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Did Emmet Flood Mean to Create a Legal Morass, or Is He Off His Game?

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As I’ve often said, Trump departed from his usual habit by hiring Emmet Flood, someone who is eminently qualified to help the President (or, as he did with Cheney, Vice President) stave off legal jeopardy from a Special Counsel or Congress. Which is why I’m trying to figure out whether the legal morass Trump created — presumably on Flood’s advice, given that Flood is serving as both the Mueller investigation White House Counsel lead and, until Pat Cipollone gets fully cleared, White House Counsel generally — by forcing Jeff Sessions’ resignation and replacing him with Matt Whitaker.

It’s not clear when Sessions’ authority ended

Start with the fact that it’s not clear when Jeff Sessions stopped acting as Attorney General. As numerous people have noted, he didn’t date the copy of his resignation letter that got released publicly.

He left DOJ in ceremonial fashion just after 5 PM on Wednesday night, which would suggest he may have remained AG until that time. If that’s right, then anything that Mueller and Rosenstein did that day would still operate under the older authority.

Indeed, DOJ issued an order under Sessions’ authority, imposing new limits on consent decrees used to reign in abusive local police departments, yesterday evening, a full day after he departed. He initialed it (dated 11/7/18), but the metadata on it shows the document wasn’t created until almost 5PM on Wednesday and was modified over a full day after that. (h/t zedster)

So he was at least still AG sometime after 4:53PM on Wednesday — and possibly well after that — or this consent decree policy is void.

Whitaker’s appointment may not be legal

Then there are the proliferating number of people — most prominently Neal Katyal and George Conway but also including John Yoo and Jed Sugarman — who believe his appointment is unconstituional.

There are two bases on which this might be true. First, the forced resignation of Jeff Sessions may in fact be a legal firing, something the House Judiciary Democrats are arguing with increasing stridency, most recently in a letter to Bob Goodlatte asking that he hold an emergency hearing on Sessions’ ouster, support legislation protecting Mueller, and join in requests for information about the ouster from the White House and DOJ. If Sessions was fired, there’s little question that Trump can only replace him with someone who is Senate confirmed.

But Katyal, Conway, and others argue that because the AG is a principal officer, whoever serves in that position must be Senate confirmed. Significantly, the Katyal/Conway argument begins by throwing what Steven Calabresi has said back at conservatives.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

This is probably why people like Yoo are joining in this argument — because if Whitaker’s appointment is legal, than a whole slew of other appointments of the kind that conservatives hate would also be legal.

Whitaker may be disabled with conflicts

Then there are Whitaker’s conflicts, which are threefold. Whitaker:

  • Repeatedly claimed that the Mueller probe was out of control, in spite of the fact he had no real information to base that on
  • Judged that Trump had neither “colluded” nor committed obstruction
  • Not only undermined the investigation, but suggested the underlying conduct — including meeting with Russians to obtain dirt on Hillary Clinton at the June 9 meeting — was totally cool
  • Served as Sam Clovis’ campaign manager in 2014; Clovis was a key player in Trump’s efforts to cozy up to the Russians in 2016 and was one of the earliest known witnesses to testify before the grand jury

CNN captures many of these statements here.

The Clovis one may be the most important. 28 CFR 45.2 requires ethics exemption or recusal if a person has a political relationship with the subject of an investigation.

[N]o employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:

(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

Defining “political relationship” to include service as a principal advisor to a candidate.

Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof;

And, as Mueller noted in their response to Andrew Miller’s appeal, recusal would amount to a “disability” that would put the DAG back in charge.

Finally, interpreting “disability” under Section 508 to include recusal makes logical and practical sense. Section 528 requires the Attorney General to recuse himself when he has a conflict of interest. Section 508 ensures that at all times an officer is heading the Department of Justice. If the Attorney General is recused, it is necessary that someone can head the Department for that investigation. It is inconceivable that Congress intended Section 508 to reach physical disability, but not to reach legal requirements that disabled the Attorney General from participating in certain matters.

Whitaker’s former company is under FBI investigation

Then there’s the news that a company for which Whitaker provided legal services is under criminal investigation.

The Federal Bureau of Investigation is conducting a criminal investigation of a Florida company accused of scamming millions from customers during the period that Matthew Whitaker, the acting U.S. attorney general, served as a paid advisory-board member, according to an alleged victim who was contacted by the FBI and other people familiar with the matter.

The investigation is being handled by the Miami office of the FBI and by the U.S. Postal Inspection Service, according to an email sent to the alleged victim last year by an FBI victim specialist. A recording on a phone line set up by the Justice Department to help victims said Friday the case remains active.

When Whitaker was subpoenaed, he blew it off.

Whitaker, named this week by President Trump as acting attorney general, occasionally served as an outside legal adviser to the company, World Patent Marketing, writing a series of letters on its behalf, according to people familiar with his role.

But he rebuffed an October 2017 subpoena from the Federal Trade Commission seeking his records related to the company, according to two people with knowledge of the case.

But the public record shows that when customers complained, Whitaker threatened them, invoking his background as a former US Attorney.

In emails uncovered by the FTC investigation, Whitaker personally threatened a customer who complained, according to a story in the Miami New Times that was picked up by other news outlets.

The emails the FTC obtained, in fact, suggests Whitaker used his background as a U.S. attorney to try to silence customers who claimed they were defrauded by the company and sought to take their complaints public.

In this case, Whitaker sent an intimidating email to a customer on August 25, 2015, who had contacted World Patent Marketing with his grievances and and filed a complaint with the Better Business Bureau.

The FTC docket reviewed by New Times contains an email exchange on page 362 of 400 that described what happened next.

Rather than expressing concern about the customer’s charge of being cheated,  Whitaker wrote him to let him know that he, Whitaker, was “a former United States Attorney for the Southern District of Illinois…Your emails and message from today seem to be an apparent attempt at possible blackmail or extortion.”

“You also mentioned filing a complaint with the Better Business Bureau and to smear WPM’s reputation online. I am assuming you know that there could be serious civil and criminal consequences for you if that is in fact what you and your ‘group’ is doing. Understand we take threats like this quite seriously…Please conduct yourself accordingly.”

This doesn’t necessarily impact the Mueller probe itself. But it suggests that Whitaker has real corruption problems that will undermine his actions as AG.

Trump and Whitaker may have spoken about the Mueller probe — and Trump is already lying about it

Shortly after Whitaker was appointed, WaPo reported that Trump told multiple people that Whitaker was “loyal” and wouldn’t recuse.

Trump has told advisers that Whitaker is loyal and would not have recused himself from the investigation, current and former White House officials said.

Then WaPo reported that Whitaker has no intention of recusing, reporting that would necessarily predate any discussion with DOJ’s ethical advisors.

Acting attorney general Matthew G. Whitaker has no intention of recusing himself from overseeing the special-counsel probe of Russian interference in the 2016 election, according to people close to him who added they do not believe he would approve any subpoena of President Trump as part of that investigation.

[snip]

On Thursday, two people close to Whitaker said he does not plan to take himself off the Russia case. They also said he is deeply skeptical of any effort to force the president’s testimony through a subpoena.

Special counsel Robert S. Mueller III has been negotiating for months with Trump’s attorneys over the terms of a possible interview of the president. Central to those discussions has been the idea that Mueller could, if negotiations failed, subpoena the president. If Whitaker were to take the threat of a subpoena off the table, that could alter the equilibrium between the two sides and significantly reduce the chances that the president ever sits for an interview.

