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Rod Rosenstein Didn’t Even Clear Trump on All the Topics He Hired Mueller to Investigate

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As I have noted, the William Barr memo everyone is reading to clear Trump and his flunkies of a conspiracy with Russia actually only clears the Trump campaign and those associated with it of conspiring or coordinating with the Russian government in its efforts to hack into computers and disseminate emails for purposes of influencing the election. The exoneration doesn’t even extend to coordinating with WikiLeaks, as Roger Stone is alleged to have done (though that, by itself, is not a crime).

More significantly, it is silent about whether Trump and his flunkies conspired with Russia in a quid pro quo trading election assistance and a real estate deal for policy considerations, the very same kind of election year shenanigans Barr has covered up once before with Iran-Contra.

And that’s important, because it means Barr and Rod Rosenstein haven’t even cleared Trump of what Rosenstein hired Mueller to investigate.

Jim Comey first described the investigation to include:

  1. The Russian government’s efforts to interfere in the 2016 election
  2. The nature of any links between individuals associated with the Trump campaign and the Russian government
  3. Whether there was any coordination between the campaign and Russia’s efforts

When Rosenstein appointed Mueller, he referenced Comey’s statement, but specifically mentioned just bullets 2 and 3 in his mandate, combining those two bullets into one that (unlike Comey’s original statement) was limited to just the Russian government, not Russia’s efforts generally.

  • any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

In May 2017 when Rosenstein hired Mueller (and, according to public reports, through November 2017), the investigation into the hack-and-leak remained elsewhere at DOJ (significantly, but not entirely, in Pittsburgh and San Francisco).

When the FBI raided Paul Manafort on July 27, 2017 — a raid Rosenstein almost certainly approved personally —  they were looking for evidence (among other things) on the June 9, 2016 meeting in support of an investigation into accepting campaign contributions from a foreigners or a conspiracy to do so; there was no mention whatsoever of probable cause that Manafort had helped Russia hack Hillary Clinton. Six months after that raid, Mueller would learn that two months after the June 9 meeting, on August 2, 2016, Manafort shared Trump’s polling data with Konstantin Kilimnik at a meeting where he also discussed a Ukrainian peace deal that would amount to sanctions relief. Manafort lied about what happened at that meeting. In Andrew Weissmann’s opinion, he lied in hopes of getting a Trump pardon.

When the Mueller Report states, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” it does so after Manafort refused to explain why he shared that polling data, or whether he knew whom Konstantin Kilimnik was sharing it with, and significantly, whether he had reason to believe that either Kilimnik himself or Oleg Deripaska — neither themselves part of the Russian government but Deripaska unquestioningly with close ties to it — would share the data with the GRU hackers who were still hacking Hillary Clinton.

And yet the only “links and/or coordination” that Barr and Rosenstein addressed involved  an, “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

Because of Trump’s obstruction, we don’t know whether Manafort entered into an agreement with Kilimnik to trade sanctions relief for election assistance, but even if he did, it would not qualify as “coordination with the Russian government.” It would qualify as coordination with a cut-out for the Russian government.

Likewise, we know if Don Jr agreed to revisit sanctions relief after Natalia Veselnitskaya and the Agalarov family offered dirt on Hillary. But Don Jr wasn’t even officially part of the campaign, and while Veselnitskaya and Agalarov both have almost inseparable from the Russian government, they are not the Russian government and therefore would not qualify under this standard.

The nature of Manafort’s links to the Russian government via Kilimnik and Don Jr’s links to the Russian government via Veselnitskaya and Agalarov are squarely within Mueller’s mandate as laid out by Rosenstein. And those links are pretty fucking sketchy and possibly criminal, but quite possibly for reasons distant from the hack-and-leak. But by limiting the evaluation of the memo to whether the campaign coordinated directly with Russia on the hack-and-leak and not whether the links to Russia that Mueller discovered were criminally suspect, Rosenstein, with Barr, is not addressing one part of the job he hired Mueller to do.

That’s all the more true given the way that Barr, in consultation with Rosenstein, determined that Trump did not obstruct justice. An explicit part of Mueller’s mandate was to investigate the links between his campaign and Russia, including the link through Kilimnik to Deripaska and through him the Russian government. According to Weissmann, Trump’s actions led Manafort to refuse to explain those links.

In “conspiring” with Barr to give Trump the all-clear, Rosenstein didn’t address a significant part of the job he gave Mueller.

