#Nothingburger Memo


The Nunes memo is public. Anyone can now read about a warrant application to conduct surveillance on former Trump campaign advisor Carter Page who in 2013 called himself “an informal advisor to the staff of the Kremlin in preparation for their Presidency of the G-20 Summit” according to a Time magazine story.

Let me save everyone the effort. The four-pager is a big nothingburger. There are no major reveals on the Justice Department’s investigation of Russia’s interference in the 2016 presidential election.

Perhaps most telling are the omissions. For example, the memo purports to critique the October 2016 FISA warrant application on Page without ever acknowledging that its subject had come under FBI scrutiny a full three years earlier for contacts with suspected Russian operatives. As the Minority of the House Permanent Select Committee on Intelligence notes, “...refusal to allow release of a comprehensive response memorandum prepared by Committee Democrats is a transparent effort to suppress the full truth.”

This amateurish effort appears to be simply another installment in the eight-month smear campaign against the Russia probe by Trump allies. In a prebuttal, ACS and CREW identify and describe the speciousness of several lines of attack against the Mueller investigation. This latest salvo, yet again, provides no grounds to discredit the Special Counsel’s inquiry or its leadership.

Nevertheless, the president appears poised to use the Nunes memo as grounds for firing Deputy Attorney General Rod Rosenstein, who established the order for a special counsel and oversees the inquiry. After the memo’s release, Trump was asked by reporters if he planned to fire Rosenstein. Reportedly, he said, “You figure that one out.”

We are now watching Trump’s Saturday Night Massacre in slow motion right before our eyes. This is shameful.

The Smear Campaign Against Mueller: Debunking the Nunes Memo and the Other Attacks on the Russia Investigation

Authors Noah Bookbinder, Norman Eisen, Caroline Fredrickson, and Kristin Amerling examine the facts and law relating to seven major allegations regarding the conduct of the Russia investigation that collectively amount to one of the most sustained smear campaigns against honest government officials since Senator Joe McCarthy’s attacks of the 1950’s.

The authors explain why:

(1) Mueller does not have conflicts of interest that disqualify him from being special counsel;

(2) Mueller’s investigative team does not face conflicts of interest;

(3) No DOJ employee actions have justified removal of Mueller;

(4) Trump transition materials accessed by the Special Counsel likely do not raise privilege concerns;

(5) The Mueller inquiry does not turn on opposition research funded by the Clinton campaign;

(6) Representative Devin Nunes’s memo claiming that the FBI improperly obtained a warrant to conduct surveillance on Trump campaign officials lacks credibility; and

(7) An additional special counsel is not warranted under applicable law.

Although this inquiry is still unfolding an any assessment is necessarily preliminary, the report concludes that based on what is publicly known, the Special Counsel has conducted an inquiry that fully complies with relevant laws, rules, and guidelines – and that is wholly consistent with Mueller’s reputation for playing by the book.

This memorandum was prepared for the Presidential Investigation Education Project, a joint initiative by ACS and CREW to promote informed public evaluation of the investigations by Special Counsel Robert Mueller and others into Russian interference in the 2016 election and related matters. This effort includes developing and disseminating legal analysis of key issues that emerge as the inquiries unfold and connecting members of the media and public with ACS and CREW experts and other legal scholars who are writing on these matters. Click here to view the report.

*All images from C-SPAN.


Trump will eventually answer questions from Special Counsel Robert Mueller in the Russia probe. What is unclear is when, what topics and what format the interview will take. At this point, the negotiations are ongoing.

