Scott Schools Got the [Trump Subpoena] Memo — Then Left DOJ

As noted, while the book by Aaron Zebley et al does not reveal a single new detail from the Russian investigation, it provided a bunch of new details on discussions between Mueller’s team, Trump’s lawyers, and DOJ. Two chapters focus almost entirely on discussions about an interview and, after Trump’s new legal team in May 2018, reversed earlier assurances Trump would sit for an interview, discussions about a subpoena.

The book describes how, after getting nowhere with requests for a voluntary interview, Zebley approached Scott Schools (then the senior non-political appointment at DOJ) about subpoenaing Trump. Schools asked for a memo making the case.

Three days after Mueller delivered it, Schools left DOJ.

Bob’s May 16 letter about the importance of an interview did not get an immediate response from Trump’s lawyers. Instead, after a series of emails, calls, and meetings during the ensuing weeks, the Raskins told us that they would agree to an interview on preelection Russia-related topics only. There could be no questions on obstruction. Bob rejected this proposal.

By the end of June, it was becoming clear that a subpoena might be the only way to secure the president’s testimony on obstruction. Aaron called Schools at the DOJ and relayed the president’s latest position. Aaron explained that “evidence from the president is likely to be of significant value to our evaluation of the issues.”

Schools did not immediately respond, so Aaron continued: “If we can’t negotiate a resolution, we’d like to point to a subpoena as our next step.” Aaron told Schools we wanted the department to agree to enforce a subpoena in the courts, including the Supreme Court if it came to that. “We have written materials that go through the evidence and our analysis” as to why a subpoena was necessary and appropriate, Aaron said.

Schools responded in his muted southern drawl, “Think we’ll want to see those.”

Four days later, on July 3, we delivered to Schools and O’Callaghan a memo, “Preliminary Assessment of Obstruction Evidence,” with a set of supporting documents. The takeaway was on page 1: the president had refused an interview; we had gathered significant evidence on obstruction and had determined that the law enabled us to compel the president’s testimony; and, finally, “we have concluded that the issuance of a subpoena is justified.” There was no immediate response from the department. (On July 6, 2018, after a decades-long career at the Department of Justice, Schools left to take a job in the private sector.)

There’s no evidence, here, that the memo was the reason Schools left, apparently with no notice to Mueller’s team.

But eight months later, in advance of the first meeting between Mueller and Barr, Ed O’Callaghan probed what would appear in the report on obstruction.

He specifically referred to the memo justifying the subpoena as “aggressive.”

We knew that one of the main issues for our March 5 meeting with Barr would be obstruction of justice. In the days leading up to the meeting, O’Callaghan had asked Aaron how we planned to handle our obstruction findings. “Will your report be as aggressive as your legal analysis from last summer?” he asked, referring to the memo we submitted in July 2018 about a subpoena for the president’s testimony. “That is a topic we want to discuss.”

As it happens, almost immediately after Mueller gave DOJ the memo in June 2018, according to files released under FOIA, they pulled in Office of Legal Counsel and (at least for a few meetings), National Security Division. It’s not entirely clear Mueller’s team realized Rod Rosenstein’s people were doing that.

34 replies
  1. Peterr says:

    But eight months later, in advance of the first meeting between Mueller and Barr, Ed O’Callaghan probed what would appear in the report on obstruction.

    He specifically referred to the memo justifying the subpoena as “aggressive.”

    IANAL, but I would expect a legal memo justifying a request for *any* subpoena to be “aggressive.”

    (1) You are proposing a demand, not a request, for documents, evidence, or testimony from someone. By definition, a subpoena is kind of an aggressive thing to do.

    (2) If you don’t have a damn good reason for seeking the subpoena, you shouldn’t get one, so I would expect the lawyers to make the strongest possible case describing why they need the subpoena.

    • earthworm says:

      case in Justice Engoron’s court: is there any public estimate of the amount that Trump’s fraud has cost individual new yorkers, per capita? in revenue shortfall or other ways that individual new yorkers have had to make up the difference?

      • earlofhuntingdon says:

        Not to my knowledge. Those costs were not the basis for the NYAG’s lawsuit; any proof regarding them is irrelevant to her claims and the judgment.

        • Earthworm says:

          Before Election Day It would nice if some number cruncher could come up with what NY residents have had to make up, per capita, as a result of Trumps fraudulent operations

        • earlofhuntingdon says:

          Needless distraction, especially as it’s an issue in the lawsuit or one that’s up on appeal. NY’s Appellate Division might decide this case before the election. The Court of Appeals might decide against hearing Trump’s appeal from that denial, not long afterwards, but after the election.

    • earlofhuntingdon says:

      NY’s Appellate Division, the part that sits in Manhattan, expressed dismay over Judge Engoron’s judgment against Donald Trump – and his decision to award the state what’s now nearly half a billion dollars – when it made the unusual concession to require that Trump put up an appeals bond worth only a third of the judgment.

      According to Lisa Rubin, it’s concerns have not been allayed. It is supposedly concerned that Letitia James and Judge Engoron overstretched applicable law. A wag would suggest that its real concern is that the bar for doing business in Manhattan – dominated by the super wealthy – should be set so low that even Donald Trump’s habitually fraudulent conduct exceeds it.

      https://www.rawstory.com/trump-fraud-appeal-2669279732/

  2. HonestyPolicyCraig says:

    I must be honest, lol, I read this report about 4 times. Once with a bit of THC in me. I do have relatives who are lawyers, I have always loved this stuff. I get the Schools leaving thing, what I am left hanging here is this part…

    “It’s not entirely clear Mueller’s team realized Rod Rosenstein’s people were doing that.”

    Are we implying that Rosenstein was part of obstruction? And please excuse my attempt to play a lawyer on TV.

    • Rayne says:

      I’m going to suggest strongly that you don’t expect the community to hand feed you the answer, that instead you do your homework by reading across the 228 posts to date in which Rod Rosenstein is mentioned and/or the 125 posts in which he is tagged.

      Here, I’ll even make it easy to find them: https://www.emptywheel.net/?s=rod+rosenstein and https://www.emptywheel.net/wp-admin/edit.php?tag=rod-rosenstein

      At 24 comments to date you’re still a n00bie here and perhaps you’ve missed this, but this is not an intro level site. The community is better read than average blog commenter.

      • HonestyPolicyCraig says:

        The Mueller Report, Barr, Rosenstein and the whole ball of yarn. I am just so so so sorry for being naive here.

        You must be a very important powerful super intelligent person that I should never talk to.

        [Moderator’s note: See the signature on this moderator’s note; it wouldn’t hurt you to check the About page. When I suggest something, pay heed. /~Rayne]

        • earlofhuntingdon says:

          Marcy has spent literally years researching and writing about those topics, along with many others. Your time here might be more fruitful were you to spend a few hours reading up on it. This site is not pottery and basket weaving 101 for athletic scholars.

          And, yes, as EW’s principal moderator, Rayne is an important person you might find it useful to pay attention to.

  3. Frank Probst says:

    A big carrot is often more effective than a big stick. Given the positions he’d held at the DOJ, he was probably worth quite a bit of money in the private sector to begin with. If he was offered a “signing bonus” if he retired immediately, it’s hard for me to be to be too critical of him. It’s not a profile in courage, but I can’t say I wouldn’t have done the same thing. This is someone whose career was at a point where he could have had his retirement paperwork all filled out and sitting in his top drawer, just waiting for a date and his signature, and ready to go as soon as he saw the first incoming shitstorm on the horizon.

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