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DAG Rod Rosenstein Involves Himself in Mueller’s Press Response to Buzzfeed Story

WaPo has a story that provides the official DOJ version of what happened with the BuzzFeed story the other day. It is certainly one explanation for what has happened since Thursday — one that appears to rely on the same number of anonymous sources (two) as the BuzzFeed story it is reporting on (leaving aside a Trump Organization source for both and off the record sources).

And while I’m confident that parts of my take on what happened are correct, I’ll confess the WaPo story makes it clear I was overly optimistic in dismissing the possibility that Big Dick Toilet Salesman Matt Whitaker or his now-subordinate Rod Rosenstein may have weighed in. Indeed, the story reveals that Rosenstein’s office did call to check whether Mueller was going to release a statement debunking the BuzzFeed story.

In the view of the special counsel’s office, that was wrong, two people familiar with the matter said, speaking on the condition of anonymity to discuss internal deliberations. And with Democrats raising the specter of investigation and impeachment, Mueller’s team started discussing a step they had never before taken: publicly disputing reporting on evidence in their ongoing investigation.

[snip]

In the advanced stages of those talks, the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared, the people said.

That seems to be a violation of Special Counsel regulations, which say that Mueller’s office shall not be subject to day-to-day supervision of any official, whether DAG or Acting Attorney General.

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

Maybe Mueller and Peter Carr don’t care. But it should set off all sorts of alarm bells that as soon as a media report states what has long been clear — that Trump suborned perjury — Mueller’s office is getting calls about how to respond to the press, which last I checked was not an “investigative or prosecutorial step” at all. All the more so given that Carr appears to have bent over backward not to reveal any investigative details to the press, adhering rigorously to any DOJ guidelines on that front.

Whichever side is correct (again, I believe WaPo has just one part of this story), that Rosenstein (or Whitaker) got involved seems to be far more important.

William Barr’s Asymmetric Confusion about Shitty Mueller Reporting

It turns out that once and future Attorney General William Barr has been better able to wade past shitty reporting on the outcome of the Mueller investigation than he has shitty reporting on the public evidence about what Mueller has found.

In two of my posts on Barr’s memo about the Mueller investigation (one, two), I note that Barr’s project consists of writing up 19 pages on a subject that start with an admission he knows nothing about the subject.

Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Both in his prepared statement yesterday and in his testimony, he excused his memo by blaming his badly mistaken understanding of what Mueller was doing on media reports.

[M]y memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.

He’s not wrong! I have long bitched about shitty Mueller reporting that suggested Mueller was primarily investigating whether Trump obstructed justice. Such problems persist even in recent reports that the counterintelligence focus on Trump was any different from the obstruction inquiry.

The investigation the F.B.I. opened into Mr. Trump also had a criminal aspect, which has long been publicly known: whether his firing of Mr. Comey constituted obstruction of justice.

That has, in turn, led to claims that the counterintelligence concerns stemmed exclusively from the firing of Jim Comey and not a slew of other behaviors going back some time before that.

So Barr might be excused for totally misunderstanding what the public evidence from the Mueller investigation actually showed (though not his willingness to comment without first learning what the evidence actually was), because most mainstream media reports badly misreported the public record.

Curiously, Barr didn’t get snookered by the other topic that is consistently badly reported (and badly reportedly, most likely, for the same reason — because Trump’s team has seeded that shitty reporting): whether and how Mueller will issue a report. A great deal of yesterday’s testimony pertained to whether Barr will release “the Mueller report.” Barr promised, in his his prepared testimony and later, to release as much of the results of the investigation as he could.

I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.

But both Democratic and Republican Senators were concerned by that (which is itself a testament to wildly divergent understandings of what Mueller is looking at), with John Kennedy going so far as suggesting Barr should release all the grand jury materials and Dianne Feinstein conditioning her vote on whether Barr commits to make Mueller’s report public.

In fact, Barr did two things. First, he said he’d speak to Rod Rosenstein and Mueller to understand what their current plans for a report were. But he also repeatedly cited the regulations to argue that Mueller’s report is — by regulation — confidential.

