What If the Problem Is Not with Special Counsels, But Instead the Presidency?
Rod Rosenstein protégé Robert Hur will testify before the House Judiciary Committee today. He decided to come represented by one of the Republican party’s best criminal defense attorney, Bill Burck, and supported by a spox, Sarah Isgur, who played a key role in several of the hit jobs that Hur carried out with Rosenstein.
He just resigned from DOJ yesterday, which — along with his partisan hit squad — has raised concerns about what he’ll say. It’s unclear what effect that will have. When John Durham did the same thing, he actually reined in some of the false claims he had made in his report. That said, Hur has the ability to weaponize the fact that Joe Biden provided so much voluntary cooperation, meaning that many of the details in Hur’s report — like the content of classified documents discovered or of Biden’s diaries that Hur renamed notebooks to be able to snoop through them — were not obtained with a subpoena and would not be covered by grand jury secrecy. Testifying without a DOJ minder can work both ways, however; Democrats could — and should — question Hur about topics, such as:
- Whether his supervision eliminated the kind of ethical check other prosecutors have
- How he used attorney-client communications as a weapon against Biden when Robert Mueller, under Hur’s supervision, did the opposite
- What role he played in depriving Andrew McCabe of due process and whether that abuse came up in the hiring process to be Special Counsel
Here’s my coverage of Hur’s report:
How Merrick Garland Mistook a Trump Hitman for a Career Prosecutor
Robert Hur Complained about Biden Notes that Trump Almost Certainly Already Declassified
In Advance of Robert Hur Hit Job, DOJ Updated Public Identification Policy
How Robert Hur Ghosted Joe Biden’s Ghost Writer
Robert Hur Snooped Through Joe Biden’s Diaries after White House Warned It Would Be Unprecedented
Navel-Gazing: The Ethics Problem Caused by Merrick Garland’s Brad Weinsheimer Solution
Also, since transcripts show that Hur wildly misrepresented the moments where Biden couldn’t remember years, here’s my post on how Hunter Biden, like his dad, signposts his life around the grief tied to Beau’s illness and death.
Like His Father, Hunter Biden Got Forgetful about Details Pertaining to Beau’s Illness
In advance of Hur’s testimony, several people are taking a broader view, considering some problems with the current Special Counsel regime.
Chuck Rosenberg wrote a thoughtful piece about how the reporting requirement creates a problem.
Jack Goldsmith wrote a silly piece that tries to both-sides the matter.
Neither grapples with the underlying question: How do you hold a President accountable to rule of law?
Meanwhile, the transcripts of Biden’s interview with Robert Hur have been released (one, two). They don’t show what Hur claimed. Indeed, they show that former IA US Attorney Marc Krickbaum tried to sandbag Biden into admitting he knew he had documents with classification marks and Biden called him on it.
Sarah Isgur is saying that she wasn’t involved in preparing Robert Hur for his testimony.
The Independent did issue a correction to that effect.
I won’t post it again but here’s a link to where I did:
https://www.emptywheel.net/2024/03/11/tucking-in-alexander-smirnov-abbe-lowell-accuses-david-weiss-of-doing-russias-bidding/#comment-1044190
I’m wondering why he’d need to reach out to a former spokesperson for testimony help.
To understand how he should spin it…
I don’t believe that “correction” in the least.
Sure thing, sweetie, we believe you.
Useful to remember that Trump and his party regard lying in a Kissingeresque way. It’s an obligation, a duty, in service to a higher good. Lying to the press and the people is a necessary means to manage exposure and expectations. Lying is only a problem when it’s under oath.
Billy Burck, Fox News director.
Isgur still getting that $2M wage from CNN?
She was Sessions’ leaker/schemer in chief, but all in a Good Cause, amirite?
How the Special Counsel’s Portrayal of Biden’s Memory Compares With the Transcript The special counsel, Robert K. Hur, accused the president last month of “significant” memory problems. The interview transcript offers context to his report.
https://www.nytimes.com/2024/03/12/us/politics/hur-biden-memory-transcript.html March 12, 2024 Updated 8:39 a.m. ET
“Meanwhile, the transcripts of Biden’s interview with Robert Hur have been released. They don’t show what Hur claimed.”
