The Kremlinology (Ha!) of the Sessions’ Huddle

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A lot of people were startled by the report of Rod Rosenstein commenting on Friday that Matt Whitaker is a “superb” choice to be Acting Attorney General.

Deputy Attorney General Rod Rosenstein on Friday hailed acting Attorney General Matthew Whitaker as a “superb” choice to fill the role even as Whitaker’s past statements have prompted questions about his impartiality toward special counsel Robert Mueller’s investigation.

“I think he’s a superb choice for attorney general,” Rosenstein told a small group of reporters gathered outside of an investiture ceremony for US Attorney Zachary Terwilliger in Alexandria, Virginia. “He certainly understands the work, understands the priorities of the department.”

When asked about the Mueller probe at the same event, Rosenstein walked away.

Aside from reports that Rosenstein and Whitaker hate each other (indeed, the effort to fire Rosenstein in September was significantly hatched by Whitaker), there’s reason to believe Rosenstein was just flattering his new boss. The speech at which he made these comments included a comment not just mentioning Marbury versus Madison — the cornerstone of judicial review in this country, which Whitaker has said was wrongly decided — but mentioning it in the context of having the proper paperwork to serve as an official of DOJ.

The internet web site for the Eastern District of Virginia proudly states, and I quote, “John Marshall … was appointed by President Washington to serve as the first United States Attorney for the District of Virginia.”

Virginia’s claim to Chief Justice Marshall as the first U.S. Attorney is quite a distinction. But it is not entirely accurate. Now, it is literally true that John Marshall was appointed U.S. Attorney by President Washington. But he never actually served as U.S. Attorney.

In fact, Marshall responded to the President with a letter of his own. Marshall wrote, “[T]hank you … very sincerely for the honor … [but] I beg leave to declare that … with real regret[,] I decline ….”

Washington replied with yet another letter. He wrote, “As some other person must be appointed to fill the Office of Attorney for the district of Virginia, it is proper your Commission should be returned to me.” He wanted the document back!

Perhaps that explains why, when the case of Marbury versus Madison came along in 1803, Chief Justice Marshall focused so intently on the importance of the signed commission.

Apparently the audience, for the investiture of the new US Attorney in EDVA, laughed at Rosenstein’s comment, perhaps recognizing the reference to be a dig at Whitaker, perhaps recognizing something more.

Still, two days after Whitaker’s appointment, Rosenstein offered effusive and public flattery at a time of great uncertainty over events of the last week.

Rod Rosenstein has not survived as a senior DOJ official for thirteen years, through three presidential administrations and serving both parties, without knowing how to flatter his bosses. And I suspect, in this case, those skills may serve the country well.

Consider some details in this important CNN report, describing how and with whom, after John Kelly asked Jeff Sessions for his resignation on Wednesday morning, the Attorney General of the United States huddled, talking strategy.

Sessions met with the Deputy Attorney General, the Solicitor General, the head of Office of Legal Counsel, and the Principal Deputy Assistant Attorney General.

John Kelly, the White House chief of staff, asked Sessions to submit his resignation, according to multiple sources briefed on the call. Sessions agreed to comply, but he wanted a few more days before the resignation would become effective. Kelly said he’d consult the President.

Soon, the sources say, top Justice officials convened on the 5th floor suite of offices for the attorney general.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

With the exception of O’Callaghan, all of those men outranked Whitaker so long as Sessions officially remained Attorney General. We don’t actually know when his tenure ended. Sessions’ resignation letter is not dated, much less time-stamped; while Sessions may not know how to date important letters like this, Rosenstein and O’Callaghan surely do, but somehow it did not get dated.

Judges and Justices, Rosenstein would point out two days later, “focus[ ] intently on the importance of the signed commission.”

We do know that when Trump tweeted about Whitaker’s appointment at 2:44 PM, he used the future tense — “will become,” not “is” — to describe Whitaker’s tenure as Attorney General.

We also know that Sessions implemented a significant policy change on consent decrees close to the end of that day, a policy change the Trump Administration has built on in ensuing days. So at the time Sessions implemented that policy change (which the metadata suggests was close to the end of the day), he must have still retained the authority of Attorney General.

So for the sake of this Kremlinology, I will assume that Sessions remained Attorney General for the remainder of the day on Wednesday. That means that, for at least a half day after this went down, any orders he gave were binding and all those men huddling with him on Wednesday morning retained the relative seniority to Whitaker that they started the day with.

As CNN says in its report, the people huddling with Sessions included key players overseeing Mueller’s probe. Rosenstein and O’Callaghan provide the day-to-day oversight of the probe.

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

That day-to-day oversight is critical both to any claim that Mueller operates with constitutional authority and to any effort by Trump and Whitaker to undermine Mueller’s authority.

But CNN doesn’t talk about the important role played in the probe by the other two Senate-confirmed figures in the room, Solicitor General Noel Francisco and OLC head Steven Engel.

As Michael Dreeben, who formally reports to Francisco, noted Thursday (that is, the day after this huddle) during his DC Circuit argument defending the constitutionality of Mueller’s authority, Francisco must approve any appeal Mueller’s team makes (presumably, he must approve any appellate activity at all). The arguments Dreeben made publicly Thursday — as well as whatever arguments Mueller submitted in a brief in sealed form in the Mystery Appeal that same day — were arguments made with the approval of and under the authority of the Solicitor General, the third ranking official at DOJ.

Then there’s Engel. He’s the guy who decides, in response to questions posed by Executive Branch officials, how to interpret the law for the entire Executive Branch. It’s his office, for example, who would decide whether it would be legal for Mueller to indict the President. His office also interprets the laws surrounding things like the Vacancies Reform Act, whether any given presidential appointment is legal.

Which is why this passage of the CNN report is so significant.

At least one Justice official in the room mentioned that there would be legal questions about whether Whitaker’s appointment as acting attorney general is constitutional.

In a room of men huddling with Jeff Sessions at a time he undeniably retained authority as Attorney General, at least one person — it might though is unlikely to be Sessions, it might be the Solicitor General who would argue the case legally, it might be the Deputy Attorney General or his deputy overseeing the Russian probe, it might be the guy who ultimately decides such things, or it might be several of them — at least one of those senior DOJ officials raised questions about whether Whitaker’s appointment would be constitutional. All of those men are sufficiently senior to ask Engel to write up a memo considering the question, and so long as Sessions retained the authority of Attorney General, he could decide whether to accept Engel’s advice or not. Sure, the President could override that (Obama overrode OLC, to his great disgrace, in Libya). But Trump would be on far shakier legal ground to do so without OLC’s blessing, and anyone operating in defiance of the OLC opinion could face legal problems in the future.

