Tag Archives: Comey

Mueller Report Part II – Trump Guilty of Obstruction of Justice-E

E. Mueller’s Inexplicably Generous Treatment of Trump’s Knowledge of Events

Another of the remarkable and unexplained conclusions reached by Mueller was that the evidence of Trump’s knowledge about Flynn’s lies about Kislyak was inconclusive. II MR-46. This conclusion seems flatly inconsistent with Trump’s statement to Christie that firing Flynn ended the Russia collusion issue.  II MR-38. We are asked to believe that Flynn told McFarland that his contacts with Kislyak had averted a major policy conflict with Russia but she did not pass that on to Trump! And that neither she nor Bannon could remember this major development! This is yet another example of Mueller’s lack of aggressive approach to Trump. WHY didn’t the SCO interview Trump to get at answers to these critical questions instead of saying they had enough evidence and it was late in the investigation? It is also unclear why it mattered so much whether Trump knew about Flynn’s deception close to the time the Kislyak talks occurred.

Even more puzzling is Mueller’s conclusion that Trump’s effort to get K.T. McFarland to write an internal email saying that Trump did not direct Flynn to talk to Kislyak was not an attempt to have McFarland lie. II MR-48. What then was Trump trying to get McFarland to do?  What is the alternative explanation for Trump’s request of her? This is another example where evidence of corrupt intent is simply written off as “insufficient” without explanation. IF SCO had interviewed Trump, questions like this could have been resolved instead of being left open and then construed as exonerating Trump.

A similar problem arises regarding Trump’s campaign to have Attorney General Jeff Sessions un-recuse himself regarding the Russia investigation. In a footnote Mueller says it was unclear that Trump was aware of White House counsel’s admonition not to contact Sessions. II MR-50, n. 289. Why isn’t Trump chargeable with constructive knowledge of WH counsel’s directive? Trump declined to read documents — does that relieve him of responsibility for knowing what was official White House policy that had been put in writing?  Moreover, if the SCO had interviewed Trump, it could have gotten answers to these questions left open and ultimately construed in Trump’s favor on grounds that the evidence did not show he knew something that, on a common sense view, he almost certainly did know.

Mueller’s generous treatment of Trump continued in the discussion of Comey’s briefing of the Gang of Eight legislators in March, 2017, about the Russia investigation. Mueller said it’s “unclear” whether Trump knew about the briefing at the time, but notes taken by McGahn’s chief of staff say that “POTUS in panic/chaos.” II MR-52. How/why would Trump be in a panic if he didn’t know about Comey’s briefing of Congressional leaders? How could the president be ignorant of such developments that might have such huge impacts on his presidency and to which he had devoted so much attention in the past few months?

 The Comey briefing led to one of the clearest cases of obstruction of justice, in that Trump demanded, and McGahn complied, that McGahn contact Dana Boente, then acting assistant attorney general at Justice, to publicly correct the “misperception” that Trump was under investigation. II MR-54,55. Once again, Trump insiders had failed memories of demands Trump made for intervention with the Department of Justice. II MR-5. And, there is no attempt to explain inconsistencies in other testimony from some of the same insiders, claiming Trump never ordered them to do anything wrong. These statements from NSA Director Rogers are inconsistent with the contemporaneous memo of the President’s call and of NSA Deputy Director Ledgett’s characterization of the extraordinary nature of the call. II MR-56. Why is there no consideration of these inconsistencies?

When Trump then reached out directly to Comey to ask him to relieve the impression Trump was under investigation, the Report, unbelievably, turns to McGahn’s asserted recall of what Dana Boente told him Comey had told Boente about Trump’s contacts with him. II MR-59.  As usual, Boente claimed not to recall this discussion. II MR-60.

Then, in one of the most remarkable moments in the Report, Mueller drops into a footnote (II MR-59, n. 376) the reminder that White House counsel had advised Trump not to contact DOJ about the investigation. Mueller seemingly attached no significance to the extraordinary & undisputed fact that Trump on multiple occasions ignored the advice of his White House attorneys by reaching out directly to Comey to discuss relieving the pressure of the Russia investigation. WHY? This was not the conduct of an innocent man.

Mueller seemed to be impressed with the fact that the people involved claimed that they did not interpret Trump’s repeated importunings as “directives” to interfere in the investigation. II MR-60. These people were all Trump appointees and true believers in his politics, who would naturally seek to maintain favor with him by declining to interpret his repeated requests as “directives.” In any case, the real question is not what they thought, but what Trump intended and the only way to get to the bottom of that ultimately was to interrogate him, which SCO, curiously, declined to demand. Trump’s attempts to secure a champion at DOJ included personal contacts with Coates, Pompeo, Rogers and Comey. Despite that, Mueller, with his usual reticence to accept the obvious, concludes that “the evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation.” II MR-60.

The same question arises in connection with Trump’s multiple attempts to prevent AG Sessions from recusing himself from oversight of the Russia investigation. A couple of things are clear. Trump thought the AG worked for him personally and therefore that Sessions should remain in place to do Trump’s bidding regarding the investigation. And, White House counsel tried to cut off communications with Sessions about recusal to avoid the appearance of attempted interference with the investigation. Yet, once again, Mueller states it was “not clear” that the “no contact” directive was conveyed to Trump. II MR-61. HOW is it remotely plausible that White House counsel, in a matter of seminal importance, would not have conveyed this information to the one person whose knowledge of it and compliance was the most important? Why didn’t the SCO demand Trump answer this question? He refused to do so even in writing and the SCO let him get away with it!

Mueller repeatedly and uncritically refers to Trump’s asserted belief that the Russia investigation was somehow interfering with, Miller his ability to conduct foreign policy but never discussed how that interference worked or what real impact it had on a president who, by all accounts, spent most of his time watching television and playing golf. II MR-61.

Another point of clarity in the Report is the finding that Trump lied about the basis for firing Comey. II MR-62. Why would he do that except to cover up his corrupt motive to which he shortly confessed? Trump’s lies about his conduct, in the context of his other actions, were a clear case of cover-up that could have been treated as a separate offense by Mueller if he had the aggressive instincts of a prosecutor rather than the timidity of an equivocator.