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

How William Barr Did Old Man Back-Flips to Avoid Arresting Donald Trump

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Attorney General William Barr just engaged in utterly cowardly dereliction of duty.

During his confirmation hearing, Barr confirmed that things Trump has done are obstruction

When we were awaiting the Mueller report yesterday, I wondered whether William Barr was thinking about two things he had said as part of his confirmation process. First, in his column that has always been interpreted to say that a President can’t obstruct justice, at the bottom of the first page, he instead acknowledged that a President actually could obstruct justice.

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.

Barr — who at the time had no understanding of the evidence — made three comments in his confirmation hearing about obstruction. Among others, he point blank said that a person could not lawfully issue a pardon in exchange for someone’s promise not to incriminate him.

“Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise not incriminate him?” Sen. Patrick Leahy (D-Vt.) asked Barr during his confirmation hearing before the Senate Judiciary Committee.

“No, that would be a crime,” Barr said.

We know Trump has repeatedly floated pardons to witnesses who have, in hopes of obtaining a pardon, not incriminated him.

That’s true of Paul Manafort most of all.

So on the basis of what he said to get this job, Barr is already on the record saying that Trump obstructed justice.

Barr ignores the crimes in front of him to avoid considering whether Trump obstructed those crimes

Now consider how Barr — having been given the job by Mueller of deciding whether Trump obstructed justice — avoided holding himself to sworn views he expressed during confirmation.

In the letter sent to Jerry Nadler (who surely just kicked off an impeachment inquiry in earnest) and others, his analysis consists of the following.

The guts of the letter describe the two parts of Mueller’s report. The first part reviews the results of Mueller’s investigation into Russian interference in the 2016 US presidential election. It describes the conclusions this way:

  • [T]he Special Counsel did not find that any U.S. person or Trump campaign official or associate conspired or knowingly coordinated with the IRA in its efforts
  • [T]he Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in [its] efforts … to gather and disseminate information to influence the election

Note that the second bullet does not even exonerate Roger Stone, as it pertains only to the Russian government, not Russians generally or WikiLeaks or anyone else. This is important given that we know the Trump campaign knew of and encouraged Roger Stone’s coordination with WikiLeaks.

Then Barr moves along to the second section, in which Mueller considered whether Trump obstructed justice. In it, Barr doesn’t mention the scope of the activities that Mueller considered evidence of obstruction of justice. He notes that, after laying out a case for and against accusing the President of a crime, Mueller’s report,

states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Barr and Rod Rosenstein have spent less than 48 whole hours considering that evidence to come up with this judgment:

Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

[snip]

In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction. Generally speaking, to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.

Here’s the thing, though: at least given what they lay out here, they only considered whether Trump was covering up his involvement in the hack-and-leak operation. It doesn’t consider whether Trump was covering up a quid pro quo, which is what there is abundant evidence of.

They didn’t consider whether Trump obstructed the crime that he appears to have obstructed. They considered whether he obstructed a different crime. And having considered whether Trump obstructed the crime he didn’t commit, rather than considering whether he obstructed the crime he did commit, they decided not to charge him with a crime.

Update: Corrected that these fuckers didn’t even spend two days reviewing the report.

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

 

The Mueller Report, the Short Version

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Here’s William Barr’s letter to the Judiciary Committees on the Mueller report. It seems to suggest that Trump may have done impeachment-worthy things, but not prosecution related things.

I say that because:

  • Mueller found that no Trump flunkie took part in either of the two main Russian interference attempts
  • Mueller laid out the case for and against prosecution of Trump for obstruction
  • Barr and Rod Rosenstein, together, decided because Trump did not take part in those two interference attempts, he could be not charged with obstruction

What Barr appears not to have done is review whether Trump was trying to cover up some other crime, like a quid pro quo, which would still merit prosecution.

And that’s precisely what HJC should consider.

Barr has promised to give what’s not covered by grand jury rules to Congress. My guess is that’s not sufficient to get to the underlying potentially criminal intent. In any case, it’s clear that Mueller, Barr, and Rosenstein all at least considered whether Trump should be prosecuted, irrespective of DOJ rules prohibiting prosecuting a sitting president.

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

Rod Rosenstein’s Unfortunate Vocabulary: Defining a Criminal Investigation by “Links” and “Collusion”

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Rod Rosenstein is the very unlikely hero of the Mueller investigation. “Rod is a survivor,” Jim Comey said after getting fired. “And you don’t get to survive that long across administrations without making compromises.”