For one, Biden accurately recalled the date Beau died when asked. “What month did Beau die? Oh, God – May 30.” That’s straight from the transcript. A White House lawyer then said, “2015.” Biden responded: “Was it 2015 he had died?” Someone said, “It was May of 2015.” Biden: “It was 2015.”
The process of grieving a loved one doesn’t necessarily engrave the date in a person’s mind in order to satisfy a sandbagging prosecutor’s pop quiz. To reconstruct the date is to reconstruct the event and the pain in your mind. Hur acted abominably here. If he has any humanity about him, he will issue an apology to Biden in his opening statement.
I doubt long term memory study is an exacting science.
My mother committed suicide while I was away at school nearly 50 years ago, Granted much longer time period than Beau’s passing to 81 year old POTUS. I am 74.
But I have a memory “photo” of exactly where I was, being called to the dorm phone, what I was told and who told me. I did not find out how until I got home. Do remember the Eastern AL flight and who picked me up at MIA. The Month, Day, and Year – nope.
I remember hearing when my grandmother died. And when my father had his last stroke, and when we had the machines pulled, three days later.
Yeah.
I still have to look up the date for my father’s death. The cat for whom he was Person, I know she vanished for weeks after the stroke, the night before Father’s Day. But I’d still have to look up *that* date.
I’m not even 50 and the exact date of my mother’s suicide is gone. Best I can do is late November or early December of 1998. I vividly remember reading her note with her family, and the incredibly uncomfortable dress provided by my aunt for our 6-month-old child to wear at the funeral service.
I have some weird stuff where I remember her being involved in the last major attempt at resolving the I/P conflict with a 2-state solution, but that event appears to be in the early 2000’s, after her death. Likely it was the next-to-last major attempt, but who knows at this point?
And for anyone struggling out there, you can call for help at 988 or local crisis hotlines.
I don’t recall the exact date my sister died. She was 36, so 1986. I remember vividly the effect of the phone call and my feeling that my legs were not working properly as I sank to the kitchen floor and literally dissolved, emotionally. I don’t remember what I said. I don’t remember the day (it was around supper-time). I don’t remember what the kids were doing or how they reacted to their Dad in tears. I remember being held and comforted. The impact is recalled; the nit-picky details, not so much.
So the whole “failing memory” bullshit from Hur is not only stupid, it’s callous and obviously nonsensical, unless you have already determined that you want to believe it.
Just tagging in, I can remember the date of my father’s death, and that of my great-uncle, in no small part because I had so much paperwork to do. My grandmother passed in January of 2011, but I couldn’t tell you the date without looking it up. What I really remember is waiting with her body at the assisted living center for the funeral home to come.
What are the odds that Hur gets through this without screwing up facts or saying “I don’t recall?”
Probably zero, and that’s not a sign of being mentally incompetent, just being human.
And odds are Democrats will point out Hur’s own lapses and the contrast with his harsh judgment of Biden. But the kicker will be that where Hur’s biased report was presented as straight news, anything the Democrats show will be presented by the press as partisan accusations unless Hur massively screws up.
One big reason is that reporters probably have their stories largely written by this point, with framing and a narrow set of facts provided by their conservative sources already plugged in. It’s how reporters lacking skill and knowledge will file as quickly as possible when they can’t understand hearings as they actually unfold.
I have a comment in the pokey about how NYT [Savage] decided to write about the transcript. uggg!
[FYI – it’s out of the pokey, appears upthread. :-) /~Rayne]
Thanks so much, Rayne!…
[I just want to be sure you know that “uggg” was for the NYT. :-) ]
It’s all right, I know the auto-mod feature snagging your posts with links is frustrating. We should do something about that real soon. :-)
You put your right comment in
You put your right comment out
You put your right comment in
And you shake it all about
Bwahahahahaha!!!
… and that’s what it’s all about! :-)
From Rosenberg’s piece defending Hur, “(whom I like and admire)”:
Garland seems to hold the view that fairness requires he hand out a loaded pistol to special counsels then close his eyes and put his fingers in his ears.
