My nominee (found on Twitter — creator anonymous::
Meme of the Month
1 Reply
Tag Archives: Special Counsel
What Pence’s Subpoena Resistance Means
Special Counsel Jack Smith has subpoenaed former Vice President Mike Pence to testify before a Grand Jury investigating attempts to overturn the 2020 election. Pence has stated he will not testify, citing the Speech & Debate Clause of the U.S. Constitution (Article I, Section 6, Clause 1). https://politi.co/3xw9GZs
That Clause states:
They [Members of Congress] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Pence claims that because his involvement in the coup was limited to presiding over the Congress’s final tally of electoral votes and certification of Joe Biden’s victory, he was acting in a “legislative capacity” and thus cannot be questioned.
On its face there are a multitude of problems with Pence’s position. First is that he has insisted, correctly, that his acts on January 6 were purely ministerial and that he lacked any discretion under the Constitution and laws to evaluate the validity of state vote counts or other acts leading to the election certification. His job was to open envelopes and announce their contents. This alone raises fundamental doubts about the “legislative nature” of what was intended to be protected by the Speech & Debate Clause.
Second, even if his January 6 actions were covered to some extent by the Clause, he cannot justify total refusal to be questioned about other matters arising out of the January 6 coup attempt and subsequent insurrectionist activities by Trump and others of which Pence may have knowledge. His immunity claim sweeps too broadly. In fact, it seems unlikely Special Counsel is much interested in Pence’s non-discretionary acts on January 6. Rather, the investigation more likely seeks his knowledge about actions by Donald Trump and others supporting his coup/insurrection attempt to overturn the election. As far as I am aware, Mike Pence conducted no legislative activities about any of that, other than his non-discretionary overseeing of the final electoral count tally.
Thus, Pence cannot plausibly argue that “because I performed one legislative act that day, I am immune from disclosing any information I may have about other matters related to the insurrection that day.”
To my knowledge, no one has suggested that Pence’s conduct on January 6 was questionable constitutionally or otherwise. Except Donald Trump, of course, who want berserk when Pence refused to go along with the false attack on the election.
Politico reports that Pence “feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.” Maybe, but it’s more than coincidental that, as Politico also notes, Pence’s resistance ”will allow him to avoid being seen as cooperating with a probe that is politically damaging to Trump, who remains the leading figure in the Republican Party.”
I do not understand how “Trump’s months-long crusade to pressure his vice president to derail Biden’s win — which is central to Smith’s investigation — focused entirely on Pence’s [ministerial] duties as Senate president, which legal scholars say lends credence to Pence’s case.” Josh Chafetz, a Georgetown University constitutional law professor, supports the argument that Pence may be on to something by observing that “a lot of the action here took place in terms of arguments about how he should rule from the chair.”
But the “action” around this issue was generated by Trump, not by Pence, who consistently resisted the argument that he had any more authority/responsibility on January 6 than opening envelopes and announcing their contents. Such “acts,” even if judged “legislative,” were not likely what the framers had in mind in protecting the legislators from encroachment by the other two branches.
Roy Brownell, former counsel to Senate Minority Leader Mitch McConnell has suggested that “Pence … could characterize his pre-Jan. 6 conversations with Trump and others as research into how he might rule on matters related to the Electoral College.” True, Pence could try that, but the courts are not bound by claims like that. Pence was researching anything and if he had been, it would certainly not have been by asking Donald Trump whose credentials as an expert on the Constitution are less than zero.
In any event, the question here is not whether some specific aspects of Pence’s conversations were privileged – he is refusing to testify at all, arguing that there is nothing the Special Counsel could legitimately ask him about his knowledge of Trump’s attempt to overthrow the government. That, I suggest, is facially preposterous and inconsistent with extensive case law on the limitations of privilege assertions in all contexts.
As reported elsewhere by Politico,
A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously rejected the South Carolina Republican’s [Senator Lindsey Graham] claim that he is constitutionally immune from such questioning. Though Graham may not be questioned about any conversations he had in support of his legislative activity, the panel ruled, prosecutors may question him about his “coordination” with the Trump campaign to arrange his calls with Georgia officials, as well as efforts to pressure those officials amid their ongoing audit of Georgia’s presidential election results.
