In the day since I noted Rudy Giuliani taking credit for the Peter Carr statement Friday night, multiple outlets have confirmed that Trump’s lawyers (the reports have not specified which lawyers) contacted Mueller’s office Friday morning about Buzzfeed’s report that Trump had directed Michael Cohen to lie to Congress. NBC describes that Trump’s team “‘raised concerns’ in a letter to Mueller’s office.” Meanwhile, CNN has a report that seems to back off WaPo’s report that “In the advanced stages of [Mueller’s discussion about the story Friday], the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared.” Instead, CNN describes Rosenstein’s office getting just a “heads up,” not calling to check in if Mueller was releasing a statement.
The statement was drafted internally within the special counsel’s office, which made the decision to release it, according to two sources with direct knowledge of the situation. The deputy attorney general’s office, which oversees the special counsel, was only given a heads up it was coming Friday evening.
Whatever happened, Friday was the first time Mueller’s office has issued a statement on a specific story and the first time Trump has offered such positive comments about Mueller’s team.
It was a total phony story, and I appreciate the special counsel coming out with a statement last night. I think it was very appropriate that they did so. I very much appreciate that.”
So even if Trump has bitched before (WSJ says they have not; NYT Maggie says they have) — this has been the only time it worked.
The thing is — Trump shouldn’t know one way or another whether Buzzfeed’s was a phony story. They should have zero idea how Michael Cohen testified (though I note, again, that Mueller has a real incentive to be very modest about how they claim Cohen has testified). Trump’s lawyers may know what Trump Organization employees testified through a joint defense agreement. But Trump’s own lawyer said yesterday that it’s possible Trump spoke to Cohen about his testimony to Congress (he’s now trying to walk that back). If Rudy doesn’t know whether Trump told Cohen to “make it happen” or not, as Buzzfeed alleges, then he can’t know whether the story is phony.
As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.
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Marcy wrote a great post this morning titled “Peter Carr Speaks“. I agree with almost all of it, if not all of it, but feel compelled to add a couple of things.
As to what the motivation of Carr and Mueller was, it is, at this date, unclear, despite the high handed and dismissive sudden reactive reportage of Devlin Barrett, Zapotsky and Demerjian at WaPo and Ken Dilanian of NBC/MSNBC. They have shown even less sources and credibility than Buzzfeed that they now conveniently and eagerly dismiss. Maybe the Mueller statement is a tad more nuanced and unknown than that.
As to what the target of the Mueller/Carr statement was, when Marcy says:
But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.
Yes, this looks almost certain from where I stand. Wasn’t the only aim of Carr’s arrow on behalf of Mueller, but was a rather large one.
Secondly, and since many media outlets and commenters are clacking about how the proof of Trump directly telling Cohen to lie is the end all and be all as to necessity for discussion, that is just wrong.
The record before the Buzzfeed article already established, through signed and accepted court filings, that Cohen indeed lied to Congress with the express intent of supporting the lies Trump was fostering.
That is not in dispute at this point. As to whether Trump personally ordered Cohen to do so, face to face, (and there is still a decent shot of that being true, but we do not know), that is not the end of the discussion legally.
First off, if those around Trump, (think lawyers and family, if not Trump himself), discussed and encouraged Cohen to lie to Congress, that is a huge problem for Trump. Let me remind people of one of the most basic definitional provisions in the criminal code, 18 USC §2:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
So, all of the nonsense by Rudy Guliliani is simply nonsense. That is without even considering conspiracy law and implications thereof.
So, sure, the SCO hit on Buzzfeed hurt the narrative in the press. Did it really hurt the narrative legally? No, not so much.
Lastly, I would like to address the upcoming House Oversight Committee hearing Cohen is scheduled for on February 7. He was voluntarily appearing after restrictions Cummings and the Committee agreed to, purportedly, with Mueller. The ground has changed. Frankly, I think the hearing this quickly was ill considered and premature grandstanding to start with, but now strikes me as nuts given the changed circumstances after the Buzzfeed piece, SCO brushback and Trump’s direct threats to Cohen’s extended family.
Given the aggressive nature of Trump’s followers, there is a credible threat to Cohen and his family. But, more than that, there is a threat to his credibility and usability as a witness in the future. The ranking member on the House Oversight Committee is the odious Jim Jordan. His other GOP minority members will undoubtedly fall in line to attack Cohen, especially after the vague pushback comment of Carr/Mueller last night. It is set up now as a clown show.
The hearing should either be affirmatively postponed by Cummings or withdrawn from by Cohen personally. There is nowhere near enough good that can come from Cohen’s appearance, and a lot to lose for both him and Mueller given the shitshow that the GOP members will bring to the affair. Cancel that February 7 hearing and testimony. Just do not do it.
[For the record, I originally lodged this as a comment on Marcy’s post, but for unrelated reasons, thought the points about criminal liability and conspiracy needed to be included in a separate post, and did not wish to step on hers at the time.]
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In this post, I noted that, while important, the Buzzfeed story on Trump’s role in Michael Cohen’s lies to Congress did not advance our understanding of how the Trump Tower deal fits into the larger Trump conspiracy with Russia.
It doesn’t include a number of details that would be more important for understanding how the Trump Tower deal relates to other parts of Trump’s conspiracy with Russians: who (if not Trump himself or Don Jr) was the senior campaign official who knew of Cohen’s negotiations, precisely what Don Jr knew of the negotiations on June 3 when he took a meeting described to be “part of Russia and its government’s support for Mr. Trump,” and whether the timing of Cohen’s plans for a trip to St. Petersburg — which started on June 9 and ended on June 14 — related somehow to the June 9 Trump Tower meeting and the June 14 revelation that Russians had hacked the DNC. It’d also be useful to know whether Cohen had any 2016 dealings with Ike Kaveladze, who knew of Cohen from the 2013 business dealings between Trump and the Agalarovs, and who had a curious reaction to a video of him in the wake of the June 9 meeting story breaking. Those are the details that would advance the story of how the Trump Tower deal relates to Russia’s efforts to hack the election.
But there is a piece of the Cohen statement of the offense the significance of which hasn’t gotten sufficient attention. That’s the detail that Dmitry Peskov’s personal assistant took detailed notes from a 20-minute January 20, 2016 phone call with Cohen, which led to Putin’s office contacting Felix Sater the next day.
On or about January 16, 2016, COHEN emailed [Peskov]’s office again, said he was trying to reach another high-level Russian official, and asked for someone who spoke English to contact him.
On or about January 20, 2016 , COHEN received an email from the personal assistant to [Peskov] (“Assistant 1 “), stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.
Shortly after receiving the email, COHEN called Assistant 1 and spoke to her for approximately 20 minutes. On that call, COHEN described his position at the Company and outlined the proposed Moscow Project, including the Russian development company with which the Company had partnered. COHEN requested assistance in moving the project forward, both in securing land to build the proposed tower and financing the construction. Assistant 1 asked detailed questions and took notes, stating that she would follow up with others in Russia.