Meanwhile, when asked today, Trump claimed (in spite of all the briefings Whitaker has attended in recent weeks) that he didn’t know him, even though he went on Fox and hailed him after the most recent attempt to use him to kill the Mueller probe.

“I don’t know Matt Whitaker,” Mr. Trump told reporters as he left Washington for a weekend trip to Paris. But the president stressed that he did know Mr. Whitaker’s reputation well, calling him “a very respected man.”

[snip]

In addition, the president’s claim that he did not know Mr. Whitaker was called into question by Mr. Trump’s own words from just about a month ago, when he said in a “Fox & Friends” interview: “I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker.”

Mr. Whitaker has also visited the Oval Office several times and is said to have an easy chemistry with the president, according to people familiar with the relationship. And the president has regarded Mr. Whitaker as his eyes and ears at the Justice Department.

As CNN notes, Whitaker seemed to have been actively plotting for his boss’ job since the NYT stupidly tried to get Rosenstein fired (which I suspect means Whitaker was a source for the NYT).

A source close to Sessions says that the former attorney general realized that Whitaker was “self-dealing” after reports surfaced in September that Whitaker had spoken with Kelly and had discussed plans to become the No. 2 at the Justice Department if Rosenstein was forced to resign.

In recent months, with his relationship with the President at a new low, Sessions skipped several so-called principals meetings that he was slated to attend as a key member of the Cabinet. A source close to Sessions says that neither the attorney general nor Trump thought it was a good idea for Sessions to be at the White House, so he sent surrogates.

Whitaker was one of them.

But Sessions did not realize Whitaker was having conversations with the White House about his future until the news broke in late September about Rosenstein.

All of this raises huge questions about whether Whitaker and Trump (or Kelly) had an agreement in place, that he would get this post (and shortly after be nominated for a judgeship in IA), so long as he would agree to kill the Mueller probe.

Debates over the legality of Whitaker’s appointment parallel challenges to Mueller’s authority

Then there’s the point I raised earlier today. If Whitaker’s appointment is legal, then so is Mueller’s, which undercuts one of the other efforts to undermine Mueller’s authority.

Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.

John Kelly’s involvement may (and I suspect does) present added conflicts

Then there’s John Kelly’s role, as someone who had a key role in the firing but whose testimony Mueller is currently pursuing (possibly via subpoena).

Kelly is among the people about whom there is the most active dispute legal between the Special Counsel and the White House, a fight picked by the legally competent Emmet Flood.

And Kelly was the person who forced Jeff Sessions to resign on Wednesday. As far as is public (and there’s surely a great deal that we have yet to learn about who was in the decision to force Sessions to resign and when that happened and who dictated the form it would take).

But Kelly had the key role of conveying the President’s intent, in whatever form that intent was documented, to Sessions. If Trump’s past firings are any precedent, Kelly had a very big role in deciding how it would happen.

So the guy whose testimony Mueller may be most actively pursuing (indeed, one who might even be in a legal dispute with), effectuated a plan to undercut Mueller’s plans going forward.

CNN provides more context for Kelly’s role, showing him to be involved in the last attempt to install Whitaker and suggesting that Kelly consulted Trump before refusing Sessions’ request to stay through the week.

John Kelly, the White House chief of staff, asked Sessions to submit his resignation, according to multiple sources briefed on the call. Sessions agreed to comply, but he wanted a few more days before the resignation would become effective. Kelly said he’d consult the President.

[snip]

Rosenstein and [PDAAG Ed] O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

Soon, Whitaker strode into Sessions’ office and asked to speak one-on-one to the attorney general; the others left the two men alone. It was a brief conversation. Shortly after, Sessions told his huddle that his resignation would be effective that day.

O’Callaghan had tried to appeal to Sessions, noting that he hadn’t heard back about whether the President would allow a delay. At least one Justice official in the room mentioned that there would be legal questions about whether Whitaker’s appointment as acting attorney general is constitutional. Someone also reminded Sessions that the last time Whitaker played a role in a purported resignation — a few weeks earlier in September, with Rosenstein — the plan collapsed.

Sessions never heard in person from the President — the man who gained television fame for his catch-phrase “You’re fired” doesn’t actually like such confrontation and prefers to have others do the firing, people close to the President say. Kelly called Sessions a second time to tell him the President had rejected his request for a delay.

Nevertheless, a guy Mueller is trying to interview was right there in the loop, making two efforts to install someone whose sole apparent job is to undercut Mueller.

Everything Whitaker touches may turn to shit

Now, maybe Flood would still have bought off on this — though the multiple reports now claim no one at the White House knew about Whitaker’s problems suggest he may not have been in the vetting loop (because, again, he’s competent and knows the import of vetting).

But there’s one more thing to account for. Everything Whitaker touches may turn to legal shit. It’s a point Katyal and Conway make.

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.

This appointment could embroil DOJ in legal challenges for years, at least, as plaintiffs and defendants claim that DOJ took some action against them that can only be authorized by a legal Attorney General.

While I don’t think it’s likely, it’s possible that’s the point. As I noted earlier, on Thursday Mueller’s team seemed to be staking a claim that they can continue to operate as they have been.

But their authority, or at least Mueller’s and the others who aren’t AUSAs temporarily reassigned to Mueller, all stems from a legally valid Attorney General or Acting one. If Mueller continues to operate while the legally problematic Whitaker claims to authorize them, what does that do for their actions?

That may be why the DC Circuit wants more (public) briefing on this question in the Andrew Miller case. By appointing a totally inappropriate AG, Trump might just be pursuing his longterm strategy of chaos.

Is this Don McGahn’s last fuck-up?

This entire post is premised on two things: first, that Emmet Flood is among the rare people in Trump’s orbit who is very competent. It also assumes that because both these issues — White House Counsel until Cipollone takes over, and White House Counsel in charge of protecting Trump from the Mueller investigation — would fall solidly in Flood’s portfolios, he would have a significant role in the plot.

Perhaps not. Federalist Society’s Leonard Leo is claiming (in a CNN report that should be read in its entirety) he worked on the plan with Don McGahn.

Leonard Leo, the influential executive vice president of the Federalist Society, recommended to then-White House counsel Don McGahn that Whitaker would make a good chief of staff for Sessions.

“I recommended him and was very supportive of him for chief of staff for very specific reasons,” Leo said Friday.

So maybe this scheme was, instead, planned out by Don McGahn (who has been officially gone since October 17).

But that would raise questions of its own — notably, why this plan was on ice for so long. And why Flood wasn’t in the loop (and why the White House continues to neglect the most basic vetting of people they put in charge of huge parts of our government).

I expect basic competence out of Emmet Flood. But this whole scheme could only be judged competent if the point was to totally discredit anything DOJ does, including but not limited to the Mueller probe.

Paul Manafort Is One of 37 People in an Omertà with the President

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Apparently, Bob Woodward committed some journalism along with canonizing racist John Kelly and wife-beater Rob Porter in his book: he got a number for how many people are included the Joint Defense Agreement that gives Rudy Giuliani such confidence the President is not at risk: 37.

And Politico committed still more journalism and answered the question we’ve all been asking: yes, Paul Manafort is among those 37.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time where as long as our clients authorize it therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege not just from our point of view but from theirs,” he said.

