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The Mueller Report Has Been Delivered

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.

There’s a Decent Chance Jon Karl’s Source Is Being or Was Investigated for Obstruction

Jonathan Karl, ABC White House correspondent, reported yesterday with a certainty I’m hearing from none of the DOJ beat reporters that Mueller’s report will amount to nothing.

Sources familiar with the investigation believe there are no more indictments coming from the special counsel. If Mueller follows the guidance of the man who appointed him and supervised his investigation, he cannot publicly disparage those who have not been charged with a crime.

From that, he spun out a letter Rod Rosenstein wrote at a time when Republicans were trying to expose some bureau and CIA informants, and ignored the intent of the Mueller Report, to suggest that Mueller can’t say anything bad (in a confidential report to Bill Barr, not to Congress) about Trump.

[W]e don’t need to speculate on the scope – the man who appointed Mueller has already given us a potential road map on what to expect from the special counsel.

The bottom line: Do not expect a harsh condemnation of President Donald Trump or any of his associates if they have not been charged with crimes.

I said yesterday I have no idea what The Mueller Report will bring — or even if The Mueller Report is actually where we’ll learn about Mueller’s findings. I said that, while there’s abundant evidence of a conspiracy between Trump and the Russians, it may never get charged, including for reasons that have to do with DOJ’s treatment of sitting presidents. That remains true.

But what is also likely true is that at least one of Jonathan Karl’s sources saying that they “believe there are no more indictments coming from” Mueller is either currently or already has been investigated for obstruction.

That’s because the chief source of claims like this — particularly in reporting from White House correspondents — is one or another of Trump’s lawyers, especially Right Wing operative Jay Sekulow and TV lawyer Rudy Giuliani. And we now know that both would have at least been scrutinized for obstruction.

In Sekulow’s case, Michael Cohen says the lawyer edited his perjurious statement to Congress. And even in the Sekulow denial — as reported by ABC News — he denies just that he changed the timeline of Cohen’s statement, not that he edited it.

During a closed-door hearing with the House Intelligence Committee on Wednesday, Michael Cohen, the former personal attorney and fixer to President Donald Trump, shared documents and emails with committee members showing what he said were edits to the false statement he provided to Congress in 2017, in an effort to bolster his public testimony last week, according to two sources familiar with the matter.

Testifying publicly before the House Oversight Committee last week, Cohen said Trump’s current personal lawyer Jay Sekulow changed the former Trump loyalist’s statement to the House and Senate Intelligence Committees regarding the duration of discussions about the Trump Tower Moscow project before he submitted it to Capitol Hill.

Last week Sekulow denied the claims in a statement to ABC News.

“Today’s testimony by Michael Cohen that attorneys for the President edited or changed his statement to Congress to alter the duration of the Trump Tower Moscow negotiations is completely false.”

Mueller cited Cohen’s description of his communications with the White House in this period — and specifically the circumstances of preparing the statement — among the ways he helped the investigation.

Third, Cohen provided relevant and useful information concerning his contacts with persons connected to the White House during the 2017–2018 time period.

Fourth, Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it.

With regards to Rudy, ABC News was among the outlets that recently provided details of what appears to be a pardon dangle to Cohen after he was raided.

In the weeks following the federal raids on former Michael Cohen’s law office and residences last April, President Donald Trump’s former lawyer and confidant was contacted by two New York attorneys who claimed to be in close contact with Rudy Giuliani, the current personal attorney to Trump, according to sources with direct knowledge of the discussions.

The outreach came just as Cohen, who spent more than a decade advocating for Trump, was wrangling with the most consequential decision of his life; whether to remain in a joint defense agreement with the president and others, or to flip on the man to whom he had pledged immutable loyalty. The sources described the lawyers’ contact with Cohen as an effort to keep him in the tent.

Yet for all the attention paid to what Cohen was willing to say about the president, his reluctance to answer a question about the last communications he had with Trump or someone acting on his behalf made news on its own. Cohen clammed up and claimed that federal prosecutors were actively probing that very issue.

“Unfortunately, this topic is something that’s being investigated right now by the Southern District of New York, and I’ve been asked by them not to discuss and not to talk about these issues,” Cohen said.

The sources familiar with the contacts said the two lawyers first reached out to Cohen late in April of last year and that the discussions continued for about two months. The attorneys, who have no known formal ties to the White House, urged Cohen not to leave the joint defense agreement, the sources told ABC News, and also offered a Plan B. In the event Cohen opted to exit the agreement, they could join his legal team and act as a conduit between Cohen and the president’s lawyers.

At one point in the discussions, one of the attorneys sent Cohen a phone screenshot to prove they were in touch with Giuliani, the sources said.

According to ABC’s sources, this matter is currently under investigation by SDNY.

I mean, it’s certainly possible that someone else is sourcing Karl’s seeming unique certainty about what will come of the Mueller report. It’s certainly possible that ABC’s White House correspondent has better sources at DOJ than all the DOJ reporters who say they don’t know. It’s certainly possible his sources don’t include someone that DOJ had at least reason to believe had participated in obstruction.

But if Karl’s sources are people that his own outlet has reported to be under investigation for obstruction, he ought to at least temper his certainty that they can be believed.

Update: Rudy has gone on the record with exactly the line that Karl regurgitated yesterday.