A related question – why was Stephen Miller not indicted for his role in preparing a phony letter to cover Trump’s tracks regarding the firing of Comey? II MR-64. Another related question: the final stated reason for firing Comey was pretextual. All Trump cared about was establishing that he was not under FBI investigation and that he was firing Comey because Comey refused to say that publicly. The Rosenstein/Sessions memo was constructed as an alternate explanation that Trump then adopted while still insisting, against advice, that the point about his not being under investigation be prominently included in the firing letter. II MR-67. Yet, again, no indictments were brought against any of the president’s men for conspiring and lying to cover the tracks of a discharge action plainly intended to obstruct the FBI investigation. See, e.g., II MR-70 regarding lies told by Sean Spicer, then Press Secretary about the motivation for the Comey firing.

Mueller basically gave a pass to all Trump’s enablers who accepted and acted on his directions. Michael Cohen, in later testimony before Congress, spoke specifically about how Trump rarely gave specific directions for anything. He spoke in “code,” that Cohen claimed he understood. It is beyond credibility that, by the time of Comey’s firing, the president’s men did not also understand how he “directed” what he wanted done, what he insisted upon, without ever explicitly saying so. Mueller appears to have completely overlooked this aspect of Trump’s directorial style, crediting him with innocence because there was no overt statement by him that amounted to a confession. In the future, then, Trump’s enablers have no reason to fear repercussions when they willingly follow his non-order orders.

Further evidence of Mueller’s timidity may be found in his ultimate conclusion that “the anticipated effect of removing the FBI director … would not necessarily be to prevent or impede the FBI from continuing its investigation.” II MR-74. That astonishing statement shows Mueller going out of his way to avoid the overt implications of evidence regarding Trump’s actions that were, by Trump’s own admission, intended to interfere with the Russia investigation. Why else would he have fired Comey and handled the firing as he did, including conspiring to give the impression that Rosenstein/Sessions were responsible for the firing? A seasoned prosecutor like Mueller surely knew better, but falls all over himself in avoiding the plain implications of Trump’s conduct. Moreover, even if the investigation would have been unfazed by Comey’s firing (and thus completely ignored by the surviving DOJ attorneys), the clear intent of the discharge was proven and, as Mueller’s own statement of the governing legal tests showed, an attempt to obstruct does not have to be successful to violate the criminal law.

Curiously, the Report takes a somewhat different approach to assessing evidence of Trump’s intentions when it addresses Trump’s attempts to have the Special Counsel removed. II MR-84 thru MR-90. This may be the result of superior clarity of the evidence but this is not apparent from the Report language. One explanation may be that the “committee” of lawyers that drafted the Report were assigned different sections and that each one had a different approach. The analysis highlights the fact that Trump lied publicly about whether he had tried to have Mueller removed, an approach Trump had taken to other issues but which led to Mueller equivocating about the strength of the evidence. II MR-90.

It is a fair question as to why Mueller did not indict Cory Lewandowski whom Trump chose as the go-between to direct AG Jeff Sessions to publicly speak about the unfairness of the SCO investigation and to limit its authority to future elections only. The recited evidence clearly shows that both Chief of Staff Kelly and Lewandowski himself were well aware of the impropriety of Trump’s demands and took actions to conceal his conduct from exposure. II MR 91-93 & n. 604.

Regarding the infamous Trump Tower meeting, the evidence is clear that Trump took overt actions to cover up the situation. II MR-98 to MR-107. Yes, Mueller concludes that Trump’s actions were merely part of a press strategy and not an effort to affect the SCO investigation or the related work of Congressional investigations. This is an astonishing judgment when the SCO allowed Trump to avoid testifying and be examined about this subject. It is therefore impossible to conclude that these obstructive acts did not occur. Moreover, Trump clearly acted dishonestly regarding disclosure of the information and created a misleading paper trail that could have affected decisions at SCO about what to do regarding the Trump Tower meeting. Mueller resolved all doubts in favor of Trump even in face of evidence of his lies and duplicity regarding the issue at hand.

Other instances of Mueller’s resolving doubts in favor of Trump or his people involved Trump’s effort, using his personal counsel, to have McGahn publish a statement denying that Trump had asked him to fire Mueller. Mueller resigns to a footnote and fails to explain the conflict between Hope Hicks & Gen. Kelly regarding whether the McGahn resistance story was correct. II MR-114, n. 788. Kelly, Sarah Sanders and Rob Porter all experienced memory failure regarding aspects of Trump’s demands and denials about trying to get McGahn to fire Mueller. Trump, of course, remorselessly lied to his own staff about what he had said. II MR-115. He continued to press McGahn to “correct” stories that ” McGahn repeatedly told Trump, and others, was accurate as written. II MR 116-117. Mueller resorts to the gentlest possible language when describing these activities, using phrases such as “runs counter to the evidence” as opposed to the more precise “he lied.” II MR-118.

Rob Porter played a direct role in delivering Trump’s demands to McGahn (II MR-116) but, without explanation, was not indicted for conspiracy to obstruct justice.

Mueller Report Part II – Trump Guilty of Obstruction of Justice-A

In many ways, the obstruction of justice issue is the easiest to understand. But, among other factors, because the Attorney General, a Trump appointee, took it upon himself to assert publicly conclusions that the Mueller Report plainly did not reach, the question has been clouded in the public mind. Republican lackies for the president, and the President himself, continue to repeat the AG’s lies about the Report.

The following analysis will endeavor to tell the truth about the Mueller Report and to ask fair questions that remain in the Report’s wake and as a result of Mueller’s refusal to speak about the substance of the Report.

A. Declining to Decide – Why Was This Not Disclosed at the Outset?

The Report opens with a summary statement of five major-impact concepts that shaped the investigation and the Report as its outcome (the Report says there are only four, but a careful reading indicates five).

  1. The Office of Special Counsel (OSC) accepted the 2000 Justice Department legal conclusion that a sitting president could not be indicted – the Report refers to this as a limitation on “prosecutorial jurisdiction;” II MR 1.
  2. The OSC believed, independent of the Justice Department’s opinion about constitutional constraints, indictment of the sitting president would “place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” II MR 1.
  3. Investigation is nonetheless permitted during the presidential term, immunity does not follow the person after presidential service is over and, very importantly: “if individuals other than the President committed an obstruction offense, they may be prosecuted at this time.” II MR 1.
  4. The OSC decided not to apply an “approach that could potentially result in a judgment that the President committed crimes” because it would be unfair to make such findings when the opportunity for a speedy trial on the charges would not be possible. II MR 2
  5. Notwithstanding (4) above, if the OSC concluded that the president did not commit crimes, it would have so stated, but it could not so state based on the evidence developed; therefore, the Report neither accuses nor exonerates the president. II MR 2

These introductory words in the Report raise many questions, among them:

  1. If the SCO knew at the outset that it would not issue indictments, why was this not disclosed at the beginning?
  2. I will go into this in much more detail later, but given the overwhelming evidence that Trump engaged in multiple acts of obstruction, why was not a single person indicted from his staff, his cabinet and in the Republican Party that supported his every falsehood and deflection?
  3. How was the investigative approach altered to assure that a “judgment that the President committed crimes” was not the result?
  4. Why was the Special Counsel prepared, if the evidence supported it, to publish a conclusion that the president was innocent of obstruction while being unwilling/unable to publish a conclusion that crimes were committed even if the evidence overwhelmingly supported that judgment? In light of this, the worst that the president could have faced was a finding that the evidence did not exonerate him. Considering that the alternative, an indictment, was never a possibility, Trump easily could see the outcome as a victory. And he did. And it appears that, at least in that sense, this was inevitable. The deck was stacked in Trump’s favor from the beginning.
  5. Was Mueller’s “no finding of innocence” a kind of double wink, saying, in effect, “my hands were tied, but here’s the evidence for Congress to make the obvious conclusion of guilt and impeach? Maybe, but that seems pretty naïve considering that, until the 2018 mid-term elections, Republicans controlled both houses of Congress and still control the Senate.

I’m not going to go into the details here, but I studied the entire 2000 Justice Department opinion finding that indictment of a sitting president is unconstitutional and it is remarkable in its presumption of undemonstrated facts. It employs extreme language when discussing the presumed burden on the president of having to defend an indictment while in office and seems to be written more to justify a pre-determined result than to analyze the situation neutrally. Like the Mueller investigation itself, the 2000 OLC opinion, like the 1973 opinion that it confirms, seems to have a pre-ordained outcome. Considering that the current occupant of the White House spends little time actually doing presidential work, the overblown language of the OLC opinions rings hollow, turning, as it does, entirely on the presumed interference with presidential responsibilities of the obligation to defend criminal charges.

Turning to the matter at hand, the Mueller Report begins with a summary of the “issues and events” that were examined for obstruction evidence. It includes:

(1) Trump’s lies about his business interests in Russia;

(2) Michael Flynn’s lies about his contacts with Russian Ambassador Kislyak;

(3) Trump’s attempt to extract loyalty commitments and a pledge to leave Flynn alone from then FBI Director Comey;

(4) Trump’s attempt to direct his Deputy National Security Advisor (K.T. McFarland) to produce a letter falsely stating the president had not directed Flynn to discuss U.S. sanctions with Kislyak (why would Trump try to manufacture evidence that he was innocent of soliciting help from Russia if he were innocent?);

(5) Trump’s attempt to prevent Attorney General Jeff Sessions from recusing himself regarding the Russia investigation;

(6) Trump’s attempt to use U.S. intelligence officials and again the FBI Director to make public statements exonerating him from involvement in Russian election interference;

(7) Trump’s firing of FBI Director Comey for the expressed purpose of relieving himself of the Russia investigation;

(8) Trump’s manipulation of the Comey firing letter to make it appear the firing was based on DOJ recommendations when in fact Trump had decided to fire Comey before hearing from DO;

(9) Trump’s attempt to have White House counsel tell the Acting Attorney General that the Special Counsel had conflicts of interest and must be fired;

(10) Trump’s attempt to limit Special Counsel to investigating future election meddling;

(11) Trump’s false narrative about the origins of the Trump Tower meeting, including repeated false denials by his personal attorney that Trump had any role in Trump Jr’s statement about the meeting;

(12) Trump’s attempts to pressure Sessions into un-recusing regarding the Russia investigation;

(13) Trump’s attempts to have White House counsel McGahn falsely state that Trump had not ordered him to have the Special Counsel removed; and

(14) Trump’s attempt to influence testimony from Flynn, Manafort and Cohen, including involvement by Trump’s personal attorney.

The Report then went through a most curious “on the one hand, on the other hand,” regarding Trump’s possible motives for interfering in the SCO investigation, defined by the point at which Trump became aware that he was personally under investigation. Mueller referred to these as “overarching factual issues.” II MR-7. Mueller expressed concern that some of Trump’s actions were within his Article II authority and that his motives should be judged in light of the fact that the investigation found no underlying crime in the Russia investigation, even though such a finding was unnecessary and despite the fact that Trump acted, throughout the entire period, as if he were guilty. II MR-7. Here, Mueller seems to have forgotten his own admonition that the absence of discovered evidence of participation in Russian interference was not proof that no such participation occurred. Finally, Mueller cites the fact that some of Trump’s allegedly obstructive conduct took place in public, although, again, the harm done would be the same for public as for secretive obstructive acts. II MR-7.

My sense of this odd insertion into the Report is that Mueller is revealing a disinclination to hold the president to account when he can’t indict. He is, in effect, gilding the lily in favor of Trump. However, in next analyzing various defenses asserted by Trump’s attorneys, Mueller concludes, correctly I think, that the corrupt use of Article II powers is not immune conduct. Mueller notes that the requirement of corrupt intent is a high standard and “requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.” II MR-8.

In the end, Mueller reaffirms the “principle that no person is above the law.” II MR-8. The Report then also concludes that based on the evidence adduced, the SCO could not find that the president committed no obstruction of justice crime. Therefore, although forbidden by policy from stating the prosecutorial conclusion that crimes were committed, the Report “does not exonerate him.” II MR-8.

Despite the clarity of that conclusion, the sitting Attorney General and then Trump himself concluded that the Report did exonerate him. Those statements by the AG and the President were false. The AG also said that he had independently evaluated all the evidence underlying Mueller’s Report and that he, the AG, had concluded that there was no evidence to support a finding of criminal conduct by the president. All that need to said about that is it is extremely unlikely that the AG personally was able to review the entirety of the evidence gathered by Mueller’s team in the time the AG had with the draft report. In making these claims, the AG stepped out of his role as Attorney General of the United States and acted as if he were Trump’s personal attorney defending him against Mueller. Barr’s conclusions should be discounted completely since they conflict with the evidence disclosed in the Report that clearly and strongly demonstrates that Trump did commit obstruction of justice on multiple occasions.

Semi-Final Thoughts on Mueller Report

Donald Trump and his enablers are jumping around like a bucking bronco that has just thrown its rider. This is to be expected. Supporters of the president are calling for revenge against those who questioned the president’s patriotism. Also to be expected from that crowd.The Trump gang does not, of course, care a whit about propriety as long as they win. Whether they have won remains to be seen, however.

