Tag Archives: Manafort

Donald Trump — A Gangster in the White House

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I write to give you the gist of Jeffrey Toobin’s excellent True Crimes and Misdemeanors.

If there is anything to be disappointed about, it is that the book was published in early August of 2020 and thus does not address Trump’s (and other Republicans’) incitement of the January 6 attack and his second impeachment. But there is likely little that Toobin could add at this stage to what is known about that, given the stonewalling by most of Trump’s enablers and the apparent indifference of the Department of Justice to the entire matter.

That limitation aside, this book, like the exceptional Where Law Ends by Andrew Weissman, displays throughout the gift of clear exposition. A complex tale told well. And, like Weissman, Toobin pulls none of his punches in judging the behavior of most of the participants in the criminal enterprise that defined the Trump presidency. If there is anything to complain about in that regard, it’s Toobin’s obvious fascination with and adoration of the role, style, and grit of Speaker of the House Nancy Pelosi, perhaps the only major player to come out of the Trump crime spree as a genuine hero in Toobin’s eyes.

The book reads like a true crime novel, and it is all about crimes. Sad to say, it’s also not a novel. It’s true. All of it.

So, where to begin? The book opens with a summary analysis of Trump’s survival despite the findings of the Mueller Report. There is plenty of blame to go around but much of it rests at the feet of Mueller himself:

Mueller’s caution and reticence led him to fail at his two most important tasks.  Thanks to the clever actions (and strategic inaction) of Trump’s legal team, Mueller failed to obtain a meaningful interview with Trump himself. Even worse, Mueller convinced himself – wrongly – that he had to write a final report that was nearly incomprehensible to ordinary citizens in its legal conclusions. [True Crimes at 8]

Toobin ends the opening with the observation that,

everyone – friends as well as enemies – knew what [Trump] had done. It was obvious to any sentient observer that he did what he was accused of in the Mueller Report and in the articles of impeachment. [[True Crimes at 11]

The book then narrates the story of how that happened, beginning with James Comey’s betrayal of the country by his decision to ignore FBI policy about disclosing details of investigations at all, let alone on the literal eve of an election, with the result that Hillary Clinton’s candidacy was undermined at the last minute. The subsequent narrative will be familiar to everyone who was paying attention but the details, including many not previously revealed (to my knowledge) propel the story forward. Toobin concludes, “it appears likely, if not certain, that Comey cost Clinton the presidency.” [[True Crimes at 28] Indeed.

Toobin makes a compelling case that Robert Mueller was hyper-focused on bringing his investigation to a rapid close and thus failed to pursue “the single most important piece of evidence,” namely, the testimony of Donald Trump himself. But,

Mueller didn’t. He backed down. He couldn’t bring himself to launch a direct legal attack against the president of the United States. [True Crimes at 197]

Of all the mistakes made, and in truth every serious investigation of complex events will have some, the failure to force Trump’s testimonial hand stands out as the largest and the least understandable in light of Mueller’s assignment. Everyone – Mueller’s team, Trump’s lawyers – knew Trump would perjure himself if questioned under oath. He would have had extreme difficulty responding to skilled cross-examination of his conduct and motives. This is particularly important because Mueller believed that Trump’s “state of mind” was critical to bringing charges against him. For me, that will always remain a mystery. State of mind is simply never directly knowable, despite what we’ve seen in some phantasmagorical science fiction movies. It is inferable from conduct in context and circumstances, always.

Mueller made other mistakes. He should have squeezed Michael Cohen, Trump’s personal lawyer whom they had dead to rights on campaign finance violations and lying to Congress. Without ever asking whether his jurisdiction might include the Cohen issues, Mueller turned the case over to the Southern District of New York. Because those prosecutors, accomplished though they were, saw their role narrowly – Cohen was the target, not Trump – they never sought Trump’s tax returns or his financial records.

In a precursor to what was to come, William Barr, who had once been Mueller’s boss at DOJ, volunteered in June 2018 a 19-page memo to Deputy Attorney General Rod Rosenstein, who had appointed Mueller as Special Counsel, attacking the legitimacy of the Mueller investigation. Barr argued that the president could, for any reason or no reason (the legal standard for “at will” employment firing), fire the head of the FBI (Comey) and such action could not be attacked as obstruction of justice. Barr also objected on constitutional grounds to any attempt to force Trump to testify. [True Crimes at 234-235]

Thereafter, negotiations over Trump’s possible testimony were postponed while Rudy Giuliani was brought in to lead Trump’s legal defense team. At a “get-acquainted” meeting with Mueller’s team,

Giuliani wanted to nail down Mueller’s commitment that he would follow the [DOJ Office of Legal Counsel] policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236, italics mine]

When I read that, I almost gagged. Zebley was Mueller’s former Chief of Staff at the FBI and his top aide in the Trump investigation. Zebley was the subject of much critical assessment in Andrew Weissmann’s Where Law Ends, discussed in detail here: https://bit.ly/3Jn8ye3

I can think of no plausible reason for Mueller or his team to offer such a concession at that point, or likely at any point, in the investigation without getting something of extraordinary importance in return. But, no, the point was “volunteered” away. Astonishing and inexplicable in my opinion.

Many key players in the prolonged saga of Trump’s presidency come in for harsh criticism in Toobin’s accounting, including Judge T.S. Ellis, the judge in the first trial of Paul Manafort, Trump’s former campaign chair. Toobin notes the judge’s “partisanship and incompetence.” [True Crimes at 238] Strong words, indeed, but justified by the shocking events he narrates.

One beef I have with Toobin relates to the central issue in the Mueller investigation. Mueller concluded that there was no evidence proving that Trump or his campaign “colluded” with Russia. Toobin accepts this finding, with the qualification that Trump and his inner circle certainly wanted to collude. [True Crimes at 269] Given the failure to examine Trump personally under oath or to subpoena his taxes and financial records, Toobin’s total acceptance of Trump’s innocence on the collusion issue is, I think, unjustified. Even more so because Trump’s answers to the written questions ultimately submitted to him by Mueller included 36 instances of “don’t remember” by the man who repeatedly claimed to have a genius level mind and memory. [True Crimes at 273]

Toobin holds nothing back in stating that Rudy Giuliani’s involvement in the Ukraine extortion episode “must rank among the most disastrous pieces of advocacy in the history American lawyering.” [True Crimes at 292] No doubt, but Toobin also holds nothing back regarding the Mueller Report itself. He correctly concludes that the Report established that “Trump committed several acts of criminal obstruction of justice.” [True Crimes at 300] Using his gift of snark to full advantage, Toobin paraphrases the Mueller conclusions on obstruction:

We can investigate the President, but we can’t prosecute the President. If our investigation determined that he was in the clear, we’d say that – but we’re not saying that. Nor are we saying that he’s guilty of anything. So we’re not saying he’s guilty – but we’re not saying he’s innocent either. Basically. [True Crimes at 302]

Toobin characterizes the decision to avoid saying whether prosecution was warranted as a “gift to Trump.” [True Crimes at 302] Right again.

For several reasons, a special mention must be made of then- Attorney General William Barr’s issuance of a second letter, two days after he received the 448-page Mueller Report, interpreting the Report to say things it did not say and drawing conclusions the Report did not draw. Or, as Toobin put it, Barr put “a stake in Mueller.” [True Crimes at 307] And then, one of the highlights of the entire book for me,

Many on Mueller’s team, especially at the lower levels, were incandescent with fury at Barr.” [True Crimes at 308]

I don’t think will ever forget that phrase, “incandescent with fury” that so graphically describes how I and many others felt when Barr’s treachery sank in.

The book goes on to cover Trump’s Ukraine extortion scheme, the outrageous efforts of the White House and outside counsel to defend the indefensible, the refusal of Republican senators to hear the evidence through witnesses and their determination to protect Trump at any and all costs. Toobin is unsparing in his condemnation of these efforts, and all are worth reading.

The main thing that really surprised me in the book was an omission. I may have missed it, though I doubt it. There was no discussion of the fate of the full written report (I will not dignify it with the term “transcript,” since it was in no sense an actual transcript) on the Trump-Zelensky call that was widely reported to have been sequestered in a White House server to which access was extremely limited. I have seen no reports about whether the Biden administration has opened the server to discover its contents or whether the server was removed with by the outgoing administration to, again, protect Trump from further exposure of his crimes.

I also strongly disagree, as I have previously written, with the decision of the House managers (mainly the Speaker) to limit the impeachments to narrowly drawn issues, given the breadth and depth of Trump’s crimes in office. The House was not bound by the self-imposed limitations of the Mueller Report and, knowing, as the House did, that conviction of Trump was completely unlikely, they should have thrown the book at him, exposing for the watching world the range and importance of his crimes in office.

I also must record my fundamental disagreement with Toobin’s judgment about the proper role of the Senate in the impeachments. He says,

The senators were nothing more, and nothing less, than politicians were supposed to decide the president’s fate based just in part on the evidence at trial but also on their overall sense of what was best for the country.

That view is far too narrow and validates the refusal of the Republican Party to come to grips with the realities of Trump’s presidency. There remains, and history will confirm, no doubt that Donald Trump committed multiple crimes in office and that he committed crimes in attempting to stop the peaceful transfer of power to the Biden administration. To say that the Senate’s judgment was rightly based on a self-interested determination of “what was best for the country” makes a sham of the entire constitutional process. I do not believe the Founding Fathers, if they had been able to imagine a president like Trump, would have intended that the Senate could just say “it’s in our best interest to keep the leader of our party in power, so he’s ‘not guilty’ regardless of what he did.” I believe the Founding Fathers, whatever their other flaws, wanted and expected more when the extraordinary remedy of impeachment was brought against a president.

Toobin does not spend much time on Trump’s handling of the pandemic because that was not the primary topic of the book. But, as some of the Republican senators observed, the people would eventually render their judgment of Trump on election day in 2020. And they did. For reasons I still cannot grasp, Trump received more than 74 million votes, despite everything. But, fortunately for the republic and the world, Joe Biden won more than 81 million votes and a sufficient margin in the Electoral College to take the presidency. Then, Trump incited a coup to try to stop the transfer of power to the new president.

