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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 

The Purpose of a Mueller Report: for Referral to Congress If He Gets Fired

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I said some weeks ago that I had finally figured out the point of the report that the Mueller investigation is doing. I lay that out in this TNR piece on what would happen if Democrats win the House but he is fired. While a report would not be necessary if Mueller continues to speak, as he has done, in indictments, it would serve as a vehicle to transfer grand jury information to the House Judiciary Committee rooted in the Watergate precedent.

Mueller’s activities thus far have been laid out in plea deals and highly detailed “speaking” indictments, which provide far more information about the actions involved than strictly necessary for legal purposes. But according to the regulationthat governs his appointment, at the end of his investigation Mueller must also provide the attorney general with “a confidential report explaining the prosecution or declination decisions reached by the special counsel.” Also upon completion of the investigation, if the attorney general overrules an action Mueller wanted to take, he or she must notify the chair and ranking members of the Judiciary Committee.

[snip]

[A] Watergate precedent suggests the House could obtain the report if Mueller were fired.

Some Freedom of Information Act requests have recently focused attention on—and may lead to the public release of—a report similar to the one Mueller is mandated to complete. It was the report done by Watergate prosecutor Leon Jaworski, referred to as the “Road Map.” The Road Map consists of a summary and 53 pages of evidentiary descriptions, each citing the underlying grand jury source for that evidentiary description. In 1974, Jaworski used it to transmit information discovered during his grand jury investigation to the House Judiciary Committee—which then used the report to kickstart its impeachment investigation.

Before Jaworski shared the Road Map, however, he obtained authorization from then-Chief Judge John Sirica of the D.C. Circuit Court. In Sirica’s opinion authorizing the transfer, he deemed the report to be material to House Judiciary Committee duties. He further laid out how such a report should be written to avoid separation of powers issues. The report as compiled by Jaworski offered “no accusatory conclusions” nor “substitute[s] for indictments where indictments might properly issue.” It didn’t tell Congress what to do with the information. Rather it was “a simple and straightforward compilation of information gathered by the Grand Jury, and no more.” Per Sirica, that rendered the report constitutionally appropriate to share with another branch of government.

If Mueller—whose team includes former Watergate prosecutor James Quarles—were fired and he leaves any report behind that fits the standards laid out here, this Watergate precedent should ensure it could be legally shared with the House Judiciary Committee.

If that’s right — if that’s how Mueller is treating a report while he moves towards any further indictments — then Rudy Giuliani’s efforts to focus attention on it would be ironic. Because if Trump is planning a Wednesday morning massacre for November 7, as Rudy’s stall on turning in Trump’s completed open book test until after the election suggests may be in the works…

President Donald Trump’s legal team has prepared written responses to several dozen questions from Special Counsel Robert Mueller but say they won’t submit them until after next week’s elections and only if they reach a broader agreement with Mueller on terms for the questioning.

Rudy Giuliani, Trump’s personal attorney, said in an interview Monday that the answers relate only to whether Trump colluded with Russia during his presidential campaign. He said the legal team is still unwilling to answer any questions concerning obstruction of justice by the president.

[snip]

Giuliani said Mueller still could pose additional questions, and he called the ones received so far “a good sample.” He said he expects the issue to be resolved by the end of November. Once the election is past, Trump’s lawyers are bracing for a flurry of activity from Mueller.

“We have an informal agreement that while negotiating the final details of a Q&A that we wouldn’t comment much, we have been sort of quiet,” Giuliani said. “But 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.”

Then any work on a report simply ensures there’s something that HJC could obtain and use to reconstruct what Mueller has done.

Frothy Republicans Confuse Oleg Deripaska and Donald Trump

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A letter from Elijah Cummings and Jerrold Nadler to Trey Gowdy and Bob Goodlatte answers two questions I’ve had since John Solomon and the rest of the propaganda mill started reporting on Christopher Steele’s communications with Bruce Ohr.

First, the communications that frothy right propagandists all seem to have, have not been officially released. Indeed, Cummings and Nadler complain that in the questioning of Ohr last week, Democrats weren’t even shown the communications that all the frothy right seems to have.

