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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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D. Why Weren’t Trump’s Enablers Indicted?

One of the great lingering mysteries about Mueller’s treatment of the obstruction issues is why he did not secure indictments of Trump’s enablers when the evidence clearly indicated their involvement in promoting the obstruction that Trump was executing. One prominent example of this is K.T. McFarland, who seemed to act as a go-between for Trump to direct Michael Flynn. It is implausible, I suggest, to believe that McFarland would not have revealed discussions with Flynn and Russian Ambassador Kislyak in meeting with Trump one hour after talking to Flynn about those discussions. II MR-25. As referenced earlier in these posts, Flynn had multiple memory failure about the information he may have discussed with other administration officials and Trump himself. The Russian response to the US sanctions was apparently a matter of considerable importance to Trump and his administration. Given Flynn’s admission of lying about his contacts with Kislyak, it is very hard to conclude that these memory failures were legitimate and that neither Trump nor his principal enablers were kept in the dark.

Beyond all that, McFarland followed Flynn’s directions to tell the Washington Post that no discussion of sanctions had occurred with Kislyak. Mueller specifically says, “McFarland made the call as Flynn had requested although she knew she was providing false information….” II MR-29. No charges were brought against McFarland for her role in this ruse. Why not?

Putting aside the further implausibility of Trump, after a lifetime of litigation and political commentary, denying that he understood the law, one thing is clear: as of January 26, 2017, Don McGahn, White House counsel, explained both 18 USC 1001 (crime to lie to federal government) and the Logan Act (crime for citizen of U.S. to communicate with a foreign government with intent to influence the foreign government in relation to disputes with the U.S. or to defeat the measures of the U.S.). II MR-31.

Rather than extending this already-long narrative about the multiple situations in which credible evidence shows Trump committed obstruction of justice and possibly other crimes, I want to raise some questions about the obstruction investigation that cry out for answers but are not explained in the Mueller Report.

One of the big ones relates to the visits by Acting Attorney General Sally Yates to the White House to explain that the Justice Department had evidence indicating Gen. Flynn had been compromised by his lies about interactions with Russian Ambassador Kislyak. When Yates returned to the White House on January 27, 2017, at the request of White House counsel Don McGahn, he asked to see the information DOJ had on Flynn’s contacts with Kislyak. This information was provided! II MR-33, n. 166. It was reviewed by John Eisenberg, legal advisor to the National Security Council. Why did the Acting AG think it was a good idea to provide the evidence to the White House in light of Trump’s history of denying Russian influence in the election and lying about events related to it? Why would Yates think that the White House would act against Flynn?

As it turned out, that was the same day that Trump invited FBI Director Comey to a private dinner at the White House, disregarding not for the first nor last time, the advice of White House counsel to avoid the appearance of political interference with law enforcement. II MR-33. That, of course, was the dinner at which Trump demanded “loyalty” from Comey. II MR-34. Both Press Secretary Sanders and counsel McGahn adopted Trump’s denials of the “loyalty” demand, thereby making themselves collaborators in what Mueller concluded, based on all the evidence, was a series of Trump lies about what transpired. II MR-35, 36 and 35, n. 183. Yet, neither Sanders nor McGahn was indicted. Why not?

In the end, Trump reluctantly fired Flynn while assuring him that he would be taken care of. II MR-38. The very next day Trump cleared a meeting room of witnesses and asked Comey to let Flynn go. II MR-40. Astoundingly, Jared Kushner, one of those dismissed, claimed he could not remember that Trump asked Comey to remain behind for a private meeting.  II MR-40, n. 233. Trump continued to assure Flynn of his kind regard for him into late March or early April. II MR-44.

Trump continued to lie about the Flynn situation, going so far as to claim he did not recall the “loyalty” meeting at all. II MR-44. Trump insiders Priebus & McGahn minced words regarding Trump’s attempts to call off Comey from the Flynn investigation. II MR-44, n. 270.