I’d be interested if Hur himself can remember items without checking notes. FWIW and since IANAL, I really don’t see how the resignation and lawyering up will help Hur here. After all, he did write the report under his authority as Special Counsel so as a private citizen now he will have no ability now to hide behind government status or ‘protecting a continuing investigation’.
I’m also interested why Jordan would hold this in public, and I will be listening with interest. Both Comer and Jordan is doing their damn best to avoid bringing up Defendant-1’s far worse actions while screaming about Joe Biden. I can’t see this going well as Hur is grilled, five minutes at a time.
After watching several minutes of the hearing I witnessed Democrats doing what I found to be an excellent job of contrasting the far worse of Donnie Dolt with Biden’s handling of the investigation into him. Stone silence from the Repubs after each Dolt explication one on video even. It was a quite powerful rebuttal of the R’s foaming to claim Biden’s too old and incompetent.
One correction: Hur is very much a Wray protege, not Rosenstein. Chris and Rob go back to DOJ when Chris was AAG and Rob was coming off his clerkships, then another decade at K&S (where I worked for them both). Rod was late to the K&S party and is connected by the former WDC managing partner, not Wray.
I don’t agree with either Chris or Rob about almost anything outside of the FCA or FCPA or AML, and I was frankly shocked by the Hur report, especially because I’ve drafted hundreds of pages for white papers and similar overseen by Rob.
Despite my disappointment and dismay, I will say (1) Rob was an absolute beast in private practice, billing good time for impeccable work product at a truly extraordinary pace, and (2) he was an exceptionally humane and patient partner to mid-level like me and more junior lawyers when many of the other Special Matters partners weren’t.
[Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too common it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]
None of which is relevant to Bob Hur’s politics or this report.
…unless it’s maybe to say that he went way outside of his normal professional MO to create an abject hit-job of a declination report.
I just noted a WaPo breaking lede that says he claims he “didn’t disparage the President unfairly.” Heh. Only equitable disparagement can be expected from ol’ Rob!
What’s fair and square is in the eye of the beholder. Republicans are not noted for keeping that sort of thing under a tight rein.
Sure enough, but Hur needs to carry a pocket dictionary if he wants to keep his underhandedness out of the headlines, because disparaging someone “fairly” is literally an impossible task. Here are the strongest synonyms from synonym.com:
belittle, decry, defame, degrade, denigrate, deride, discredit, dismiss, malign, ridicule, scorn, slander, underrate, and vilify.
That one line, “Nor did I disparage the president unfairly,” is destined to be a classic self-own, I would think.
Or, Hur should have corrected the record on Biden’s memory (‘photographic’ about his house as shown by Hur’s transcript) when the opportunities were presented by the Ds. Since Hur did nothing, he cemented his reputation as a hitman.
I’d like to see a yes/no question about the following policy:
Is there such a thing as absolute Presidential immunity?
Never mind that, why didn’t he charge the biographer? Or at the least hand it over to another prosecutor?
to self-own a pocket THESAURUS might also be useful?
In one of her articles re: Hur – the first listed here – EW used the expression “checking boxes” but I don’t think she ever explicitly tied it to checking boxes on a list to benefit Trump.
From my perspective (psychological), Trump’s pathology means that Biden”s presidency must go through all of the things that Trump’s did (special counsel investigation, impeachment, government shutdown, calls to invoke the 25th Amendmemt and on & on) and Trump must (try) to show himself to have everything that he envies or is threatened by in Biden (being thin, love of his wife, support of pop stars and athletes). The mystery to me is the level of coordination by his supporters in the courts, DOJ, Congress and the media. (It seems pretty well-coordinated, tho’).
But anyway, Hur checks three of Trump’s boxes – he’s de facto.special counsel Robert Mueller, alleging mishandling of classified documents, and opiner on Biden’s mental capacity, specifically dementia, to boot.
I’m hoping Biden / Democrats / EW do understand the level of coordination better to know whether to, for example, bring up that Trump did not sit for Mueller (or to even mention Mueller at all), that there are charges against Trump.for his document handling and there’s a reason Trump isn’t trying to clear his name by having his day in court, or that the type of brain deterioration that people (including me) think that Trump has doesn’t start with memory loss (and is obscured by his mental pathologies and low intellect.)
