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Impeachment and the Narcissist’s Off-Ramp

Welcome to the 116th Congress, where Democrats in the House will finally exert some check on the unmanageable man sitting the Oval Office.

There’s a lot I’m excited about in the new Congress: the unprecedented diversity, some rules and agreements that should give progressives more sway in the House, and a fierce, talented leader holding the Speaker’s gavel (even if I disagree with some of Nancy Pelosi’s moves, such as Pay-Go).

Pelosi is taking a really aggressive approach with Trump. In an interview on NBC this morning, Pelosi suggested he doesn’t know how to deal with women in power or women with strength. She dinged Trump because he “may not know this, but Hawaii is part of the United States,” and wondered whether Trump actually “observed the religious holiday of Christmas.” (Here’s the actual interview; I have yet to find a transcript.)

Remarkably, given the way Pelosi categorically ruled it out in 2006, she spoke at length about impeachment (partly, though not entirely, because Savannah Guthrie pushed her repeatedly on this point). After agreeing with her past comments that an impeachment would be “sad and divisive” to impeach the president, Pelosi suggested that the law does not prohibit indicting a sitting president.

Asked if Mueller could legally indict a sitting president, Pelosi said: “Let’s just see what Mueller does. Let’s spend our time on getting results for the American people.”

The Office of Legal Counsel’s guidance, issued in 2000, says, “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

“It’s not the law,” Pelosi told Guthrie. “Everything indicates that a president can be indicted after he is no longer president of the United States.”

Guthrie asked, “What about a sitting president?”

“Well, a sitting president when he is no longer president of the United States,” Pelosi answered.

Guthrie pressed again, asking, “A president who’s in office? Could Robert Mueller come back and say, ‘I am seeking an indictment?'”

“I think that is an open discussion,” Pelosi said. “I think that’s an open discussion in terms of the law.”

She also did not rule out impeachment proceedings against Trump.

“We have to wait and see what happens with the Mueller report,” Pelosi said. “We shouldn’t be impeaching for a political reason, and we shouldn’t avoid impeachment for a political reason.”

I’m totally okay with Pelosi making comments that will emasculate Trump in front of his base, particularly when it highlights his failed campaign promises, starting with his idiotic promise that Mexico would pay for his wall. I think making him appear as the weak coward he is is a necessary step to begin to chip away at unquestioning support among his supporters.

But I keep thinking back to something I raised in this post, where I pointed out that the increasing likelihood Trump Organization might be targeted by prosecutors might change Trump’s calculus as he tries to retain power.

If I’m right, there are a whole slew of implications, starting with the fact that (as I laid out on a Twitter rant this morning), it utterly changes the calculation Nixon faced as the walls started crumbling. Nixon could (and had the historical wisdom to) trade a pardon to avoid an impeachment fight; he didn’t save his presidency, but he salvaged his natural person. With Trump, a pardon won’t go far enough: he may well be facing the criminal indictment and possible financial ruin of his corporate person, and that would take a far different legal arrangement (such as a settlement or Deferred Prosecution Agreement) to salvage. Now throw in Trump’s narcissism, in which his own identity is inextricably linked to that of his brand. And, even beyond any difference in temperament between Nixon and Trump,  there’s no telling what he’d do if his corporate self were also cornered.

In other words, Trump might not be able to take the Nixon — resign for a pardon — deal, because that may not be enough to save his corporate personhood.

For virtually every other legal situation, it seems to me, existing in both natural and corporate form offers protection that can save both. But if you’re the President of the United States, simultaneously existing — and criminally conspiring — in corporate form may create all sorts of additional exposure any normal President would normally be protected from.

I think this is true not just of the presidency, though. I think it was almost immediately true of the Russian investigation, as exhibited by the emails KT McFarland sent from Mar-a-Lago as the Trump Transition responded to Obama’s sanctions on Russia.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

There are many reasons that might explain why Trump responded to punishment of Russia the way he did: because he knew the Russians did have some role in his win, because he is a paranoid freak who always suspects an ulterior motive to hurt him.

Ultimately, though, it’s about his narcissism. Trump cannot admit any failures, any weakness. And admitting that he didn’t win the election fair and square would be like admitting that he had fewer inauguration visitors than Obama did.

I’m fairly confident that Trump thoroughly compromised himself with his eagerness to deal with the Russians for a Tower, for election help, for whatever else they demanded in response. I’m fairly confident that Putin has receipts from that compromise which creates a real dilemma for Trump on whether Mueller or Putin poses the biggest threat.

Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).

At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

For example, on or about July 27, 2016, the Conspirators  attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

But ultimately there is one other factor that makes Trump more self-destructively defensive about this investigation than he otherwise would be: his narcissism.

And while I’d welcome his utter humiliation before the world stage, I also believe that any single-minded pursuit of that humiliation will only increase the likelihood he’ll dig in, regardless of the damage that doing so will do to the country.

Even if we do get to the point where indictment or impeachment became viable (and I’m not sure we will), it’s worth thinking about whether pursuing either one might just trigger a narcissistic response that will only lead Trump to do further damage to this country. If we provide Trump an off-ramp that allows him to preserve some of his destructive ego, it may do less damage to the country.

Update: Fixed Guthrie’s first name–apologies to her for the error. h/t jk

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. 

Michael Cohen and Felix Sater’s Evolving Cooperation against Trump

Among the things I remain most amazed by, in the Russian investigation, is that even while Trump and the GOP are trying to discredit the Mueller investigation by claiming, without evidence, that the Deep State had a bunch of informants infiltrate Trump’s campaign, no one has ever alleged that Felix Sater had been sent by the Deep State, even though he had a known background of being an informant for the Deep State before this whole thing began. And while Trump has attacked Michael Cohen viciously since he discovered (after his personal lawyer got raided by the Feds), that Cohen had recordings that exposed Trump personally, it still seems that Cohen and Sater may be shading their coordinated testimony to protect Trump from the worst implications of the Trump Tower deal. I’ve even heard chatter that Cohen remained in touch with Trump as recently as September.

I argued back in August 2017 that Mueller had seemed to form a prosecutorial team with the lessons his FBI learned via Felix Sater. That was before BuzzFeed reported in March that Sater actually had ties to six of Mueller’s prosecutors, starting with Andrew Weissmann.

Today, as he is being questioned about Trump’s business deals and ties to Russia, he has built relationships with at least six members of special counsel Robert Mueller’s team, some going back more than 10 years.

[snip]

Signing Sater’s cooperation agreement for the Department of Justice was Andrew Weissmann, then an assistant US attorney and now a key member of the special counsel’s team. Mueller himself would be the FBI director for most of the time Sater served as a source.