For shits and giggles and because I knew what response I’d get, I asked Mueller’s spokesperson Peter Carr what form their report will take today. I wasn’t disappointed. His response was to attach their governing regulations and call attention to the language that describes the mandated Special Counsel Report.

Thanks for reaching out. All I can point you to is the regulations that govern our office, which are attached. Section 600.8 states the following:

(c) Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. [my emphasis]

That is, if you ask Mueller — or the closest thing we get, his spokesperson — he will answer precisely what Barr did: that his mandated report is simply a confidential prosecutions and declinations report.

That shouldn’t be surprising, either. Mueller continues to use pseudonyms for identities of people in his filings — like Donald Trump himself — that are readily identifiable, based on the principle that DOJ doesn’t refer to uncharged individuals. It’s a principle that explains part of why Mueller submitted yesterday’s Manafort filing in heavily redacted form.

[T]he redactions relate to ongoing law enforcement investigations or uncharged individuals, and public disclosure of certain information in the submission could unduly risk harming those efforts.

In other words, virtually all of the coverage of the “Mueller report” has promised it will be something other than we had reason to believe — short of an indictment request overridden by the Attorney General — that it would be.

By the same token, there’s abundant reason to believe that that’s not what the “Mueller report” will be.

Yesterday, the same day questions about a Mueller report were central to Barr’s confirmation hearing, the WSJ reported this entirely unsurprising detail about Michael Cohen’s testimony before the Oversight Committee on February 7.

Mr. Cohen, who is scheduled to speak in an open hearing on Capitol Hill for the first time Feb. 7, won’t be able to talk about topics that he has discussed with special counsel Robert Mueller, according to a person close to Mr. Cohen.

The indication that Cohen’s testimony will be sharply limited (presumably based on the intercession of Mueller’s congressional liaison, Stephen Kelly, about whom we’re likely to hear more in coming days) suggests several things: First, Mueller doesn’t expect to be done with Michael Cohen by February 7. That, in turn, suggests that all the claims — which I’ve heard too — that Mueller will soon issue a “report” likely misunderstand what form that report will take, because a one-time report covering the importance of Trump Tower deals to entice Trump’s family would present little reason to silence Cohen next month, particularly because he’d be free to talk about it anyway. But if something more public — such as an indictment, even if it’s just of Trump Organization — or if a non-public report that can be conveyed to the House Judiciary Committee is in the works, then you’d want to silence Cohen. Indeed, contrary to a lot of other bad reporting, Cohen remains on the hook in his cooperation with Mueller; he won’t get a reduction in sentence until they decide he has done enough to get a year lopped off his existing sentence.

That many reporters are being told by reliable sources that Mueller will soon unveil a “report” and that Mueller still officially maintains that their required report won’t be public suggests Mueller is moving towards yet another speaking indictment, which is how he has always reported. That’s consistent with the limits on Cohen’s report, it’s consistent with reports that Mueller is presenting evidence against Jerome Corsi to a grand jury, and it’s consistent with what we saw in yesterday’s Manafort filing (which presented evidence of Trump campaign crimes dating to 2016).

I have my concerns about Barr, especially his willingness to make policy decisions informed only by right wing propaganda (on which point he was worse on his testimony about immigration and criminal justice issues than on Mueller). Those concerns extend to what will happen if Barr gets to decide what parts of a Mueller report gets made public; it’s clear that Barr currently believes that Mueller will issue a report finding that Trump did nothing criminal. Those concerns are heightened by the fact that on virtually every other topic, Barr had not done enough homework to answer basic questions (the most remarkable instance of which was his confession that he hasn’t read the Supreme Court’s decision in Carpenter), but he was prepared to state, correctly, that Mueller’s report will be confidential, addressed solely to him.