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. 

Why My Post Predicting the Mueller End Game Won’t Predict Anything

The DOJ beat reporters are on tenterhooks this week, having been led to believe that The Mueller Report will be delivered today, tomorrow, or soon thereafter. That has intensified the already fever pitch around what will happen next.

Given that there is great confidence the conclusion is imminent, here’s why such speculation is misplaced.

We have no idea, and there are many possible options.

Those options include:

  1. A request for a conspiracy indictment naming Trump as a defendant, which would be denied, therefore triggering a report of that denial to the Judiciary Committees (but which would also presumably result in an indictment of others).
  2. An overarching conspiracy indictment including Don Jr and other players, with Trump named as an unindicted co-conspirator.
  3. A Road Map akin to the Watergate one, sharing grand jury material with the House Judiciary Committee; this would be a strong possibility in case of option 2.
  4. No further indictment, but a report showing a great deal of evidence a conspiracy took place, with The Report explaining why (including Presidential prerogative on foreign policy) it can’t be indicted, with or without an accompanying HJC Road Map.
  5. Some kind of report submitted as a counterintelligence report, in addition to indictments (a possibility some have floated but which I believe to utterly misunderstand the nature of Mueller’s task).
  6. The Report showing much ado about nothing.

I happen to think there’s a great deal of evidence a quid pro quo conspiracy took place, but certainly entertain the possibility that Mueller thinks he wouldn’t have an 85% chance of conviction, which DOJ would likely require before he indicted it. But even if I’m right, it still leaves open most of these options.

And the aftermath of every single one of these options is contingent. Meaning it is way premature to get into debates about what William Barr will include in his report and whether Trump can quash the report by invoking privilege until we know whether the The Report is what the regulations require them to be — with the really important details in either an indictment and/or Road Map, or in fact something more comprehensive.

Which is why I think, given the promise that Mueller’s end game is imminent, doing anything but admitting that we don’t know is a waste of air.

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

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.

Questions to Ask before Reporting a BREAKING Mueller Report

Update: CNN is matching NBC’s reporting on this. It also backs its report with real details from their superb stakeout.

On Monday, Tuesday and Wednesday last week, special counsel’s office employees carried boxes and pushed a cart full of files out of their office — an unusual move that could foreshadow a hand-off of legal work.

At the same time, the Mueller prosecutors’ workload appears to be dwindling. Four of Mueller’s 17 prosecutors have ended their tenures with the office, with most returning to other roles in the Justice Department.

And the grand jury that Mueller’s prosecutors used to return indictments of longtime Trump confidant Roger Stone, former Trump campaign chairman Paul Manafort, and several Russians hasn’t apparently convened since January 24 the day it approved the criminal charges against Stone.

I take from that I’m wrong about Mueller waiting for the two appeals (he knows what he’ll get from them) before he delivers his verdict. 

Pete Williams did the NBC circuit yesterday claiming that the Mueller report may be submitted to DOJ as soon as next week.

Pete Williams on MSNBC says the Mueller report may go to DOJ as early as next week

Because a lot of people have asked me about this and because Williams (and some other journalists) don’t appear to know enough about the Mueller investigation to ask the proper questions to assess that claim, I’d like to lay out a little logic and a few facts. It’s certainly possible that a Mueller report is coming next week — I’d argue that one is assuredly coming on Friday. But I doubt that means what Williams thinks it does.

The conclusory report is not coming next week

When most people think of “the Mueller report,” they mean this report, dictated by the Special Counsel regulations.

At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

When Mueller is done, he has to submit a confidential report to the Attorney General (who is now Mueller’s friend William Barr) telling him what he did and didn’t do. Given everything Barr said as part of his confirmation process, we’re unlikely to see this report.

To assess whether this report is what Pete Williams thinks is coming, we should assess whether public evidence is consistent with Mueller being done.

The answer to that is clearly no. He’s still chasing testimony from Roger Stone flunkie Andrew Miller and from some foreign owned corporation (and has been chasing that, in the case of Miller, since last May).

Given that Miller already interviewed with the FBI for two hours and the foreign company is, by dint of being foreign, a no-brainer target for NSA, it’s quite likely Mueller knows what he’s getting from both of these entities. He just needs Miller on the record, so he can’t change his story to protect Stone, and needs to parallel construct the information from the foreign company. So it’s possible that as soon as Mueller gets both of these things, he’ll finish up quickly (meaning The Report could be soon). But there is no way that’ll happen by next week, in part because whatever the DC Appeals Court says in the Andrew Miller case, the loser will appeal that decision.

So it’s virtually certain that The Report is not coming by next week.

A report talking about “collusion” is coming this week

But maybe NBC’s sources are speaking metaphorically, and mean something else that isn’t the conclusory report but that will more closely resemble what everyone thinks of when they talk about The Report.

That’s likely to happen, but if it does, it’ll just be a partial report.

That’s because both Mueller and the defense have to submit a sentencing memo in Paul Manafort’s DC case Friday. As I noted back in November when Mueller’s prosecutors declared Manafort to have breached his plea agreement, this sentencing memo presents an opportunity for Mueller to “report” what they’ve found — at least with respect to all the criminal actions they know Manafort committed, including those he lied about while he was supposed to be cooperating — without anyone at DOJ or the White House suppressing the most damning bits. DOJ won’t be able to weigh in because a sentencing memo is not a major action requiring an urgent memo to the Attorney General. And the White House will get no advance warning because Big Dick Toilet Salesman Matt Whitaker is no longer in the reporting chain.