Even given the extensive background Mueller’s team has with Sater, they seem to have delayed interviewing him until fairly late in the process: December 2017. And it looks like Sater was no more forthright when he first met with Congress (and therefore possibly even Mueller’s team) than Cohen was.

In anticipation of today’s sentencing filings, I’d like to track the evolving stories on the Trump Tower deal, because I’m genuinely curious whether Cohen has now been more forthcoming than Sater.

May 31, 2017: Cohen and his lawfirm subpoenaed by HPSCI. Facing the problems with the Trump Tower story would have come up within weeks of Jim Comey’s firing, when the House Intelligence Committee — which was still conducting a marginally credible investigation — first asked and then subpoenaed him for documents. Ironically, they were likely after documents pertaining to the Steele dossier allegations, which may have been why Devin Nunes so readily assented to a subpoena. Those allegations have amounted to nothing, thus far.

July 8, 2017: First report on June 9 meeting creates a rush for testimony on that topic.

July 19, 2017: SJC requests documents from Trump organization. The request was written targeted specifically to the influence campaign, not ties with Russia generally, though it should have at least obligated Trump Organization to preserve the company’s contacts with Russian government officials.

If this has not yet been done, we ask that you immediately take steps to preserve all relevant documents in the possession, custody, or control of the Trump Organization related to Russian interference in the 2016 election, including documents related to the Trump Organization’s or Trump campaign’s3 contacts with: Russian government officials, associates, or representatives; any individuals who purported to act or whom were believed to be acting on behalf of Russian government officials, associates, or representatives; anyone who might have been involved in or in receipt of information obtained as a result of Russia’s influence campaign

But Sater was not among those it included in the communication list.

all communications to, from, or copied to the Trump Organization relating to Rob Goldstone, Emin Agalarov, Aras Agalarov, Natalia Veselnitskaya, Rinat Akhmetshin, Anatoli Samochornov, Irakly (Ike) Kaveladze, Christopher Steele, Aleksej Gubarev, Webzilla B.V., XBT Holdings S.A., Alfa Group, Dmitry Peskov, Vladimir Putin, the Ritz Carlton Moscow Hotel, Paul Manafort, Carter Page, Igor Sechin, Sergei Ivanov, Igor Divyekin, Sergei Millian, Dmitry Medvedev, Michael Flynn, Jill Stein, Michael Cohen, Konstantin Kosachev, Viktor Yanukovych, Corey Lewandowski, Sergei Kislyak, Yuri Ushakov, Anton Vaino, Mikhail Kalugin, Andrei Bondarev, Mikhail Fridman, Petr Aven, German Khan, Oleg Govorun, Sergey Lavrov, Rosneft, Sergei Kiriyenko, Oleg Solodukhin. This shall include any documents referring to any of the aforementioned using alternate spellings, pseudonyms, nicknames, abbreviations, or codes;

The very same day SJC submitted a document request that would not cover Trump’s business ties to Russia, the NYT published the interview in which it obediently set a “red line” on Trump’s businesses that Mueller should not cross.

August 27-28, 2017: Probably because of the way the June 9 meeting was disclosed, Congress more aggressively pursued testimony on it than on other issues. As a result, Don Jr got a request — and an early hearing date — for testimony from the Senate Judiciary Committee. In the lead-up to that (and to his own SSCI interview), Michael Cohen conducted a preemptive limited hangout on the Trump Tower story. It started with a WaPo scoop that cited several people familiar with the proposal when telling Cohen’s partial version, one of whom must be Cohen.

Trump never went to Moscow as Sater proposed. And although investors and Trump’s company signed a letter of intent, they lacked the land and permits to proceed and the project was abandoned at the end of January 2016, just before the presidential primaries began, several people familiar with the proposal said.

The next day, the Trump Organization turned over [some, but obviously not all of the] emails on the deal to Congress, leading to more reporting on it. At the same time, Cohen turned over a statement on the projected project, the following parts of which got quoted in his statement of the offense.

The proposal was under consideration at the [Company] from September 2015 until the end of January 2016 . By the end of January 2016 , I determined that the proposal was not feasible for a variety of business reasons and should not be pursued further . Based on my business determinations, the [Company] abandoned the [Moscow Project] proposal . To the best of my knowledge , [Individual l] was never in contact with anyone about this proposal other than me on three occasions . I did not ask or brief [Individual l] , or any of his family , before I made the decision to terminate further work on the proposal.

I primarily communicated with the Moscow- based development company . through a U. S . citizen third- party intermediary , [Individual 2] . [ Individual 2] constantly asked me to travel to Moscow as part of his efforts to push forward the discussion of the proposal . I ultimately determined that the proposal was not feasible and never agreed to make a trip to Russia . Despite overtures by [Individual 2] , I never considered asking [Individual l] to travel to Russia in connection with this proposal .

In mid- January 2016 , [Individual 2] suggested that I send an email to [Russian Official l] , the Press Secretary for the President of Russia , since the proposal would require approvals within the Russian government that had not been issued . Those permissions were never provided . I decided to abandon the proposal less than two weeks later for business reasons and do not recall any response to my email , nor any other contacts by me with [Russian Official l] or other Russian government officials about the proposal

Also that day, WSJ reported another part of the cover story: that Cohen had talked to Trump about it, but just three times. Later that day, WSJ published an interview with Cohen who described, in helpful detail for anyone trying to coordinate stories, the three contacts with Trump about it he admitted to.

In 2015, Mr. Cohen said, he informed the then-candidate that he was working on a licensing deal for a Trump Tower in Moscow. He subsequently asked for and received Mr. Trump’s signature on a nonbinding letter of intent for the project in October 2015. And in January 2016, he said, he informed the then-candidate that he had killed the proposal. Mr. Cohen said each conversation was brief.

NYT, too, picked up the story, even republishing fragments of emails sent during 2015. It did repeat Felix Sater’s boast that by building a Trump Tower it could get Trump elected. However, it quotes Sater seemingly backing the shortened (September 2015 through January 2016) timeline of the deal.

“During the course of our communications over several months, I routinely expressed my enthusiasm regarding what a tremendous opportunity this was for the Trump Organization,” Mr. Sater said.

By August 28, all media outlets had focused on the January 2016 Cohen email to the general press line for Dmitri Peskov, which was attention getting (because it involved Putin’s close aide) but could also be pitched to show (because Cohen used the general press line rather than a more direct line to Peskov) how few contacts with Russia Cohen purportedly had. Trump Organization provided a statement that mirrored Cohen’s lie that the deal had died in January 2016. It is clear that Cohen and Trump Organization coordinated this roll-out. Yet Cohen has not yet publicly disclosed that coordination.

