Sessions Recusal: Election And/Or Russia?

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Back when Jeff Sessions recused from the investigation into Trump, I noted that it was actually fairly narrow. He recused from election-related issues, but said nothing about Russia.

[T]he only thing he is recusing from is “existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

There are two areas of concern regarding Trump’s ties that would not definitively be included in this recusal: Trump’s long-term ties to mobbed up businessmen with ties to Russia (a matter not known to be under investigation but which could raise concerns about compromise of Trump going forward), and discussions about policy that may involve quid pro quos (such as the unproven allegation, made in the Trump dossier, that Carter Page might take 19% in Rosneft in exchange for ending sanctions against Russia), that didn’t involve a pay-off in terms of the hacking. There are further allegations of Trump involvement in the hacking (a weak one against Paul Manafort and a much stronger one against Michael Cohen, both in the dossier), but that’s in no way the only concern raised about Trump’s ties with Russians.

Which is why I was so interested that Jim Comey emphasized something else in his testimony (see this post on this topic) — issues pertaining to Russia. [my emphasis throughout]

We concluded it made little sense to report it to Attorney General Sessions, who we expected would likely recuse himself from involvement in Russia-related investigations. (He did so two weeks later.)

This came up in his hearing yesterday, as well. First Wyden asked why Sessions was involved in Comey’s firing if he got fired for continuing to investigate Mike Flynn’s ties to Russia.

WYDEN: Let me turn to the attorney general. In your statement, you said that you and the FBI leadership team decided not to discuss the president’s actions with Attorney General Sessions, even though he had not recused himself. What was it about the attorney general’s interactions with the Russians or his behavior with regard to the investigation that would have led the entire leadership of the FBI to make this decision?

COMEY: Our judgment, as I recall, is that he was very close to and inevitably going to recuse himself for a variety of reasons. We also were aware of facts that I can’t discuss in an opening setting that would make his continued engagement in a Russia-related investigation problematic. So we were convinced — in fact, I think we’d already heard the career people were recommending that he recuse himself, that he was not going to be in contact with Russia-related matters much longer. That turned out to be the case.

WYDEN: How would you characterize Attorney General Sessions’s adherence to his recusal? In particular, with regard to his involvement in your firing, which the president has acknowledged was because of the Russian investigation.

COMEY: That’s a question I can’t answer. I think it is a reasonable question. If, as the president said, I was fired because of the Russia investigation, why was the attorney general involved in that chain? I don’t know.

Then Kamala Harris asked whether there had been any official guidance on recusal.

HARRIS: Thank you. As a former attorney general, I have a series of questions in connection with your connection with the attorney general while you were FBI director. What is your understanding of the parameters of Attorney General Sessions’ recusal from the Russia investigation?

COMEY: I think it’s described in a written release from DOJ which I don’t remember sitting here but the gist is he will be recused from all matters relating to Russia or the campaign. Or the activities of Russia and the ’16 election or something like that.

HARRIS: So, is your knowledge of the extent of the recusal based on the public statements he’s made?

COMEY: Correct.

HARRIS: Is there any kind of memorandum issued from the attorney general to the FBI outlining the parameters of his recusal?

COMEY: Not that I’m aware of.

In every comment, Comey emphasized the Russian aspect. Indeed, most of his comments only mention Russia; just one instance mentions the election.

Indeed, yesterday’s hearing made it clear that Comey believed Sessions should be recused from Russia-related issues because of unclassified issues that include his undisclosed two (now three) conversations with Russian Ambassador Sergey Kislyak.

After yesterday’s hearing, DOJ issued a statement (reproduced in its entirely below), and also released an email that appears to serve as the written guidance on Sessions’ recusal. Yesterday’s statement makes the limitation to election-related issues even more explicit.

Given Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone, the Attorney General made the decision on March 2, 2017 to recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

So while the email directive does state Sessions’ recusal “extends to Department responses to Congressional and media inquiries related to any such investigations,” not a single thing from DOJ ever mentions the word Russia.

There are actually many important potential implications of this.

It may mean, for example, that Sessions feels he had every right to help Trump fire Comey for his aggressive investigation in Russian issues — even in spite of the fact that his own actions may be reviewed in the Russian investigation — because the Flynn investigation pertained to issues that happened after the election.

More alarmingly, it may mean that there will be a squabble about the scope of Robert Mueller’s special counsel investigation, which has already started digging into matters of Russian corruption that go back years, because Rod Rosenstein overstepped the scope of his own authority based on the limits of Sessions’ recusal.

Jim Comey thinks that as soon as February 14, it was clear that Sessions had to recuse from Russian related issues. Instead (all the evidence suggests) he recused only from election related issues.

The difference in understanding here is troubling.

Update: A friend notes that Jeff Sessions basically relied on Rod Rosenstein’s letter in recommending Trump fire Comey.

[F]or the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.

The friend suggested that because Comey’s actions implicated the election, that means Sessions intervened in matter pertaining to the election (albeit for Trump’s opponent).

I’m not so sure. The phrasing of Rosenstein’s letter here is critical. Democrats may be angry at Comey for reopening the investigation (and sending a sure-to-leak letter to a stable of GOP Committee Chairs) days before the election. So to Democrats, Comey’s handing of the Hillary investigation pertains to the election.

But Rosenstein frames the issue in terms of “usurp[ing] the Attorney General’s authority” and “supplant[ing] federal prosecutors and assum[ing] control of the Justice Department.” While Rosenstein cites Eric Holder and Donald Ayer describing how Comey’s actions violated long-standing policies pertaining to comments in advance of elections, the Deputy Attorney General himself pitches it as insubordination.

Update: On Twitter Charlie Savage suggested the scope of the recusal could be taken from the language of Comey’s confirmation of the investigation in a HPSCI hearing on March 20, arguing that on March 2, when Sessions recused, the investigation and its ties to campaign members who spoke to Russians had not yet been disclosed.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

Except this statement says nothing about Jeff Sessions’ recusal, and in Thursday’s testimony, Comey said he was unaware of a memo aside from Sessions public statement. As noted above, the email that DOJ has now pointed to says nothing about Russia.

Plus, even if the recusal originally intended to include the secret Russia investigation, the statement written on Thursday, very clearly in response to Comey’s testimony and repeated claims that Sessions had to recuse from Russia-related issues, said the only reason Sessions recused was because of the campaign tie. And as I noted in my original post on the scope of Sessions’ recusal, he played games in his admission of conversations with Sergey Kislyak as to whether they pertained to Russia.

Update: In a March 6 letter to SJC claiming he didn’t need to correct his false testimony on conversations with Sergey Kislyak, Sessions said that his recusal should cover Russian contacts with the Trump transition and administration.

