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Bumped! Rudy’s Ineffective Assistance of Counsel Strategy

I got an invitation to be on my first Sunday show this week. But — as usually happens when you’re talking to big media bookers — I got bumped. I got bumped to make way for this Rudy Giuliani appearance, which sets a new standard among his many media appearances for giving Trump cause to claim his lawyer screwed him over.

The interview starts with Trump’s blabbermouth lawyer assailing someone else for bad lawyering.

RUDY GIULIANI, PRESIDENT TRUMP’S LAWYER: Pathetic. The man is pathetic. That’s a lawyer you were interviewing and he says he — oh, he directed me to do it and, oh my goodness, he directed me. He’s a lawyer. He’s the guy you depend on to determine whether or not you should do it this way or that way, whether you’re Donald Trump or you are me or you, I have…

From there, Rudy pisses away one of the few benefits he offers Trump, his past service as US Attorney in the famously cliquish Southern District of NY. Rather than soft-pedaling any critique of SDNY, Rudy repeatedly pisses all over the office currently targeting his client, his client’s spawn, and his client’s eponymous corporation in at least one serious criminal investigation.

STEPHANOPOULOS: But you just said you ran that office. You know how the Southern District is run. You know exactly how the Southern District is run.

GIULIANI: No, I don’t know — actually, I don’t know how the Southern District —

(CROSSTALK)

STEPHANOPOULOS: They wouldn’t have put that in the statement of fact if they didn’t believe —

GIULIANI: I’m disgusted with the Southern District.

[snip]

STEPHANOPOULOS: Here’s the question I have for you. Why do you have so much trouble with the southern district? The southern district’s being run – this case being run by Robert Khuzami, a Republican appointed by the Trump administration, spoke at the Republican …

GIULIANI: His interpretation of the campaign finance law is completely erroneous. And to be – even if – and even if you want to make some argument that there’s some validity to it, you do not pursue a president of the United States for a questionable interpretation of the statute. That is completely wrong, it’s harassment.

After failing to respond to George Stephanopoulos’ descriptions of what distinguishes Trump’s hush payment case from that of John Edwards, Rudy fails to offer one piece of evidence that might back his arguments — that Trump had paid similar hush payments in the past, when winning the Presidential election wasn’t at stake.

STEPHANOPOULOS: Did he ever make any payments like that in the past?

GIULIANI: Nobody else asked for — in the past, I can’t speak to. I wasn’t his lawyer in the past.

Rudy then tries to claim that Jerome Corsi (who, Stephanopoulos points out, claimed 9/11 was an inside job) and Mike Flynn were not lying, misstating that Peter Strzok had said something exonerating about Flynn in a text versus an FBI interview.

Peter Strzok wrote in one of his texts that he didn’t seem to be – he didn’t seem to be lying, wasn’t acting like a person …

This is where things start to go really haywire. Stephanopoulos asks Rudy about the reference to Michael Cohen’s ongoing contacts with the White House through 2018 — which, given the way multiple entities happened to tell the same false story about the Trump Tower deal, likely means a conspiracy to obstruct justice — and in response Rudy says “It was over by the time of the election.”

STEPHANOPOULOS: Now, the special counsel went on to say that they found Cohen credible, provided valuable information about Russia-related matters for its investigation, also that his contacts with persons connected to the White House in 2017 and 2018, they seem to be getting at, there, both collusion and obstruction.

GIULIANI: Isn’t that prosecution by innuendo? I have no idea what they’re talking about. Beyond what you just said, I have no idea what they’re talking about …

STEPHANOPOULOS: Well, let me ask you a few specifics.

GIULIANI: I have no – I have no idea – I know that collusion is not a crime. It was over with by the time of the election. I don’t know what evidence … [my emphasis]

Admittedly, by this point in the interview, Rudy was blathering. But I’m particularly interested — given that Trump reportedly refused to answer any Mueller questions about the transition — that Rudy thinks in terms of the collusion he’s seemingly admitting his client engaged in ended “by the time of the election.” Trump’s legal team may be adopting a defensive strategy premised on the claim that certain activities (reaching out to Russians to tell them you’ll give them sanctions relief is just the most obvious) can be divorced from any context that implicates election season “collusion.”