This was what Trump cared about the most. Toobin presciently notes,

Trump had no great passions on the issues, no policy agenda that he was determined to enact. For Trump, his presidency was more about him than what he could accomplish. For this reason, the only verdict that has ever mattered to Trump is the one rendered on Election Day.

Thus it was written and thus it was done.

You may recall Michael Cohen’s testimony before Congress in which he likened Trump to a mafia boss. While Cohen’s handling of Trump and his legal affairs was problematic, to say the least, it appears that he correctly identified the central idea of Trump’s personal code of conduct.

The central question facing us now is, I think, whether the current Attorney General, Merrick Garland, is just another Robert Mueller. As an earlier post has discussed, the statute of limitations has already run on one of Trump’s obstruction crimes. Garland has publicly stated he will follow the evidence and the law even if it leads to Trump. More lawyers have apparently been hired to work on Trump matters.

Meanwhile, time marches only in one direction. The country waits for action. Trump’s crimes, and those of his enablers in the White House and Congress, stretch well back into his presidency, with the capstone being his incitement of the attack on the Capitol on January 6, 2021, more than 15 months ago. The nation waits ….

“Lawless White House” – the Mueller Report – “Oh! What A Tangled Web We Weave …”

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The rest of line, you likely know, is “when first we practice to deceive.” Originally published in 1808 but completely relevant to the politics of today. The quote of a “lawless White House” is in the extraordinary book I’m about to describe.

We’ll never know the whole truth about Russian interference in the 2016 election or, most likely, many of the other crimes committed by Donald Trump and his White House/Congressional enablers. Most of the relevant documents have likely been destroyed or hidden away from the prying eyes of investigators armed with subpoenas and, one may wish, indictments. Trump and his enablers have shown they have no regard for law and will do anything to avoid being held accountable.

A bitter pill to swallow. There is, however, still much we don’t know that can be discovered despite the fact that the relevant rules favor the criminals and traitors – see, e.g., the accused is innocent until proven guilty, proceedings of the grand jury are secret, non-disclosure agreements are enforceable, attorney-client privilege and executive privilege, to name just a few.

In 2019 I read every word of and wrote extensively about the Mueller Report, with emphasis on what seemed to me the glaring shortcomings of the investigation and the conclusions reached. The links to those posts are set out at the end of this post for those who care to look back. Little did I know what was really going on. I had only the report itself and various news reports as sources.

But now we have Andrew Weissmann’s remarkable book, Where Law Ends—Inside the Mueller Investigation, published in Sept. 2020, but which I have just discovered and read compulsively. It is a barn burner in the truest sense and should be read by everyone who is genuinely interested in saving our democracy. When you are done, you will understand much better the frailties of our constitutional system and the means by which a putative dictator can undermine the separation of powers and subvert the rights we have taken for granted.

You know you’re in for a wild ride in the Introduction, where Weissmann describes AG William Barr’s 4-page letter purporting to explain and elaborate on the Mueller Report as “so many deceptions,” “deliberately worded obfuscations,” and “unbridled lies.” Weissman, after a long career in the FBI under Mueller, was put in charge of the “M Team” for the Special Counsel Investigation. The M Team was the group of lawyers, FBI agents and others who would determine what crimes had been committed, if any (obligatory qualification there) by Paul Manafort, who for a time was Donald Trump’s campaign manager, among many other roles. The other teams were the “R” (to investigate Russian interference in the 2016 election and possible collusion by the Trump campaign with Russian bad actors) and the “600” team (to determine whether Trump had obstructed justice in violation of federal law).

Weissmann thus was in the center of the investigation, privy to most of the challenges and involved in most of the discussion of strategy and tactics as Trump’s determination to undermine the investigation at all costs became apparent.

I am only going to touch on some highlights, that I hope will induce everyone reading this to acquire and digest Weissmann’s book. A full summary would far exceed the bounds of a reasonable blog post and give away too much of the astonishing revelations.

With books like this one, there are often questions about the content and timing of publication. The Twitterverse and other commenters reacted as expected, with some questioning “why wait so long?” “why not reveal everything, including the secret grand jury evidence?” and so on. My response to those critics is (1) pre-publication review was essential to the book’s publication at any time, (2) the book is meticulously fact-oriented and replete with legal analysis (presented mainly in laymen’s’ terms) – something of this nature could not be rushed, and (3) Weissmann gained nothing personally or professionally from delay – he was and is committed to the preservation of law and would have been foolish to violate the confidentiality of grand jury proceedings.

It is also telling that, atypically of exposé books, Weissmann does not make himself the unsung hero of the tale. Quite the contrary, he admits to more than one serious error of judgment in dealing with Mueller and Mueller’s uptight top deputy (Aaron Zebley, Mueller’s former Chief of Staff at the FBI) who was brought in from Mueller’s law firm even before Weissmann was hired. Weissmann takes great pains to explain the competing considerations and why he made particular decisions, while also, appropriately in my view, assigning serious errors to people who deserved the rebukes in light of everything known at the time. Anyone who has been involved in any kind of serious investigation (I have) can surely appreciate the difficult choices confronting the leadership of the investigative teams. Nevertheless, rigid thinking and timidity in the face of threats from the subjects of the investigation led to catastrophic errors.

More important, this is a true inside account of the investigation. Weissmann, while in thrall of Mueller before, during and after the investigation/report, is unrelenting in exposing the investigation’s problems and mistakes, laying out the consequences in stark terms. Examples abound throughout the 346 pages. It reads like a good murder mystery, but you know from page one that it is real, not fiction, and all the more chilling for that.

Weissmann flatly accuses the Trump administration of unlawfully interfering with the DOJ Criminal Division in Foreign Corrupt Practices Act cases. Trump had always railed against the FCPA because it interfered with his ability to bribe foreign officials to get development rights he was after overseas.

James Comey comes in for particularly harsh assessment regarding his decision, shortly before the 2016 election, to disclose the discovery of additional emails on the computer of Anthony Weiner who was (inexplicably, to me) the husband of Huma Abedin, a senior aide to Hillary Clinton. Weissmann sets out the multiple options Comey had in addition to the two he claimed were the only ones open to him. Weissmann at 54.

Weissmann also endorses the critique of Comey by Deputy AG Rosenstein while noting that Rosenstein was effectively covering for Trump’s desire to remove Comey because Comey refused to drop the investigation of General Michael Flynn. Weissmann notes that Trump’s statement on the Comey firing was drafted by Trump with Stephen Miller before Rosenstein became aware of Trump’s plan to fire Comey. Thus, “The White House’s effort to pass off the Comey firing as Rosenstein’s idea was a fabrication.” Weissmann at 60. Only one of many, it would turn out.

The White House also withheld from the Special Counsel an important document pertinent to the Russian interference in 2016. Trump’s lack of concern or interest about it made for Obstruction of Justice No. 11 in the pantheon of obstruction uncovered by Mueller, or would have been uncovered. If Mueller had insisted that Trump testify under oath.  Weissmann at 61. In any case, the firing of Comey is explained and shown to be a clear case of obstruction of justice by Trump. Weissman at 64.

An entire chapter of the book is devoted to the infamous Trump Tower meeting, that was the subject of withheld information (Jared Kushner) and lies (Papadopoulos). Weismann at 86. Among the conclusions: “it was clear that the highest levels of the Russian government were trying to help Trump and damage his opponent” and “the Trump campaign was extremely receptive to this help.” Weissmann at 88.

In a second chapter entitled “The Trump Tower Cover-Up,” Weissmann notes that neither Donald Trump nor Don Jr. ever agreed to meet with the investigators voluntarily and neither was brought before the grand jury. And the parties coordinated their versions of events to, among other things, support Don Jr’s claim that he had never meet any Russian officials. Weissmann at 103. Weissmann concluded that Trump himself lied about the Trump Tower meeting, that lying was in effect a basic Trump strategy for solving problems and that he seemed to believe there were never any consequences to his doing so. Weissmann at 107. History, so far, shows that Trump’s belief in his invulnerability is justified.

That episode reveals one of the serious points of disagreement within the investigative team. Team 600 concluded that it had found no evidence, through a witness or documents, that proved the president’s motive in lying was to deceive Congress and thus he could not be found to have engaged in criminal obstruction of justice. Weissmann calls this conclusion “timorous,” which in retrospect seems an understatement at best. Weismann at 108. At 110, Weissman concludes, more precisely, that the Trump Tower meeting was “damning.”

This episode, however, was prescient for the future of the investigation as Mueller and Zebley adopted a narrow and rigid view of the mission of the Special Counsel, what the evidence showed and what was risked by being too aggressive in the investigation. See, e.g., Weissmann at 128-129. Eventually, for a time at least, Mueller realized how impactful Russian interference could be and authorized a more full-throated investigation into all aspects of Russian interference, Weissmann at 132, but the ongoing reality was that Mueller was influenced far too much by Trump’s shenanigans throughout the investigation and creation of the final report.

That observation brings me to the most important points about this book. I may have more to say about the details in a future post, but it is vital to understand the overall process and how Mueller’s and Zebley’s conservatism led to a flawed process and failed report.

The harsh and ugly truth is that the presidency, in the wrong hands, gave the subject of the investigation an unequaled power to influence the behavior of witnesses, principally in this case Paul Manafort, but others as well. One such influence is the pardon power that Trump unsubtly dangled to assure witnesses that if they remained loyal to him, even to the extent of repeatedly lying to the investigators, they would be spared any consequences. And we know that this was a situation where loyalty to Trump was indeed rewarded with pardons or commuted sentences– for Manafort, for Flynn, for Stone, for Bannon, for Papadopoulos and others. https://bit.ly/3hfx7O3

The other major influence was Trump’s ability to fire the Special Counsel and thus end the investigation. If Mueller’s fears about this were based on the idea that the Republican Party (his party) would not hold Trump to account, he would have been right to be concerned. Nevertheless, Weissmann argues, persuasively, that the impact of this concern unduly colored many of the most important judgments made in the ultimate report.

Whether or not our skepticism is warranted, the book makes very clear that these two elements: Trump’s ability to pardon wrongdoers and his power to fire the Special Counsel, when used to serve Trump’s personal interest, are matters of the most profound concern for the future of our governance.

