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Judicial Watch Reveals Reza Zarrab’s Lawyer May Have Pitched Rosenstein on Special Counsel Pick

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I love when Judicial Watch liberates documents they think are damning but actually demonstrate that conspiracy theories are false, as they did when they liberated Bruce Ohr documents showing he actually helped the FBI vet the Steele dossier. Then there’s the recent release showing that current US Attorney George Terwilliger was pushing Bill Barr’s theory that Jim Comey deserved to be fired the weekend before Robert Mueller was hired.

But there’s something potentially more important in that batch.

The WaPo’s coverage of Rudy Giuliani and Michael Mukasey’s efforts to pressure Rex Tillerson to push DOJ to release Turkish money launderer Reza Zarrab contextualizes the fall 2017 meeting by recalling that Trump and Erdogan met on May 16, 2017


The two leaders finished their first meeting and performed their ceremonial handshake at about 1PM.

Just half an hour earlier, at 12:30 PM, Andrew McCabe had explained to Rod Rosenstein that he had opened an investigation into Donald Trump. The two then discussed Rosenstein’s thoughts about appointing a special prosecutor. Rosenstein said he was choosing between two candidates, one (who must be Mueller) who could start immediately.

At 1:09, former Deputy Attorney General Mark Filip (and Bill Barr colleague) called Rosenstein from his Kirkland and Ellis phone, left a message, and asked Rosenstein to call him.

At 3:25, Rosenstein wrote back and told him “Mukasey might call.” It’s unclear whether this is Marc or Michael Mukasey, but it doesn’t much matter, because Michael was already representing Zarrab and Marc was very very close to Giuliani.

In other words, within hours after Erdogan met Trump at the White House and asked for Zarrab’s release, someone effectively representing Zarrab appeared to be in touch with Rosenstein, who then suggested that whichever Mukasey it was call Filip.

The thing is, by all appearances, this Mukasey call pertained to question about hiring a Special Counsel. That’s because shortly thereafter, Rosenstein writes Filip back and tells him he’s going with Mueller (which suggests Filip may have been his other candidate).

If all that’s right, it suggests one of Zarrab’s lawyers may have weighed in on the Special Counsel decision just minutes after Erdogan requested Trump release him and (simultaneously) a key McCabe-Rosenstein meeting.

That’s not all that surprising. After all, the Mike Flynn investigation had already developed to include at least two of four strands, the lies about Russia and the lies about Turkey.

But then Rosenstein chose to appoint Mueller, not his other choice (who may have been Filip).

From that moment, Republicans were pushing the Bill Barr line. And Bill Barr is now in charge (and was, for the closure of the Mueller investigation). And that push may have had as much to do with Turkey as it did Russia.

In Days before Robert Mueller Got Hired, DOJ Immediately Forwarded Bill Barr’s Op-Ed Approving of Comey’s Firing to Rod Rosenstein

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Judicial Watch released another set of files, from the days leading up to his appointment of Robert Mueller, that they think are incriminating for stupid reasons that aren’t.

There’s two emails that might, actually, be damning. The very conservative former Deputy Attorney General Mark Filip emailed Rod Rosenstein asking him to call. Rosenstein answered, first, by saying that “Mukasey” was going to call, and imploring Filip to listen to him. That’s scandalous in any case, because the son of Michael Mukasey (who was Filip’s onetime boss) was representing affiliated players here. Then Rosenstein wrote back and seemed to tell Filip he was hiring Mueller. Was Filip the other candidate Rosenstein considered?

The more interesting detail is how DOJ treated Bill Barr’s May 12, 2017 op-ed applauding Trump’s decision to fire Jim Comey. In it Barr condemned how Comey handled the Hillary investigation, then said that his firing wouldn’t affect the Russian investigation (but not addressing Trump’s comments about that being the purpose of firing Comey).

Jeff Sessions’ spox, who received it from the “RNC War Room,” sent it to Rosenstein’s office the morning after the op-ed was posted, during the weekend he was contemplating hiring Mueller.

But even before that, DAG employee (and current EDVA US Attorney) George Terwilliger forwarded it (though not the RNC War Room version) as well, telling Rosenstein it was the most important thing for him to read that weekend.

At the very least, the close attention the op-ed (which largely parroted the ginned up reasons Rosenstein gave for firing Comey) received are intriguing, as is the choice from the RNC War Room to send it out.