Yet here we are, 22 months after he appointed Robert Mueller to investigate an investigation Trump tried to kill by firing Comey, awaiting the results of that investigation.

At times, I think Rosenstein didn’t imagine (and doesn’t now acknowledge) the damage his bend-don’t-break has done along the way. While based off the very sound precedent that existed until Comey’s declination speech about Hillary, it seems ridiculous for him to claim that the full results of the Mueller investigation can’t be shared with Congress, as he’s now claiming, given how he has provided unprecedented disclosure to Congress about the investigation already, including the first ever unsealed probable cause FISA application.

It will take some years to measure whether Rosenstein chose the best or perhaps only the least worst approach to the last several years.

But there’s one thing he did that really makes me uncomfortable, today, as we all await the results of the Mueller report: his mandate to Mueller.

As has been noted countless times in the last 22 months, Rosenstein asked Mueller to investigate:

    • any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
    • any matters that arose or may arise directly from the investigation;
    • any other matters with the scope of 28 C.F.R. § 600.4(a).
  • if the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

We actually know the answer to the first bullet, in part: As I laid out here, during five key interactions pertaining to the question of a possible conspiracy between Trump’s associates and Russia, there was direct contact between someone the government has deemed an agent of Russia and the Trump campaign:

  1. January 20, 2016, when Michael Cohen told Dmitry Peskov’s personal assistant that Trump would be willing to work with a GRU-tied broker and (soft and hard) sanctioned banks in pursuit of a $300 million Trump Tower deal in Russia.
  2. June 9, 2016, when Don Jr, knowing that currying favor with Russia could mean $300 million to the family, took a meeting offering dirt on Hillary Clinton as “part of  Russia and its government’s support for Mr. Trump.” At the end of the meeting, per the testimony of at least four attendees, Don Jr said they’d revisit Magnitsky sanctions if his dad won.
  3. August 2, 2016, when Paul Manafort and Rick Gates had a clandestine meeting with Konstantin Kilimnik at which Trump’s campaign manager walked Kilimnik through highly detailed poll data and the two discussed a “peace” plan for Ukraine understood to amount to sanctions relief.
  4. December 29, 2016, when (working on instructions relayed by KT McFarland, who was at Mar-a-Lago with Trump) Mike Flynn said something to Sergey Kislyak that led Putin not to respond to Obama’s election-related sanctions.
  5. January 11, 2017, when Erik Prince, acting as a back channel for Trump, met with sanctioned sovereign wealth fund Russian Direct Investment Fund CEO Kirill Dmitriev.

That Peskov’s assistant (and whatever representative from Putin’s office that called Felix Sater the next day), Sergey Kislyak, and Kirill Dmitriev are agents of Russia is clear. With the indictment of Natalia Veselnitskaya in December, the government deemed her to be working as an agent of Russia during the same time period she pitched sanctions relief to Trump’s campaign. And while the government hasn’t proven it beyond quoting Rick Gates acknowledging he knew of Konstantin Kilimnik’s past with the GRU and FBI’s belief that he continues to have ties, the government certainly maintains that Kilimnik does have ties to Russian intelligence.

Those are links. It’d be useful to have an official report on them. But since Mueller hasn’t charged them as a conspiracy, we may only learn what we’ve seen in plea agreements or official testimony to Congress.

Likewise Rosenstein’s invocation of “collusion” in the unredacted parts of his memo describing the scope of the investigation as it existed in August 2017 (it expanded and contracted after that point, so there are like different memos).

Allegations that Paul Manafort:

  • committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

Here, unlike in the initial mandate, Rosenstein at least noted that Mueller was assessing whether crimes were committed in using that squishy language. But he used the word “collusion,” which started to be politicized by March 2017, when Comey tried to correct it once and for all.

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

[snip]

Collusion is not a legal term. It is not one I have used today. I said we are investigating to see if there is any coordination between people associated with the campaign– [my emphasis]

Sure, “collusion” might be understood to incorporate a bunch of possible crimes, and so appropriately didn’t limit Mueller to one specific crime as he investigated Manafort (but then, so did the term, “coordination”). But I nevertheless think that using the word has confused the issue of what Rosenstein intended Mueller to be able to reveal, which would instead be conspiracy and a bunch of other crimes covering up evidence of coordination that Mueller has found necessary and appropriate to charge, and not whether there was “collusion.”

All the while, people on both sides of this debate have taken “collusion” to mean whatever minimalist or maximalist interpretation of wrong-doing that best serves their side.