The day after COHEN’s call with Assistant 1, [Sater] contacted him, asking for a call. Individual 2 wrote to COHEN, “It’s about [the President of Russia] they called today.”
Cohen had lied about this, claiming that he had emailed Peskov’s public comment line just once, but gotten no response.
This language is important not just because it shows that Cohen lied. It’s important because of what Cohen would have said to Peskov’s assistant. And it’s important because a written record of what Cohen said got handed on to Putin’s office, if not Putin himself.
BuzzFeed’s piece from May reveals that Cohen would have been in discussions with one of two banks in January 2016: VTB or GenBank.
Their surrogates in Moscow would be meeting with Putin and a “top deputy” just two days later, and they had financing: VTB Bank President and Chairman Andrey Kostin was on board to fund the project, Sater said in an email.
The bank was a dicey choice. VTB was under US sanctions at the time, with American citizens and companies forbidden to do business with it. Asked by congressional investigators if he knew the bank was blacklisted, Sater responded: “Of course. I wasn’t seeking funding, the local development partner would have. Trump Organization never gets financing from local partners.”
[snip]
New Year’s Eve 2015, he sent Cohen an image of a letter from GenBank — not VTB Bank, as they had earlier discussed — inviting the men to Moscow for a visit.
Just nine days earlier, the US Treasury Department had sanctioned GenBank for operating in Crimea after the disputed Russian takeover. GenBank became the first Russian financial institution to move into the Crimean peninsula.
Both were sanctioned. While Sater (who seems to have knowingly set this trap) dismissed the import of the sanctions, Cohen clearly knew — and left record that he knew in communications with Sater — that they were the intended funders.
A former GRU officer contact of Sater’s was key to obtaining funding from VTB.
This friend is a former member of the GRU, Russia’s military intelligence unit that the US intelligence community believes interfered during the 2016 election.
[snip]
[On December 19], Sater told Cohen that their invitations and visas were being arranged by VTB Bank, and that Kostin, the bank’s powerful president and chairman, would meet Cohen in Moscow. Key to getting VTB on board was the former GRU spy; Sater told congressional and special counsel investigators that the former spy said he had a source at VTB Bank who would support the deal.
Obtaining funding from GenBank would have relied on Putin and Peskov.
Sater told Cohen that GenBank operates “through Putin’s administration and nothing gets done there without approval from the top. The meetings in Moscow will be with ministers — in US, that’s cabinet-level and with Putin’s top administration people. This likely will include Dmitry Peskov, Putin’s press secretary. To discuss goals, meeting agenda and meeting time between Putin and Trump.”
The BuzzFeed article makes it clear that Sater’s GRU contact got back involved after Cohen’s conversation with Peskov’s assistant.
All of which is to say that when Cohen called Peskov’s assistant, he would have told her that he was speaking on behalf of Donald Trump, that Trump remained interested in a Trump Tower in Moscow (as he had been in 2013, the last time Putin had dangled a personal meeting with Trump), and that on Trump’s behalf Cohen was willing to discuss making a deal involving both a sanctioned bank (whichever one it was) and a former GRU officer.
So it’s not just that Trump was pursuing a real estate deal while running for President. He was pursuing a real estate deal involving a sanctioned bank — possibly one sanctioned for its involvement in Crimea — and involving someone with ties to the intelligence agency that was preparing to hack Hillary Clinton’s campaign manager.
Cohen told Peskov’s assistant Trump was willing to negotiate that deal while running for President. The assistant wrote all that down (how Mueller knows this is an interesting question on its own right). And then she or Peskov passed on at least the content of the notes to get Putin’s office to contact Sater.
And all that happened before Trump performed unexpectedly well in the Iowa caucuses on February 1.
Last year, I argued that — pee tape or no — the kompromat Putin has on Trump consists of a series of receipts of Trump formally communicating his willingness to enter into a conspiracy with Russia, receipts that would be devastating if Putin released them.
Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).
At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.
People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.
Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean.
What Cohen’s plea deal makes clear is that Putin pocketed the first of those receipts — a receipt showing Trump’s willingness to work with both sanctioned banks and the GRU — even before the first vote was cast. Even before GRU hacked its first Democratic target (though APT 29 had been spying on the Democrats since the previous summer).
Discussing a real estate deal is not, as Trump has repeated, illegal. If that’s all this were about, Trump and Cohen might not have lied about it.
But it’s not. Even before the GRU hacked John Podesta, even before Don Jr told his June 9 visitors that his dad would consider lifting sanctions if he got elected, Michael Cohen let a key Putin deputy know that Trump would be happy to discuss real estate deals that involved both partnering with the GRU and with sanctioned banks.
And Putin has been sitting on that receipt ever since.
Update: 22-paragraphs into a 1400-word story on the latest developments in the Trump Tower Moscow story yesterday, the NYT revealed the name of the officer, without explaining why the connection is important to the larger story of a GRU-led operation targeting the US election.
One of the people Mr. Sater contacted was Evgeny Shmykov, a former general in Russian military intelligence who once worked with anti-Taliban fighters in Afghanistan. Mr. Sater appears to have seen Mr. Shmykov as a conduit to get Russian government approval for the Trump project.
According to emails reviewed by The Times, Mr. Sater sent an urgent message to Mr. Cohen in late 2015 saying that Mr. Shmykov was on the phone and he needed passport information for Mr. Cohen and Mr. Trump so they could receive visas.
As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.
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It turns out that once and future Attorney General William Barr has been better able to wade past shitty reporting on the outcome of the Mueller investigation than he has shitty reporting on the public evidence about what Mueller has found.
In two of my posts on Barr’s memo about the Mueller investigation (one, two), I note that Barr’s project consists of writing up 19 pages on a subject that start with an admission he knows nothing about the subject.
Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.
Both in his prepared statement yesterday and in his testimony, he excused his memo by blaming his badly mistaken understanding of what Mueller was doing on media reports.
[M]y memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.
He’s not wrong! I have long bitched about shitty Mueller reporting that suggested Mueller was primarily investigating whether Trump obstructed justice. Such problems persist even in recent reports that the counterintelligence focus on Trump was any different from the obstruction inquiry.
The investigation the F.B.I. opened into Mr. Trump also had a criminal aspect, which has long been publicly known: whether his firing of Mr. Comey constituted obstruction of justice.
That has, in turn, led to claims that the counterintelligence concerns stemmed exclusively from the firing of Jim Comey and not a slew of other behaviors going back some time before that.
So Barr might be excused for totally misunderstanding what the public evidence from the Mueller investigation actually showed (though not his willingness to comment without first learning what the evidence actually was), because most mainstream media reports badly misreported the public record.