But it’s also a hell of a way for Rosenstein to meet his future boss.

Michael Mukasey’s Torture Apologies

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After the Osama bin Laden killing, Michael Mukasey rather shamelessly took the lead in claiming torture had some role in finding OBL.

I thought then that the sheer volume of the torture apologists’ wails suggested that John Durham’s torture investigation might actually move forward in some way.

But I was particularly struck by Mukasey’s prominence. Unlike most of the other torture apologists, Mukasey was not complicit with the torture itself, but merely with the cover-up.

With that in mind, I wanted to return to the discussion in Mukasey and Mark Filip’s letter on the OPR report, particularly their argument against the OPR report’s recommendation that DOJ review the prosecution declinations.It’s interesting, first of all, because Mukasey and Filip initially lump the recommendation for review in among the list of issues they claim OPR has made errors on.

Nonetheless, we are concerned that the current proposed findings of professional misconduct, recommendation for reconsideration of prosecutorial declinations, and request that the Department review certain memoranda signed by Steven Bradbury, are based on factual errors, legal analysis by commentators and scholars with unstated potential biases, unsupported speculation about the motives of Messrs. Bybee and Y00, and a misunderstanding of certain significant Department of Justice and Executive Branch interagency practices.

But in their section on the recommendation for review, Mukasey and Filip don’t describe any errors.

The Draft Report recommends that “the Department reexamine certain declinations of prosecution regarding incidents of detainee abuse referred to the Departmentby the CIA OIG.” [Id at 9.] As the Draft Report itself recognizes, the question whether to prosecute matters addressed in the CIA OIG report has been addressed independently by two sets of prosecutors, first in the Counterterrorism Section (then located in the Criminal Division) and later in the U.S. Attorney’s Office for the Eastern District of Virginia. In both cases, the declinations were based on a variety of prosecutorial considerations, many of which seemingly would be unaffected by any information in the Draft Report and most of which seemingly would have been known to prosecutors at the time of their decisions. 11 Indeed, prosecutors in the Eastern District of Virginia made their decision to decline prosecution in 2005, well after the 2002 Bybee Memo had been withdrawn by the Department. In addition, if and when OPR’s report is finalized (whether with or without any professional misconduct referrals), the prosecutors could be given access to it, and could re-evaluate their decisions as they saw fit. In light ofthese facts, we believe it is unnecessary for OPR to recommend reconsideration.

Mukasey and Filip do suggest the OPR report might be ignoring the “variety of prosecutorial considerations” that guided the original declination decision. Except they admit that OPR has discussed some of them in its report.

11 Some of these considerations arc discussed in classified portions of the Draft Report.

But aside from that, the opposition to the recommendation to revisit the declination decisions seems to lie in the risk that a different prosecutor–not one of the ones involved in the 2003 or 2005 declinations–would review the cases. Just make the report available, Mukasey and Filip suggest, and let one of the prosecutors who has already wrestled with it choose to read the review and determine whether a reconsideration is merited (never mind the fact that some of the key prosecutors–people like Paul McNulty–were no longer in government).

That by itself is notable.

All the more so considering what happened afterwards: Eric Holder had John Durham, the independent prosecutor that Mukasey himself selected to investigate the torture tape destruction, review the declinations.

All of which makes me wonder whether Mukasey is such a shrill torture apologist not just because he had to agree not to investigate torture to get his swank AG gig. But also because he bears responsibility for picking Durham in the first place.

“We all benefited” from Margolis’ tenure

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A bunch of former DOJ bigwigs just wrote a seemingly pointless letter to Pat Leahy to assure him that David Margolis does not have a partisan–and they mean Left-Right partisan–bias. (h/t Main Justice)

I say “pointless,” to begin with, because after last Friday’s flaccid hearing on the OPR report, is anyone actually imagining that Pat Leahy is going to make a stink because the OPR Report got spiked?

And besides, no one thinks Margolis is a flaming political partisan. He’s a DOJ partisan, always putting the Department first, even ahead of justice. Hearing from a bunch of former DOJ bigwigs claiming he has no bias isn’t going to allay those concerns.

What’s particularly pathetic about this document, though, is the number people with a vested interest making the following weak claims:

we all benefited during our tenures from the wise counsel and good judgment of David Margolis

[snip]

While we do not comment here on the merits of the decision regarding the discipline of John Y00 and Jay Bybee, we are certain that it was reached conscientiously and wholly without partisan purposes.

