, it’d likely fall to OLC head Steve Engel.

Those are ordinarily the AG’s functions, not the DAG’s, and unless there’s been a change, DOJ’s view is that the AG’s functions/duties can’t be performed by an “acting” officer (i.e., no “double-acting”). So the responsibility to oversee those investigations would fall to Solicitor General Noel Francisco. Francisco, however, is probably recused from the Russia investigation (at a minimum), because Jones Day, his former firm, represents the Trump Campaign (unless there’s been a change). NF has recused from all SCOTUS cases where Jones Day represents a party, including in the new Term. If NF recuses from supervising Mueller, and any other investigations involving the Trump campaign, those AG functions presumably would be performed by Assistant AG for OLC Steve Engel.

In either case, Jeff Toobin declares that one way or another, that means Mueller is finished.

This issue of who, technically, would be in charge of Mueller is an important one, but it’s not nearly as significant as the broader issue raised by Rosenstein’s likely departure. The President is in charge of the executive branch, and Mueller, as the special counsel, is a subordinate in that branch of the government. If Trump is determined to fire Mueller, or to constrict his investigation in untoward ways, he and his advisers will figure out a way to do it. There is little doubt that the President could ultimately find a compliant Justice Department official to carry out his order of execution. In other words, the massacre this week may lead to another, like the one on a Saturday night in 1973 when Richard Nixon fired Archibald Cox, the Watergate special prosecutor. This modern version would be an abuse of power of the most profound sort. Firing Mueller—who has been investigating Trump and his campaign and Administration for a year and a half—would be the very definition of a high crime and misdemeanor, as impeachable offenses are defined in the Constitution. But would the Republicans who control Congress see it that way?

Put another way, the real question is whether there is any political will among the Republicans who run the legislative branch of government to check Trump’s power.

My guess is what happens between now and Thursday matters a lot. It’s possible, for example, that the Trump Administration could implement some plan to put an even more competent hatchet man in place behind Rosenstein (or get him to resign, which would leave more options). Or it’s possible that Mueller has key indictments sufficiently developed to roll them out in the next day or so (though there’s no grand jury before Thursday at the earliest). I think it even possible that Rosenstein will not only be able to explain the NYT report away (in part by suggesting that it’s just an Andrew McCabe attempt to get back at Trump), but also explain why things will be worse for Mueller if he does fire him.

So we shall see.

The NYT “Scoop” Appears To Be an Effort to Spin Opening an Investigation into Trump as an Erratic Act

I’d like to point out something strongly suggested by the stories based on gossiping about Andrew McCabe memos. These stories portray what people not at a meeting that took place just after Comey’s firing think happened at the meeting based off hearing about memos memorializing them. From the WaPo’s far more responsible version of the story, we know that Lisa Page was also present at the meeting.

Another official at the meeting, then-FBI lawyer Lisa Page, wrote her own memo of the discussion which does not mention any talk of the 25th amendment, according to a second person who was familiar with her account.

And the WaPo’s version of the “wire” comment puts it in context, making it clear that Rosenstein was questioning how they could investigate the President.

That person said the wire comment came in response to McCabe’s own pushing for the Justice Department to open an investigation into the president. To that, Rosenstein responded with what this person described as a sarcastic comment along the lines of, “What do you want to do, Andy, wire the president?”

Now go back to earlier in the week, to the frothy right rehashing some texts Page and Peter Strzok sent, talking about opening an investigation into … someone, while Andrew McCabe was Acting Director. (Apologies for the Fox slurs about Page and Strzok.)

Text messages from disgraced FBI figures Peter Strzok and Lisa Page, discussing whether to open a “case” in a “formal chargeable way” after Director James Comey was fired, are under fresh scrutiny after Page told congressional investigators there was no evidence of Russian collusion at the time, according to three congressional sources.

Two hours after Comey’s termination became public on May 9, 2017, Strzok, a now-former FBI agent, texted Page, his then-colleague and lover: “We need to open the case we’ve been waiting on now while Andy is acting.”

“Andy” is a reference to then-Deputy Director Andrew McCabe who temporarily took over the bureau until Christopher Wray was confirmed as director in August 2017.

Page, a former FBI attorney, replied to Strzok: “We need to lock in (redacted). In a formal chargeable way. Soon.”

Strzok concurred. “I agree. I’ve been pushing and I’ll reemphasize with Bill,” believed to be Bill Priestap, the head of the FBI’s counterintelligence division.

Finally, here’s the WaPo version of Michael Bromwich’s description of the memos.