The March 3, 2017, letter also asked why I had not recused myself from “Russian contacts with the Trump transition team and administration.” I understand the scope of the recusal as described in the Department’s press release would include any such matters.

This would seem to conflict with Thursday’s statement.

______________________________________________________________________________

FOR IMMEDIATE RELEASE

THURSDAY, JUNE 8, 2017

DEPARTMENT OF JUSTICE ISSUES STATEMENT ON TESTIMONY OF FORMER FBI DIRECTOR JAMES COMEY

 

WASHINGTON – In response to testimony given today by former FBI Director James Comey, Department of Justice Spokesman Ian Prior issued the following statement:

  • Shortly after being sworn in, Attorney General Sessions began consulting with career Department of Justice ethics officials to determine whether he should recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

Those discussions were centered upon 28 CFR 45.2, which provides that a Department of Justice attorney should not participate in investigations that may involve entities or individuals with whom the attorney has a political or personal relationship. That regulation goes on to define “political relationship” as:

“[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 ***”

Given Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone, the Attorney General made the decision on March 2, 2017 to recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

  • In his testimony, Mr. Comey stated that he was “not *** aware of” “any kind of memorandum issued from the Attorney General or the Department of Justice to the FBI outlining the parameters of [the Attorney General’s] recusal.” However, on March 2, 2017, the Attorney General’s Chief of Staff sent the attached email specifically informing Mr. Comey and other relevant Department officials of the recusal and its parameters, and advising that each of them instruct their staff “not to brief the Attorney General *** about, or otherwise involve the Attorney General *** in, any such matters described.”
  • During his testimony, Mr. Comey confirmed that he did not inform the Attorney General of his concerns about the substance of any one-on-one conversation he had with the President. Mr. Comey said, following a morning threat briefing, that he wanted to ensure he and his FBI staff were following proper communications protocol with the White House. The Attorney General was not silent; he responded to this comment by saying that the FBI and Department of Justice needed to be careful about following appropriate policies regarding contacts with the White House.
  • Despite previous inaccurate media reports, Mr. Comey did not say that he ever asked anyone at the Department of Justice for more resources related to this investigation.
  • In conclusion, it is important to note that after his initial meeting with career ethics officials regarding recusal (and including the period prior to his formal recusal on March 2, 2017), the Attorney General has not been briefed on or participated in any investigation within the scope of his recusal.

# # #

17-631

Two Data Points on Jared Kushner

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I wanted to pull out two data points in this profile of Jared Kushner, completed in the wake of the WaPo story that Kushner attempted to set up a back channel with Russia.

First, as other stories have, this one blames Kushner for encouraging Trump to fire Jim Comey.

But in recent weeks, the Trump-Kushner relationship, the most stable partnership in an often unstable West Wing, is showing unmistakable signs of strain.

That relationship had already begun to fray a bit after Mr. Trump’s dismissal of the F.B.I. director, James B. Comey, which Mr. Kushner had strongly advocated, and because of his repeated attempts to oust Stephen K. Bannon, Mr. Trump’s chief strategist, as well as the president’s overburdened communications team, especially Sean Spicer, the press secretary.

[snip]

Other times, he serves as a goad, as he did in urging Mr. Comey’s ouster and assuring Mr. Trump that it would be a political “win” that would neutralize protesting Democrats because they had called for Mr. Comey’s ouster over his handling of Hillary Clinton’s use of a private email server, according to six West Wing aides.

I’ve pointed out before how the investigation into Mike Flynn might, with his cooperation, put Kushner at risk. But I’m interested in the new detail that Kushner assured his father that Democrats would love the firing of Comey because of Comey’s handling of the Hillary investigation.

I can see how a dummie might believe that. But I’m at least as interested in how pitching that theory for Comey’s firing implicated Rod Rosenstein, insofar as he wrote a letter providing the fig leaf Hillary-based justification for the firing, and thereby led to the naming of Robert Mueller. Rosenstein is still the Acting Attorney General for the Russia investigation now looking more closely at Kushner, and Kushner has effectively already compromised him.

Amid its larger narrative that Kushner and Trump actually haven’t been that close all that long, the NYT also reminds that Kushner got a lot of credit from his father-in-law for reviving the digital aspect of the campaign.

Mr. Kushner’s reported feeler to the Russians even as President Barack Obama remained in charge of American foreign policy was a trademark move by someone with a deep confidence in his abilities that critics say borders on conceit, people close to him said. And it echoes his history of sailing forth into unknown territory, including buying a newspaper at age 25 and developing a data-analytics program that he has said helped deliver the presidency to his father-in-law.

[snip]

Despite the perception that he is the one untouchable adviser in the president’s inner circle, Mr. Kushner was not especially close to his father-in-law before the 2016 campaign. The two bonded when Mr. Kushner helped to take over the campaign’s faltering digital operation and to sell a reluctant Rupert Murdoch, the chairman of Fox News’s parent company, on the viability of his father-in-law’s candidacy by showing him videos of Mr. Trump’s rally during a lunch at Fox headquarters in mid-2015.

There lots of reasons to look askance at Trump’s data program, even before you consider that it was so central in a year where Trump’s opponent got hacked. So I find it notable (which is where I’ll leave it, for now) that Kushner’s role in the digital side of the campaign was so central to his perceived closeness to Trump.

Ultimately, I keep noting that Kushner hasn’t really been part of the Trump family for that long — just eight years. While I certainly believe Trump looks on the father of his grandchildren as part of the family, I’m not sure how much real vetting they’ve done of him (and with this crowed, everyone is corrupt in any case).

It will be interesting to see, going forward, what bases for mutual loyalty — such as it exists between these two men — there are.

Sheldon Whitehouse and the Russia Investigation Deconfliction

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Laura Rozen has me worried.

She pointed to this CNN article — posted sometime this afternoon — describing Sheldon Whitehouse’s worries that the scope of the DOJ inquiry into Trump and Russia might conflict with the Congressional inquiries.

Sen. Sheldon Whitehouse, the top Democrat on a Judiciary subcommittee, told CNN Thursday that it’s possible Flynn is cooperating with the Justice Department — and that Capitol Hill has not been kept in the loop. He warned that congressional probes that have subpoenaed Flynn for records could undercut Mueller’s investigation if the former national security adviser is secretly working with the Justice Department as part of its broader investigation into possible collusion between Russian officials and Trump associates during the campaign season.

“There is at least a reasonable hypothesis that Mike Flynn is already cooperating with the DOJ investigation and perhaps even has been for some time,” said Whitehouse, a Rhode Island Democrat.

