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Who Will Be Forced to Walk the Plank on November 4th?

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Who will Trump force to walk the plank after the election?
(h/t Stacey Harvey for the image, [CC Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0) ]

Win or lose, Donald Trump will be looking for vengeance once the election is over. Either he will lose, and want to punish those he deems responsible, or he will win and want to punish the folks he’s had to put up with despite their failures to do what he wanted. One way or another, Trump will want to make certain people pay and pay dearly after the voting is over.

It might be to get rid of people who have angered him by not being sufficiently publicly loyal and submissive.

It might be to get rid of people who angered him by not being sufficiently good at making Trump look good before the election.

It might be to get rid of people who angered him by making him look bad, indecisive, or (gasp!) wrong.

It might be to get rid of people who stood up to him in private and made him back down on something, even if that backing down was only done in private.

It might be to get rid of people who stood up to him in public, and he had to simply take it at the time because Trump would have paid a price if he got rid of them when it happened.

Put me down for Trump demanding that the following people be forced to walk the plank:

  • Doctors Tony Fauci at NAIAD, Stephen Hahn at FDA, and Robert Redfield at CDC, along with HHS Secretary Alex Azar for not keeping these disloyal doctors in line;
  • Bill Barr for failing to deliver any indictments and convictions of any Bidens or Clintons, John Durham for dragging his feet on his reports that would have made that happen, Christopher Wray for being the FBI director and generally annoying, whoever approved letting Andrew Weissmann reveal that Manafort was breaking the gag order in his case by communicating with Sean Hannity, and a host of other US Attorneys who didn’t behave according to Trump’s rules;
  • General Mark Milley for publicly apologizing for taking part in the infamous Bible-waving photo op created by driving protesters out of Lafayette Park with chemical agents, various generals and admirals who refused to back Trump’s call to deploy US troops to American cities he didn’t like, and Secretary of Defense Mark Esper for not keeping these military folks in line;
  • Dr. Sean Conley, for not being more deceptive with the press around Trump’s COVID-19 status;
  • Mark Meadows for undermining Conley’s initial “he’s doing great” press remarks, as well as for more generally not keeping the WH functioning smoothly (as if that were possible, given his boss);
  • Mike Pompeo for failing to get Ukraine to do Trump’s bidding, as well as for not keeping folks like Fiona Hill in line.

But I must admit this is an incomplete list. Who else do you think might be on Trump’s Naughty List? Add your own thoughts in the comments.

Note: I also left off the list a bunch of folks like Mitch McConnell, Andrew Cuomo, Savannah Guthrie, and Cy Vance that Trump would demand walk the plank, but who remain outside his ability to make that happen. I also didn’t include Ivanka, Jared, Don Jr, or Eric, as he can’t fire his family. Though of course, he could disinherit them . . . for whatever that’s worth.

HHS Propgandist Michael Caputo Is the Rat-Fucker’s Protégé

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It was inevitable when Trump installed a press flack in April with the intention of riding herd on Health and Human Services Secretary Alex Azar that the flack, Michael Caputo, would invent a false reality about Trump’s efforts to fight COVID.

Last week, Politico described how Caputo has done just that.

Caputo and his team have attempted to add caveats to the CDC’s findings, including an effort to retroactively change agency reports that they said wrongly inflated the risks of Covid-19 and should have made clear that Americans sickened by the virus may have been infected because of their own behavior, according to the individuals familiar with the situation and emails reviewed by POLITICO.

Caputo’s team also has tried to halt the release of some CDC reports, including delaying a report that addressed how doctors were prescribing hydroxychloroquine, the malaria drug favored by Trump as a coronavirus treatment despite scant evidence. The report, which was held for about a month after Caputo’s team raised questions about its authors’ political leanings, was finally published last week. It said that “the potential benefits of these drugs do not outweigh their risks.”

In one clash, an aide to Caputo berated CDC scientists for attempting to use the reports to “hurt the President” in an Aug. 8 email sent to CDC Director Robert Redfield and other officials that was widely circulated inside the department and obtained by POLITICO.

That has led to a closer focus on Caputo, including this NYT piece describing a fevered Caputo calling for armed insurgency if Trump doesn’t win.

“I don’t like being alone in Washington,” he said, describing “shadows on the ceiling in my apartment, there alone, shadows are so long.” He then ran through a series of conspiracy theories, culminating in a prediction that Mr. Trump will win re-election but his Democratic opponent, Joseph R. Biden Jr., will refuse to concede.

“And when Donald Trump refuses to stand down at the inauguration, the shooting will begin,” he said. “The drills that you’ve seen are nothing.” He added: “If you carry guns, buy ammunition, ladies and gentlemen, because it’s going to be hard to get.”

Bizarrely — particularly given Caputo’s ranting about insurgency and his claims to be stressed by his implication in the Mueller Report — few of the stories on him (WaPo is one exception) have even mentioned his relationship to Roger Stone.

Caputo did not just set Stone up for a meeting with a Russian offering dirt in May 2016. He’s Stone’s protégé. Multiple Mueller 302s describe that Stone got Caputo a job with the campaign. Manafort testified that he used Caputo to keep track of what Stone was up to — a damning description given that Manafort offered more details about Stone’s foreknowledge of the Podesta emails than other known witnesses. Caputo’s own 302–which was released in February– was heavily redacted because of ongoing investigations. One thing it revealed, however, is that Caputo ran a “Project Rasputin” for Trump in 2016 that remains unexplained.