I say that for several reasons, not least of which is the stunning revelation that Mueller’s team met with the Attorney General three weeks ago and disclosed that Mueller would make no finding on the obstruction of justice issue. Small wonder, then, that Barr/Rosenstein were able to absorb the entire Mueller report and provide their own crucial conclusion on obstruction (i.e., no obstruction) that Mueller had, on the evidence, declined to make.

Speaking of wonder, one must wonder now what else transpired during that meeting. Did Mueller’s people provide the AG with some or all of the evidence accumulated during the investigation? Apparently they did, because it would otherwise be impossible for Barr/Rosenstein to arrive at the conclusion of “no obstruction” as quickly as they did after Mueller’s report was “officially delivered” on Friday. This would also explain how an as yet unnamed “high official” at DOJ knew immediately after the report was delivered that there were no further indictments forthcoming.

If this is true, why was it done? I had originally thought it most likely that the Mueller report itself was just a summary, making the Barr/Rosenstein letter to Congress a summary of a summary, in which case Barr/Rosenstein wouldn’t have cared what the evidence was. Likely they don’t care anyway, but it is difficult to understand why Mueller would have provided a briefing to Barr/Rosenstein three weeks before releasing the report. Are we to believe as well that Barr/Rosenstein did not communicate the revelation to Trump before the DOJ letter was sent to Congress? It’s possible but if it were communicated in advance, we would have a hint as to why Trump was so suddenly down with the idea of pubic disclosure of the report.

All this is somewhat speculative, of course, but Mueller did the country no favors with these maneuvers. New questions arise at every turn. I confess that I decided early on not to watch the media circus of speculation and instant analysis that the Barr/Rosenstein letter inevitably created.

The ultimate question here – what role did Trump and his associates (family as well as hired hands) play in the documented Russian attempts to influence the 2016 election – will only be settled if and when the evidence on which Mueller relied is laid out for the public to digest. How much credence did Mueller give to Trump’s own statements and conduct in light of his refusal to be interviewed? It seems that Mueller discounted Trump’s own statements (Holt interview) about why he fired James Comey. If so, why did Mueller discount that evidence on both the collusion issue and the obstruction issue? Very importantly, how did Mueller square the Trump Tower meeting and Trump’s role in lying about its purpose with the conclusion that there was no collusion?

Was the no-collusion finding based on a lack of hard evidence such that Mueller, applying a strict beyond-a-reasonable doubt standard as a jury would do, felt no crime could be charged? To what extent did Mueller use the standard of probable cause in evaluating the evidence against Trump on collusion?

I could go on with this but it is pointless unless and until the full Mueller report and the evidence on which it was based are disclosed. Given the revelation of an undisclosed meeting between Mueller and DOJ leadership weeks ago at which Mueller’s findings were disclosed, such disclosure is essential if this sordid chapter of American history is to be put to rest.

The Mueller Report – Where From Here?

It is more than curious that Attorney General Barr and Deputy AG Rosenstein were able, in a matter of hours, to conclude that the massive evidence accumulated in the Mueller investigation in fact established that Trump did not obstruct justice when the Mueller report itself, according to quotations provided by Barr/Rosenstein, found that the evidence was inconclusive and did not exonerate the president on the obstruction issue. Not only is the Barr/Rosenstein conclusion not supported by the material they did disclose, there was no explanation of why Barr/Rosenstein felt it was appropriate for them to make their exoneration statement when the issue of how much of the Mueller report will be disclosed is still unresolved. Put that on top of the statement from an unnamed but high-ranking DOJ official on Saturday that the Mueller report contained no further indictments. Why, and who, was in such a hurry to begin pumping up the “not guilty” narrative for Trump?

The foregoing suggests to me that, in addition to other high crimes and misdemeanors, Trump has succeeded in undermining the core integrity of the Department of Justice. At the same time, the media seem to have lost their minds entirely and are reporting the story as if it were written by Barr/Rosenstein on their behalf.

Unless and until, the Mueller report, and the evidence on which it was based, is disclosed, the case against Trump will remain open. The only excuses for redaction of the report and withholding the evidence involve clear national security, executive privilege and grand jury limitations. The public is entitled to know how Mueller arrived at the conclusion that events such as the Trump Tower meeting and the multitude of lies told by Trump personally and by his family and other enablers did not support a finding of collusion. The public is also entitled to a deep understanding of the basis for Mueller’s conclusion that the evidence on obstruction was inconclusive when Trump admitted to, for example, firing James Comey for a corrupt reason.

I expect that after Trump does his victory dance, claiming exoneration when the Mueller report itself found no conclusion on that issue was possible, he will take the same position on disclosure that he took with his tax returns. He first said he would release them, then refused. He said just the other day that the Mueller report should be publicly disclosed but now, on the strength solely of the Barr/Rosenstein summary, he will almost certainly reverse his position again.

The battleground will now shift entirely to Congress and perhaps the courts as the various open cases against Trump and the Trump organizations proceed. There is no reason to give up, as some people, in shock no doubt, have suggested. Making a case against a sitting president, aided by a political party that is 100 percent invested in protecting him, was always going to be hard and take a long time. Trump’s victory claim is itself based on a false representation about the Barr/Rosenstein summary of the Mueller recommendations. No surprise that he would lie about that since he has lied about so many other things.

Hopefully, this development will awaken the Democratic Party to the difficult road ahead. Already, before the issues are even remotely resolved and while the actual Mueller report is still a mystery, pundits are predicting an easy win for Trump in 2020. Were that to happen, democracy as it has been known in America for my lifetime and beyond would likely be destroyed, possibly for decades. We would then be faced again with the duty outlined in the opening words of the Declaration of Independence: “when in the Course of human events it becomes necessary for one people to dissolve the political bands ….”

So let’s keep our wits about us and get about the business of planning and executing the political force that is necessary to fulfill not the ambitions of the plutocracy that now governs this country but the wishes and needs of the majority that voted against Trump in 2016 and can, with the right leadership and the right understanding, prevail.

Republican House Members Baying at the Moon

I have just finished reading the entire 235-page transcript of the Executive Session Committee on the Judiciary, Joint with the Committee on Government Reform and Oversight, U.S. House of Representatives, December 7, 2018 in which the Republican majority questioned James Comey, former Director of the FBI about the same set of issues related to his public statements during the runup to the 2016 election and to his explanation of why former Secretary of State Hillary Clinton was not charged with criminal conduct related to her misuse of emails.