Whitehouse added he had no direct evidence to suggest that Flynn is cooperating with the Justice Department. But he said there is circumstantial evidence to suggest that it could be the case, saying Mueller must immediately detail the situation to “deconflict” with probes on the Hill to “make sure that congressional investigations aren’t inadvertently competing with DOJ criminal investigations.”

[snip]

The Rhode Island Democrat said there are number of factors that suggest Flynn is working the Justice Department in its probe. He pointed out that “all reporting indicates they’ve got him dead to rights on a false statement felony” in his private interview with the FBI over his conversations last year with Russian Ambassador Sergey Kislyak. He also noted that Flynn has gone silent and retroactively signed on as a foreign agent to Turkey. And he noted that a federal grand jury has been summoned and has issued subpoenas to Flynn associates.

“So none of that proves anything but it’s all consistent with the hypothesis that he’s already cooperating,” Whitehouse told CNN.

“But that’s certainly a hypothetical case of a time when we do need need this de-confliction apparatus in place to make sure that congressional investigations aren’t inadvertently competing DOJ criminal investigations.”

Now, in point of fact, that deconfliction has already happened — or at least started. That’s what a May 11 meeting between Rod Rosenstein, Richard Burr, and Mark Warner was described as at the time.

Rosenstein was tight-lipped as he entered and emerged from a secure facility Thursday on Capitol Hill, where he huddled with Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Vice Chairman Mark R. Warner (D-Va.). The senators said the meeting had been scheduled before Comey’s ouster to discuss “deconfliction” — keeping the FBI’s and committee’s investigations of alleged ties between the Trump campaign and the Russian government from stepping on each other’s toes.

According to reports, the meeting was scheduled before the Jim Comey ouster, so it should reflect the scope of what he was investigating, and therefore presumably resembles the scope of what Robert Mueller will investigate.

But there are three reasons why Whitehouse might be justified in worrying that Congress might fuck up what DOJ is investigating.

Obviously, the first is Mueller: the Comey firing might have reflected some new investigative approach (including Flynn immunity), or Mueller, because of the firing, might be scoping the investigation differently.

A second is jurisdiction. Whitehouse and Lindsey Graham have assumed jurisdiction over the Russia investigation for their subcommittee — and the Senate Judiciary Committee obviously should oversee the FBI. So it may be that former US Attorney Sheldon Whitehouse wants to have a deconflicting conversation for himself, because he knows how investigations work (and for all we know is getting tips from DOJ).

The other is another announcement from this afternoon: that the Senate Intelligence Committee had voted to give Chair Richard Burr and Vice Chair Mark Warner the ability to issue subpoenas themselves going forward, without consulting the committee.

The leaders of the Senate Intelligence Committee now have broad authority to issue subpoenas in the Russia investigation without a full committee vote, Chairman Richard Burr (R-N.C.) said Thursday.

The panel voted unanimously to give Burr and Vice Chairman Mark Warner (D-Va.) the blanket authority for the duration of the investigation into Russia’s election meddling and possible collusion with President Trump’s campaign.

The two Senate leaders must be in agreement in order to issue an order.

Now, as the article notes, thus far, the committee has asked for documents, not testimony. My suspicion is this might have more to do with ensuring Comey’s testimony — promised after Memorial Day — is “compelled” in such a way that DOJ can’t object.

Nevertheless, the power to subpoena does grant someone (like former Trump National Security Advisor Richard Burr) the ability to fuck with the DOJ investigation by potentially working at cross-purposes. To grant immunity (and therefore to fuck up the investigation as happened in Iran-Contra), I think Burr would still need the support of the committee.

Still, this still gives Burr far more power to thwart the investigation, with only Mark Warner (who unlike Whitehouse has never been a prosecutor) to prevent it.

In theory, I think Whitehouse is just pushing for jurisdiction (and for the ability to demand the same kind of deconfliction conversation Burr and Warner have gotten).

But upon reflection, I don’t think his concerns are entirely unjustified.

In any case, I trust Whitehouse (with whatever leftover ties he has to DOJ) to do this review more than Mark Warner.

Update: Burr told Bloomberg he has had a deconfliction conversation with Mueller.

Senate Intelligence Chairman Richard Burr, a Republican from North Carolina, said he has contacted Mueller to discuss their parallel probes of Russian meddling.

John Brennan Denies a Special Harry Reid Briefing

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This passage from John Brennan’s testimony about Russia to the House Intelligence Committee yesterday has gotten a lot of attention:

Through the so-called Gang of Eight process, we kept Congress apprised of these issues as we identified them. Again, in consultation with the White House, I personally briefed the full details of our understanding of Russian attempts to interfere with the election to Congressional leadership, specifically Senators Harry Reid, Mitch McConnell, Dianne Feinstein, and Richard Burr, and to Representatives Paul Ryan, Nancy Pelosi, Devin Nunes, and Adam Schiff between 11 August and 6 September. I provided the same briefing to each of the Gang of Eight members.  Given the highly sensitive nature of what was an active counterintelligence case involving an ongoing Russian effort to interfere in our presidential election, the full details of what we knew at the time were shared only with those members of Congress, each of whom was accompanied by one senior staff member. The substance of those briefings was entirely consistent with the main judgments contained in the January classified and unclassified assessments, namely that Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton and harm her electability and potential presidency and to help President Trump’s election chances.

The passage has been used to question why GOP leaders, most especially Mitch McConnell, didn’t react more strongly, particularly given public reports that he wouldn’t sign onto a more aggressive statement about Russian efforts.

As I noted in this post, the record thus far reflects a difference in emphasis (on protecting the election systems rather than on Russian attempts to hurt Clinton).

But I want to look more closely at what Brennan actually said.

His description of the briefings seems to be a denial of what I laid out in this post — the NYT report that he gave Harry Reid a special briefing (one which may have been based on the Christopher Steele dossier) that was more alarming than others.

CIA DIRECTORS SHOULD NOT MEET WITH JUST ONE GANG OF EIGHT MEMBER

The second detail I find most interesting in this story is that John Brennan privately briefed Harry Reid about his concerns about the Russians.

John O. Brennan, the C.I.A. director, was so concerned about the Russian threat that he gave an unusual private briefing in the late summer to Harry Reid, then the Senate Democratic leader.

Top congressional officials had already received briefings on Russia’s meddling, but the one for Mr. Reid appears to have gone further. In a public letter to Mr. Comey several weeks later, Mr. Reid said that “it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government — a foreign interest openly hostile to the United States.”