That’s the form of Rudy’s most newsworthy statement is so interesting. He says that the answer Trump gave (in context, this must mean in response to Mueller’s questions) “would have covered all the way up to,” and here he corrects himself, “covered up to November, 2016.”

STEPHANOPOULOS: Did the president – did Donald Trump know that Michael Cohen was pursuing the Trump Tower in Moscow into the summer of 2016?

GIULIANI: According to the answer that he gave, it would have covered all the way up to – covered up to November, 2016. Said he had conversations with him but the president didn’t hide this. They know …

STEPHANOPOULOS: Earlier they had said those conversations stopped in January, 2016.

GIULIANI: I don’t — I mean, the date — I mean, until you actually sit down and you look at the questions, and you go back and you look at the papers and you look at the — the — you’re not going to know what happened. That’s why — that’s why lawyers, you know, prepare for those answers.

This is breaking news, of course: the last we had heard, the Trump Tower negotiations only went up through July. Here, Rudy seems to be confessing that they went through November.

Only, his reference to “why lawyers, you know, prepare for those answers” suggests that that’s not what Trump’s response to Mueller actually was. I would imagine the response he gave was deliberately left vague enough so that if Cohen (who was caught meeting with Mueller in the days when Trump was finalizing his answers) told Mueller the deal went through November, then Trump’s answer wouldn’t contradict that, even if he didn’t admit that the deal did go that long.

Rudy went on the teevee this morning, in part, to make an utterly damning statement that would nevertheless tell Mueller’s prosecutors that the answer (lawyers wrote but that) his client swore to was meant to cover a deal that continued all the way through November, even if he didn’t say that explicitly.

Remember, the day Cohen pled guilty on the Mueller false statements charge, Rudy gave an unbelievably hedged answer about whether that deal ever died.

“The president, as far as he knows, he remembers there was such a proposal for a hotel,” Giuliani said. “He talked it over with Cohen as Cohen said. There was a nonbinding letter of intent that was sent. As far as he knows it never came to fruition. That was kind of the end of it.”

Rudy seems confident that Cohen did not know about the continuation of this deal, but I’d bet money that it did continue.

Back to today’s interview, Rudy goes on to deny, then back off a categorical denial, that Stone communicated to Trump about WikiLeaks, working hard to suggest that Mueller might only charge a conspiracy to hack, not a conspiracy to defraud the United States (even while the public record makes it increasingly possible that Stone could get charged in a CFAA conspiracy).

STEPHANOPOULOS: And did Roger Stone ever give the president a heads-up on WikiLeaks’ leaks — leaks concerning Hillary Clinton, the DNC?

GIULIANI: No, he didn’t.

STEPHANOPOULOS: Not at all?

GIULIANI: No. I don’t believe so. But again, if Roger Stone gave anybody a heads-up about WikiLeaks’ leaks, that’s not a crime. It would be like giving him a heads-up that the Times is going to print something. One the — the crime — this is why this thing is so weird, strange — the crime is conspiracy to hack; collusion is not a crime, it doesn’t exist.

STEPHANOPOULOS: No. Conspiracy to defraud the government, you’re right, conspiracy to hack that is the crime. We don’t know whether …

GIULIANI: Yes. Did Donald Trump engage in a conspiracy to hack with the Russians? They’ve been going at it. The counterintelligence investigation came to the conclusion no evidence.

Rudy seems to take wholly unjustified comfort in what I can only guess is that GRU indictment describing his client and Stone prominently, without charging them. Hell, Julian Assange hasn’t even been charged yet; why does Rudy think the counterintelligence investigation is done?

From there, Rudy admits he was in discussions with Cohen’s lawyers about pardons!!!! He then suggests that Cohen “double-crossed” — that is, told the truth — because of that discussion about pardons.

STEPHANOPOULOS: Well, they’re also looking at obstruction. Did anyone connected to the president ever suggest in any way to Michael Cohen that he would get a pardon if he stayed on the team?