Suffice to say, the Republicans failed yet again to lay a glove on Comey, and I say that recognizing that many people, myself included, disagree strongly with his decision to tell the world, on the eve of the election, that the FBI had reopened its investigation of Clinton because of the discovery of a trove of her emails on the laptop of Anthony Weiner, husband of Clinton aide, Huma Abedin

After all the questioning and posturing, only two things emerged that are even interesting at this point in time.

One was the effort by Rep. Trey Gowdy, to compare unfavorably the treatment of Clinton regarding whether she had simply “made a mistake” and the treatment of President Trump and General Michael Flynn on the question whether on the question of his potential attempt at obstruction of justice by asking Comey to drop the Flynn matter. Recall that Comey immediately prepared a memo about Trump’s demand and shared it with senior people at the FBI.

In classic fashion for the Republicans, Gowdy suggested that a statement by former President Obama had stated, while in office, that “the target of an investigation that was ongoing simply made a mistake and lacked the requisite criminal intent.” Gowdy demanded to know whether Comey didn’t think that Obama’s statement was “potentially obstruction of justice.”

“Mr. Comey. I didn’t see it as — through the lens of obstruction of justice. I saw it as threatening our ability to credibly complete the investigation.

Mr. Gowdy. In what way?

Mr. Comey. The President of the United States offering a view on a matter or a case that’s under investigation, when that President is of the same party as the subject of the investigation and working for her election, would tend to cast doubt in reasonable people’s minds about whether the investigation had been conducted and completed fairly, competently, and independently…. It concerns me whenever the Chief Executive comments on pending criminal investigations, something we see a lot today, which is why it concerned me when President Obama did it.

Mr. Gowdy. Well, it concerns me too, Director Comey. I’m also concerned that people treat similarly situated people the same. And did you make a memo after President Obama said she made a mistake and lacked the requisite criminal intent?

Mr. Comey. He said that on FOX News.

Mr. Gowdy. Right.

Mr. Comey. I did not make a memo about the FOX News broadcast.

BOOM!

The second instance occurred when Jim Jordan made much about the fact that James Baker, then General Counsel of the FBI, had testified earlier that it was a unique circumstance that anyone would approach him directly with evidence of someone’s wrongdoing that the discloser claimed would warrant an FBI investigation. What Jordan did not do was acknowledge that Baker had in fact returned alter to clarify that he did remember another case, a completely different matter, in which precisely that had occurred. It was left to the Democrats (Ms.  Sachsman Grooms in this case, she being Deputy Staff Director for Rep. Elijah Cummings of MD) to ask what amounted to redirect questions to fully develop the record that the Republicans were trying to create with partial information from a prior hearing.

Overall, despite all the sturm und drang from the Republicans, it was the same old same old. This is not part of an investigation designed to get at the truth about some threat to the country. It is an entirely partisan attempt to buttress the President against the ugly truth that he tried to obstruct justice by directly asking the Director of the FBI to drop a criminal investigation involving the National Security Advisor that Trump had appointed. The hearing will resume on December 17.

Trey Gowdy, soon to retire from the House, has little time left to restore himself to the good graces of the President who tolerance for independent thought is below zero. Read the history of Trump-Gowdy here: “Trump allies gang up on Gowdy,” https://politi.co/2Lgl1SZ  It’s pretty amusing. We can expect more “fireworks” from the Republicans in the next round with Comey who must be getting pretty tired of answering the same stupid questions over and over. But that’s what the President’s sycophants do. They have nothing else.

Laugh Until You Cry

An article in Newsweek by Emily Zogbi at https://bit.ly/2MppR5G, entitled Trump And Money: The Court Case That Could Blow His Finances Open,” reports that the Justice Department is resisting discovery requests by the plaintiffs (the State of Maryland and the District of Columbia) in a case claiming that Donald Trump’s continued business connection to the Trump International Hotel in Washington is resulting in violations of the Emoluments Clause of the Constitution.

The Emoluments Clause says, in pertinent part:

“…no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

An “emolument” has been broadly defined by the judge in the case as “any profit, gain or advantage of more than de minimis value, received directly or indirectly.” https://bit.ly/2BoIJwi

This approach, consistent with the historical roots of the Emoluments Clause, raises the issue whether Trump is benefiting financially from foreign firms and officials who choose now to stay in his hotel when visiting Washington.

The dispute over discovery relates to Donald Trump’s financial records and, since discovery is normally broadly permitted if it is likely to produce or lead to the production of admissible evidence regarding the matters at issue, there is likely panic in the Trump legal team and the White House. What Trump and his lawyers are most afraid of is that the document discovery will compel the release of his tax returns that he promised repeatedly he would disclose, then recanted, along with most other transparency commitments.

Now, here’s the laugher: the cited article notes that “the Justice Department objects to any “discovery” on a sitting president.” because “any discovery would necessarily be a distraction to the President’s performance of his constitutional duties.”

This “distraction” argument might have some force in some case (it didn’t concern the Republicans during the Clinton impeachment proceedings), but it’s a pathetic joke when applied to Donald Trump. It is undisputed that the president spends hours a day watching Fox News and similar right-wing propaganda sources, not to mention his Twitter habit, whereby he tweets constantly when events don’t go as he likes. That is virtually every day – in the past 24 hours, it appears he has issued at least 17 tweets, attacking people and newspapers, proclaiming his innocence of crimes and more. And, of course, there is his golf habit. As of March 2018, Trump spent almost 25 percent of his time at one of his golf courses. https://cnn.it/2FPWwL4 He reportedly refuses to read briefing books, or any books actually.

The argument that divulging his financial records, which Trump himself almost certainly never personally touches, is preposterous in light of Trump’s daily habits. The small amount of time required for Trump to participate in the document discovery process can be deducted from his daily TV, ranting and golf time without interfering one bit with the performance of his real responsibilities as chief executive of the United States.

By the way, this situation does not fit into the phony narrative spewed by Rudy Giuliani today on a TV interview in which he said, “truth isn’t truth.” His cited proof was a conflict of statements between Trump and James Comey. Giuliani’s argument is ludicrous for multiple reasons. Two of them are: (1) the President is lying and Comey is not; therefore, there is truth in what Comey said, regardless of Trump’s denials; (2) if there is no truth, then Trump’s declarations of innocence are all false and he is guilty of, among other things, obstruction of justice, collusion with a foreign power to interfere with a national election, violations of federal election laws and treason.