McCabe’s lawyer, Michael Bromwich, said in a statement that his client “drafted memos to memorialize significant discussions he had with high level officials and preserved them so he would have an accurate, contemporaneous record of those discussions. When he was interviewed by the special counsel more than a year ago, he gave all of his memos — classified and unclassified — to the special counsel’s office. A set of those memos remained at the FBI at the time of his departure in late January 2018. He has no knowledge of how any member of the media obtained those memos.”

These are “significant memos” and went right to Mueller when he was appointed. The kind of memos that might back investigative decisions, such as whether to open an investigation into the President.

So what the NYT spin of the story is about is suggesting that at the moment when DOJ opened an investigation into the President, the guy who opened it was “acting erratically.” Presumably based off the third-hand opinions of people like Jim Jordan, who knows a bit about acting erratically. It’s also about whether a discussion of removing the President took place at the same meeting where a discussion of investigating him did.

Likely, the messages are muddled, because they always are when getting laundered through Jim Jordan’s feverish little mind.

Update: NYT has now updated their story with two details designed to rebut the more responsible reporting of other outlets. First, they cite their sources claiming — without having to explain — that Rosenstein spoke about recording the President on another occasion, with the suggestion that that time it wan’t sarcastic.

Mr. Rosenstein also mentioned the possibility of wearing a wire on at least one other occasion, the people said, though they did not provide details.

More remarkably, they include a paragraph that reveals their original story was inaccurate as to timing. To rebut WaPo’s report that Lisa Page’s version of events don’t include the reference to the 25th Amendment, the NYT has now decided there were “at least two meetings that took place on May 16” (but note the knowledge of their sources all appears to come from memos, not from witnessing the events).

At least two meetings took place on May 16 involving both Mr. McCabe and Mr. Rosenstein, the people familiar with the events of the day said. Mr. Rosenstein brought up the 25th Amendment during the first meeting of Justice Department officials, they said. He did not appear to talk about it at the second, according to a memo by one participant, Lisa Page, a lawyer who worked for Mr. McCabe at the time, that did not mention the topic.

Well, okay, maybe that’s true. But that utterly demolishes some key premises of the story as originally written. The story collapses the timing of all this, emphasizing that it happened just two weeks into the job.

Mr. Rosenstein was just two weeks into his job. He had begun overseeing the Russia investigation and played a key role in the president’s dismissal of Mr. Comey by writing a memo critical of his handling of the Hillary Clinton email investigation. But Mr. Rosenstein was caught off guard when Mr. Trump cited the memo in the firing, and he began telling people that hefeared he had been used.

[snip]

The president informed them of his plan to oust Mr. Comey. To the surprise of White House aides who were trying to talk the president out of it, Mr. Rosenstein embraced the idea, even offering to write the memo about the Clinton email inquiry. He turned it in shortly after.

A day later, Mr. Trump announced the firing, and White House aides released Mr. Rosenstein’s memo, labeling it the basis for Mr. Comey’s dismissal. Democrats sharply criticized Mr. Rosenstein, accusing him of helping to create a cover story for the president to rationalize the termination. [my emphasis]

All this suggests the response was a direct response to the Comey firing.

And while the story does note the meetings take place a week later, the update emphasizes the actual date.

A determined Mr. Rosenstein began telling associates that he would ultimately be “vindicated” for his role in the matter. One week after the firing, Mr. Rosenstein met with Mr. McCabe and at least four other senior Justice Department officials, in part to explain his role in the situation. [my emphasis]

The “wire the president” comment (and the 25th Amendment one, if it did happen as described) took place on May 16, almost a week later.

One week after the firing, Mr. Rosenstein met with Mr. McCabe and at least four other senior Justice Department officials, in part to explain his role in the situation.

In this update, the NYT also took out language about Rosenstein wondering about motive.

wondered whether Mr. Trump had motives beyond Mr. Comey’s treatment of Mrs. Clinton for ousting him, the people said.

By May 16, of course, Rosenstein wouldn’t have to wonder about Trump’s motives, because he had already gone on TV and explained what his motive was — it was to end the Russia investigation.

More troublingly, he had taken a meeting with Sergei Lavrov and Sergei Kislyak — the latter of whom was a key figure in any conspiracy investigation — without American press present at which he shared highly sensitive Israeli secrets. While the public didn’t know it yet, at the meeting Trump also said he fired Comey to ease the pressure on him.

More importantly, if there were two meetings — one on whether Trump was handling the FBI hiring properly, and one on whether to open an investigation into the President — then it means those different topics have a different meaning. One meeting was about whether Trump was capable of doing the job, the other was about whether he had broken the law.

Anyway, what we’re not getting is any real understanding of the real context of these comments.