Tag: Russia Probe

Let’s Recap: Why Trump Can't Easily Remove Mueller—and What Happens If He Tries

This report examines why President Trump cannot easily bring an end to the Russia investigation by firing Special Counsel Robert Mueller. Authors Noah Bookbinder, Norman Eisen, and Caroline Fredrickson explain that Deputy Attorney Rod Rosenstein, not President Trump, is the one who has authority to fire Mueller.  While President Trump might compel others to do so on his behalf or instruct the attorney general to revoke DOJ’s special counsel regulations, the risks of doing so are prohibitive.  History warns that he would be risking his presidency, not to mention increasing his exposure to charges of obstruction of justice. In addition, we explain that any firing could be subject to court challenge by Special Counsel Mueller, his staff, and possibly other parties.  Mueller's dismissal also would not necessarily bring an end to the investigation that he is leading. Finally, we review the ways in which Congress might make it even harder for President Trump to end the Russia investigation by codifying the special counsel regulations and pre-committing to a course of action that would deter interference with the Russia investigation.

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.

Yes, Every Mueller Document Is Rife With Clues

by Dan Froomkin

Federal prosecutors – even those not working on cases of major public interest – may well uncover facts in the course of their investigations that if made public would have explosive political ramifications.

But Justice Department rules are extraordinarily strict: Neither prosecutors nor the FBI can tell anyone what they've discovered unless it's in the fulfillment of their official duties.

That's important: the process of investigation often turns up things that are not true, or do not amount to crimes, but that could nevertheless ruin reputations. (The November 2017 update of the U.S. Attorney's Manual includes new language about the "General Need for Confidentiality" that is different, but consistent, with the previous version.)

Not everyone follows those rules. Special counsel Kenneth Starr, who serially investigated Bill and Hillary Clinton in the 1990s, ran an office that was notorious for leaking profusely to reporters. Plus, he was instructed to file an extensive report to Congress and a judge approved the almost unprecedented release of the related grand jury transcripts. So we learned an awful lot about his investigation, both in real-time and soon after.

By contrast, special counsel Robert Mueller's investigation into possible Trump campaign collusion with the Russians has been remarkably leak-free. As far as I can tell, all the folks talking to the press are either witnesses or their confidantes.

The only information coming out of Mueller's office is in the way of a growing number of official court filings. On December 1, he released a criminal information, statement of the offense, and plea agreement related to Mueller's indictment of former national security adviser Michael Flynn for lying to the FBI.

Those documents are rife with clues about what Mueller has been finding out; for instance, he was exceedingly specific about what Flynn was lying about and when and to who. It is of course possible that the inclusion of all those clues was accidental, and simply the inevitable byproduct of a necessary legal maneuver. But it's more likely that the timing and the details are all Mueller's way of providing the public with as much information as he legally can.

As a result, the extraordinarily close scrutiny of these documents by the media is not only entirely appropriate, it is necessary. (See, for instance, Charlie Savage's deconstruction and former U.S. attorney Harry Litman's 10 Key Takeaways in the New York Times.)

If every fact that Mueller provides is a dot, connecting them is the obvious next step. This is a time for informed speculation, ideally informed by people knowledgeable about how federal public corruption cases work. (University of Chicago Law professors Daniel Hemel and Eric Posner's informed speculation on the Trump campaign's apparent violation of the Logan Act is a good example.)

Some observers made the mistake of thinking that Flynn only being charged with lying to the FBI meant that Mueller is coming up empty and the story is dying down. But almost every fact Mueller has now established on the record leads to new questions – particularly when examining Trump's contemporaneous tweets alongside his new ones.

On December 4, Mueller's team filed a brief arguing against any easing of the bail conditions for former Trump campaign director Paul Manafort, who was indicted in October for money laundering. The brief said Manafort should not be trusted because he was violating the district court's gag order.

But it was clear to observers that the brief's contents had at least as much to do with messaging as with the law. The brief stated that Mueller's team had discovered that Manafort was ghostwriting an editorial regarding his political work for Ukraine, along with "a long-time Russian colleague of Manafort's who is currently based in Russia and assessed to have ties to a Russian intelligence service."