And an OLC opinion is precisely the kind of thing that Mueller’s team might submit to the DC Circuit — under the authority of the Senate approved and third-ranking Noel Francisco — in a sealed appendix to a challenge to Mueller’s authority.

I asked around this morning, of both those who think Whitaker’s appointment is not legal and those (like Steve Vladeck) who think it is. And it seems crystal clear: if Whitaker’s appointment is illegal, then that is a disability (just like recusal would be), and the regular DOJ succession would apply. In that case, the Deputy Attorney General would be acting Attorney General, for all matters, not just the supervision of the Special Counsel.

I don’t pretend to know what happened in that huddle or in the half day afterwards when Jeff Sessions uncontestedly retained his authority as Attorney General. I do know the rising House Judiciary Committee Chair has demanded that the paperwork behind it be preserved.

But I’m not really bugged that Rod Rosenstein is doing what he needs to do to remain the person who, if Whitaker’s appointment were illegal, would serve as the Acting Attorney General.

Update: Two more details I should have added in this post.

First, this meeting feels a lot like the ones in response to the 2004 Hospital Hero crisis, which was not just a fight about surveillance, but also about President’s abusing DOJ succession. That suggests the two different huddles at DOJ represent two different camps of loyalty. If that’s right, we might assume those officials in with Sessions might resign (or threaten to) if asked to do something they believed to be illegal. That would mean people with the analogous job titles as threatened to quit in the 2004 crisis — DAG, PDAAG, and SG — might threaten to quit here. Chris Wray would be the analogue to Robert Mueller in this situation; while he’s not reported to be involved on Wednesday, he was reportedly among those ready to quit in 2004.

Additionally, there have been worries about what would happen if Noel Francisco assumed oversight of the Mueller probe (which is what would have happened if Trump fired Rosenstein rather than replaced Sessions). That he was in the group trying to preserve the Mueller probe suggests he may be more supportive of it than people have assumed; remember, on top of approving Mueller’s appeals, he has been brought in at other key points.

So this Kremlinology also suggests there may be more resilience among top officials than assumed, as well.

Update: Fixed that “supervision of the Attorney General” phrase as noted by several in comments. Thanks!

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Did Emmet Flood Mean to Create a Legal Morass, or Is He Off His Game?

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As I’ve often said, Trump departed from his usual habit by hiring Emmet Flood, someone who is eminently qualified to help the President (or, as he did with Cheney, Vice President) stave off legal jeopardy from a Special Counsel or Congress. Which is why I’m trying to figure out whether the legal morass Trump created — presumably on Flood’s advice, given that Flood is serving as both the Mueller investigation White House Counsel lead and, until Pat Cipollone gets fully cleared, White House Counsel generally — by forcing Jeff Sessions’ resignation and replacing him with Matt Whitaker.

It’s not clear when Sessions’ authority ended

Start with the fact that it’s not clear when Jeff Sessions stopped acting as Attorney General. As numerous people have noted, he didn’t date the copy of his resignation letter that got released publicly.

He left DOJ in ceremonial fashion just after 5 PM on Wednesday night, which would suggest he may have remained AG until that time. If that’s right, then anything that Mueller and Rosenstein did that day would still operate under the older authority.

Indeed, DOJ issued an order under Sessions’ authority, imposing new limits on consent decrees used to reign in abusive local police departments, yesterday evening, a full day after he departed. He initialed it (dated 11/7/18), but the metadata on it shows the document wasn’t created until almost 5PM on Wednesday and was modified over a full day after that. (h/t zedster)

So he was at least still AG sometime after 4:53PM on Wednesday — and possibly well after that — or this consent decree policy is void.

Whitaker’s appointment may not be legal

Then there are the proliferating number of people — most prominently Neal Katyal and George Conway but also including John Yoo and Jed Sugarman — who believe his appointment is unconstituional.

There are two bases on which this might be true. First, the forced resignation of Jeff Sessions may in fact be a legal firing, something the House Judiciary Democrats are arguing with increasing stridency, most recently in a letter to Bob Goodlatte asking that he hold an emergency hearing on Sessions’ ouster, support legislation protecting Mueller, and join in requests for information about the ouster from the White House and DOJ. If Sessions was fired, there’s little question that Trump can only replace him with someone who is Senate confirmed.

But Katyal, Conway, and others argue that because the AG is a principal officer, whoever serves in that position must be Senate confirmed. Significantly, the Katyal/Conway argument begins by throwing what Steven Calabresi has said back at conservatives.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

This is probably why people like Yoo are joining in this argument — because if Whitaker’s appointment is legal, than a whole slew of other appointments of the kind that conservatives hate would also be legal.

Whitaker may be disabled with conflicts

Then there are Whitaker’s conflicts, which are threefold. Whitaker:

  • Repeatedly claimed that the Mueller probe was out of control, in spite of the fact he had no real information to base that on
  • Judged that Trump had neither “colluded” nor committed obstruction
  • Not only undermined the investigation, but suggested the underlying conduct — including meeting with Russians to obtain dirt on Hillary Clinton at the June 9 meeting — was totally cool
  • Served as Sam Clovis’ campaign manager in 2014; Clovis was a key player in Trump’s efforts to cozy up to the Russians in 2016 and was one of the earliest known witnesses to testify before the grand jury

CNN captures many of these statements here.

The Clovis one may be the most important. 28 CFR 45.2 requires ethics exemption or recusal if a person has a political relationship with the subject of an investigation.

[N]o employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:

(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

Defining “political relationship” to include service as a principal advisor to a candidate.

Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof;

And, as Mueller noted in their response to Andrew Miller’s appeal, recusal would amount to a “disability” that would put the DAG back in charge.

Finally, interpreting “disability” under Section 508 to include recusal makes logical and practical sense. Section 528 requires the Attorney General to recuse himself when he has a conflict of interest. Section 508 ensures that at all times an officer is heading the Department of Justice. If the Attorney General is recused, it is necessary that someone can head the Department for that investigation. It is inconceivable that Congress intended Section 508 to reach physical disability, but not to reach legal requirements that disabled the Attorney General from participating in certain matters.

Whitaker’s former company is under FBI investigation

Then there’s the news that a company for which Whitaker provided legal services is under criminal investigation.