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 – C

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C. Campaign Officials Suffering from Failed Memories at Critical Times

George Papadopoulos was working toward a London meeting of Campaign officials with Putin staff that would be not openly endorsed by Trump. I-MR 92. Interestingly, Papadopoulos “declined to assist in deciphering his notes” about the TAG meeting and the London meeting plan. I-MR 91, n. 489. Clovis claimed not to recall attending the TAG meeting even though he was photographed sitting next to Papadopoulos. I-MR 91. Papadopoulos was dismissed from Campaign a few months later after an interview with the Russian news agency Interfax wherein he complained about the effect of Obama’s sanctions on Russia and drew unwanted attention to the developing relationship with Russia. I-MR 93, n. 493

 One of the most interesting aspects of the Report is that, when crucial issues were raised with various members of the Campaign, they experienced memory failure. This happens again and again in the investigation. A glaring and important example relates to whether Papadopoulos, having seemingly constant though irregular communications with Campaign officials about his efforts to link the Campaign with Russian support, told anyone on the Campaign staff that the Russians claimed to have email dirt on Clinton.

Papadopoulos wasn’t sure and Stephen Miller and Clovis both could not recall hearing this extraordinary information. While the Report says that no documentary evidence, including emails, showed that Papadopoulos shared the information with the Campaign, it strains credulity to believe that Papadopoulos kept this claim to himself throughout the summer when he was working so hard to convince the Campaign of the value of his Russia connections. It is also not surprising that there was no documentary evidence because the nature of the secret and the warnings from Campaign staff about the sensitivity of the Russia connection, documented in the Report would naturally lead to avoiding the creation of a paper trail.

Papadopoulos also had memory loss when questioned about his relationship with Sergei Millian, who claimed to be the head of the New York-based Russian American Chamber of Commerce. I-MR 94. Curiously, that organization’s website states that the “Chairman and Founder” of the RACC is Yelena Brezhneva. https://raccnv.com/about-us  On LinkedIn, she is listed as a real estate investment advisor in Las Vegas and also founder of the RACC. Millian is nowhere mentioned.

Millian had offered Papadopoulos access to “disruptive technology that might be instrumental in your political work for the campaign.” Trump campaign official Bo Denysyk declined Papadopoulos’ offer to connect him with Millian because there was already to much media attention to Trump’s enthusiasm for Russia. I-MR 94. There is no report about Papadopoulos’ specific response to the offer of “disruptive technology,” which is a strange omission and not explained anywhere in the Report.

The consideration of the Papadopoulos – Millian connection dries up despite further meetings between the two, in part because Millian remained out of the country during the investigation and refused requests to be interviewed. I-MR 94. It appears that Mueller simply gave up on this line of inquiry. Why?

The other point to be made here is that the Campaign people likely were aware that a lie about some action could be found out, with legal consequences for the liars (ask Michael Flynn and Michael Cohen), but a statement that “I don’t remember” is virtually bullet-proof unless extrinsic evidence exists that the person does remember; such situations are rare.

While there are substantial Grand Jury-based redactions related to Carter Page’s activities in Russia, the Report ultimately concludes that Page’s activities “were not fully explained,” suggesting there was more to be learned but for redacted reasons, there was no further opportunity. I-MR 101. Why?

As with Papadopoulos, the media focused on Page’s Russia activities in the post Republican Convention period and by late September, he was dismissed from the Campaign amidst denials from the Campaign that he had a meaningful role. I-MR 102

The pattern seemed to be that the Campaign was comfortable with the efforts of Papadopoulos and Page to generate contacts in Russia as long as it was not publicly exposed; when it was exposed, they were ousted from the Campaign. Hope Hicks issued a directive that the Campaign was to deny Page had a role even after he was announced as foreign policy advisor in March 2016. Allegedly, he was paid to do nothing for six months, then fired. There is no discussion of the Campaign payrolls to show how much Papadopoulos and Page were paid or whether there was documentation of expenses reimbursed by the Campaign. WHY is this obvious investigative technique not at least mentioned?

 Finally, let’s not forget that Jeff Sessions, Trump’s pick for Attorney General until Sessions recused himself and refused Trump’s demands to un-recuse, also could not remember what he spoke with Russian Ambassador Kislyak about at the Global Partners in Diplomacy event. I-MR 123. I understand that these oh so very important people meet so many other very important people that they can’t remember every conversation, but Kislyak was the Russian Ambassador. I, at least, believe it is more than a little odd, that Sessions could not remember anything substantive about their interaction. Maybe I just haven’t met enough very important people.

Next: The Curious Handling of the Trump Tower Meeting

 

Donald Trump & Attorney General Sessions Committing Crimes Against Humanity

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Attorney General Jeff Sessions graduated from law school 6 years after I did. While the schools were in different parts of the country, there is no reason to believe that, by virtue of geography or timing, the law taught to him was significantly different than the education I received. I can’t be sure of that, of course. But I am sure that going to law school does not, by itself, make you a better human being. I will explain why below.