Caputo repeatedly complained that, after Stone was indicted, a gag prohibited him from speaking with witnesses, including him. In December he wrote Judge Amy Berman Jackson a plaintive letter asking for permission to spend Christmas with Stone.

Mr. Stone and I have been close friends since 1986. We work together, we dine together, our families share holidays together.

[snip]

[I]t’s Chrismas, Judge, and our family wants to spend time with his.

[snip]

[W]ith the holiday season imminent, I am writing to ask to see Roger and his family again soon. During this season, I hope you see fit to give our families this gift.

He also wrote a letter in support of leniency.

As the years went on, Roger and I became close friends. I learned important lessons from him: to listen more than talk, to keep driving forward during hard times, to keep my friends and family close. He loved friendly but hard-hitting banter, and I learned to give as well as I got. He was the big brother I never had, and I feel fortunate.

[snip]

People think they know Roger Stone: he plays hardball; he’s Machiavellian. But he is at his center a caring man.

Since Stone’s commutation, however, Caputo and Stone should be free to talk. It’s likely not a coincidence. then, that Caputo is making the same calls for insurgency after Trump loses that the rat-fucker is.

Trump’s New Spokesperson Brags They’re Just 700K Short of Delivering on Tests Promised a Month Ago

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Trump’s new spox, Kayleigh McEnany, got hired because she’s willing to say any thing, regardless of how stupid.

Consider her claim that Trump is doing a great job because the US has now conducted 3.3 million coronavirus tests.

Ignore for a second what would be the appropriate amount of testing for a country of 320 million people that didn’t catch the outbreak before it spread widely (per person, we’ve done half of what Germany has done).

Back on March 6, which was over a month ago, Alex Azar said that the government would roll out 4 million tests by the following week (which would be March 13, which is also over a month ago). By my math, a month later, they’re still 700K tests off their promise, 17.5%.

In other words, McEnany is bragging that the Trump Administration still hasn’t met the promises they made a month ago.

Update: According to NBC, 41 days after making a promise on testing they still haven’t delivered, Trump is “close” to announcing a plan to do what should have been the priority two months ago.

A senior administration official said the White House is “close” to making an announcement on a plan.

But that plan still doesn’t include the single most thing Trump could do to restart the economy.

Another idea that’s been discussed would use the Defense Production Act to rapidly scale up testing, according to one person familiar with the discussions, though officials played down the idea given that Trump has been resistant to more consistently deploying that presidential power since he would rather use the law as leverage to get companies to take such steps.

Trump Puts his Rasputin Guy, Michael Caputo, at Department of Health and Human Services During a Pandemic

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As Politico reported yesterday, in a bid to marginalize Alex Azar (who has been largely silenced in the middle of a pandemic since Rod Rosenstein’s sister Nancy Messonier told the truth in public), Trump has made Michael Caputo the spokesperson at Department of Health and Human Services.

The move is interesting for several reasons. It suggests the White House believes the way to control a Senate-confirmed cabinet member is to hire a spokesperson for that person, not to replace him or work out problems with him.

The move is designed to assert more White House control over Health and Human Services Secretary Alex Azar, whom officials believe has been behind recent critical reports about President Donald Trump’s handling of the coronavirus pandemic, according to two officials with knowledge of the move.

That, in turn, suggests that in the middle of a pandemic, Trump’s White House is treating HHS as a PR shop, not a functional agency.

But the far more interesting aspect of this hire is that, as recently as February 3, Bill Barr’s DOJ claimed in FOIA exemptions on Caputo’s FBI interview report that it was conducting an ongoing investigation into something Caputo did during the 2016 election — possibly with Roger Stone — called Project Rasputin. What Project Rasputin was is redacted in the 302. But whatever it was is closely enough connected with his and Stone’s willingness to take a meeting with a Russian selling dirt on Hillary Clinton that Caputo told Mueller’s team that, “‘Project Rasputin’ was mutually exclusive from anything having to do with” the guy selling that dirt.

Of course, on precisely the same day that Bill Barr’s DOJ released materials indicating it was still investigating something called Project Rasputin that Caputo had been involved in, Barr replaced then DC US Attorney Jesse Liu, who had permitted the Roger Stone investigation and prosecution to proceed unmolested by the kind of unprecedented interference that Barr would engage in just days later. Which raises questions about whether Trump doesn’t care that his own DOJ was still investigating something Caputo did in 2016, or whether Barr saw to it that investigation ended, making Caputo hirable for the first time in Trump’s Administration.

When I asked Caputo what Project Rasputin was, he simply responded by tweeting a picture of the charlatan advisor to a czar, a picture he has since deleted (along with a bunch of other Tweets he purged before taking this position).

Ah well. I’m glad that Trump’s desperation to stop Azar from telling the truth about how the President ignored sound medical advice in favor of conspiracy theories will provide yet another pressing reason to ask Reggie Walton to fully declassify the 302s describing this project.

Like All Else, Trump’s Inspector General Turnover Is about Pandemic

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Update: I’m republishing this and bumping it, because Trump just replaced Glenn Fine as Acting Inspector General — whom Michael Horowitz had named to head the Pandemic Response Accountability Committee — with the IG for EPA. This makes him ineligible to head PRAC. Fine will remain Principle Deputy IG. 

Late last night, President Trump fired the Intelligence Community Inspector General Michael Atkinson, the Inspector General who alerted Congress of the whistleblower complaint that led to Trump’s impeachment. Trump effectively put Atkinson on administrative leave for 30 days in a move that skirts the legal requirement that an inspector general be fired for cause and Congress be notified of it.