The Federal Bureau of Investigation is conducting a criminal investigation of a Florida company accused of scamming millions from customers during the period that Matthew Whitaker, the acting U.S. attorney general, served as a paid advisory-board member, according to an alleged victim who was contacted by the FBI and other people familiar with the matter.

The investigation is being handled by the Miami office of the FBI and by the U.S. Postal Inspection Service, according to an email sent to the alleged victim last year by an FBI victim specialist. A recording on a phone line set up by the Justice Department to help victims said Friday the case remains active.

When Whitaker was subpoenaed, he blew it off.

Whitaker, named this week by President Trump as acting attorney general, occasionally served as an outside legal adviser to the company, World Patent Marketing, writing a series of letters on its behalf, according to people familiar with his role.

But he rebuffed an October 2017 subpoena from the Federal Trade Commission seeking his records related to the company, according to two people with knowledge of the case.

But the public record shows that when customers complained, Whitaker threatened them, invoking his background as a former US Attorney.

In emails uncovered by the FTC investigation, Whitaker personally threatened a customer who complained, according to a story in the Miami New Times that was picked up by other news outlets.

The emails the FTC obtained, in fact, suggests Whitaker used his background as a U.S. attorney to try to silence customers who claimed they were defrauded by the company and sought to take their complaints public.

In this case, Whitaker sent an intimidating email to a customer on August 25, 2015, who had contacted World Patent Marketing with his grievances and and filed a complaint with the Better Business Bureau.

The FTC docket reviewed by New Times contains an email exchange on page 362 of 400 that described what happened next.

Rather than expressing concern about the customer’s charge of being cheated,  Whitaker wrote him to let him know that he, Whitaker, was “a former United States Attorney for the Southern District of Illinois…Your emails and message from today seem to be an apparent attempt at possible blackmail or extortion.”

“You also mentioned filing a complaint with the Better Business Bureau and to smear WPM’s reputation online. I am assuming you know that there could be serious civil and criminal consequences for you if that is in fact what you and your ‘group’ is doing. Understand we take threats like this quite seriously…Please conduct yourself accordingly.”

This doesn’t necessarily impact the Mueller probe itself. But it suggests that Whitaker has real corruption problems that will undermine his actions as AG.

Trump and Whitaker may have spoken about the Mueller probe — and Trump is already lying about it

Shortly after Whitaker was appointed, WaPo reported that Trump told multiple people that Whitaker was “loyal” and wouldn’t recuse.

Trump has told advisers that Whitaker is loyal and would not have recused himself from the investigation, current and former White House officials said.

Then WaPo reported that Whitaker has no intention of recusing, reporting that would necessarily predate any discussion with DOJ’s ethical advisors.

Acting attorney general Matthew G. Whitaker has no intention of recusing himself from overseeing the special-counsel probe of Russian interference in the 2016 election, according to people close to him who added they do not believe he would approve any subpoena of President Trump as part of that investigation.

[snip]

On Thursday, two people close to Whitaker said he does not plan to take himself off the Russia case. They also said he is deeply skeptical of any effort to force the president’s testimony through a subpoena.

Special counsel Robert S. Mueller III has been negotiating for months with Trump’s attorneys over the terms of a possible interview of the president. Central to those discussions has been the idea that Mueller could, if negotiations failed, subpoena the president. If Whitaker were to take the threat of a subpoena off the table, that could alter the equilibrium between the two sides and significantly reduce the chances that the president ever sits for an interview.

Meanwhile, when asked today, Trump claimed (in spite of all the briefings Whitaker has attended in recent weeks) that he didn’t know him, even though he went on Fox and hailed him after the most recent attempt to use him to kill the Mueller probe.

“I don’t know Matt Whitaker,” Mr. Trump told reporters as he left Washington for a weekend trip to Paris. But the president stressed that he did know Mr. Whitaker’s reputation well, calling him “a very respected man.”

[snip]

In addition, the president’s claim that he did not know Mr. Whitaker was called into question by Mr. Trump’s own words from just about a month ago, when he said in a “Fox & Friends” interview: “I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker.”

Mr. Whitaker has also visited the Oval Office several times and is said to have an easy chemistry with the president, according to people familiar with the relationship. And the president has regarded Mr. Whitaker as his eyes and ears at the Justice Department.

As CNN notes, Whitaker seemed to have been actively plotting for his boss’ job since the NYT stupidly tried to get Rosenstein fired (which I suspect means Whitaker was a source for the NYT).

A source close to Sessions says that the former attorney general realized that Whitaker was “self-dealing” after reports surfaced in September that Whitaker had spoken with Kelly and had discussed plans to become the No. 2 at the Justice Department if Rosenstein was forced to resign.

In recent months, with his relationship with the President at a new low, Sessions skipped several so-called principals meetings that he was slated to attend as a key member of the Cabinet. A source close to Sessions says that neither the attorney general nor Trump thought it was a good idea for Sessions to be at the White House, so he sent surrogates.

Whitaker was one of them.

But Sessions did not realize Whitaker was having conversations with the White House about his future until the news broke in late September about Rosenstein.

All of this raises huge questions about whether Whitaker and Trump (or Kelly) had an agreement in place, that he would get this post (and shortly after be nominated for a judgeship in IA), so long as he would agree to kill the Mueller probe.

Debates over the legality of Whitaker’s appointment parallel challenges to Mueller’s authority

Then there’s the point I raised earlier today. If Whitaker’s appointment is legal, then so is Mueller’s, which undercuts one of the other efforts to undermine Mueller’s authority.

Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.

John Kelly’s involvement may (and I suspect does) present added conflicts

Then there’s John Kelly’s role, as someone who had a key role in the firing but whose testimony Mueller is currently pursuing (possibly via subpoena).

Kelly is among the people about whom there is the most active dispute legal between the Special Counsel and the White House, a fight picked by the legally competent Emmet Flood.

And Kelly was the person who forced Jeff Sessions to resign on Wednesday. As far as is public (and there’s surely a great deal that we have yet to learn about who was in the decision to force Sessions to resign and when that happened and who dictated the form it would take).

But Kelly had the key role of conveying the President’s intent, in whatever form that intent was documented, to Sessions. If Trump’s past firings are any precedent, Kelly had a very big role in deciding how it would happen.

So the guy whose testimony Mueller may be most actively pursuing (indeed, one who might even be in a legal dispute with), effectuated a plan to undercut Mueller’s plans going forward.