“[W]ell-coordinated” implies a level of connectedness that is unlikely. Simply acting with a well-understood common purpose suffices to explain what we see.
OT, but relevant to the classified documents discussion:
CNN interviewed Trump Employee #5 from Mar-a-Lago, it was the valet/chauffeur Brian Butler. Gives some new insights into the culture of loyalty and peer pressure to conform and get lawyers provided/funded by Trump.
https://www.cnn.com/2024/03/11/politics/trump-employee-5-classified-documents-mar-a-lago/index.html
He has enough sense to not have a lawyer provided by the former guy.
Congressman Tiffany is a hypocritical ass. He’s a Republican, so that may be redundant. But he misses that Joe Biden is not an “offender,” because there was no crime. Congresscritter Fitzgerald forgets that Bob Hur is not qualified to diagnose senility, or anything else. Bob Hur is not the only performance artist in today’s hearing.
Bob Hur’s family’s immigration history is irrelevant to his investigation of Joe Biden. That’s a political distraction, diverting attention from the quality of that investigation. But he’s a tough cookie. He refuses to answer any question other than to point to a section of his report. Hur’s statement that he’s not partisan, though, is laughable.
These congress clowns are hilarious. Jordan couldn’t remember if they had one or two scheduled votes to make, and that’s part of his job.
Scheduling seems more of a staffer’s job… which then makes me wonder how awful Jordan and Comer’s staffers must be. Who on earth would want to work for such nimrods?
One of them brought back the zombie Bleaching Servers.
[Not dead yet]
MAGA!
Not one relevant question from the Democrats today, except maybe from Zoe Lofgren who touched the diaries and Rashida Tlaib who had a series of good questions. I am done with Eric Swalwell and Ted Lieu. They are terminally online clowns. They are here for the clicks and likes, not asking the right questions. Good gawd.
These hearings are not zipped up court proceedings. They are essentially political in nature. Modern politics requires both types of reps – those that can ask the penetrating questions and those that can drive online engagement to get messages out to the masses in a way that bypasses the traditional info gatekeepers at our least favorite publishing institutions. Of course, how good reps are at those roles and the particular things they choose to emphasize will vary.
All congressional hearings are scripted, theatrical performances. Staff do the data gathering and analysis ahead of time. Congresscritters use them to make their selling points. But these are more than most, especially as Republicans have so few facts to support their dramatic posturing.
Congresswoman Dean (PA) asked Mr. Hur to correct the record about President Biden’s memory of his son’s death. Mr. Hur said in his report, the President could not come up with a date or month.
Then she asked for a correction to the record addressing Mr. Hur: “And my second document, to clarify to you, sir, Mr. Hur, from the transcript page 82. The words are President Biden’s. ‘What month did Beau die? Oh God, May 30th’. A searing memory.”
Hurl
Just like the Don’s stories of sir’ll
be overridden by those of a call girl,
It’s not hard to see that those of Hur’ll
be jettisoned by truth in quite a swirl.
In their endless game of yelling squirrel,
Republicans hope their Rob agitator’ll
give the spaghetti one good hurl,
But nothing sticks: Biden’s our pearl.
Superb! *chef’s kiss*
Thanks, Rayne! Biden even looks like a pearl.
Speaking of chef, I recently discovered that I can cook fresh or frozen fish in the microwave. So much easier to make and clean up than frying. No oil either. Lately I just give it some generous squirts of lime or lemon juice, a big spoonful of salsa, and some mushrooms. Then cover and zap. Then I take it out and crumble some cornbread on it. And maybe some relish. Not bad. In the summer I might put it on lettuce.
Microwaving fish in an office setting is a good way, maybe even the best way, to quickly and thoroughly alienate one’s co-workers.
LOL. Yeah, it takes the Goldilocks technique of timing: not too little & not too much (because those water molecules are fond of causing explosions.) I use a very old covered glass casserole dish. And I find that it is actually a lot less stinky than frying. Plus, no oil.