That means when John Dowd complained that the raid of Manafort’s condo (where his eight iPods were seized), that was based on privileged conversations between lawyers. And when, in January, Trump confidently said he was sure Manafort would protect him, that was based on privileged conversations between lawyers.  And when, just before the EDVA trial, Kevin Downing was ostentatiously saying there was no way Manafort was flipping, and when he was balking on a plea with Mueller immediately after the trial, he was also talking to Rudy Giuliani.

Mind you, Rudy G will learn right away if Manafort starts considering cooperating, rather than just pleading, because Manafort will have to (finally!) drop out of the JDA before those discussions start.

And while I suspect Mueller has slowly been peeling away people like Sam Patten, that the JDA is so big likely means some or most of the following people are part of the omertà (and Michael Cohen, Rick Gates, and Mike Flynn were part of it):

  • Paul Manafort and Konstantin Kilimnik
  • Jared Kushner
  • The Trump Org defendants: Don Jr, Rhonna Graff
  • Bill Burck’s clients: Steve Bannon, Reince Priebus, Don McGahn (and up to three more)
  • Victoria Toensing’s clients: Mark Corallo, Erik Prince, Sam Clovis
  • The hush payment recipients: Hope Hicks, Brad Parscale, Keith Schiller
  • Roger Stone and his buddies: Stone, Michael Caputo, Sam Nunberg, Andrew Miller, plus some (probably)

That’s 20. Some other likely (and enticing) JDA members are: Devin Nunes, Jeff Sessions, Tom Barrack, Keith Kellogg, John Mashburn, KT McFarland, JD Gordon, Walid Phares, Stephen Miller, Sean Spicer, Rob Porter, Corey Lewandowski, John Kelly. Heck, it’s not even clear that George Papadopoulos is not part of the JDA.

But that still leaves space in the JDA for people who were already comparing notes with known members of the JDA, including Rinat Akhmetshin, Rob Goldstone, and Ike Kaveladze (along with Emin and Aras Agalarov, who are all represented by Scott Balber).

No wonder Rudy thinks he knows everything that Mueller has.

That’s why the collective panic on the discovery that Stone’s phone was likely among the ~10 or so that Mueller got warrants for in the wake of Rick Gates’ cooperation agreement is so interesting, and also why Manafort, playing his part as point, tried so hard to find out who the other four AT&T users whose phones were obtained with his own.

These guys may be good at omertà. But every single one we’ve seen so far has shitty OpSec; they’ve been saying their co-conspiracy communications on their phones and on iCloud. Plus there are people like Omarosa wandering among them, dismissed as irrelevant even while they record everything they hear. And meanwhile, Mueller is chipping away at the edges, people they haven’t considered (like Patten). And all the while he’s been building his case against Stone and Don Jr.

If You Have Rick Gates (and Omarosa) You Don’t Need George Papadopoulos

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The Trumpian bubble — likely led by right wing legal talking head Victoria Toensing — may be about to lead a young couple to do something insanely stupid.

Yesterday, Simona Mangiante Papadopoulos, George’s wife, tweeted out a request for a pro bono lawyer for her spouse.

A few hours later, she tweeted out notice that she would follow up with those who have specific expertise.

Simona Papadopoulos wants to ditch George’s plea deal at the stupidest possible moment

As she explained to Chuck Ross, who reports from deep within that Trumpian bubble, she and George are thinking of backing out of his plea deal (at the stupidest imaginable time), and instead suing the government and taking their chances with the evidence the government had in hand when Papadopoulos pled guilty to charges that undercharged his conduct, as well as the evidence the government obtained over the course of a year of Papadopoulos pitching for and then engaging in a plea deal.

“George should drop off his plea agreement, in my opinion,” Mangiante Papadopoulos told The Daily Caller News Foundation when contacted after her tweet.

“The idea is to find a lawyer to drop off his plea agreement and sue the government,” she added, noting that she and her husband plan to wait until after a court hearing on Friday to make a final decision.

[snip]

Papadopoulos faces sentencing in the case on Sept. 7. The special counsel’s office will submit its recommendations for sentencing this Friday. While lying to the FBI carries a maximum sentence of five years in prison, defendants in similar cases often receive six months or less in jail.

Remember: one reason Papadopoulos, relying on the advice of some of the more competent attorneys in this matter, pled guilty is because the FBI had evidence he had accepted payment from an Israeli asking for covert assistance. That’s on top of the lies to the FBI he already pled guilty to, not to mention the clear obstruction of deleting his Facebook account, and a key early role in setting up a conspiracy with Russia. When Stefan Halper (working for the FBI and therefore likely recording conversations) discussed these matters with Papadopoulos in September 2016, Papadopoulos admitted that being involved in them would amount to treason (it’s not treason, but his opinion that it might be makes his later actions far more damning).

This is what the Papadopouloses are reportedly entertaining, due no doubt to an entirely mistaken understanding of their status, one obtained by listening to people like Victoria Toensing and Chuck Ross.

Several things seem to have happened to get us to this point.

Mueller almost certainly has several other witnesses who can attest to knowledge Russians were offering emails

Consider: along with whatever else Rick Gates gave Mueller’s team in February when he became state’s evidence, he also probably described what Paul Manafort (and possibly, Don Jr) understood about the dirt Russians were offering to the Trump campaign when both attended the June 9 Trump Tower meeting. Indeed, one of the details included in Papadopoulos’ plea deal is that Gates and Manafort discussed how to respond to Russian (and Greek) offers for a meeting.

On or about May 21, 2016, defendant PAPADOPOULOS emailed another highranking Campaign official, with the subject line “Request from Russia to meet Mr. Trump.” The email included the May 4 MFA Email and added: “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss.”2

2 The government notes that the official forwarded defendant PAPADOPOULOS’s email to another Campaign official (without including defendant PAPADOPOULOS) and stated: “Let[‘]s discuss. We need someone to communicate that OT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

We’ve also just learned that Omarosa also provided evidence to Mueller’s team in February, including her claim that Don Sr knew the Russians were offering emails before WikiLeaks released them.

That detail — that the campaign knew Russians were offering emails as dirt to help Trump — was one of the things that might have helped Papadopoulos avoid a prison sentence. But since he pled, others have almost certainly provided substantially the same information, based both on what Papadopoulos told them, and on what they in turn told their superiors on the campaign or what their superiors told them.

That is, Papadopoulos has served his purpose, and there are now better placed or more credible witnesses for any conspiracy trial.

Victoria Toensing likely recruited the Papadopouloses for her propaganda mission

Then there’s the most likely explanation for how the Papadopouloses got themselves in this position, considering ditching a plea deal and instead taking their chances with the evidence George participated in the case in chief.

Back in March, Chuck Ross started a series of articles — for which one or both of the Papadopouloses, Sam Clovis, and probably Clovis’ (and briefly, Trump’s) lawyer Toensing, were sources — naming lifetime GOP operative Stefan Halper as an informant (presenting evidence he sought to find out what Papadopoulos knew about the emails, possibly cultivated Carter Page, and got a meeting with Clovis to get an introduction to Papadopoulos). If you didn’t look too closely (as Ross did not) the stories served the Devin Nunes effort to suggest the investigation into Trump’s conspiracy with the Russians was based on a rocky foundation. If you looked closely, however, Ross’ series was actually quite damning. It confirmed Adam Schiff’s revelation that the Russians had specified that they intended to leak the dirt they were dealing to help Trump and that Papadopoulos believed, at the time he lied to the FBI about his interactions with Joseph Mifsud, that if he were involved in “hacking” emails it would amount to treason.