One of the most remarkable effects of this, when combined with the relentless attacks from the right-wing “media,” was that while Ivanka Trump, for example, almost certainly had relevant information about, for example, the Trump Tower meeting, the decision was that Ivanka was not to be interviewed. Weissmann at 117-118. Don Jr similarly could have been subpoenaed after refusing to be interviewed, but this was not done either. Weissman at 118. Astonishing. Fear of being fired also impacted decisions regarding how broadly to look into Trump’s finances in search of indirect Russian contributions (the Deutsche Bank subpoenas, for example, still not fully fleshed out). Weissmann at 147-148.

It is clear that Trump’s willingness to, directly and indirectly, threaten the Special Counsel with termination had major effects on the scope and aggression of the investigation. That reality explains many of the obvious and serious defects in Mueller’s final report discussed in detail in my earlier blog posts and exposed by Weissmann’s inside knowledge.

Weissmann demonstrates a clear-eyed understanding of the extent of Donald Trump’s corruption: “One cannot plausibly deny that Trump was seeking foreign assistance from Russia and was open to accepting it if offered.” Weissmann at 126, 135, 140. He labels Trump a continuing “counterintelligence threat.” As long as he remains free and unindicted for his multiple crimes in office, Trump remains such a threat despite his lazy indifference to national security briefings that have been a daily staple in the lives of presidents for a very long time. He knows a lot that would be valuable to our adversaries. Continuing through to the end of his presidency, Trump never acted against the Russian interference that was proven to continue into the 2020 campaigns. Weissmann at 218-219, 222. The book lays out a stark and disturbing list of failures to confront the Russian interference threat. Weissmann at 224.

Similarly, Weissmann describes how Rick Gates was aggressively pressured by Paul Manafort and unnamed others to refuse cooperation to the investigation. Weissmann at 206-208. The prospect of a pardon from Trump was part of the “package” of sweeteners to keep Gates quiet. Ultimately, the pressure failed to silence Gates, but just barely.

One particularly interesting story involved Manafort ginning up attacks from Fox’s Sean Hannity against the Special Counsel investigation in violation of the trial judge’s bail orders that had permitted Manafort to remain free pending trial. The investigators correlated Manafort’s texts to Hannity with on-air smears of Mueller and staff. Aaron Zebley, however, prevented the submission of the texts to the court, saying, “they are too explosive.” Weissmann at 209.

Much of the story of the Mueller investigation reads like the script of a television drama series. Typically, parts of such plots are so over the top, so corrupt and malign that they strain credulity. Trump, however, must have studied those shows because his conduct with people like White House counsel McGahn showed a willingness to flout the law at will. Trump never believed, and likely still does not believe, that he can be held accountable. He genuinely believes he is above the law and able, as he said, “to do whatever I want.”

Skipping much material that I may cover in a future post, Weissmann’s narrative ends full circle, reviewing then-Attorney General Barr’s letter purporting to summarize the Mueller Report, but which in fact was a green light to unleash Trump’s corruption in full and unrestrained flower. It led directly to the Ukraine extortion attempt that led to Trump’s first impeachment. Weissmann at 331. And to Giuliani, Nunes, and the political forgiveness of Roger Stone and Michael Flynn, that Weissmann refers to as the “gaggle of presidential defenders and conspirators.” At 332.

Weissmann surgically dissects Barr’s falsities, noting, for example, that Barr’s claim that the president had “full cooperated” with the investigation “”is not just untrue, it’s astonishingly far from the truth.” Weissmann at 333. The same for Barr’s claim that Trump had not asserted presidential privilege to withhold information.  And the same for Barr’s assertion that Trump had formed a “sincere belief” that his presidency was being undermined by the investigation, a claim whose provenance was never explained and in any case was irrelevant to the question whether Trump had obstructed justice.  Weissmann rips Barr’s claim that the Russian active measures were directed at “social discord” rather than helping Trump defeat Hillary Clinton. Lie after lie after lie.

Weissman concludes with some recommendations for ways to strengthen the Special Counsel regulations but, more importantly, disputes compellingly the DOJ policy, adhered to strictly by Mueller, that if the president could not be indicted, it was improper to accuse him of wrongdoing. Weissman at 342. A sitting president can indeed defend himself if he chooses to do so. The policy makes no sense. I addressed the no-indictment policy in a prior post on this blog.

Finally, and perhaps most important of all, Weissman notes that the presidential pardon power in the Constitution should not be used to protect the president personally by, in effect, covering up the crimes of others who would, absent the pardon power, have incriminating information on the sitting president. He argues that it should be unconstitutional for a president to use the pardon power to protect himself, independent of whether that power could be used to directly pardon himself. Weissmann at 344. That seems exactly right to me, although I have some doubts that the “conservative” majority now on the Supreme Court wouldn’t just take the simple-minded approach that the words conferring the pardon authority contain no limitations and therefore are absolute. That is a view that would further cement the anti-Constitutional idea of the imperial presidency that Trump tried to impose on the country. We can see in the events of January 6, among many other examples, where that leads.

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Links to Posts re Mueller Investigation:

Mueller’s Indictment of Russia Hackers   https://bit.ly/3gQe7Xb    July 13, 2018

Mueller’s Indictment of Russia Hackers – Updated  https:://bit.ly/3h33lvl July 14, 2018

The Mueller Report – Where From Here? https://bit.ly/3gZQElm   March 24, 2019

Semi-Final Thoughts on Mueller Report https://bit.ly/3j8gVRh  March 25, 2019

Issues raised by Mueller/Barr/Rosenstein https://bit.ly/3wSPjni March 27, 2019

Redactions of Mueller Report Must Be Coded  https://bit.ly/3j8nX8q April 6, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA https://bit.ly/3jeBNGr  July 9, 2019

MUELLER REPORT PART I — TRUMP CANOODLING WITH RUSSIA – A https://bit.ly/3dagOkk  July 10, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – B https://bit.ly/3zNATqe  July 10, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – C  https://bit.ly/3xTRsPI  July 11, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – D  https://bit.ly/3vUR1D9  July 11, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – E https://bit.ly/2U46bIX  July 11, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-A   https://bit.ly/3gQAXOu   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-B, C  https://bit.ly/3A5gf5l   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice – D    https://bit.ly/3wVcw8l   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-E   https://bit.ly/3gRyKlW  July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice – F   https://bit.ly/3gRHR61  July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice – F

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F. The Inexplicable Treatment of Trump’s Personal Attorneys & Other Enablers

Another unexplained aspect of the Report relates to Trump’s use of his personal attorneys (never identified) to communicate with Flynn and his attorneys. Trump’s personal counsel appear a number of times in the report. II MR 121-122. A fair interpretation of this evidence is that Trump used his personal attorney to try to influence Flynn’s cooperation with the SCO, first with cajoling about how Trump cared about him, then with implied threats about Trump’s presumed anger. A further fair argument can be made that Trump’s personal counsel was a knowing participant in an obstruction effort. Why is this not at least mentioned in the Report?

The Report relegates to II MR-122, n. 839 the extraordinary decision not to try to interview Trump’s personal attorneys “because of attorney-client privilege issues.” Given the active role those lawyers played in some of Trump’s obstructive acts, it is hard to understand a decision not to try to learn something from them. Attorney-client privilege does not protect an attorney who is participating in a criminal enterprise. This is known as the crime-fraud exception to the general privilege rule. If Trump’s personal counsel were actively and knowingly participating in an attempt to obstruct justice by, for example, influencing Gen. Flynn’s testimony or by attempting to unlawfully procure the firing of the Special Counsel, the privilege likely does not apply. It is, moreover, inconceivable that Trump’s attorneys acted on their own without consulting their client. We are left to speculate as to why Mueller did not pursue this seemingly fruitful source of information.

We can’t be sure, of course, whether to credit Rick Gates assertion that Paul Manafort had talked with Trump’s personal counsel and been assured that they would be “taken care of” if they did not talk to the SCO. Mueller, however, clearly believed Gates’ account of these conversations with Manafort. II MR-123 & n. 848, 850. This is a subject that could have been pursued directly with Trump’s counsel if Mueller had been more aggressive in seeking the full body of evidence rather than simply assuming that the privilege would be upheld.

One of Trump’s personal attorneys during this period was Rudy Giuliani who gave multiple interviews in which he suggested Trump might pardon Manafort, then, following the classic Trump playbook, claimed he was misunderstood and not signaling anyone. II MR-124. This was fertile ground to discover whether Trump and Giuliani had mapped out this strategy to obtain Manafort’s silence or other forms of cooperation. A good argument could be made that Trump-Giuliani had waived the attorney-client privilege when Giuliani told the Washington Post that Trump had consulted his attorneys about granting pardons to Manafort. II MR-127. Manafort had some kind of joint defense agreement with Trump and was coordinating his Mueller interviews with Trump’s attorneys. II MR-127. That fact alone warranted taking Giuliani’s testimony under oath. It is all the more compelling because Trump publicly contradicting Giuliani’s statements. II MR-128. Instead, Mueller concludes that the evidence on Trump’s personal participation in all this was inconclusive (II MR-132), an amazing conclusion in light of his decision not to press for an interview of Giuliani and/or Trump.

Mueller digs deep to find alternative explanations for Trump’s comments about the treatment of Manafort. II MR-133. In the totality of circumstances regarding Trump’s repeated litany of claims that he and others were being treated unfairly, this is astonishing, especially considering that at times Trump claimed he knew very little about what these people did for him and the campaign. Normally you can’t have it both ways but Mueller lets Trump get away with it.

Note that there are substantial redactions in this part of the Report for Harm to an Ongoing Matter, suggesting that additional investigations have been farmed out to the US Attorneys’ offices. II MR 128-130.

Trump’s personal attorneys played a further role in Cohen’s false testimony to Congress. II MR-139. A joint defense agreement existed between Cohen and Trump plus other unnamed individuals involved in the Russia investigation. II MR-139. The identity of all the other individuals is not revealed in the Report. Why is this not addressed? The president’s personal attorney played an active role in assuring Cohen that his loyalty to Trump would be rewarded. II MR-140.