There are two things at issue: whether Trump and his aides coordinated in a way that is criminal, which would be a conspiracy, and whether Trump has coordinated with Russia in a way that would be an abuse of power and/or puts the nation at risk.

Both are legitimate questions. And while Rosenstein says only crimes that are indicted are appropriate to reveal (and he may well be right about that, as a principle), he did ask Mueller to conduct an investigation of that other stuff, and Congress has deferred to Mueller even while that other stuff is squarely within their mandate.

Ideally, this weeks focus on Mueller’s discoveries would be on what the actual evidence showed, which we know to include, at a minimum, the following:

  • Trump pursued a ridiculously lucrative $300 million real estate deal even though the deal would use sanctioned banks, involve a former GRU officer as a broker, and require Putin’s personal involvement at least through July 2016.
  • The Russians chose to alert the campaign that they planned to dump Hillary emails, again packaging it with the promise of a meeting with Putin.
  • After the Russians had offered those emails and at a time when the family was pursuing that $300 million real estate deal, Don Jr took a meeting offering dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end (per the sworn testimony of four people at the meeting) he said his father would revisit Magnitsky sanctions relief if he won. Contrary to the claim made in a statement authored by Trump, there was some effort to follow up on Jr’s assurances after the election.
  • The campaign asked rat-fucker Roger Stone to optimize the WikiLeaks releases and according to Jerome Corsi he had some success doing so.
  • In what Andrew Weissmann called a win-win (presumably meaning it could help Trump’s campaign or lead to a future business gig for him), Manafort provided Konstantin Kilimnik with polling data that got shared with Ukrainian and Russian oligarchs. At the same meeting, he discussed a “peace” plan for Ukraine that would amount to sanctions relief.
  • Trump undercut Obama’s response to the Russian hacks in December 2016, in part because he believed retaliation for the hacks devalued his victory. Either for that reason, to pay off Russia, and/or to pursue his preferred policy, Trump tried to mitigate any sanctions, an attempt that has (with the notable exception of those targeting Oleg Deripaska) been thwarted by Congress.

Instead, however, we’re still arguing about a word — collusion — that was stripped of all meaning years ago, with the result that Mueller’s presumably very measured assessment of what happened cannot serve as the arbiter of truth we need.

Rosenstein may well be the unlikely hero of preserving some semblance of rule of law in this country. But along the way, his choice of language has unfortunately twice fostered the confusion about where the line between crime and misconduct is.

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

The Mueller Report Has Been Delivered

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

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

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

The Predictable Result of Asymmetry in Terrorism Policing: Andrew McCabe’s Demise

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I recently finished Andrew McCabe’s book.

It is very effective at what I imagine its intended purposes are. It provides some fascinating new details about the genesis of the Russian investigation. It offers a great introduction in how the FBI (at its best) can work. It gives a self-congratulatory version of McCabe’s career, including key events like the Najibullah Zazi and Boston Marathon investigations; even if McCabe had wanted to tell fully honest stories about those investigations, I’m sure the less flattering details wouldn’t have passed FBI’s publication review.

The book also says satisfyingly mean things about Trump, Jeff Sessions, and (more obliquely) Rod Rosenstein. (I think McCabe’s book release significantly explains the rumors reported as fact that Mueller’s report was imminent some weeks ago; that claim served, in part, to once again eliminate any pressure to fire Rosenstein immediately).

The latter of two, of course, implemented McCabe’s firing. McCabe’s excuse for lying to the Inspector General, which led to his firing, is one of the least convincing parts of the book (he admits he can’t say more because of his continued legal jeopardy, but he does raise it). That’s true, in part, because McCabe only deals with one of the conversations in question; there were a number of them. But he also excuses his chief lie because he was frazzled about learning of the Strzok-Page texts in the same conversation. I can understand that, but elsewhere, one of his digs against Rosenstein is how overwhelmed the Deputy Attorney General was in the wake of the Jim Comey firing. McCabe suggests, in that context, that because he had dealt with big stressful issues (like the Boston Marathon attack), he wasn’t similarly rattled. Which is why I find it disingenuous to use being frazzled for not being fully truthful to the Inspector General. Plus, virtually all defendants prosecuted for lying to the FBI (including George Papadopoulos, but not Mike Flynn, who is a very accomplished liar) are frazzled when they tell those lies; it’s a tactic the FBI uses to catch people unguarded.