In the meantime, evidence mounts regarding obstruction of justice and contacts with Russia, with two people indicted, two pleading guilty, and numerous public misstatements so far. And the list of key questions grows longer:

  • Mr. President: Why did you fire former FBI Director James Comey?
  • Mr. President: Did you ask former FBI Director Comey to drop an investigation into former National Security Adviser Michael Flynn?
  • Mr. President: Why did you dismiss General Michael Flynn, former National Security Adviser?
  • Mr. President: Have you asked lawmakers leading congressional investigations into election interference by Russia to curtail their inquiries?
  • Mr. President: What role did you play in crafting Donald Trump, Jr.’s misleading public statement regarding his meeting with Russian lawyer Natalia Veselnitskaya?
  • Mr. President: Did Donald Trump Jr. or anyone else who attended the June 2016 meeting with Russian lawyer Natalia Veselnitskaya at Trump Tower tell you about that meeting on that day and if so when and what did they communicate to you?
  • Mr. President: In late December 2016 did you authorize Michael Flynn to communicate with Russian ambassador Sergey Kislyak about U.S. sanctions on Russia? What do you remember about any conversations you had in that time frame regarding Flynn contacts with Russian officials?
  • Mr. President: Did Donald Trump Jr. inform you about contacts he received from Wikileaks representatives during the 2016 campaign and if so when and what did he communicate to you about this?
  • Mr. President: Did you instruct your campaign advisors to modify the Republican platform provisions regarding Ukraine?
  • Mr. President: In your meeting with campaign national security advisors on March 31, 2016, what do you recall about any discussion of a proposal to arrange a meeting between you and Vladimir Putin?
  • Mr. President: Regarding the information your campaign advisor George Papadopoulos reportedly received in April 2016 that Russia had “dirt” on Hillary Clinton in the form of emails, did anyone share that tip with you and if so when?
  • Mr. President: Does The Trump Organization have any business relationships with Treasury’s newly released list of senior foreign political figures and oligarchs in the Russian Federation, as determined by their closeness to the Russian regime and net worth?
  • Mr. President: Why are you personally interviewing certain nominees for US Attorney? Are you requesting loyalty pledges from interim US Attorneys?
  • Mr. President: Do you see any conflicts in interviewing nominee for US Attorney districts that include Trump properties?

NY Watchdog Could Take a Bite of Trump Probe

*This piece was originally published by Times Union

If it has not already done so, the New York State Department of Financial Services (DFS) could vigorously pursue what Congress has so ponderously avoided: whether Deutsche Bank aided, abetted, or facilitated the Trump Organization in possible Russian money laundering.

As New York's bank regulator, DFS supervises Deutsche Bank's New York branch office. With its broad regulatory authority, and its numerous statutory tools that pare away obfuscation with surgical precision, DFS could very likely get to the bottom of this matter faster than Special Counsel Robert Mueller can alone.

On January 2, Glenn R. Simpson and Peter Fritsch published an astonishing opinion piece in the New York Times. Simpson and Fritsch founded Fusion GPS, the commercial research and strategic intelligence firm responsible for the now infamous "Steele Dossier" — a collection of intelligence reports that, among other things, recounts deeply troubling efforts by Russia to interfere with the 2016 United States presidential election in order to help then-candidate Donald Trump win. Simpson and Fritsch wrote that they had advised congressional investigators that their research had found "widespread evidence that Mr. Trump and his organization had worked with a wide array of dubious Russians in arrangements that often raised questions about money laundering." They also told Congress to "look into bank records of Deutsche Bank and others that were funding Mr. Trump's businesses." They concluded that Congress has been "uninterested in that tip," even though Simpson told the Senate Judiciary Committee that the retired British spy who authored the Steele Dossier — on his own — felt compelled to advise the FBI in July 2016 that then-candidate Trump could be subject to Russian blackmail. A week later, Sen. Diane Feinstein publicly released the transcripts of Simpson's Senate testimony.

Less than two weeks later, the House Intelligence Committee released transcripts of much earlier testimony by Simpson in which he similarly warned about the Trump Organization's possible involvement in Russian money laundering. Just as the Senate Judiciary Committee had, the House Intelligence Committee likewise declined to pursue Simpson's recommendation to investigate.