Despite the fact that drafts of Cohen’s false testimony to Congress were discussed with members of the Joint Defense Agreement and that false testimony to Congress under oath is a crime, Mueller did not see the drafts because of concerns about the common interest privilege. But it is not clear who raised those concerns. This is another example of Mueller seeming to act as counsel for the defense.

Perhaps because Cohen was in almost daily contact with Trump’s personal attorney about Cohen’s Congressional testimony, Mueller, in this one case, indicates an attempt was made to interview counsel. But the counsel declined, citing “potential privilege concerns.” II MR-143. What precisely those concerns were is not explained. Nor is there any indication that the SCO aggressively pursued this obviously important testimony about an agreement to suppress truthful information being sought by Congress. Who exactly is the “President’s personal counsel” that is referred here? Is it the same person throughout? Trump hired and replaced many attorneys during this time. Why does the SCO not identify these people by name?

This is not the normal or effective way to handle privilege disputes. The privilege-claiming party should be presented with the questions and compelled to explain with specificity why each question cannot be answered even in part because of privilege. Mueller may have gone through this exercise but there is no evidence of that anywhere in the Report.

Further puzzling issues arise from Mueller’s failure to pursue Robert Costello who, in the period following the raid on Cohen’s home and office, was used as a go-between connecting Giuliani and Cohen and assuring Cohen of Trump’s continued favor. II MR-146. Costello’s offering to support secret communications between the White House and Cohen appears to have been of no concern at the SCO. One question is which personal counsel to the President was assuring Cohen that if he continued lying, Trump would protect him? Why does Mueller protect the identity of President’s personal attorney engaged in a cover-up and overt acts of witness tampering/obstruction of justice?

 Beyond that, Mueller accepts that Trump’s personal counsel was working with Cohen on false testimony to Congress but does not attribute that conduct to Trump and never goes after the counsel for aiding & abetting false testimony or giving message to Cohen that he would be protected if he stuck to the party line. Why was Mueller so reticent about these compelling facts that do not appear to be disputed? Faced with an apparent conspiracy to submit false testimony to Congress, resistance by Trump & by his personal attorney (who refused to provide his version of his conversations with Cohen who was not his client and thus not covered by any plausible claim of privilege), Mueller simply assumed he couldn’t get evidence about Trump’s discussions with his personal counsel and didn’t even try to pursue this line. II MR-154. No presumption of privilege should attach to conspiracy to commit a crime. Mueller’s unwillingness to tangle with Trump’s personal attorneys is inexplicable and unconscionable malpractice. Why was Trump’s personal attorney not charged with suborning perjury in connection with Cohen’s false testimony that Trump’s personal attorney helped facilitate?

Mueller’s approach is particularly disturbing because Trump refused to answer the written questions posed to him about the Trump Tower meeting. II MR-149. What Trump did say was that he couldn’t remember his conversations with Cohen. After Cohen pled guilty to lying to Congress about the Trump Tower meeting, Trump refused to provide any more information about his role and turned sharply against Cohen. II MR-151. Thereafter, Giuliani made public statements that conflicted with what Trump was now saying, then “walked those back.” II MR-152. Mueller seems completely bamboozled by all this, unable to make the obvious conclusions.

Trump refused to clarify what Mueller calls the “seeming discrepancy” between his statements about the Trump Tower project in Russia made before and after Cohen’s guilty plea. Mueller engages repeatedly in speculation about what Trump might have meant rather than concluding that, having declined the opportunity to set the record straight, Trump should be estopped to deny the discrepancy and to deny what Cohen said was the truth eventually.

I have asked repeatedly in these evaluations of the Mueller Report why Trump’s enablers were not indicted. Mueller addresses very briefly at II MR-158 where he leaps a giant chasm of evidence to conclude that because a few of Trump’s aides refused to carry out his blatantly obstructive orders, virtually all of them were allowed to walk away unscathed, including Trump’s personal attorneys and others who, according to undisputed evidence, did carry out Trump’s orders to try to intimidate witnesses, terminate the SCO investigation and other forms of interference detailed throughout the Report. Mueller calls the “pattern” one in which Trump’s enablers resisted his obstruction directives, but the evidence adduced shows that in most cases the White House staff did exactly what Trump wanted them to do. The “pattern” is the exact opposite of Mueller’s conclusion.

The Mueller Report ends with a lengthy, lawyerly analysis of the statutory and constitutional defenses asserted by Trump’s attorneys. The analysis is unobjectionable and supports not only the conclusions Mueller did reach but re-emphasizes the lingering questions about the conclusions he declined to reach. In particular, we are left to wonder why so few of the obvious enablers of Trump’s overt obstructive acts were not held accountable. Mueller’s treatment of “presumption of privilege” issues is inexplicable, given that much of the enabling activity was in support of federal crimes. We can only hope, though likely in vain, that Congressional hearings will flesh out the hanging questions.

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

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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.

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – E

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E. Evidence of Conspiracy Everywhere But No Conspiracy?

It also seems very significant that all evidence regarding Manafort’s communications with Russians could not be seen because it was encrypted and that Manafort lied to the Grand Jury and to the SCO about, among other things, the Campaign data he fed to Kilimnik. I-MR 130. Trump himself had the usual memory failure regarding the changes made to the Republican Platform dealing with the Ukraine.  I-MR 130, n. 841.

It follows that Mueller never really got to the bottom of Campaign connections with Russia. The investigation could not resolve, for example, what happened to the polling data that Manafort gave to Kilimnik. I-MR 131. SCO concluded Kilimnik, who was long-term employee of Manafort, was connected to Russian intelligence. I-MR 133. In the end, however, Mueller simply concludes that the investigation found no evidence of a connection between Manafort’s sharing of polling data with Kilimnik or that Manafort otherwise coordinated with Russia regarding the Campaign. Given the holes in the evidence, it is difficult to see how this conclusion is justified. Recall Mueller’s early warning that the absence of evidence is not evidence of the absence.

Note that Manafort worked for Campaign without pay even though he had no meaningful income at the time, allegedly (by Gates) because he expected to monetize his relationship with the Trump administration after the election. I-MR 135.

WHY, however, was the sending of internal polling data about the Campaign not an act of coordination that would have aided the Russians in their campaign to assist Trump by, for example, timing of document releases?  Moreover, Manafort offered “private briefings” to billionaire tycoon Oleg Deripaska (but, once questioned, said it was just about “public campaign matters).”  I-MR 137. Of course, Manafort would claim that, but what sense does that make? Surely, Deripaska could find out all the “public” campaign information he desired from the Russian intelligence agencies or other Russian sources. WHY did Mueller not explain this?  Deripaska now, of course, denies almost everything regarding his interest in American politics and refused to cooperate with Mueller’s investigation. https://nyti.ms/2WJC7Tz

At a dinner August 2, 2016, Manafort briefed Kilimnik on Campaign plans in four battleground states (MI, MN, PA, WI). I-MR 140. WHY is this not an act of coordination, since Manafort knew and expected Kilimnik to report to Russians with an interest in the election? What alternative explanation is there other than some vague notion that providing this information would endear Russians to Manafort, help get his Ukraine consulting bills paid and generally enhance his standing with Russians interested in removing US sanctions? Even if that was Manafort’s only motivation, the fact remains that these acts would have the natural effect of facilitating any Russian actions related to election interference which was found to be based on supporting Trump over Clinton. Manafort likely knew that — he and Gates left the Aug. 2 dinner separate from Kilimnik to avoid media attention to their relationship. I-MR 141

The Report concludes that it found no evidence that Manafort brought Kilimnik’s Ukraine peace plan to the attention of the Trump Campaign or the Trump Administration, yet says Kilimnik continued promoting the plan to the State Dept into the summer of 2018.  I-MR 144. Since at that time the State Department was under the control of the Trump Administration, why would Mueller distinguish the State Department from the Administration?

The Report, at I-MR 144, notes that immediately after the election Russians connected with the Russian government began outreaches to the Trump Administration but through business rather than political channels. The implication of this statement seems to be that using business channels somehow distinguishes the outreach from conspiratorial implications. But using business channels makes perfect sense, considering that Trump was not a politician and was, for the most part, not surrounded by politicians in his Campaign organization. Those realities should not affect the interpretation of the purpose of the Russian contacts.

The Report discussion on Russian government outreach begins with Hope Hicks receiving a personal cell phone call at 3 am on election night from what turned out to be Sergey Kuznetzov at the Russian Embassy in DC with a message from Putin to Trump. I-MR 145. HOW did Kuznetzov have Hicks’ personal cell phone number? Mueller never addresses that question.

Shortly before Kuznetzov’s outreach, an unidentified person [redacted for Investigative Technique] wrote to Kirill Dmitriev that “Putin has won.” I-MR 149. This odd message is not further elaborated.

The Report details at length the numerous efforts of various Russian parties to contact the incoming administration and the Trump team’s complete willingness to engage immediately despite the well-established principle that the US has only one president at a time.

Another curious development was that despite Kushner’s initial resistance to meeting with Kislyak, his immediate acceptance of a meeting with Sergey Gorkov, the head of Vnesheconombank, a Russian government-owned bank then under American sanctions stemming from Russia’s invasion of Ukraine, led to Kushner and Gorkov telling two completely different stories about what they discussed. I-MR 163. The Report notes that this conflict was never resolved but Mueller was unconcerned because there was no evidence of further discussions between the two men. However, Kushner’s assistant refused a second meeting request from Gorkov because of publicity about the Russia investigation, allegedly without even telling Kushner about the request. I-MR 163. The inference from all this is that everyone in the Trump team was acting independently, not talking with other members of the team even about extremely sensitive matters such as repeated outreaches to them by Russian operatives. Is this plausible?

Regarding the sanctions on Russia for election interference, Michael Flynn, allegedly acting on his own, proposed to Ambassador Kislyak that Russia not escalate the situation, a proposal that was accepted. I-MR 167. WHY is this not coordination even by Mueller’s limited definition? Perhaps because Trump was already President-Elect, but then why so much Report space devoted to post-election activities by Russians reaching out to Trump administration? If Mueller was really looking for post-election evidence of pre-election coordination, there were many curious situations that needed explanation and didn’t get one.