August 30, 2017: On August 30, Dmitri Peskov substantially backed Cohen’s story. Notably, he denied knowing either Cohen or Sater and said that Vladimir Putin had never known about the deal. It’s possible — likely, even — that Peskov was just taking cues from Cohen’s public leaks of his cover story, though it would awfully damning if this coordination went further.

August 31, 2017: Then, Cohen released the letter his attorney had sent — two weeks earlier — along with two earlier tranches of documents for Congress. Having done his limited hangout of the Moscow deal, releasing the letter that focused entirely on his denials with respect to the Steele dossier shifted the focus back on that.

September 7, 2017: SJC interviews Don Jr. While he didn’t tell huge lies, he nevertheless claimed to know “very little” about the 2015-2016 Trump Tower Moscow deal, being only “peripherally aware” of the negotiations. Perhaps his most specific lie was that he did not know of Trump lawyer Michael Cohen’s outreach to the Kremlin seeking President Vladimir Putin’s help on the deal until that news had been reported by the press just weeks earlier.

September 19, 2017: Cohen attempts to preempt an interview with SSCI by releasing a partial statement before testifying, only to have SSCI balk and reschedule the interview. The statement alluded to, but did not incorporate, the statement on the Trump Tower deal he had released on August 28, though even his allusion to it included lies.

I assume we will discuss the rejected proposal to build a Trump property in Moscow that was terminated in January of 2016; which occurred before the Iowa caucus and months before the very first primary. This was solely a real estate deal and nothing more. I was doing my job. I would ask that the two-page statement about the Moscow proposal that I sent to the Committee in August be incorporated into and attached to this transcript.

October 24, 2017: HPSCI interviews Cohen. The timing of the interviews of the three players in the Trump Tower deal is rather curious, especially given Richard Burr’s recent suggestions the committee is working closely with Mueller. SSCI got Cohen and Don Jr on the record during the same period HPSCI was getting all three on the record. But SSCI doesn’t yet get Sater on the record, and it’s not until that same time period (presumably after the HPSCI interview) until Mueller gets Sater, even with his long relationship with six of Mueller’s team members, on the record. As the HPSCI report makes clear, however, as late as December 14, Sater was still telling a story that conflicts with the story both he and Cohen are currently telling.

October 25, 2017: SSCI interviews Cohen.

December 6, 2017: HPSCI interviews Don Jr. Of the three men, Don Jr gets closest to the truth in his interview with HPSCI, but in ways that conflict with his September SJC testimony.

December 13, 2017: SSCI staff interviews Don Jr.

December 14, 2017: HPSCI interviews Felix Sater in his lawyers’ NYC office.

December 2017: Mueller interviews Sater.

March 5, 2018: Mueller adds questions about the Trump Tower deal to those he wants Trump to answer. Note, this comes in the wake of Rick Gates’ cooperation deal; we still do not know what senior campaign official knew of Cohen’s attempts to travel to Russia as part of the Trump Tower deal but it’s possible Gates was in the loop on it.

March 12, 2018: BuzzFeed’s first long piece relying on Felix Sater focuses (like his statement to HPSCI) on his time as an informant, not the Trump Tower deal. It does, however, provide an unsatisfying explanation for why he thought building a Trump Tower would help Trump get elected.

Did he think the Trump Moscow deal could get Trump elected?

Even Trump “is fucking surprised he became the president.”

Then why send that email?

“If a deal can get done and I could make money and he could look like a statesman, what the fuck is the downside, right?”

It also includes details on the Ukrainian deal, and ends with Sater’s insistence (among comments explaining why he won’t say mean things about Trump) that once Trump leaves office he intends to build Trump Tower.

“First thing I plan to do when Trump leaves office, whether it’s next week, in 2020 or four years later, is march right into his office and say, ‘Let’s build Trump Moscow.’

“I’m serious.”

It also shows that the statement Sater gave to HPSCI doesn’t address his involvement with Trump at all, but instead focuses on his service as an informant. Which may explain the gratuitous statement on those activities in HPSCI’s report.

March 15, 2018: NYT reports that Mueller has subpoenaed Trump Org for documents relating to Russia, which it uses to suggest Mueller is inching closer to the false red line the NYT so obediently set in August 2017. Keep in mind: by this point the known witnesses on Trump Tower had claimed there was no follow-up on the Peskov email, which suggests they had reason to believe the discovery shared with Congress (which is what Mueller got in the first round) did not tell the complete story. If Gates was in the loop on the Cohen negotiations, Mueller would have known by that point that Trump Organization had withheld responsive documents.

March 22, 2018: HPSCI releases Russia Report. It shows that both Sater and Cohen were telling the same cover story when they met with the committee in October and December 2017, respectively, Don Jr’s December testimony was closer to the truth (and as such probably in conflict with his September testimony to SJC). But as the bolded passages make clear, HPSCI had a pretty good idea they were being lied to.

In approximately September 2015, he received a separate proposal for Trump Tower Moscow from a businessman named [Sater] According to Cohen, the concept of the project was that “[t]he Trump Organization would lend its name and management skills, but It was not going to borrow any money and it would not have any resulting debt for the purchase of the land and the building of the facility.”;~ Cohen worked on this idea with [Sater] and his company, the Bayrock Group, a real estate consultancy that had previously worked with the Trump Organization.

[gratuitous paragraph on what a colorful fellow Sater is — see note on statement, above]

(U) After signing a letter of intent with a local developer in October 2015,36 Cohen and [Sater] exchanged a number of emails and text messages in late 2015 detailing their attempts to move the project forward. For instance, in December 2015, [Sater] tried to get Cohen and candidate Trump to travel to Russia to work on the project.