While I’m generally sympathetic to Democrats’ complaints that DOJ should have either remained silent about both investigations or revealed both of them, it was stupid for Brennan to give this private briefing (and I hope he gets grilled about it by HPSCI when he testifies in a few weeks). In addition to the things Reid said publicly about the investigation, it’s fairly clear he and his staffers were also behind some of the key leaks here (and, as CNN reported yesterday, leaks about the investigation actually led targets of it to alter their behavior). For reasons beyond what appears in this story, I think it likely Reid served as a cut-out for Brennan.

And that’s simply not appropriate. There may well have been reasons to avoid briefing Richard Burr (who was advising Trump). But spooks should not be sharing information with just one party. CIA did so during its torture cover-up in ways that are particularly troubling and I find this — while not as bad — equally problematic.

When Brennan said he “provided the same briefing to each of the Gang of Eight members,” he might be seen as denying that the briefing to Reid was anything unusual.

Except this NYT article describes Reid’s as taking place in “late summer” and describes top officials as already having received briefings. Another NYT article describes the special briefing for Reid as having taken place on August 25.

In an Aug. 25 briefing for Harry Reid, then the top Democrat in the Senate, Mr. Brennan indicated that Russia’s hackings appeared aimed at helping Mr. Trump win the November election, according to two former officials with knowledge of the briefing.

The officials said Mr. Brennan also indicated that unnamed advisers to Mr. Trump might be working with the Russians to interfere in the election. The F.B.I. and two congressional committees are now investigating that claim, focusing on possible communications and financial dealings between Russian affiliates and a handful of former advisers to Mr. Trump. So far, no proof of collusion has emerged publicly.

Mr. Trump has rejected any suggestion of a Russian connection as “ridiculous” and “fake news.” The White House has also sought to redirect the focus from the investigation and toward what Mr. Trump has said, with no evidence, was President Barack Obama’s wiretapping of phones in Trump Tower during the presidential campaign.

The C.I.A. and the F.B.I. declined to comment for this article, as did Mr. Brennan and senior lawmakers who were part of the summer briefings.

In the August briefing for Mr. Reid, the two former officials said, Mr. Brennan indicated that the C.I.A., focused on foreign intelligence, was limited in its legal ability to investigate possible connections to Mr. Trump. The officials said Mr. Brennan told Mr. Reid that the F.B.I., in charge of domestic intelligence, would have to lead the way.

As described by the NYT, the Reid briefing went beyond what Brennan says he briefed all the Gang of Eight members on, specially with regards to Trump advisors working with Russia. It’s possible Brennan briefed Reid twice.

Much later in the hearing, Trey Gowdy asked Brennan about the Steele dossier. Some of Brennan’s responses — especially his claim not to know who commissioned the Steele dossier; watch him play with his pen — were not all that believable. Brennan went on to say that the CIA didn’t rely on the dossier, but his denial pertained to the IC report on the hack.

It wasn’t part of the corpus of intelligence, uh, information that we had. It was not in any way used as a basis for the intelligence community assessment that was done, uh, it was not.

Note the funny mouth gesture which used to be Brennan’s main “tell.”

Gowdy being Gowdy was not smart enough to ask whether the dossier was ever used in a briefing to members of Congress.

As I have noted, the IC denials pertaining to the dossier are, um, unconvincing (one two three). That’s all the more true given that Steele has admitted to sharing copies of his dossier with his former employer, who would naturally share with Brennan (elsewhere in the hearing Brennan refused to address what our foreign partners had shared with us).

In any case, it seems to me the question is not so much whether McConnell blew off the seriousness of the Brennan warning, but, still, whether Reid received another briefing–perhaps outside that date scope–that included information McConnell didn’t get.

Did Pompeo Also Get an Obstruction Call from Trump?

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The WaPo reports that Trump called both Admiral Mike Rogers and Dan Coats to ask if they could issue statements denying any collusion between Trump’s campaign and Russia.

Trump made separate appeals to the director of national intelligence, Daniel Coats, and to Adm. Michael S. Rogers, the director of the National Security Agency, urging them to publicly deny the existence of any evidence of collusion during the 2016 election.

Coats and Rogers refused to comply with the requests, which they both deemed to be inappropriate, according to two current and two former officials, who spoke on the condition of anonymity to discuss private communications with the president.

If Trump was calling spooks, he presumably would have called all spooks, including CIA Director Mike Pompeo (with whom he is probably closer than the other two). So why aren’t we hearing about that call? Is Pompeo just better at keeping secrets than his counterparts? Or is he hiding it because he didn’t object as strongly as his counterparts?

The Kushner-Comey Connection

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The WaPo is reporting that the FBI probe into ties between Russia and Trump’s campaign is looking at a person still in the White House, in addition to Mike Flynn and Paul Manafort.

The law enforcement investigation into possible coordination between Russia and the Trump campaign has identified a current White House official as a significant person of interest, showing that the probe is reaching into the highest levels of government, according to people familiar with the matter.

Further down in the article, WaPo names some people that might be this other person of interest — but just one of them is actually in the White House.

Current administration officials who have acknowledged contacts with Russian officials include President Trump’s son-in-law, Jared Kushner, as well as Attorney General Jeff Sessions and Secretary of State Rex Tillerson.

Still further down, the WaPo covers what first got me believing Jared Kushner is the ultimate target of this probe: his meeting with Sergey Gorkov, the FSB-trained head of the sanctioned Russian bank, Vnesheconombank.

The White House also has acknowledged that Kushner met with Kislyak, the Russian ambassador to the United States, in late November. Kushner also has acknowledged that he met with the head of a Russian development bank, Vnesheconombank, which has been under U.S. sanctions since July 2014. The president’s son-in-law initially omitted contacts with foreign leaders from a national security questionnaire, though his lawyer has said publicly he submitted the form prematurely and informed the FBI soon after that he would provide an update.

Vnesheconombank handles development for the state, and in early 2015, a man purporting to be one of its New York-based employees was arrested and accused of being an unregistered spy.

That man — Evgeny Buryakov — ultimately pleaded guilty and was eventually deported. He had been in contact with former Trump adviser Carter Page, though Page has said he shared only “basic immaterial information and publicly available research documents” with the Russian. Page was the subject of a secret warrant last year issued by the Foreign Intelligence Surveillance Court, based on suspicions he might have been acting as an agent of the Russian government, according to people familiar with the matter. Page has denied any wrongdoing, and accused the government of violating his civil rights.

As I’ve noted since, there was a lot of smoke coming from Kushner’s direction: first, SSCI’s explicit interest in interviewing Kusher and then two competing stories about a Trump request for CIA’s Sergey Kislyak dossier that only makes sense if the audience were Kushner, not Flynn.