Trump has been accused of firing Atkinson late at night on a Friday under cover of the pandemic to retaliate for the role Atkinson had — which consisted of nothing more than doing his job as carefully laid out by law — in Trump’s impeachment. It no doubt is.

But it’s also likely about the pandemic and Trump’s proactive attempts to avoid any accountability for his failures in both the pandemic response and the reconstruction from it.

There were a lot of pandemic warnings Trump ignored that he wants to avoid becoming public

I say that, first of all, because of the likelihood that Trump will need to cover up what intelligence he received, alerting him to the severity of the coming pandemic. Trump’s administration was warned by the intelligence community no later than January 3, and a month later, that’s what a majority of Trump’s intelligence briefings consisted of. But Trump didn’t want to talk about it, in part because he didn’t believe the intelligence he was getting.

At a White House briefing Friday, Health and Human Services Secretary Alex Azar said officials had been alerted to the initial reports of the virus by discussions that the director of the Centers for Disease Control and Prevention had with Chinese colleagues on Jan. 3.

The warnings from U.S. intelligence agencies increased in volume toward the end of January and into early February, said officials familiar with the reports. By then, a majority of the intelligence reporting included in daily briefing papers and digests from the Office of the Director of National Intelligence and the CIA was about covid-19, said officials who have read the reports.

[snip]

Inside the White House, Trump’s advisers struggled to get him to take the virus seriously, according to multiple officials with knowledge of meetings among those advisers and with the president.

Azar couldn’t get through to Trump to speak with him about the virus until Jan. 18, according to two senior administration officials. When he reached Trump by phone, the president interjected to ask about vaping and when flavored vaping products would be back on the market, the senior administration officials said.

On Jan. 27, White House aides huddled with then-acting chief of staff Mick Mulvaney in his office, trying to get senior officials to pay more attention to the virus, according to people briefed on the meeting. Joe Grogan, the head of the White House Domestic Policy Council, argued that the administration needed to take the virus seriously or it could cost the president his reelection, and that dealing with the virus was likely to dominate life in the United States for many months.

Mulvaney then began convening more regular meetings. In early briefings, however, officials said Trump was dismissive because he did not believe that the virus had spread widely throughout the United States.

In that same period, Trump was demanding Department of Health and Human Service Secretary Alex Azar treat coronavirus briefings as classified.

The officials said that dozens of classified discussions about such topics as the scope of infections, quarantines and travel restrictions have been held since mid-January in a high-security meeting room at the Department of Health & Human Services (HHS), a key player in the fight against the coronavirus.

Staffers without security clearances, including government experts, were excluded from the interagency meetings, which included video conference calls, the sources said.

“We had some very critical people who did not have security clearances who could not go,” one official said. “These should not be classified meetings. It was unnecessary.”

The sources said the National Security Council (NSC), which advises the president on security issues, ordered the classification.”This came directly from the White House,” one official said.

Now, it could be that this information was legitimately classified. But if so, it means Trump had even more — and higher quality — warning of the impending pandemic than we know. If not, then it was an abuse of the classification process in an attempt to avoid having to deal with it. Either one of those possibilities further condemns Trump’s response.

Also in this same period, then Director of National Intelligence Joseph Maguire was asking not to hold a public Worldwide Threats hearing because doing so would amount to publicly reporting on facts that the President was in denial about.

The U.S. intelligence community is trying to persuade House and Senate lawmakers to drop the public portion of an annual briefing on the globe’s greatest security threats — a move compelled by last year’s session that provoked an angry outburst from President Donald Trump, multiple sources told POLITICO.

Officials from the Office of the Director of National Intelligence, on behalf of the larger clandestine community, don’t want agency chiefs to be seen on-camera as disagreeing with the president on big issues such as Iran, Russia or North Korea, according to three people familiar with preliminary negotiations over what’s known as the Worldwide Threats hearing.

The request, which is unlikely to be approved, has been made through initial, informal conversations at the staff level between Capitol Hill and the clandestine community, the people said.

Not only did that hearing never happened, but neither has a report been released.

Among the things then Director of National Intelligence Dan Coats warned of in last year’s hearing was the threat of a pandemic.

We assess that the United States and the world will remain vulnerable to the next flu pandemic or large-scale outbreak of a contagious disease that could lead to massive rates of death and disability, severely affect the world economy, strain international resources, and increase calls on the United States for support. Although the international community has made tenuous improvements to global health security, these gains may be inadequate to address the challenge of what we anticipate will be more frequent outbreaks of infectious diseases because of rapid unplanned urbanization, prolonged humanitarian crises, human incursion into previously unsettled land, expansion of international travel and trade, and regional climate change.

So to some degree, Trump has to make sure there’s no accountability in the intelligence community because if there is, his failure to prepare for the pandemic will become all the more obvious.

Richard Burr is incapable of defending the Intelligence Community right now

But it’s also the case that the pandemic — and the treatment of early warnings about it — may have created an opportunity to retaliate against Atkinson when he might not have otherwise been able to. Even beyond offering cover under the distraction of thousands of preventable deaths, the pandemic, and Senate Intelligence Committee Chair Richard Burr’s success at profiting off it, means that the only Republican who might have pushed back against this action is stymied.

On Sunday, multiple outlets reported that DOJ is investigating a series of stock trades before most people understood how bad the pandemic would be. Burr is represented by former Criminal Division head Alice Fisher — certainly the kind of lawyer whose connections and past white collar work would come in handy for someone trying to get away with corruption.