GIULIANI: I had this specific conversation with his lawyers and that liar can say what he wants, I told his lawyers there will be no discussion of a pardon. That doesn’t mean the president doesn’t have the — nobody’s giving away any power, but do not consider it in your thinking now. It has nothing about what you should decide about yourself. I think that’s one of the reasons why he double-crossed.

All this ends with Rudy stating, quite confidently, that Mueller is done, after having just said that conversations were ongoing about whether Trump might sit for an interview.

STEPHANOPOULOS: I do know that from my time in the White House. Final question: Mueller almost done?

GIULIANI: He is done. I don’t know what else — I told you. No, the only thing left are the parking tickets and jaywalking.

Maybe Rudy’s right. Maybe Mueller has told him they didn’t find any evidence against his client.

But even if that’s (improbably) true, if I’m Mueller I might be reopening things in light of this appearance by Rudy.

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. 

Dear Eric Holder: You’re Doing Recusal Wrong

Let me start this post by saying I think it is absolutely appropriate for Eric Holder to have recused himself from the UndieBomb 2.0 investigation, in part because — as someone read into the UndieBomb 2.0 operation, he was interviewed by the FBI (though so was James Cole, who is now in charge of the investigation), and he turned over his own phone contacts to the FBI — but also because top Administration officials like John Brennan at least should be under close scrutiny in this investigation.

Nor do I think, in his recusal, Eric Holder did anything in bad faith. I have zero reason to believe Holder is tampering with this investigation, in any way shape or form.

But Jeebus, Holder is doing this entire recusal thing wrong.

That’s true, first of all, because with a rabid Congress (at the time he recused from the investigation and now) accusing him of wrongly delegating this investigation to Ronald Machen in an investigation that could net incredibly powerful people as suspects, Holder did not write his recusal — or a delegation of authority of Attorney General powers — to James Cole, who is overseeing the investigation.

Now, Holder claims not to remember whether he memorialized his recusal in past cases, including the John Edwards investigation — the most high profile case in which he has recused. And though George Holding, who conducted that investigation and now represents the Raleigh, NC, area in Congress, was in the room, I’m not sure they clarified whether he had written anything down there, either. Holder was, however, very clear about what authorities he delegated to Patrick Fitzgerald when he investigated the John Adams Society, which led to the prosecution of John Kiriakou, having sent 3 letters (1, 2, 3) memorializing the limits of Fitz’ authority.

I think part of the problem is that Holder didn’t really appoint special counsels to investigate this matter, even while he made a big deal of appointing the people who — US Attorney for DC Ronald Machen’s appointment rather then US Attorney for Eastern District of VA Neil MacBride aside — would have been investigating it anyway. Dumb. Congress was screaming for some kind of formality, and Holder didn’t establish that formality.

And then there’s the journalist-subpoenaing precedent of the Plame investigation where Fitz several times got letters clarifying his authority. The first of those reads,

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

This came in handy later in the investigation when Libby’s lawyers challenged Fitz’ authority.

Then, Holder’s recusal hasn’t been very strict. Most troublingly, Eric Holder reviewed the letter James Cole sent to the AP (though Holder saw a draft which, according to his press conference, included things like details on the specific scope of the subpoena that don’t appear in the final letter). NPR’s Carrie Johnson asked him about this.

Johnson: Is that normal practice when you’re recused from a case?

Holder: No, I just wanted to see the le–I saw I mean I saw saw the draft letter this morning. And I just wanted to have an opportunity to see what it looked like so I’d have at least some sense of the case in case there were things in the letter that I could talk about with the press.

Reviewing this letter — particularly before changes got made to it!! (changes which appear to have deprived the AP of full notice of the call record grab) — simply isn’t appropriate for someone recused from the case!

Again, I’m not suggesting malice here.

But the AP has already — rightly, in my opinion — challenged whether DOJ complied with its own guidelines on media subpoenas. In particular, AP complained that they had not been given notice and an opportunity to cooperate. That’s one of the guidelines that requires AG involvement.

Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

Yet the guy who signed this subpoena and with it signed off on the claim that alerting AP to the subpoena would do grave damage to the investigation  — James Cole — apparently has no piece of paper giving him authority to sign it.

If DOJ ultimately decides to charge the AP’s sources, if that person has the kind of legal representation DC bigwigs often have, I fully expect them to challenge every bit of their prosecution. After all, by subpoenaing the AP, Cole claimed that DOJ could not get the information from any other source. So if AP’s sources are indicted, they can rest assured that their prosecution went through this bottleneck of an Acting AG who had no paperwork to prove he had the authority to sign off on the claims he was making to get information he was certifying was absolutely necessary to find them. And from this subpoena forward, everything else will be fruit of a tainted AG, at least if you’ve got fancy lawyers.

Dumb.

One last thing. Also in today’s hearing, Holder admitted that it probably would have been a good idea to write down this recusal thing in public. Which, if they do ever charge AP’s sources and if said sources have the resources to make this obvious challenge, they’ll cite in court to document that even the guy who delegated this authority thinks it would be smarter if he did so in writing.

Seriously, this entire recusal process has been an own goal. As I said, I don’t think DOJ is pulling anything fishy. But the entire point of recusing is to ensure there’s proof nothing fishy happened. And in this case, DOJ has anything but.

Edwards and Easley Prosecutor Bitching about Obama’s Court Appointees

Main Justice reports that US Attorney George Holding–who is currently investigating Governor Mike Easley and John Edwards–decided to speak out at the Federalist Society meeting to bitch about Obama’s appointees to the Fourth Circuit.

Holding made his remarks during a question-and-answer period following a speech from Sen. Jeff Sessions (R-Ala.) last Thursday at the society’s National Lawyer Convention. He identified himself as a “prosecutor from North Carolina,” a C-Span video of event shows.

“I’m concerned about the changing makeup of the 4th Circuit,” said Holding, who has served as U.S. Attorney since September 2006.

President Barack Obama tapped James A. Wynn Jr. and Albert Diaz, both of North Carolina, and Barbara Milano Keenan of Virginia for judgeships in the 4th Circuit.

Uh, Obama? I understand the wisdom of letting Bush’s US Attorneys wind down investigations into Democrats to avoid any suggestion that you fired them to end those inquiries. (Speaking of which, today is Mary Beth Buchanan’s last day.)

But this guy has to go–now.

So long as he is US Attorney working under a President Obama, he needs to respect the Constitutional function of the President and Senate. And that means the President–not the Federalist Society US Attorney–gets to nominate judges, and the Senate gets to confirm them. And if you don’t like it as a dead-ender US Attorney affiliated with a horribly politicized DOJ, you really ought not take the opportunity of a partisan convention to bitch about your boss’ choices for those positions. Heck, as US Attorney, you probably ought not be speaking publicly about judicial appointees in your circuit at all.

The Fight against Poverty Was a Lie, Too

I was never an Edwards supporter. Not because I didn’t like what he said, but because, since he could never speak in more depth on an issue than your average talking point, I suspected all those nice things he was saying about helping the poor were false, just convenient lines around which an old DLCer could build a presidential run. The revelation that Edwards believed he could run for President even while hiding an affair only made me more suspicious that the whole campaign was one convenient lie.

Now, Ken Silverstein makes that case even stronger.

Once upon a time John Edwards wanted to be president and he vowed, back then, that poverty would be his signature issue. “Poverty is the great moral issue of our century,” he told a group of students at Berkeley in 2005. “People living in poverty need you. And another thing: America needs you.”

To show his own dedication, Edwards “created a tax-exempt nonprofit dedicated to fighting poverty”, the New York Times reported.

[snip]

In other words, the Center may have done some good but its primary purpose was to serve as a vehicle for Edwards’ political career. Indeed, it appears to be very similar to the bogus “Reform Institute” that John McCain set up after his defeat to George W. Bush in 2000, and which was designed to keep alive his presidential ambitions and reward his cronies.

Anyway, Edwards of course lost his bid for the Democratic presidential nomination this year, and guess what happened to his big anti-poverty initiative? That’s right—it appears he pulled the plug on it.