Curiously, Barr didn’t get snookered by the other topic that is consistently badly reported (and badly reportedly, most likely, for the same reason — because Trump’s team has seeded that shitty reporting): whether and how Mueller will issue a report. A great deal of yesterday’s testimony pertained to whether Barr will release “the Mueller report.” Barr promised, in his his prepared testimony and later, to release as much of the results of the investigation as he could.
I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.
But both Democratic and Republican Senators were concerned by that (which is itself a testament to wildly divergent understandings of what Mueller is looking at), with John Kennedy going so far as suggesting Barr should release all the grand jury materials and Dianne Feinstein conditioning her vote on whether Barr commits to make Mueller’s report public.
In fact, Barr did two things. First, he said he’d speak to Rod Rosenstein and Mueller to understand what their current plans for a report were. But he also repeatedly cited the regulations to argue that Mueller’s report is — by regulation — confidential.
For shits and giggles and because I knew what response I’d get, I asked Mueller’s spokesperson Peter Carr what form their report will take today. I wasn’t disappointed. His response was to attach their governing regulations and call attention to the language that describes the mandated Special Counsel Report.
Thanks for reaching out. All I can point you to is the regulations that govern our office, which are attached. Section 600.8 states the following:
(c) Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. [my emphasis]
That is, if you ask Mueller — or the closest thing we get, his spokesperson — he will answer precisely what Barr did: that his mandated report is simply a confidential prosecutions and declinations report.
That shouldn’t be surprising, either. Mueller continues to use pseudonyms for identities of people in his filings — like Donald Trump himself — that are readily identifiable, based on the principle that DOJ doesn’t refer to uncharged individuals. It’s a principle that explains part of why Mueller submitted yesterday’s Manafort filing in heavily redacted form.
[T]he redactions relate to ongoing law enforcement investigations or uncharged individuals, and public disclosure of certain information in the submission could unduly risk harming those efforts.
In other words, virtually all of the coverage of the “Mueller report” has promised it will be something other than we had reason to believe — short of an indictment request overridden by the Attorney General — that it would be.
By the same token, there’s abundant reason to believe that that’s not what the “Mueller report” will be.
Yesterday, the same day questions about a Mueller report were central to Barr’s confirmation hearing, the WSJ reported this entirely unsurprising detail about Michael Cohen’s testimony before the Oversight Committee on February 7.
Mr. Cohen, who is scheduled to speak in an open hearing on Capitol Hill for the first time Feb. 7, won’t be able to talk about topics that he has discussed with special counsel Robert Mueller, according to a person close to Mr. Cohen.
The indication that Cohen’s testimony will be sharply limited (presumably based on the intercession of Mueller’s congressional liaison, Stephen Kelly, about whom we’re likely to hear more in coming days) suggests several things: First, Mueller doesn’t expect to be done with Michael Cohen by February 7. That, in turn, suggests that all the claims — which I’ve heard too — that Mueller will soon issue a “report” likely misunderstand what form that report will take, because a one-time report covering the importance of Trump Tower deals to entice Trump’s family would present little reason to silence Cohen next month, particularly because he’d be free to talk about it anyway. But if something more public — such as an indictment, even if it’s just of Trump Organization — or if a non-public report that can be conveyed to the House Judiciary Committee is in the works, then you’d want to silence Cohen. Indeed, contrary to a lot of other bad reporting, Cohen remains on the hook in his cooperation with Mueller; he won’t get a reduction in sentence until they decide he has done enough to get a year lopped off his existing sentence.
That many reporters are being told by reliable sources that Mueller will soon unveil a “report” and that Mueller still officially maintains that their required report won’t be public suggests Mueller is moving towards yet another speaking indictment, which is how he has always reported. That’s consistent with the limits on Cohen’s report, it’s consistent with reports that Mueller is presenting evidence against Jerome Corsi to a grand jury, and it’s consistent with what we saw in yesterday’s Manafort filing (which presented evidence of Trump campaign crimes dating to 2016).
I have my concerns about Barr, especially his willingness to make policy decisions informed only by right wing propaganda (on which point he was worse on his testimony about immigration and criminal justice issues than on Mueller). Those concerns extend to what will happen if Barr gets to decide what parts of a Mueller report gets made public; it’s clear that Barr currently believes that Mueller will issue a report finding that Trump did nothing criminal. Those concerns are heightened by the fact that on virtually every other topic, Barr had not done enough homework to answer basic questions (the most remarkable instance of which was his confession that he hasn’t read the Supreme Court’s decision in Carpenter), but he was prepared to state, correctly, that Mueller’s report will be confidential, addressed solely to him.
I have other concerns. Once CSPAN fixes their transcript, I hope to show how badly hypocritical Barr is about both Matt Whitaker and Donald Trump’s sleazy influence peddling. His comments about recusal from the Mueller investigation were troubling. And he seems to believe — as he explained to Patrick Leahy near the end of the hearing — that in November 2017 there remained, after DOJ had investigated both and after Mueller had rolled out the George Papadopoulos plea deal showing him trying to hide that he was discussing emails and meetings with Putin in the days after he became a foreign policy advisor to Trump, more evidence to support an investigation of the Uranium One and Clinton Foundation allegations than into “collusion.”
But Barr also strongly suggested he would not step in the way of any Mueller indictments. And Senators did get him on the record agreeing that if Trump suborned perjury it would be criminal. And he respects Mueller, so if Mueller shows him evidence that Trump has been gravely compromised, then he should take that evidence seriously.
Barr appears to be an arrogant man who believes right wing propaganda is sufficient evidence to base policy decisions on.
But he also has a better idea of what the regulations say to expect from a Mueller report — as distinct from Mueller indictments — than the Senators questioning him did.
As I disclosed July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.
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William Barr has released his opening statement for his confirmation hearing tomorrow. While it surely is tailored to address the biggest concerns about his nomination, there’s a lot to like about it.
He suggests he’s not as big of a hawk on criminal justice as he used to be. He emphasizes the need to protect the right to vote. He seems to suggest a concern about rising hate crimes.
And — as most outlets have focused on — he affirms the importance of Robert Mueller finishing his work and being able to publish his findings.
First, I believe it is vitally important that the Special Counsel be allowed to complete his investigation. I have known Bob Mueller personally and professionally for 30 years. We worked closely together throughout my previous tenure at the Department of Justice under President Bush. We’ve been friends since. I have the utmost respect for Bob and his distinguished record of public service. When he was named special counsel, I said that his selection was “good news” and that, knowing him, I had confidence he would handle the matter properly. I still have that confidence today.
Given his public actions to date, I expect that the Special Counsel is well along in his investigation. At the same time, the President has been steadfast that he was not involved in any collusion with Russian interference in the election. I believe it is in the best interest of everyone – the President, Congress, and, most importantly, the American people – that this matter be resolved by allowing the Special Counsel to complete his work. The country needs a credible resolution of these issues. If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the Special Counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work.
Second, I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.