These documents were not included in the 800,000 pages of documents the Justice Department produced to our Committee during this investigation. During Mr. Ohr’s interview, the Republican Members never introduced these documents into the official record, never marked them as exhibits, never explained how they obtained them, and never provided copies to Democratic staff participating in the interview.

More hilariously, the letter reveals that Republicans read a reference Steele made to “our favorite business tycoon” and assumed — premised on the notion that everything Steele was doing at the time had to have been a conspiracy against Trump — that that must be a reference to Trump.

First, by cherry-picking portions of these documents out of context–and withholding the full set of documents–Republican Members are creating a highly misleading narrative with factually inaccurate interpretations and conjecture. For example, Republican Members read aloud a portion of one email in which Mr. Steele wrote to Mr. Ohr, “There is something I wanted to discuss with you informally and separately. It concerns our favorite business tycoon.” When Republican Members accused Mr. Ohr of discussing President Donald Trump with Mr. Steele, Mr. Orh explained that the Republican interpretation was false–and that the “business tycoon ” they were referring to was actually Russian oligarch Oleg Deripaska.

Cummings and Nadler point out that that interpretation has leaked to frothy right propagandists.

[S]elect portions of some of these same documents have no been leaked to the press to create similarly false and misleading narratives. For example, on August 7, 2018, John Solomon wrote in The Hill that he was given some of “Ohr’s own notes, emails and text messages.” In his piece, Mr. Solomon quoted the same email in which Mr. Ohr and Mr. Steele discussed “our favorite business tycoon.” Then, like the Republican Members, Mr. Solomon asserted inaccurately that this statement was “an apparent reference to Trump.”

Here’s how Solomon spun it.

Some of the more tantalizing Ohr contacts occurred in the days when Steele made his first contacts with the FBI in summer 2016 about the Russia matter.

“There is something separate I wanted to discuss with you informally and separately. It concerns our favourite business tycoon!” Steele wrote Ohr on July 1, 2016, in an apparent reference to Trump.

That overture came just four days before Steele walked into the FBI office in Rome with still-unproven allegations that Trump had an improper relationship with Russia, including possible efforts to hijack the presidential election.

And how Byron York repeated that “reasonable” supposition.

On March 17, Steele wrote a brief note asking if Ohr had any update on plans to visit Europe “in the near term where we could meet up.” Ohr said he did not and asked if Steele would like to set up a call. It is not clear whether a call took place.

There are no emails for more than three months after March 17. Then, on July 1, came the first apparent reference to Donald Trump, then preparing to accept the Republican nomination for president. “I am seeing [redacted] in London next week to discuss ongoing business,” Steele wrote to Ohr, “but there is something separate I wanted to discuss with you informally and separately. It concerns our favourite business tycoon!” Steele said he had planned to come to the U.S. soon, but now it looked like it would not be until August. He needed to talk in the next few days, he said, and suggested getting together by Skype before he left on holiday. Ohr suggested talking on July 7. Steele agreed.

Ohr’s phone log for July 7 notes, “Call with Chris Steele” from 8:00 a.m. to 8:30 a.m. eastern time.

(A caution here: It is possible the “favourite business tycoon” could be Deripaska, or perhaps even someone else, and not Trump. But no one referred to Deripaska in that way anywhere else in the communications. Also, Steele made it clear the “tycoon” subject was separate from other business. And July 1 was just before Steele met with the FBI with the first installment of the Trump dossier. So it appears reasonable, given Steele’s well-known obsession with Trump, and unless information emerges otherwise, to see the “favourite business tycoon” as Trump.)

Followed, marginally more critically, by Chuck Ross.

On July 1, 2016, Steele reached out to Ohr in hopes of discussing “our favourite business tycoon!” It is unclear if Steele was referring to Deripaska or Donald Trump. Steele met with Ohr and his wife, a Russia expert named Nellie Ohr, on July 30, 2016, at a Washington, D.C., hotel.

When I wrote this up, I noted the problematic assumption.

But in their effort to make everything an expert on Russian organized crime touched into a conspiracy against Donald Trump, the frothy right has just confused Trump and a mobbed up Russian oligarch.

I mean, there’s a clear difference. Deripaska really is as rich as he claims.