The Justice Department has started to probe a series of stock transactions made by lawmakers ahead of the sharp market downturn stemming from the spread of coronavirus, according to two people familiar with the matter.

The inquiry, which is still in its early stages and being done in coordination with the Securities and Exchange Commission, has so far included outreach from the FBI to at least one lawmaker, Sen. Richard Burr, seeking information about the trades, according to one of the sources.

[snip]

Burr, the North Carolina Republican who heads the Senate Intelligence Committee, has previously said that he relied only on public news reports as he decided to sell between $628,000 and $1.7 million in stocks on February 13. Earlier this month, he asked the Senate Ethics Committee to review the trades given “the assumption many could make in hindsight,” he said at the time.

There’s no indication that any of the sales, including Burr’s, broke any laws or ran afoul of Senate rules. But the sales have come under fire after senators received closed-door briefings about the virus over the past several weeks — before the market began trending downward. It is routine for the FBI and SEC to review stock trades when there is public question about their propriety.

In a statement Sunday to CNN, Alice Fisher, a lawyer for Burr, said that the senator “welcomes a thorough review of the facts in this matter, which will establish that his actions were appropriate.”

“The law is clear that any American — including a Senator — may participate in the stock market based on public information, as Senator Burr did. When this issue arose, Senator Burr immediately asked the Senate Ethics Committee to conduct a complete review, and he will cooperate with that review as well as any other appropriate inquiry,” said Fisher, who led the Justice Department’s criminal division under former President George W. Bush.

In spite of Fisher’s bravado, Burr is by far the most legally vulnerable of the senators who dumped a lot of stock in the period. That’s partly because he had access to two streams of non-public reporting on the crisis, the most classified on SSCI (which Senator Feinstein also would have had), but also on the Health, Education, Labor, and Pensions committee. And unlike the other senators, Burr admitted that he made these trades himself.

Again, in spite of Fisher’s claims, Burr will be forced to affirmatively show that he didn’t rely on this non-public information when dumping an inordinate amount of stock.

All of which is to say that Burr may be hoping that Fisher can talk him out of any legal exposure, which will require placating the thoroughly corrupt Bill Barr.

I had already thought that Trump might use this leverage to influence the findings or timing of the remaining parts of SSCI’s Russian investigation. That’s all the more true of Atkinson’s firing. Thus far, Burr has remained silent on what is obviously a legally inappropriate firing.

Even as he fired Atkinson, Trump undermined any oversight of his pandemic recovery efforts

A week before firing Atkinson, Trump made it clear he had no intention of being bound by Inspectors General in his signing statement for the “CARES Act” recovery bill. In addition to stating that Steve Mnuchin could reallocate spending without prior notice to Congress (as required by the bill and the Constitution), Trump also undercut both oversight mechanisms in the law. He did so by suggesting that the Chairperson of Council of the Inspectors General on Integrity and Efficiency (who is DOJ’s Inspector General Michael Horowitz) should not be required to consult with Congress about who he should make Director and Deputy Director of the Pandemic Response Accountability Committee.

Section 15010(c)(3)(B) of Division B of the Act purports to require the Chairperson of the Council of the Inspectors General on Integrity and Efficiency to consult with members of the Congress regarding the selection of the Executive Director and Deputy Executive Director for the newly formed Pandemic Response Accountability Committee. The Committee is an executive branch entity charged with conducting and coordinating oversight of the Federal Government’s response to the coronavirus outbreak. I anticipate that the Chairperson will be able to consult with members of the Congress with respect to these hiring decisions and will welcome their input. But a requirement to consult with the Congress regarding executive decision-making, including with respect to the President’s Article II authority to oversee executive branch operations, violates the separation of powers by intruding upon the President’s power and duty to supervise the staffing of the executive branch under Article II, section 1 (vesting the President with the “executive Power”) and Article II, section 3 (instructing the President to “take Care” that the laws are faithfully executed). Accordingly, my Administration will treat this provision as hortatory but not mandatory.

On Monday, Horowitz named DOD Acting Inspector General Glenn Fine Director of PRAC.

In appointing Mr. Fine to Chair the PRAC, Mr. Horowitz stated, “Mr. Fine is uniquely qualified to lead the Pandemic Response Accountability Committee, given his more than 15 years of experience as an Inspector General overseeing large organizations — 11 years as the Department of Justice Inspector General and the last 4 years performing the duties of the Department of Defense Inspector General. The Inspector General Community recognizes the need for transparency surrounding, and strong and effective independent oversight of, the federal government’s spending in response to this public health crisis. Through our individual offices, as well as through CIGIE and the Committee led by Mr. Fine, the Inspectors General will carry out this critical mission on behalf of American taxpayers, families, businesses, patients, and health care providers.”

Last night, however, after years of leaving DOD’s IG position vacant, Trump nominated someone who has never managed the an office like DOD’s Inspector General, which oversees a budget larger than that of many nation-states, and who is currently at the hyper-politicized Customs and Border Patrol.

Jason Abend of Virginia, to be Inspector General, Department of Defense.

Mr. Abend currently serves as Senior Policy Advisor, United States Customs and Border Protection.

Prior to his current role, Mr. Abend served in the Federal Housing Finance Agency’s Office of Inspector General as a Special Agent. Before that, he served as a Special Agent in the Department of Housing and Urban Development’s Office of Inspector General, where he led a team investigating complex Federal Housing Administration mortgage and reverse mortgage fraud, civil fraud, public housing assistance fraud, and internal agency personnel cases.