About a week before Edwards acknowledged having an affair with Rielle Hunter, Edwards quietly shut down a “scholarship program he started at an Eastern North Carolina high school — a program he once promised would be a model for the nation under an Edwards presidency,” reports the Raleigh News & Observer:

I suppose there are charitable interpretations for why he dismantled his scholarship program. Perhaps he didn’t want it to be associated with what he knew was going to be his soon-to-be-sullied reputation. Perhaps he couldn’t fund the charity anymore because he has been spending so much money keeping Rielle Hunter in her big house in California that he couldn’t afford to fund the charity, either. Perhaps he just wants to spend time with his family(s).

But the whole thing just stinks.

The Brilliance of the Edwards Endorsement

I joked to some folks yesterday that Will Rogers is probably rolling over in his grave about now. Between Obama’s insistence on running one, unified message and party and Obama’s masterful implementation of the Edwards endorsement yesterday, we Democrats may no longer be able to quip–at least for the next several months–that we "belong to no organized party."

That sentiment was widely shared among a bunch of local political types in MI with whom I just had beers. It wasn’t just that Obama (and David Bonior, surely) had managed to headline Obama’s first MI event with the guy in the race who spoke most about the crappy economy. It wasn’t just that it was MI where he chose to get the endorsement–making up for a lot of the bad things some Michiganders have been told about Obama. It wasn’t even just the nice touch of keeping the Edwards endorsement a secret from the thousands who showed up in Van Andel arena to see Obama until Obama got to announce it himself on stage–magnifiying the specialness of the Edwards endorsement. It was, obviously, also the way Obama managed to pre-empt Hillary’s biggest win since Arkansas with the news that both of them have been chasing since February.

But the more I think about it, Obama’s management of the Edwards endorsement was even more brilliant than that.

Consider, for a moment, Robert Reich’s explanation of why Hillary remains in the race (h/t Jane).

She wants the best possible deal she can strike with Obama. She wants Obama to agree to pay her campaign debts, to seat the Michigan and Florida delegations (so she can claim a moral victory), and – the quietest deal of all – a personal commitment from him to appoint her to the Supreme Court when the next vacancy occurs.

Just as a picky point, the Edwards endorsement simplifies any resolution of MI. If the MI compromise proposal goes forward, it’ll make it a lot easier to award Obama 59 delegates now that the other major candidate who took uncommitted votes has endorsed Obama–Edwards isn’t going to complain that "his" votes from uncommitted are awarded to Obama. Read more

Clusterfuck Eve

I can tell you, it’ll sure be hard to sleep tonight as I ponder the possibilities of tomorrow’s MI Clusterfuck Primary. Polls show that Romney might just pull this out–and surprisingly, at least one of those polls says he’ll do so with Republican support.

“As the undecided voters make up their minds, more are turning to Mitt Romney than to John McCain. We have also seen the participation among Republicans increase from 62% last night to 75% at the end of phoning tonight. That means that 75% of the voters taking part in the GOP Primary identify themselves as Republicans,” Steve Mitchell, president of Mitchell Interactive said.

Rasmussen has a similar projection for the number of Republican primary voters who will be Republican. And the Free Press claims that 0% of Democrats polled said they’d vote a Republican ballot–a laughable number, IMO. If those numbers are correct, it may mean "Uncommitted" will have a come from behind victory on the Democratic side as more Democrats listen to party leadership and decide to vote in the meaningless Democratic primary. I’d actually be thrilled with an "Uncommitted" victory in MI–it describes how I’m feeling right now perfectly. But like said, the 0% is a laughable number.

But what I’m really looking forward to is for Joe Lieberman and John McCain to stop spamming me (or rather, some Republican named Margaret) with robocalls and junk mail. McCain is even doing an event in Washtenaw County, a sure-fire sign he thinks Democrats might put him over the edge again. Though why he believes Lieberman is going to help make that case, I don’t know.

I still have gotten a robocall from Huck yet, which was the only reason I would cross-over to vote for Mitt. There’s still time yet, but for now, I’m hoping our clusterfuck ends in the only logical fashion: uncommitted.