I was most frustrated, however, by something that has become increasingly important in recent days: McCabe’s utter lack of awareness (at least in the book) of the import of the asymmetric focus on Islamic terrorism across his career.

After moving to counterterrorism in the mid-00s from working organized crime, McCabe became an utterly central player in the war on Islamic terror, founding the High Value Interrogation Group, and then leading the CT and National Security Divisions of FBI. He was a key player in investigations — like Zazi — that the FBI is rightly proud of.

But McCabe normalizes the choices made after 9/11 to pursue Islamic terrorism as a distinct danger. He (of course) whitewashes Jim Comey’s decision to retain the Internet dragnet in 2004 under an indefensible use of the PATRIOT Act. He argues that it is politically impossible to survive a failure to prevent an attack even though he managed the Boston Marathon attack, where FBI and NSA had some warning of Tamerlan Tsarnaev’s danger, but nevertheless got very little criticism as a result. Most remarkably, McCabe talks about Kevin Harpham’s attempted attack on the Martin Luther King Day parade, mentions as an aside that this was (obviously) not an Islamic terror attack, but offers no reflection on how Harpham’s attack undermines much of what he presents, unquestioningly, as a greater risk from Islamic terrorism (here’s a story on how Barack Obama did not get briefed on Harpham, a decision that may well have involved McCabe).

Granted, McCabe’s blind spots (at least in the book) are typical of people who have spent their lives reinforcing this asymmetry. You see it, too, in this utterly nonsensical paragraph in a largely ridiculous piece from Joshua Geltzer, Mary McCord, and Nick Rasmussen — all likewise accomplished players in the War on Just One Kind of Terrorism — at Lawfare.

The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic—to tragic effect.

This paragraph, in a piece that admits the focus of their career has been wrong (and neglects to mention that Christchurch terrorist Brenton Tarrant named Donald Trump, along with Anders Behring Breivik, as an inspiration), suggests that the reason international terrorism is “such a threat” is because it can inspire domestic actors. The logic inherent to that paragraph is that terrorism carried out by “domestic terrorists,” inspired by a domestic white supremacist ideology is any less dangerous than terrorism carried out by people inspired by what is treated as an international ideology. International terrorism is worse than domestic terrorism, these experts argue, because it can lead to domestic terrorism.

Dead is dead. And given the significant number of white supremacists who have had experience in the military and greater tolerance for their training, white supremacists have the potential of being far more effective, as individuals, at killing than US-based Islamic terrorists.

One thing the Lawfare piece studiously avoids acknowledging is that what it calls “domestic” terrorism (the racist ideology of which they never describe) is an ideology significantly exported by the United States. Even in a piece that rightly calls for an equal focus on both white supremacist terrorism and Islamic terrorism, it ducks labeling the ideology in question. And while this WaPo piece does label the ideology in question, it bizarrely calls an attack in New Zealand carried out by an Australian a “domestic” attack.

The WaPo piece describes one problem with the asymmetric treatment of different kinds of terrorism: that governments don’t share intelligence about international violent racist ideology. In fact, in the US, such intelligence gets treated differently, if the FBI’s failure to track the networks around Frazier Glenn Miller and Eric Rudolph is any indication.

Ironically, that’s one reason that McCabe’s failure to track white supremacist terrorism in the same way he tracked Islamic terrorism led to his demise. While the network behind the election year operation that helped elect Trump involves a lot of Russians, it also clearly involves a lot of white supremacists like Nigel Farage (and David Duke), a network Russia exploited. Additionally, as I have argued (and at least one study backs) white supremacist networks provided the real fire behind the attacks on Clinton; Russia’s information operations had the effect of throwing more fuel on a blazing bonfire.

The other problem with the US government’s asymmetric treatment of terrorism is legitimacy. Labeling Islamic terrorism “foreign” and pursuing material support cases based partly on speech has had the effect of criminalizing some speech that criticizes US foreign policy, even well-deserved criticism about the effect of US killing of Muslims. By contrast, white supremacist speech, even that which  more aggressively advocates violence is treated as speech. Yes, deplatforming has begun to change that.

But we’re still not at a place where those who incite white supremacist violence are held accountable for it.

That’s how it was possible for a man to kick off a campaign by inventing lies about Mexican immigrants and how the entire Republican party, up to and including the new supposedly sane Attorney General, are permitted to pursue counterproductive policies solely so they can appear to demonize brown people.