(U) Several of [Sater’s] communications with Cohen involved an attempt to broker a meeting or other ties between candidate Trump and President Putin, and purported to convey Russian government interest in the project. Perhaps most notably, [Sater] told Cohen in a November 3, 2015, email, “[b]uddy our boy can become President of the USA and we can engineer it.” 39 [Sater] continued that if “Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . .. Donald owns the republican nomination.” 10 This assertion apparently arose from [Sater’s] rather grandiose theory that cementing a deal with a hostile U.S. adversary would increase candidate Trump’s foreign policy bona fides.41

(U) Sater testified that his communications with Cohen regarding President Putin were ”mere puffery,” designed to elicit a response from the · Trump Organization to move the project along.42 [Sater] explained that “[u]ntil the bank writes the check, it’s all salesmanship and promotion to try to get many, many, many parties towards the center to try to get the deal done.” 43 Cohen similarly characterized [Sater] as “a salesman” who “uses very colorful language.”44

(U) When the project started proceeding too slowly for the Trump Organization,45 Cohen and [Sater] began to exchange acrimonious text messages. 46 As part of those text messages [Sater] told Cohen that President Putin’s people were backing the deal, including “this is thru Putins [sic] administration, and nothing gets done there without approval from the top,” as well as meetings in Russia with “Ministers” and “Putins [sic] top administration people.”] [Sater] also mentioned Dmitry Peskov (President Putin’s spokesman) would “most likely” be included. 48

(U) Cohen thus attempted to reach out to members of the Russian government in an attempt to make the project proceed, but apparently did not have any direct points of contact. for example, Cohen sent an email to a general press mailbox at the Kremlin in an effort to reach Peskov.49 Cohen’s message notes that he has been working with a local partner to build a Trump Tower in Moscow and that communications have stalled with the local partner.50 The email further seeks contact with Peskov so they may ” discuss the specifics as well as arrang[e] meetings with the appropriate individuals.”51 Based on the documents produced to the Committee, it does not appear Cohen ever received a response from anyone affiliated with the Russian government.

(U) [Sater’s] testimony likewise made clear that neither President Putin nor any element of the Russian government was actually directly involved in the project. For instance, in one exchange, [Sater] testified he was offering the Trump Organization access to one of his acquaintances. This acquaintance was an acquaintance of someone else who is “partners on a real estate development with a friend of Putin’s.” 52

[Sater] testified that he was unaware of “any direct meetings with any [Russian] government officials” in connection with the Trump Tower Moscow project.53 In addition, neither candidate Trump nor Cohen traveled to Russia in support of the deal.54

[U] It appears the Trump Tower Moscow project failed in January 2016.57 Trump Jr. testified that, as of early June 2016, he believed the Trump Tower Moscow project was dormant.53 The project failed because “[t]he due diligence did not come through” and the Trump Organization’s representative “lost confidence in the licensee, and [he] abandoned the project.”59 In fact, the Trump Organization did not have a confirmed site, so the deal never reached the point where the company was discussing financing arrangements for the project.60 The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.61

So by March 22, at least some of the people with influence over the HPSCI report (it’s unclear whether Democrats had any influence on the final product at this point at all) had doubts about whether Cohen got a response from the Kremlin, used hedged language about whether either candidate Trump or Cohen planned on traveling to Russia (a particularly important hedge, as Cohen appears to have made plans to do so specifically in response to the June 9 meeting), and didn’t entirely believe the deal failed in January. Indeed, Don Jr’s language suggested it continued afterwards.

April 4, 2018: SSCI interviews Felix Sater. Given that Sater almost certainly lied in his Mueller interview — given its proximity to the interview with HPSCI where he told the cover story — this may have been an attempt to see what the interim story would be. Note that it immediately precedes the Cohen raid. The BuzzFeed story published the following month, which noted discrepancies between Sater’s then currently operative story and Cohen’s, suggests that Sater did provide more of the truth to SSCI, noting, for example, that Trump got regular updates.

Last month, Senate Intelligence Committee staffers peppered Sater for hours with questions about the Trump Moscow project. Sater testified that Cohen acted as the “intermediary” for Trump Moscow and was eager to see the deal through because he wanted to “score points with Trump.”

Sater also testified that Trump would regularly receive “short updates about the process of the deal.”

And it revealed the plans went on into “at least” June.

[N]ew records show he was still working on it with Sater at least into June. In May, six weeks before the Republican National Convention in Cleveland, Sater asked Cohen when he and Trump would go to Moscow. In a text message, Cohen replied: “MY trip before Cleveland. Trump once he becomes the nominee after the convention.”

April 9, 2018: Cohen raided by SDNY, based on a subpoena that names “many” people. In litigation that follows, SDNY made several claims about Cohen’s cooperation to this point, including fact-checking whether or not he has been fully cooperative with Mueller’s inquiry. Key to that was Cohen’s efforts to limit what Trump Organization turned over.

Cohen also states that the SCO “had requested that the Trump Organization produce all of Mr. Cohen’s communications that were within the Trump Organization’s custody, possession, or control,” and that Cohen objected “on the grounds that [the request] called for production of privileged communications, among other things.” (Br. 8-9). Although in the ordinary course, the USAO-SDNY would not comment on investigative requests or demands made to third parties, particularly those from a separate office undertaking its own, independent investigation, in light of the representations made by Cohen’s counsel, USAO-SDNY contacted the SCO about these representations and understands they are not accurate. In particular, the SCO did not request that the Trump Organization produce “all communications” by Cohen in the Trump Organization’s possession or control irrespective of subject matter or privilege. Indeed, the request made by the SCO was considerably narrower, and specifically omitted, among other things, any documents that were protected by privilege or of a purely personal nature. Cohen nonetheless objected to that request for documents and, after discussions between Cohen’s counsel and the SCO, the SCO decided not to seek production at that time. That Cohen sought to preclude the Trump Organization from producing these third party communications belies both (i) his general assertion of cooperation, and (ii) his stated principal interest in protecting attorney-client communications. Indeed, a careful review of Cohen’s motion papers reveals that he does not purport to have personally produced any documents to the SCO.

The SDNY statement also included a redacted passage suggesting that Cohen (or perhaps Trump Organization?) may have already destroyed evidence.

Elsewhere, the filing notes that “USAO-SDNY has already obtained search warrants – covert until this point – on multiple different email accounts maintained by Cohen,” which may by why they knew he might delete things.

For its part, Trump Organization tried to demand every single thing written between Cohen and the Trump Organization to be treated as privileged.

We consider each and every communication by, between or amongst Mr. Cohen and the Trump Organization and each of its officers, directors and employees, to be subject to and protected by the attorney- client privilege and/or the work-product privilege.

May 17, 2018: BuzzFeed presents what it calls the definitive story on Trump Tower deal, relying on “emails, text messages, congressional testimony, architectural renderings, and other documents.” As noted above, in the guise of telling BuzzFeed what his April testimony had been to SSCI, Sater admitted that Trump had gotten regular updates and that the deal went on into at least June.

But there were details that, the story made clear, Sater was still hiding. That includes the name of someone Sater and the developer, Andrey Rozov, met in early November 2015, in the Bahamas.

About a week after Trump signed the document, Sater and Rozov, the developer, went on vacation to the Bahamas. Rozov rented Little Whale Cay, a private island, for $175,000, and the two men went diving and spearfishing. In an email, Sater told Cohen that another, unidentified friend was flying in to join them. This mystery individual, who is not named in the documents and whom Sater would not identify, knew two of the richest and most powerful men in Russia, the Rotenberg brothers.