DFS could now take the torch and run with it. That certainly would not be a rash or unreasonable response. Alarms are sounding in all quadrants. Steve Bannon — Trump's former campaign CEO and Chief White House Strategist (but apparently his present nemesis) — was recently quoted by Michael Wolff as implicating Deutsche Bank in financial misconduct involving the Trump family. In 2014, Trump's son Eric was quoted as saying that the Trump Organization "didn't rely on American Banks" to finance business projects because "[w]e have all the funding we need out of Russia." And before that, in 2008, the president's eldest son, Donald Trump Jr., stated that "Russians make up a pretty disproportionate cross-section" of investors in Trump Organization assets, adding that "we see a lot of money pouring in from Russia."

Nor would this be the first time that DFS had investigated Deutsche Bank for Russian money laundering. Just one year ago, in January 2017, DFS fined Deutsche Bank $425 million for the bank's involvement in a scheme that laundered $10 billion in Russian funds. At best, Deutsche Bank has a prior record of woeful money laundering controls that undoubtedly gives New York (and likely federal) regulators indigestion. To date, it has also had a confounding and impenetrable business relationship with the Trump Organization — fraught with litigation and debt refinancing that surpassed hundreds of millions of dollars in prior unpaid Trump loans. Indeed, in his recent book "Collusion," investigative reporter Luke Harding seriously questions whether the Trump Organization's relationship with Deutsche Bank is connected to the Russian money-laundering scheme for which the bank was punished by DFS. The smoke has gotten thick.

So what can DFS do to clear the air? New York state law gives the agency extraordinary power. It can order Deutsche Bank's New York Branch to prepare a "special report" detailing all transactions in which the bank engaged involving the Trump Organization, its affiliates, and Russian-related entities or individuals. It can assign forensic bank examiners to analyze relevant bank files. It can subpoena bank records. It can subpoena documents from third-parties involved in those transactions, including perhaps other banks, consultants, brokers, and business associates of both the Trump Organization and Deutsche Bank. It can take sworn testimony from witnesses and hold hearings (potentially public) in which Deutsche Bank must appear before DFS to explain apparent violations of law, such as the purposeful or negligent facilitation of money laundering. Any or all of these regulatory actions may be warranted. And Deutsche Bank would risk its life-line to the New York financial markets if it were to mislead the agency.

The enforcement of anti-money laundering rules is a core function of every bank supervisor. Violation of those laws threatens the safety and soundness of banking institutions and the integrity of global financial markets. In these extraordinary circumstances, it also may have struck at the heart of American democracy.

The governing maxim for the Manhattan real estate industry — well known to the Trump Organization — has always been "location, location, location." Because New York is a global financial center, that same principle has made DFS responsible for supervising some of the world's largest financial institutions, Deutsche Bank among them. That is a solemn responsibility.

A divided Congress may have chosen to ignore a hot "tip," but DFS need not. Whatever the outcome, this investigation is far too important — for both New York and the nation — for it to go cold in a Russian winter.

Paul Manafort's Many-Flawed Challenge to Prosecutorial Authority

*This piece was originally posted on Take Care.

Yesterday, lawyers for Paul Manafort, President Trump’s former campaign manager, filed a civil suit in the U.S. District Court for the District of Columbia, seeking to void the appointment of Robert S. Mueller III as special counsel, set aside Mr. Manafort’s indictment, or, at the very least, curtail Mr. Mueller’s authority to investigate whatever business dealings of Mr. Manafort were unrelated to the 2016 presidential campaign.

Among other charges, Mr. Manafort was indicted on October 27, 2017 on allegations of conspiracy to launder money, conspiracy against the United States, being an unregistered agent of a foreign principal, and making false and misleading statements under the Foreign Agents Registration Act.

Yesterday’s filing marks a lawsuit destined to go nowhere.  A New York Times story characterizes the suit as “a clever legal maneuver” either to force Mr. Mueller to reveal new details about the investigation (which would not appear so clever if the details are damning) or to help undermine Mr. Mueller’s credibility through a “protracted” challenge to the legitimacy of his authority.