So, as noted, Mueller will have an opportunity to lay out:

  1. The details of Manafort’s sleazy influence peddling, including his modus operandi of projecting his own client’s corruption onto his opponents
  2. The fact that Manafort already pled guilty to conspiring with a suspected Russian intelligence asset
  3. The details about how Manafort — ostensibly working for “free” — got paid in 2016, in part via kickbacks from a Super PAC that violated campaign finance law, possibly in part by Tom Barrack who was using Manafort and Trump as a loss-leader to Middle Eastern graft, and in part by deferred payments or debt relief from Russian-backed oligarchs
  4. Manafort’s role and understanding of the June 9 meeting, which is a prelude of sorts to the August 2 one
  5. The dates and substance of Manafort’s ongoing communications with suspected Russian intelligence asset Konstantin Kilimnik, including the reasons why Manafort shared highly detailed polling data on August 2, 2016 that he knew would be passed on to his paymasters who just happened to be (in the case of Oleg Deripaska) a central player in the election year operation
  6. The ongoing efforts to win Russia relief from the American Ukrainian-related sanctions by pushing a “peace” plan that would effectively give Russia everything it wants
  7. Manafort’s ongoing discussions with Trump and the Administration, up to and including discussions laying out how if Manafort remains silent about items two through six, Trump will pardon him

Because those items are all within the substance of the crimes Manafort pled guilty to or lied about during his failed cooperation, they’re all squarely within the legitimate content of a sentencing memo. And we should expect the sentencing memo in DC to be at least as detailed as the EDVA one; I expect it, like the EDVA one and like Manafort’s plea deal, will be accompanied by exhibits such as the EDVA one showing that Manafort had bank accounts to the tune of $25,704,669.72 for which suspected Russian intelligence asset Konstantin Kilimnik was listed as a beneficial owner in 2012. Heck, we might even get to see the polling data Manafort shared, knowing it was going to Russia, which was an exhibit to Manafort’s breach determination.

The only thing limiting how much detail we’ll get about these things (as well as about how Manafort served as a secret agent of Russian backed Ukrainian oligarchs for years) is the ongoing sensitivities of the material, whether because it’s grand jury testimony, SIGINT collection, or a secret Mueller intends to spring on other defendants down the road.

It’s the latter point that will be most telling. As I noted, thus far, the silences about Manafort’s cooperation are — amazingly — even more provocative than the snippets we learned via the breach determination. We’ll likely get a read on Friday whether Mueller has ongoing equities that would lead him to want to keep these details secret. And the only thing that would lead Mueller to keep details of the conspiracy secret is if he plans to charge it in an overarching conspiracy indictment.

We may also get information, however, that will make it far more difficult for Trump to pardon Manafort.

So, yeah, there’s a report coming out this week. But it’s not The Report.

Any overarching conspiracy indictment will not be coming this week

It’s possible Mueller is close to charging an overarching conspiracy indictment, laying out how Trump and his spawn entered into a quid quo pro with various representatives of the Russian government, getting dirt on Hillary and either a Trump Tower or maybe a bailout for the very same building in which Manafort met with Konstantin Kilimnik on August 2, 2016. In exchange for all that, Trump agreed to — and took steps to deliver on, with some success in the case of election plot participant Deripaska — reversing the sanctions that were such a headache to Russia’s oligarchs.

Such an indictment, if Mueller ever charges it, will look like what Trump opponents would like The Report to look like. In addition to naming Don Jr and Jared Kushner and Trump Organization and a bunch of other sleazeballs, it would also describe the actions of Individual-1 in adequate detail to launch an impeachment proceeding.

But that indictment, if Mueller ever charges it, won’t be coming on Friday or Monday, as Williams predicts, because it likely requires whatever it is Mueller is trying to parallel construct from that foreign-owned company. And even if SCOTUS denies its appeal today, it’s unlikely that evidence will be in hand in time for a Friday indictment.

Mueller could ensure a report gets delivered to Jerry Nadler next week … but that’s unlikely

There’s one other possibility that would make Williams’ prediction true: if Mueller deliberately triggered the one other way to deliver a report, by asking to take an action William Barr is unlikely to approve, and if Mueller was willing to close up shop as a result, then a report would go to Congress and — if Barr thought it in the public interest — to the public.

Upon conclusion of the Special Counsels investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

[snip]

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.

The only thing that Mueller might try to do that Barr would not approve (though who knows? maybe what Mueller has is so egregious Barr will surprise us?) is to indict the President.

I think this is unlikely, for all the reasons the first possibility laid out here is unlikely: that is, Mueller is still waiting on two details he has been chasing for quite some time, and I doubt he’d be willing to forgo that evidence just to trigger a report. It’s also unlikely because Mueller is a DOJ guy, and he’s unlikely to ask to do what he knows OLC says he should not do.

Still, it’s hypothetically possible that Mueller believes Trump is such an egregious criminal and national security risk he needs to try to accelerate the process of holding him accountable by stopping his investigation early (perhaps having the DC AUSAs named on the Miller and Mystery Appellant challenges take over those pursuits) and asking to indict the President.