To those trying to rescue Trump from his own conspiracy exposure, the Papadopouloses were an easy mark. Perhaps offering a promise of a pardon, they got the two to break one of the requirements of George’s plea: that he not communicate with any of a list of co-conspirators, directly or indirectly. Surely Sam Clovis was on that list, not to mention the President.

That may explain why, as Nunes and his cronies started demanding every record pertaining to Halper, the government moved towards sentencing Papadopoulos, without waiting for him to testify in any trial.

There have been signs before yesterday that the government was not going to agree that Papadopoulos fulfilled his end of the plea deal. But yesterday is a pretty good sign that George doesn’t expect to get the sweet deal he might once have gotten, probably no prison time, had Papadopoulos not bought into conspiracy theories offered by people representing other clients.

The misleading mirror Papadopoulos would see in the Trumpian bubble

Much of this seems to be driven by Simona. I don’t have any reason to credit the rampant speculation she’s actually part of Russia’s influence operation. Rather, I just think she’s naive, working in a foreign country, and vastly underestimating the legal jeopardy the life she married into is in, in part because she is consuming shitty reporting from people within the Trumpian bubble.

Of which the Chuck Ross article reporting all this is a splendid example.

On top of omitting the fact that Papadopoulos obstructed the Russian investigation by deleting his Facebook and cell phone, and omitting Papadopoulos’ very damning comment about treason, Ross spins everything so as to totally misinform the frothy right, much to Simona’s misfortune.

For example, Ross offers Simona’s explanation up, as if it helps the legal case.

Mangiante Papadopoulos told TheDCNF that Papadopoulos believed Mifsud was referring to emails Clinton deleted from her private email server.

While this line has managed to confuse the frothy right about whether, in accepting dirt leading into the June 9 meeting, it would still amount to accepting a thing of value from a foreigner, it doesn’t much matter what Papadopoulos believed, either on April 26, 2016 or on January 27, 2017 (and repeated again a month later). What matters is after having learned the Russians wanted to release some emails that would help the Trump campaign, the campaign took overt actions accordingly.

Then Ross suggests that because some late summer meetings didn’t take place, it absolves Papadopoulos of initiating an effort that led to other meetings taking place.

Papadopoulos also attempted to set up meetings between campaign officials and Russian government officials, but according to the statement of offense submitted by the special counsel’s office, the meetings never took place.

Nope! George still took overt actions as part of a conspiracy, to say nothing of agreeing to join the conspiracy over and over.

Ross then suggests that because Papadopoulos didn’t have a lawyer at the first of two meetings at which he lied to the FBI, it means he didn’t commit a crime.

Prosecutors claim that during a Jan. 26, 2017 [sic], interview, Papadopoulos, who did not have a lawyer present, falsely claimed he met Mifsud prior to joining the campaign in March 2016. But Papadopulos first met Mifsud about a week after learning he would join the Trump team.

Remember, Papadopoulos not only repeated this lie a month later, with the benefit of counsel, but also swore that it was a lie when he pled guilty.

Ross then repeats a canard he has repeated earlier, that by offering up Mifsud’s name (but hiding Ivan Timofeev, the Russian he was engaging in call and response with) it’s exonerating for George.

As evidence that Papadopoulos did not intend to deceive the FBI, Mangiante Papadopoulos claims Papadopoulos volunteered Mifsud’s name to the agents who interviewed him.

Ross pretends that Mueller has questions, regarding Alexander Downer’s testimony, that only a bunch of frothy congressmen have questions about.

Details remain vague, but Downer allegedly claimed Papadopoulos mentioned Russia had derogatory information about Clinton.

Republican lawmakers have also questioned the premise of the FBI investigation and Downer’s role in the matter. One question has been why the information from Downer took over two months to reach the FBI.

Ross then repeats a whole bunch of baseless conspiracies about Stefan Halper — the very conspiracies that contributing to likely got the Papadopouloses in trouble — as if they were true because Devin Nunes said they were.

She also believes that government officials attempted to set up her husband with a series of approaches by government informants, including former Cambridge professor Stefan Halper.

[snip]

Halper, a veteran of four Republican presidential administrations, also made contact with Trump campaign advisers Carter Page and Sam Clovis.

The FBI may use informants at an assessment level. By the time Halper approached Papadopoulos, the investigation into the Trump campaign was a predicated full investigation. Ergo, it doesn’t help Papadopoulos’ case that the FBI used an informant, because that’s what the FBI does, with the long-time explicit knowledge of Devin Nunes and everyone else who oversees the FBI.

And finally, Ross indulges Simona’s fantasy of spinning the approach from Sergei Millian (pretending this approach was out of the blue, rather than something discussed with Ivan Timofeev in one of the Facebook communications Papadopoulos tried to hide) as a second use of an informant rather than a pretty obvious part of Russia’s outreach to Trump and his surrogates, dangling a Trump Tower deal.

Millian contacted Papadopoulos out of the clear blue on LinkedIn on July 22, 2016. The pair became fast friends, meeting several times during the course of the campaign. Mangiante Papadopoulos says George claimed Millian offered him $30,000 a month to work on Russian energy issues from inside the Trump administration.

I get that Chuck Ross’ job is to feed the frothy right, to present conspiracies in isolation from the public information that would pop those conspiracies.

But it seems like these two are feeding each other, Simona giving Ross the latest scoop on his serial conspiracy theory, and Ross feeding her insane plan to ditch a plea deal and face what are likely to be foreign agent and conspiracy charges instead of whatever sentence Mueller pitches tomorrow.

I mean, George is a self-important little shit who showed willingness to sell out his country (to at least two other countries) for a bit of fast money.

But he’s being used, badly, here.

As I disclosed last month, 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. 

Trump Is Willing to Pay for Joint Defense for Hope Hicks, But Not for France

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As I laid out last week, 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. 

I keep coming back to this exchange between Dana Bash and Rudy Giuliani over the weekend.

BASH:  But let’s just focus on one of the things that you said…

GIULIANI: Go.

BASH: … that there is no evidence — you say that the special counsel hasn’t produced evidence.

But they haven’t said that they have no evidence. They have — you say that there have been leaks. They have been remarkably tight-lipped, aside from what they have had to do with indictments and such.

GIULIANI: No, they haven’t. They leaked reports. They leaked reports. They leaked meetings. They’re leaking on Manafort right now. They leaked Cohen before it happened.

BASH: But this is an ongoing investigation. We don’t really know what they have and what they don’t have. That’s fair, right?

GIULIANI: Well, I have a pretty good idea because I have seen all the documents that they have. We have debriefed all their witnesses. And we have pressed them numerous times.

BASH: You have debriefed all of their witnesses?

GIULIANI: Well, I think so, I mean, the ones that were — the ones that were involved in the joint defense agreement, which constitutes all the critical ones.

They have nothing, Dana. They wouldn’t be pressing for this interview if they had anything. [my emphasis]

Rudy asserts that every critical witness is a member of a Joint Defense Agreement involving Trump.

That’s a big Joint Defense Agreement. It also suggests that if Mueller can learn who is in it, he’s got a map of everyone that Trump himself thinks was involved in the conspiracy with Russia.