Among the well-known graduates of the University of Alabama Law School are Harper Lee (wrote To Kill a Mockingbird); Hugo Black (Associate Justice of U.S. Supreme Court); and Howell Heflin (Democratic Senator who preceded Jeff Sessions and who voted against most progressive legislation but came to realize “we live in a nation that daily is trying to heal the scars that have occurred in the past. We’re trying to heal problems that still show negative and ugly aspects in our world that we live in today, and perhaps racism is one of the great scars and one of the most serious illnesses that we suffer from still today.”)

On the other hand, the notables list of UALS includes George Wallace (as Alabama’s governor, sworn to uphold the law, he defied the school integration ruling of the U.S. Supreme Court); Spencer Bachus (at the center of insider trading scandal under rules that exempt Congress from the prohibitions); and, not least, Roy Moore (defeated Senate candidate for Jeff Sessions’ vacated seat, multiply accused of sexual harassment of underage females and twice evicted from his job as Chief Justice of the Alabama Supreme Court for refusing to comply with federal court decisions).

No doubt there are many other notable UALS graduates on both sides of the divide that separates the two groups I have singled out. The same is certainly true of my law school, which graduated Ted Cruz, Anthony Scaramucci and Mitt Romney, all on the wrong side of the humanity divide.

I use the phrase the “humanity divide” because law school should instill in its students not only a respect for the law and legal institutions operating under a complex federal-state system with a constitution as the overarching legal framework for the whole, but also some sense of what is right, what is fair, what is justice. I do not suggest that “justice” is always obvious; clearly, it is not and we have long strings of conflicting Supreme Court decisions to prove it. Justice is hard sometimes but if you search deeply enough, you can usually find it.

As a people, we have, imperfectly for sure, but generally over time. adopted certain norms of civilized conduct from which we do not permit deviations that deny basic human rights and individual dignity to humans. (We are far behind the curve when it comes to protecting animals, but set that aside for today).

For example, we don’t torture prisoners. It’s not that we’ve never done it. We have, but as a societal norm under most controllable circumstances we don’t accept torture as legitimate. A soldier in combat conditions might torture a prisoner in an effort to get information that could save the lives of his comrades in arms. As a society we don’t approve of that torture but perhaps we can at least understand it in the circumstances. But, we don’t accept that behavior when it occurs in circumstances where imminent threats to safety are not present. Those situations are hard to identify sometimes, but we keep trying.

We don’t summarily execute criminals as a lesson to others. To reverse paraphrase our Attorney General’s position on separating children at the border, we don’t say “if you didn’t want to be shot in the head, you shouldn’t have committed a crime.” We don’t say “if you didn’t want to be drawn and quartered, then disemboweled in front of your family, you shouldn’t have robbed that bank.”

In declaring our country’s independence, our founders declared that we hold as self-evident truths that all men (defined now as humans, not by gender) are created equal and are endowed with inalienable rights, among them Liberty. Over time, in our quest for a “more perfect union,” as you would expect, the standards of what “justice” entails will change, and they have, sometimes dramatically. Recall, for example, that until 1954, it was permissible for schools to segregate students by race on the false premise that they were “separate but equal.” The Supreme Court changed that and, as a country and as a people, it is indisputable, I believe, that we are better off because of it. Men once were permitted to own other people as property. We put an end to that too, at the cost of much blood and sacrifice.

Remember that the second opening clause of the U.S. Constitution says “establish Justice.” We don’t always get it right but we keep trying. We have humanity. We show humanity in our treatment of others, even those found to have committed serious crimes against society. It would be more efficient to eliminate court appeals and just take convicted criminals out back and hang them from a tree. Or burn them at the stake. We don’t do that anymore. We have humanity. We have learned. At least we thought we had.

The Trump administration has shown little humanity since coming to power in 2017. It has departed, deliberately and with malice aforethought, from the moral standards that have governed our progress as a people for more than 200 years in a multitude of situations, none more egregious than the policy and practice of separating children from their parents who bring them across the border without required documents.