The 702 Capitulations: a Real Measure of the “Deep State”

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There were two details of the Section 702 reauthorization in the House that deserve more attention, as the Senate prepares for a cloture vote today at 5:30.

First, in the Rules Committee hearing for the bill, Ranking House Judiciary Committee member Jerry Nadler revealed that the FBI stopped engaging with his staffers when the two sides reached a point on negotiations over the bill beyond which they refused to budge.

Effectively, FBI just used the dual HJC/House Intelligence jurisdiction over FISA to avoid engaging in the legislative process, to avoid making any concessions to representatives supposedly overseeing this program.

As a result, the final bill included only a sham warrant requirement — one that will give criminal suspects more protection against warrantless search than it gives people against whom the FBI has no suspicion — and provided an easy way for the NSA to turn “about” collection (which has been the source of repeated NSA violations of FISA over the years) back on.

Then there was the effort Nancy Pelosi made to use the President’s reactive FISA tweet to impose a few more limits on the warrant requirement. In a filibustering speech, she suggested that Trump’s tweet claiming his had been surveilled and abused under the law (in reality, Title I warrants were used during the campaign, but Section 702 has likely been part of the investigation as well) necessitated a motion to recommit instructing HPSCI to boost the protections for Americans.

Pelosi had to have know the motion would fail (it did, with just six of the most libertarian Republicans joining Democrats in support). She counts votes better than anyone.

What the vote was really about was an effort not to fix the real problems with the bill. Nor was it a meaningful effort to add anything but illusory protections to the bill. It was an effort to make a vote in support of the bill more politically palatable. Pelosi (and Adam Schiff, who worked closely with Pelosi on this front) appears to have known that there will be political costs for supporting this bill, perhaps especially in San Francisco where one-fifth of Pelosi’s constituents are Chinese-American, one of the groups most disproportionately affected by the spying program.

She knew she was going to have to vote for the bill, political cost and all, and was trying to use Trump’s tweet to minimize the costs of doing so.

These two events, in my opinion, show how dysfunctional legislation affecting the “Deep State,” the entrenched national security bureaucracy, is. There is a clear political recognition among the Democratic leaders cooperating in passing the bill that the bill goes too far. Probably, they worry about what will happen when we learn how Jeff Sessions will use the unreviewable authority to deem either warrantless back door searches for Americans’ names or retention of Tor and VPN domestic collection a “national security” issue to target Democratic constituencies.

But that recognition was not enough to muster the political will to oppose the bill.

Heads the “Deep State” wins, tails democratic oversight fails.

Four Reasons USA Freedumber is Worse than the Status Quo

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In the post-HR 3361 passage press conference yesterday, Jerry Nadler suggested the only reason civil libertarians oppose the bill is because it does not go far enough.

That is, at least in my case, false.

While I have concerns about unintended consequences of outsourcing holding the call data to the telecoms (see my skepticism that it ends bulk collection here and my concerns about high volume numbers here), there are a number of ways that USA Freedumber is worse than the status quo.

These are:

  • The move to telecoms codifies changes in the chaining process that will almost certainly expand the universe of data being analyzed
  • In three ways, the bill permits phone chaining for purposes outside of counterterrorism
  • The bill weakens minimization procedures on upstream collection imposed by John Bates, making it easier for the government to collect domestic content domestically
  • The bill guts the current controls on Pen Register authority, making it likely the government will resume its Internet dragnet

The NSA in your smart phone: Freedumber codifies changes to the chaining process

As I have described, the language in USA Freedumber makes it explicit that the government and its telecom partners can chain on connections as well as actual phone call contacts. While the new automatic search process approved by the FISA Court in 2012 included such chaining, by passing this bill Congress endorses this approach. Moreover, the government has never been able to start running such automatic queries; it appears they have to outsource to the telecoms to be able to do so (probably in part to make legal and technical use of location data). Thus, moving the phone chaining to the telecoms expands on the kinds of chaining that will be done with calls.

We don’t know all that that entails. At a minimum (and, assuming the standard of proof is rigorous, uncontroversially) the move will allow the government to track burner phones, the new cell phones targets adopt after getting rid of an old one.

It also surely involves location mapping. I say that, in part, because if they weren’t going to use location data, they wouldn’t have had to move to the telecoms. In addition, AT&T’s Hemisphere program uses location data, and it would be unrealistic to assume this program wouldn’t include at least all of what Hemisphere already does.