Manifestly, a conflict about whether an event happened or a statement was made does not mean there is no truth. It means there is a conflict that must be resolved and one of the ways we do that in litigation is through discovery. The gang of autocrats and enablers in the White House can’t have it both ways just because a lawyer says “yes is no” and “up is down.” That may have worked in the Humpty Dumpty tale, but not in real life. If Giuliani’s position that all statements about facts are equally true, even if in direct and irreconcilable conflict, he has walked his client into yet another legal dead-end.

Sessions’ Testimony Evaluated – Part 4 (Last)

Readers will likely be glad this is the final installment on the Sessions testimony. We concluded the last post with the exchange in which Sessions claimed that after his recusal he simply stopped being interested in the Trump-Russia issue and received no briefings and read little or nothing substantive about it.

Under questioning by Senator Harris, Sessions repeated his fan dance regarding disclosure of his notes and other relevant documents by saying,

I will commit to reviewing the rules of the department and as and when that issue is raised to respond appropriately.

“When that issue is raised?” It had just been raised by Sen. Harris’ request for the documents. Sessions yet again gets away with saying, in effect, “when, as and if you ask for documents after the hearing, I will consider whether to provide them.” We can only hope that Special Prosecutor Robert Mueller has reviewed the testimony and is demanding those documents.

In one of the highlights of the hearing, Senator Reed asked Sessions this:

… on July 7th when Mr. Comey made his first announcement about the case, you were on Fox News, and you said, first of all, director Comey is a skilled former prosecutor and then you concluded by saying essentially that it’s not his problem. It’s Hillary Clinton’s problem. Then in November, on November 6th, after Mr. Comey again made news in late October by reopening, if you will, the investigation, you said, again, on Fox News, you know, FBI director Comey did the right thing when he found new evidence. He had no choice but to report it to the American Congress where he had under oath testified the investigation was over. He had to correct that and say this investigation ongoing now. I’m sure it’s significant, or else he wouldn’t have announced that.

So, in July and November director Comey was doing exactly the right thing. You had no criticism of him. You felt that in fact he was a skilled professional prosecutor. You felt that his last statement in October was fully justified so how can you go from those statements to agreeing with Mr. Rosenstein and then asking the president or recommending that he be fired?

Once again, perhaps due to the way the hearing was structured, Sessions escaped with a statement that the problem was that Comey was obligated to advise that he had reopened the Clinton email investigation because he had, in error, gone public about the investigation initially. That may be true, at least arguably, but it doesn’t answer the question of why Sessions thought he had license to address Comey’s firing, having previously blessed both the initial disclosures by Comey as well as the follow-up announcement about reopening the investigation and recused himself from the investigation. Sessions’ inconsistency was laid bare for all to see, but he skated away without much notice with some double-talk. Here, again, the Democrats, and the country, certainly could have been helped by a more rigorous approach to the questioning.

I apologize again for this, but the following exchange between Senator McCain and Sessions bears extensive quotation because it is so revealing of the selective memory of the Attorney General:

MCCAIN: Over the last few weeks the administration has characterized your previously undisclosed meetings with Russia ambassador Kislyac as meetings you took in your official capacity as a U.S. Senator and a member of the Senate Armed Services Committee. As chairman of the that committee, let me ask you a few questions about that. At these meetings did you raise concerns about Russia invasion of Ukraine or annexation of Crimea?

SESSIONS: I did, Senator McCain, and I would like to follow up a little bit on that. That’s one of the meetings — that’s one of the issues that I recall explicitly. The day before my meeting with the Russian ambassador, I’d met with the Ukrainian ambassador, and I heard his concerns about Russia, and so I raised those with Mr. Kislyak, and he gave, as you can imagine, not one inch. Everything they did, the Russians had done, according to him was correct, and I remember pushing back on it, and it was a bit testy on that subject.

MCCAIN: …. Did you raise concerns about Russia’s support for President Bashar Al Assad and his campaign of indiscriminate violence against his own citizens including his use of chemical weapons?

SESSIONS: I don’t recall whether that was discussed or not.

MCCAIN: Did you raise concerns about Russia’s interference in our electoral process or interferences of the electoral processes cause of our allies?

SESSIONS: I don’t recall that being discussed….

MCCAIN: Yeah. In other words, Russia-related security issues, in your capacity as the chairman of the Strategic Forces Subcommittee, what Russia-related security issues did you hold hearings on or otherwise demonstrate a keen interest in?

SESSIONS: We may have discussed that. I just don’t have a real recall of the meeting. I may, I was not making a report about it to anyone. I just was basically willing to meet and see what he discussed.

MCCAIN: And his response was?

SESSIONS: I don’t recall. [all emphases added]

I will just leave that one there.

Chairman Burr ended the hearing with the usual fawning all over the witness for his years of sacrificial service to the country. He then asked Sessions to “work with the White House” to “see if there are any areas of questions that they feel comfortable with you answering and if they do, that you provide those answers in writing to the committee.”

The hearing was held June 13, almost a month ago. There has been no follow-up indication that Sessions has acted on that request and no indication that the Intelligence Committee has pursued him about it.

My overall conclusion about Sessions’ testimony is that he was repeatedly allowed to escape answering hard questions, due largely to ineffective examination by senators who seem either ill-equipped or poorly prepared to go toe-to-toe with a skilled attorney intent upon avoiding political or personal damage arising from his potential complicity in the Trump-Russia collusion scandal. The hearing may yet provide some fodder for Special Prosecutor Robert Mueller’s investigation but nonetheless a real missed opportunity.

Sessions’ Testimony Evaluated – Part 3

In the previous post, I began reviewing the questioning by the Committee following Sessions’ opening statement. While this is “old news” in one sense, I believe Sessions will yet come to play an important role in the Trump-Russia saga; it is, therefore, appropriate to fully consider the issues raised by his testimony under oath before the Senate Intelligence Committee.

We left off the last post with a brief discussion of the inexplicable reality that Sessions claimed to have agreed with Deputy Attorney General Rosenstein in discussions prior to Sessions’ confirmation as Attorney General that Comey’s conduct as FBI Director was unacceptable, yet he never discussed the issue with Comey. Instead he, allegedly, waited until President Trump asked for recommendations from Rosenstein and Sessions regarding Comey’s status.

Of course, Trump subsequently stated in the Lester Holt interview that he had already decided to fire Comey because of the Russia investigation. One interpretation of this is that Trump set up Rosenstein and Sessions by asking for their recommendation when he didn’t need it, then used it as a cover which he subsequently blew due to his obsession with being seen as the all-powerful leader who needs no help from underlings in making important decisions.