Some people will be obvious — not least, because they share lawyers. Witnesses with shared lawyers include:

Erik Prince, Sam Clovis, Mark Corallo (represented by Victoria Toensing)

Reince Priebus, Steve Bannon, Don McGahn (represented by William Burck)

Don Jr, Rhona Graff (represented by Trump Organization lawyer Alan Futerfas)

Almost certainly, it includes the key witnesses who’ve been moved onto various parts of the Reelection campaign, including 2020 convention security head Keith Schiller (represented by Stuart Sears) and Brad Parscale (defense attorney unknown).

Others are obvious because we know they’re centrally involved — people like Jared Kushner (represented by Abbe Lowell) and Hope Hicks (represented by Robert Trout). Indeed, Hicks may also fall into the category of shared lawyers — at least from the same firm — as Trout Cacheris & Janis got paid $451,779 by the RNC in April for representing Hope and two other witnesses.

One implication from this (which would be unbelievable, if true) is that Paul Manafort remains a part of the Joint Defense Agreement. But that is the only way that Trump can assess his vulnerability — as he has in the past, and appears to have shared with the Russians — to go exclusively through Manafort.

There are other implications of claiming that every critical witness is part of the Joint Defense Agreement — including that the Attorney General (represented by Iran-Contra escape artist lawyer Charles Cooper) must be part of it too. So, too, must Stephen Miller (defense attorney unknown).

But here’s the really telling thing. A key part of Trump’s foreign policy — one he’ll be focusing on relentlessly in advance of next week’s NATO summit — is that other members of the United States’ alliances are freeloaders. He’s demanding that NATO members all start paying their own way for our mutual defense.

But Trump is willing to make sure that those protecting him get paid (even if he’s not willing to pay himself). (I stole this observation from an interlocutor on Twitter.)

Which is saying something about what Trump is willing to do when he, himself, is at risk.

Devin Nunes Confirms Classified Information that “Henry Greenberg” Wasn’t Working for the FBI, and Other Tales of the Half-Wit Running our Intelligence Oversight

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As I’ve been chronicling, Devin Nunes continues his effort to invent some reason to fire Rod Rosenstein. As part of his last extortion attempt, Nunes demanded information he thought would reveal that “Henry Greenberg,” a Russian offering dirt on Hillary Clinton, was secretly working for the FBI.

How did you use our nation’s counterintelligence capabilities. These are capabilities used to track terrorists and other bad guys around the globe. How did you weaponize that against a political campaign, against the Trump campaign, where ultimately it ended up in Carter Page having a FISA warrant put against him which allowed the government to go in and grab all of his emails and phone calls. So that’s primarily what we’ve been investigating for many many months. I will tell you that Chairman Gowdy was very very clear with the Department of Justice and FBI and said that if there was any vectoring of any informants or spies or whatever you want to call them into the Trump campaign before the investigation began, we better know about it by Sunday, meaning today. He was very very clear about that. And as you probably know there’s breaking news this morning that now you have a couple Trump campaign people who are saying that they were, that they’ve amended their testimony before the House Intelligence Committee, they sent in both Friday night and this morning, amendments to their testimony saying that in fact they feel like somebody, they’re not claiming that it was the FBI, but someone ran informants or spies into them to try to get information and offer up Russian dirt to the Trump campaign. Now this would have been in May of 2016. Which is obviously months before this counterintelligence investigation was opened by the FBI into the Trump campaign.

[snip]

If I were them I would pick up the phone and let us know what this is about, this story that broke in the Washington Post, this morning, just hours ago. They probably ought to tell us whether or not they were involved in that or else they have a major major problem on their hands.

Last Friday, DOJ and FBI had provided most of the documents requested, pending a few technical issues and a review by Dan Coats of some intelligence equities. Included among those was a classified letter telling Nunes whether FBI used informants against the Trump campaign.

On June 22, 2018, the FBI submitted a classified letter to the Committee responding to the Chairman’s question regarding whether, in connection with the investigation into Russian activities surrounding the 2016 Presidential election, the FBI utilized confidential human sources prior to the issuance of the Electronic Communication (EC) initiating that investigation.

That answer clearly didn’t feed Nunes’ Witch Hunt conspiracies, so he’s reformulating his request, apparently certain that if he keeps trying he’ll discover the vast (yet totally ineffective) Deep State plot to undermine the Trump campaign. He’s asking for contacts not just between informants, but also undercover agents or confidential human sources who interacted with any of 14 Trump campaign associates.

The new request seeks information not only on “FBI informants,” but also on “undercover agents, and/or confidential human sources” who interacted with former Trump associates before July 31, 2016 — the start of the FBI’s counterintelligence investigation into connections between the Trump campaign and Russia.

The list of Trump associates Nunes indicated he’s interested in includes: Michael Caputo, Sam Clovis, Michael Cohen, Michael Flynn, Corey Lewandowski, Stephen Miller, Peter Navarro, Sam Nunberg, George Papadopoulos, Carter Page, Walid Phares, Joseph Schmitz, Roger Stone and Donald Trump Jr.

It’s a really awesome request. Aside from confirming the content of that classified letter (among other things, that “Henry Greenberg” wasn’t our intelligence asset when Roger Stone entertained offers of Hillary dirt), Nunes has given us a list of campaign associates who should be criminally investigated:

  • Michael Caputo
  • Sam Clovis
  • Michael Cohen
  • Michael Flynn
  • Corey Lewandowski
  • Stephen Miller
  • Peter Navarro
  • Sam Nunberg
  • George Papadopoulos
  • Carter Page
  • Walid Phares
  • Joseph Schmitz
  • Roger Stone
  • Donald Trump Jr.

Notably, a number of these people — Caputo, Cohen, Lewandowski, Miller, Stone, and Navarro — aren’t on the list of document requests Mueller had submitted to the White House by January. Perhaps for the first three plus Stone, that’s because they never worked in the White House (and in the case of Caputo and Stone, pretended not to work for the campaign so as to give the campaign plausible deniability from the rat-fucking).

Nevertheless, their inclusion here seems to confirm that Nunes believes they are targets or at least subjects of Mueller’s investigation. Of those not on Mueller’s January list, we know that Stone and Cohen are in deep shit, so maybe the others are too!

Thanks Devin! Let’s hope leaking that classified information doesn’t get you in trouble with your colleagues, though.

A pity for the guy running our intelligence oversight that he can’t figure out that a number of these targets came from Rick Gates flipping, and not informants planted way back in May 2016.

Mueller Frees Up the Troll Team

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In the background of the celebrating over the Carpenter SCOTUS decision — which held that the government generally needs a warrant to access historical cell phone location — there were a few developments in the Mueller investigation:

  • The George Papadopoulos parties moved towards sentencing, either on September 7 or in October. If Mueller told Papadopoulos his wife Simon’s Mangiante seeming coordination of the Stefan Halper smear with Sam Clovis (and his lawyer, Victoria Toensing) and Carter Page got him in trouble, we got no sign of that.
  • Amy Berman Jackson dismissed a Paul Manafort attempt to limit the criminal penalties of his Foreign Agent Registration Act violations; this isn’t very sexy, but if the well-argued opinion stands, it will serve as a precedent in DC for other sleazy influence peddlers.
  • After ABJ made sure Rick Gates ask Mueller if he really didn’t mind Gates going on a trip without his GPS ankle bracelet, Gates got permission to travel — with the jewelry.
  • Kimba Wood accepted Special Master Barbara Jones’ recommendations, which among other things held that just 7 of the files reviewed so far pertain to the privilege of anyone, presumably including Trump,  to whom Michael Cohen was providing legal services. So Cohen and Trump just paid upwards of $150,000 to hide the advice Cohen has gotten from lawyers and seven more documents — that is, for no really good reason.
  • In two separate filings, four DOJ lawyers filed notices of appearance in the Internet Research Agency/Concord Management case.