I have other concerns. Once CSPAN fixes their transcript, I hope to show how badly hypocritical Barr is about both Matt Whitaker and Donald Trump’s sleazy influence peddling. His comments about recusal from the Mueller investigation were troubling. And he seems to believe — as he explained to Patrick Leahy near the end of the hearing — that in November 2017 there remained, after DOJ had investigated both and after Mueller had rolled out the George Papadopoulos plea deal showing him trying to hide that he was discussing emails and meetings with Putin in the days after he became a foreign policy advisor to Trump, more evidence to support an investigation of the Uranium One and Clinton Foundation allegations than into “collusion.”

But Barr also strongly suggested he would not step in the way of any Mueller indictments. And Senators did get him on the record agreeing that if Trump suborned perjury it would be criminal. And he respects Mueller, so if Mueller shows him evidence that Trump has been gravely compromised, then he should take that evidence seriously.

Barr appears to be an arrogant man who believes right wing propaganda is sufficient evidence to base policy decisions on.

But he also has a better idea of what the regulations say to expect from a Mueller report — as distinct from Mueller indictments — than the Senators questioning him did.

Update: This useful JustSecurity piece lays out the regulations and the Attorney General’s discretion.

As I disclosed 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. 

Emmet Flood Steps in It Again: William Barr’s Memo Makes Compelling Case that Trump Must Be Impeached

Back when Emmet Flood got Jeff Sessions replaced with big dick toilet salesman Matt Whitaker, I asked why the normally superb White House Counsel had done something that posed such a likelihood of causing chaos.

Maybe it’s just the Trump effect, in which normally competent people become bumblers in Trump’s aura, or maybe it’s just the unique difficulties of trying to defend the guy, but I think Flood has fucked up again. That’s because of the specific content of a William Barr memo sent to Rod Rosenstein, first reported by WSJ last night. While I’m certain Barr didn’t intend to do so, the memo makes a compelling case that Trump must be impeached.

The memo is long, lacks pagination, and presents an alarming view of unitary executive power. Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Yet even before Barr finishes the first page, he states something that poses serious problems for the White House.

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

Probably by the time Mueller’s office captured Peter Strzok’s testimony on July 19, 2017 — and almost certainly by the time they obtained Transition emails on August 23, 2017 (perhaps not coincidentally the day after Strzok’s 302 was formalized) showing Trump’s orchestration of Mike Flynn’s calls with Sergei Kislyak — Mueller has almost certainly had evidence that Trump suborned false statements from Mike Flynn. So even before he finishes the first page, Trump’s hand-picked guy to be Attorney General has made the argument that Trump broke the law and Mueller’s obstruction investigation is appropriate.

Even if Barr hadn’t indicted the President on page one of his memo, on page three he completely invalidates the rest of his argument when he argues he would be wrong if Trump actually had engaged in “illegal collusion.”

[E]ven if one were to indulge [what Barr invents as] Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt” unless the President and his campaign were actually guilty of illegal collusion.

Much later he says that obstruction becomes ripe after the underlying conspiracy (which he again calls collusion) has been established.

[T]he predicate for finding any corruption would be first finding that the President had engaged in the wrongdoing he was allegedly trying to cover up. Under the particular circumstances here, the issue of obstruction becomes ripe after the alleged collusion by the President or his campaign is established first.

By June 2018, by the time Barr wrote this, I’m fairly certain Mueller had the goods on an illegal conspiracy between Trump and the Russians, even if all the witnesses to it had not yet signed up as cooperating witnesses against the President. So again, because he writes about something he doesn’t understand, he has accidentally made the case that the President has broken the law and should be investigated for doing so.

And I’m not the only one who seems to think that. After giving the WSJ an anodyne quote on all this last night, Rod Rosenstein gave a far more interesting statement today, saying, “Our decisions are informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have.” The only way Mueller’s known obstruction inquiry could be consistent with Rosenstein’s comment is if my two observations are correct: that Mueller had reason to pursue Trump for obstruction, and that he has evidence that Trump’s campaign entered into an illegal conspiracy.

Which is a bummer for the President because, over and over, Barr points to the role of impeachment in a case where the President abuses his plenary prosecutorial powers like Trump has. Most notably, he tries to distinguish the Nixon and Clinton impeachments (the latter, bizarrely, given that it doesn’t remotely fit his standards for acceptable investigations of the President) from Trump’s behavior by arguing that, “the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such ‘bad acts’ involving the impairment of evidence.” While the evidence suggests Trump is also exposed in the conspiracy case, Barr argues here that just Trump’s acts of obstruction are sufficient to impeach him.