But if that’s what Williams is reporting, he sure as hell better get more clarity about that fact, because, boy would it be news.

All of which is the lesson of this post: If you’re being told — or telling others — that Mueller’s report is imminent, then you’re either being told very very big news, or bullshit. Do yourself and us a favor of learning the base level regulations to understand which it 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. 

Into Shutdown Day 28: Is the GOP Senate Obstructing Justice?

[NB: Always check the byline, folks. /~Rayne]

As we roll through the afternoon into the 28th day of the longest-ever government shutdown, let’s revisit Senator Amy Klobuchar’s questions to Attorney General nominee Bill Barr before the Senate Judiciary Committee this week.

She asked him about his opinion on obstruction of justice. Barr discussed in his June 2018 memo addressed to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, focusing on Special Counsel Robert Mueller’s “‘Obstruction’ Theory.”

Four key points give pause:

  • Deliberately impaired integrity or availability of evidence;
  • Knowing destruction or alteration of evidence;
  • Ordering witness/es not to cooperate with investigation;
  • Misleading statements to conceal purposes.

Klobuchar asked Barr about each of these during the hearing:

(3:17) KLOBUCHAR: You wrote on page one that a president persuading a person to commit perjury would be obstruction. Is that right?

BARR: Yes.

KLOBUCHAR: Okay.

BARR: Or any, any, well, you know, or any person who persuades another, yeah.

(3:31) KLOBUCHAR: Okay. You also said that a president or any person convincing a witness to change testimony would be obstruction. Is that right?

BARR: Yes.

KLOBUCHAR: Okay.

(3:42) KLOBUCHAR: And on page 2 you said that a president deliberately impairing the integrity or availability of evidence would be an instruction*. Is that correct?

BARR: Yes.

KLOBUCHAR: Okay, and um, so what if the president told the witness not to cooperate with an investigation, or hinted at a pardon?

BARR: You know, I, I’d have to know the specific, I’d have to know the specific facts.

(4:03) KLOBUCHAR: And you wrote on page one that if a president knowingly destroys or alters evidence, that would be obstruction.

BARR: Yes.

(4:13) KLOBUCHAR: Okay. Um, so what if a president drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

BARR: Again, you know the, I’d have to know the, I’d have to know the specifics.

KLOBUCHAR: All right.

(* Not clear if she said “instruction” or “obstruction”; she was referring to the discussion obstruction in Barr’s memo.)

So what does this have to do with the shutdown? Regardless of the genesis and distribution of Barr’s memo or his opinion, these forms of obstruction are exactly what the government shutdown accomplishes.

Evidence to be gathered by and from some government resources may be limited by the furlough. IRS staff, for example, may have been called back to handle refunds but are there IRS staff on duty who may respond to subpoenas for tax returns? What of so-called “non-essential” personnel who might handle document requests in other departments? Have furloughed federal employees who are not yet called back indirectly ordered not to cooperate with investigations by virtue of their locked out status?

We already know that Trump avoided creating and processing records of his discussions with Putin, a likely violation of the Presidential Records Act. Has he further destroyed or altered evidence subject to the PRA but prevented staff responsible for handling and recovering destroyed/altered evidence from doing so with the shutdown? (Recall the archivist-records managers who had been taping together Trump’s documents but were fired by second quarter 2018.)

Has the demand for the wall itself, in any statements or writings demanding this wall, been an attempt to conceal the true intent of the shutdown as an act of obstruction? Recall how upset Trump was with Mick Mulvaney when Mulvaney tried to offer a number lower than Trump’s demanded $5.7B and higher than House Democrat’s offered $1.3B; Trump yelled at him in front of members of Congress and told him, “You just fucked it up!

Was it not the wall’s funding but obstruction by shutdown Mulvaney interfered with by trying to offer a means to reopen the government?

If there is any doubt at all about these points, Senate Majority Leader Mitch McConnell is obligated to permit bills through which would end the shutdown or at least extend temporary funding, so that obstruction by shutdown is at an end.

The GOP Senate caucus is likewise obligated to take measures to end the shutdown, including replacement of their Senate Majority Leader if he continues to obstruct government’s operation.

Neither McConnell nor the GOP Senate caucus appear to be acting in good faith about this shutdown. At least Mulvaney made a reasonable, good faith effort before being sworn at and shot down by Trump.

If we thought the GOP Senate was compromised before by Russian-furnished NRA money, they deepen their compromise by refusing to address the obstructive shutdown. Is their “lack of alarm” about the lengthening shutdown due not to their ideology but their resignation to this obstruction?

Why is Mitch McConnell still Senate Majority Leader at this point? Former Senate Majority Leader Trent Lott was asked to step down for supporting a noted racist, and McConnell know this because he was instrumental to Lott’s removal.

Why is the GOP Senate aiding and abetting this obstruction of justice at scale?

#WhyMitch

Congressional switchboard: (202) 224-3121

About the BuzzFeed Scoop: It’s Important, But It Oversells the Lying Part

BuzzFeed has an important story that fleshes out what was made clear in Michael Cohen’s allocution, sentencing memo, and the public record (including earlier BuzzFeed reports). Trump and his kids knew a lot about Cohen’s negotiations for a Trump Tower, and also knew and helped sustain his lies to Congress. BuzzFeed even suggests that all the lying came from Trump; on that issue, the story is problematic for reasons I lay out below.