CNN provides more context for Kelly’s role, showing him to be involved in the last attempt to install Whitaker and suggesting that Kelly consulted Trump before refusing Sessions’ request to stay through the week.

John Kelly, the White House chief of staff, asked Sessions to submit his resignation, according to multiple sources briefed on the call. Sessions agreed to comply, but he wanted a few more days before the resignation would become effective. Kelly said he’d consult the President.

[snip]

Rosenstein and [PDAAG Ed] O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

Soon, Whitaker strode into Sessions’ office and asked to speak one-on-one to the attorney general; the others left the two men alone. It was a brief conversation. Shortly after, Sessions told his huddle that his resignation would be effective that day.

O’Callaghan had tried to appeal to Sessions, noting that he hadn’t heard back about whether the President would allow a delay. At least one Justice official in the room mentioned that there would be legal questions about whether Whitaker’s appointment as acting attorney general is constitutional. Someone also reminded Sessions that the last time Whitaker played a role in a purported resignation — a few weeks earlier in September, with Rosenstein — the plan collapsed.

Sessions never heard in person from the President — the man who gained television fame for his catch-phrase “You’re fired” doesn’t actually like such confrontation and prefers to have others do the firing, people close to the President say. Kelly called Sessions a second time to tell him the President had rejected his request for a delay.

Nevertheless, a guy Mueller is trying to interview was right there in the loop, making two efforts to install someone whose sole apparent job is to undercut Mueller.

Everything Whitaker touches may turn to shit

Now, maybe Flood would still have bought off on this — though the multiple reports now claim no one at the White House knew about Whitaker’s problems suggest he may not have been in the vetting loop (because, again, he’s competent and knows the import of vetting).

But there’s one more thing to account for. Everything Whitaker touches may turn to legal shit. It’s a point Katyal and Conway make.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

This appointment could embroil DOJ in legal challenges for years, at least, as plaintiffs and defendants claim that DOJ took some action against them that can only be authorized by a legal Attorney General.

While I don’t think it’s likely, it’s possible that’s the point. As I noted earlier, on Thursday Mueller’s team seemed to be staking a claim that they can continue to operate as they have been.

But their authority, or at least Mueller’s and the others who aren’t AUSAs temporarily reassigned to Mueller, all stems from a legally valid Attorney General or Acting one. If Mueller continues to operate while the legally problematic Whitaker claims to authorize them, what does that do for their actions?

That may be why the DC Circuit wants more (public) briefing on this question in the Andrew Miller case. By appointing a totally inappropriate AG, Trump might just be pursuing his longterm strategy of chaos.

Is this Don McGahn’s last fuck-up?

This entire post is premised on two things: first, that Emmet Flood is among the rare people in Trump’s orbit who is very competent. It also assumes that because both these issues — White House Counsel until Cipollone takes over, and White House Counsel in charge of protecting Trump from the Mueller investigation — would fall solidly in Flood’s portfolios, he would have a significant role in the plot.

Perhaps not. Federalist Society’s Leonard Leo is claiming (in a CNN report that should be read in its entirety) he worked on the plan with Don McGahn.

Leonard Leo, the influential executive vice president of the Federalist Society, recommended to then-White House counsel Don McGahn that Whitaker would make a good chief of staff for Sessions.

“I recommended him and was very supportive of him for chief of staff for very specific reasons,” Leo said Friday.

So maybe this scheme was, instead, planned out by Don McGahn (who has been officially gone since October 17).

But that would raise questions of its own — notably, why this plan was on ice for so long. And why Flood wasn’t in the loop (and why the White House continues to neglect the most basic vetting of people they put in charge of huge parts of our government).

I expect basic competence out of Emmet Flood. But this whole scheme could only be judged competent if the point was to totally discredit anything DOJ does, including but not limited to the Mueller probe.

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Are Mueller and Matt Whitaker Already Battling over Immunity or a Plea Deal for Jerome Corsi?

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From the very first reporting on Jerome Corsi’s testimony to Robert Mueller, his lawyer hinted that he may have been invited — but declined — to engage in criminal activity with Roger Stone.

Gray said he was confident that Corsi has done nothing wrong. “Jerry Corsi made decisions that he would not take actions that would give him criminal liability,” he added, declining to elaborate.

Asked if Corsi had opportunities to take such actions, Gray said, “I wouldn’t say he was offered those opportunities. I would say he had communications with Roger Stone. We’ll supply those communications and be cooperative. My client didn’t act further that would give rise to any criminal liability.”

Yesterday on his broadcast, Corsi seemed a lot less certain that he has avoided legal jeopardy.

He billed the broadcast as a historic one and made it clear it was all about Mueller, even while he feigned that he was not commenting on Mueller. He announced he would not broadcast Friday, because he’d be with his lawyers, and suggested he might not broadcast Monday. He invoked both Stone and Alex Jones in his comments. Chuck Ross laid out some of this here, including that he invoked Jeremiah 20:11, presumably as a veiled attack on Mueller.

But the Lord is with me as a mighty terrible one; therefore my persecutors shall stumble, and they shall not prevail; they shall be greatly ashamed; for they shall not prosper; their everlasting confusion shall never be forgotten,

Corsi also invokes Jesus’ superior access to truth before Pontius Pilate.

What Ross doesn’t lay out — but I have — is that Roger Stone’s excuses for his “Podesta time in a barrel” comments seem to be a retroactive excuse for some attacks he and Corsi made on John Podesta that seem to reflect some pre-knowledge that the Podesta emails Russia leaked in October 2016 would include information on Podesta’s ties to Joule Unlimited. Corsi returned to the attack in October 2016 even before WikiLeaks started releasing the emails and Stone adopted without showing signs of reading the emails he relied on. The awareness that the Podesta dump would include emails on Joule seems to date back to mid-August 2016, precisely the period when Stone (and his associate, Lee Stranahan) were first engaging with Guccifer 2.0, and it happened just two weeks after Stone flipflopped on his claimed beliefs about who did the DNC hack.

So, in his broadcast, Corsi suggests something about his two month cooperation with Mueller coming to a head, and he may have been the means by which Stone knew of what the Podesta emails included ahead of time. But with all that, Corsi’s lawyer suggests Stone is the one with the really serious exposure.

It may be that Mueller is pressuring Corsi to cop a plea deal. That might explain two months of close work with Mueller’s team. But Corsi’s concerns about his immediate future may, instead, suggest that Mueller has immunized Corsi, because if he refused to testify about something having immunity, then he could be jailed right away.