Irrespective of the merit or not in the finding that Andrew McCabe lacked candor with the IG, he got treated the way he did because a man whose entire political career is based off feeding white resentment needed to appear to be a victim of Andrew McCabe. That act, by itself, was not about Trump’s white supremacist ideology. But it is a structure of power that is white supremacist (exacerbated by Trump’s narcissism).

We have a President Trump in significant part because this country has tolerated and even rewarded white supremacist ideology, institutionally ignoring that it poses as much of a risk as violent Islamic ideology. It would be really useful if people like Andrew McCabe spend some time publicly accounting for that fact.

The white supremacy that brought us the Trump presidency would not be possible if we had treated violent white supremacist terror as terror for the last twenty years.

The May 18, 2017 Meeting with Trump, Jay Sekulow, and Michael Cohen

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One of the things that happened in yesterday’s Michael Cohen testimony is that Gerald Connolly seems to have dated a meeting between the President, Cohen, and Jay Sekulow: May 18, 2017. That’s based off a May 16 email that refers to a Thursday meeting.

Gerry Connolly: There was an email from a special assistant to the President to a Deputy White House Counsel, and the email is dated May 16, 2017 and it says, and I quote, POTUS, meaning the President, requested a meeting on Thursday with Michael Cohen and Jay Sekulow. Any idea what this might be about, end-quote? Do you recall being asked to come to the White House on or around that time, with Mr. Sekulow, May of 2017?

Michael Cohen: Off the top of my head sir, I don’t. I recall being in the White House with Jay Sekulow and it was in regard to the document production as well as my appearance before the House Select Intel.

Thursday that week would have been May 18.

As Cohen lays out in the rest of the clip, at the meeting Trump told him to cooperate but then repeated the lines (Cohen says he knew) Trump wanted him to use: There is no Russia, there is no collusion, there is no deal. This stuff has to end.

If that is, indeed, when Cohen and Sekulow started working on Cohen’s perjurious testimony, it is remarkable timing. This post has a timeline of Cohen’s evolving lies. Of note, the timing in May looks like this:

May 9: Trump fires Jim Comey

May 16: Trump asks for a meeting with Sekulow and Cohen

May 17: Rod Rosenstein appoints Mueller

May 18: Cohen, Sekulow, and Trump meet during which Trump lays out the party line

May 30: Cohen says he won’t cooperate with HPSCI

May 31: HPSCI subpoenas Cohen and his law firm

Among other things, this means that Trump was laying out a party line even before Mueller got appointed. It also means that They recognized the risk of this testimony before the HPSCI request moved to a subpoena.

Remember, according to his testimony yesterday, Cohen claimed Sekulow edited his testimony, including by foreshortening the time during which the Trump Tower deal remained active during the election (though Sekulow denies it).

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

Yesterday Noel Francisco Raised the Stakes on the Mystery Appellant

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Significance of the Rod Rosenstein / William Barr Window

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As I noted here, CNN has a report that not only backs NBC’s report, but provides flesh to the logic that Mueller is providing his report to DOJ next week. That would mean several things I said in this report are incorrect — mostly that Mueller would wait until the Andrew Miller and Mystery Appellant challenges are resolved (remember, as I noted, he knows what both of those challenges will get him).

I don’t know what to expect next week. I have suspicions but won’t share them because I don’t want people to treat my suspicions with any more weight than suspicions deserve, which is not much.

I do, however, want to talk about the timing.

This is happening in the window of time when Rod Rosenstein is still around and — because William Barr has presumably not been through an ethics review on the investigation — presumably back in charge of sole day-to-day supervision of the investigation. But it is happening after Barr has been confirmed, and so any problems with the investigation that might stem from having an inferior officer (an unconfirmed hack like the Big Dick Toilet Salesman) supervising Mueller are gone.

I’m fairly certain the concerns about Barr coming in and forcing Mueller to finish this are misplaced. I say that, in part, because Mueller seemed to be preparing for this timing. I say it, too, because Barr is too close to Mueller to do that to him.

That says that Mueller is choosing this timing (and choosing not to wait for the appeals to be done). Whatever reason dictates this timing, by doing it in this window, Mueller can ensure the legitimacy of what happens, both legally (because Barr will be in place) and politically (because it will be clear Rosenstein presided over it).

So whatever comes next week, people on both sides should accept that it is the outcome of the investigation that Mueller deemed appropriate.

About the Two Investigations into Donald Trump

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I’m still pretty cranky about the timing and form of Andrew McCabe’s publicity tour.