It’s the latter that I find most interesting. Mueller has added a team of four lawyers:

  • Deborah A. Curtis
  • Jonathan Kravis
  • Kathryn Rakoczy
  • Heather Alpino

To a team with three (plus Michael Dreeben):

  • Jeannie Sclafani Rhee
  • Rush Atkinson
  • Ryan Kao Dickey

Devlin Barrett (he of the likely impressive link map) reported that Mueller did this to prepare for the moment when his office shuts down and the Concord Management nuisance defense drags on for years.

People familiar with the staffing decision said the new prosecutors are not joining Mueller’s team, but rather are being added to the case so that they could someday take responsibility for it when the special counsel ceases operation. The case those prosecutors are joining could drag on for years because the indictment charges a number of Russians who will probably never see the inside of a U.S. courtroom. Russia does not extradite its citizens.

The development suggests Mueller is contemplating the end of his work and farming out any potentially outstanding prosecutions to other parts of the Justice Department.

Except this doesn’t make sense. Not only are Concord and the judge, Dabney Friedrich, pushing for a quick trial, but Atkinson and Dickey are themselves DOJ employees, so could manage any residual duties.

Far more likely, Mueller is ensuring one of his A Teams — including Dickey, DOJ’s best cyber prosecutor — will be able to move on to more important tasks on the central matters before him.

The Documents the White House Turned Over

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I wanted to pull this information, from the John Dowd’s letter to Robert Mueller, to lay out how the White House has categorized document requests from Mueller. Dowd boast the “Records voluntarily produced to your office by the White House total over 20,000 pages.” Here’s what those records like, arranged by Bates series.

The Flynn documents

The categories start with Flynn, including an astounding 2,572 pages related to Sean Spicer’s comments to the press on Jim Comey from May 3, 2017 (in the press briefing that day Spicer downplayed the threat Russia posed to the US).

  • FBI Interview of Michael Flynn at the White House on January 24, 2017 (SCR001), 9 documents, 66 pages;
  • Communications of DAG Sally Yates, DOJ, FBI, & WH regarding Michael Flynn (SCR002), 28 documents, 64 pages;
  • Communications between White House staff regarding the FBl’s investigation into Russian interference or James Comey (SCR003), 53 documents, 248 pages;
  • The resignation of Michael Flynn (SCR004), 311 documents, 762 pages;
  • Sean Spicer’s May 3, 2017, statements to the press regarding James Comey (SCR005), 445 documents, 2,572 pages;

The George Papadopoulos documents

There’s just one bullet point of communications pertaining to Papadopoulos. This list must reflect the list of those who might be of interest in the Russian inquiry. Note that Jeff Sessions is not included.

  • White House communications concerning campaign and transition communications between Manafort, Gates, Gordon, Kellogg, Page, Papadopoulos, Phares, Clovis and Schmitz (SCR006), 75 documents, 978 pages;

A second tranche of Mike Flynn documents

Then there are two more bullets of Mike Flynn documents, first seeking campaign and transition communications involving Russian Federation officials, and then seeking the 2,990 pages on the May 10, 2017 meeting with Sergei Lavrov. We should expect a ton of prep work in advance of such a meeting, so the number might not be that surprising. But it is the largest set of documents.

  • White House communications regarding campaign and transition communications between Michael Flynn and Sergey Kislyak or other Russian Federation officials (SCR007), 303 documents, 912 pages;
  • May 10, 2017, White House meeting with Russian Federation officials (SCR008), 808 documents, 2,990 pages;

The June 9 meeting documents

Only after those Flynn related comms did Mueller ask for June 9 meeting documents. They asked for three things: Documents pertaining to the June 9 meeting (note, this doesn’t include a request for the follow-up discussions in November). Then, a list of those who were involved in Don Jr’s press statements. Finally, all the comms from those people. The number of these documents is suspiciously small, particularly as compared to the volume turned over to SJC.

  • June 9, 2016, meeting between Donald Trump, Jr., and Natalia Veselnitskaya (SCR009), 117 documents, 1,821 pages;
  • July 8, 2017, Air Force One participants regarding Donald Trump, Jr., press statements concerning Veselnitskaya meeting (SCR010), 1 document, 1 page;
  • Communications of individuals identified in category number 10 (SCR011), 141 documents, 284 pages.

Jim Comey documents

Finally, there are documents pertaining to Jim Comey’s firing. This suggests Mueller didn’t ask for these documents until at least July 2017.

  • Meetings between the President and James Comey (SCR012), 109 documents, 725 pages;
  • The decision to terminate James Comey (SCR013), 442 documents, 1,455 pages;

A Thinking Person’s Guide to the Stefan Halper Conspiracy Theory

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For some time, I’ve been agnostic about whether Chuck Ross’ series on Stefan Halper derived from his own discussions with George Papadopoulos, Carter Page, and Sam Clovis, or whether he relied on leaks from HPSCI.

Today, he gave one of the leading comments he often does, about Paul Ryan’s claimed concern about “FISA abuse.” (Ryan, remember, pushed through 702 reauthorization this year without reforming a single one of the abuses laid out in this report, but apparently Chuck’s gonna play along with the notion that Ryan gives a shit about FISA.)

That mirrors Ross’ own logically nonsensical focus on the dossier as a source for the Carter Page FISA order in conjunction with Halper. Which, especially since other journalists are making it clear the Halper focus is coming from Hill Republicans, suggests Ross was getting leaks from Republicans.

That’s even more true of this interview with Sam Clovis. In it, Clovis makes it very clear the meeting did not stick out in his memory.

It was an academic meeting. It was not anything other than him talking about the research that he had done on China.

[snip]

No indication or inclination that this was anything other than just wanting to offer up his help to the campaign if I needed it.

After describing how he hadn’t opened up attachments Halper sent later in the month, he said, “that is how little this registered with me.”

And yet, somehow, by March, someone had told Ross about this meeting.

Halper also requested and attended a one-on-one meeting with another senior campaign official, TheDCNF learned. That meeting was held a day or two before Halper reached out to Papadopoulos. Halper offered to help the campaign but did not bring up Papadopoulos, even though he would reach out to the campaign aide a day or two later.

Clovis seems to derive his memory of the meeting, in significant part, from the documentation he does (four emails setting the meeting up) and doesn’t (any notes) have about it.

There’s a record of the exchange of emails that we had, four emails to set the appointment.

[snip]

I had my notebook. Always take notes and always keep track of what’s going on. And there wasn’t anything — I didn’t have any notes on the meeting cause there must not have been anything substantive that took place.

That suggests someone knew to go back to look for communications involving Halper. Now, if HPSCI requested all the comms campaign aides had with investigative target Carter Page, then Clovis would have turned over these emails (which mentioned Page but probably discussed China, not Russia), and HPSCI staffers could have found the tie. If HPSCI only asked for Russia-related comms involving Page, then someone got Toensing or Clovis to search for Halper emails themselves.

Clovis explains that he’s bothered, now, about the meeting because he thinks he was used as an excuse to reach out to George Papadopoulos.