And here’s why I blame this all on Emmet Flood. As the updated WSJ story now makes clear, Barr sent a copy to Emmet Flood.

But people familiar with the matter said Mr. Barr did send a copy to Emmet Flood, the White House lawyer handling the Mueller probe.

If Flood read this memo (at a time, mind you, when Barr was under consideration to serve on Trump’s defense team), then it is malpractice to then appoint Barr, knowing the memo would come out.

Then there’s the fact that the memo got reported and released now. Apparently, while Trump has not yet officially appointed Barr (he may be trying to play games with Matt Whitaker’s status as Acting Attorney General), the White House has started to share background information, which may be how this memo got liberated. While White House Counsel Pat Cipollone presumably has resumed control over nominations process, but since Flood was involved in finding a new AG (and since so much of the AG hiring seems to be focused on getting Trump out of his legal problems with Mueller), Flood was likely in the loop on that decision.

Whatever the case, the fact that Barr wrote all this down and then it got liberated will make it a lot harder for Barr to invent some other reason to do what he helped Poppy Bush do, pardon his way out of a serious legal problem with Iran-Contra.

Indeed, the hullabaloo around this memo now — and Democrats’ opportunity to get Barr to confirm that if there is evidence that Trump told Flynn what lies to tell about the Russian sanctions conversation (more evidence is likely to be public by that point) — then an obstruction investigation would be valid and impeachment would be the logical recourse. That may make Barr problematic for Trump. If Dems on Senate Judiciary Committee are worth their salt (and several of them are more than up to this task), they will be able to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.

Trump might try to prevent that by failing to nominate Barr, but if he did, it’d make it more clear that his sole criterion for an Attorney General at this point is someone who’ll help him out of his legal woes.

That may be why Matt Whitaker has finally taken the Hail Mary step of — six weeks into his tenure as “Acting” Attorney General — decide to forgo the ethical review for recusal on the Mueller probe that DOJ’s ethical advisor told him would result in a recommendation that he recuse.

Update: This post has been updated to reflect WSJ’s clarification that Emmet Flood did receive the memo. Earlier, WSJ subsequently quietly added a sentence (which it has subsequently removed, though it a google search on the sentence still brings up the article) noting that Barr had shared his treatise with “the top lawyer representing the White House in the Mueller probe,” which in context would seem to mean Emmet Flood.

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. 

That Peter Strzok 302 Probably Comes from the Obstruction Case File

I’d like to provide a plausible explanation for questions about an FBI 302 released yesterday as part of the Mike Flynn sentencing.

As a reminder, after Flynn pled guilty, his case ultimately got assigned to Emmet Sullivan, who is laudably insistent on making sure defendants get any possible exonerating evidence, even if they’ve already pled guilty. On his orders, the government would have provided him everything early in 2018.

In Flynn’s sentencing memo submitted earlier this week, his lawyers quoted from an Andrew McCabe memo written the day of his interview and a 302 that they described to be dated August 22, 2017, a full 7 months after his interview. In predictable response, Sullivan instructed the government to provide that McCabe memo and the 302 cited by Flynn’s lawyers.

When the government submitted those two documents yesterday, they raised still more questions, because it became clear the 302 (which is what FBI calls their interview reports) in question was of an interview of Strzok conducted on July 19, 2017, drafted on July 20, and finalized on August 22. The 302 described that Strzok was the lead interviewer in Flynn’s interview, whereas his interviewing partner wrote up the 302.

This has raised questions about why we only got the Strzok 302, and not the original one cited by Strzok.

While I don’t have a full explanation, certain things are missing from the discussion.