But beyond those two functions, your guess is as good as mine. While the chaining must produce a Call Detail Record at the interim step (which limits how far away from actual phone calls the analysis can get), it is at least conceivable the chaining could include any of a number of kinds of data available to the telecoms from smart phones, including things like calendars, address books, and email.

The fact that the telecoms and subsidiary contractors get immunity and compensation makes it more likely that this new chaining will be expansive, because natural sources of friction on telecom cooperation will have been removed.

Freedumber provides three ways for NSA to use the phone dragnet for purposes besides counterterrorism

As far as we know, the current dragnet may only be used for actual terrorist targets and Iran. But USA Freedumber would permit the government to use the phone dragnet to collect other data by:

  • Requiring only that selection terms be associated with a foreign power
  • Permitting the retention of data for foreign intelligence, not just counterterrorism, purposes
  • Allowing the use of emergency queries for non-terrorism uses

Freedumber permits searches on selection terms associated with foreign powers

On its face, USA Freedumber preserves this counterterrorism focus, requiring any records obtained to be “relevant to” an international terrorist investigation. Unfortunately, we now know that FISC has already blown up the meaning of “relevant to,” making all data effectively relevant.

The judicial approval of the specific selection term, however — the court review that should be an improvement over the status quo — is not that tie to terrorism, but evidence that the selection term is a foreign power or agent thereof.

Thus, the government could cite narcoterrorism, and use the chaining program to investigate Mexican drug cartels. The government could raise concerns that al Qaeda wants to hack our networks, and use chaining to investigate hackers with foreign ties. The government could allege Venezuela supports terrorism and investigate Venezuelan government sympathizers.

There are a whole range of scenarios in which the government could use this chaining program for purposes other than counterterrorism.

Freedumber permits the retention of any data that serves a foreign intelligence purpose

And once it gets that data, the government can keep it, so long as it claims (to itself, with uncertain oversight from the FISC) that the data has a foreign intelligence purpose.

At one level, this is a distinction without a difference from the language that USA Freedumb had used, which required the NSA to destroy the data after five years unless it was relevant to a terrorism investigation (which all data turned over to NSA would be, by definition). But the change in language serves as legislative approval that the use of the data received via this program can be used for other purposes.

That will likely have an impact on minimization procedures. Currently, the NSA needs a foreign intelligence purpose to access the corporate store, but can only disseminate data from it for counterterrorism purposes. I would imagine the changed language of the bill will lead the government to successfully argue that the minimization procedures permit the dissemination of US person data so long as it meets only this flimsy foreign intelligence purpose. In other words, US person data collected in chaining would be circulating around the government more freely.

Freedumber’s emergency queries do not require any tie to terrorism

As I noted, the revisions USA Freedumber made to USA Freedumb explicitly removed a requirement that emergency queries be tied to a terrorism investigation.

(A) reasonably determines that an emergency situation requires the production of tangible things to obtain information for an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to protect against international terrorism before an order authorizing such production can with due diligence be obtained;

That’s particularly troublesome, because even if the FISC rules the emergency claim (certified by the Attorney General) was not legally valid after the fact, not only does the government not have to get rid of that data, but the Attorney General (the one who originally authorized its collection) is the one in charge of making sure it doesn’t get used in a trial or similar proceeding.

In short, these three changes together permit the government to use the phone dragnet for a lot more uses than they currently can.

Freedumber invites the expansion of upstream collection

When John Bates declared aspects of upstream collection to be unconstitutional in 2011, he used the threat of referrals under 50 USC 1809(a) to require the government to provide additional protection both to entirely domestic communications that contained a specific selector, and to get rid of domestic communications that did not contain that specific selector at all. The government objected (and considered appealing), claiming that because it hadn’t really intended to collect this data, it should be able to keep it and use it. But ultimately, that threat (especially threats tied to the government’s use of this data for ongoing FISA orders) led the government to capitulate.

The changes in Freedumber basically allow the government to adopt its old “intentional” claim, reversing Bates’ restrictions. Read more →

Did Administration Stall Congressional Oversight Just to Beat ACLU in Court?