Mueller appears to believe that actions by Trump staff are not a problem for Trump unless Trump personally asked them to take an inappropriate action. BUT WHY is that so, when almost all actions by any administration are taken by staff and most of the time the President is not personally involved in details of who speaks with whom?

The Report portrays the Russians as a bunch of neophyte amateurs at sleuthing, the Keystone Kops of international conspiring. Is it plausible to believe that Vladimir Putin, a former KGB agent with all the resources of the Russian intelligence apparatus at his instant disposal, did not know how to contact high level people in the incoming Trump administration? 

When Egypt proposed a UN resolution calling on Israel to stop settlements in Palestinian territory, the Trump team, not yet in power, worked with foreign governments, including Russia to defeat the resolution, knowing that the Obama Administration would not oppose it. I-MR 168. WHY is this not giving aid and comfort to an enemy of the US? WHY was this not “coordination” under Mueller’s own definition of conspiracy?

Mueller treats this as just routine despite its breach of a long-standing practice/policy/principle that we have one president at a time.  Why is working directly with foreign governments to defeat the policies of the sitting administration, without registration or other public disclosure, not tantamount to treason if not actually treason? Trump personally participated in this when he stated publicly that he was opposed to the sanctions imposed by Obama Administration. I-MR 169.

Transition Team members continued to talk among themselves about how to deter Russians from responding adversely to the Obama sanctions. I-MR 170. The Campaign thus was plotting to undermine the Obama foreign policy position on Russia sanctions, with Obama still in office, without any attempt to consult with Obama or his staff about why sanctions were imposed. Trump was personally briefed by KT McFarland, during which Trump disputed that Russians had interfered with the election, a conclusion that the Mueller investigation demolished. I-MR 171. Trump was personally aware that a member of the Transition Team, who else but Flynn, would be talking with Kislyak that very evening. Russians, on direct order of Putin, did not retaliate regarding the sanctions. Flynn told Mueller he did not document his contacts with Kislyak because he knew they were interfering with Obama administration foreign policy. I-MR 172.

Ultimately, Mueller uses ambiguous language to conclude that there were no chargeable crimes involving Campaign people. Although the Campaign was “receptive to the offer,” the “investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.” I-MR 173.  No charge, for example, re Internet Research Agency election actions because Mueller had no evidence that Campaign people knew they were interacting with Russians engaged in a criminal conspiracy. I-MR 175. Who, then, did they think they were dealing with? Why are these adults not to be held accountable for their deliberate conduct while turning a blind eye to the reality behind the mask? Mueller never explained his generous treatment of the Campaign and its leader when it came to their refusal to see what was plainly in front of them.

Part of the problem here, it seems, is that Congress has not updated the National Stolen Property Act to include electronic information. See I-MR 176, n. 1278. And, redactions based on extensive Harm to Ongoing Matters in the section addressing indictments indicate that there are major important cases still under active investigation. See I-MR 176-180, 183-184

The Mueller Report explanation of the failure to charge certain criminal offenses is lacking in meaningful detail. The decision was based mainly on the belief that evidence of offenses under campaign finance laws, in particular the Trump Tower meeting re Clinton’s emails, could not establish that participants “willfully” violated the law. I-MR 180. The conclusions that no Foreign Agents Registration Act (FARA) violations could be proved against Papadopoulos and Page, for example, were stated in a summary way without detailed explanation of why their many contacts with Russia nationals during the campaign did not involve, at least, attempts to violate the FARA.  See I-MR 183.

Mueller notes Papadopoulos’ lies about when he heard from Mifsud that the Russians had dirt on Clinton and that he understood that Mifsud was connected at high levels in the Russian government. He also lied about when he met Olga Polonskaya, whom he also believed was well connected with Russian government officials at a high level. I-MR 193. The result, however, was that Papadopoulos was charged with making false statements but his activities were not imputed to the campaign. Is it plausible to believe that an ambitious person like Papadopoulos was not reporting his activities to others in the Campaign even if only orally?

 Michael Flynn also lied about, among several things, his contacts with Ambassador Kislyak which were made in close contact with KT McFarland, then a “senior Transition Team official.” I-MR 194. Again, despite the close coordination with McFarland, Mueller showed no appetite for attributing any intentionality or responsibility to the Campaign or the Transition Team for the unexplained coverup of Flynn’s contacts with the Russians.

Note, on the other hand, that in the discussion of false statements by various figures in the Trump Campaign and/or Transition Team, there are two major redactions including the name of the individual involved: one based on grand jury testimony (I-MR 194) and the other involving Harm to an Ongoing Matter (I-MR 196-197). This strongly suggests there are additional potential cases of lying to the government still being investigated by some element of the federal government. Mueller should provide some explanation of the further work to be done, given his decision to terminate his office’s work.

Mueller also gives Jeff Sessions the benefit of the doubt even when Sessions, fully aware of the broad inquiry into cooperation with Russia, chose to interpret questions as calling for the narrowest possible construction. Mueller concludes that the evidence did not establish that Sessions was “willfully untruthful.” I-MR 198. If not, then what was it? Unintentional untruthfulness?

Mueller notes that the proof of a willful violation of FARA requires some defendant knowledge of the law. I-MR 185. Mueller seems to believe that none of the lobbyists and other experts that Trump enlisted to help him knew anything about the law governing acting on behalf of a foreign government to influence an election. Even a modicum of common sense would suggest, at a minimum, that lawyers be consulted in such circumstances. Willful ignorance does not excuse a law violation, as anyone can attest who has been ticketed for speeding and claimed not to see, for example, the School Zone signs. The principle of “knew or should have known” should apply here and, if not, there should be an explanation of why it is not applicable.

The gaping holes in the analysis of the facts suggest that some parts of the investigation were very broad but not very deep in key areas. Rather than take an aggressive approach, Mueller seems to have been concerned more about losing a case than about securing prosecution of people who actively worked to subvert a national election by seeking help from a hostile foreign power.

END OF CONSIDERATION OF MUELLER REPORT PART 1

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COMING SOON – PART II: DID THE PRESIDENT COMMIT THE CRIME OF OBSTRUCTION OF JUSTICE?

 

 

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – D

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D. The Curious Handling of the Trump Tower Meeting

Jared Kushner in fact received information about Clinton offered by Dimitri Simes, the head of a Washington think-tank, but didn’t find it useful due to its apparent staleness. The alleged source of the information was apparently not interviewed by Mueller – WHY NOT?  I-MR 108-110. Kushner never seemed to be concerned about the issue of Russian sourcing and was all too happy to meet with everyone claiming to have dirt on Clinton. I-MR 108, n. 651

Like Kushner, Trump Jr. was happy to meet with Russians in Trump Tower to get dirt on Clinton.  Trump himself, as usual, claimed to have no knowledge of the meeting and, not surprisingly, Mueller uncovered no documents indicating otherwise. I-MR 110. The Russian attorney could not produce hard evidence of Clinton wrongdoing and the Campaign then lost interest in her claims. I-MR 110

The Mueller-reported record on Trump Tower is very thin. Much of the most important information about the Trump Tower meeting appears to be redacted because it was collected through Grand Jury testimony. I-MR 110-112 Yet this is one of the most obvious cases of overt willingness of high-ranked Campaign officials to use Russian sources to get dirt on Hillary Clinton. Why was the Grand Jury the chosen instrument for investigating this crucial meeting since it would have been known by Mueller’s team that it was going to withhold the resulting testimony from public disclosure?

Rob Goldstone was then a music/events promoter and the publicist for a Russian businessman with ties to Putin. It was Goldstone who proposed the Trump Tower meeting by email to Trump Jr.  The email proposing the Trump Tower meeting refers to “Rhona” by first name only. I-MR 113. This is a reference to Rhona Graff, long- time assistant to Donald Trump, who was apparently well-known to Goldstone. THAT fact was not discussed or explained in Mueller Report.  WHY NOT? Why/how was Goldstone so familiar with Rhona Graff???

On June 6/7, Trump Jr. and Emin Agalarov (Russian real estate developer and pop singer) had “multiple brief calls,” I-MR 114, but no indication is given in the Report about what was discussed. Trump Jr. announced the meeting regarding dirt on Clinton at a regular meeting of senior Campaign staff and Trump family members, sourcing the information to Russia. Yet again, the Trump team had memory failure regarding their knowledge of the Tower meeting. I-MR 115. Trump Jr denied he had told Trump about the meeting.

WHAT are the chances that such a momentous event, as it then appeared, would not have been communicated to Trump? Of course, Manafort, Kushner and Trump himself claimed not to recall Trump being made aware of the upcoming meeting. I-MR 116. Cohen, on the other hand, understood from the tenor of the conversation that Trump had been told. I-MR 115. Trump’s general history is that he rules with an iron hand, a fact that suggests it is extremely unlikely that the possibility of acquiring killer information about his election rival would not have been communicated to him beforehand.

Trump announced on June 7 he would give a major speech the following week, likely on Monday, June 13, on “all of the things that have taken place with the Clintons,” but after the June 9 meeting, the subject was changed to national security. Trump, in his written answers to Mueller’s questions. claimed this was because of the Pulse nightclub shootings that occurred on June 12.

Mueller gives him the benefit of the doubt on this without discussing how the subject was changed and a speech prepared on one day’s notice. Trump’s written responses also claimed that the original speech was planned based on publicly available information and was in fact delivered on June 22.  I-MR 116. Such after-the-fact rationalizations deserve little credence in light of the circumstances surrounding these events and the consistent history of attempts by multiple Campaign officials to cover up or minimize the significance of contacts with Russians.

Trump Jr refused to be interviewed about the Trump Tower meeting – all other participants were interviewed except Veselnitskaya herself, she being the Russian lawyer that purportedly had the dirt on Clinton. I-MR 117.  The Report shows many Grand Jury-based redactions about what transpired at the Trump Tower meeting. Kushner left early because the promised dirt was not delivered, calling it a “waste of time.”  I-MR 118. The clear implication is that if the dirt had been forthcoming Kushner would have been pleased to accept and use it. But Veselnitskaya appeared to have nothing of substance on Clinton. Or, she was holding it back to see what leverage she could get before disclosure.