I’m most interested, however, in the way that Barr addresses the memo on the Mueller investigation he wrote last year. In comments also surely designed to reassure Democrats, Barr claims that the memo only addressed one theory of obstruction.
I would like to briefly address the memorandum that I wrote last June. I wrote the memo as a former Attorney General who has often weighed in on legal issues of public importance, and I distributed it broadly so that other lawyers would have the benefit of my views. As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering. The memo did not address – or in any way question – the Special Counsel’s core investigation into Russian interference in the 2016 election. Nor did it address other potential obstruction-of-justice theories or argue, as some have erroneously suggested, that a President can never obstruct justice. I wrote it myself, on my own initiative, without assistance, and based solely on public information.
The claim that that’s what he addressed — which I correctly unpacked here — is important because, as Jack Goldsmith has since laid out, Barr’s views on that theory of obstruction fit solidly within OLC precedent.
Yet Barr makes a false claim in that paragraph: that his memo “did [not] address other potential obstruction-of-justice theories.” Indeed, before he finishes his first page, he addresses another potential obstruction-of-justice theory:
Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful subversive acts.
It’s right there, on the bottom of his first page, another potential obstruction of justice theory.
As if his reference to Nixon and Clinton didn’t already make it clear, the rest of his memo describes that the proper remedy when the President engages in such crimes is impeachment.
And, as I have laid out, the public evidence (even before recent disclosures about how the FBI worried that Trump was literally taking orders from Russian when he fired Comey) provides strong circumstantial evidence that Trump attempted to impair the integrity and availability of evidence to the FBI, possibly including suborning perjury from Mike Flynn.
While Barr doesn’t presume to dictate whether Congress must judge such behavior adequate to sustain impeachment, he certainly sees it as an adequate basis for impeachment.
Which is why I find his statement troubling. He’s not only placating Democrats with this statement (and opposing any possibility that the President can be charged for criminal acts). He’s also backing off the clear implication of his memo, that if Trump engaged in witness tampering, it would be improper.
All that’s separate from the wisdom and ethics of writing 19 pages, as he did, on a theory based off a really skewed understanding of the evidence, or accepting a job after having done so in the scope of job considerations.
To be sure, if Barr really intends to let Mueller finish and ensure the right to vote, he may be the best Attorney General candidate we’re likely to get from Trump. But he still needs to be asked whether he backs the implications of his memo, which actually back impeachment.
Update: This is fairly batshit. In a letter to Lindsey Graham dated yesterday — the same day Barr released opening statements that say “Nor did [his memo] address other potential obstruction-of-justice theories,” he said that his entire memo was a different theory of obstruction of justice.
The principal conclusion of my memo is that the actions prohibited by section 1512(c) are, generally speaking, the hiding, withholding, destroying, or altering of evidence – in other words, acts that impair the availability or integrity of evidence in a proceeding. The memorandum did not suggest that a President can never obstruct justice. Quite the contrary, it expressed my belief that a President, just like anyone else, can obstruct justice if he or she engages in wrongful actions that impair the availability of evidence. Nor did the memorandum claim, as some have incorrectly suggested, that a President can never obstruct justice whenever he or she is exercising a constitutional function. If a President, acting with the requisite intent, engages in the kind of evidence impairment the statute prohibits – regardless whether it involves the exercise of his or her constitutional powers or not – then a President commits obstruction of justice under the statute. It is as simple as that.
As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.
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https://www.emptywheel.net/wp-content/uploads/2018/02/RobertMueller_PeteSouza_2012_Wikimedia.jpg10541500emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2019-01-14 14:54:252019-01-15 08:37:26William Barr Falsely Denies His Mueller Memo Makes the Case for Impeachment
The pearl clutchers screamed about Congresswoman Rashida Tlaib saying that we need to impeach the motherfucker, Donald Trump, demeaning the presidency.* While I’m glad that she has refused to back down from her beliefs in the face of the attacks, I think her more substantial argument about impeachment deserves further attention (which I hope to return to in a later post). More important, I think that the response to Tlaib’s comments has resulted in members of both parties retreating to a debate about Trump’s impeachment using the old formulation that it’s a political, not a legal question.
It is true that impeachment is political question insofar as, so long as there’s the political will, a president can be impeached for anything, even lying about a consensual blowjob immaterial to an investigation into financial scandal. But impeachment is also a legal question. Indeed, the Constitution mandates that the President be removed from office if he is impeached and convicted not just for the unenumerated grab bag of “high crimes and misdemeanors” — where Congress exercises the political will to decide whether a blowjob merits impeachment — but also the enumerated crimes of treason and bribery.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
In spite of Emmet Sullivan’s question — as one of the only people who has read sealed documents laying out what Trump’s transition team did — about whether Mueller’s investigators considered charging Mike Flynn with treason, there’s no chance that Trump will be named in a treason charge.
But there is very good chance he will be named in a conspiracy involving a quid pro quo trading dirt and real estate deals for sanctions relief and other policy considerations.
The other day, I realized something ironic: in precisely the same period Trump was entering in an apparent quid pro quo with Russians, John Roberts was authoring a unanimous Supreme Court decision that clarified the limits of quid pro quo bribery.
And while the Supreme Court believed that Governor Bob McDonnell had not accepted bribes for setting up meetings in exchange for gifts, the language Roberts wrote in the weeks after Trump’s son told some Russians they would revisit Magnitsky sanctions if his father won does not so narrow the definition of bribery as to make Trump’s actions legally excusable.
Roberts described an official act this way:
In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so.
Notably, the bribed public official doesn’t actually have to follow through on the official act he agreed to take, so it doesn’t help Trump that Congress has repeatedly prevented him from overturning sanctions on Russia.
Under this Court’s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so.
And there are a number of data points in the public record that suggest Trump did believe he had made a deal with the Russians and that Russia had what it believed was a commitment from Trump. For example, four of the people who attended the June 9 meeting testified (most under oath) that Don Jr said his father would revisit sanctions relief if he got elected.
Natalia Veselnitskaya said Don Jr said they’d revisit the topic.
Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.
Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.
There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.
Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.
A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.
Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.
A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.
MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —
MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.
And Ike Kaveladze, in the call back to his boss to report on the meeting that witnesses observed, was happy with the outcome of the meeting.
It’s not just the Russians who seem to have acted on the meeting. Michael Cohen’s allocution seems to suggest that the meeting tied directly to the negotiations over a Trump Tower, because he took steps to travel to Russian on the day of the meeting.
From on or about June 9 to June 14, 2016, Individual 2 sent numerous messages to COHEN about the travel, including forms for COHEN to complete. However, on or about June 14 , 2016, COHEN met Individual 2 in the lobby of the Company’s headquarters to inform Individual 2 he would not be traveling at that time.
Remember: a “senior campaign official” was involved in discussions about trips to Russia. And had the President’s personal lawyer actually taken this trip to St. Petersburg, the plan was to meet Vladimir Putin (who did attend the forum that year).