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In an interview with WSJ last March, White House Counsel Kathryn Ruemmler said that publicly explaining the drone program would be “self-defeating.”

White House Counsel Kathy Ruemmler acknowledged Mr. Obama has developed a broader view of executive power since he was a senator. In explaining the shift, she cited the nature of the office.

“Many issues that he deals with are just on him, where the Congress doesn’t bear the burden in the same way,” she said. “Until one experiences that first hand, it is difficult to appreciate fully how you need flexibility in a lot of circumstances.”

[snip]

Ms. Ruemmler said Mr. Obama tries to publicly explain his use of executive power, but says certain counterterrorism programs like the drone campaign are exceptions. Opening them to public scrutiny would be “self-defeating,” she said.

At the time, I thought she was treating the NYT and ACLU as “the public.” After all, in a debate over releasing the targeted killing memos in the situation room in November 2011, she had warned that releasing the memo might weaken the government’s position in litigation, presumably the FOIA battle with the two entities.

The CIA and other elements of the intelligence community were opposed to any disclosures that could lift the veil of secrecy from a covert program. Others, notably the Justice and State departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation. Among the proposals discussed in the fall: releasing a “white paper” based on the Justice memo, publishing an op-ed article in The New York Times under Holder’s byline, and making no public disclosures at all.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. [my emphasis]

But having now updated my timeline of the over 14 requests members of Congress have made for the targeted killing memos, she seems to lump Congress with the ACLU and NYT.

More troubling, though: it appears the White House stalled its response to Congress for almost nine months simply to gain an advantage in the ACLU FOIA lawsuits.

Here are the relevant dates: Read more →

The Administration Has Not Responded to Over 10 Congressional Requests for Targeted Killing Memo

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Back in September 2010, when the Administration successfully argued that whether or not the government had the authority to kill Anwar al-Awlaki was a matter for the Executive and Congressional Branches to decide, it claimed Congress served as a check on that power.

The nonjusticiability of the plaintiff’s claims in this Court “does not leave the executive power unbounded.” Schneider, 412 F.3d at 200. “The political branches effectively exercise such checks and balances on each other in the area of political questions[,]” and “[i]f the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance.” Id. Accordingly, “the allocation of political questions to the political branches is not inconsistent with our constitutional tradition of limited government and balance of powers.” Id.

The Administration’s behavior in the interim period has proven those assurances to be utterly false. Congress has asked the Administration on more than 10 separate occasions for the OLC memo authorizing the killing of Anwar al-Awlaki (many of these 10 documented requests refer to earlier requests, and Pat Leahy sent President Obama a letter that his office could not share).

And yet here we are, 22 months after the Administration assured Judge John Bates that Congress exercised some kind of check on the Executive, at least 17 months after members of Congress first started asking for the legal analysis, and the Administration has not responded to those requests.

Here are the requests.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program. (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing. (7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

Gul Rahman and Manadel al-Jamadi Investigations: The New Information

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In his announcement that John Durham is investigating the deaths by torture of two CIA detainee, Eric Holder suggested that John Durham reviewed information that had not been reviewed by the prosecutors who had earlier declined to prosecute the cases.

That review included both information and matters that had never previously been examined by the Department.

He implied that one source of that new information might be some of the reports–among other things, the CIA IG Report and the OPR Report.

He identified the matters to include within his review by examining various sources including the Office of Professional Responsibility’s report regarding the Office of Legal Counsel memoranda related to enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced interrogations, additional matters investigated by the CIA Office of Inspector General, the February 2007 International Committee of the Red Cross Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, and public source information.

I wanted to look at what that new information might be.

Manadel al-Jamadi

The AP advances the issue in the case of Manadel al-Jamadi by reporting on what Lynndie England and other Abu Ghraib testified about at their grand jury appearance earlier this month (England’s testimony was first reported by Jane). Of note, the prosecutor asked who put al-Jamadi in the stress position that ultimately ended up effectively crucifying him–and asked questions about a hood that “disappeared.”

Another person who testified told the AP that prosecutors asked about a hood placed over al-Jamadi’s head that later disappeared and who shackled al-Jamadi’s arms behind his back and bound them to a barred window. This witness requested anonymity to avoid being connected publicly with the case.