But there are a few more dots (in addition to people claiming to have confirmed this point) that support the idea that Kushner is the ultimate target here, and that Trump, in his clumsy attempts to protect Mike Flynn by firing Jim Comey, is actually attempt to protect the father of his grandchildren.

Back on March 2, Jim Comey’s then still secret Twitter account favorited this NYT article disclosing that Mike Flynn had a previously undisclosed face-to-face meeting with Sergey Kislyak at Trump Tower. (h/t TC)

Michael T. Flynn, then Donald J. Trump’s incoming national security adviser, had a previously undisclosed meeting with the Russian ambassador in December to “establish a line of communication” between the new administration and the Russian government, the White House said on Thursday.

Jared Kushner, Mr. Trump’s son-in-law and now a senior adviser, also participated in the meeting at Trump Tower with Mr. Flynn and Sergey I. Kislyak, the Russian ambassador. But among Mr. Trump’s inner circle, it is Mr. Flynn who appears to have been the main interlocutor with the Russian envoy — the two were in contact during the campaign and the transition, Mr. Kislyak and current and former American officials have said.

[snip]

They generally discussed the relationship and it made sense to establish a line of communication,” Ms. Hicks said. “Jared has had meetings with many other foreign countries and representatives — as many as two dozen other foreign countries’ leaders and representatives.”

The story was presented as White House confirmation of earlier New Yorker reporting that Kushner had the meeting, with the White House newly disclosing Flynn’s presence at it. But we now know that the representation that Kushner’s meeting with Kislyak was just one of a slew of meetings with foreign leaders wasn’t quite right. He had sent an aide to a subsequent meeting, and coming out of that meeting, he met with Gorkov, basically meeting with someone personally lobbying to get rid of Ukraine-related sanctions.

Later that month, though, Mr. Kislyak requested a second meeting, which Mr. Kushner asked a deputy to attend in his stead, officials said. At Mr. Kislyak’s request, Mr. Kushner later met with Sergey N. Gorkov, the chief of Vnesheconombank, which the United States placed on its sanctions list after President Vladimir V. Putin of Russia annexed Crimea and began meddling in Ukraine.

Of course, while we only learned that fact later, when Comey favorited that story on March 2, he would have known the full details of the follow-up communications. In other words, he would recognize that story as yet another case of the White House hiding Russian communications. He would also likely already know that Kushner had not included that meeting on his security clearance form.

We only learned that story on March 27, when the NYT revealed the Senate Intelligence Committee wanted to interview Kushner about the meeting. As I noted at the time, the discussion between Gorkov and Kushner, coming before Flynn’s December 29 discussions with Kislyak, would dramatically change the connotation of Flynn’s discussions of sanctions. Because, while the immediate context of the December 29 discussions would have been the new hacking related sanctions imposed on December 28, with the prior meeting with Gorkov, they would likely also include the Ukrainian ones. That was the payoff discussed in any quid pro quo related to the election: Putin would help elect Trump, and in exchange Trump would end economic sanctions.

Of course, to make the argument that Flynn was offering to give Russia the payoff for the election-related help, you’d have to get Flynn to cooperate. If you got Flynn to cooperate, he’d be able to tell the FBI whether or not those December 29 conversations pertained just to the hacking sanctions or also to the Ukrainian ones.

The FBI has a great many things they can and will use to get Flynn to cooperate, including his undisclosed foreign payments and his lies to the FBI in his January 24 interview.

[Large section based off erroneous reading of Wittes’ post removed.]

When Trump fired Comey, he claimed that Comey had thrice told him “he” wasn’t under investigation. Even assuming Comey did, consider how Trump would understand that and how normal people would. To us, “he” would include just Trump. But to someone like Trump whose only real loyalty is to family, “he” would include his family. Including Kushner.

Trump may well think Flynn is a nice man that deserves his loyalty. More likely, though, Trump knows that Flynn could sink his son-in-law. I believe that’s why Trump had to fire Comey in an effort to undercut the Flynn investigation.

And Rod Rosenstein, the survivor, just picked a partner from the firm of Kushner and Ivanka’s lawyer Jamie Gorelick, Robert Mueller, to take over the investigation into Flynn.

Update: Sure enough, Reuters is reporting that Mueller, by design, may not be able to investigate Kushner or Paul Manafort.

Within hours of Mueller’s appointment on Wednesday, the White House began reviewing the Code of Federal Regulations, which restricts newly hired government lawyers from investigating their prior law firm’s clients for one year after their hiring, the sources said.

An executive order signed by Trump in January extended that period to two years.

Mueller’s former law firm, WilmerHale, represents Trump’s son-in-law Jared Kushner, who met with a Russian bank executive in December, and the president’s former campaign manager Paul Manafort, who is a subject of a federal investigation.

Legal experts said the ethics rule can be waived by the Justice Department, which appointed Mueller. He did not represent Kushner or Manafort directly at his former law firm.

If the department did not grant a waiver, Mueller would be barred from investigating Kushner or Manafort, and this could greatly diminish the scope of the probe, experts said.

The Scope of the Special Counsel Appointment Is Totally Inadequate

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Rod Rosenstein just appointed former FBI Director (and, before that, US Attorney) Robert Mueller as Special Counsel to take over the investigation into Trump and his associates.

I’m agnostic about the selection of Mueller. He has the benefit of credibility among FBI Agents, so will be able to make up for some of what was lost with Jim Comey’s firing. He will be regarded by those who care about such things as non-partisan. With Jim Comey, Mueller stood up to Dick Cheney on Stellar Wind in 2004 (though I think in reality his willingness to withstand Cheney’s demands has been overstated).

But Mueller has helped cover up certain things in the past, most notably with the Amerithrax investigation.

My bigger concern is with the scope, which I believe to be totally inadequate.

Here’s how the order describes the scope:

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James 8. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

As I read this, it covers just the investigation into ties between the Russian government and people associated with Trump’s campaign. Presumably, that includes Mike Flynn, Paul Manafort, and Carter Page, among others.

But there are other aspects of the great swamp that is the Trump and Russia orbit that might not be included here. For example, would Manafort’s corrupt deals with Ukrainian oligarchs be included? Would Flynn’s discussions with Turkish officials, or Rudy Giuliani’s attempt to excuse Turkey’s violation of Iran sanctions? Would the garden variety money laundering on behalf of non-governmental Russian mobbed up businessmen be included, something that might affect Manafort, Jared Kushner, or Trump himself?

And remember there are at least two other aspects of the Russian hacking investigation. Back in February, Reuters reported that San Francisco’s office was investigating Guccifer 2.0 and Pittsburgh was investigating the actual hackers.  Somewhere (San Francisco would be the most logical spot), they’re presumably investigating whoever it is that has been dumping NSA’s hacking tools everywhere. I’ve learned that that geography has either changed, or there are other aspects tied to those issues in other corners of the country.