While the dates provided in Cohen’s allocution also suggest the disclosure that Russia hacked the DNC halted Cohen’s plans “at that time,” we know that the plans did resume after that canceled trip into July.
The Russians certainly believed they had an agreement. They put in some effort to meet again after Trump won. While finding an appropriate communication channel failed for the Agalarovs, Flynn and Jared Kushner moved to establish a back channel via Sergey Kislyak. When Trump met with Preet Bharara and reportedly agreed to keep him on, Veselnitskaya panicked, and suggested Trump planned to keep him on so he could take him out.
In its indictment of Veselnitskaya, DOJ just established that she was actually working as part of the Russian government when she claimed to have fought to get an MLAT request in her Prevezon case. And Veselnitskaya believed that after Trump won the election, he would take out the prosecutor whom she was facing in court. Ultimately, Trump did take out Preet, firing all his US Attorneys in an effort to do so.
And details from Mike Flynn’s allocution provide one important piece of evidence that Russians believed they had received a commitment from Trump.
After Obama imposed sanctions on Russia partly in retaliation for the election year operation, Trump’s team panicked, both because they wanted to improve relations with Russia, but also because Russia’s role in his victory delegitimized the victory. That is, even those unlikely to be unaware of any quid pro quo recognized that the public accounting of Russia’s role in helping defeat Hillary would make it all the more difficult to deal with Russia.
Obama is doing three things politically:
discrediting Trump’s victory by saying it was due to Russian interference
lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.
Trump’s response, however, was to reach out to Russia and assure them they didn’t need to worry about Obama’s new policy. In response, the Russians made it very clear that Putin had decided not to respond based on the assurances that Flynn gave Kislyak.
On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.
On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.
Mueller, of course, has the full transcript of what Flynn said to Kislyak that successfully placated Putin. It is highly likely the transcript provides explicit evidence of an official act to pay off his side of the deal, sanctions relief.
All of which is to say that Mueller may well be finalizing a conspiracy indictment of Don Jr and Trump Org laying out a quid pro quo in which Trump agreed to provide sanctions relief (and some other stuff) in exchange for Russia’s help winning the election.
That Mueller might be able to show all this is bribery may not affect Republican willingness to take the action laid out in the Constitution, to convict Trump in an impeachment inquiry. But given that the Constitution specifically envisions impeaching a President who has accepted a bribe, commentators should stop treating impeachment exclusively as a political issue.
Update: I posted this before I had read this analysis from Jack Goldsmith raising concerns about investigating the President for foreign policy decisions. While I think Goldsmith raises key points, he focuses on actions Trump took as President. But that’s one reason I think the transition activities are so important. If I’m right that the calls to Kislyak amount to an official act, then Trump took it to undermine the official policy of the government, not set it as President. Further, The Trump team had been asked — and at least one person had agreed — to not undermine Obama’s policies during the transition. There were several efforts to hide that they were doing so: the indications they couldn’t reengage on Magnitsky sanctions using the same channels as they used during the election, the request for a back channel, and the meeting with Mohammed bin Zayed al-Nahyan that Susan Rice discovered by unmasking the identities of those who met with him.
The actions Trump took that led to Flynn and Comey’s firings were part of an effort to hide these clandestine efforts during the transition. Yes, they were conducted while he was President. But they were conducted to cover up actions taken before he became President. This is why I keep harping on the remarkable lack of curiosity about why Trump really fired Flynn. The public story Trump is telling is assuredly false. The real reason almost certainly ties back to these transition period actions.
As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.
*Full disclosure: I donated to Tlaib’s campaign.
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Update: The NYT had it correct the first time. They got — badly — played.
Because the NYT corrected an error (noting that Paul Manafort instructed Konstantin Kilimnik to pass on Trump polling data to pro-Russian Ukrainian oligarchs Serhiy Lyovochkin and Rinat Akhmetov, not Russian oligarch Oleg Deripaska), the usual suspects are claiming that the really damning disclosures revealed by Paul Manafort’s filing of the other day don’t yet prove Trump’s campaign manager conspired with Russia.
Manafort already pled guilty to conspiring with Russian Konstantin Kilimnik
I saw claims as recently as the other day that no Trump associate has been charged or pled guilty to conspiring with a Russian. That’s false.
As part of his plea agreement in September, Manafort pled guilty to conspiring with Kilimnik, a Russian citizen, to witness tamper. Admittedly, this particular conspiracy took place in 2018, not 2016, and it served not to tamper with the 2016 election, but to hide the ways in which Manafort kept secret that he was an agent of Ukraine spending millions to influence US policy. But, as Mueller has described it, Manafort committed a series of crimes designed to hide his ongoing ties to Russian-backed Ukrainian oligarchs after being fired from the Trump campaign in significant part to sustain lies he and Rick Gates told while still working for Donald Trump.
In other words, one purpose of his conspiracy with Kilimnik was to hide the fact that Trump’s campaign manager — who, in spite of being broke, worked for “free” throughout the campaign — had been a paid agent of Ukraine.
The Russian Manafort conspired with, Konstantin Kilimnik is suspected of ties to the same agency that hacked the DNC
Past Mueller filings have made it clear that Kilimnik is suspected to have ties to a Russian intelligence agency. The FBI thinks so.
Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that [Kilimnik] has ties to a Russian intelligence service and had such ties in 2016
And Rick Gates knew of those ties.
During his first interview with the Special Counsel’s Office, [Alex] van der Zwaan admitted that he knew of that connection, stating that Gates told him [Kilimnik] was a former Russian Intelligence Officer with the GRU.
The GRU, of course, is the Russian intelligence agency that hacked the Democrats in 2016. So Manafort has pled to conspiring not just with any Russian, but a Russian believed to have ties with the agency that hacked the DNC.
Akhmetov was named — in the same interview as Deripaska — in the affidavit for a 2017 probable cause search warrant targeting Manafort
Akhmetov, one of the oligarchs with whom NYT’s correction say Manafort did share data, was described in the probable cause warrant the FBI used to raid Manafort’s condo in July 2017. Indeed, Manafort described working for both Akhmetov and Deripaska in the same period he was supporting Viktor Yanukoych.
This suggests it’s difficult to separate Manafort’s historical criminal behavior involving Akhmetov from that involving Deripaska. And Kilimnik was involved in both.
Akhmetov and Lyovochkin were paying Manafort while he was working for Trump for “free”
As part of Manafort’s spox’s “clarifications” about the disclosures made clear in the redacted filing, he admitted that a $2.4 million payment Manafort anticipated — in an August 2016 email to his accountant — that he would receive in November was from Akhmetov and Lyovochkin. While that payment is understood to be debts owed for past work, his decision to share campaign data with the oligarchs seems to have been tied to ensuring he did get that payment.
If that’s right, it suggests that that $2.4 million payment, at a time when Manafort was broke but nevertheless working for “free,” had some tie to his work on the campaign.