The Trump/Sessions deportation policy may, I emphasize may, be legal in some technical sense (I am not an expert in that field), but it is certainly not just. It lacks humanity in any meaningful sense. The practice of separating children, some mere babies, from their parents when they have arrived in the United States, whether illegally or legally seeking asylum, and placing the children in cages with no contact with parents who are in some cases deported without process and without their children, is, by any reasonable standard, inhumane, an offense against decency and against higher values to which we aspire. It is a practice of which the German Nazi Party would have been proud.

Among the many things wrong with the policy is that it conflates what the child did with what the parent did and punishes the child for the parent’s transgressions against U.S. law. Self-evidently, a toddler has no control over the parental decision to attempt entry into the United States without proper documentation. Yet, the children are removed from their parents and sent to “camps,” often hundreds of miles away. There are reports that many are unaccounted for. Whatever the reason behind that, there is simply no excuse for creating or maintaining such a system on the theory that it will teach the parents a lesson.

I believe the Trump/Sessions policy, on its face and as practiced, violates the 8th Amendment to the U.S. Constitution, which prohibits “cruel and unusual punishments.” In 2016 the U.S. Supreme Court said, ““Protection against disproportionate punishment is the central substantive guarantee of the Eighth Amendment.” Montgomery v Louisiana, 577 U. S. __. Surely locking a child in a cage away from her parents is disproportionate to anything the child did.

The Supreme Court elaborated on the history of imposing mandatory life sentences without parole on person who were juveniles at the time of their capital offense, noting that

Miller v. Alabama, 567 U. S. 420 (2012 … held that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on “‘cruel and unusual punishments.’” [citations omitted]

My point is not that the children being wrenched away from their parents on the southern border are being given life sentences. They are, however, being punished for a crime that they, acting on their own, could not have committed in many, if not most, cases. Locking a child in a cage is punishment. Put Donald Trump or Jeff Sessions in a cage and see how fast they agree.

In addition to U.S. law, there are other resources that inform our understanding of what treatment is appropriate, is just, for children of illegal immigrants caught at the border. According to the United Nations,

The International Law Commission was established by the General Assembly, in 1947, to undertake the mandate of the Assembly, under article 13 (1) (a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification”.

http://legal.un.org/ilc/

Article 17 of the Draft Code of the International Law Commission states:

“A crime of genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: … (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; … (e) Forcibly transferring children of the group to another group.” [emphasis added]

The Commentary on Article 17 includes this:

“(With regard to subparagraph (e), the phrase “forcibly transferring children of the group to another group”, was drawn from article II, subparagraph (e) of the Convention on the Prevention and Punishment of the Crime of Genocide. The forcible transfer of children would have particularly serious consequences for the future viability of a group as such. Although the article does not extend to the transfer of adults, this type of conduct in certain circumstances could constitute a crime against humanity under article 18, subparagraph (g) or a war crime under article 20, subparagraph (a) (vii). Moreover, the forcible transfer of members of a group, particularly when it involves the separation of family members, could also constitute genocide under subparagraph (c). [emphasis added]

Article 18 of the Draft Code of International Law Commission states:

“Crimes against humanity A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group: … if) Institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; (g) Arbitrary deportation or forcible transfer of population; (h) Arbitrary imprisonment; (h) Forced disappearance of persons; (i) Rape, enforced prostitution and other forms of sexual abuse; (A) Other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm.” [emphasis added]

I am aware that international lawyers can, as lawyers will, make all manner of arguments about what exactly each word or phrase means and will argue that this draft language is not binding on the United States, and more. Maybe, but I don’t believe they can overcome the fact that this language frames the concept of inhumane treatment, especially of very young children, as understood by civilized people of the world.

In addition, the ACLU has reported that it has

“uncovered tens of thousands of pages of evidence documenting U.S. Customs and Border Protection (CBP) officials physically, sexually, and verbally abusing children. The majority of these children are asylum seekers fleeing violence in Mexico and Central America. Some are teenage mothers. Some are escaping gang violence. Some are in need of medical attention. All of them have risked their lives to find safety – and tragically, CBP has shattered that dream for so many.

CBP’s abuses are not only unconscionably inhumane, but they also violate United States law and international human rights law, which give protections to migrants, refugees, and asylum seekers – no matter their country of origin.