As I’ve laid out, in the hearing on Andrew Miller’s challenge yesterday, Michael Dreeben seemed to be arguing about which actions Mueller could take without getting Matt Whitaker’s approval first.

Prosecutors do this all the time. They seek immunity. They make plea agreements,. They bring indictments.

[snip]

We have to get approval requires just like US Attorneys do. If we want to subpoena a member of the media, or if we want to immunize a witness, we’re encouraged if we’re not sure what the policy or practice is, to consult with the relevant officials in the Department of Justice. If we wanted to appeal an adverse decision, we would have to get approval of the Solicitor General of the United States. So we’re operating within that sort of supervisory framework.

While none of those issues pertain to Miller, all of them might apply to Corsi, including the subpoena for a journalist. To prevent any of these actions — immunizing a witness, making a plea agreement, or even bringing indictments — Whitaker would have to deem them “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

Perhaps Corsi is praying that Whitaker will rescue him from Mueller-as-Pontius Pilate by deeming that conspiring with Russian assets to attack a political opponent is totally normal?

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In Thursday Hearing, Mueller’s Team Gets Specific about What They Can Do without Whitaker’s Pre-Approval

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Yesterday, the DC Circuit held a hearing on Roger Stone aide Andrew Miller’s challenge of a grand jury subpoena. To make it crystal clear that the issues may have changed when Trump forced Jeff Sessions’ resignation the day before, the very first thing Judge Karen Henderson did was to instruct the sides to “Argue this case as if it were being argued yesterday morning.” She said then that they’d probably ask the lawyers to brief how Matt Whitaker’s appointment changed things, and today the panel ordered 10 page briefs, “addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.” Those briefs aren’t due until November 19, suggesting there won’t be an immediate resolution to Miller’s testimony.

But it was just as interesting how the Whitaker hiring may have influenced what the parties said yesterday.

Whitaker’s nomination undermines the Miller/Concord challenge to Mueller

Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.

Dreeben lays out the scope of what Mueller can do with Whitaker in charge

I’m more fascinated by subtle ways that the nomination may be reflected in Michael Dreeben’s comments, though.

In their response to Miller’s challenge, Mueller’s team laid out that they had close supervision from Rod Rosenstein, but they didn’t get into specifics. It describes how the Attorney General receives information (in the form of urgent memos), and the AG can demand an explanation and intervene if he finds an action to be “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

The Special Counsel readily meets this test. The Attorney General receives a regular flow of information about the Special Counsel’s actions; he can demand an explanation for any of them; and he has power to intervene when he deems it appropriate to prevent a deviation from established Departmental practices. The regulation envisions deference by requiring the Attorney General to stay his hand unless he determines that an action is “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” 28 C.F.R. § 600.7(b) (emphasis added). But while the Attorney General must “give great weight to the views of the Special Counsel,” id., the provision affords the Attorney General discretion to assert control if he finds the applicable standard satisfied. This authority—coupled with the Attorney General’s latitude to terminate the Special Counsel for “good cause, including violation of Departmental policies,” 28 C.F.R. § 600.7(d)—provides substantial means to direct and supervise the Special Counsel’s decisions.

And the brief describes how Mueller has to ask for resources (though describes that as happening on a yearly basis) and uphold DOJ rules and ethical duties.

The Special Counsel is subject to equally “pervasive” administrative supervision and oversight. The Attorney General controls whether to appoint a Special Counsel and the scope of his jurisdiction. 28 C.F.R. § 600.4(a)-(b). Once appointed, the Special Counsel must comply with Justice Department rules, regulations, and policies. Id. § 600.7(a). He must “request” that the Attorney General provide Department of Justice employees to assist him or allow him to hire personnel from outside the Department. Id. § 600.5. The Special Counsel and his staff are “subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice.” Id. § 600.7(c). And, each year, the Attorney General “establish[es] the budget” for the Special Counsel and “determine[s] whether the investigation should continue.” Id. § 600.8(a)(1)-(2). The Attorney General’s initial control over the existence and scope of the Special Counsel’s investigation; his ongoing control over personnel and budgetary matters; his power to impose discipline for misconduct or a breach of ethical duties; and his authority to end the investigation afford the Attorney General substantial supervision and oversight, which supplements the Attorney General’s regulatory power to countermand the Special Counsel’s investigative and prosecutorial decisions. [my emphasis]

Significantly (given the Calebresi argument) the Mueller team briefed that US Attorneys are also inferior officers, though they get to act without pre-approval.

Miller asserts that the Special Counsel has the authority to make final decisions on behalf of the United States because the regulation “nowhere require[s] the Special Counsel to seek approval or get permission from the [Attorney General] before making final decisions about who to investigate, indict, and prosecute.” Br. 22. That was also true of United States commissioners—who could issue warrants for the arrest and detention of defendants—but who nonetheless “are inferior officers.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 353 (1931). And it is true for United States Attorneys, 28 U.S.C. § 547, who are also inferior officers. See Myers v. United States, 272 U.S. 52, 159 (1926); Hilario, 218 F.3d at 25-26; United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999); United States Attorneys—Suggested Appointment Power of the Attorney General— Constitutional Law (Article II, § 2, cl. 2), 2 Op. O.L.C. 58, 59 (1978) (“U.S. Attorneys can be considered to be inferior officers”).3 Few inferior-officer positions require a supervisor to review every single decision. See, e.g., Edmond, 520 U.S. at 665; C46 n.22. Thus, the Special Counsel’s authority to act without obtaining advance approval of every decision cannot transform the Special Counsel into a principal officer, requiring presidential appointment and Senate confirmation.

[snip]

More recently, Congress has enacted legislation allowing for the appointment of U.S. Attorneys by the President, with the advice and consent of the Senate, 28 U.S.C. § 541(a); by a court, id. § 546(d); or by the Attorney General, id. § 546(a)—the latter two appointment authorities manifesting Congress’s understanding that U.S. Attorneys are inferior officers. And every court that has considered the question has concluded that U.S. Attorneys are inferior officers. Thus, to the extent that the Special Counsel “can be accurately characterized as a U.S. Attorney-at-Large,” Br. 17; see 28 C.F.R. § 600.6 (Special Counsel has the “investigative and prosecutorial functions of any United States Attorney”), the Special Counsel, like any U.S. Attorney, would fall on the “inferior officer” side of the line.

