Tag Archives: Comey

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.

Voice from the Past Trying to Tip the Scale?

Call me paranoid if you like, but the publication of a think-piece by Kenneth Starr leaves me more than a little disturbed. The article is entitled “Believe in the process” in the published Washington Post of June 16, 2017 and as “Firing Mueller would be an insult to the Founding Fathers” in the online version of the Post. http://wapo.st/2rDNAja

Starr, you may recall, was U.S. Solicitor General for President Bush (41) and served as independent counsel investigating various aspects of the Clinton presidency. His story can be seen at https://en.wikipedia.org/wiki/Ken_Starr.

Starr’s observations in the Post start off well enough, arguing that “the process, untidy and rancorous as ever, is actually working well” and that we need to “step back” and let the government finish its work. Referring to the present special prosecutor, Robert Mueller, Starr states the obvious: “the president would be singularly ill-advised to threaten, much less order, Mueller’s firing.” Starr adds that “Wisdom counsels strongly against unleashing a 21st-century version of the Saturday Night Massacre of Watergate-era infamy.”

Then, a funny thing happens. In what looks to me like a subtle attempt at gas-lighting. Starr writes:

Certainly, if Mueller wanders outside the bounds of professionalism and basic integrity, he can and should be fired. Concerns are already being raised – including about Mueller’s friendship with Comey and his staff-packing with anti-Trump partisans. He will be closely watched.

Maybe I missed it, but I haven’t noticed any “concerns” being raised about Mueller’s approach to the investigation of Trump-Russia or other possible criminal conduct by Trump and his administration. Virtually everyone who has addressed the subject has praised Mueller as a paragon of integrity and professionalism, someone beyond reproach.

Starr goes further, addressing Attorney General Jeffrey Sessions’ refusal, in testimony before the Senate Intelligence Committee, to discuss any aspect of conversations with the president related to anything. Sessions asserted that the president should be given the questions and what amounts to an indefinite period of time to decide whether and how the questions can be answered. Starr flatly declares that Sessions “was on entirely solid ground in safeguarding the president’s right to invoke executive privilege.”

However, when Senator Kamala Harris tried to examine Sessions about why Sessions did not prepare for the inevitable questions about contacts with Trump, she was interrupted by Senator McCain waiving a verbal flag at Chairman Burr to stop Harris’ effort to get at that important question. Burr responded by effectively preventing further examination on that point. The question I have raised in other forums was, of course, not reached: why the previous intelligence leaders and Sessions’ appearance did not include White House counsel who could have advised on the spot about the assertion of executive privilege and the basis for it.

Then the Starr article gets even crazier and more troublesome. Starr goes on to say that “the early returns also suggest the absence of any Oval Office criminality.” He sells out on whether Trump’s “hope” that Comey would drop the Michael Flynn investigation was reasonably construed by Comey as a statement of presidential intention rather than a wistful wishing upon a star (no pun intended, but I do like it). Starr claims that “to hope that the director would abandon a line of inquiry is most naturally read as pleading and cajoling, but not as an order” and “in any event, at the time, Comey didn’t treat the president’s words as a directive.”

These declarations are astonishing in multiple ways that reflect an attempt by Starr to put his foot on the scale and add gravitas to Trump’s defense against obstruction of justice. There is no indication, other than Fox News and its like, that “early returns … suggest the absence of any Oval Office criminality.”

There are, I suggest, millions of Americans who believe just the opposite based on what has been disclosed thus far. Moreover, what Starr claims is the most “naturally read” thrust of the president’s stated “hope” is, in fact, downright silly, since Starr was not present to observe the president’s demeanor or fully evaluate the context. The notion that the president of the United States, known globally for his always-aggressive style, was effectively on bended knee before a man whose employment was in the president’s hands is facially absurd. And, of course, Starr ignores the most inconvenient fact, confirmed by Sessions, that Trump cleared the room before addressing his “hope” to Comey. Trump can’t begin to remember the last time he pleaded and cajoled to get his way.

Finally, there is Starr’s claim that since Comey at the time didn’t treat Trump’s words as a “directive,” the “pleading and cajoling” must not have been a directive. What would Comey have had to do to show that he took the words as a statement of what the president wanted and expected of him? Salute? Bow down? In fact, Comey went to his car and promptly wrote down what had transpired. And he asked the Attorney General to not leave him alone with the president in the future. That memorandum is now in the hands of Special Prosecutor Mueller. Starr would have us believe that Comey made the whole thing up, an act that even most of Comey’s principal adversaries seem to believe is inconsistent with both his character and long-time behavior.

I suspect we have not seen the last of Trump’s shadow team stepping forward to try to shore up the sinking ship that Trump has captained to near disaster. Newt Gingrich is another voice from the Republican past who is going to extraordinary lengths to sustain the president in his self-imposed hour of ever-deepening crisis. Gingrich for example, has stated that a president cannot, as a matter of law, commit obstruction of justice. http://bit.ly/2rFgD5N

Last time I looked, the United States was still a constitutional democracy. We do not have a king. We have not had a king since 1776 when we declared our independence and officially ended any allegiance to the King of England. Gingrich should refresh his memory regarding the U.S. Constitution.

It would not be surprising if more people like Starr and Gingrich join the proverbial circle of wagons around the White House. Even Vice President Pence is lawyering up. Give it your best shot, gentlemen. The cavalry is coming. But this is not a Western movie and the cavalry is not coming to save you.