He had met with Carter Page. He had used that to get the bona fides to get an appointment with me.

[snip]

Then I think he used my meeting as bona fides to get a meeting with George Papadopoulos.

Remember, one of the inane complaints in the Nunes memo is that the Carter Page FISA application mentioned Papadopoulos.

The Schiff memo explains that Papadopoulos got mentioned because, after Alexander Downer told the FBI that Papadopoulos had told him the Russians were going to release Hillary emails to help Trump, they opened a counterintelligence investigation into the Trump campaign.

In other words, the frothy right likely believes, like Clovis, that Halper was networking as a way to get to Papadopoulos, and that in some way ties to the FISA application against Page.

And he may well have done so! As TPM clarifies some confusion created by WaPo, both Page, Clovis, and Clovis lawyer Victoria Toensing agree that Halper mentioned Page when he reached out to Clovis.

Clovis’ lawyer, Victoria Toensing, previously said, according to the Washington Post that the informant had not mentioned his other Trump contacts when reaching out to Clovis. Clovis said he wasn’t sure “where she got that information,”since she had access to the emails setting up the September 2016 meeting.

Toensing, in an phone interview Tuesday with TPM, backed up Clovis’ account. She told TPM that the informant had said in an email to Clovis that Page had recommended that they meet. She also claimed that the informant had told Page when they met at the conference that he was a big fan of Clovis’. Page confirmed Toensing’s account in an email to TPM.

Halper met with Clovis on September 1 and then reached out to Papadopoulos the next day.

Though note: Page says Halper raised Clovis at the July conference where they met, a meeting that occurred before dossier reports started getting back to FBI (particularly to the people investigating the hack-and-leak) and before the Papadopoulos report. That either suggests the FBI already had concerns about Clovis by then, or Halper was more generally networking with Page along with checking out someone who had been a live counterintelligence concern in his own right since March and for years beforehand.

Here’s where things start to go off the rails for this whole conspiracy theory, though. Clovis (who, remember, testified to Mueller’s team in the days before Papadopoulos’ cooperation agreement was unsealed, and who therefore may have his own false statements to worry about) believes that the FBI had no business trying to ask Papadopoulos about his April knowledge of Russians dealing Clinton emails in a way that would not arouse Papadopoulos’ suspicion.

What unsettled me … is what he tried to do with George Papadopoulos and that was to establish an audit trail from the campaign or somebody associated with the campaign back to those Clinton emails, whether or not they existed we don’t know.

Clovis believes, as does the entire frothy right, that the FBI had no reason to check out leads from someone who predicted the Russians would leak dirt from Hillary to help Trump a month before it became publicly known.

What were they investigating? To be investigating, there has to be some indication of a crime. And there does not appear to have been any indication for a crime. And by the way the Fourth Amendment protects you in your place and your person from investigation without a clear indication of what, uh, probable cause.

Somehow, Clovis conveniently forgets that stealing emails is a crime. And the FBI had been investigating that crime since June 2016, a month before learning that Papadopoulos might have known about the stolen emails before the FBI itself did.

In other words, at the core of this entire conspiracy theory (on top of pretending that Carter Page wasn’t already a counterintelligence concern in March, as all the designated GOP stenographers do) is the GOP fantasy that the FBI had no business trying to chase down why Papadopoulos knew of the theft before the DNC itself did.

And they’re making an enormous case out of the fact that FBI used Halper — a lifelong Republican to whom Papadopoulos could and did lie to without legal jeopardy — to interview someone Clovis claims was “ancillary” to the campaign at the time.

It’s also clear to me that they misread George’s relationship with the campaign entirely, so, because he was not, he was ancillary at best at that point.

So that appears to be where this is heading: an attempt to criminalize a Republican networking with a goal of learning whether George Papadopoulos, and through him, Sam Clovis and the rest of the campaign, committed what Papadopoulos himself has said (though this is legally incorrect) might amount to treason.

Ultimately, it comes down to this: the GOP doesn’t think Russian theft of Democratic emails was a crime and therefore doesn’t think FBI had reason to investigate Papadopoulos’ apparent foreknowledge of that crime.

The Libby Pardon: Trump’s Object Lesson in Presidential Firewalls

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There are two reports out tonight:

  • Rod Rosenstein will be fired in an attempt to quash any further investigation of Trump’s crimes.
  • Scooter Libby will be pardoned in an obvious attempt to present an object lesson in presidential firewalls.

This post will be an initial attempt to explain the Libby pardon.

Side note: For those who claim Richard Armitage outed Plame, let’s just agree that you have no familiarity with the actual record and leave it there for now. Trust me on this: Bush and Cheney were very concerned that the written record showed Cheney ordering Libby to out Plame (whom, some evidence not introduced at trial suggests, he knew was covert). We can fight about that later, but I’ve got a library of records on this and you don’t. 

First: Libby has already had his right to vote and his bar license restored. This pardon is purely symbolic. I’m sure Libby’s happy to have it, but the audience here is Paul Manafort, Michael Cohen, and a slew of other people who can incriminate Trump.

This appears to be a stunt inspired by Joe DiGenova and Victoria Toensing (whom I’ll call DiG & T henceforth), who are great table pounders but not great lawyers. Also, remember that VT is representing Mark Corallo, Erik Prince, and Sam Clovis, all in some legal jeopardy, so this ploy may help them too.

Libby was Bush’s firewall because he was ordered–by either PapaDick Cheney and/or Bush–to out Valerie Plame as an object lesson to CIA people pushing back on their shitty Iraq case. By refusing to flip, he prevented Patrick Fitzgerald from determining whether Bush had really ordered that outing or whether Cheney and Libby freelanced on it.

Libby risked prison, but didn’t flip on Cheney or Bush. He avoided prison time with a commutation, not a pardon. While PapaDick pushed hard for pardon, it didn’t happen, in large part because Bush had far better lawyers than Trump has.

Here’s some of the differences between Libby and Trump’s many firewalls:

  1. Manafort, Kushner, and Cohen are exposed to state charges, in addition to federal (even ignoring how the Russian mob may treat them).
  2. Libby was the bottleneck witness. You needed him to move further, or you got nowhere. Not so with Trump, because so many people know what a crook he is.
  3. Bush commuted but did not pardon Libby, then refused, against PapaDick’s plaints, because (smarter lawyer) his lawyer counseled that’d be obstruction [update, or counseled that Libby could still incriminate Bush]. Trump can’t fully pardon his firewall, for the same reason: bc these witnesses will lose Fifth Amendment privileges against self-incrimination (which, as it happens, Cohen is invoking as we speak in a civil suit, which also can’t be dismissed by pardon).
  4. Di Genova and Toensing (who are not good lawyers but pound tables well) haven’t figured out that this won’t be a one-off: This won’t be one (Manafort) or two (Cohen) people Trump has to pardon. And THEY DON’T KNOW the full scope of who Trump would have to pardon here. There are too many moving parts to pull this off.
  5. And finally, because Trump is in a race. As I noted before, Mueller has already signaled he will label dangling pardons — as Trump has already done — as obstruction of justice. That presents far more risk for Trump, even assuming Mike Pence wants to go do the route of half-term infamy that Gerald Ford did by pardoning his boss.

All that’s before the fact that the crimes that Trump and his are facing are far, far uglier even than deliberately exposing the identity of a CIA officer to warn others off of exposing your war lies.