The new details in the story include a price tag for the Trump Tower detail: Trump, “hoped could bring his company profits in excess of $300 million” (Mueller’s sentencing memorandum stated that the deal might be worth “hundreds of millions of dollars from Russian sources in licensing fees and other revenues”).  It quantifies how many times Trump and Cohen spoke about the deal: Trump, “had at least 10 face-to-face meetings with Cohen about the deal during the campaign.” It also confirms that Don Jr and Ivanka were the “family members” described in Cohen’s allocution who were apprised of the details.

Cohen gave Trump’s children “very detailed updates.”

[snip]

The two law enforcement sources disputed this characterization and said that [Don Jr] and Cohen had multiple, detailed conversations on this subject during the campaign.

It doesn’t include a number of details that would be more important for understanding how the Trump Tower deal relates to other parts of Trump’s conspiracy with Russians: who (if not Trump himself or Don Jr) was the senior campaign official who knew of Cohen’s negotiations, precisely what Don Jr knew of the negotiations on June 3 when he took a meeting described to be “part of  Russia and its government’s support for Mr. Trump,” and whether the timing of Cohen’s plans for a trip to St. Petersburg — which started on June 9 and ended on June 14 — related somehow to the June 9 Trump Tower meeting and the June 14 revelation that Russians had hacked the DNC. It’d also be useful to know whether Cohen had any 2016 dealings with Ike Kaveladze, who knew of Cohen from the 2013 business dealings between Trump and the Agalarovs, and who had a curious reaction to a video of him in the wake of the June 9 meeting story breaking. Those are the details that would advance the story of how the Trump Tower deal relates to Russia’s efforts to hack the election.

That said, I have qualms about the way the story deals with the perjury side of this. First, it makes an absurd claim that this is the first time we’ve heard that Trump told someone to lie.

Cohen’s testimony marks a significant new frontier: It is the first known example of Trump explicitly telling a subordinate to lie directly about his own dealings with Russia.

The NYT first reported that Trump floated pardons to Mike Flynn and Paul Manafort in March of last year and they also reported that Mueller had asked Trump about discussions with Flynn about his testimony by the same month. The entire story leading up to Flynn’s firing includes a series of lies, and like Cohen’s false claims about the Trump Tower story featured the kind of matching lies that require coordination (though Trump’s directions to Flynn probably did not include foreknowledge of his FBI interview, so legally the import is that he sustained Flynn’s lies). Manafort, under whatever expectation of a pardon, spent the two months leading up to the election perjuring himself about his ongoing work with Konstantin Kilimnik and communications with the White House, all while reporting back to Trump via his lawyer. Trump had Don McGahn craft a letter to Comey (who, after all, was part of the FBI when he received it) about his firing that hid that he did it because of the Russia investigation, after first writing a statement that acknowledged that clearly. And Trump himself dictated (probably in consultation with Vladimir Putin) a misleading statement about the June 9 Trump Tower meeting, only part of which got cleaned up before Don Jr repeated the misleading comments before Congress. Trump’s current defense attorney Jay Sekulow even went on teevee last August to apologize for repeating a lie Trump told about the June 9 meeting; while he told that lie publicly, the statement Don Jr told to Congress retained part of that lie. Not all of those amount to suborning perjury, but some of them do, and they’ve been public for a long time.

Buzzfeed also suggests that the lying all came from Trump:

the law enforcement sources familiar with his testimony to the special counsel said he had confirmed that Trump directed him to lie to Congress

Cohen’s own public sworn testimony on this issue is slightly different though. He said,

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

The latter detail may be semantics. After all, Trump Organization necessarily withheld documents from Congress to sustain Cohen’s (and Don Jr’s) lies. So the directive to lie and the coordination obviously came from the top (though some of it was achieved by Cohen’s leaks to the press). And the sentencing memo’s statement that “Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it,” make it clear he could have blamed others for the coordination of his lies. But Cohen is on the record suggesting he chose to lie, in contrast to his allocutions with the hush payments, where he said Trump directed him to undertake the criminal activity. The discrepancy on this issue — which could be cleared up with a few details — may otherwise subject Cohen to accusations of perjury in his allocation.

And heck, if Cohen downplayed Trump’s direction of his lies, then that is newsworthy in and of itself.

I’m more concerned that Buzzfeed claimed, on January 17, 2019, that this is the first evidence that Trump ordered someone to lie about Russia. Normally, I’d excuse this kind of exaggeration to get eyeballs as normal publicity for a story. But not coming, as it does, two days after Trump’s nominee to be Attorney General stated clearly in his confirmation hearing that suborning perjury would be clearly criminal, even if done by the President. Yes, William Barr already made that clear in his memo on the Mueller investigation. But few people besides me realized that fact until, in Tuesday’s hearing, he was asked to confirm that things we know Trump has done — such as float pardons — amount to a crime.

And the response to this story, coming two days after Barr made that statement, has been to suggest that the stuff included in it — as distinct from the long line of lies we already knew Trump suborned — would put Trump at legal jeopardy under Barr that he’s not already in.

Trump is already getting itchy upon discovering that Barr has a close relationship with Mueller.