Mr. Abend was also the Founder and CEO of the Public Safety Media Group, LLC, a professional services firm that provided strategic and operational human resources consulting, training, and advertising to Federal, State, and local public safety agencies, the United States Military, and Intelligence agencies.

Earlier in his career, Mr. Abend worked as a Special Agent at the United States Secret Service and as an Intelligence Research Specialist at the Federal Bureau of Investigation.

Mr. Abend received his bachelor’s degree from American University and has received master’s degrees from both American University and George Washington University.

Abend seems totally unqualified for the DOD job alone, but if he is confirmed, he would also make Fine ineligible to head PRAC.

Horowitz issued a statement on Atkinson’s firing today that emphasized that Atkinson had acted appropriately with the Ukraine investigation, as well as his intent to conduct rigorous oversight, including — perhaps especially — PRAC.

Inspector General Atkinson is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight. That includes his actions in handling the Ukraine whistleblower complaint, which the then Acting Director of National Intelligence stated in congressional testimony was done “by the book” and consistent with the law. The Inspector General Community will continue to conduct aggressive, independent oversight of the agencies that we oversee. This includes CIGIE’s Pandemic Response Accountability Committee and its efforts on behalf of American taxpayers, families, businesses, patients, and health care providers to ensure that over $2 trillion dollars in emergency federal spending is being used consistently with the law’s mandate.

Also in last week’s signing statement, Trump said he would not permit an Inspector General appointed to oversee the financial side of the recovery to report to Congress when Treasury refuses to share information.

Section 4018 of Division A of the Act establishes a new Special Inspector General for Pandemic Recovery (SIGPR) within the Department of the Treasury to manage audits and investigations of loans and investments made by the Secretary of the Treasury under the Act. Section 4018(e)(4)(B) of the Act authorizes the SIGPR to request information from other government agencies and requires the SIGPR to report to the Congress “without delay” any refusal of such a request that “in the judgment of the Special Inspector General” is unreasonable. I do not understand, and my Administration will not treat, this provision as permitting the SIGPR to issue reports to the Congress without the presidential supervision required by the Take Care Clause, Article II, section 3.

That may not matter now, because Trump just nominated one of the lawyers who just helped him navigate impeachment for that SIGPR role.

Brian D. Miller of Virginia, to be Special Inspector General for Pandemic Recovery, Department of the Treasury.

Mr. Miller currently serves as Special Assistant to the President and Senior Associate Counsel in the Office of White House Counsel. Prior to his current role, Mr. Miller served as an independent corporate monitor and an expert witness. He also practiced law in the areas of ethics and compliance, government contracts, internal investigations, white collar, and suspension and debarment. Mr. Miller has successfully represented clients in government investigations and audits, suspension and debarment proceedings, False Claims Act, and criminal cases.

Mr. Miller served as the Senate-confirmed Inspector General for the General Services Administration for nearly a decade, where he led more than 300 auditors, special agents, attorneys, and support staff in conducting nationwide audits and investigations. As Inspector General, Mr. Miller reported on fraud, waste, and abuse, most notably with respect to excesses at a GSA conference in Las Vegas.

Mr. Miller also served in high-level positions within the Department of Justice, including as Senior Counsel to the Deputy Attorney General and as Special Counsel on Healthcare Fraud. He also served as an Assistant United States Attorney in the Eastern District of Virginia, where he handled civil fraud, False Claims Act, criminal, and appellate cases.

Mr. Miller received his bachelor’s degree from Temple University, his juris doctorate from the University of Texas, and his Master of Arts from Westminster Theological Seminary.

To be fair, unlike Abend, Miller is absolutely qualified for the SIGPR position (which means he’ll be harder to block in the Senate). But by picking someone who has already demonstrated his willingness to put loyalty ahead of the Constitution, Trump has provided Mnuchin one more assurance that he can loot the bailout with almost no oversight.

What the Watergate Road Map Might Say about a Mueller Road Map

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In an interview last week, Rudy Giuliani explained that Trump had finished the open book test Mueller had given the President, but that they were withholding the answers until after tomorrow’s election, after which they’ll re-enter negotiations about whether Trump will actually answer questions on the Russian investigation in person or at all.

“I expect a day after the election we will be in serious discussions with them again, and I have a feeling they want to get it wrapped up one way or another.”

Meanwhile, one of the first of the post-election Administration shake-up stories focuses, unsurprisingly, on the likelihood that Trump will try to replace Jeff Sessions and/or Rod Rosenstein (though doesn’t headline the entire story “Trump set to try to end Mueller investigation,” as it should).

Some embattled officials, including Attorney General Jeff Sessions, are expected to be fired or actively pushed out by Trump after months of bitter recriminations.

[snip]

Among those most vulnerable to being dismissed are Sessions and Deputy Attorney General Rod J. Rosenstein, who is overseeing special counsel Robert S. Mueller III’s Russia investigation after Sessions recused himself. Trump has routinely berated Sessions, whom he faults for the Russia investigation, but he and Rosenstein have forged an improved rapport in recent months.