Folks are misunderstanding what the 302 represents. It is not the 302 reporting the Flynn interview. Rather, it is a 302 “collect[ing] certain information regarding Strzok’s involvement in various aspects of what has become the Special Counsel’s investigation,” which he described to one Senior Assistant Special Counsel and an FBI Supervisory Special Agent, presumably one assigned to SCO. The 302 notes that Strzok wasn’t just involved in the investigation of Mike Flynn. While it redacts the names, it also lists the other parts of the investigation he oversaw.

We know he was involved in the Papadopoulos investigation, and it appears likely he was involved in the Page investigation, as well. Both this passage and the next one describes the people at DOJ that Strzok interacted with in these investigations, which is further evidence the purpose of this 302 is not to capture the interview, but instead to capture details about internal workings surrounding the investigation itself.

The part of this 302 that is unredacted makes up maybe a third of the substance of the 302, and it appears between almost full page redactions before and after the part describing the Flynn interview. Again, the other stuff must be as pertinent to the purpose of this 302 as the Flynn interview itself.

had thought the interview might be an effort by SCO to capture Strzok’s institutional knowledge in the wake of the discovery of his texts with Lisa Page as a way to prepare some other FBI Agent to be able to testify at trial. But the timing appears wrong. DOJ’s IG first informed Mueller about the texts on July 27, and he was removed from the team the next day (though not processed out of that clearance, according to this report, until August 11).

Strzok was assigned to lead the Russia investigation in late July 2016. 197 Page also worked on the Russia investigation, and told us that she served the same liaison function as she did in the Midyear investigation. Both Page and Strzok accepted invitations to work on the Special Counsel staff in 2017. Page told the OIG that she accepted a 45-day temporary duty assignment but returned to work in the Deputy Director’s office at the FBI on or around July 15, 2017. Strzok was removed from the Special Counsel’s investigation on approximately July 28, 2017, and returned to the FBI in another position, after the OIG informed the DAG and Special Counsel of the text messages discussed in this report on July 27, 2017. [my emphasis]

But the interview does line up temporally with other known events: Around the time Strzok was interviewed, both Rod Rosenstein and Sally Yates were interviewed in the obstruction case, interviews that would also result in 302s summarizing the interview. Jim Comey had already turned over his memos on meetings with Trump by that point; eventually he would be interviewed by Mueller as well, though it’s not clear when that interview (and correlating 302) was.

Yates and Comey are both among the people the 302 explicitly describes Strzok interacting with.

In other words, it seems likely that this 302 was designed to capture what Strzok knew about the internal workings of DOJ and FBI surrounding the Mike Flynn interview, and likely was focused on explaining the significance of Flynn’s lies and subsequent firing to the obstruction case. That is, this would have served to turn what Strzok learned as investigator into information Strzok had to offer as a witness, in the same way that Mueller would have had to turn what Comey and Rosenstein knew as supervisors into information relevant to their role as witnesses. It probably had the unintended benefit of capturing what Strzok knew about key parts of the investigation before he was indelibly tainted by the discovery of his text messages.

If this is the explanation, it raises questions about why we only got this 302, and not the original one.

There’s a very likely answer to that: that original 302 presumably didn’t include this detail, at least not in the easily quotable form that would serve Flynn’s political purposes.

Flynn has, as far as we know, gotten everything. His lawyers chose which of those documents to quote. And Judge Sullivan only ordered the government to produce these two (though invited them to submit anything else they wanted to, an invitation they did not take up).

But there’s another piece of evidence that there’s far less to this 302 than some are suggesting: because Republicans in Congress chased down this detail over the last year, and in their most recent incarnation of drumming up conspiracies about Flynn, in questioning Jim Comey just a week ago, Trey Gowdy did not focus on the question of the 302s produced, but instead tried to suggest that Flynn didn’t mean to lie.

Note that, contrary to what right wingers have suggested, Comey did not say anything inconsistent with the Strzok interview 302; rather, he said he wasn’t sure where his knowledge came from.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question. [my emphasis]

What may best explains this exchange is that, when it happened, Comey had never seen the Strzok 302, he had just seen the original one, but Gowdy had seen both. That would be consistent with Andrew McCabe’s testimony to HPSCI, which acknowledged that the Agents didn’t detect deception but knew Flynn’s statements did not match the FISA transcript.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

Gowdy may be suggesting that the original 302 was unfair because it did not admit how well Flynn snookered the FBI’s top Counterintelligence Agent. But that detail may not be something Comey is even aware  of, because it only got written down after he had been fired. That would explain why Flynn wouldn’t want that original one disclosed, because it might make clear that the FBI immediately recognized his claims to be false, even if they didn’t know (before doing the requisite follow-up) why he lied.