President Donald Trump was startled Tuesday as he watched television coverage of his nominee for attorney general describing a warm relationship with the special counsel Robert Mueller in front of the Senate Judiciary Committee, according to three people familiar with the matter.

During the first day of his confirmation hearing, William Barr described telling the President the first time he met him in June 2017 that he was friends with Mueller, referring to him on a first name basis.

“I told him how well I knew Bob Mueller and that the Barrs and Muellers were good friends and would be good friends when this was all over,” Barr said. “Bob is a straight-shooter and should be dealt with as such.”

While Barr said during his hearing that Trump “was interested” in hearing about the friendship, the details that emerged this week caught the President off guard, the three sources said. He bristled at Barr’s description of the close relationship, complaining to aides he didn’t realize how much their work overlapped or that they were so close.

I think Barr will be shitty on a range of issues (though he’s less of a bigot and homophobe than Jeff Sessions and the Big Dick Toilet Salesman). But there are many reasons to believe, from his testimony, that he won’t interfere with the Mueller investigation. The overhyped claims in this Buzzfeed story, however, are likely to make Trump newly aware of that fact, and could have negative and unnecessary consequences (and in that way, I worry the Buzzfeed story is like NYT’s two underreported stories about the aftermath of the Jim Comey firing, which both did significant damage that could have been avoided with more awareness of the rest of Russian story and more context).

The Buzzfeed story is important for the concrete details it adds to a story we already knew — and these reporters deserve a ton of kudos for consistently leading on this part of the story. But it has unnecessarily overhyped the uniqueness of Trump’s role in these lies, in a way that could have detrimental effect on the country’s ability to actually obtain some kind of justice for those lies.

Update: The language in Cohen’s own sentencing memorandum similarly sets up a contrast in the language used to discuss the hush payments, where his lawyers emphasize Trump’s direction.

With respect to the conduct charged in these Counts, Michael kept his client contemporaneously informed and acted on his client’s instructions. This is not an excuse, and Michael accepts that he acted wrongfully. Nevertheless, we respectfully request that the Court consider that as personal counsel to Client-1, Michael felt obligated to assist Client-1, on Client-1’s instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family. [my emphasis]

Compare that with their discussion of his Trump Tower lies, which emphasizes his efforts to reinforce Trump’s messaging, but lacks any mention of Trump’s direction.

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. [my emphasis]

Cohen’s lawyer uses clearly different language on these two issues, language that suggests in the latter case Trump’s “direction” might be what it was for Mike Flynn’s lies.

 

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. 

William Barr’s Asymmetric Confusion about Shitty Mueller Reporting

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

William Barr Falsely Denies His Mueller Memo Makes the Case for Impeachment

William Barr has released his opening statement for his confirmation hearing tomorrow. While it surely is tailored to address the biggest concerns about his nomination, there’s a lot to like about it.

He suggests he’s not as big of a hawk on criminal justice as he used to be. He emphasizes the need to protect the right to vote. He seems to suggest a concern about rising hate crimes.

And — as most outlets have focused on — he affirms the importance of Robert Mueller finishing his work and being able to publish his findings.

First, I believe it is vitally important that the Special Counsel be allowed to complete his investigation. I have known Bob Mueller personally and professionally for 30 years. We worked closely together throughout my previous tenure at the Department of Justice under President Bush. We’ve been friends since. I have the utmost respect for Bob and his distinguished record of public service. When he was named special counsel, I said that his selection was “good news” and that, knowing him, I had confidence he would handle the matter properly. I still have that confidence today.

Given his public actions to date, I expect that the Special Counsel is well along in his investigation. At the same time, the President has been steadfast that he was not involved in any collusion with Russian interference in the election. I believe it is in the best interest of everyone – the President, Congress, and, most importantly, the American people – that this matter be resolved by allowing the Special Counsel to complete his work. The country needs a credible resolution of these issues. If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the Special Counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work.

Second, I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.

I’m most interested, however, in the way that Barr addresses the memo on the Mueller investigation he wrote last year. In comments also surely designed to reassure Democrats, Barr claims that the memo only addressed one theory of obstruction.

I would like to briefly address the memorandum that I wrote last June. I wrote the memo as a former Attorney General who has often weighed in on legal issues of public importance, and I distributed it broadly so that other lawyers would have the benefit of my views. As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering. The memo did not address – or in any way question – the Special Counsel’s core investigation into Russian interference in the 2016 election. Nor did it address other potential obstruction-of-justice theories or argue, as some have erroneously suggested, that a President can never obstruct justice. I wrote it myself, on my own initiative, without assistance, and based solely on public information.

The claim that that’s what he addressed — which I correctly unpacked here — is important because, as Jack Goldsmith has since laid out, Barr’s views on that theory of obstruction fit solidly within OLC precedent.

Yet Barr makes a false claim in that paragraph: that his memo “did [not] address other potential obstruction-of-justice theories.” Indeed, before he finishes his first page, he addresses another potential obstruction-of-justice theory:

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. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful subversive acts.

It’s right there, on the bottom of his first page, another potential obstruction of justice theory.

As if his reference to Nixon and Clinton didn’t already make it clear, the rest of his memo describes that the proper remedy when the President engages in such crimes is impeachment.