As I note in my TNR piece on the subject, there are several paths that Trump might take to attempt to kill the Mueller investigation, some of which might take more time and elicit more backlash. If Trump could convince Sessions to resign, for example, he could bring in Steven Bradbury or Alex Azar to replace him right away, meaning Rosenstein would no longer be Acting Attorney General overseeing Mueller, and they could do whatever they wanted with it (and remember, Bradbury already showed himself willing to engage in legally suspect cover-ups in hopes of career advancement with torture). Whereas firing Rosenstein would put someone else — Solicitor General Noel Francisco, who already obtained an ethics waiver for matters pertaining to Trump Campaign legal firm Jones Day, though it is unclear whether that extends to the Mueller investigation — in charge of overseeing Mueller immediately.

This may well be why Rudy is sitting on Trump’s open book test: because they’ve gamed out several possible paths depending on what kind of majority, if any, Republicans retain in the Senate (aside from trying to defeat African American gubernatorial candidates in swing states, Trump has focused his campaigning on retaining the Senate; FiveThirtyEight says the two most likely outcomes are that Republicans retain the same number of seats or lose just one, net). But they could well gain a few seats. If they have the numbers to rush through a Sessions replacement quickly, they’ll fire him, but if not, perhaps Trump will appease Mueller for a few weeks by turning in the answers to his questions.

That’s the background to what I focused on in my TNR piece last week: the Mueller report that Rudy has been talking about incessantly, in an utterly successful attempt to get most journalists covering this to ignore the evidence in front of them that Mueller would prefer to speak in indictments, might, instead, be the failsafe, the means by which Mueller would convey the fruits of his investigation to the House Judiciary Committee if Trump carries out a Wednesday morning massacre. And it was with that in mind that I analyzed how the Watergate Road Map served to do just that in this post.

In this post, I’d like to push that comparison further, to see what — if Mueller and his Watergate prosecutor James Quarles team member are using the Watergate precedent as a model — that might say about Mueller’s investigation. I’ll also lay out what a Mueller Road Map, if one awaits a Wednesday Morning Massacre in a safe somewhere, might include.

The Watergate prosecutors moved from compiling evidence to issuing the Road Map in just over six months

As early as August 1973, George Frampton had sent Archibald Cox a “summary of evidence” against the President. Along with laying out the gaps prosecutors had in their evidence about about what Nixon knew (remember, investigators had only learned of the White House taping system in July), it noted that any consideration of how his actions conflicted with his claims must examine his public comments closely.

That report paid particular attention to how Nixon’s White House Counsel had created a report that created a transparently false cover story. It described how Nixon continued to express full confidence in HR Haldeman and John Ehrlichman well after he knew they had been involved in the cover-up. It examined what Nixon must have thought the risks an investigation posed.

The Archives’ Road Map materials show that in the same 10 day period from January 22 to February 1, 1974 when the Special Prosecutor’s office was negotiating with the President’s lawyers about obtaining either his in-person testimony or at least answers to interrogatories, they were also working on a draft indictment of the President, charging four counts associated with his involvement in and knowledge of the bribe to Howard Hunt in March 1973. A month later, on March 1, 1974 (and so just 37 days after the time when Leon Jaworski and Nixon’s lawyers were still discussing an open book test for that more competent president), the grand jury issued the Road Map, a request to transmit grand jury evidence implicating the President to the House Judiciary Committee so it could be used in an impeachment.

Toto we’re not in 1974 anymore … and neither is the President

Let me clear about what follows: there’s still a reasonable chance Republicans retain the House, and it’s most likely that Republicans will retain the Senate. We’re not in a position where — unless Mueller reveals truly heinous crimes — Trump is at any imminent risk of being impeached. We can revisit all this on Wednesday after tomorrow’s elections and after Trump starts doing whatever he plans to do in response, but we are in a very different place than we were in 1974.

So I am not predicting that the Mueller investigation will end up the way the Watergate one did. Trump has far less concern for his country than Nixon did — an observation John Dean just made.

And Republicans have, almost but not quite universally, shown little appetite for holding Trump to account.

So I’m not commenting on what will happen. Rather, I’m asking how advanced the Mueller investigation might be — and what it may have been doing for the last 18 months — if it followed the model of the Watergate investigation.

One more caveat: I don’t intend to argue the evidence in this thread — though I think my series on what the Sekulow questions say stands up really well even six months later. For the rest of this post, I will assume that Mueller has obtained sufficient evidence to charge a conspiracy between Trump’s closest aides and representatives of the Russian government. Even if he doesn’t have that evidence, though, he may still package up a Road Map in case he is fired.

Jaworski had a draft indictment around the same time he considered giving Nixon an open book test

Even as the Watergate team was compiling questions they might pose to the President if Jaworski chose to pursue that route, they were drafting an indictment.

If the Mueller investigation has followed a similar path, that means that by the time Mueller gave Trump his open book test in October, he may have already drafted up an indictment covering Trump’s actions. That’s pretty reasonable to imagine given Paul Manafort’s plea deal in mid-September and Trump’s past statements about how his former campaign manager could implicate him personally, though inconsistent with Rudy’s claims (if we can trust him) that Manafort has not provided evidence against Trump.

Still, if the Jaworski Road Map is a guide, then Mueller’s team may have already laid out what a Trump indictment would look like if you could indict a sitting President. That said, given the complaints that DOJ had drafted a declination with Hillary before her interview, I would assume they would keep his name off it, as the Watergate team did in editing the Nixon indictment.

Then, a month after drawing up a draft indictment, Jaworski’s grand jury had a Road Map all packaged up ready to be sent to HJC.