Since neither Veselnitskaya nor Trump Jr were interviewed, it is impossible to conclude that this dance with the devil was prematurely ended with no crime and no foul. In any case, this seems to be a clear case of attempted coordination. Why Mueller declined to say that remains unexplained.

In a July 2017 interview, Trump Jr, ever the law-abiding citizen, made no apologies about his role in the Trump Tower meeting, claiming he should have been able to hear what was being proposed, then consult with counsel, etc. regarding what to do next. I-MR 119. This is a perfect example of the son mimicking his father in making after-the-fact claims of honesty when his prior attempts at dishonesty have been exposed.

When public coverage of the Trump Tower meeting surfaced in July 2017, lawyers for the Trump Organization tried to engineer statements from Rob Goldstone that exonerated Trump Jr of any wrongful act or intention. Goldstone declined to issue the statements. I-MR 122.

Again, it is difficult to understand the full picture because of so many Grand Jury-based redactions, but it is highly doubtful that the lawyers were acting on their own initiative without consulting their client(s). If they in fact did act on their own, there should be no grounds for withholding information on grounds of attorney-client privilege. Again, a road not traveled by the SCO for reasons not made clear.

Next: Evidence of Conspiracy Everywhere But No Conspiracy?

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – B

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B. Involvement of WikiLeaks –Gaping Holes & Unresolved Issues

Immediately after the Billy Bush “grab ‘em” video, WikiLeaks released more stolen documents. How was WikiLeaks kept on such a short leash that it twice responded to developments in the US campaign by releasing documents intended to harm Clinton and offset self-inflicted harm by Trump?  Who was the link and why was the investigation ended before this party was run to ground?  [It may have been Roger Stone who is the subject of ongoing investigation covered by multiple Report redactions] GRU[1] and WikiLeaks were working together and hiding communications so that SCO efforts to collect them all were frustrated. I-MR 45. Mueller was never able to identify individuals other than Assange who were part of the DCLeaks/WikiLeaks coordination of anti-Clinton activities.

This leaves a gaping hole in the results of the investigation and raises the question why the investigation was ended before it was completed. If further efforts to identify individuals other than Assange were likely to be futile, this should have been explained.

Is it plausible that all the lying by Campaign people, I-MR 9-10, was all driven by the concern that the close association of the Campaign to Russians looked bad and was not also to cover up some deeper relationships instigated and nurtured by the Russians who had independent reasons to prefer Trump in the White House rather than the more experienced Hillary Clinton? The Russians are reputedly pretty good at dark statecraft and would likely not have made the trail easy to follow.

 We should not overlook the reasons stated by Mueller that the investigation was incomplete, including:  (1) Fifth Amendment claims by witnesses; (2) some information was “presumptively privileged,” a questionable conclusion not thoroughly explained or developed in the Report; (3) witnesses and documents outside U.S. jurisdiction; (4) some information was deleted by Trump Campaign people under investigation; some information was encrypted or simply not retained.  I-MR 10.

 Given the statement that it is possible that such information would have changed conclusions in some cases, WHY does Report not detail all instances in which (1) witnesses claimed the Fifth Amendment against self-incrimination; (2) information was deleted or (3) encrypted information was withheld?

This also raises questions about the basis for wrapping up the investigation when it was. Mueller refers to it being “late” but no explanation for that is given. Late in relation to what? If there was a deadline, what was it, who imposed it, and when was it imposed?

 Russian involvement in the 2016 election clearly had an impact; Mueller estimated tens of millions of people were exposed to fake social media information and Russian organized rallies. I-MR 26, 29. Yet, no effort was made to conclude how big an effect resulted.

 Note that Mueller did not investigate deeply the GRU intrusion into state/local administration of elections, observing that FBI, DHS and state authorities are investigating. I-MR 50.

WHAT is the status of those investigations? These activities occurred in 2016 – three years ago! Many of the states where the impacts might have been greatest were controlled by Republicans who showed no interest in protecting the electoral process from Russian interference; indeed, the record outside the Mueller investigation plainly shows multiple efforts at voter suppression in such states, all aimed at reducing Democratic voter turnout.

 The section of I-MR addressing Trump Campaign interest in WikiLeaks’ use of Russian hacked documents is heavily redacted with Harm to Ongoing Matter, indicating active investigation somewhere in the US government is continuing. I-MR 51 et seq. Again, this was some years ago. What is going on with those investigations?

Trump was personally interested in the missing Clinton emails and frustrated they had not been found. I-MR 52. Manafort was particularly interested in Clinton emails as well. I-MR 52-53. By late summer 2016, the Trump Campaign was planning a press/communications strategy based on expected further leaks of Clinton documents from Wikileaks. I-MR 54. How did Trump know this? Who was providing Trump with direct information about WikiLeaks’ plans for further document dumps? Much of the evidence is heavily redacted, but Trump had links to WikiLeaks that were producing information for him. If Campaign was planning strategy based on WikiLeaks release of Russian-stolen documents, why is this not “coordination” or at least attempted coordination with Russian hacking activities, using Mueller’s own restrictive definition? Again, no explanation.

At I-MR 59-60, there is explicit evidence of Donald Trump Jr conspiring with WikiLeaks to promote a false narrative regarding Hillary Clinton. WHY is this not overt evidence of coordination with Russians through WikiLeaks as intermediary? How can Mueller conclude, at I-MR 61, that there was no evidence of coordination between Russia and Trump campaign regarding the effort to recover Clinton’s missing 30,000 emails.

I-MR 61-62 has a discussion of Henry Oknyansky’s alleged effort to sell dirt on Clinton, promoted by Michael Caputo but concludes that information about the events was conflicted, that Alexei Rasin, who was claimed to have the information could not be found, and that the investigation could not determine the content or origin of the information. Therefore, the conclusion was that there was no evidence of a connection with Russia and this particular set of claimed dirt on Clinton. BUT this is largely inconclusive. There was much smoke but no fire could be found. As noted at outset by Mueller, the absence of evidence does not prove the absence of the fact in question.

I-MR 62-64 discusses Peter Smith’s efforts to locate the Clinton emails, including explicit claims of coordination with the Trump organization, including Flynn, Bannon and Kellyanne Conway. Mueller seems to raise the bar regarding what is probative evidence when he states that the investigation did not find evidence that any of the Trump people “initiated or directed” Smith’s work. If, for example, Bannon or Conway knew about Smith’s work and encouraged it without initiating or directing it, WHY would that not qualify as “coordination?” This is not explained. At I-MR 65, the ultimate conclusion was, in substance, that Smith had fabricated his claims of being in contact with the Russian hackers and that he had acquired the missing emails. But the key issue here is Trump Campaign coordination, not whether people like Smith were overstating what they knew.

 It has been suggested that all of this is just the work of a bunch of small-time hustlers trying to get in on the Trump action. https://bit.ly/2RWv1FT That may be true, but given that the control of the highest political office in the country was at stake, all of this smoke deserves the deepest scrutiny. The story here remains incomplete. Mueller elected to treat conflicted information as essentially neutral, giving equal weight to the “no coordination evidence.” This approach is not required in these circumstances and, given all the lying and withholding going on about the Russian connection throughout the Campaign, there is no apparent reason to treat conflicted evidence as neutral.

Mueller showed little interest in attempted conspiracy between Trump organization and Russia-connected individuals. For example, in fn 288 Mueller states that a Russian internet newspaper registered names for Trump2016.ru and DonaldTrump2016. Ru, then requested an interview by email to Hope Hicks. Mueller concludes this part of the narrative with “No interview took place.” Fine, BUT what was Hicks’ response to the email request and why is that not set out in the Report?

George Papadopoulos attended a March 31, 2016, meeting with Trump & Jeff Sessions, among others, and came away with impression that Trump, and possibly Sessions (some conflict re Sessions position) favored getting a meeting with Vladimir Putin. He pursued the idea through Joseph Mifsud and made many contacts with Russian-govt affiliated individuals. In the course of that work, he was told by Mifsud that the Russians had email dirt on Clinton. I-MR 89. On May 6, Papadopoulos told an unidentified representative of a foreign govt about the damaging emails that Russia wanted to use to hurt Clinton’s electoral chances. On July 26, 2016, after the WikiLeaks email dump, that foreign govt informed the FBI which then opened its investigation into Russian interference in the election.

At no time did Papadopoulos tell the FBI what he had learned. WHY was Papadopoulos not charged with aiding a foreign govt in defrauding the U.S.?? Papadopoulos was working for the Trump campaign at that time and had alerted the campaign about Russian interest in Trump. He believed that the Campaign wanted him to pursue the lead. What was the source of that belief? At the very least this should have been fully explained in the Report.

 Thru the spring/summer 2016, Papadopoulos kept Campaign officials aware of his efforts to arrange a meeting in Moscow with Putin thru emails to at least Lewandowski, Clovis (co-chair of Trump Campaign) and Manafort. I-MR 89. The Report barely mentions responses from any of these people. WHY?  Papadopoulos eventually suggested he personally could attend Russia meetings on behalf of the Campaign “off the record.” I-MR 90. This is an act of concealment, from which a reasonable inference can be drawn that the parties knew what they were doing was wrong.

Next: Campaign Officials Suffering from Failed Memories at Critical Times

[1] A military intelligence agency called the Main Intelligence Directorate of the General Staff, or GRU.

 

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – A

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A. Collusion vs. Conspiracy – Setting a High and Unnecessary Threshold of Proof

The investigation focused on conspiracy law because “collusion” is not in a term used in the governing criminal law. That fact may explain why Trump constantly refers to collusion in defending his conduct. While it’s technically true that the Report did not find “collusion” between the Trump Campaign and the Russian Government, the Report did not make a lot of other findings because they were equally as irrelevant as “collusion.”  For example, the Report did not find that Donald Trump is a generous person who readily contributes substantial amounts of his claimed fortune to charitable causes. Such a finding would have been (a)  untrue and (b) utterly irrelevant to the matters under investigation.