Mr. Manafort’s complaint contains two counts. The first alleges that Rod Rosenstein, as acting attorney general, ignored the Justice Department’s regulations on the appointment of special counsel by giving Mueller blanket authority to prosecute federal crimes coming to his attention in the course of investigating Russian efforts to interfere in the 2016 election, even if those crimes were wholly unrelated to the campaign. Conferring such authority supposedly violated a Justice Department regulation that would require special counsel to “consult with the Attorney General, who will determine whether to include . . . additional matters within the Special Counsel's jurisdiction or assign them elsewhere.”

The second count alleges that, even if the order appointing Mr. Mueller was proper, it covered only crimes that would come to special counsel’s attention because of his own investigation. According to the complaint, the October 27, 2017 indictment of Mr. Manafort raised only “stale allegations DOJ must have been aware of for nearly a decade.” Mr. Manafort asserts he himself had voluntarily made the Justice Department aware of many of the relevant facts in 2014.

The latter count, as Marty Lederman has written, seems to be predicated on a non sequitur. Even if Justice Department attorneys were aware years ago of many of the facts ultimately relevant to the Manafort indictment, this would not “demonstrate that evidence about Manafort’s dealings with Ukraine did not ‘arise . . . directly’ from the Special Counsel’s probe into ties between Russia and the Trump campaign.”

Moreover, whether or not Mr. Manafort’s alleged crimes were sufficiently related to the Russia investigation to fall within Mr. Mueller’s jurisdiction would seem to be entirely a matter within the discretionary determination of Acting Attorney General Rosenstein. In other words, if the Acting Attorney General is satisfied with Mr. Mueller’s conduct, that would be enough as a matter of law to legitimate the Manafort prosecution. Indeed, Mr. Rosenstein’s judgment on the matter would seem to be a paradigmatic example of what the federal Administrative Procedure Act calls “agency action committed to agency discretion by law,” and therefore, not reviewable in a civil lawsuit at all.

The first count would seem a more fundamental challenge to Mr. Mueller’s authority insofar as it alleges that the May, 2017 order granting him jurisdiction exceeded authority the Justice Department had granted the Attorney General through its special counsel regulations. The problem with this theory, however, is that the measure of Mr. Rosenstein’s authority to empower Mr. Mueller is not the Department’s regulations, but the Department’s statutory authority to appoint special counsel.

28 U.S.C. § 515 provides that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct.” This statute explicitly allows Mr. Mueller, as an “attorney specially appointed,” to conduct any criminal proceeding that the Acting Attorney General approves.

There is simply no indication that Mr. Mueller proceeded against Mr. Manafort without consulting the Acting Attorney General and getting his imprimatur. Indeed, Mr. Rosenstein’s testimony before Congress on December 13, during which he stated he had seen no good cause to dismiss Mr. Mueller, strongly implies the contrary.

The Manafort suit faces at least two additional problems. First, as both Josh Blackman and Steve Vladeck have argued, a complaint about the lawfulness of a federal prosecution needs to be addressed through a defense motion in the criminal case, not in an ancillary civil action.

Second, to the extent Mr. Manafort relies on Justice Department regulations as limiting the authority of Mr. Rosenstein or Mr. Mueller, he runs into the embarrassment that the Special Counsel regulations conclude with this sentence: “The regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.”  In other words, the Department could be sued on the basis of the Special Counsel regulations only if departing from their terms violated the Constitution or a relevant statute. No such violation is apparent.

Perhaps the oddest thing about Mr. Manafort’s complaint, however—also noted by Professor Blackman—is that, even if his theories had merit, the legal violations he asserts could be easily cured by appointing another special counsel under a different order, who could then proceed with the exact same prosecution based on the exact same facts. A court might think such fastidiousness appropriate if the complaint rested on concerns of constitutional dimension. Manafort’s does not. The court is not likely to take long in so deciding.