And there are differences between what Sater said publicly and what Cohen said. Sater focuses on this follow-up in the wake of Cohen’s attempt to reach Peksov.

Four days later, Cohen received a letter from Andrey Ryabinskiy, a Russian mortgage tycoon and boxing promoter. “In furtherance of our previous conversations regarding the development of the Trump Tower Moscow project,” Ryabinskiy wrote, “we would like to respectfully invite you to Moscow for a working visit.” The meeting would be to tour plots of land for the potential tower, to have “round table discussions,” and to coordinate a follow-up visit by Trump himself. Ryabinskiy did not return a message left with his attorney.

It is not clear how Cohen responded, but Sater asked Cohen for travel dates for both Cohen and Trump the same afternoon Ryabinskiy sent the letter. “Will do,” Cohen wrote.

Sater’s story doesn’t reflect the discussion with Peskov’s assistant that Cohen’s current story does.

Perhaps most remarkably, Sater seems to telegraph to Cohen a story about messages from between January and May being lost.

Sater has told investigators that during the first months of 2016, he and Cohen were using Dust, at Cohen’s suggestion, to communicate secretly about the Moscow project. Those messages, which were encrypted and are deleted automatically, have disappeared forever, Sater told BuzzFeed News. But on May 3, the day Trump won the Indiana primary and his top opponent Ted Cruz suspended his campaign, Sater sent Cohen an ordinary text message: “Should I dial you now?”

The claim that Sater and Cohen shifted to Dust and then shifted back to iMessage to plan travel in May doesn’t make any sense, and suggests something else is going on.

Finally, Sater’s story makes no mention of what Sater was doing in Trump Tower on July 21, ending instead with a dubious story about seeing a July 26 Trump tweet denying any business deals in Russia and realizing the deal was over. Anyone who knows Trump as well as Sater must, has to know that a public statement from Trump as often as not means the opposite of what he says. As I’ve suggested, it seems that the deal didn’t die, it just moved under a Sergei Millian and George Papadopoulos carried rock.

June 20, 2018: Cohen steps down from RNC position.

July 27, 2018: Sources claim Cohen is willing to testify he was present, with others, when Trump approved of the June 9 meeting with the Russians.

August 7, 2018: First Cohen proffer to Mueller.

August 21, 2018: Cohen pleads guilty to SDNY charges. Warner and Burr publicly note that Cohen’s claim to know about the June 9 meeting ahead of time conflicts with his testimony to the committee.

September 12, 2018: Second proffer.

September 18, 2018: Third proffer.

October 8, 2018: Fourth proffer.

October 17, 2018: Fifth proffer.

November 12, 2018: Sixth proffer.

November 20, 2018: Seventh proffer.

November 29, 2018: Cohen pleads guilty to false statements charge. In his statement to the court, he does not say that Trump (or anyone else at Trump Organization) ordered him to lie. Rather, he said that he did so to be consistent with Trump’s messaging.

I made these statements to be consistent with Individual-1’s political messaging and out of loyalty to Individual-1,

In his official statement, Rudy claims that Trump Organization turned over the documents underlying Cohen’s plea, which is almost certainly a lie.

It is important to understand that documents that the Special Counsel’s Office is using to show that Cohen lied to Congress were voluntarily disclosed by the Trump Organization because there was nothing to hide.

After the plea, Rudy gives an unbelievably hedged statement about whether the Trump Tower deal ever really died.

“The president, as far as he knows, he remembers there was such a proposal for a hotel,” Giuliani said. “He talked it over with Cohen as Cohen said. There was a nonbinding letter of intent that was sent. As far as he knows it never came to fruition. That was kind of the end of it.”

The day of Cohen’s plea, Sater provided BuzzFeed with materials and describes that he suggested giving Vladimir Putin a penthouse to make Trump Tower more lucrative. But he describes that as a marketing gimmick, not a FCPA-prohibited bribe that would further compromise Trump in his relationship with Putin.

Sater told BuzzFeed News today that he and Cohen thought giving the Trump Tower’s most luxurious apartment, a $50 million penthouse, to Putin would entice other wealthy buyers to purchase their own. “In Russia, the oligarchs would bend over backwards to live in the same building as Vladimir Putin,” Sater told BuzzFeed News. “My idea was to give a $50 million penthouse to Putin and charge $250 million more for the rest of the units. All the oligarchs would line up to live in the same building as Putin.” A second source confirmed the plan.

Given that BuzzFeed says this involved a Peskov representative, Sater may have been trying to hide this detail when he provided a different emphasis on the negotiations in the interviews leading up to the May story than Cohen did in his false statements admission (that is, Sater may have responded to seeing Cohen admit that detail by calling up BuzzFeed to provide a new limited hangout).

December 5, 2018: In his sentencing memorandum, Cohen repeats his line, from the oral statement he gave during his guilty plea, that he lied of his own accord.

Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then-champion of Client-1, to support and advance Client-1’s political messaging. At the time that he was requested to appear before the Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence, Michael was serving as personal attorney to the President, and followed daily the political messages that both Client-1 and his staff and supporters repeatedly and forcefully broadcast. Furthermore, in the weeks during which his then counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House-based staff and legal counsel to Client-1.

As such, he was (a) fully aware of Client-1’s repeated disavowals of commercial and political ties between himself and Russia, as well as the strongly voiced mantra of Client-1 that investigations of such ties were politically motivated and without evidentiary support, and (b) specifically knew, consistent with Client-1’s aim to dismiss and minimize the merit of the SCO investigation, that Client-1 and his public spokespersons were seeking to portray contact with Russian representatives in any form by Client-1, the Campaign or the Trump Organization as having effectively terminated before the Iowa caucuses of February 1, 2016.

Seeking to stay in line with this message, Michael told Congress that his communications and efforts to finalize a building project in Moscow on behalf of the Trump Organization, which he began pursuing in 2015, had come to an end in January 2016, when a general inquiry he made to the Kremlin went unanswered. He also stated that his communications with Client-1 and others in the Trump Organization regarding the project were minimal and ceased at or about the same time. In fact, Michael had a lengthy substantive conversation with the personal assistant to a Kremlin official following his outreach in January 2016, engaged in additional communications concerning the project as late as June 2016, and kept Client-1 apprised of these communications. He and Client-1 also discussed possible travel to Russia in the summer of 2016, and Michael took steps to clear dates for such travel.