Returning to the hearing, Senator Warner asked whether Sessions ever discussed with Comey what happened in the Comey-Trump meeting from which all others were asked to leave the room. Sessions never answered the question but did confirm that Comey was concerned about the meeting and that Comey’s recall of what he, Comey, said to Sessions about the meeting was consistent with Sessions’ recall.

This episode is concerning because it illustrates that these Senators, who have a critically important role to play as investigators, are perhaps not being properly supported by staff who should be passing them notes or whispering in their ear to assure that complete follow-up questions are pursued. Not all Senators are equally equipped to engage in effective cross-examination of evasive witnesses and should have some professional and timely legal help when it matters most.

One of the most interesting parts of the questioning related to Sessions’ justification for having recused himself from the Russia investigation but nevertheless participating in the firing of Comey. Sessions said the Russia investigation was just one of thousands underway and that he had a responsibility to manage the leadership of the Department of Justice and thus could, in effect, disregard the Russia investigation when making the leadership call.

There was considerable sparring between Senator Heinrich and Sessions regarding the latter’s refusal to answer questions about conversations with President Trump, to the point at which Heinrich flatly accused Sessions of impeding the Committee’s investigation:

you are obstructing that congressional investigation by not answering these questions, and I think your silence, like the silence of Director Coats, like the silence of Admiral Rogers speaks volumes.

Sessions then sought refuge in advice he claimed to have received from DOJ lawyers that Sessions’ preservation of Trump’s later ability to assert Executive Privilege was proper. Heinrich accepted that claim at face value without further exploration, wondering aloud why Sessions had not said that initially. Heinrich ended his examination with this statement:

I find it strange that neither you nor deputy attorney general Rod Rosenstein brought up performance issues with director Comey, and, in fact, deputy FBI director McCabe has directly refuted any assertion that there were performance issues.

It is worth noting that after Heinrich implicated Coats and Rogers, Chairman Burr came to their defense, pointing out that Rogers had testified in closed session for two hours and that all questions could then have been asked of him. It appears that political kinship counts for more than truth seeking in these proceedings.

I am going to close this post with a long quotation of the Q&A between Senator King and Sessions, interspersed with my “English translation” of Sessions’ responses. The quote mainly speaks for itself.

SESSIONS: What we try to do, I think most cabinet officials, others that you questioned recently, officials before the committee, protect the president’s right to do so [assert Executive Privilege]. If it comes to a point where the issue is clear and there’s a dispute about it, at some point the president will either assert the privilege or not or some other privilege would be asserted, but at this point I believe it’s premature. [emphasis added]

KING: You’re asserting a privilege.

SESSIONS: It would be premature for me to deny the president a full and intelligent choice about executive privilege. That’s not necessary at this point.

In English, Sessions is saying that he is not going to answer, now or in the future, questions that might reveal anything about the President’s statements or statement made to the President unless and until two conditions are met: (1) “the issue is clear and there’s a dispute about it,” and (2) the President asserts some privilege related to it. Until then, Sessions rather than the Intelligence Committee will decide whether it is necessary to take the questions to the President and right now it’s “not necessary” so let’s move on.” And he gets away with it again.

King then asked Sessions for his view about Russian interference in the 2016 elections. Sessions’ answer is astounding for someone who had previously claimed he was responsible for managing the Department of Justice:

KING: Do you believe the Russians interfered with the 2016 elections?

SESSIONS: It appears so. The intelligence community seems to be united in that, but I have to tell you, senator king, I know nothing but what I’ve read in the paper. I’ve never received any details, briefing on how hacking occurred or how information was alleged to have influenced the campaigns.

KING: Between the election, there was a memorandum from the intelligence community on October 9th, that detailed what the Russians were doing after the election, before the inauguration. You never sought any information about this rather dramatic attack on our country?

SESSIONS: No.

KING: You never asked for a briefing or attended a briefing or ruled are the intelligence reports?

SESSIONS: You might have been very critical if I as an active part of the campaign was seeking intelligence related to something that might be relevant to the campaign. I’m not sure —

KING: I’m not talking about the campaign. I’m talking about what the Russians did. You received no briefing on the Russian active measures in connection with the 2016 election.

SESSIONS: No, I don’t believe I ever did.

Sessions’ Testimony Evaluated – Part 2

In the previous post, I discussed the opening of Attorney General Sessions’ testimony before the Senate Select Committee on Intelligence. In this part, I will begin reviewing the questioning by the Committee:

Chairman Burr began by asking about Trump’s Foreign Policy Speech at the Mayflower Hotel, to which, as noted in Part 1, the Russian Ambassador, and known spy, Sergey Kislyak was invited. Burr offered up this softball:

Would you say you were there as a United States Senator or as a surrogate of the campaign for this event?

To which Sessions said:

I came there as an interested person and very anxious to see how President Trump would do in his first major foreign policy address. I believe he had only given one major speech before and that was maybe at the Jewish event. It was an interesting time for me to observe his delivery and the message he would make. That was my main purpose of being there.

What? Sessions was sworn in as Attorney General on February 9, recused himself from the Trump-Russia investigation on March 2 and on April 27, the date of the Mayflower speech, he wants us to believe he was just another guy interested to see how the President would handle himself at his second big speech, the first having been given at the “Jewish event.” Wait, the “Jewish event?” What kind of language is that? The reference is to Holocaust Remembrance Day, which was two days before the Mayflower event.

Putting that aside, for now, Sessions’ explanation for his presence at the Mayflower speech simply beggars the imagination. He was present at an invitation-only VIP reception for about two dozen people, including Kislyak, and it is utterly implausible that he was there just out of curiosity about Trump’s speech-making capabilities.

Sessions then introduced the concept of “appropriateness” to his testimony. When Senator Warner asked for a commitment to make himself (Sessions) available to the committee in the weeks/months ahead, Sessions said he would do so “as appropriate,” citing his belief that it was not “good policy” to “continually bring cabinet members or the attorney general before multiple committees going over the same things over and over.” Then this ensued:

WARNER: Appropriations committee raised that issue.

SESSIONS: I just gave you my answer.

WARNER: Can we get your commitment since there will be questions about the meetings that took place or not, access to documents or memoranda or your day book or something?

SESSIONS: We will be glad to provide appropriate responses to your questions and review them carefully. [emphasis added]

Sessions continued to avoid answering even simple direct questions:

WARNER: You have confidence [Robert Mueller] will do the job?