As a threshold matter, if this person offered some new insight into the people personally involved in al-Jamadi’s asphyxiation–perhaps something that had been reflected in the IG report–then it might constitute new information. There’s also the question of how al-Jamadi’s treatment exceeded the torture John Yoo authorized; both the type of stress position used and the hood might qualify (and the importance of it would be reflected in the 2007 ICRC Report). We know, for example, that on May 26, 2010, Jay Bybee told the House Judiciary Committee that the CIA had not asked about–and so the Bybee Memo had not addressed–whether shackling someone to the ceiling fit the memo’s definition of a stress position.

Jerrold Nadler: Does Bybee Memo 2 or any other legal advice you gave at OLC authorize shackling a detainee to a hook in the ceiling as was described in my earlier question?

Jay Bybee: I don’t recall that any place in Bybee Memo 2 that we have addressed the question of shackling. So I don’t think it was one of the assumptions on which the CIA requested our advice. (Page 85-86)

So one new piece of evidence is Bybee’s testimony that he–and therefore Yoo–did not approve the crucifixion-type stress position that contributed to al-Jamadi’s death.

But that disappearing hood is worth noting by itself–it reflects an intent to cover up the crime.

Gul Rahman

I’m more interested in the possibly new information about Gul Rahman, because some reporting I’ve done reflects why DOJ revisited some of this.

As I noted here, amidst a discussion about prosecution declinations on PDF 72 of the second draft of the OPR Report, the OPR recommended reopening a specific declination because of the changed legal landscape.

The EDVA Memorandum was issued after the Bybee Memo had been publicly withdrawn, but before the Supreme Court’s decision in Hamdan. Accordingly. the prosecutors may have relied upon OLC’s erroneous determination that the War Crimes Act did not apply to suspected terrorists held abroad. We found no indication, however, that the EDVA declination decisions were revisited after Hamdan. In reviewing the declination decisions, the Department will have to determine whether prior OLC opinions and executive orders bar prosecution of these matters.

Now, this reference might refer to the death threats used with Abd al Rahim al-Nashiri (which today’s announcement suggests have been dropped), because that’s what the discussion preceding the four redacted pages immediately preceding this discussion treats. But we know from a footnote in Jay Bybee’s Second Response to the report that page 92 of the IG Report–that is, at least part of the second page of redaction–refers to the CIA’s argument that Rahman’s death shouldn’t be prosecuted, so it may well be Rahman. In any case, what’s key is that the OPR Report notes the EDVA’s reliance on OLC’s claim that crimes committed overseas couldn’t be prosecuted to be false.

That’s not the only “new” jurisdictional issue addressing whether crimes against Rahman could be prosecuted.

As I have written at length, the Bullet Point document–which appears to have been drafted as part of CIA’s information collection process in response to the IG Report and used as part of the declination process–also directly addressed whether crimes committed in the process of torture could be prosecuted. And one of the things included in it was the claim that no ordinary crimes (like negligent homicide, which would be relevant to Rahman’s death) could be prosecuted.

And in August 10, 2009. the 4th Circuit made it clear in David Passaro’s case that the Asadabad Firebase counted as a military mission at which US law applied. That’s precisely the kind of jurisdictional issue prosecutors used to decline the case in the past.

CIA officials referred the Salt Pit case to the Justice Department five years ago. Prosecutors concluded at the time that the Afghan prison was outside the reach of U.S. law, even though the CIA funded it and vetted its home-country guards.

Given that EDVA is in the same circuit, and given that Asadabad was less established than the Salt Pit, the fairly broad reading of this jurisdictional issue in Passaro’s case may impact Gul Rahman’s.

But the Bullet Point document is interesting for another reason that may pertain to Rahman’s death: because Rahman was reportedly water doused. Particularly given Holder’s emphasis on Yoo’s approvals, it’s relevant that the CIA stuck water dousing into the Bullet Point documents, after Rahman’s death, to suggest OLC had approved it as a torture technique.

But they hadn’t.

Which Bybee confirmed when he testified to HJC.

Nadler: Did Bybee Memo 2 or any other legal advice you gave at OLC authorize dousing detainees with cold water to keep them awake?