But since it’s out there, I’d like to comment on three details, two of which have gotten significant comment elsewhere.

Trump wanted Rod Rosenstein to include Russia in the reasons he should fire Comey

The first is that Trump specifically asked Rosenstein to include Russia — McCabe doesn’t further specify what he meant — in the letter recommending he fire Jim Comey.

McCabe says that the basis for both investigations was in Mr. Trump’s own statements. First, Mr. Trump had asked FBI Director Comey to drop the investigation of National Security Adviser Michael Flynn, who has since pleaded guilty to lying to the FBI about his Russian contacts.  Then, to justify firing Comey, Mr. Trump asked his deputy attorney general, Rod Rosenstein, to write a memo listing the reasons Comey had to go. And according to McCabe, Mr. Trump made a request for that memo that came as a surprise.

Andrew McCabe: Rod was concerned by his interactions with the president, who seemed to be very focused on firing the director and saying things like, “Make sure you put Russia in your memo.” That concerned Rod in the same way that it concerned me and the FBI investigators on the Russia case.

If Deputy Attorney General Rosenstein listed the Russia investigation in his memo to the White House, it could look like he was obstructing the Russia probe by suggesting Comey’s firing. And by implication, it would give the president cover.

Scott Pelley: He didn’t wanna put Russia in his memo.

Andrew McCabe: He did not. He explained to the president that he did not need Russia in his memo. And the president responded, “I understand that, I am asking you to put Russia in the memo anyway.”

When the memo justifying Comey’s firing was made public, Russia was not in it. But, Mr. Trump made the connection anyway, telling NBC, then, Russian diplomats that the Russian investigation was among the reasons he fired Comey.

The most obvious explanation for this is that Trump wanted to box DOJ in, to prevent them from expanding their investigative focus from one campaign foreign policy advisor, a second campaign foreign policy advisor, his former campaign manager, his National Security Advisor, and his lifelong political advisor to the one thing those five men had in common, Trump.

But it’s also possible that Trump wanted Rosenstein to do what Don McGahn had narrowly prevented Trump from doing, effectively shifting the obstruction to Rosenstein. That seems like what Rosenstein was worried about, an impression he may have gotten from his instructions from McGahn, laying out the case that investigating Russia would get you fired.

It’s possible, too, that Trump was particularly interested in the public statement for the benefit of the Russians, a view supported by the fact that Trump made sure he fired Comey before his meeting with Sergey Lavrov and Sergey Kislyak, and then stated that he had more freedom with Comey gone. That is, it’s possible he needed to prove to the Russians that he could control his own DOJ.

The order to Rosenstein was one of the predications for the investigation into Trump

McCabe elaborates on a story told at least partly by the Peter Strzok-Lisa Page texts: that the day after Trump fired Comey, FBI moved to open two investigations into Trump. A number of people have suggested McCabe just vaguely pointed to Trump’s statements, but he’s more specific than that. One of the statements was that order to Rosenstein to include Russia in the firing memo.

Scott Pelley: How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president?

Andrew McCabe: I think the next day, I met with the team investigating the Russia cases. And I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward. I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion that were I removed quickly or reassigned or fired that the case could not be closed or vanish in the night without a trace.

[snip]

Andrew McCabe: There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt…

President Trump on Feb. 16, 2017: Russia is a ruse. I have nothing to do with Russia. Haven’t made a phone call to Russia in years.

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

As McCabe describes it, the other things are obstruction-related: Trump’s attacks on the Russian investigation.

But remember, McCabe had heard the substance of Mike Flynn’s comments to Sergei Kislyak. The rest of us have seen just outlines of it. In some way, Mike Flynn convinced Sergei Kislyak on December 29, 2016, that Russia had Trump’s assurances on sanctions relief. Trump may well have come up specifically. In any case, the FBI would have had good reason — from Flynn’s lies, and his call records showing his consultations before he lied — to suspect Trump had ordered Flynn’s statements to Kislyak.

McCabe describes the genesis of the obstruction and the counterintelligence investigation

Finally, McCabe provides additional details to the dual investigation into Trump: the obstruction one arising out of Trump’s efforts to kill the Russian investigation, and the counterintelligence one into whether Trump was doing that at Russia’s behest (which goes back to my initial point, that Trump may have wanted Russia included in the firing memos as a signal to Russia he could kill the investigation).

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

Scott Pelley: What was it specifically that caused you to launch the counterintelligence investigation?

Andrew McCabe: It’s many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

Scott Pelley: Are you saying that the president is in league with the Russians?