Plus, there’s the Wikileaks investigation in EDVA, the same district where the Mueller-led investigation might reside, but a distinct investigation.

Any one of those investigations might present strings that can be pulled, any one of which might lead to the unraveling of the central question: did Trump’s associates coordinate with the Russian government to become President. Unless Mueller can serve to protect those other corners of the investigation from Trump’s tampering, it would be easy to shut down any of them as they become productive.

Yet, as far as I understand the scope of this, Mueller will only oversee the central question, leaving those disparate ends susceptible to Trump’s tampering.

Update: In its statement on the appointment, ACLU raises concerns about whether this would include the investigation into Trump’s attempt to obstruct this investigation.

Update: WaPo’s Philip Rucker reminds that Mueller is law firm partners with Jamie Gorelick, who has been representing both Ivanka and Kushner in this issue.

Update: Mueller is quitting WilmberHale to take this gig. He’s also taking two WilmerHale former FBI people with him. Still, that’s a close tie to the lawyer of someone representing key subjects of this investigation.

Update: One addition to the ACLU concern about investigating the Comey firing. In the most directly relevant precedent, the Plame investigation, when Pat Fitzgerald expanded his investigation from the leak of Plame’s identity to the obstruction of the investigation, he asked for approval to do so from the Acting Attorney General overseeing the investigation — in that case, Jim Comey.

The Acting Attorney General in this case is Rod Rosenstein. So if Mueller were as diligent as Fitzgerald was, he would have to ask the guy who provided the fig leaf for Comey’s firing to approve the expansion of the investigation to cover his own fig leaf.

Update: Petey noted to me that Jeff Sessions’ narrow recusal may limit how broadly Rosenstein’s order may be drawn. It’s a really interesting observation. Here’s what I said about Sessions’ recusal (which is very similar to what I tried to address in this post).

There are two areas of concern regarding Trump’s ties that would not definitively be included in this recusal: Trump’s long-term ties to mobbed up businessmen with ties to Russia (a matter not known to be under investigation but which could raise concerns about compromise of Trump going forward), and discussions about policy that may involve quid pro quos (such as the unproven allegation, made in the Trump dossier, that Carter Page might take 19% in Rosneft in exchange for ending sanctions against Russia), that didn’t involve a pay-off in terms of the hacking. There are further allegations of Trump involvement in the hacking (a weak one against Paul Manafort and a much stronger one against Michael Cohen, both in the dossier), but that’s in no way the only concern raised about Trump’s ties with Russians.

Trump Should Get No FBI Director Pick

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Yesterday, Mike Lee trolled Democrats by suggesting that Merrick Garland, who has a lifetime seat on the DC Circuit, should vacate that and lead the FBI. In a piece explaining how utterly moronic the many Democrats who took his bait are, Dave Weigel explains this is “Why Liberals Lose” — not just because they never press for advantage effectively, but because they so often fall prey when Republicans do.

We live in a golden age of political stupidity, but I’m not being hyperbolic when I say this: The idea of pulling Judge Merrick Garland off the D.C. Circuit federal appeals court and into the FBI is one of the silliest ideas I’ve seen anyone in Washington fall for. It’s like Wile E. Coyote putting down a nest made of dynamite and writing “NOT A TRAP” on a whiteboard next to it. It’s also an incredibly telling chapter in the book that’s been written since the Republican National Convention — the story of how Republicans who are uncomfortable with the Trump presidency gritting their teeth as they use it to lock in control of the courts.

You should definitely read all of Weigel’s piece, which is spot on.

But there are other aspects that the success of Lee’s ploy explain about Why Liberals Lose. First and foremost, it shows how mindlessly Democrats adopt the playing field that Republicans deal them.

I mean, even as Democrats have been pushing for months to use the Russian scandal to impeach Trump, and even at the moment where that actually seems feasible (down the road), most Democrats simply accepted the necessity of replacing Jim Comey and have shifted instead to fighting the worst names being floated, people like Trey Gowdy (an initial trial balloon) and Alice Fisher and Michael Garcia, who’re reportedly being formally considered.

Why are Democrats even accepting that Trump should get to replace Comey?

According to CNBC’s count from mid-April, Trump had filled just 24 of the 554 Senate confirmed positions in government.

Sure, Trump has filled a handful more in the interim month, but Trump is otherwise not in a rush to staff the government. Yet he has immediately turned to replacing Comey.

There is nothing more illegitimate than for Trump to be able to give someone a ten year term as FBI Director because he fired Jim Comey.

Trump is no longer hiding the fact that he fired Comey to try to undercut the Russian investigation. And the timeline is clear: the dinner to which Trump called Comey to twice demand his loyalty took place on January 27.

As they ate, the president and Mr. Comey made small talk about the election and the crowd sizes at Mr. Trump’s rallies. The president then turned the conversation to whether Mr. Comey would pledge his loyalty to him.

Mr. Comey declined to make that pledge. Instead, Mr. Comey has recounted to others, he told Mr. Trump that he would always be honest with him, but that he was not “reliable” in the conventional political sense.

[snip]

By Mr. Comey’s account, his answer to Mr. Trump’s initial question apparently did not satisfy the president, the associates said. Later in the dinner, Mr. Trump again said to Mr. Comey that he needed his loyalty.

Mr. Comey again replied that he would give him “honesty” and did not pledge his loyalty, according to the account of the conversation.

That means it took place the same day of Sally Yates’ second conversation with Don McGahn about FBI’s investigation into Mike Flynn (and by association, I always point out, Jared Kushner).

It was always a pipe dream for Democrats to think they could stave off Neil Gorsuch’s confirmation, in part because you really do need a full panel at SCOTUS.

But for the moment, the FBI will continue to run the same way the rest of government is running: with the acting officials who’re filling in until Trump gets around to filling the spot. Moreover, Andrew McCabe, the Acting FBI Director, is a Comey loyalist who will ensure his initiatives will continue for whatever portion of Comey’s remaining 6 years he gets to serve.

This is important not just for the Russian investigation — it’s important to the future of our democracy. Alice Fisher, for example, would be an even more insanely pro-corporate FBI Director than Comey (former Board Member of HSBC, remember) or Mueller.

Democrats should be out there, loudly and in unison, decrying how inappropriate it would be for Trump to get to replace Comey when everyone watching knows the firing was one of the most corrupt things a President has done in a century.

Instead, they’re falling prey to Mike Lee’s obvious ploys.