Bybee: Dousing with cold water was not one of the techniques that we were asked about in Bybee 2.

Nadler: So the answer is “no”?

Bybee: That’s right. (Page 104)

A full understanding of the Bullet Point documents, if the prosecutors didn’t already have one, would be one new factor making it possible to charge for water dousing and the subsequent death. But Bybee’s testimony would confirm that water dousing was not included in the Bybee Memos.

There’s some more, which I’ll get to in a subsequent post or three.

But for now, it looks like Durham has a few new details, a changed legal framework (because of Hamdan and, in Rahman’s case, possibly because of Passaro), and Jay Bybee’s testimony making it clear that the stress position and the water dousing that led to these detainees’ deaths had not been approved by OLC.

SJC to Consider Re-Confirmation of Guy Who Let Major Domestic Terror Attack Go Unsolved

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At 10, the Senate Judiciary Committee will consider the extension of Robert Mueller’s term at FBI by two more years. You’ll no doubt hear Ranking Member Chuck Grassley make all sorts of complaints about FBI in his wonderful grouchy Iowa voice. You’ll hear Jim Comey recount the dramatic hospital confrontation from 2004.

But you’re unlikely to hear Chairman Patrick Leahy ask Mueller why he has let Leahy’s own attempted murder in the 2001 anthrax attack go unsolved.

Oh sure, the FBI claimed they had solved the anthrax attack last year when they closed the investigation. But as I first reported in 2008, Leahy doesn’t (or at least didn’t) believe that accused anthrax killer Bruce Ivins acted alone.

The FBI’s case against Ivins started eroding right after his death, as Ivins’ own will made it clear that the motive the FBI had attributed to him made no sense. Then it became more and more clear that FBI claims about the record and anthrax keeping standards at USAMRIID were overly optimistic, meaning their assertion that Ivins had control of a flask of anthrax couldn’t be trusted. But the real blow for the FBI’s claims about the anthrax came after–having spent three years waving the shiny object of the cool science they used to “solve” the case–the National Academy of Science poked a bunch more holes in their case. Not only were the FBI’s claims about Ivins’ flask not as certain as the FBI claimed they were, but the FBI had never answered lingering problems about the chemicals involved in the anthrax, which made the FBI’s failure to talk about how Ivins could have made the anthrax all the more problematic, not to mention made one of FBI’s most compelling pieces of evidence against Ivins–his time in his lab–meaningless.

Pretty much what the FBI is left with are a few suspicious incidents and Ivins’ weird obsession about a probably unrelated sorority, which a bunch of self-interested shrinks have helpfully sensationalized.

And the failure to really solve the anthrax case comes on top of the earlier failure in targeting Steven Hatfill for several years.

Now, I wouldn’t necessarily hold the FBI’s failure to solve the most serious terrorist attack in the US since 9/11 against Mueller–it is a tougher case to solve, after all, than 9/11 itself.

But rather than allow Congressional overseers to examine the FBI’s work to both see what went wrong and what leads they may have ignored, Mueller has been refusing such oversight. He (and the FBI generally) have stonewalled and lied when members of Congress asked questions about the weak points in the FBI case against Ivins. More galling still, to me, is that he out and out lied to Chuck Grassley in 2009, telling Grassley that an independent review of the investigation would be detrimental to ongoing litigation. What Mueller didn’t tell Grassley is that he had already secretly engaged the Shrinks-4-Hire to do their own purportedly independent review of the investigation, a report apparently designed to rebut the obvious weaknesses the NAS would find.

Mueller was fine to do an “independent” review, apparently, so long as the FBI could game the outcome.

Mind you, Mueller’s refusal to accept any real oversight on this case has been assisted by President Obama, who used a veto threat to discourage a true congressional inquiry.

In short, under Mueller’s leadership, the FBI badly fucked up the anthrax investigation. And rather than review why the FBI fucked up so badly, Mueller has been obfuscating to prevent any real review of the that fuck up.

Mueller’s single biggest job as FBI Director in the last decade has been to make sure the FBI is able to investigate terrorism. And yet his FBI has badly screwed up the second biggest terrorist attack in the US–and he doesn’t think Congress should know why.

And yet SJC will no doubt vote to reconfirm Robert Mueller for another two years today.