Another crucial lesson of this comparison: Jaworksi did not wait for, and did not need, testimony from the President to put together a Road Map for HJC. While I’m sure he’ll continue pursuing getting Trump on the record, there’s no reason to believe Mueller needs that to provide evidence that Trump was part of this conspiracy to HJC.

Given that I think a Mueller report primarily serves as a failsafe at this point, I would expect that he would have some version of that ready to go before Wednesday. And that’s consistent with the reports — enthusiastically stoked by the President’s lawyers — that Mueller is ready to issue his findings.

If a Mueller report is meant to serve as a Road Map for an HJC led by Jerrold Nadler starting in January, then it is necessarily all ready to go (and hopefully copied and safely stored in multiple different locations), even if it might be added to in coming months.

The Road Map Section I included evidence to substantiate the the conspiracy

As I laid out here, the Watergate Road Map included four sections: 

I. Material bearing on a $75,000 payment to E. Howard Hunt and related events

II. Material bearing on the President’s “investigation”

III. Material bearing on events up to and including March 17, 1973

IV. The President’s public statements and material before the grand jury related thereto

The first section maps very closely to the overt acts laid out in the February 1 draft indictment, incorporating two acts into one and leaving off or possibly redacting one, but otherwise providing the grand jury evidence — plus some interim steps in the conspiracy — that Jaworski would have used to prove all the overt acts charged in the conspiracy charge from that draft indictment.

If Mueller intended to charge a quid pro quo conspiracy — that Trump accepted a Russian offer to drop dirt, possibly emails explicitly, in response for sanctions relief (and cooperation on Syria and other things) — then we could imagine the kinds of overt acts he might use to prove that:

  • Foreknowledge of an offer of dirt and possibly even emails (Rick Gates and Omarosa might provide that)
  • Trump involvement in the decision to accept that offer (Paul Manafort had a meeting with Trump on June 7, 2016 that might be relevant, as would the immediate aftermath of the June 9 meeting)
  • Trump signaling that his continued willingness to deliver on the conspiracy (as early as the George Papadopoulos plea, Mueller laid out some evidence of this, plus there is Trump’s request for Russia to find Hillary emails, which Mueller has already shown was immediately followed by intensified Russian hacking attempts)
  • Evidence Russia tailored releases in response to Trump campaign requests (Roger Stone may play a key role in this, but Mueller appears to know that Manafort even more explicitly asked Russia for help)
  • Evidence Trump moved to pay off his side of the deal, both by immediately moving to cooperate on Syria and by assuring Russia that the Trump Administration would reverse Obama’s sanctions

Remember, to be charged, a conspiracy does not have to have succeeded (that is, it doesn’t help Trump that he hasn’t yet succeeded in paying off his debt to Russia; it is enough that he agreed to do so and then took overt acts to further the conspiracy).

In other words, if Mueller has a Road Map sitting in his safe, and if I’m right that this is the conspiracy he would charge, there might be a section that included the overt acts that would appear in a draft indictment of Trump (and might appear in an indictment of Trump’s aides and spawn and the Russian representatives they conspired with), along with citations to the grand jury evidence Mueller has collected to substantiate those overt acts.

Note, this may explain whom Mueller chooses to put before the grand jury and not: that it’s based off what evidence Mueller believes he would need to pass on in sworn form to be of use for HJC, to (among other things) help HJC avoid the protracted fights over subpoenas they’ll face if Democrats do win a majority.

The Road Map Section II described how the White House Counsel tried to invent a cover story

After substantiating what would have been the indictment against Nixon, the Watergate Road Map showed how Nixon had John Dean and others manufacture a false exonerating story. The Road Map cited things like:

  • Nixon’s public claims to have total confidence in John Dean
  • Nixon’s efforts to falsely claim to the Attorney General, Richard Kleindienst, that former AG John Mitchell might be the most culpable person among Nixon’s close aides
  • Nixon’s instructions to his top domestic political advisor, John Ehrlichman, to get involved in John Dean’s attempts to create an exculpatory story
  • Press Secretary Ron Ziegler’s public lies that no one knew about the crime
  • Nixon’s efforts to learn about what prosecutors had obtained from his close aides
  • Nixon’s private comments to his White House Counsel to try to explain away an incriminating comment
  • Nixon’s ongoing conversations with his White House Counsel about what he should say publicly to avoid admitting to the crime
  • Nixon’s multiple conversations with top DOJ official Henry Petersen, including his request that Peterson not investigate some crimes implicating the Plumbers
  • Nixon’s orders to his Chief of Staff, HR Haldeman, to research the evidence implicating himself in a crime

This is an area where there are multiple almost exact parallels with the investigation into Trump, particularly in Don McGahn’s assistance to the President to provide bogus explanations for both the Mike Flynn and Jim Comey firings — the former of which involved Press Secretary Sean Spicer and Chief of Staff Reince Priebus, the latter of which involved Trump’s top domestic political advisor Stephen Miller. There are also obvious parallels between the Petersen comments and the Comey ones. Finally, Trump has made great efforts to learn via Devin Nunes and other House allies what DOJ has investigated, including specifically regarding the Flynn firing.

One key point about all this: the parallels here are almost uncanny. But so is the larger structural point. These details did not make the draft Nixon indictment. There were just additional proof of his cover-up and abuse of power. The scope of what HJC might investigate regarding presidential abuse is actually broader than what might be charged in an indictment.