The uncovered documents show CBP officials – including Border Patrol agents – committing the following abuses:

  • Threatening children with rape and death
  • Depriving children of food and water and holding them in freezing and unsanitary detention cells
  • Shooting children with Tasers and stun guns
  • Punching a child in the head repeatedly
  • Running over two 17-year-olds with patrol vehicles
  • Subjecting a 16-year-old girl to a search in which they forcefully spread her legs and touched her genitals

The violations are numerous. By law, CBP can’t hold unaccompanied children for longer than 72 hours. Children in CBP custody are entitled to safe facilities, adequate food and water, and proper medical care. And as federal officials, CBP officers are legally required to report all allegations of child abuse to law enforcement, child protective services, or the FBI.

All human beings deserve to be treated with dignity and respect, regardless of their immigration status – and children, in particular, deserve special protection. The misconduct demonstrated in these records is breathtaking, as is the government’s complete failure to hold officials who abuse their power.

https://action.aclu.org/petition/cbp-stop-abusing-children  [bolding in the original]

Also, read this if you have the stomach for it: https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/ice-cruelty-knows-no-bounds

Who bears the burden of guilt here? Apologies for the length of this, but you really need to grasp the enormity of what is being done to these children and their parents:

In an interview on Tuesday morning with conservative radio host Hugh Hewitt, Attorney General Jeff Sessions doubled down on his defense of the Trump administration’s practice of tearing apart families seeking refuge in the United States, including those seeking asylum. The interview revealed not only Sessions’ lack of basic empathy and compassion but also his willingness to deceive the public in defending this cruel policy.

During the conversation, Hewitt pushed Sessions to consider the implications of separating a child from his or her parent, even asking if Sessions could imagine his own grandchildren being taken from their parents. Yet Sessions would not be moved, opting instead to paint these devastated, vulnerable parents as criminals who are “just coming here because they’d like to make more money.”

Further questioned on the morality of detaining people seeking asylum, Sessions resorted to outright lies. The issue, Sessions explained, is that people are not pursuing asylum in the correct way, by arriving through a U.S. port of entry: “If you come to the country, you should come through … the port of entry and make a claim of asylum.”

Here’s what the Attorney General is not saying: Under its family separation policy, asylum seekers who have followed this exact protocol are still having their children ripped away. It happened to both Ms. L and Mirian G, two mothers who are a part of our class-action lawsuit. Fleeing the Congo, Ms. L, arrived at a port of entry near San Diego with her then 6-year-old daughter to seek asylum. Despite having committed no crime and having followed the correct protocol for seeking asylum, Ms. L and her daughter were detained. Four days later, her daughter was taken from her and sent to a government facility in Chicago. Ms. L was sent to an immigration detention center. The mother and daughter were kept apart by 2,000 miles for more than four months until the ACLU intervened on their behalf. Mirian G., an asylum seeker from Honduras, experienced similar cruelty: After presenting herself at port of entry, Border Patrol agents took away her 18-month-old son. She didn’t see him again for more than two months.

Sessions would have us believe that those who follow the rules will not be subjected to this kind of inhumane treatment, but that’s simply untrue. No one seeking asylum, even those not entering through ports of entry, should be treated like a criminal. But for Sessions to claim that the administration is only separating families who cross the border illegally is just wrong. Our clients did everything by the book and still had their children taken from them.

Sessions also spent much of the conversation attempting to portray the administration’s family separation policy as par for the course. “Every time somebody … gets prosecuted in America for a crime, American citizens, and they go to jail, they’re separated from their children,” Sessions argued. Parents seeking refuge in the United States who are prosecuted for crossing the border someplace other than a port of entry, Sessions’ line of reasoning goes, are simply being treated as any American citizen who is incarcerated.

But since when does the government refuse to reunite a parent and child after someone has served her time?

Crossing the border without proper documentation is a misdemeanor that typically carries the penalty of a few days in jail if you’re prosecuted. What the Attorney General failed to mention is that the government is refusing to give kids back to parents once they have served their time. Our client, Ms. C, experienced this firsthand. After Ms. C, an asylum seeker who was prosecuted for entering the country illegally, served her 25-day criminal misdemeanor sentence, she expected to be reunited with her 14-year-old son who had been cruelly taken from her. Instead, Ms. C was forced to wait more than eight months after serving her sentence before the two were reunited.