Lyovochkin made an illegal donation to Donald Trump’s inauguration fund
Another Kilimnik business partner, Sam Patten, pled guilty (in part) to laundering a $50,000 donation to Trump’s inauguration fund for tickets to his inauguration.
To circumvent the foreign donation restriction, PATTEN, with the knowledge of Foreigner A, solicited a United States citizen to act as a “straw” purchaser so that he could conceal from the [Presidential Inauguration Committee] that the tickets for the inauguration were being paid for from a foreign source. The straw purchaser paid $50,000 for four inauguration tickets. The straw purchaser paid that sum one day after receiving from [Begemot Ventures] a check signed by PATTEN in the sum of $50,000. In turn, [Lyovochkin] had paid [Begemot] for the tickets though a Cypriot account. [Kilimnik and Lyovochkin] another Ukrainian, and PATTEN were allocated the four inauguration tickets. Thereafter, PATTEN attended a PIC event in Washington, D.C. with [Lyovochkin].
Thus, in addition to paying Trump’s campaign manager during the campaign, Lyovochkin made an illegal donation to Trump’s inauguration (and remember, there are outstanding questions about where all the inauguration funds went).
Manafort discussed Ukraine every time he spoke with Kilimnik during the campaign; those discussions included a Russian-friendly “peace plan”
Among the other lies Manafort told when he was supposed to be cooperating with Mueller pertained to his repeated conversations with Kilimnik. And while Manafort tried to minimize the persistence with which they discussed such things, suggesting he may have discussed a Ukraine peace plan more than once.
After being shown documents, Mr. Manafort “conceded” that he discussed or may have discussed a Ukraine peace plan with Mr. Kilimnik on more than one occasion
But Mueller maintains they have detailed descriptions showing the peace plan came up “at each” meeting they had, which suggests it was a key part of why the Russians and Ukrainians in touch with Manafort through Kilimnik were in touch with him.
And, again, both these lies and Manafort’s lies in 2018 and Manafort’s lies in 2016 and 2017 were all intended to hide these ongoing relationships, in significant part to hide Trump’s campaign ties to all of this.
As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.
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https://www.emptywheel.net/wp-content/uploads/2018/07/Paulie.jpg600476emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2019-01-10 17:32:362019-02-10 08:42:51Paul Manafort’s Ongoing Conspiracy with Suspected Russian Agent Konstantin Kilimnik
In a piece puzzling through why Oleg Deripaska — who wrote a deceptive op-ed that was published at his outlet — would get polling data from Trump’s campaign manager [Note, NYT has updated reporting to specify that Manafort sent the data to Serhiy Lyovochkin and Rinat Akhmetov], Chuck Ross mentions something that has entirely new meaning given recent disclosures. Oleg Deripaska met with Sergei Millian at the St. Petersburg Economic Forum in June 2016.
Deripaska has denied through intermediaries being a source for Steele, though he was spotted in June 2016 at an economic forum in St. Petersburg with Sergei Millian, an alleged source for the dossier.
Here’s a photo of the meeting, which Wendy Siegelman found.
Of course, Ross mostly cares about all this because Millian was allegedly a source for the Christopher Steele dossier, not for all the other events this one intersects with.
Consider the timeline of some key events below.
It shows that the email hacks paralleled Manafort’s increased responsibility on the campaign.
But even as Russia’s operation to release dirt on Hillary was proceeding (and Russians were reaching out to George Papadopoulos to dangle emails as well), Michael Cohen was negotiating a Trump Tower deal, via Felix Sater, which was premised on a meeting between him — and then later, Trump — and Vladimir Putin. On June 9 — the same day that Don Jr told Aras Agalarov’s representatives that the Trumps would revisit sanctions if Trump was elected — Cohen even started to book his travel for that meeting. He canceled those plans, however, on the same day Russia’s role in hacking the DNC became public.
But two key figures in the operation did meet at the St. Petersburg Forum: Deripaska and Millian. And Millian would pick up the Trump Tower deal after the RNC Convention, laundering it, at that point, through a junior staffer who had proven to be a useful go-between for the Russians.
We don’t know whether Deripaska, whom Steele was pitching as a viable partner to counter Russian organized crime, was a source for Steele’s dossier. We do know that Manafort is the one who pushed Trump to discredit the Russian investigation by attacking the dossier.
As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.
Timeline
January 12, 2016: Steele writes Bruce Ohr to say Oleg Deripaska may obtain a visa for later that year
January 20: Michael Cohen speaks with Dmitry Peskov’s personal assistant for 20 minutes about Trump Tower deal
January 21: Putin’s office contacts Felix Sater about Trump Tower deal
February 21: Steele sends Ohr Orbis reporting claiming Deripaska was not a tool of the Kremlin
February 29: Manafort drafts proposal to work for “free” for Trump
July 22: George Papadopoulos asks Ivan Timofeev to help prep for a meeting with Sergei Millian; Millian would eventually pitch Papadopoulos on Trump Tower Moscow deal
August 3: Manafort and Kilimnik meet in New York
August 17: Manafort fired from campaign
August: Manafort and Tom Barrack take boat trip, meet Kilimnik
October 18: Steele and Ohr discuss dispute between Ukraine and RUSAL
January 11 or 12, 2017: Manafort contacts Reince Priebus to tell him how to use the Steele dossier to discredit Russian investigation (remember, Manafort insists he didn’t lie about meeting with Trump officials, because those meetings happened before inauguration)
January 27: Papadopoulos agrees to meet FBI without a lawyer, in part in hopes of sustaining possibility of a job with Trump Admin and possibly a deal with Millian
January or February 2017: Manafort meets Kilimnik in Madrid
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https://www.emptywheel.net/wp-content/uploads/2019/01/Milliam-Deripaska.jpg586671emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2019-01-09 13:46:012019-01-09 20:41:39Oleg Deripaska Met Sergei Millian at the St. Petersburg Forum Michael Cohen Would Have Met Putin
Tonight, Trump will take over the airwaves to lie about the southern border in what will either be a last ditch effort to persuade Senate Republicans to stay the course supporting his temper tantrum, or will include a declaration of emergency that would pave the way to reopen government while saving face, all while creating an unbelievably dangerous precedent in the process.
Yesterday, NBC reported just how enormous are the lies the Trump Administration is telling about the southern border.
It describes that while the Administration claims to have stopped 4,000 known or suspected terrorists last year, in reality, CBP stopped just six.
U.S. Customs and Border Protection encountered only six immigrants at ports of entry on the U.S-Mexico border in the first half of fiscal year 2018 whose names were on a federal government list of known or suspected terrorists, according to CBP data provided to Congress in May 2018 and obtained by NBC News.
That number six is itself an exaggeration. In a piece predicting that, “the Intelligence Community is almost certainly not able to stand publicly behind what the White House and DHS are saying,” former National Counterterrorism Center Director Nick Rasmussen explains what (he correctly suspected) that number represents: visa denials based on a possible link to terrorism.