The Supreme Court declined to intervene on Graham’s behalf.
We should also have regard for the literalist interpretation of the Constitution favored by “conservatives” and “originalists.” The Speech & Debate Clause refers expressly to “Senators and Representatives.” The Vice President is neither of those. The fact that he has limited, ministerial duties to perform in the legislative branch every four years does not make him one. He is there as the Vice President, conducting ministerial, non-discretionary acts involving no legislative work.
United Press International reports that Pence said at a campaign rally:
I’m going to fight the Biden DOJ’s subpoena for me to appear before the grand jury because I believe it’s unconstitutional, and it’s unprecedented. No vice president has ever been subject to a subpoena to testify about the president with whom they served. [https://bit.ly/3lC9Co9]
Unprecedented it may be, but no president has ever tried to overthrow the government and reinstall himself despite having lost the election. Arguing the lack of precedent just doesn’t work here.
At the end of the day, what Pence’s position comes down to is this: he is desperate to appease Trump’s loyalist political base and in fact supported Trump’s attempt to overturn the election while cleverly, but rightly, refusing to actively participate in the coup attempt. Pence wants it both ways – no responsibility for the insurrection but avoiding the appearance of attacking Trump, while simultaneously undermining Trump. He hopes Trump’s loyalists will overlook his refusal to play along on January 6 if he appears to defend Trump while not actually defending him.
Pence thinks Trump’s loyalists are a bunch of cultish dopes who will, when push time comes, choose him as Trump’s successor.
Pence is only slightly less a traitor than Trump. Special Counsel Smith is not going to fall for this nonsense and should vigorously contest Pence’s claim to immunity from subpoena by the Grand Jury.
“Lawless White House” – the Mueller Report – “Oh! What A Tangled Web We Weave …”
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.
*********
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
Court Eviscerates Barr Attempt to Whitewash Mueller Report
Federal District Court Judge Amy Berman Jackson yesterday issued a 35-page opinion (exclusive of attachments) rejecting the claims of the Department of Justice that it can withhold a memorandum behind then-Attorney General Barr’s attempt to whitewash the Mueller Report. Citizens For Responsibility and Ethics in Washington v. U.S. Department Of Justice, Civil Action No. 19-1552 (DC DC May3, 2021). [Note: bolding of text is mine]
You may recall that, as brilliantly reported by Judge Jackson, and at the risk of giving away the conclusion,
On Friday, March 22, 2019, Special Counsel Robert S. Mueller, III delivered his Report of the Investigation into Russian Interference in the 2016 Presidential Election to the then-Attorney General of the United States, William P. Barr.
But the Attorney General did not share it with anyone else.
Instead, before the weekend was over, he sent a letter to congressional leaders purporting to “summarize the principal conclusions” set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume I – which discusses the Russian government’s interference in the election and any links or coordination with the Trump campaign – and the almost 200 equally detailed pages of Volume II – which concerns acts taken by then- President Trump in connection with the investigation – into less than four pages. The letter asserted that the Special Counsel “did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction,” and it went on to announce the Attorney General’s own opinion that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
The President then declared himself to have been fully exonerated.
The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball.
When, almost a month later, Barr presented the Mueller Report to Congress, “He asserted that he and the Deputy Attorney General reached the conclusion he had announced in the March 24 letter “in consultation with the Office of Legal Counsel and other Department lawyers.” CREW immediately filed Freedom of Information Act requests for any documents related to those consultations. Predictably, DOJ resisted, citing exemptions from disclosure based on “deliberative process” and “attorney-client privilege.”
At issue then before the Court were two memoranda to the Attorney General. The DOJ justification for withholding the first one, the Judge noted, was poor, but the Judge conducted an in camera [private, in chambers] review of the document and gave DOJ a helping hand:
there was a particular, immediate decision under review to which the document pertained, that it also addressed another specific issue that was likely to arise as a consequence of the determination made with respect to the first, and that the entire memorandum was deliberative with respect to those decisions.
Judge Berman therefore held that document need not be disclosed to CREW.
The other document, however, was another cup of joe entirely. It was dated just two days after Mueller gave Barr the report and “specifically addresses the subject matter of the letter transmitted to Congress.” Most of the document is redacted in the Judge’s opinion but she also conducted, over DOJ’s strenuous objections, an in camerareview of that document.