And, as I have laid out, the public evidence (even before recent disclosures about how the FBI worried that Trump was literally taking orders from Russian when he fired Comey) provides strong circumstantial evidence that Trump attempted to impair the integrity and availability of evidence to the FBI, possibly including suborning perjury from Mike Flynn.

While Barr doesn’t presume to dictate whether Congress must judge such behavior adequate to sustain impeachment, he certainly sees it as an adequate basis for impeachment.

Which is why I find his statement troubling. He’s not only placating Democrats with this statement (and opposing any possibility that the President can be charged for criminal acts). He’s also backing off the clear implication of his memo, that if Trump engaged in witness tampering, it would be improper.

All that’s separate from the wisdom and ethics of writing 19 pages, as he did, on a theory based off a really skewed understanding of the evidence, or accepting a job after having done so in the scope of job considerations.

To be sure, if Barr really intends to let Mueller finish and ensure the right to vote, he may be the best Attorney General candidate we’re likely to get from Trump. But he still needs to be asked whether he backs the implications of his memo, which actually back impeachment.

Update: This is fairly batshit. In a letter to Lindsey Graham dated yesterday — the same day Barr released opening statements that say “Nor did [his memo] address other potential obstruction-of-justice theories,” he said that his entire memo was a different theory of obstruction of justice.

The principal conclusion of my memo is that the actions prohibited by section 1512(c) are, generally speaking, the hiding, withholding, destroying, or altering of evidence – in other words, acts that impair the availability or integrity of evidence in a proceeding. The memorandum did not suggest that a President can never obstruct justice. Quite the contrary, it expressed my belief that a President, just like anyone else, can obstruct justice if he or she engages in wrongful actions that impair the availability of evidence. Nor did the memorandum claim, as some have incorrectly suggested, that a President can never obstruct justice whenever he or she is exercising a constitutional function. If a President, acting with the requisite intent, engages in the kind of evidence impairment the statute prohibits – regardless whether it involves the exercise of his or her constitutional powers or not – then a President commits obstruction of justice under the statute. It is as simple as that.

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 William Barr Case for Impeaching Donald Trump: From Whom Did Trump Suborn False Statements?

Last month, I argued that a memo William Barr wrote that many say disqualifies him to be Attorney General in fact (or perhaps, “also”) should make him utterly toxic to Trump, because he (unknowingly) makes the case for impeaching Trump.

That’s because of the specific content of a William Barr memo sent to Rod Rosenstein, first reported by WSJ last night. While I’m certain Barr didn’t intend to do so, the memo makes a compelling case that Trump must be impeached.

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

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

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

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

Today, as part of a rebuttal to Daniel Hemel and Eric Posner’s comments about the memo, Jack Goldsmith reviews an OLC memo they rely on to back my argument.

Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. (For similar doubts, see the analyses of Mikhaila Fogel and Benjamin Wittes and of Marty Lederman.) Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he stated that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.

If Wheeler is right, then the Barr memorandum is more likely to be cited in support of an article of impeachment of President Trump for obstruction of justice than it is to be cited, as Hemel and Posner suggest, to immunize Trump from obstruction. We will see if the Democrats presiding over Barr’s confirmation hearings are clever enough not to take Hemel and Posner’s suggestion that Barr’s memo is extreme, and instead use Barr’s memo, as Wheeler counsels, “to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.”

Given the stakes on all this, I wanted to focus on why I think the public record suggests strongly that Trump suborned perjury (actually, false statements), meaning that Barr has already made the case for impeachment.

Mike Flynn lied to hide consultations with the Transition Team at Mar-a-Lago

First, let’s consider what Mike Flynn lied about, which I lay out in detail here. In addition to lies about being a foreign agent for Turkey and trying to undercut an Obama foreign policy decision pertaining to Israeli settlements, Flynn admitted to lying about whether he discussed sanctions during a series of conversations with Sergey Kislyak. The focus in reporting has always been on the conversations with Kislyak, but as the statement of the offense makes clear, Flynn’s conversations with other Transition Team members — most notably his Deputy, KT McFarland — got almost as much emphasis.

On or about January 24, 2017, FLYNN agreed to be interviewed by agents from the FBI (“January 24 voluntary interview”). During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request. In truth and in fact, however, FLYNN then and there knew that the following had occurred:

a. On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

b. On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

c. On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PIT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

d. Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

e. Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

f. On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

g. On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

h. After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FLYNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation. [my emphasis]

And the 302 (302s are what the FBI calls interview reports) makes this even more clear: Flynn was not only lying about the content of his calls with Kislyak, he was lying about his consultations with McFarland, and through her, the rest of the Transition Team, almost certainly including Trump. Flynn was lying about using language, “tit-for-tat,” that came right out of those consultations.

He was lying to hide that his interactions with Kislyak reflect a deliberate Trump Transition policy choice, rather than his own choice to freelance foreign policy.

Flynn got other people to lie — to the public and to the FBI

But it’s not just Flynn’s lies. It’s also the lies others in the Administration told. According to the NYT story of the relevant emails, at a minimum both McFarland and Sean Spicer would have known that Flynn got instructions ahead of his call with Kislyak and reported positively afterwards.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

That’s important because both McFarland and Spicer lied to the press about the call in early 2017.