It is one thing to defend a morally reprehensible policy, but it is another thing entirely to spew lies in making that defense. On Tuesday Sessions crossed that line.

https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/jeff-sessions-deceitful-spin-family

What, I ask, do these fools in the Trump administration think the long-term consequences of these practices are going to be? What impact will they have on the attitude of people whose rights are disrespected in this way? How are they likely to think about the United States when they mature? Through these practices, the United States is guaranteeing a new generation of enemies who will see the promise of America as a vast lie perpetrated knowingly by a government that resembles the Nazi regime that took over Germany and overran most of Europe.

I submit that the practices and policies of the Trump administration being enforced by the Attorney General as outlined above are crimes against humanity and may be a form of genocide under international standards. As has been the case elsewhere, in time there will be a reckoning about all of this. The callous indifference and blatant disregard for human rights that is evident in these practices and policies will be returned one day to those that are responsible for it. The maintenance of civilization requires nothing less.

To help bring that about, please support the ACLU. It is using our legal system, the one designed as a bulwark against authoritarianism and the critical pillar of the checks and balances of the Constitution, to help defenseless children against egregious violations of human rights. If the government can get away with doing this to these children, it can do it to anyone. We must #RESIST with every means at our disposal.

Laughing at Jeff Sessions

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AHAHAHAHAHAHA … there, I am laughing out loud, really LOUD, at Jefferson Beauregard Sessions III, the Attorney General of the United States. You know, the one with skin so thin you can see what passes for blood coursing through his arteries. You may recall that Capitol police arrested a woman during Sessions confirmation hearing in the U.S. Senate for laughing at Sessions’ remark about, get this, treating all Americans equally under the law. That’s a good one. No surprise that the lady laughed out loud. The charges were thrown out due to faulty jury instructions but Sessions is determined to try the woman a second time.

Dana Milbank wrote a wonderful column about this in today’s Washington Post, entitled “Our laughable attorney general.”  http://wapo.st/2f3PrKL. So, here I go again… AHAHAHAHAHA, laughing out loud at the Attorney General. Come and get me, Jeff; I dare you. I’m laughing at you, Jeff. It’s okay if I call you Jeff, isn’t it? Your feelings won’t be hurt? I wouldn’t want to hurt your feelings, Jeff. You might have me arrested for assault on your feelings.

I recall that many years ago, Senator William Scott of Virginia called a press conference to deny a published report that he was the dumbest person in Congress. See http://wapo.st/2wGJTyO.

That was pretty funny. But I think Sessions is even funnier. He apparently intends to bring the full legal weight of the United States Government to bear on this woman until she is either convicted of a laughing offense or confesses her guilt of something that will make Sessions feel like a real man. “Wipe that smile off your face, lady, or I’ll wipe it off for you.” Sounds like a line from a 1950s B movie. “Nobody laughs at the Attorney General and gets away with it. Nobody.”

I am so glad the AG and the Justice Department have time and resources for this activity.

Of course, in one way Sessions has done everyone a favor. He has revealed why there is no humor in the Congress. Can you imagine what would happen if the decorum of the Senate were blemished by laughter every time something monumentally stupid was spoken on the Senate floor? They’d never get anything done. On the other hand, under the leadership ofMitch McConnell, the Senator from Kentucky, they seem to have managed to get nothing done without a single overt guffaw being heard. Maybe the Republican majority has managed to swallow those giggles like they have choked down their integrity and dignity. Just as with humor, no gagging is permitted in the Senate.

Footnote: For more potential parallels between former Senator Scott and current AG Sessions, see the Wikipedia piece on Scott. https://en.wikipedia.org/wiki/William_L._Scott. And your day cannot be complete without seeing the Scott quotes in the Chicago Tribune at http://trib.in/2xaMJgX. You just can’t make this stuff up.

 

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.

Sessions’ Testimony Evaluated – Part 4 (Last)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MCCAIN: And his response was?

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

I will just leave that one there.

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

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

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

Sessions’ Testimony Evaluated – Part 3

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

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

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

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

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

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

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

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

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

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

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

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

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

KING: You’re asserting a privilege.

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

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

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

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

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

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

SESSIONS: No.

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

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

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

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

Sessions’ Testimony Evaluated – Part 2

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

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

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

To which Sessions said:

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

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

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

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

WARNER: Appropriations committee raised that issue.

SESSIONS: I just gave you my answer.

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

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

Sessions continued to avoid answering even simple direct questions:

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

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

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

SESSIONS: I have not talked to him about it.

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

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

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

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