[T]hose visa denials or SIA encounters hardly equates to disruption of a terrorist plot or the “capture” of a known terrorist. Our watchlisting system is predicated on a carefully calibrated risk management approach. When the intelligence community acquires information that points to a potential link to terrorist activity, individuals are not permitted to travel to the United States. But it should not be assumed that every individual who was denied the opportunity to enter the U.S. because was in fact a would-be terrorist intent on doing us harm.
Plus, the 4,000 number equates to all such stops, not just those on the southern border.
In other words, the White House has been telling an unbelievable exaggeration to attempt to ratchet up fear to justify Trump’s tantrum.
It is, even among Trump’s fantastic lies, remarkable. Trump used a number, 4,000, that is actually 666 times higher than even a conservatively high number, 6.
To show just how big a lie it is, I calculated what two of Trump’s other most famous lies, exaggerated on such a scale, would be.
In an effort to avoid looking inadequate as compared to President Obama, whose inauguration had record crowds (much to the chagrin of those us of caught in the Purple Tunnel of Doom), Trump claimed more people attended his inauguration than ever before, meaning more than the 1.8 million who attended Obama’s first inauguration. In reality, the number was likely between 300,000 and 600,000. Take the smaller of those two numbers, exaggerate by as much as Trump is exaggerating the threat of terrorist infiltration on the southern border, and he’d have to claim 200 million people would have attended his inauguration, many more times the crowd Obama got.
Or take his net worth, another of his most epic lies.
Trump has claimed his net worth is $10 billion; the company, too, claims to make that much in a given year. Last year Forbes calculated Trump’s net worth was actually closer to $3 billion.
But if we take Trump’s exaggerated claim of $10 billion, and assumed he is exaggerating by the scale that he’s exaggerating the threat at the southern border, and it’d say his real net worth was just $15 million.
I mean, that’d make Mitt Romney far richer than Trump. Richard Blumenthal, too, would be worth more than the President. The Senate might not even let a pauper like that join their club! According to some calculations, Nancy Pelosi would even be worth more — in monetary, and not just human, worth — than Trump if he exaggerated this much.
The point is this lie is not just egregious and fact-free. It is, even among Trump’s lies, a whopper.
And Trump will go on teevee tonight to try to spread lies on an epic scale.
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Pretty much everyone I know is recommending this New Yorker profile describing how Mark Burnett created Donald Trump’s current image (and with it his electoral prospects).
Along with describing how both Trump and Burnett came to turn the popularity of the show into a marketing vehicle and a Trump’s telling claim that he initially hesitated before signing onto reality teevee because the, “contractors, politicians, mobsters, and everyone else I have to deal with in my business … don’t like, as they’re talking to me, having cameras all over the room,” the piece describes how the show depicted not reality, but a heavily edited narrative trying to retroactively justify Trump’s capricious firing decisions each week.
The result created the illusion that a serially bankrupt joker was, instead, a king.
Burnett has often boasted that, for each televised hour of “The Apprentice,” his crews shot as many as three hundred hours of footage. The real alchemy of reality television is the editing—sifting through a compost heap of clips and piecing together an absorbing story. Jonathon Braun, an editor who started working with Burnett on “Survivor” and then worked on the first six seasons of “The Apprentice,” told me, “You don’t make anything up. But you accentuate things that you see as themes.” He readily conceded how distorting this process can be. Much of reality TV consists of reaction shots: one participant says something outrageous, and the camera cuts away to another participant rolling her eyes. Often, Braun said, editors lift an eye roll from an entirely different part of the conversation.
At the end of each episode, Trump determined which competitor should be “fired.” But, as Braun explained, Trump was frequently unprepared for these sessions, with little grasp of who had performed well. Sometimes a candidate distinguished herself during the contest only to get fired, on a whim, by Trump. When this happened, Braun said, the editors were often obliged to “reverse engineer” the episode, scouring hundreds of hours of footage to emphasize the few moments when the exemplary candidate might have slipped up, in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense. During the making of “The Apprentice,” Burnett conceded that the stories were constructed in this way, saying, “We know each week who has been fired, and, therefore, you’re editing in reverse.” Braun noted that President Trump’s staff seems to have been similarly forced to learn the art of retroactive narrative construction, adding, “I find it strangely validating to hear that they’re doing the same thing in the White House.”
Such sleight of hand is the industry standard in reality television. But the entire premise of “The Apprentice” was also something of a con. When Trump and Burnett told the story of their partnership, both suggested that Trump was initially wary of committing to a TV show, because he was so busy running his flourishing real-estate empire. During a 2004 panel at the Museum of Television and Radio, in Los Angeles, Trump claimed that “every network” had tried to get him to do a reality show, but he wasn’t interested: “I don’t want to have cameras all over my office, dealing with contractors, politicians, mobsters, and everyone else I have to deal with in my business. You know, mobsters don’t like, as they’re talking to me, having cameras all over the room. It would play well on television, but it doesn’t play well with them.”
“The Apprentice” portrayed Trump not as a skeezy hustler who huddles with local mobsters but as a plutocrat with impeccable business instincts and unparalleled wealth—a titan who always seemed to be climbing out of helicopters or into limousines. “Most of us knew he was a fake,” Braun told me. “He had just gone through I don’t know how many bankruptcies. But we made him out to be the most important person in the world. It was like making the court jester the king.” Bill Pruitt, another producer, recalled, “We walked through the offices and saw chipped furniture. We saw a crumbling empire at every turn. Our job was to make it seem otherwise.”
[snip]
Trump took to his part more nimbly than anyone might have predicted. He wouldn’t read a script—he stumbled over the words and got the enunciation all wrong. But off the cuff he delivered the kind of zesty banter that is the lifeblood of reality television. He barked at one contestant, “Sam, you’re sort of a disaster. Don’t take offense, but everyone hates you.” Katherine Walker told me that producers often struggled to make Trump seem coherent, editing out garbled syntax and malapropisms. “We cleaned it up so that he was his best self,” she said, adding, “I’m sure Donald thinks that he was never edited.” [my emphasis]
Throughout, the piece both implicitly and explicitly suggests that the White House is adopting techniques from the show in burnishing Trump’s power. Or, at least, Trump is asking that his handlers replicate the same frames of power that Burnett used.
The show’s camera operators often shot Trump from low angles, as you would a basketball pro, or Mt. Rushmore. Trump loomed over the viewer, his face in a jowly glower, his hair darker than it is now, the metallic auburn of a new penny. (“Apprentice” employees were instructed not to fiddle with Trump’s hair, which he dyed and styled himself.) Trump’s entrances were choreographed for maximum impact, and often set to a moody accompaniment of synthesized drums and cymbals. The “boardroom”—a stage set where Trump determined which candidate should be fired—had the menacing gloom of a “Godfather” movie. In one scene, Trump ushered contestants through his rococo Trump Tower aerie, and said, “I show this apartment to very few people. Presidents. Kings.” In the tabloid ecosystem in which he had long languished, Trump was always Donald, or the Donald. On “The Apprentice,” he finally became Mr. Trump.