In the heated political environment of the moment and understanding the public message that Client-1 wished to propagate, Michael, in his written statement to Congress, foreshortened the chronology of events and his communications with Client-1 to characterize both as having terminated before the Iowa caucuses. At the time, Michael justified his false summary of the matter on the ground that the Moscow project ultimately did not go forward. He recognizes that his judgment was fundamentally wrong, and wishes both to apologize and set the record straight.

Of course, this statement depends on the truth of the claim that the deal did not go forward — something about which Trump’s lawyer seems unconvinced and about which there is some evidence to the contrary. That is, this seems to be an effort to shift the date of the agreement to June or maybe July, when the deal was still active in January 2017 when Papadopoulos lied to try to keep his hand in that deal or even still active (as Sater said for the May story) for when Trump leaves office.

But the other problem with it is that Cohen’s explanation that he made up this cover story on his own, as a kind of mirror of Trump’s concerns rather than specifically conspiring to do so, only makes sense if he was the only person to tell this lie. But, at a minimum, Sater did, and Don Jr appears to have told a version of it. Now, it’s certainly possible that Cohen and Sater coordinated their story by leaking to the press; that’s the purpose the BuzzFeed stories seem to serve.

But if, as seems virtually certain, Trump Organization didn’t turn over any communications that would conflict with that cover story, then Cohen must have coordinated with Trump Organization, at a minimum. And given how Cohen stops short of attributing this move to Trump’s orders, whereas on the Stormy payoff he does attribute it to Trump, it seems to shy away from implicating Trump as much as must have happened.

Far more importantly, Russia seemed to know the outlines of the cover story, with Peskov matching what Cohen was saying (and Peskov has now matched Cohen’s currently operative story).

Given their past clear efforts to craft a joint limited hangout, and given a lot of other details about this story that don’t make sense, it seems that Cohen and Sater may still be working Mueller’s prosecutors (whom Sater knows as well as anyone).

That’s one thing we may get a sense of from the sentencing memo due by 5PM today. In any case, Cohen won’t get a 5K letter like Mike Flynn did. He still has some cooperating to do before Mueller will give him that. So if I’m right, he may still be caught in a dangerous game.

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. 

The Trump Organization Is Not the Sitting President

In his sentencing memorandum submitted late last night, Michael Cohen laid out what investigations he has cooperated with so far:

Beginning before the entry of his plea on August 21, 2018, and continuing thereafter through late November, Michael participated in seven voluntary interview meetings with the Special Counsel’s Office of the Department of Justice (“SCO”). He intends to continue to make himself available to the SCO as and when needed for additional questioning. He also agreed to plead guilty to an additional count, namely, making false statements to Congress, based in part on information that he voluntarily provided to the SCO in meetings governed by a limited-use immunity proffer agreement.

[snip]

Michael has also voluntarily met twice with representatives of the Office, and responded to questions concerning an ongoing investigation. In connection with this inquiry, he intends to continue to make himself available as and when needed by the Office.

Michael has similarly met voluntarily with representatives of the New York State Office of the Attorney General (“NYAG”) concerning a state court action in which the NYAG has sued the Donald J. Trump Foundation and certain individual defendants, including Donald J. Trump. He also provided the NYAG with documents concerning a separate open inquiry. As above, Michael intends to make himself available to the NYAG to provide any additional cooperation it may request in these matters.

So:

  1. The Mueller investigation
  2. An open SDNY investigation (possibly just the one on campaign finance violations Cohen pled to, possibly more)
  3. NYS’ Trump Foundation lawsuit
  4. Another NYS investigation

That puts Trump’s eponymous organizations — his company and his foundation — squarely in the bullseye of law enforcement. The known details of all those puts one or the other Trump organization as an actor in the investigation. And we’ve already seen hints that the Trump Organization was less than responsive to some document requests from Mueller, such as this detail in a story on the Trump Tower deal:

According to a person familiar with the investigation, Cohen and the Trump Organization could not produce some of the key records upon which Mueller relies. Other witnesses provided copies of those communications.

If there’s a conspiracy to obstruct Mueller’s investigation, I’m fairly certain the Trump Organization was one of the players in it.

This is something I started thinking more about after reading this Walter Dellinger analysis of the OLC opinions on whether you can indict a sitting President (which is a really worthwhile read in any case). He notes how, once the President (or Vice President) enters into a conspiracy, you’ve got to name him, whether or not you indict him, to properly lay out the conspiracy.

The Jaworski filing notes how critical it is to identify the president as one of the criminal accused: “the identification of each co-conspirator — regardless of station — is a prerequisite to making his declarations in furtherance of the conspiracy admissible against the other conspirators.”

Although the brief concludes that “it is by no means clear that a President is immune from indictment” during his term, the special prosecutor chose not to indict the sitting president on the basis of “practical arguments.” Those arguments, however,

cannot fairly be stretched to confer immunity on the President from being identified as an unindicted co-conspirator, when it is necessary to do so in connection with criminal proceedings against persons unquestionably liable to indictment.

Naming the president as an unindicted co-conspirator was necessary for the grand jury to return a “true bill,” Jaworski argued, and “required here to outline the full range of the alleged conspiracy.” There exists, moreover, “a legitimate public purpose in reporting the fact that serious criminal charges against a government official have been made.”

The mere fact that an official has a personal immunity from prosecution does not bar the prosecution from alleging and proving his complicity as part of a case against persons who have no such immunity.

It would not be fair “to the defendants … to blunt the sweep of the evidence artificially by excluding one person, however prominent and important, while identifying all others.”

It made me realize something has been missing from every analysis of the indictment question I’ve seen: whether you can indict a sitting President’s eponymous corporate entities. Under Dellinger’s analysis, you’d have to include the Trump Organization in any conspiracy involving a Trump Tower in Moscow — it was the entity that signed the Letter of Intent, would be the entity that would obtain funding, and would be the entity that would profit.

But the Trump Organization did not get elected the President of the United States (and while the claims are thin fictions, Trump has claimed to separate himself from the Organization and Foundation). So none of the Constitutional claims about indicting a sitting President, it seems to me, would apply.

If I’m right, there are a whole slew of implications, starting with the fact that (as I laid out on a Twitter rant this morning), it utterly changes the calculation Nixon faced as the walls started crumbling. Nixon could (and had the historical wisdom to) trade a pardon to avoid an impeachment fight; he didn’t save his presidency, but he salvaged his natural person. With Trump, a pardon won’t go far enough: he may well be facing the criminal indictment and possible financial ruin of his corporate person, and that would take a far different legal arrangement (such as a settlement or Deferred Prosecution Agreement) to salvage. Now throw in Trump’s narcissism, in which his own identity is inextricably linked to that of his brand. And, even beyond any difference in temperament between Nixon and Trump,  there’s no telling what he’d do if his corporate self were also cornered.