I had a co-worker who was fond of paper bagging it and bringing what he called fart sandwiches, aka egg salad sandwiches. But now, I sometimes poach eggs in the microwave. The trick is to pierce both the yolks and whites several times with a toothpick first.
Matter of timing? Hell to da Naw!
An air fryer is my new go-to for fish, quick and easy.
In her, perhaps, telescoping she plans to outright dismiss Smith’s indictments against all 3 defendant’s in Trump’s espionage case, Judge Aileen Cannon addresses only the 1st part of Marcy’s Headline Question above: Maybe the problem IS INDEED THE SPECIAL COUNSEL?
Cannon set arguments for this week to discuss, among other things, the brief of former Reagan U.S. Attorney General Edwin Meese III, who argues “on behalf of neither party,” puzzingly, that Jack Smith is serving in an un-lawfully created office (not created nor authorized by Congress) and therefore all charges must be dismissed.
https://www.documentcloud.org/documents/24234219-122023-scotus-amicus-brief-of-former-attorney-general-edwin-meese-iii-and-law-professors-steven-g-calabresi-and-gary-s-lawson-as-amici-curiae-supporting-neither-party
Cannon’s paperless order to accept amicus briefs from Meese, and another from America First Legal Foundation — the litigous organization founded by immigration-abolistionist-and-former-Trump White House senior adviser Stephen Miller — says Cannon has read the filings and finds they “bring to the Court’s attention relevant matter that may be of considerable help to the Court in resolving the cited pretrial motions.”
Conservative newssite Washington Examiner notes that by “allowing the briefs to be admitted onto the court docket” a completely discretionary act she could reject, “both filings may influence the legal arguments that Cannon could embrace” in weighing pretrial motions — the most pressing, of course, are Trump+2’s Motions to Dismiss the indictment.
https://www.washingtonexaminer.com/news/2907688/classified-documents-judge-accepts-pro-trump-briefs-from-legal-groups/
Cannon scheduled argument for this Thurs. at 10a.m. EST in her Ft. Pierce, Fla., courtroom.
I know oral argument scheduling for Motions to Dismiss are also discretionary, but not unusual, but Cannon’s acceptance of these particular briefs and paperless order statement are what led me to infer, perhaps incorrectly, that this was her way of informing us in advance that she intends to dismiss the indictment. Inference-making is not my strong suit, so please feel free to argue I am wrong (which I know the Govt. will argue there is no merit to do on Thursday).
Smith’s reply: https://www.justsecurity.org/wp-content/uploads/2024/03/Just-Security-Mar-a-Lago-Trump-Clearinghouse-%E2%80%94Govt-opposition-to-Trump-MTD-the-superseding-indictment-based-on-the-unlawful-appointment-funding-of-Special-Counsel-Jack-Smith-March-7-2024.pdf
This is not breaking news. And the Wash. Examiner is not generally a reliable source.
it’s weak and wobbly but it had, for me, a link to a doc i’d missed. from Jack Smith. and so i grabbed it, of course … occasionally venturing into the dustbins is worth it, armed with skepticism and stuff like that there.
It is one of nine Special Counsel replies to Trump MTDs. The links to all nine are in this Emptywheel post six days ago (thus earlofhuntingdon’s “not breaking news“):
https://www.emptywheel.net/2024/03/07/jack-smith-is-not-amused/
I seldom copy a whole post, but (minus the nine embedded links) here it is in its entirety:
Substantial discussion follows in the post’s comments section.
“Meese is a PIG!”
https://newrepublic.com/article/115032/meese-pig-ed-meese-now-wants-kill-obamacare
Sorry. I’m not following how any of the article indicates an issue with the Presidency. Could you connect the dots in the article back to the headline? That was what got me interested in reading it.
The connection is explicit in one sentence but implicit in the writings she cited. It goes all the way back to the “perils of presidentialism”. By definition the American system has vested one person with tremendous power to enact and enforce. How do you enforce against the enforcer? If the solution is to create an equally unenforceable enforcer, you haven’t gained anything but have in fact lost it because at least the president was elected. But what we have is almost as silly. “Don’t worry, they don’t answer to the president, but they are supervised by someone who does”.