[snip]
Trump has succeeded in politics, in part, by borrowing the tropes of the show. Jonathon Braun pointed out to me that when Trump announced his candidacy, in 2015, he did so in the atrium of Trump Tower, and made his entrance by descending the gold-colored escalator—choreography that Burnett and his team had repeatedly used on the show. After Trump’s announcement, reports suggested that people who had filled the space and cheered during his speech had been hired to do so, like TV extras, for a day rate of fifty dollars. Earlier this year, the White House started issuing brief video monologues from the President that strongly evoke his appearances on Burnett’s show. Justin McConney, a former director of new media for the Trump Organization, told New York that, whenever Trump works with camera people, he instructs them, “Shoot me like I’m shot on ‘The Apprentice.’ ” [my emphasis]
One of the most interesting details in the piece is that Democrats actively (and successfully) lobbied musical talent to blow off Trump’s inauguration, themselves performing a kind of script-writing that has haunted Trump since.
A Democratic political operative who was involved in a back-channel campaign to dissuade big-name stars from appearing at the event told me that Burnett had tried to enlist musicians to perform. “Mark was somebody we were actively working against,” the operative said. Trump’s wish list included Elton John, Aretha Franklin, and Paul Anka—who, he hoped, would sing “My Way”—but they all claimed to be otherwise engaged. The event ended up with sparse crowds and a feeble roster of performers.
Because I dawdled before reading the piece, I was reading it at the same time as reading coverage of the shutdown. That coverage highlights the results of running a Reality Teevee star as President. There’s NYT report that the reason why Trump has shut down the government to get Congress to fund him a wall is because Sam Nunberg and Roger Stone (and Steve Bannon) used the wall as a mnemonic device to get Trump to repeat his lines.
“How do we get him to continue to talk about immigration?” Sam Nunberg, one of Mr. Trump’s early political advisers, recalled telling Roger J. Stone Jr., another adviser. “We’re going to get him to talk about he’s going to build a wall.”
[snip]
“As a messaging strategy, it was pretty successful,” [anti-immigration activist Mark] Krikorian said. “The problem is, you got elected; now what do you do? Having made it his signature issue, Trump handed the Democrats a weapon against him.”
We’ve shut down the entire government because an entertainment professional always refused to memorize his lines (or as someone on Twitter noted, use a teleprompter), and so the unstable hacks who managed him early on invented a policy promise that not even hardline anti-immigration experts want.
Trump spent much of Saturday on the phone with allies, talking through his positioning on the shutdown and hearing their reviews of his Rose Garden performance, according to a person close to him. Two people regularly on his call list — Rep. Mark Meadows (R-N.C.) and Sen. Lindsey O. Graham (R-S.C.) — have encouraged Trump to take a hard line and refuse to agree to reopen the government unless wall funding is secured, the person said.
Trump, who doesn’t understand the successful tycoon that starred in The Apprentice was the product of heavy editing, has now taken to editing himself, trying to fulfill the things the Campaign Reality Teevee star said over and over, based off what Mark Meadows and Lindsey Graham tell him.
The New Yorker profile, however, offers scant solutions to the problem that Burnett created — just his ex-wife imploring him to tell Trump he’s not actually living a reality show, as if that will fix the problem.
One day this past fall, Burnett got a call from his first wife, Kym Gold, with whom he remains friendly. Gold was upset about what was happening in the country, and asked Burnett to intervene with Trump. “We had it out,” she told me. “I said, ‘You’ve got to help our children, for the future and safety of this country.’ ” Gold implored Burnett, “Tell him this is not a reality show. This is real life. You’re the President. You’re saying things you cannot say—to reporters, to other world leaders.”
But that wouldn’t fix it even if Burnett were willing to risk losing access to Trump by telling him.
The problem, and any potential solutions, is something I’ve been thinking about for some time. No one is going to cure Trump of his addiction to being framed to look powerful. If he doesn’t get that high from his White House handlers, he will continue to fire them and look elsewhere, to people who are even better trained at flattery than Burnett. Trump now believes he can produce himself, based largely on the feedback of nutjobs like Ann Coulter and Sean Hannity.
I’m not actually advocating letting Trump frame himself as a king. But I also think that much of Democrats’ response involves trying to fact check Trump rather than reframe him. Your typical Trump voter isn’t going to give a damn that Trump is lying until some policy he has bragged about (up to and including the shutdown, but also his trade wars) ends up making them feel personally betrayed.
Mind you, I think Nancy Pelosi understands all this. She understands (like that other great female politician, Angela Merkel) that Trump will lose more if he is shown looking weak next to a woman than if someone proves his 100,000th lie.
That last of the self-imagined productive sycophants left with John Kelly. Trump now has a temporary Chief of Staff, one who will be gone once Trump decides to internalize Mick Mulvaney’s labeling of Trump’s position on the wall as “childish.” That creates a vacuum in the function of framing Trump’s image.
Update, January 12: This important op-ed from an OLC veteran describes how lawyers there do much the same as what editors on The Apprentice does.
But when I was at OLC, I saw again and again how the decision to trust the president failed the office’s attorneys, the Justice Department and the American people. The failure took different forms. Sometimes, we just wouldn’t look that closely at the claims the president was making about the state of the world. When we did look closely, we could give only nudges. For example, if I identified a claim by the president that was provably false, I would ask the White House to supply a fig leaf of supporting evidence. Or if the White House’s justification for taking an action reeked of unconstitutional animus, I would suggest a less pungent framing or better tailoring of the actions described in the order.
I often wondered, though, whether my attempts to remove the most basic inaccuracies from the face of a presidential order meant that I was myself failing to carry out my oath to protect and defend the Constitution. After all, the president had already submitted, through his early drafts or via Twitter, his reasons for issuing a particular order. I sometimes felt that, rather than engaging in professionally responsible advocacy, my OLC colleagues and I were using the law to legitimize lies.
I felt more than a twinge of recognition this month when reading a New Yorker article about Trump and the reality-TV show “The Apprentice.” Jonathan Braun, an editor on “The Apprentice,” described how editors would “reverse engineer” episodes after Trump made impulsive decisions about firing a contestant. The article described editors “scouring hundreds of hours of footage . . . in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense.” Like a staff member at “The Apprentice,” I occasionally caught myself fashioning a pretext, building an alibi.
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https://www.emptywheel.net/wp-content/uploads/2019/01/Screen-Shot-2019-01-06-at-12.24.35-PM.png4091074emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2019-01-06 13:46:212019-01-11 10:14:22On Narrating Donald Trump: “Shoot me like I’m shot on ‘The Apprentice'”