Andrew McCabe: I’m saying that the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.

With that laid out, I’d like to look at Rod Rosenstein’s August 2 memo laying out precisely what Mueller was — and had, from the start — been authorized to investigate, which both Paul Manafort and the President’s flunkies in Congress spent a great deal of effort trying to unseal. Knowing as we now do that the redacted passages include at least one and probably two bullet points relating to Trump himself, it seems more clear than every that once you lay out the investigations into Trump’s flunkies known to have been predicated at the time, that’s all that would have been included in the memo:

  • Obstruction investigation into Trump
  • Counterintelligence investigation into Trump
  • Election conspiracy investigation into Manafort
  • Ukrainian influence peddling investigation into Manafort
  • Transition conspiracy investigation into Flynn
  • Turkish influence peddling investigation into Flynn
  • Counterintelligence investigation into Carter Page
  • Election conspiracy investigation into George Papadopoulos
  • Election conspiracy investigation into Roger Stone

At that point, there wouldn’t have been space for at least two of the three bullets that now exist on a scope memo, as laid out by Jerome Corsi’s draft plea (though “c” may have been there in conjunction with Stone).

At the time of the interview, the Special Counsel’s Office was investigating the Russian government’s efforts to interfere in the 2016 presidential election, including:

a. the theft of campaign-related emails and other documents by the Russian government’s Main Intelligence Directorate of the General Staff (“GRU”);

b. the GRU’s provision of certain of those documents to an organization (“Organization 1”) for public release in order to expand the GRU’s interference in the 2016 U.S. presidential election campaign; and

c. the nature of any connections between individuals associated with the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) and the Russian government or Organization 1.

That’s another to believe — as I have long argued — that bullets a and b got moved under Mueller at a later time, probably around November 2017. After Flynn flipped, the Middle Eastern pass-through corruption would likely have been added, and inauguration graft probably got added after Rick Gates flipped (before the non-Russian parts of both got spun off).

One thing that means, if I’m correct, is that at the time Mueller was hired, the investigation consisted of predicated investigations into probably six individuals. While there would have been a counterintelligence and criminal aspect to both, there was a criminal aspect to each of the investigations, with specific possible crimes envisioned. If that’s right, it means a lot of hot air about Mueller’s appointment simply misunderstood what part of Comey’s confirmed investigation got put under Mueller at first.

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

In any case, the certainty that there are at least one and probably two bullets pertaining to Trump in that August 2 memo is interesting for a few more reasons.

It makes it far more likely that the Strzok 302 — based on a July 19, 2017 interview, drafted the following day, and finalized August 22 — was an effort to formalize Mueller’s authorization to investigate the President. The part of the 302 that pertains to Mike Flynn’s interview takes up the middle third of the report. The rest must lay out the larger investigations, how the FBI found the intercepts between Flynn and Kislyak, and what the response to the interview was at DOJ.

The 302 is sandwiched between two events. First, it follows by just a few weeks the release of the June 9 meeting emails. Indeed, the interview itself took place on the day the NYT published the interview where Trump admits he and Putin spoke about adoptions — effectively making it clear that Putin, not Trump, drafted a statement downplaying that the meeting had established a dirt-for-sanctions relief quid pro quo.

The 302 was also drafted the day before Mueller started pursuing the transition emails and other comms from GSA that would have made it clear that Trump ordered Flynn’s statements and key members of the transition team knew that.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

It also happens to precede, by days, when Michael Horowitz would inform Christopher Wray and then Mueller about the Page-Strzok texts, though that is almost certainly an almost unbelievable coincidence.

In any case, as I’ve noted, unsealing that August 2 memo has been like a crown jewel for the obstructionists, as if they knew that it laid out the investigation into Donald Trump. That effort has been part of a strategy to suggest any investigation into Trump had to be improper, even one investigating whether he engaged in a quid pro quo even before the General Election started, trading US policy considerations — starting with, but not limited to, sanctions relief — in exchange for help getting elected.

The obstructionists want to claim that an investigation that started with George Papadopoulos and then Carter Page and then Mike Flynn (the obstructionists always seem to be silent about Paul Manafort and Roger Stone, as if they knew who engaged in substantive conspiracy with the Russians) should not end up with Donald Trump. And they do so, I think, to suggest that at the moment it discovered that quid pro quo in July 2017, it was already illegitimate.

But as McCabe said, “the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.”

It just turned out that Trump was guilty.

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