On the relevant issue of conspiracy, the Report focused on “coordination” as a factual question — limited to whether an “agreement — tacit or express — between the Trump Campaign and the Russian government” existed during the Campaign or the transition. Why Mueller thought this limitation was essential to the investigation and to any charging decisions is never explained.

It was entirely possible for the Trump Campaign to “coordinate” without an “agreement” to do so. Given Mueller’s expressed conclusion that the Campaign expected to benefit from information stolen by the Russians and the clearly established fact that high-ranking members of the Trump Campaign and family actively sought “dirt” possessed by Russia on the Clinton candidacy, “coordination” within the meaning of the conspiracy laws should not turn on the existence of an “agreement,” tacit or otherwise.

Framing the problem as Mueller did sets a bar so high that a successful investigation was likely impossible. As bad as Russia’s demonstrated electoral interference was, it was entirely feasible that “coordination” by the Trump Campaign with the Russian activities could have been accomplished without anything resembling an “agreement” between the Campaign and the Russian government. Mueller owes an explanation of why the existence of an agreement was essential to a finding of conspiracy. Would mere knowledge of what the other side was doing suffice to establish such an “agreement?” Mueller apparently thought not, but the underlying reasoning for such a counter-intuitive judgment is missing. Conspiracies are typically very hard to prove, but there was no apparent or compelling reason to get the bar so high.

Although Russians masked their operation while conducting political rallies and in doing so “made contact with…Trump campaign officials,” Mueller says the investigation uncovered no evidence of “coordination.” I-MR 4 This cries out for elaboration. Which rallies and which campaign officials? When? Are we to believe that the Trump campaign worked with unknown parties to stage political rallies and never bothered to find out with whom they were working?

A related curiosity is the question of timing the decision to end the investigation. The Report notes (I-MR 14) that the Russians masked their identity in communications with the Trump Campaign but some of those contacts are still under investigation. Per Appendix D at I-MR D-1 thru D-6, there may be as many as 14 additional investigations pending but no details or clues are provided regarding their targets or subject matter. The massive redactions from I-MR 14 to I-MR 37 suggest that the primary subject matter may be Russian interference in the election unrelated specifically to possible coordination with the Trump Campaign, but, if so, this should be clarified.

The Report says Russians released hacked materials about Clinton through Wikileaks (I-MR 4), thus implicitly indicating that Julian Assange conspired with the Russians. Mueller concedes the SCO was unable to resolve the connection between the release of the Trump “grab ‘em” tape and the same-day release of WikiLeaks documents harmful to Clinton. I-MR 36. But what was Assange’s relationship to the Trump Campaign? This is not elaborated in the Report.

 Trump personally welcomed help from WikiLeaks and the Russians. He later claimed he was speaking sarcastically, but when, in relation to investigation steps, did he make the sarcasm claim?  This is a common Trump tactic – make a dog whistle statement followed by “I was just joking” when blowback ensues.

In June 2016 a Redacted Party predicted to the Trump Campaign that WikiLeaks would release info damaging to Clinton. I-MR 5. There is more here that needs explanation to sustain the conclusion that there was no evidence of coordination.

The Report portrays the involvement of Russia and Trump Campaign’s response as having same goals – each would benefit from the other’s success – but Mueller nonetheless concludes that throughout the entire campaign, the parties somehow operated independently, though in parallel, to each other’s activities without any coordination. I-MR 5. He also concluded that Trump Campaign people did not understand they were dealing with Russians, I-MR 35, an idea that conflicts directly with the documentary prelude to the infamous Trump Tower meeting at which high Campaign officials attended in explicit expectation of receiving stolen negative information about Hillary Clinton.

During 2016, George Papadopoulos, while working for the Campaign, tried to arrange meetings to follow up information from Joseph Mifsud (identified by Mueller as a Russian agent) that Russia had dirt on Clinton. While no meetings may have resulted, why weren’t Papadopoulos’s activities at a minimum “attempts to coordinate” Is it plausible that he acted entirely on his own without communicating with other Campaign officials? What specific efforts were made to track down this crucial information? Why isn’t this covered in detail in the Report?

Indeed, why was the Trump Tower meeting not, by itself, a clear attempt to coordinate with Russia?  The information offering may have been a ruse but Campaign leaders didn’t know that and attended in expressed hopes of getting dirt on Clinton. They walked out only when the hoped-for dirt was not proffered. It’s pretty clear from the email history that if the dirt had been produced, it would have been accepted and not reported to the FBI.

Similarly, Carter Page was ousted from Campaign only after media attention drawn to his Russian connections. I-MR 6 If there had been no media attention, is there evidence the Campaign would have removed Page? Nothing in the Report suggests this would have occurred. Was there not more evidence of Page’s connections to Russia and, therefore, likely attempts to coordinate with it in support of Trump’s campaign?

Paul Manafort, then Trump Campaign Chairman, was also meeting with Konstantin Kilimnik, who had Russian intelligence contacts.  They discussed campaign strategy, including swaying Democratic voters in Midwest. Manafort shared polling data. I-MR 7 WHY is this not coordination even by Mueller’s limited definition? At the time Manafort was the trusted head of the Campaign. Why would his conduct not have been attributed to the Campaign? Why was this not addressed in the Report?

Next: Involvement of WikiLeaks –Gaping Holes & Unresolved Issues

Twitch Your Eyes So They Think You’re Crazy

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Imagine, if you will, that Donald Trump and family/hangers-on are in a bar planning further destruction of the poor and middle classes. Some immigrant waiters have accused the group of cheating on their taxes and undermining the Constitution. Trump’s gang doesn’t take kindly to being told the truth. The two groups are about to tangle.

The bar doors swing open and in walks Sheriff Mueller, dressed in black and sporting double holsters marked “subpoenas” and “indictments.” The Sheriff counts off his steps as he approaches the group and says softly, “it about time you boys got out of town.” They laugh. The National Marshall is on Trump’s payroll and Trump and team are sure they are above the law.

This is, of course, fiction, except for the part about Trump and team being sure they are above the law. And, further, I didn’t make this up by myself.

In case you haven’t seen it, GEICO this year produced a great ad called the “Cowboy Showdown.” You can see it at  https://www.youtube.com/watch?v=MOG8AFPQcM4.  The basic idea is that in a typical Western bar scene, the sheriff confronts a scruffy trio of cowboys who have just been accused of card cheating. The sheriff tells the thugs that it’s time they got out of town, a demand met with hostile mirth by the cowboys. The sheriff then speaks his “left foot, right foot” steps as he moves in closer and then, in a close-up, says “Twitch your eyes so they think you’re crazy.” He does, as uncertainty spreads on the faces of the cowboys. And so on.

The ad’s humor resonates because almost everyone has seen variants of the scene in old western movies performed straight and serious.

The announcement of the indictment of Paul Manafort and Rick Gates reminded me of the ad, which in my view ranks right up there with the camel ad demanding that office employees acknowledge that it is “hump day” (see https://www.youtube.com/watch?v=7LtjzQaFZ3k).  The charges follow close behind Trump’s recent tweets chastising the Secretary of State for trying to negotiate a peaceful solution to the North Korean nuclear threat. In case you missed them, Trump tweeted: “I told Rex Tillerson, our wonderful Secretary of State, that he is wasting his time trying to negotiate with Little Rocket Man…,” followed by “Save your energy Rex, we’ll do what has to be done!”

This follows other tweets in which Trump has threatened the total annihilation of North Korea, amidst name-calling reminiscent of school-yard behavior of grammar school boys.

The connection between the GEICO ad and Trump’s Tillerson take-down is that this is how Trump negotiates. The sheriff is outnumbered three-to-one and is trying to intimidate the cowboys into giving up their advantage by indicating he is nuts and may do something irrational and unexpected. This spooks them into a state of uncertainty and weakness. However, the sheriff, at the end of the ad, is still outnumbered and in a precarious situation.

This how Trump negotiates – make the other side think you’re irrational and capable of anything, in this case undermining the credibility of your official representative, and thus may at any moment unleash the full fury of American military power against a sitting-duck North Korea.

The “I may be crazy so you better be careful” strategy is not uncommon in business and other negotiations, as you know if you have experience with negotiating in high-stress situations. But the strategy rarely leads to good outcomes against experienced negotiators who are familiar with the approach and know now to deal with it. The outcome can only be positive if the other side responds rationally. If the other side is genuinely bonkers too, the outcome can quickly lead to mutually catastrophic results.

In the case of North Korea, it seems highly likely that Kim Jong-un has, at best, a severely distorted view of the United States and the political system that produced Donald Trump as president. Many people in the West see this confrontation as the worst-case scenario in which a demented, angry and generally ineffectual Trump acts out his fantasies and gets the world into a nuclear confrontation that could be avoided by adult behavior. If both Trump and Kim Jong-un are indeed crazy, as much evidence suggests, we are in a boatload of trouble as a civilization.

The case establishing that Trump may be insane is growing with every passing day. He has now threatened to abort the Iran nuclear deal, dumping it into the lap of Congress, because, most likely, he has no real idea what to do. He has threatened to cut off assistance to Puerto Rico which, according to multiple credible accounts, is in a humanitarian crisis unlike anything ever experienced in modern times. Trump seems unaware that Puerto Ricans are American citizens. Or maybe he just doesn’t give a damn. They are, after all, not like the people who elected him.

And now, frustrated that the Republican-dominated Congress cannot fulfill his promise to end the Affordable Care Act, Trump also is ending the billions in federal subsidies that make it possible for the health insurance marketplaces to offer meaningful insurance for the millions of people most in need of it.

Trump’s presidency is the work of an incompetent and likely irrational madman. If not crazy in the clinical sense, he is unhinged from reality a substantial part of the time. He does not understand government, has failed to staff multiple critical leadership positions throughout the government and spends a huge amount of time golfing. He still lies constantly and is unnaturally obsessed with Hillary Clinton and with undoing everything President Obama accomplished. He is in constant conflict many of his “advisors” in the White House. Most importantly, he is set upon undermining the free press which is protected by the very same Constitution he swore to uphold on January 20.