Noting first CREW’s objections to the timeline represented by DOJ attorneys:
DOJ’s . . . arguments rest on the demonstrably false proposition that the memo was submitted to the Attorney General to assist him in making a legitimate decision on whether to initiate or decline prosecution of the President for obstructing justice . . . . [H]owever, the Special Counsel already had made final prosecutorial judgments and the time for the Attorney General to challenge those judgments had passed. Whatever the contents of the March 24, 2019 OLC memo, it was not part of a deliberation about whether or not to prosecute the President….
The absence of a pending decision for the Attorney General to make necessarily means the memo did not make a recommendation or express an opinion on a legitimate legal or policy matter. Instead, it was part of a larger campaign initiated by Attorney General Barr to undermine the Special Counsel’s report and rehabilitate the President . . . .”
The Judge concluded:
the redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all. In other words, the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.
In a footnote, most of which is redacted, the Judge noted, “DOJ made a strategic decision to pretend as if the first portion of the memorandum was not there.” Ooof.
Similarly, Judge Jackson later observed,
the in camera review of the document, which DOJ strongly resisted …. raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment
and,
summary judgment may be granted on the basis of agency affidavits in FOIA cases, when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” … But here, we have both.
Noting a previous court opinion (the EPIC case) that found,
The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report – a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.
Judge Jackson found,
the [DOJ] affidavits are so inconsistent with evidence in the record, they are not worthy of credence.
and,
the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.
and,
A close review of the communications reveals that the March 24 letter to Congress describing the Special Counsel’s report, which assesses the strength of an obstruction-of-justice case, and the “predecisional” March 24 memorandum advising the Attorney General that [redacted text] the evidence does not support a prosecution, are being written by the very same people at the very same time.
As to the claim of attorney-client privilege, Judge Jackson was equally incisive and for similar reasons:
… since the memorandum was being written at the same time and by the same people who were drafting the Attorney General’s letter to Congress setting forth his views on the basis for a prosecution, and the record reflects that the priority was to get the letter completed first … one simply cannot credit the declarant’s statement that the Attorney General made the “decision” he announced based on the advice the memo contains.
Finally,
The Court emphasizes that its decision turns upon the application of well-settled legal principles to a unique set of circumstances that include the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel’s report and the Attorney General’s summary.
These devastating (for the DOJ attorneys) findings confirm the suspicions that I and many other expressed at the time that the fix was in at the Barr Justice Department and that Barr was acting more as personal counsel to Trump than doing his job as Attorney General of the United States.
Judge Jackson gave DOJ until May 17 to move for a stay pending appeal, but it is unlikely that AG Merrick Garland is going to do anything to resist the force of Judge Jackson’s definitive analysis. Stay tuned. The release of an unredacted version of the Judge’s opinion will be an explosive eye-opener about the extent of corruption in the Trump-Barr Justice Department.
MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA
Introduction¹
This is the first of a series of posts in which I will analyze the Mueller Report based on the Special Counsel’s Office (SCO) investigation into two questions: (1) did the Trump Campaign conspire with the Russian government to affect the 2016 election in Trump’s favor and (2) did Trump engage in obstruction of justice regarding the Mueller investigation or otherwise? Based on the evidence adduced by the SCO, I believe the answer to both questions is ‘yes.’
Trump has argued that everything that transpired with Russia during and after the Campaign was intended merely to improve relations with Russia. On its face, there is nothing wrong with that — as a policy position – since Russia is clearly a major world power and, provided US interests are protected, better relations with it would be an important and valid foreign policy objective. Such claimed improvements in relations, however, must have mutual benefits, including that (1) vital relationships with allies around the world are respected and nourished, and (2) the personal and financial interests of our government leaders are not implicated in decisions regarding Russia. Because the Trump administration has been conducted largely in secret, often violating federal laws governing record-keeping by federal officials, and because the president has demonstrably lied about so many aspects of his governance before and after his election, including particularly his relations with Russia, little or no credence should be given to his protestations of innocence and doubts should be resolved against him.