Of note, the precise problem identified here does not exist in a pure parliamentary system. There the PM may lead both legislative and executive functions, but that same group can throw him/her/them right out. And in a coalition environment, it doesn’t even need a crime. Just a really bad disagreement. Massive loss in administration stability, but no longer do they wonder who watches the watchman. Is it worth it? I don’t know. But maybe Dr. Wheeler is right, and the problem is the presidency
Another way to put it would be to ask what if the problem is Congress? Because we the people haven’t had one that has effectively overseen the Executive since the Church Committee.
We have 3 branches of govt who are supposed to work towards common goals but keep each other in check.
I think it was this;
There’s a universe of potential issues in that brief statement, however. Is it the JD being an arm of the executive – makes up rules about not indicting a sitting President, and its members are subject to firing by said executive? Is it the fact that there are a myriad of appeals/pleadings available in the unique case of a President/ex-president being prosecuted, such that bringing one to justice could take more years than they live past their term? Or issues with fairness and Special/Independent counsels?
I have not seen in the hearing or on TV where a single Democratic representative, pundit, reporter or anybody in the media have prepared to analyze the evidence Hur presented in his report. They go round and round on the definition of “exonerated” or “Did Biden willfully retain?”. There were weeks to prepare.
Marcy is the only one who has read Hur’s report critically for evidentiary logic and to show the structure of Hur’s own willfulness. There is much clearer set of facts in the text where Hur is willfully distorting the evidence to give the public the idea Biden “willfully retained classified information” than ever show Biden doing so.
Hur knew what he was doing, as Schiff says, but did Hur get questioned on any of the issues we’ve seen with Marcy’s reporting? “diaries vs. notebooks”, “did Biden want to write an Afghanistan book?”, “was that the box from VA?”, “eight words. what is their context?” Did Hur get questioned on any of that? I think that what is in their heads is a kind of sludge that causes them pain to move around, but then I think maybe I’m a political dope and they don’t want to shine light on any form of evidence they are trying to hang on Biden. Evidence of crime always has a talismanic quality attaching a person through the circumstances where you are always guilty at least in the unconscious, the power of an image an all that. I don’t know. Crazy to watch the news.
The Late Show with Stephen Colbert
Hur Compliments Biden’s Memory | Mar-a-Lago Documents Bombshell | Is Prince William Cheating?
https://www.youtube.com/watch?v=c1ZmbRXTKAs&t=660s
It’s disturbing. Gaslighting the entire nation. The entire country is in an abusive relationship with a narcissistic psychopath.
He’s in control. Congress the good guys are in reaction mode-not proaction. Proaction says we are in control. Reaction says he’s in control of us.
The abuser always manages to make their victim look weak and crazy. And our sickness blames the victim, we see weakness against him. And their wrong doing only makes them appear more the bully. More powerful.
This is how it works. And this is what is happening to us.
It’s the brainwashing, and the way it covers sins is intoxicating. SCOTUS for example.
That’s why it’s so hard to protect people from domestic violence.
It’s only the broad strokes of power that will be heard. Trump experiencing consequences by losing the vote AGAIN and going to jail. Or dying. A coordinated community response.
His followers only care that there is an opposing argument to be made against the allegations. That’s it. Cover for their sins. The arguments don’t need to make sense.
Listen to them. They say, “if he was really guilty he’d be in jail”.
They admire that he can’t be held accountable. They literally condone rape. Murder. Stealing. On tik toks and live interviews there is a clear pattern.
They spout their beliefs that Trump as an alpha has the right to rape, and murder. I’ve heard them. Not kidding. They are rationalizing their shame through him. His very existence and ability to deflect absolves their sins.
Talk about “mutually assured destruction”. What a setup. The cult leader allows his followers to project their fears and grievances on him in exchange for them conferring elevated status and personal power on him. It’s a closed loop – common sense, critical thinking, introspection, insight, personal growth and responsibility-taking definitely not required, needed or encouraged. The cult leader gets endless narcissistic supply, the followers gain a peer group and a tribe to belong to and an identity they previously never had. It’s entertaining and it feels good to them. It’s also dangerous and volatile for everyone else. I hope we can collectively find our way to an effective society-wide response to this troubling dynamic…