[snip]

As those who have benefited from David Margolis’s counsel, we know he remains a great asset to the Department and the country for the present and future.

Let’s start with Alberto Gonzales, who gave approval for the use of torture techniques long before OLC did, and who was therefore perhaps the person most in need of the Get Out of Jail Free card that John Yoo wrote him. He signed this document.

So did George Terwilliger, Alberto Gonzales’ defense attorney, representing him on a number of ethical and potentially criminal issues, and therefore, presumably, on torture, if it ever came to that.

There’s Michael Mukasey, about whom Mary wrote a 2,000 word post describing his many conflicts on this issue. And Mark Filip, who helped Mukasey try to spike this report from the start. And Craig Morford, who was Acting DAG when Mukasey reviewed the Steven Bradbury memos and found them reasonable, which was itself a key part of spiking this investigation.

And how about John Ashcroft, huh? He wants you to know that he’s sure that Margolis judged correctly when Margolis determined that Ashcroft’s subordinates did not willfully do wrong when they shredded the Constitution eight years ago under Ashcroft’s inattentive watch. The same Ashcroft who reportedly pushed for some kind of “advance pardon” for the torturers. I sure trust him to tell me whether Margolis judged rightly or wrongly.

Then there’s Paul McNulty who, as US Attorney for Eastern District of VA, declined to charge people who engaged in torture and murder pursuant to these memos. The same guy whose decision to decline prosecution was reconsidered, given all the damning evidence in the OPR Report. Do you honestly believe that McNulty doesn’t want to have his decisions–which shortly preceded his promotion to be Deputy Attorney General–scrutinized that closely?

There’s Jim Comey, who may be one of those refusing to comment on the merits of the decision here (well then, why comment?), but who, when he lost the battle on the torture memos, expressed sadness “for the Department and the AG.” But not, it should be said, for the rule of law.

Add in Larry Thompson, who is another of the lawyers who, at least according to the OPR Report, reviewed and approved of the Bybee Memos. He thinks Margolis did the right thing too.

And, finally, David Ogden, who got fired not long ago, perhaps because he was happy to put politics above the law.

Now I’ll leave it for comments to unpack why people like lobbyist hack Jamie Gorelick wants to boost Margolis. But for now, just know that when at least 10 of these 17 bigwigs say they benefited from Margolis’ “wise counsel and good judgment,” they may well be talking about personal–and significant–benefit.

The Push to Publish the OPR Report

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Mike wants Yoo
(photo by Emilyschneider)

I was wondering when this would come out. After all, one of the advantages of having an easily-used journalist like Mikey Isikoff around is that when someone needs to leak something to increase political pressure, they know whom to go to.

So, those who want to make sure the OPR report damning John Yoo and Steven Bradbury is published in its current "very harsh" form will go to Mikey to make sure the report’s conclusions become public.

According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.

[snip]

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.

And in addition to those pushing to make the report public, there are those–speaking in a voice that sounds remarkably like certain lawyers associated with Dick Cheney–attacking the legitimacy of the report.

"OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars," said the former Bush lawyer. 

David! How’ve you been now that you’ve been separated from your man-sized safe?

Read more →

“Very Harsh Conclusions” about Yoo and Bradbury

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Remember that Office of Public Responsibility investigation that Congress requested, Bush squelched (by refusing the investigators clearance to do the investigation), but that, under Mukasey got reinstated?

Brad DeLong has word of what has happened to it:

[T]he OPR… came to "very harsh conclusions" about the professional competence of a number of the [Yoo and Bradbury] memos, making "recommendations for further action" with respect to both John Yoo and Stephen Bradbury. Attorney Genera Mukasey and Deputy AG Filip were reported to be apoplectic about the report and to have attempted to squelch it. Their concern is… for the defense of reliance on advice of counsel that Mukasey put forward in a series of speeches, and that the OPR reports will make, I understand, something of an absurdity…

There’s a lot to be said about this. But I’ll just start with the suggestion that–given that these "straws in the wind" have come to Berkeley Professor Brad DeLong–I can’t help but wonder whether Berkeley Professor John Yoo’s acceptance of a visiting position at Liberty University West Chapman University reflected some concern that Berkeley might see such "very harsh conclusions" to be the excuse they were looking for to get rid of the torture apologist.

Let’s hope this leak of Mukasey and Filip’s attempt to squelch this indicates that they have failed in doing so.