Trump’s “eye-twitching” is the real deal, not make-believe or only for effect. He is the only president in history who took the oath of office knowing that his real intent was to undermine the federal government. His uber-entitled cabinet members, when they’re not undermining environmental protections, are flying around on private jets. His coterie of family members and true believers are enriching themselves at the expense of everyone else.

As one commentator has accurately observed,

It’s become standard for reports coming from the inside of the White House to acknowledge, slyly at first but now overtly, that Trump is in constant need of managing. He believes false reports and refuses to read truthful ones. He lashes out at anyone who hasn’t lied for him adequately. There are now entire reports devoted to his rage, his anger, his madness and his inability to accept responsibility. [http://slate.me/2ggY2xy, bold in original]

This is the situation for which the 25th Amendment to the Constitution, ratified in 1967, was designed. Whether or not he is a moron, as the Secretary of State recently labelled him, and even if not “crazy” in the clinical sense, he is certainly mentally unstable and incapable of responsibly executing the duties of the high office he occupies. Recall that he has access to the nuclear firing codes and is the Commander-in-Chief of the armed forces.

Unfortunately, the 25th Amendment, drafted by a senior senator from Indiana with the counsel of a constitutional law professor at Fordham, contains much vague language that makes invocation even more fraught than it would, in all events, be. It has also led to some sloppy analysis and commentary about what the amendment means. There are, for example, two alternative means for removing the president due to inability to perform. Sometimes, they are conflated by well-intentioned commenters on this most serious of constitutional questions.

One method is that the “Vice President and a majority of either the principal officers of the executive departments” (i.e., the Cabinet) may declare in writing that “the President is unable to discharge the powers and duties of his office.” In that case, the “Vice President shall immediately assume the powers and duties of the office as Acting President.”

The amendment then states that the President can make a written declaration that he no longer has an “inability,” at which point he resumes his office, unless the Vice President and a majority of the Cabinet declare in writing that the President continues to be “unable” to do his job. In the case of such conflicting declarations, Congress must decide. That decision requires a two-thirds vote (known as a super-majority) of both the House and the Senate. If Congress concurs with the Vice President-Cabinet majority, the Vice President remains Acting President; if not, the President resumes his office.

It seems pretty clear that the crafters of the amendment did not want to make it easy to remove a president. That was probably wise, but now the unthinkable has happened. A president with the emotional makeup of a ten-year-old has been elected and the Republican Party is prepared to support him no matter what he does.

This brings us to the second method of removal under the 25th Amendment. To understand it, you simply substitute “a majority of … the principal officers of … such other body as Congress may by law provide” for the ‘a majority of the Cabinet.’ Everything else in the written declarations process remains the same, including the role of Congress to resolve conflicts between the President and either the Vice President-Cabinet majority or the “Vice President and other-body” majority.

This appears to be a dead letter because Congress has never created that “other body” with a group of “principal officers” who could vote on the President’s “inability” to do his job.

It may occur to you that there is a potential circularity in the alternative method. This appears so because the Congressional creation of the alternative body must be provided “by law” enacted by Congress. Since Congress cannot by itself enact a law, it could be argued that the alternative body can only be created with the cooperation of the sitting president who must sign the legislation. No one would expect a sitting president expecting a political attack by his own Cabinet would ever sign such legislation to make it easier to remove him. The answer, I believe, is the second method probably would have to be set up by a responsible and rational president who was not expecting a removal effort against him. Once the president has become irrational, he simply won’t cooperate with the Congress on any alternative removal mechanism and, thus, the alternative removal mechanism could not be used.

The apparent assumption of the drafters of the 25th that the President and the Congress would always act in advance of a crisis and do so responsibly seems naïve in the current context. In any case Congress has never passed a law to create the alternative body to address the “inability” of the President to perform his duties and, in the present political setting, it is unlikely to do so.

Where, then, do we end up? With Sheriff Mueller securing indictments. The Republicans and their news agents at Fox News are, naturally, parroting Trump’s continuous efforts to deflect attention elsewhere, usually to Hillary Clinton. Like some B-grade crime movie, Trump keeps screaming, via Twitter, “look, look, it’s not me/us, she’s getting away! Get her!”

At this point it’s a bit late for Trump and his gang to get out of town, so Sheriff Mueller will just have to finish the job he started. Trump and Fox will continue to try to undermine him. Maybe Trump will try to fire him. That would be a fatal mistake. If Trump is counting on the Sheriff to blink first, that also is a mistake. Manafort is in for a rough spell if he is found guilty, so maybe he will do the smart thing and start telling the truth. Then whose eyes will be twitching?

The Sound of Fear, Starring the Trump Family Deniers

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The latest revelation about the collusion between the Trump campaign and Russia is about a meeting attended by the campaign manager Manafort, Trump Son No. 1, Donald Jr., and Trump-in-Law Jared Kushner. I won’t waste your time with the details which were first reported by the New York Times, a newspaper of global fame to which the Trump family has been notably hostile. Maybe not a good move on their part.

I want instead to focus on the narrative that the Trump Family, and its enablers like Kellyanne Conway, have tried to spin in response to the now-admitted meeting whose stated-in-advance purpose was to secure dirt on Hillary Clinton that was sourced in the Russian government. That narrative has a familiar ring as it seems to follow almost exactly the concept of “alternative pleading” that law students learn about in courses on trial practice.

The idea of alternative pleading is that since, in the early stages of a lawsuit, you don’t know for sure how things are going to play out, you, as the defendant accused of some wrongdoing are entitled by rules of court to plead alternative defenses, including defenses that are inconsistent with each other. The evidence will then show what it shows and some defenses will fail while others may succeed. To some extent it resembles the old saw about throwing stuff at the wall and seeing what sticks.

To illustrate, suppose a lawsuit is filed against D claiming D’s conduct was the proximate cause of injury to plaintiff P resulting in damages of X amount, which P therefore is entitled to recover from D. D’s typical first step is to move to dismiss the complaint for failure to state a claim. That is, in simple English, even if everything alleged by P is true, there was nothing wrong with D’s conduct and thus the suit should be dismissed. A “fake suit” in current Trumpian parlance.

Kellyanne Conway, among others, has made this precise argument: even if Junior was seeking dirt on Clinton, this is politics and there was nothing wrong with seeking such dirt that might help the Trump campaign. But this argument ignores the fact that the source of the information was the Russian government, which suggests conspiracy with a foreign power to affect the outcome of an American election. Most rational people consider that seriously wrong, possibly criminally wrong.

So, what next? Faced with the revelations about Junior’s meeting, to which he has confessed publicly via the Family’s chosen medium, Twitter, the Trump Family Deniers change the tune, moving toward classical alternative pleading. First, the story was “there was no such meeting,” Then, if there was a meeting, I didn’t attend it. But if I did attend a meeting, it was a waste of time because we didn’t learn anything with which to smear Clinton so I left the meeting empty-handed. So, even if I did attend the meeting with the intention to do harm to Clinton, no harm to Clinton arose from my conduct, so everything is okeydokey. No harm, no foul. Finally, even if there were some harm, we were just amateurs at politics so we can and should be forgiven our sins and let bygones be ….

In a lawsuit, this sort of stairway to the basement approach is perfectly acceptable practice and the Trump Family Deniers’ playbook appears to follow it quite closely. The problem, of course, is that this is not a lawsuit, not yet anyway.

Instead, it is the early-to-middle stage of investigation into one of the greatest scandals in the history of American politics. One of the singular features of the scandal is that, from the very outset, during the campaign itself, Trump made no secret of his desire for assistance from Russia among others and no secret of his desire to buddy-up with Vladimir Putin (who will be featured in my next blog post). At the same time. Trump repeatedly denied there was any connection between him and Putin or between his campaign and anyone connected with the Russian government. His fame as liar-in-chief, thoroughly documented by many observers, led many to suspect that the denials were false.

Slowly but surely, more revelations of contacts between the Russians and the Trump campaign have emerged.  All the while Trump and his enablers, including Attorney General Sessions as well as several family members and key campaign players, have denied there is anything there. Their stories have changed over time, of course, as new revelations undermine the previous denials. This is starkly shown by the latest stories about Junior and Kushner meeting with a promised source of incriminating evidence on Clinton.

Even if it is true that the Russian lawyer with whom Junior/Kushner/Manafort met did not actually have any useful information and was really trying to influence Trump on the issue of adopting Russian children or to blunt the move to increase U.S. sanctions on Russia, the fact remains, and at this point appears to be undeniable and undenied, that the purpose of the gathering, from Junior’s point of view, was to seek Russian help in the battle with Clinton. And, of course, he wants everyone to believe that the President knew nothing of the meeting.

So craven are the enablers of the Trump Family Deniers that Ed Rogers, in an op-ed in the Washington Post this morning, http://wapo.st/2uaPmNy, singing the familiar tune “hysteria among the media,” argues that,

No senior campaign official, much less a family member of the candidate, should take such a meeting. Having the meeting was a rookie, amateur mistake. Between human curiosity and a campaign professional’s duty to get the dirt when you can, Trump Jr. likely felt that the person had to be heard. However, the meeting should have been handed off to a lackey. Said lackey would have then reported the scoop — or lack thereof — and awaited further instruction. [emphasis added]

What can one say after that? A fair reading of it, I suggest, is (1) perfect execution of “we were just amateurs at politics” defense, and (2) in a play right out of the Godfather, never send anyone from the family to do the dirty work and leave fingerprints; send in one of the stooge soldiers who can be sacrificed if necessary to protect the family, (3) seeking dirt from dirty sources like the Russian government is just good political fun, so what’s the problem?

This “win at any cost” mentality may be part of what led Trump to confess to Lester Holt in the now famous interview that he was going to fire FBI Director Comey because of Comey’s pursuit of the Trump-Russia connection regardless of what the leadership of the Department of Justice recommended. Trump and his very very rich family are accustomed to getting their way without arguments and if you do argue, you’re fired.

Maybe I’m being naïve about politics but I continue to struggle with understanding how the Republican Party can continue to support this president, given that he has no real connection to conservative political values that have driven the Republican Party historically and is making a complete hash of the office of the President. He has accomplished nothing of positive significance since taking office six months ago while destroying international relationships that have sustained world peace for decades. More about this in the next post.