Early on the morning of Jan. 13, 2017, McFarland phoned one of the authors of this article to rebut a column in The Washington Post, which said Flynn and Kislyak had spoken “several times” on Dec. 29, the day the Obama administration announced it was expelling 35 Russian officials and taking other punitive measures.

The column, by David Ignatius, questioned why Flynn was engaging in sensitive foreign policy discussions with Russia when Trump had yet to take office.

McFarland insisted in an on-the-record conversation that Flynn and Kislyak had never discussed sanctions and that they had actually spoken before the administration’s announcement on Dec. 29.

[snip]

McFarland’s earlier account from the on-the-record conversation also matches public statements from Sean Spicer, the transition team’s spokesman and future White House press secretary.

Spicer said that Flynn and Kislyak spoke Dec. 28, before the sanctions were announced, and that “the call centered around the logistics of setting up a call with the president of Russia and the president-elect after he was sworn in.”

“That was it, plain and simple,” he said.

Most of the focus on public statements about the Kislyak calls has been on Mike Pence, but there’s no public record that he was in the loop on discussions about the Kislyak call (nor is there a record of him being interviewed by either the FBI or Mueller, which is one of the reasons I keep saying there’s no public record of him doing anything for which he could or should be indicted).

With McFarland and Spicer, however, we can be sure they both knowingly lied when they told the press that sanctions had not come up.

That’s why I keep pointing to two passages from the addendum to Flynn’s sentencing memo describing the significance of his cooperation. This passage makes it clear there’s some significance to the fact that Transition Team people repeated Flynn’s lies.

This passage makes it clear that, in the wake of Flynn’s cooperation, several other people decided to cooperate.

We know that McFarland is included among the people who decided to be forthcoming with Mueller; Sean Spicer probably is too and others (like Reince Priebus) may be as well. Importantly, we know they decided to be forthcoming after not having been at first. McFarland, at a minimum, lied not just to the press, but also in her first interview with the FBI, after which she made a concerted effort to unforget what really transpired.

Note, too, that that redaction is the last line of the Flynn addendum. While we don’t know what it says, it’s likely that the addendum as a whole reflects something that Mueller seems to be doing with his cooperating witnesses: either finding ways to rehabilitate liars (as he did with Michael Cohen) or using their testimony to pressure others to tell the truth, resulting in witnesses who will be more credible on the stand (which is what I suspect he has done with a number of witnesses with Flynn).

Trump has changed stories about what his Administration knew about Flynn’s lies at least twice

The public record doesn’t actually say how it happened that McFarland and Spice lied about something they should have known to be false. As I’ve laid out, it’s clear that Flynn was not free-lancing when he discussed sanctions with Kislyak, but the record is still unclear about whether he was freelancing when he ordered others to lie about it or not.

But two things strongly suggest he was not.

First, nothing yet has come close to explaining Trump’s actions with Jim Comey, first asking for his loyalty, then, after firing Flynn, asking him to let Flynn’s lies go. That’s all the more true if, as is likely but not publicly proven yet, Pence also knew he was lying when he claimed sanctions didn’t come up in the Flynn-Kislyak call, because lying to Pence is the only explanation Trump has offered for firing Flynn.

It is virtually certain Flynn was following orders — Trump’s orders — when he engaged in discussions about sanctions with Kisylak. And so it is virtually certain that Trump knew, from before he was inaugurated, that his top aides were lying to the press. Yet Trump didn’t find those lies to be a fireable offense until it became clear the lies would lead to a sustained FBI investigation into why Flynn had Kislyak hold off on responding to sanctions.

And over the course of the Mueller investigation, Trump has struggled to come up with a credible explanation for why Flynn’s lies became a fireable offense only after the FBI started looking more closely at his plans for sanctions relief.

Don McGahn wrote a report inventing one explanation for the firing just after it happened (akin to the way he later orchestrated a paper trail justifying Comey’s firing). But even when he wrote the report, it was inconsistent with what Sally Yates told McGahn.

Then, after Flynn flipped and it became clear Comey also documented his side of events (and shared those events contemporaneously with others in DOJ and FBI), Trump’s lawyers tried to massage the story one more time.

Mike Flynn, KT McFarland, Sean Spicer, Don McGahn, and John Dowd (at a minimum — possibly Reince Priebus and others, too) have all had to revise the stories they told the press and even, for some, FBI or Mueller after the fact to try to come up with a non-incriminating explanation for why everyone lied, first to the press, and then to the government.

There’s really only one thing that might explain why at least five top Donald Trump aides or lawyers had to revise stories to try to come up with innocent explanations for non-credible stories they were willing to tell the government from the start. And that’s if Trump were involved in all these lies.

It may well be that Trump didn’t formally suborn false statements before Mike Flynn interviewed with the FBI on January 24, 2017. Perhaps he just instructed Flynn to lie to the press and Flynn sustained the story he had been ordered to tell when the FBI came calling (Trump may well be more involved in the lies that Michael Cohen told to Congress).

But there is little else that can explain why so many people were willing to tell bullshit stories about Flynn (both his conversation with Kislyak and his firing) except that Trump was involved in orchestrating those stories.

Mueller’s obstruction investigation was likely always premised on a theory of obstruction that Trump’s presumed Attorney General nominee William Barr has argued does merit investigation and impeachment: that Trump ordered his subordinates to lie to obstruct an investigation.

 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.