The equivalent details in the Mueller investigation — particularly the Comey firing — have gotten the bulk of the press coverage (and at one point formed a plurality of the questions Jay Sekulow imagined Mueller might ask). But the obstruction was never what the case in chief is, the obstruction started when Trump found firing Flynn to be preferable to explaining why he instructed Flynn, on December 29, to tell the Russians not to worry about Obama’s sanctions. In the case of the Russia investigation, there has yet to be an adequate public explanation for Flynn’s firing, and the Trump team’s efforts to do so continue to hint at the real exposure the President faces on conspiracy charges.

In other words, I suspect that details about the Comey firing and Don McGahn’s invented explanations for it that made a Mueller Road Map might, as details of the John Dean’s Watergate investigation did in Jaworski’s Road Map, as much to be supporting details to the core evidence proving a conspiracy.

The Road Map Section III provided evidence that Nixon knew about the election conspiracy, and not just the cover-up

The third section included some of the most inflammatory stuff in Jaworski’s Road Map, showing that Nixon knew about the campaign dirty tricks and describing what happened during the 18 minute gap. Here’s where I suspect Jaworski’s Road Map may differ from Mueller’s: while much of this section provides circumstantial evidence to show that the President knew about the election crimes ahead of time, my guess is (particularly given Manafort’s plea) that Mueller has more than circumstantial evidence implicating Trump. In a case against Trump, the election conspiracy — not the cover-up, as it was for Nixon — is the conspiracy-in-chief that might implicate the President.

The Road Map Section III described Nixon’s discussions about using clemency to silence co-conspirators

One other area covered by this section, however, does have a direct parallel: in Nixon’s discussions about whether he could provide clemency to the Watergate defendants. With both Flynn and Manafort cooperating, Mueller must have direct descriptions of Trump’s pardon offers. What remains to be seen is if Mueller can substantiate (as he seems to be trying to do) Trump willingness to entertain any of the several efforts to win Julian Assange a pardon. There’s no precedent to treat offering a pardon as a crime unto itself, but it is precisely the kind of abuse of power the founders believed merited impeachment. Again, it’s another thing that might be in a Mueller Road Map that wouldn’t necessarily make an indictment.

The Road Map Section IV showed how Nixon’s public comments conflicted with his actions

We have had endless discussions about Trump’s comments about the Russian investigation on Twitter, and even by March, at least 8 of the questions Sekulow imagined Mueller wanted to ask pertained to Trump’s public statements.

  • What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
  • What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
  • What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
  • What was the purpose of your May 12, 2017, tweet?
  • What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
  • What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
  • What was the purpose of your July 2017 criticism of Mr. Sessions?
  • What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

The Watergate Road Map documents a number of public Nixon comments that, like Trump’s, are not themselves criminal, but are evidence the President was lying about his crimes and cover-up. The Watergate Road Map describes Nixon claiming that:

  • He did not know until his own investigation about efforts to pay off Watergate defendants
  • He did not know about offers of clemency
  • He did not know in March 1973 there was anything to cover up
  • His position has been to get the facts out about the crime, not cover them up
  • He ordered people to cooperate with the FBI
  • He had always pressed to get the full truth out
  • He had ordered legitimate investigations into what happened
  • He had met with Kleindienst and Peterson to review what he had learned in his investigation
  • He had not turned over evidence of a crime he knew of to prosecutors because he assumed Dean already had
  • He had learned more about the crimes between March and April 1973

Admittedly, Trump pretended to want real investigations — an internal investigation of what Flynn had told the FBI, and an external investigation into the election conspiracy — for a much briefer period than Nixon did (his comments to Maria Bartiromo, which I covered here, and Lester Holt, which I covered here, are key exceptions).

Still, there are a slew of conflicting comments Trump has made, some obviously to provide a cover story or incriminate key witnesses, that Mueller showed some interest in before turning in earnest to finalizing the conspiracy case in chief. A very central one involves the false claims that Flynn had said nothing about sanctions and that he was fired for lying to Mike Pence about that; probably at least 7 people knew those comments were false when Sean Spicer made them.  Then there are the at least 52 times he has claimed “No Collusion” or the 135 times he has complained about a “Witch Hunt” on Twitter.

Trump’s lawyers have complained that his public comments have no role in a criminal investigation (though the likelihood he spoke to Putin about how to respond as the June 9 meeting story broke surely does). But Mueller may be asking them for the same reason they were relevant to the Watergate investigation. They are evidence of abuse of power.

The Road Map included the case in chief, not all the potential crimes

Finally, there is one more important detail about the Road Map that I suspect would be matched in any Mueller Road Map: Not all the crimes the Special Prosecutor investigated made the Road Map. The Watergate team had a number of different task forces (as I suspect Mueller also does). And of those, just Watergate (and to a very limited degree, the cover-up of the Plumbers investigation) got included in the Road Map.

Here, we’ve already seen at least one crime get referred by Mueller, Trump’s campaign payoffs. I’ve long suggested that the Inauguration pay-to-play might also get referred (indeed, that may be the still-active part of the grand jury investigation that explains why SDNY refuses to release the warrants targeting Michael Cohen). Mueller might similarly refer any Saudi, Israeli, and Emirate campaign assistance to a US Attorney’s office for investigation. And while it’s virtually certain Mueller investigated the larger network of energy and other resource deals that seem to be part of what happened at the Seychelles meetings, any continuing investigation may have been referred (indeed, may have actually derived from) SDNY.

In other words, while a Mueller Road Map might include things beyond what would be necessary for a criminal indictment, it also may not include a good number of things we know Mueller to have examined, at least in passing.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.