In other words, Trump might not be able to take the Nixon — resign for a pardon — deal, because that may not be enough to save his corporate personhood.

For virtually every other legal situation, it seems to me, existing in both natural and corporate form offers protection that can save both. But if you’re the President of the United States, simultaneously existing — and criminally conspiring — in corporate form may create all sorts of additional exposure any normal President would normally be protected from.

Update, 12/9: I’ve changed the title of this post, in part because comments here and on Twitter have convinced me that Mike Pence could pardon Trump Organization. The central point — that Trump seems to be ignoring the risk to his eponymous businesses — remains.

The Trump Team’s Strategic Errors: Special Master Edition

Between Michael Cohen’s guilty plea and Paul Manafort’s guilty verdict, I’m struck this week by how badly two strategic decisions they made have failed. I’ll return to the issue of Manafort’s “rocket docket” strategy. Here, however, I’d like to note how little Michael Cohen and Donald Trump (AKA Individual-1) gained by fighting to have a special master review the materials seized in the April 9 raid of Cohen’s property.

As you recall, the Southern District of NY planned to use a taint team — basically, a second set of prosecutors — to sort through Cohen’s possessions. But Cohen and (especially) Trump complained about the impropriety of doing so when the President is one of the clients involved. Cohen invented an attorney-client relationship with Sean Hannity.

And after listening to all those arguments,on April 27, Judge Kimba Wood appointed Barbara Jones special master to make privilege determinations. It was definitely the right decision for the legitimacy of the proceeding. It might even have gotten the review done as quickly as SDNY could have done so.

But Trump and Cohen gained very little beyond what will end up being more than half a million dollar bill for their troubles. (Jones’ invoices for labor through the end of July, which are being split 50-50 between the plaintiffs — Cohen, Trump, and Trump Organization — and SDNY, add up to $1,050,022.)

It started on June 4, when Jones issued her first report on the hard copy documents and three devices that were the first things she received. Of the 172 items the plaintiffs tried to claim privilege over, she agreed in just 169 cases. Jones disagreed with the claims about three items (the circumstances with this report are murky, as she later reconsidered one item, and this appears to be the batch of materials from which Cohen and Trump later decided to reverse their privilege claim surrounding 12 recordings).

On June 6, the president’s lawyer, Joanna Hendon, wrote Kimba Wood on behalf of Trump, Cohen, and the Trump Organization, requesting that any challenge to a privilege determination appear under seal and ex parte. The next day the government responded that it had no problem with discussions of the content of documents to be submitted under seal and ex parte, but argued the legal discussions should be public.

There is no reason why the Government and the public should be deprived of access to the balance of the filing — such as the law upon which Cohen and the two Intervenors rely, or their legal analysis to the extent it does not directly describe the substance of the documents in question.

In other words, SDNY argued that if the plaintiffs wanted to fight Jones’ determinations, they would have to show their legal arguments in public.

In a June 8 order, Judge Wood agreed with the government that any legal discussion should be public. In response, the plaintiffs withdrew certain privileged designations, effectively deciding they weren’t willing to challenge Jones’ determinations with legal arguments the public could see.

After Jones amended her June 4 report on June 15, Judge Wood reviewed the substance of what Jones had found, effectively conducting a spot check of her work. Her June 22 order on the matter reveals that Michael Cohen did more consulting of lawyers than consulting as a lawyer.

The Court adopts the Report for the following reasons: 57 of these items are text messages between Plaintiff and his outside counsel, in which Plaintiff requests legal advice from his outside counsel or Plaintiff’s outside counsel provides legal advice; 55 of these items are text messages between Plaintiff and his outside counsel, in which Plaintiff requests legal advice from his outside counsel or Plaintiff’s outside counsel provides legal advice in anticipation of litigation; 22 of these items are email communications or portions of email communications in which Plaintiff receives or requests legal advice from outside counsel; 6 of these items are email communications in which Plaintiff receives or requests legal advice from outside counsel in anticipation of litigation; 7 of these items are email communications between Plaintiff and a client, containing legal advice made in anticipation of litigation; 1 of these items is an email communication in which Plaintiff receives a request to initiate legal representation; 9 of these items are legal memoranda from outside counsel, providing legal advice to Plaintiff or a client of Plaintiff; 1 of these items is a letter from Plaintiff’s outside counsel containing legal 2 of these items are retainer agreements between Plaintiff and outside counsel, containing requests for legal advice10; 1 of these items is a litigation document containing notes for Plaintiff’ s outside counsel, made in anticipation of litigation. The Court has also reviewed the 7 documents that the Special Master recommends withholding from the Government because they are Highly Personal. (ECF No. 81, at 2.) These documents all concern Plaintiffs family affairs and are not relevant to the Government’s investigation. With respect to the above items, the Court ADOPTS the Amended Report. [my emphasis]

That is, in this first batch of documents, even the privileged ones only included 8 files in which Cohen was the lawyer providing advice. The rest involved Cohen getting advice for himself or a client.

On July 2 and July 13, Jones started releasing big chunks of non-privileged items. Almost 2.2 million items were turned over. On July 10, Cohen moved to share all these materials with Guy Petrillo. By this point, Cohen felt he had been abandoned by Trump and was preparing to flip against his client. July 23 is when Jones reported that Cohen and Trump had withdrawn designations of privilege with respect to 12 audio files, which were then released to the government (and began to be leaked on cable shows).

Here are the determinations Barbara Jones described making in reports dated July 19, July 24, July 28, August 2, and August 9. Claimed privilege, here, is what Cohen or Trump or Trump organization claimed. The next two columns show what Jones labeled those files as. The objections are items for which the plaintiffs still argued there was a privilege claim after her recommendations, though they did not fight any of these designations.

In her summary, Jones described that altogether 7,434 items had been deemed privileged. Trump and or Cohen had objected to Jones’ designations with regards to 57 items, but were unwilling to fight to have Wood overrule Jones’ designation if their arguments would be public.

What Jones didn’t mention is that along the way, she had overruled the plaintiffs’ designation of something as privileged or highly sensitive around 6,200 times (these numbers don’t entirely add up, possibly because of overlapping categories).

While Trump and Cohen may have achieved the goal of delay, within 134 days after the raid on his home, Cohen had found a new lawyer and pled guilty to 8 counts. And while it’s not clear whether Jones applied a similar or more stringent standard on privilege claims than SDNY’s privilege team would have, as it was, the Trump people paid half a million dollars to try but fail to keep over 6,200 items out of government hands.

Update, 8/27: Oops! I forgot to add this language from the plea hearing, Prosecutor Andrea Griswold explained this about the evidence.