Polling the Clusterfuck

Yesterday I said there were no MI polls. Well, now there are two, which still support my clusterfuck analysis, but also suggest that the Mitten might finish off Mitt. Here are the two polls:

Rossman Group/MIRS/Denno-Noor
January 6 and 7, MOE 5.8%

Huck 23%
Mitt 22%
McCain 18%
Rudy 8%
Frederick of Hollywood 4%
Paul 3%
Hunter 1%
Uncommitted 13%
Unsure 7%

Hillary 48%
Kooch 3%
Gravel 1%
Uncommitted 28%
Unsure 11%
Other 10%

Strategic Vision
January 4-6, MOE 4%

John McCain 29%
Mitt Romney 20%
Mike Huckabee 18%
Rudy Giuliani 13%
Fred Thompson 5%
Ron Paul 5%
Duncan Hunter 1%
Undecided 9%

So let’s start with the Democrats (only MIRS polled Dems). The poll was pre-NH, so you might assume that Hillary would pick up a bit for her NH victory, which might put her over 50%. However, state pols have really just started their campaigns to get Dems to vote uncommitted, including the rather amusingly named, Detroiters for Uncommitted Voters and radio ads from Congressman Conyers. As more people realize what "uncommitted" means, Hillary may well lose some points to … no one. What I’m most interested in with the MIRS is the 10% who voted "other," which is what I’d answer if I were given a Democratic ballot and asked who I planned to vote for if I planned to cross-over and add to the Republican clusterfuck. In other words, I take this poll to suggest, very very very roughly, that the Republicans might be hosting at least 10% of self-identified Democrats. Though of course, who they’ll vote for is anyone’s guess. Read more

emptywheel’s Quickie Analysis

Many of you no doubt disagree. But I’m not crying about an Obama victory (then again, I wouldn’t have been crying about an Edwards or Clinton win, either).

But here are the details that I think are most important.

Crazy, record turnout–reportedly well over 200,000. And reportedly, perhaps two-to-one for Dems, compared to the Republicans.

Crazy, record turnout among youth.

Crazy, record turnout among women (MSNBC just announced that Obama actually beat Hillary among women).

I don’t care who you support–this crazy record turnout is nothing but a huge win for Democrats.

(Four years later and I still sound like goddamned Howard Dean, bless his soul.)

And among Republicans? Some 45% voted against corporatist America. Add that to Edwards’ turnout, and you’ve got a solid majority sick of government by the corporation, for the corporation…

Update: One more point. It’s been decades since I took a math class. But by my calculations, 29% of 220,000 (Hillary’s results) is significantly more than 34% of 120,000 (Huck’s results), right? If my math is correct, we just elected three Presidents to one for the Republicans.

Executive Privilege

A number of people have pointed to Charlie Savage’s great article on the responses of Presidential candidates to a bunch of questions about executive power. I’m really glad Savage asked these questions, as I’ve presented forms of these questions (specifically as it related to the underpinnings of Bush’s illegal wiretap program, which was put into place under Bill Clinton) to Hillary’s campaign and gotten no response.

That said, most of the questions either explicitly or implicitly ask candidates whether they repudiate certain of Bush’s acts, so I’m not sure they help Democratic voters distinguish between primary candidates. The exception is the question on Executive Privilege. Here are the Democrats’ answers on the the question addressing executive privilege.

Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?

Obama

With respect to the “core” of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the President and the White House.

Hillary

I fundamentally believe that our constitutional system depends upon each branch striving to accommodate the interests of the other, and the President should seek to accommodate legitimate congressional requests for information. I also believe in an open transparent government that fulfills its obligation to share as much information as possible with the public. But it is settled law that certain limited "communications made by presidential advisors in the course of preparing advice for the President, come under the presidential communications privilege, even when these communications are not made directly to the President."

Edwards

I support the constitutional separation of powers and the doctrine of executive privilege, as guided by judicial review. Unlike the current president, however, I will not invoke executive privilege merely to advance partisan ends. Read more