Maybe this will work? But I doubt it. There are just too many moving parts. And there is too little understanding among Trump’s closest advisors what they’re really facing.

So, congratulations to Scooter Libby at being a free man again. Condolences to Rod Rosenstein at being a free man again, if the firing does happen as predicted tomorrow.

But this is just a gambit, and there’s no reason to believe it will work.

Trump’s Legal Team: “If the Law and the Facts Are Against You, Pound the Table and Yell Like Hell”

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Folks in the White House keep telling Maggie Haberman and Mike Schmidt about imminent changes to his legal team.

March 10: Emmet Flood

On March 10, it was that the superb Emmet Flood — who among other things, kept Dick Cheney out of the pokey — would join his team. The possibility was based on a meeting (now over 10 days ago) described as “an overture.”

The lawyer, Emmet T. Flood, met with Mr. Trump in the Oval Office this past week to discuss the possibility, according to the people. No final decision has been made, according to two of the people.

Should Mr. Flood come on board, the two people said, his main duties would be a day-to-day role helping the president navigate his dealings with the Justice Department.

Two people close to the president said that the overture to Mr. Flood did not indicate any new concerns about the inquiry. Still, it appears, at the least, to be an acknowledgment that the investigation is unlikely to end anytime soon.

The story admitted that Flood had said no to a similar offer last summer, at such time when Flood might have set the legal strategy and established ground rules for his client.

As recently as the summer, Mr. Flood, who currently works at the law firm Williams & Connolly, turned down an opportunity to represent Mr. Trump. It is not clear what has changed since then.

It also claimed that Flood was the only lawyer the White House had approached.

Mr. Flood had been on the wish list of some of the president’s advisers to join his legal team last year, and he is the only person the White House has been in contact with about such a leading role.

It also included the bizarre notion that Ty Cobb’s job was meant to end as soon as the White House had turned over all the documents Robert Mueller wanted.

Mr. Cobb has told friends for weeks that he views his position as temporary and does not expect to remain in the job for much longer.

Mr. Cobb’s primary task — producing documents for Mr. Mueller and arranging for White House aides to meet with prosecutors — is largely complete.

March 19: Joseph Di Genova

Then, on Monday, Maggie and Mike reported that Joseph Di Genova would join the team. The former US Attorney wouldn’t actually be lawyering so much as pounding the table and inventing conspiracy theories (best as I can tell, pounding tables is supposed to be Trump’s current lawyer, Jay Sekulow’s job, but he seems to have taken to hiding under the bed of late).

Mr. diGenova, a former United States attorney, is not expected to take a lead role. But he will serve as an outspoken player for the president as Mr. Trump has increased his attacks on the special counsel, Robert S. Mueller III. Mr. Trump broke over the weekend from the longstanding advice of some of his lawyers that he refrain from directly criticizing Mr. Mueller, a sign of his growing unease with the investigation.

It’s just as well that Di Genova wouldn’t be doing any lawyering given that in 1997, he argued that sitting presidents could be indicted, a view that would make it easier for Mueller to charge his supposed client.

Somehow, this story didn’t explain a big puzzle about the hiring: how Di Genova could represent the president when his wife, Victoria Toensing, has represented three other people in the investigation, at least one of whom gave apparently damning testimony to Mueller’s investigators.

Mr. diGenova is law partners with his wife, Victoria Toensing. Ms. Toensing has also represented Sam Clovis, the former Trump campaign co-chairman, and Erik Prince, the founder of the security contractor Blackwater and an informal adviser to Mr. Trump. Mr. Prince attended a meeting in January 2017 with a Russian investor in the Seychelles that the special counsel is investigating.

Ms. Toensing also represents Mark Corallo, the former spokesman for the Trump legal team who has accused one of the president’s advisers of potentially planning to obstruct justice with a statement related to a 2016 meeting between Donald Trump Jr. and a Russian lawyer who supposedly had damaging information on Hillary Clinton.

While it’s certainly possible Di Genova could clear up the conflict with Clovis and Prince, Corallo reportedly testified that Hope Hicks, having met one-on-one with Trump, suggested that emails regarding the June 9, 2016 meeting could be buried.

March 20: Ted Olson

Then, today, multiple outlets claimed that Ted Olson was under consideration. That’d be weird, given that Trump wants to claim that Robert Mueller has conflicts on account of his association with Jim Comey, yet Olson was as integrally involved in the most famous Comey-Mueller event — the hospital hero challenge to Stellar Wind in 2004 — as Mueller was. Plus, Olson’s name is on the Supreme Court precedent that deemed even the more expansive special prosecutor statute constitutional.

Which is to say that Olson may be the best active Republican lawyer with the possible exception of his former deputy, Paul Clement (hey, why isn’t Clement being floated?), but it’s not clear he would help Trump much, even if he could get Trump to follow instructions.

Yet the pushback from Olson’s firm suggests he was never really considering this offer (which raises questions about whether Flood, who like Olson also considered and rejected the position last year, is taking this offer any more seriously). It seems Trump wants to create the appearance, at least, that serious lawyers will still consider representing him.

Trump’s existing lawyers prepare to bolt

As it turns out, Trump didn’t tell his existing lawyers about a number of these conversations. And even aside from the shit shingle they’re facing, particularly as it becomes clear to Trump they were lying to him all last year about how long this inquiry would be and how serious Trump’s jeopardy is, they’re all getting tired babysitting the president.

The hiring of diGenova on Monday, first reported by the New York Times, infuriated Dowd, who responded angrily to the development, according to people familiar with his reaction, who spoke on the condition of anonymity to share internal details. Dowd views diGenova as pushing him to be the second chair rather than top dog on Trump’s legal team, these people said. But Dowd said in an email to a Post reporter that he’s perfectly happy with the new addition: “Love Joe.”

Dowd, however, has lost the confidence of many in the president’s orbit, both inside and outside the White House. In December, after Trump tweeted that he had fired his former national security adviser Michael Flynn because Flynn had lied to both the vice president and the FBI, Dowd later claimed that he was the one who had drafted the missive.

One outside adviser described Dowd as “the weakest link” in the team.

McGahn and Cobb have also had their share of tension. While Cobb has urged the president to cooperate with Mueller and hand over documents to his investigators, McGahn has pushed a more aggressive approach, according to people familiar with his work.

McGahn has said the legal team should make the special counsel subpoena every document, explain every interview and fight for every piece of information, one person said. A second White House aide said McGahn has questioned the constitutional status of the special counsel position.

But McGahn and Trump have also clashed repeatedly since entering the White House, and one former administration official said the president mused at least three times that perhaps he should hire a new counsel.

McGahn has told associates that he is exhausted and frustrated at times in the job, but that he has been able to make a historic impact on appointing judges and reducing regulations and that he would like to be around for a second Supreme Court opening, one friend said. McGahn also has a strong relationship with Kelly.

So Trump’s lawyers (with the possible exception of Don McGahn, who’ll stay so long as he can pack the courts with unqualified ideologues) want out, and none of the real lawyers he’s approaching want to have anything to do with him.

When Rick Gates ran his defense team like this, he had a way out: to flip on Paul Manafort and Trump himself.

But who will Trump flip on? Vladimir Putin?

This is the most remarkable thing to behold. The most powerful man in the world is having difficulties getting anyone but a washed out table-pounder to represent him in the most high profile investigation in recent years.