A Letter For Rod Rosenstein To Remember

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Before there were internet “memes” there were still plays in words that conveyed huge situations beyond the mere words. One was “A Night To Remember”. Yes, even before the famous movie (and before the sappy and stupid “Titanic” decades later), it was an earlier book about the Titanic disaster. There are daily shipwrecks as significant as that now in the Age of Trump.

Today, specifically, we have the issue of a Titanic level shipwreck President crashing the country out of pettiness and ignorance like the United States has never ostensibly seen in its history.

Yesterday on Twitter, I noted that there was a telling omission in the supposed “justification” memo Rod Rosenstein penned and Trump initially claimed to rely on as basis for firing Comey:

This morning, in what I can only describe as an admirable mea culpa statement that I think will long be remembered, in a good way, Ben Wittes called for Rosenstein to go.

In the end, Trump was able to make set piece out of Rosenstein, because Rosenstein let himself be used as a set piece. And there’s an important lesson in that for the many honorable men and women with pending appointments and nominations to serve in senior levels of the Justice Department—or who are considering accepting such appointments. It took Donald Trump only two weeks to put Rosenstein, a figure of sterling reputation, in the position of choosing between continued service and behaving honorably—and it took only two days after that for the President to announce that Rosenstein’s memo, after all, was nothing more than a Potemkin village designed as a facade on Trump’s predecided outcome.

Do you really want this to be you? Do you really think Trump will not leave your reputation as so much roadkill on the highway after enlisting you in sliming someone else a week or two after you take office?

The lesson here is that these are not honorable people, and they will do their best to drag you down to their level. They will often succeed.

Here we are, and, thankfully, people in and around the Third Branch, especially in the all important Southern District of New York region (from which Comey has come and gone), are fighting back and speaking out with shouts that are from far more than the cheap seats people like me occupy.

Without further adieu, a letter from SDNY luminaries:

May 12, 2017

Rod J. Rosenstein, Esq.
Deputy Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Dear Mr. Deputy Attorney General:

We, the undersigned, are former United States Attorneys and Assistant United States Attorneys for the Southern District of New York. In view of the recent termination of James Comey as Director of the Federal Bureau of Investigation, we are writing to request that you appoint a special counsel to oversee the FBI’s continuing investigation of Russian interference with the 2016 Presidential election and related matters. This letter is addressed to you rather than the Attorney General since he has recused himself from this matter.

As you know, Jim has had a long and distinguished career with the Department of Justice, beginning with his appointment as an Assistant United States Attorney in the Southern District of New York serving under United States Attorneys Rudolph Giuliani, Benito Romano and Otto Obermaier from 1987 through 1993. He returned to the Southern District of New York in 2002 when he was appointed the United States Attorney and served in that capacity until he was confirmed as Deputy Attorney General in 2003. Most of us came to know Jim when he worked in the Southern District of New York. Many of us know him personally. All of us respect him as a highly professional and ethical person who has devoted more than 20 years of his life to public service.

While we do not all necessarily agree with the manner in which he dealt with the conclusion of the Hillary Clinton email investigation, we sincerely believe that his abrupt and belated termination for this conduct, occurring months later and on the heels of his public testimony about his oversight of the investigation of Russian interference with the 2016 presidential election, has the appearance – if not the reality – of interfering with that investigation. Even if this investigation continues unabated, there is a substantial risk that the American people will not have confidence in its results, no matter who is appointed to succeed him, given that the Director of the FBI serves at the pleasure of the President. We believe it is critical in the present political climate and clearly in the public’s interest that this investigation be directed by a truly independent, non-partisan prosecutor who is independent of the Department of Justice, as is contemplated by 28 C.F.R. §600.1.

We are Republicans, Democrats and independents. Most importantly, we are proud alumni and alumnae of the Department of Justice. We do not suggest that you or any other members of the Department of Justice or a newly appointed Director of the FBI would not conduct yourselves properly, but the gravity of this investigation requires that even the appearance of political involvement in this investigation be avoided. As former prosecutors, we believe the only solution in the present circumstances would be to appoint a Special Counsel pursuant to 28 C.F.R. §600.1, and we urge you to take that course.

Respectfully submitted,

Jonathan S. Abernethy Elkan Abramowitz Richard F. Albert
Marcus A. Asner Martin J. Auerbach Miriam Baer
Thomas H. Baer Kerri Martin Bartlett Maria Barton
Andrew Bauer Bernard W. Bell Richard Ben-Veniste
Neil S. Binder Laura Gossfield Birger Ira H. Block
Suzanne Jaffe Bloom Barry A. Bohrer Daniel H. Bookin
Jane E. Booth Katharine Bostick Laurie E. Brecher
David M. Brodsky Stacey Mortiz Brodsky William Bronnermn
Jennifer K. Brown Marshall A. Camp Bennett Capers
Michael Q. Carey Neil S. Cartusciello Sarah Chapman
Robert J. Cleary Brian D. Coad Glenn C. Colton
William Craco Nelson W. Cunningham Constance Cushman
Frederick T. Davis John M. Desmarais Rhea Dignam
Gregory L. Diskant Philip L. Douglas Sean Eskovitz
Jesse T. Fardella Meir Feder Ira M. Feinberg
Michael S. Feldberg Steven D. Feldman Edward T. Ferguson
David Finn Eric P. Fisher Sharon E. Frase
Steven I. Froot Maria T. Galeno Catherine Gallo
Robert Garcia Kay K. Gardiner Ronald L. Garnett
Scott Gilbert Barbara S. Gillers Mark Godsey
Joshua A. Goldberg James A. Goldston Mark P. Goodman
George I. Gordon Sheila Gowan Stuart GraBois
Paul R. Grand Helen Gredd Bruce Green
Marc L. Greenwald Jamie Gregg James G. Greilsheimer
Jane Bloom Grise Nicole Gueron Barbara Guss
Steven M. Haber Jonathan Halpern David Hammer
Jeffrey Harris Mark D. Harris Roger J. Hawke
Steven P. Heineman Mark R. Hellerer William Hibsher
Jay Holtmeier John R. Horan Patricia M. Hynes
Linda Imes Douglas Jensen James Kainen
Eugene Kaplan Steven M. Kaplan William C. Komaroff
David Koenigsberg Cynthia Kouril Mary Ellen Kris
Stephen Kurzman Nicole LaBarbera Kerry Lawrence
Sherry Leiwant Jane A. Levine Annmarie Levins
Raymond A. Levites Donna H. Lieberman Jon Liebman
Sarah E. Light Jon Lindsey Robin A. Linsenmayer
Edward J.M. Little Mary Shannon Little Walter Loughlin
Daniel Margolis Walter Mack Kathy S. Marks
Mark E. Matthews Marvin S. Mayell Sharon L. McCarthy
James J. McGuire Joan McPhee Christine Meding
Paul K. Milmed Judith L. Mogul David E. Montgomery
Lynn Neils Peter Neiman Rosemary Nidiry
Tai H. Park Robert M. Pennoyer Elliott R. Peters
Michael Pinnisi Robert Plotz Henry Putzel
T. Gorman Reilly Emily Reisbaum Peter Rient
Roland G. Riopelle Michael A. Rogoff Benito Romano
Amy Rothstein Thomas C. Rubin Daniel S. Ruzumna
Robert W. Sadowski Elliot G. Sagor Peter Salerno
Joseph F. Savage John F. Savarese Edward Scarvalone
Kenneth I. Schacter Frederick Schaffer Gideon A. Schor
Julian Schreibman Wendy Schwartz Linda Severin
David Siegal Marjorie A. Silver Paul H. Silverman
Charles Simon Carolyn L. Simpson David Sipiora
Dietrich L. Snell Peter Sobol Ira Lee Sorkin
David W. Spears Katherine Stanton Franklin H. Stone
Richard M. Strassberg Howard S. Sussman Erika Thomas
Richard Toder Timothy J. Treanor Paula Tuffin
Peter Vigeland David Wales Max Wild
Samuel J. Wilson Elaine Wood Paulette Wunsch
Thomas Zaccaro Ellen Zimiles
cc: Jefferson B. Sessions III, Esq.
Attorney General of the United States