This latter argument doesn’t address the Miller/Concord claim that Mueller should have been Senate approved, but that’s part of why the Whitaker appointment is so damaging to this argument.

Compare all that with what Dreeben did yesterday. He specifically listed things that prosecutors — whether they be AUSAs or US Attorneys (though a later argument could point out that AUSAs need the approval of a USA) — do all the time: seek immunity, make plea deals, and bring indictments.

Prosecutors do this all the time. They seek immunity. They make plea agreements,. They bring indictments.

Dreeben later specified specifically what they’d need to get pre-approval for: subpoenaing a member of the media or, in some cases, immunizing a witness.

We have to get approval requires just like US Attorneys do. If we want to subpoena a member of the media, or if we want to immunize a witness, we’re encouraged if we’re not sure what the policy or practice is, to consult with the relevant officials in the Department of Justice. If we wanted to appeal an adverse decision, we would have to get approval of the Solicitor General of the United States. So we’re operating within that sort of supervisory framework.

But otherwise, per Dreeben’s argument yesterday, they wouldn’t need Whitaker to pre-approve most actions, including indictments — only to respond to an urgent memo by saying such an action was outside normal DOJ behavior.

Given my suspicions that John Kelly may be the Mystery Appellant challenging a Mueller request, Dreeben’s very detailed description of US v. Nixon’s assumptions about special prosecutors is particularly notable. His comments were intended to use US v. Nixon to support the existence of prosecutors with some independence. He very specifically describes how US v. Nixon means that the President can’t decide what evidence a prosecutor obtains in an investigation.

The issue in that case was whether a dispute was justiciable when the President of the United States exerted executive privilege over particular tapes and a special prosecutor was preceding in court in the sovereign interests of the United States to obtain evidence for a pending criminal case. And the President’s position was, I’m President of the United States. I’m vested with all executive authority, I decide what evidence is to be used in a criminal case. This is just a dispute between me and someone who is carrying out on a delegated basis a portion of my authority, it is therefore not justiciable. And the Supreme Court’s reasoning was, well, it actually is, because under a legal framework, the President does not have day-to-day control over individual prosecutions. That authority is vested in the Attorney General who is the representative of the United States as sovereign, in court. And he, exercising the powers under 28 USC 515, 533, and a couple of other statutes that dealt with powers being vested in the Attorney General and powers being delegated down, but acting pursuant to those powers, appointed a special prosecutor and vested him with a unique set of powers and those powers enabled him to go into court and to meet head to head in an adversarial proceeding the President’s claim as President that particular tapes were covered by Executive Privilege as against the sovereign’s claim through the special prosecutor that these tapes were relevant and admissible in a pending criminal case. [my emphasis]

None of this is a revolutionary interpretation of US v. Nixon. But the mystery dispute pertains to Kelly’s testimony — or some other move on the part of the White House to dictate what Mueller can and cannot do — then the language is notable, particularly given that two of the judges in yesterday’s hearing, Judith Rogers and Sri Srinivasan, have been the judges working on the mystery appeal.

Notably, along with submitting their brief in that appeal yesterday, Mueller’s team submitted a sealed appendix.

This sealed supplemental appendix may pertain to something Mueller just got, which would suggest that appeal may have everything to do with why Sessions was fired right away.

We’ll learn more when Mueller submits his brief on November 19 (though by then this will likely be ancient history).

But it sure seems like Dreeben was making the first argument about limits to how much Whitaker can tamper in the Mueller investigation.

 

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John Kelly’s Legally Fraught Role in the Sessions Ouster

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Much attention is now being focused on the suitability of Matt Whitaker to server as Acting AG without having been Senate approved. I think there’s one more issue with it that I’ll return to.

But there’s another legally problematic part of the process of forcing Jeff Sessions to resign and appointing Whitaker as his replacement: John Kelly’s role in it.

That’s because Mueller asked John Kelly for an interview sometime around June. It was one of the first things the legally competent Emmet Flood did to assert a newly combative stance on the part of the White House.

Mr. Trump’s lawyers are quietly more combative, too, contesting a request from the special counsel to interview John F. Kelly, the White House chief of staff. Emmet T. Flood, the lead White House lawyer in dealing with the investigation, has demanded to know what investigators want to ask Mr. Kelly and has tried to narrow the scope of their questions. A month after the request was made, Mr. Kelly has not been questioned, though a White House official said he was willing to be.

Significantly, this was not an Executive Privilege claim, but rather a demand that Mueller tell Flood what questions he would ask Kelly. It’s entirely unclear what basis Flood invoked legally: the bullshit Executive Privilege without claiming it claims Trump has relied on thus far, an argument that he needed to know if the President would invoke Executive Privilege in response to a range of questions, or a stance that the White House can have some kind of visibility into the workings of the grand jury investigating the President.

As I have said, I think John Kelly is a likely candidate to be the Mystery Appellant, challenging some kind of Mueller demand in the DC Circuit (significantly, before some of the same judges who yesterday heard Andrew Miller’s subpoena challenge).

One way or another, Kelly is among the people about whom there is the most active dispute legal between the Special Counsel and the White House, a fight picked by the legally competent Emmet Flood.

And Kelly was the person who forced Jeff Sessions to resign on Wednesday. As far as is public (and there’s surely a great deal that we have yet to learn about who was in the decision to force Sessions to resign and when that happened and who dictated the form it would take).

But Kelly had the key role of conveying the President’s intent, in whatever form that intent was documented, to Sessions. If Trump’s past firings are any precedent, Kelly had a very big role in deciding how it would happen.

So the guy whose testimony Mueller may be most actively pursuing (indeed, one who might even be in a legal dispute with), effectuated a plan to undercut Mueller’s plans going forward.

That seems to create a whole slew of other potential legal problems no one has yet considered.

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Trump Won’t Hand in His Open Book Test Until He Checks His Answers with Matt Whitaker and Putin

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Rudy is working the press today (CNN, Politico), describing how the President’s advisors are trying to decide whether to hand in the open book test Mueller gave him back in October. He says he’s pretty sure that his client will get a 90% grade on his open book test.

“The questions they gave us, if they don’t know the answer to 90 percent of them now, I’d be shocked,” Giuliani said. “I guess the only thing I can do is, if they get his answers — if that’s what happens — is they’re going to check it against what they thought his answers were going to be, and I think it’s going to come out almost 100 percent.”

But his client is not going to turn in his open book test until he returns from Paris and thinks about it for a day.