One thing we do know: there are two (related) criminal investigations that have come out of Mike Flynn’s interview. The first, into his lies, and the second, into Trump’s efforts to keep him on in spite of his lies by firing the FBI Director.

While we can’t say for sure (and Mueller’s office would not comment in response to my questions when I asked if something like this explained the 302), one possible explanation for why we’re seeing just this 302 is it’s the only one that makes Flynn look good.

Update: As JL notes, the Mueller filing makes it clear that the 302 is neither from the Flynn investigation nor from an investigation into Strzok’s conduct.

Strzok was interviewed on July 19, 2017, in relation to other matters, not as part of the investigation of the defendant or any investigation of Strzok’s conduct.

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. 

Big Dick Toilets and Sasquatch Dolls: Matt Whitaker’s Qualifications To Be Dog-Catcher

I’ve followed the burgeoning scandal that the guy Trump appointed to play hatchet man to Mueller’s investigation is totally unqualified to be Acting Attorney General. But I’ve already lost track of all the reasons why. So I’m going to try to keep a running list here.

This will be updated as new issues are identified.

Legal problems with the appointment

While Steve Vladeck says it’s legal, and Marty Lederman and Walter Dellinger find OLC’s analysis, concluding that Matt Whitaker’s appointment is legal, to be plausible, a number of commentators disagree. Those include:

These arguments include a mix of constitutional (Appointments Clause) and legal (Vacancies Reform Act and the purpose of DOJ).

Numerous people are already challenging his appointment, including the state of Maryland, three Democratic Senators, and a number of criminal defendants. Quinta Jurecic is collecting all the litigation documents for those challenges here.

Other legal problems

In addition to the Constitutional and legal problems he raises, Neal Katyal also argues that Whitaker cannot legally supervise Mueller’s investigation.

David Kris points out that because of the legal questions surrounding Whitaker’s appointment and the certainty that defendants will challenge it, his appointment will create a whole bunch of downstream problems for DOJ.

A company for which Whitaker served on the board is under investigation by the FBI and FTC. Though Whitaker was subpoenaed by the FTC, he blew off that subpoena. FOIAed records show that Whitaker kept pitching the company even after receiving complaints.

One report on Trump’s efforts to get DOJ to prosecute Hillary Clinton and Jim Comey describes Whitaker prepping discussions about what it was doing in response; he reportedly “did not seem to cross any line,” but it remains to be seen whether that’s true.

Whitaker got four donations amounting to $8,800 to his 2014 Senate run in 2018, after he had started as Sessions’ Chief of Staff, which may amount to a violation of the Hatch Act. Following a complaint from watchdog group American Oversight, the Office of Special Counsel (the DOJ office in charge of reviewing such violations, among other things) opened an investigation into this.

Bureaucratic problems

There may be problems with the way that Whitaker was appointed.

As numerous people have noted, Jeff Sessions did not date his resignation, raising questions about when his authority really passed to Whitaker. (OLC says Sessions resigned on November 7.) Democrats in the House are also suggesting they believe Sessions’ forced resignation counts as a firing, which changes the options Trump would have to replace him under the Vacancies Reform Act.

Chris Geidner has reported that the White House won’t say when Whitaker was formally appointed.

Because Mueller has sought an interview with John Kelly (indeed, he’s a leading candidate to be the Mystery Appellant challenging a subpoena or something else from Mueller), it may be problematic that he played a key role in firing Jeff Sessions.

Conflict problems

Whitaker has a potential conflict with regards to the Mueller investigation tied to his relationship with Sam Clovis, who was in charge of crafting Trump’s outreach to Russia. Whitaker served as Clovis’ campaign manager in 2014.