This letter reflects the signers’ personal views, not of the U.S. Attorney’s Office for the Southern District of New York, the U.S. Department of Justice, or any other government agency.

But it is STRONG. And it is hard to not love it completely. It is raw, and it is real. Nobody asks defense attorneys to sign these missives, nor would anybody give them credit for having done so, were they asked.

This letter, however, is from the elite of the elite prosecutors, with SDNY historic names attached to it (and sometimes significant family names you may not notice), and there are a LOT of them. Almost wonder who did “not” sign on to it?

So, what does it mean?

A LOT. If you know how District level US Attorney offices run, but especially the hallowed ground in SDNY, then you know just how unusual and remarkable is this collective letter.

Think I mentioned “stunning” earlier. It is all that.

Why? Because the problem in the US is here, and it is now. It is bigger than Red versus Blue. It is bigger than Me versus You. It is bigger than all that. There is a fracture in the very machinery governance itself runs on.

The clockworks of governance are buggered. “We are Republicans, Democrats and independents.” And we all deserve better than the orange narcissist piloting the nation into an iceberg.

The Last USA: Dana Boente Is the Best Short Term Solution

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In the wake of the Comey firing, particularly given the way Deputy Attorney General Rod Rosenstein let himself serve as a pawn, many people have renewed their call for “a special prosecutor.” In the short term, however, I believe Dana Boente — that is, the status quo — is a better solution.

As a reminder, Dana Boente is the US Attorney of Eastern District of VA. With Rosenstein’s confirmation as DAG, Boente is the last remaining confirmed US Attorney in the United States. Boente’s office is overseeing at least two parts of the Russian investigation: the generalized investigation into Wikileaks, and the investigation into Trump’s campaign. The latter investigation recently issued subpoenas to Mike Flynn associates. There are reportedly parts of the investigation in three other places: some work being done in Main Justice, as well a a team investigating Guccifer 2.0/Shadow Brokers in San Francisco, and a team investigating the Russian hackers in Pittsburgh.

But the bulk of what people think of as “the Russian investigation” — the investigation into Trump’s cronies — is happening in EDVA, overseen by The Last USA.

In addition to reporting up to Rosenstein as DAG and Rosenstein as Acting AG for the Russian investigation, Boente just took over as Acting Assistant Attorney General for National Security Division — the office that reviews things like FISA orders. That means Boente — for better and worse — has more authority, on several levels, than a “Special Counsel” would have.

First, note I use the term “Special Counsel,” not “Special Prosecutor.” Ken Starr was a Special Prosecutor, but in the wake of his fiasco and given persistent questions about the constitutionality of having someone who was totally independent from the structure of DOJ prosecuting people, Congress got rid of the provision supporting Special Prosecutors.

So if Rod Rosenstein wanted to appoint someone “independent” to oversee the Russian investigation, he’d have to use the Special Counsel provision.

While I think it is permissible to hire someone from outside of DOJ to do that job (so it is possible he could call up corporate lawyer Pat Fitzgerald for his third ride on the Special Counsel merry-go-round to, in dramatic fashion, save the investigation undercut by the firing of his good friend Jim Comey), in practice the recent Special Counsel appointments (the UndieBomb 2.0 leak investigation, the StuxNet leak investigation, the John Kiriakou prosecution, the Torture investigation, and the Plame investigation) have all been DOJ prosecutors, either US Attorneys (in all but one case) or an Assistant USA Attorney, in the case of John Durham’s whitewash of torture. Plus, while Fitz is still well-loved at DOJ and FBI as far as I know, if Rosenstein appointed him, I bet Trump would fire him within minutes because he’s sure as hell not going to be “loyal.” And because of Fitz’ past gunning hard for Cheney and Bush, many Republicans might not put up much of a stink there.

If Rosenstein were to adhere to the practice of naming existing DOJ prosecutors, though, it’d mean he’d be choosing between Boente, The Last USA, or an AUSA (perhaps one of the ones who recently reported to him in MD). In both cases, the Special Counsel would report to Rosenstein for AG approvals (as Pat Fitz reported to Jim Comey for the Plame case).

You can see quickly why Boente is the preferable option. First, there’s no reason to believe he isn’t pursuing the investigation (both investigations, into Wikileaks and Trump’s associates) with real vigor. He is a hard ass prosecutor and if that’s what you want that’s what you’d get. His grand jury pool is likely to be full of people with national security backgrounds or at least a predisposition to be hawks.

But — for better and worse — Boente actually has more power than a Special Counsel would have (and more power than Fitz had for the Plame investigation), because he is also in charge of NSD, doing things like approving FISA orders on suspected Russian agents. I think there are problems with that, particularly in the case of a possible Wikileaks prosecution. But if you want concentrated power, Boente is a better option than any AUSA. With the added benefit that he’s The Last USA, which commands some real respect.

Sure. If next week Trump calls Boente to dinner and demands his loyalty on threat of firing, this may change. But the same logic that people are using with a Special Counsel (that if Trump fired that person, maybe then Republicans in Congress would want something more independent) holds for Boente. Firing The Last USA ought to be as incendiary as firing an AUSA, assuming anything will be.