A meeting with Trump to make a final decision on the first round of questions is expected soon after the president returns Sunday night from his trip to Paris for the 100th anniversary of the end of World War I, Guiliani said.

“We’re close,” Giuliani said. “I think the only thing that throws us off a little, which we explained to [Mueller], is that the president’s going to be away for about three, four days.”

“So, before we make a final decision — which I’m not sure I could tell you what that is, although I think we have an idea right now — but before we can make it, we really want the president to have a day home where he can just think about it, make sure he’s comfortable with it and then we’ll tell [Mueller] what the decision is,” the president’s lawyer added.

Of course, by the time this happens, Matt Whitaker will presumably have been briefed on the investigation — a briefing the contents of which he can share with Trump. And, depending on whether you think the Kremlin or the White House is a better source on these things, Trump will also have met with Vladimir Putin for lunch on Sunday.

As a reminder: The Watergate special prosecutor did not have to, and did not, wait for Nixon’s answers before he dropped the big conspiracy indictment. I’m not sure Mueller will, either. Indeed, I think it at least possible that this year long process of negotiating with Rudy and others about Trump questions has been a ploy to buy time, working Rudy’s mistaken assumption that Mueller thinks he needs Trump’s answers.

So all Rudy’s spinning about this open book test may actually be hurting his client.

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Trump Risks that Every Action Matt Whitaker Takes as Attorney General Can Be Legally Challenged

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George Conway (Kellyanne’s spouse, whom Trump considered to be Solicitor General) continues his habit of criticizing Trump from a conservative legal stance. This time, he joins Neal Katyal, author of the Special Counsel regulations under which Mueller operates, to argue that Trump’s appointment of Matt Whitaker is unconstitutional because Trump can’t name someone who hasn’t been Senate confirmed when a Senate confirmed candidate is available. The whole op-ed — which relies on a recent Clarence Thomas concurrence — is worth reading, but my favorite line is where they call Whitaker a constitutional nobody.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

I’m just as interested in what three rising Democratic House Chairs (House Judiciary Committee’s Jerrold Nadler, HPSCI’s Adam Schiff, and Oversight and Government Reform’s Elijah Commings) did, along with Dianne Feinstein. In the wake of Jeff Sessions’ resignation, they sent letters to every relevant department warning them to preserve all records on the Mueller investigation and Sessions’ departure. In their press release, they referred to Sessions departure not as a resignation, but as a firing.

Last night, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Intelligence Committee Ranking Member Adam Schiff (D-CA), Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD), and Senate Judiciary Committee Ranking Member Dianne Feinstein sent letters to top Administration officials demanding the preservation of all documents and materials relevant to the work of the Office of the Special Counsel or the firing of Attorney General Jeff Sessions.

In their letters, the Members wrote:  “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office, and preservation of records is critical to ensure that we are able to do our work without interference or delay. Committees will also be investigating Attorney General Sessions’ departure. We therefore ask that you immediately provide us with all orders, notices, and guidance regarding preservation of information related to these matters and investigations.”

Letters were sent to the White House Counsel Pat Cipollone, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Gina Haspel, Deputy U.S. Attorney for the Southern District of New York Robert Khuzami, Treasury Secretary Steven Mnuchin, NSA Director Paul Nakasone, IRS Commissioner Charles Rettig, and Acting Attorney General Matt Whitaker. [my emphasis]

Even the letters themselves, while they don’t use the word “firing,” emphasize the involuntary nature of Sessions’ ouster.

Our understanding is that Attorney General Jeff Sessions has been removed at the request of the President. We ask that you confirm that the Justice Department has preserved all materials of related to any investigations by the Special Counsel’s office, including any related investigations conducted by any component of the Justice Department. We also ask that you preserve all the materials related to the departure of Attorney General Sessions.

While it’s not clear whether they more basis to believe this was a firing rather than a resignation, they’re proceeding as if it was, legally, a firing. That’s crucial because the only way that Whitaker’s appointment, as someone who is not Senate confirmed, would be legal under the Vacancies Reform Act is if Sessions legally resigned. The Democrats seem to suspect they can argue he did not.

And that’s important because (as Katyal and Conway argue) if his appointment is not legal, than nothing he does as Attorney General is valid.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

Plus, by demanding preservation of the records and framing this in terms that suggest Whitaker’s appointment was not legal (I’m not sure I agree, but encourage HJC to ask Katyal and Conway to argue the case for them), HJC lays out a basis to claim standing to challenge this, particularly if and when Whitaker makes a decision (such as preventing HJC from obtaining any report Mueller writes) that will cause them injury as an independent branch of government.

Again, I’m not sure I agree with the Katyal/Conway legal argument, though if HJC can prove that Sessions was fired then it’s clear Whitaker was not legally appointed. But these two challenges pose a real risk for Trump. It risks not just decisions pertaining to the Mueller investigation, but even things like surveillance approvals, can be challenged by anyone harmed by them (who gets notice of it). That’s an unbelievable risk for a position as important as Attorney General.

Back when a guy named Robert Mueller had his FBI tenure extended two years in 2011, Tom Coburn worried that even that action, done with Senate approval, would make the approvals Mueller made under Section 215 (this was before we knew the scope of the phone dragnet) legally suspect.

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

Coburn was worried about one (or a few) surveillance programs. The Attorney General touches far more than the FBI Director, and Trump’s DOJ could spend just as much time in court trying to defend the actions of his hatchetman.

And it looks like both the author of the statute governing Mueller’s appointment and the people who will oversee DOJ in a few months have real questions about the legality of Whitaker’s appointment.

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Matt Whitaker Has Authority to Share Proceedings of National Security Grand Jury Investigations with Trump

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Just over a year ago, I worried that if and when Brian Benczkowski was confirmed as DOJ Criminal Division chief, it would probably provide Trump with a mole in the Mueller investigation. It took Benczkowski a long time, but after he was confirmed on July 11 of this year, he may have gotten visibility into parts of the Mueller investigation that relied on Criminal Division resources.

Whether or not Benczkowski shared anything he may have learned with Trump, we can be fairly certain that Matt Whitaker, whom Trump has just made Acting Attorney General, could share the information. Authority to do so stems from an OLC memo Jay Bybee wrote back in 2002.

Benczkowski could share information about wiretaps and proceedings from the grand jury directly with the president.