SESSIONS: I will not discuss hypotheticals or what might be a factual situation in the future that I’m not aware of today. I know nothing about the investigation. I fully recuse myself.

WARNER: I have a series of questions, sir. Do you believe the president has confidence?

SESSIONS: I have not talked to him about it.

There then ensued a struggle between Sen. Warner and Sessions over whether anyone at DOJ had discussed presidential pardons with “any of the individuals involved with the Russia investigation.” Interestingly, Sessions treated that question as seeking information about conversations with the President and refused to answer. Warner asked about “other Department of Justice or White House officials,” but again Sessions refused.

We have a right to have full and robust debate within the Department of Justice and encourage people to speak up and argue cases on different sides. Those arguments are not — historically we have seen they shouldn’t be revealed.

This, I suggest, is tantamount to a statement that the Department of Justice will simply not answer to the investigative bodies within the United States Congress. It would be quite significant if DOJ lawyers were already talking about presidential pardons related to Trump-Russia, but Sessions essentially said “none of your business.”

Finally, for today, Warner did obtain Sessions’ concession that while he claimed to have had severe concerns about James Comey’s performance as FBI director even prior to being confirmed as Attorney General, he never discussed those concerns with Comey. Instead, he endorsed Deputy Attorney General Rosenstein’s memo to the President that Comey should be summarily fired.

Sessions’ Testimony Evaluated – Part 1

Given the speed with which events overrun, and overwrite, memories, I am going to devote a lot of words to the testimony of Jefferson B. Sessions III, attorney general of the United States, before the Senate Select Committee on Intelligence on June 13, 2017. This analysis is based on the transcript of the hearing published at http://politi.co/2rtgQJf with correction of obvious typos. A full evaluation is going to require multiple posts, so please bear with me. I think this worth doing because of the gravity of the issues raised.

Note at the outset one unusual feature of the hearing that distinguishes it from normal investigative legal work: both Chairman Burr and Vice Chair Warner go on at some length to detail the areas of inquiry, including specific questions they intend to ask the witness. This is part of the politesse of the political process that deters the kind of relentless interrogation that true investigative work involves. This was well illustrated when Senator McCain leapt into action to alert the Chairman that Senator Kamala Harris was being too aggressive in her very lawyer-like cross-examination of Sessions about the nature of his preparation, or lack of it, for testifying.

Also of special interest was Warner’s commendation of the Chairman about his remark at the end of the Comey hearing the week before that, given the “pattern of administration officials refusing to answer public, unclassified questions about allegations about the president in this investigation,” it was “not acceptable for [witnesses] to come forward without answers.” Later, Sessions would refuse to answer multiple questions on the grounds that the President should be given a prior opportunity to invoke Executive Privilege regarding answers to questions involving conversations with him and any member of the Cabinet and, likely, any member of White House staff.

Sessions’ opening remarks asserted that he did not remember what would in all events have been a casual contact with Russian Ambassador, and known Russian spy, Sergey Kislyak because they were both invited to Trump’s first foreign policy speech preceded by a private reception for perhaps two dozen people. This description is not implausible in the context of Washington political processes, but the question, not asked by any Committee member, was why was the Russian Ambassador invited in the first place to this small private and exclusive gathering that was attended by Trump himself, however briefly?

Sessions then undertook to address his response to Senator Franken during the AG’s confirmation hearing. The exact question posed, after a short recital of current press reports, was

if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”

Sessions never answered that question. Instead, he said:

Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.

During his Intelligence Committee testimony, Sessions entered a sweeping denial of any discussions with anyone about campaign interference, and a flat denial of knowledge of such conversations by anyone else in the Trump campaign organization. This he remembered quite clearly. Then, referring to Senator Franken’s question about then-current press reports, Sessions said:

That was the context in which I was asked the question and in this that context my answer was a fair and correct response to the charge as I understood it. I was responding to the allegation that surrogates had been meeting with Russians on a regular basis. It simply did not occur to me to go further than the context and to list any conversations that I may have had with Russians in routine situations as I had many routine meetings with other foreign officials.

On its face this is not a completely implausible explanation. However, there are other relevant facts that raise questions about plausibility.

Sessions was sworn in as Attorney General on February 9. His testimony maintained that until his formal recusal on March 2, a period of three full weeks, he received no information or briefings related to the Russia investigation other than discussions related to press reports that might bear on the need to recuse himself.

But, most curiously, Sessions expressly denied that his recusal had anything to do with possible campaign wrongdoing. Instead, he claimed his recusal was based entirely on a federal regulation, 28 CFR § 45.2, that forbids a DOJ employee from participating in a criminal investigation of an organization if the employee had a personal relationship with the target. A waiver is possible if the employee’s superior makes certain findings but there was no chance of a legitimate waiver for Sessions who stated he believed the regulation “required” his recusal. Sessions then declared that such a recusal could nevertheless not be allowed to stop him from running the Department of Justice and, therefore, he acted properly in presenting to the President

my concerns and those of Deputy Attorney General Rod Rosenstein about the ongoing leadership issues at the FBI as stated in my letter recommending the removal of Mr. Comey along with the Deputy Attorney General’s memorandum on that issue…. Those represent a clear statement of my views. I adopted Deputy Attorney General Rosenstein’s points he made in his memorandum and made my recommendation. It is absurd, frankly, to suggest that a recusal from a single specific investigation would render the attorney general unable to manage the leadership of the various Department of Justice law enforcement components that conduct thousands of investigations.

This statement raises more fundamental questions that were never addressed by the Committee.

First, if, as Sessions claims, the recusal was based solely on the “campaign relationship” issue covered by the regulations, why did it take three full weeks for him to recuse himself? The governing regulation is only a few paragraphs and is very explicit. The President was reportedly furious about Sessions’ recusal and tweeted about it. What went on during that three weeks?

Second, whatever the asserted reason for the recusal was, if the recusal was from the Russia investigation, defined as the question whether there were inappropriate/unlawful contacts between the Trump campaign and the Russians, being led by FBI Director Comey, how can Sessions, in the guise of managing the Department of Justice, justify recommending the firing of the person heading the investigation? Sessions appears to believe that he is free to do anything he chooses in the Russia investigation because his recusal was based on something other than his interactions with “representatives” of the Russian government. It is difficult to imagine a court accepting such twisted reasoning which effectively vitiates the recusal as regards anything related to the Trump-Russia investigation.

This concludes consideration of Sessions’ direct testimony. In the next installment, I will take up the questioning by the members of the Senate Intelligence Committee.