Photo credit: CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=157176

Considering Presidential Pardons after Flynn’s Guilty Plea

by Andrew Wright, Associate Professor, Savannah Law School

Michael Flynn is cooperating with Special Counsel Robert Mueller’s investigation. The plea agreement requires that Flynn “shall cooperate fully, truthfully, completely, and forthrightly with this Office and other Federal, state, and local law enforcement authorities identified by this Office.” Flynn’s statement of the offense ominously announces that “[t]hese facts do not constitute all of the facts known to the parties concerning the charged offense.” There is some debate about whether this agreement signals that Flynn has significant incriminating information about senior-most White House advisors, or President Trump himself. Only Flynn, Mueller, and the others whom Flynn might implicate on matters related to the investigation are in a position to know the quality of his cooperation.

But what if President Trump started using his pardon power to end the Russia investigation? What would be the effect, if any, if President Trump pardoned Flynn now? What about pardons of others that might be implicated by Flynn in his cooperation? Pardons raise a number of important questions after Flynn’s plea.

As an initial matter, a presidential pardon would relieve Flynn of punishment for the crime to which he has pled. He pled guilty to a single-count felony violation of the false statement statute, 18 U.S.C. § 1001. The plea agreement reflects an agreement by the parties as to Flynn’s estimated sentencing range under the Federal Sentencing Guidelines: 0-6 months of prison time and $500-$9,500 in fines in light of the total offense level and Flynn’s criminal history profile. A presidential pardon would relieve Flynn of all forms of punishment meted out by prison time and fines.

A full and total pardon would also erase other federal criminal exposure for any uncharged federal crimes Flynn may have committed that are within the terms of the pardon. While only Mueller has looked at all the available evidence, press reports about Flynn’s business dealings with people and entities affiliated with the Turkish government suggest Mueller, at a minimum, could have potentially sought criminal charges related to omissions and failures under the Foreign Agent Registration Act (FARA). The Manafort and Gates indictment demonstrates Mueller’s willingness to bring charges under FARA. Press accounts have also linked Flynn to conduct that could implicate conspiracy to commit kidnapping and criminal provisions of federal ethics laws. Flynn’s transition contacts with the Russian ambassador also raise the possibility of charges under the Logan Act because it appears he was advocating Russian actions, although that statute has its critics. In any event, uncharged crimes against Flynn, and perhaps his son Michael Flynn, Jr., remain the critical source of Mueller’s leverage to ensure Flynn’s continued cooperation. If President Trump pardoned Flynn, it would eliminate that leverage.

Presidential pardons only reach federal crimes. They have no effect on criminal prosecutions by the states. On his show The Beat, Ari Melber argued that state cooperation provision is designed to defeat presidential pardons of other parties who may have violated state law. Jed Shugerman has also advanced the theory that Mueller is playing a inside/outside federalism game as a hedge against pardons. For example, under the agreement, at the Special Counsel’s command Flynn would have to testify about any incriminating knowledge he has that would be relevant to a state money laundering prosecution against, say, Jared Kushner. The weakness in the Flynn cooperation agreement as a line of defense against the bad faith use of presidential pardons is that if the President pardons Flynn, Muller’s legal leverage over Flynn evaporates and Flynn would be less likely to honor the agreement.

While those could be significant consequences, a Flynn pardon would worsen the President’s broader legal and political troubles. It would immediately be perceived for what it was—self-protective obstruction of a criminal investigation. Some, like Andy Grewal, argue that no exercise of executive power by the President can constitute a criminal act defined by Congress. I fundamentally disagree. The use of the pardon power, like removal of the FBI director, in order to obstruct an investigation, with corrupt intent, could violate an obstruction of justice statute as well as the Take Care Clause of the Constitution. But that is a debate for another time. Self-protective pardons under these circumstances would be politically toxic, and would be an event as seismic as Comey’s firing.