Moreover, and this supersedes all other considerations, efforts to improve relations may not, under any imaginable circumstances, include seeking or accepting offers of assistance in the election of our leaders. Such activities by candidates are plainly and completely forbidden. It is well to remember, as President Obama reminded us when asked about possible changes to US foreign policy following his election, but before his inauguration, we have only one president at a time. Interference in the foreign policy of the United States by collaboration with a hostile foreign power, which Russia unquestionably has been, is beyond the pale. Every putative leader and those in the inner circle are chargeable with knowledge of, and the duty to comply with, this policy. Failure to adhere to it is a clear violation of the constitutionally prescribed oath of office (Article II, Section I, Clause 8) and is tantamount to, if not actually, treason.
Treason is a term that should not be thrown about lightly. The U.S. Constitution, in an effort to limit the abuses of the King of England, provides “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
Since the Constitution provides only a limitation on what may be treason, the Congress enacted 18 USC 2381 of the federal criminal code:
“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
Historically, very few formal allegations of treason have been brought in the United States and, as a practical matter, there is little chance that Donald Trump will be so accused. Nevertheless, in evaluating his behavior, and that of his chosen associates, it is well to keep the concept in mind. “I didn’t know the law” is no excuse.
It is important to me personally and, I hope, important to readers, to understand the many curiosities and nuances of the Mueller investigation, especially now that the Trump-appointed Attorney General has taken it upon himself to “decide” the very issues about which Mueller declined to make a final prosecutorial judgment. In doing this, the AG has made blatantly false statements about the substance of the Mueller Report in an effort to shape the public understanding of that Report in Trump’s favor. The AG has acted more like Trump’s personal attorney than like the chief legal officer of the country.
Mueller opened the door to this chicanery by failing to state clear conclusions about many aspects of the investigation. He could have done otherwise even if he believed, as he says, he was constrained by Justice Department policies that prevent the indictment of a sitting president for the corrupt conduct of his office. But he didn’t state those conclusions. Overall, his approach to the investigation seems to lack an appropriate measure of aggression, considering what was and is at stake.
Understanding the Report is also important because the Republicans in Congress now seek to “investigate” the investigators, pursuing the false narrative that there was no justification for the investigation in the first place and, taking words from Trump’s tweet storms, it was all just an effort to “take down a president.” That characterization is plainly false. That fact does not mean, however, that the Muller Report is without shortcomings. In addressing what I believe those are, I will be unsparing in my own critique.
That critique does not support the false Republican narrative. Indeed, the reverse is true. For reasons I will state, Mueller, in my view, failed to pursue leads and to follow up and report on some obvious issues. I understand, of course, that Mueller is famous as a prosecutor and highly regarded as a man above reproach. I accept that, but that just makes the questions about the Report all the more pointed and the absence of answers more difficult to accept at face value. This was not a time to be timid and, I believe, the Report reflects a stunningly timid approach.
On the issue of election interference, the Report contains many details, some of which refer to what seem like peripheral matters. Large sections of Vol. 1, for example, deal with Russian cyber-attacks and how they were investigated, not with Trump Campaign coordination. If you choose to read the Report, do not be distracted by this. The Report’s crucial finding is that not only did the Trump Campaign “expect … to benefit electorally from information stolen and released through Russian efforts” [I-MR 1-2] but the Campaign did not report what it knew was going on, and being attempted, to the FBI.
Also, keep in mind this warning from Mueller: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” I-MR 2 There are many instances in which that statement applies to the situation the investigation was trying to explore.
Mueller has stated that if questioned in Congress, he will say nothing more than what is written in the Report. That is, for reasons that will appear, an unacceptable position. There are many legitimate questions about the conduct of the investigation, the framing of the analytical basis for the matters investigated and the conclusions (and non-conclusions) drawn. Mueller has, I believe, a solemn obligation to appear and respond to questions. He has apparently now agreed to do so, despite the continued entreaties of the Attorney General that he should not undergo that examination. I trust Mueller will not simply say “sorry, I have nothing further to say.” Time will tell.
[1] Page references are to the actual Report, not the pagination in Adobe Reader. I-I-MR X refers to Volume 1 at page X and II-I-MR X refers similarly to Volume II.
Next: Collusion vs. Conspiracy – Setting a High and Unnecessary Threshold of Proof
SHINING SEA 