The proof on these counts at trial would establish that these payments were made in order to ensure that each recipient of the payments did not publicize their stories of alleged affairs with the candidate. This evidence would include:

Records obtained from an April 9, 2018 series of search warrants on Mr. Cohen’s premised, including hard copy documents, seized electronic devices, and audio recordings made by Mr. Cohen.

We would also offer text messages, messages sent over encrypted applications, phone records, and emails.

We would also submit various records produced to us via subpoena, including records from the corporation referenced in the information as Corporation One and records from the media company also referenced in the information.

She makes it clear that the audio recording — apparently the same ones that Cohen and Trump waived privilege over — were part of the evidence on those charges.

Update: Added more punctuation for those of you who thought I’d leave out an Oxford comma.

BREAKING! Robert Mueller Would Be Fucking Stupid If He DIDN’T Subpoena Trump Organization

The NYT has everyone all huffing and puffing about their scoop that Robert Mueller has subpoenaed documents from the Trump Organization.

The special counsel, Robert S. Mueller III, has subpoenaed the Trump Organization to turn over documents, including some related to Russia, according to two people briefed on the matter. The order is the first known time that the special counsel demanded documents directly related to President Trump’s businesses, bringing the investigation closer to the president.

The breadth of the subpoena was not clear, nor was it clear why Mr. Mueller issued it instead of simply asking for the documents from the company, an umbrella organization that oversees Mr. Trump’s business ventures. In the subpoena, delivered in recent weeks, Mr. Mueller ordered the Trump Organization to hand over all documents related to Russia and other topics he is investigating, the people said.

The NYT then goes on to suggest this tells us anything new about how long this investigation will take.

The subpoena is the latest indication that the investigation, which Mr. Trump’s lawyers once regularly assured him would be completed by now, will drag on for at least several more months. Word of the subpoena comes as Mr. Mueller appears to be broadening his investigation to examine the role foreign money may have played in funding Mr. Trump’s political activities.

It further speculates this might cross a “red line” they put there themselves back in July, a red line commentators routinely report incorrectly as pertaining to any business interests of his.

Mr. Mueller could run afoul of a line the president has warned him not to cross. Though it is not clear how much of the subpoena is related to Mr. Trump’s business beyond ties to Russia, Mr. Trump said in an interview with The New York Times in July that the special counsel would be crossing a “red line” if he looked into his family’s finances beyond any relationship with Russia.

BREAKING: Robert Mueller would be fucking stupid if he weren’t subpoenaing this information.

First, of all, we know that in the late part of last year, Mueller was locking in testimony from everyone involved in the June 9 Trump Tower meeting, and he subsequently recalled at least one of the participants back for seconds. We know there’s good reason to believe the public story the participants are telling about the meeting doesn’t make sense, and that they may be hiding a second part of the meeting. We know Mueller is examining Trump’s relationship with the Agalarovs, in particular. We know from what Sam Nunberg has told us he was asked about the Miss Universe contest. From his subpoena, we know that Mueller is dating his investigative scope from the time, in 2015, when Trump was considering yet another Moscow Trump Tower deal. Several key witnesses, notably Don Jr and Rhona Graff were interviewed [by Congress] as Trump Organization employees, represented by Abe Futerfas.

All of this pertains to Trump’s business! And it is common practice among prosecutors, especially prosecutors dealing with shifty types, to first ask for voluntary production, and then subpoena it. It would be stupid of Mueller to not do the same here.

Robert Mueller is not stupid. Therefore it is not BREAKING news that he is subpoenaing this information, and it may even mean he’s doing that just so he can finalize presentations to the grand jury, particularly given the “recent weeks” timing — the most interesting detail about this report.

One more thing. As I said, while the NYT got their own reporting right, most people quoting from it misquote what Trump actually said about any red line. Here’s the exchange.

SCHMIDT: Last thing, if Mueller was looking at your finances and your family finances, unrelated to Russia — is that a red line?

HABERMAN: Would that be a breach of what his actual charge is?

TRUMP: I would say yeah. I would say yes. By the way, I would say, I don’t — I don’t — I mean, it’s possible there’s a condo or something, so, you know, I sell a lot of condo units, and somebody from Russia buys a condo, who knows? I don’t make money from Russia. In fact, I put out a letter saying that I don’t make — from one of the most highly respected law firms, accounting firms. I don’t have buildings in Russia. They said I own buildings in Russia. I don’t. They said I made money from Russia. I don’t. It’s not my thing. I don’t, I don’t do that. Over the years, I’ve looked at maybe doing a deal in Russia, but I never did one. Other than I held the Miss Universe pageant there eight, nine years [crosstalk].

SCHMIDT: But if he was outside that lane, would that mean he’d have to go?

[crosstalk]

HABERMAN: Would you consider——

TRUMP: No, I think that’s a violation. Look, this is about Russia. So I think if he wants to go, my finances are extremely good, my company is an unbelievably successful company. And actually, when I do my filings, peoples say, “Man.” People have no idea how successful this is. It’s a great company. But I don’t even think about the company anymore. I think about this. ’Cause one thing, when you do this, companies seem very trivial. O.K.? I really mean that. They seem very trivial. But I have no income from Russia. I don’t do business with Russia. The gentleman that you mentioned, with his son, two nice people. But basically, they brought the Miss Universe pageant to Russia to open up, you know, one of their jobs. Perhaps the convention center where it was held. It was a nice evening, and I left. I left, you know, I left Moscow. It wasn’t Moscow, it was outside of Moscow.

Aside from the prompted feel of the question (as if Trump or Chris Ruddy set these reporters up to pose the questions so Trump could “warn” Mueller), it pertains only to business unrelated to Russia. Trump seems to admit that the mobbed up Russians buying his condos would be pertinent, his Miss Universe contest, and his serial efforts to get a Trump Tower in Moscow.

Even the example the NYT points to today — the involvement of UAE in some pre-inauguration meetings — pertains to Russia, as one of the points of the meetings were to set up a back channel with … Russia.

I think Jared Kushner’s business ties … that’s a different issue. But as to the substance of Trump’s purported red line, nothing in today’s report says Mueller has crossed that (even if he cared about such things).

So let’s sum up:

  1. Robert Mueller would be fucking stupid not to subpoena stuff he had already received
  2. Robert Mueller is not fucking stupid
  3. Therefore, that Robert Mueller has subpoenaed this stuff is not BREAKING news

Shew. Glad I got that off my chest.

Update: I realized in reading CNN’s version of this BREAKING news that they reported in January that Mueller had already obtained documents from Trump Org voluntarily.