The cause for concern comes from an old Department of Justice interpretation of the PATRIOT Act. Along with expanding surveillance authorities, the PATRIOT Act permitted any government lawyer to share national security-related grand jury or wiretap information with any government official as long as it would help them perform their job better. The measure was passed in response to the September 11 attacks, with an eye to sharing counterterrorism information more broadly. But the authorization of such sharing explicitly extended to “clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power”—precisely the kind of nation-state spying at the heart of the Russian investigation.

A July 22, 2002, memo from the Justice Department’s Office of Legal Counsel, written by Jay Bybee, the author of the infamous torture memos, held that, under the statute, the president could get grand jury information without the usual notice to the district court.

[snip]

Bybee’s memo relies on and reaffirms several earlier memos. It specifically approves two rationales for sharing grand jury information with the president that would be applicable to the Russian investigation. A 1997 memo imagined that the president might get grand jury information “in a case where the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated by the grand jury investigation.” And a 2000 memo imagined that the president might need to “obtain grand jury information relevant to the exercise of his pardon authority.”

The memo envisioned such authority to be delegable, but ultimately puts the AG in charge of deciding what information the President gets.

The 2002 memo generally supports the notion that the attorney general should decide whether the president needs to see a particular piece of information.

And it doesn’t require any paper trail for the sharing of such information.

And the memo cites an old opinion from the Iran-Contra scandal to argue that the president doesn’t have to memorialize any such delegations in writing. “Such a directive may be set forth in a formal executive order, in a less formal presidential memorandum, … or pursuant to an oral instruction from the President to the Attorney General or other appropriate officials.” So Trump could order someone to share information without leaving a paper trail.

Given that the entire purpose of this move seems to be about tampering with the Mueller inquiry, we should assume Whitaker will do as imagined, and let the President know what Mueller has been up to.

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Has This Been the Plan Since August 2017?

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Maggie Haberman just observed that Jeff Sessions’ resignation letter is not dated. (Update: NYCSouthpaw actually noted that before Maggie did.) While some of the details in it — such as his claim to have “prosecuted the largest number of violent offenders and firearm defendants in our nation’s history” — seem to reflect the full 22 months of his tenure, nothing in it clearly marks it as having been written today. So I think that is what probably happened.

But there’s a scenario that makes me wonder whether this isn’t what Trump has been planning since July 2017, the last time Trump got really furious with Jeff Sessions.

Consider this timeline:

July 19, 2017: Maggie and Mike tee up a question (obviously working from the White House script) about how investigating Trump’s finances would represent crossing a red line.

On July 25 and 26, 2017, Trump took to Twitter to bitch about Sessions.

July 26, 2017: In a CNN interview, Whitaker describes how you could defund the Special Counsel and thereby end his work.

I could see a scenario where Jeff Sessions is replaced, it would recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt.

On July 27, 2017, Whitaker said it would be a mistake to provide Mueller any further protection.

August 4, 2017: Whitaker recommends an article that describes, “with a little planning he could install a true believer to a political position at DOJ—as a sleeper agent—and then (after easing out Sessions) elevate him or her to attorney general.”

August 6, 2017: Whitaker uses the Red Line comment Maggie and Mike teed up to describe Mueller pursuing Trump’s finances as improper.

On August 25, 2017, Whitaker suggested searching Manafort’s condo with a dozen agents was designed to intimidate him.

On September 22, 2017, Whitaker was hired to be Sessions’ Chief of Staff.

In other words, Trump may have been pursuing this plan since July 2017.

If so, then Mueller may have already anticipated that, because he asked four questions about that episode in March, as well as questions about what he did in response to Sessions’ earlier recusal.

  • What did you think and do regarding the recusal of Mr. Sessions?
  • What efforts did you make to try to get him to change his mind?
  • Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
  • What did you think and what did you do in reaction to the news of the appointment of the special counsel?
  • Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
  • What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
  • What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
  • What was the purpose of your July 2017 criticism of Mr. Sessions?

Whatever it was, Trump obtained Sessions’ resignation before today’s press conference, so it’s possible Whitaker already tried to move against Mueller today, relying on the ground work he laid over a year ago.

The one thing that would suggest otherwise is the plea deal Manafort entered. I’ve argued that it is pardon proof, partly because it would include state charges and partly because Manafort would lose all his ill-gotten gains if Trump didn’t pardon him first. For reasons I won’t write up yet, I’m not sure that’s entirely true (though Manafort has provided a lot of information in the last several months).

That’d be way better planning than Trump has pulled off on any other thing. But then, protecting himself is the thing he’s best at.

Update: I’ve added a few things to this timeline.

Update: According to John Q Barrett, who spent some time in the CNN Green Room last year, his entire point for going on CNN was to curry favor with Trump.

Whitaker told me in June 2017 that he was flying out from Iowa to NYC to be on CNN regularly because he was hoping to be noticed as a Trump defender, and through that to get a Trump judicial appointment back in Iowa.

And this (very detailed) WaPo piece describes Trump as telling aides he would not recuse, which raises questions about whether Whitaker told him so directly.

Trump has told advisers that Whitaker is loyal and would not have recused himself from the investigation, current and former White House officials said.

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Matt Whitaker Can’t Prevent Mueller from Unsealing Any Sealed Indictments

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After spending a 1.5 hour press conference denying he “colluded” with Russia, Trump just proved he did by forcing Jeff Sessions to resign. He announced Sessions’ Chief of Staff, Matt Whitaker, will be the Acting Attorney General. DOJ has already announced Whitaker will take over oversight of the Mueller investigation. Before he was even hired as CoS, Whitaker pointed to the Red Line Trump’s stenographers at the NYT teed up for him, suggested Mueller had crossed it, and that that represented going too far.

He has also laid out how to kill the Mueller investigation — by defunding it.

I could see a scenario where Jeff Sessions is replaced, it would recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt.

It’s all going as I predicted it might in this TNR piece last week.

All that said, Mueller was surely expecting just such an eventuality. And the fact that they got Roger Stone attorney Tyler Nixon to testify Friday suggests they were prepping for it, getting the last bit of evidence against Stone in place.

The only question is whether they got the grand jury to approve whatever indictments they were working on. I’d be surprised if Mueller didn’t (unless Rod Rosenstein prevented him from doing so).

If that’s the case, then Whitaker is not going to help Trump get out of his legal troubles. That’s because Chief Judge Beryl Howell, not Whitaker, will make the decision about unsealing anything sealed in this grand jury investigation.

So if Mueller prepared for this very predictable eventuality, then Trump may have just fired a key player in his racist agenda for naught.

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