Then, in a series of appearances Whitaker used to draw Trump’s attention, he commented on the Mueller investigation or the underlying conflict.

In a USAT column on July 5, 2016 and then multiple appearances on July 6, Whitaker suggested Hillary should have been prosecuted, partly by criticizing Jim Comey for making the decision.

On September 30, 2016, Whitaker suggested that if Trump won, he should restart the investigation into Hillary.

On May 19, 2017, Whitaker dismissed the possibility that Trump had committed obstruction of justice by firing Comey.

In July 2017, Whitaker interviewed with Don McGahn to take on the role of legal attack dog discrediting the Mueller investigation.

On July 13, 2017, Whitaker defended Donald Trump Jr taking the June 9, 2016 Trump Tower meeting.

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

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

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

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

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

On August 11, 2017, Whitaker suggested the investigation into Paul Manafort was outside the scope of Mueller’s appointment. In that same appearance, he suggested Mueller had engaged in prosecutorial misconduct.

On August 15, 2017, Whitaker said Mueller’s appointment was a little fishy.

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

On August 30, 2017, Whitaker suggested Mueller’s investigation was politically motivated and was misusing resources that should be used elsewhere.

In spite of the fact that many of these would seem to pose conflicts that DOJ normally concludes would ethically prohibit Whitaker’s involvement in the Mueller investigation, both Trump and Whitaker appear to have known he would not recuse from the Mueller investigation even before he was appointed, though Trump has claimed (evidence to the contrary) that he didn’t talk to Whitaker about such things before he appointed him.

Financial problems

As noted by CREW when they released Whitaker’s financial disclosures, his disclosures got doctored (or “Kushnered,” as I’m now referring to serial attempts to belatedly fix glaring problems in official disclosures) four times after the time he was appointed AAG.

CREW has already filed a FOIA for those revisions.

What the records show is just as alarming.

The non-profit Whitaker worked at to, first, beat up Hillary Clinton and then audition to kill the Mueller investigation, Foundation for Accountability and Civic Trust, has obscure funding and genesis. It keeps changing its name. Whitaker’s salary, which went from $63,000 for part time work to $660,000 a year, made up most of its expenditures in the period before he became Sessions’ Chief of Staff. One of the guys listed as a director, James Crumley, claimed not to remember its existence. Another, Noah Wall, didn’t know he was listed as Director. While claiming to be non-partisan, it overwhelmingly attacked Democrats (and Hillary specifically), a possible violation of IRS regulations. As OpenSecrets notes, its funding comes from a black hole pass through, but the organization seems to have ties to other judiciary-related dark money groups.

The 14 companies in Iowa Whitaker worked for (reportedly, past tense) have never filed paperwork noting that, so on paper he still works for them.

In 2016, Whitaker abandoned a taxpayer-funded apartment rehabilitation project, defaulting on loans and hiding from creditors.

World Patent Marketing — the company the FBI is investigating — was totally fraudulent, pretending to help review patents without doing so. Among those the company defrauded are veterans. Among the things it marketed were Big Dick Toilets, Sasquatch dolls, and time travel.

Abuse as (or invoking past history as) US Attorney

Whitaker has already abused his position as a government prosecutor, both while serving and since.

In 2006, he prosecuted a Democratic politico, Matt McCoy and even paid an informant to incriminate him. The jury acquitted McCoy after deliberating for just 25 minutes.

Then, when serving on the advisory board for a World Patent Marketing, he threatened people who complained, including threatening them with legal retribution.

Temperament

Both on his legal views and his other beliefs, Whitaker has a temperament far outside the mainstream.

When running for Senate, Whitaker argued that judges should have a biblical view and said that Marbury v. Madison — the foundation of judicial review in this country — was among the worst Supreme Court decisions.

He was among the US Attorneys who imposed the harshest sentences in drug prosecutions.

Update: Since it has attracted a lot of attention, I owe this title in part to HowdyQuicksell, but the Dog Catcher accusation (which will probably ensure no DOJ spox will ever again return my calls) is my own.

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!