That was a Mueller shot-across-the-bow to Manafort and any other witnesses and subjects in the investigation, warning them not to mess with him. But it was also another major public clue that Mueller has information about Russian contacts with Trump campaign officials that hasn't come out yet.

Reportage of this story has been aggressive. But even when prosecutors lay down a trail of breadcrumbs in their official statements, establishment-media reporters don't always follow them.

Case in point, establishment journalists covering the Scooter Libby trial in 2007 consistently stopped short of reporting the obvious conclusion to which special prosecutor Patrick Fitzgerald repeatedly pointed: that the case was not really about Libby at all, but about Vice President Dick Cheney, the man who Libby was lying to protect. (See my washingtonpost.com column at the time: The Cloud Over Cheney.)

Libby, of course, famously lied to the FBI, denying that he had told any journalist about Valerie Plame's identity as a CIA operative in an attempt to discredit her husband, Iraq war critic Joseph Wilson. As Fitzgerald made abundantly clear in his rapid-fire closing statement, on February 20, 2007, he was lying to protect Cheney, who had sent him out to do so.

"There is talk about a cloud over the vice president. There is a cloud over the White House as to what happened. Don't you think the FBI, the grand jury, the American people are entitled to a straight answer?" Fitzgerald asked.

"People want to know who did it. What role did they play? What role did the defendant play? What role did others play? What role did the Vice President play…?"

Fitzgerald argued that the No. 1 talking point drafted at Cheney's direction -- "It is not clear who authorized Joe Wilson's trip to Niger" -- was a de facto instruction to Libby and others to discuss Valerie Plame.

Libby, he said, "stole the truth from the judicial system."

The Washington Post, the New York Times and the Associated Press, among others, didn't write that story the next day. Instead, they simply summarized the fireworks of the dueling closing arguments.

It's an object lesson in the importance of reporting the dots – but not just stopping there.

It took Fitzgerald nearly two years to indict Libby – so Mueller is obviously working at a brisker pace. Nevertheless, he is slowed by the need to put his case together meticulously. And unlike Starr, he has not been given either orders or permission to submit a report to Congress. (See our May 24, 2017, blog item: We Can't Count on Robert Mueller to Tell Us What We Need to Know.)

So, with Mueller so constricted in how and what he can say publicly, it's worth considering everything he says as a clue. And with Trump himself being one of the few people who knows what Mueller could be finding out, it's worth considering that his tweets and comments attempting to delegitimize the FBI, the special counsel, and the judiciary itself, are themselves clues as well.

Will Whoever Fires Bob Mueller Please Turn Off the Lights

by Victoria Bassetti

*Victoria Bassetti is leading ACS' analysis of US Attorneys.

** View the full graphic here.

If Donald Trump tried to fire Special Counsel Robert Mueller, it could be a lot harder than people think.

White House spokesperson Sarah Huckabee Sanders says he won’t do it.

Last Monday, she was asked: “Is the President going to rule out, once and for all, firing [Special Prosecutor] Robert Mueller.” 

“There's no intention or plan to make any changes in regards to the special counsel,” she replied.

Sen. Bob Corker (R-Tenn), fresh off warning that the President might start World War III, can’t imagine he’ll do it.

Last Tuesday, a reporter cornered the president’s harshest Senate critic in a hallway and posed the following: “There are stories that the President is thinking about firing Mueller. Do you think that’s appropriate?”

The tired-looking Corker replied: “I can't imagine there’s any truth or veracity to the president thinking that he would consider firing Mueller. ... Hopefully the question being asked is a question about something that cannot possibly be reality.”

Yet, all last week the President reportedly “seethed” in his third-floor private residence as he watched cable television reports of Special Counsel Robert Mueller’s first indictments. Firing Mueller, the AP reported, is “a possibility that has weighed on him in recent weeks.”

Indeed, as far back as July, Trump mused about firing Mueller. In a New York Times interview, Trump was asked if he would fire the special counsel if he started looking at subjects unrelated to the Russia probe, such as his finances.

“I would say yeah,” Trump first replied. Then he added more forcefully, “I would say yes.”

But suppose the president decided to ignore the advice of Ty Cobb, the White House lawyer in charge of the Russia probe, and John Kelly, his chief of staff, and decided to fire Mueller?

Just for fun, let’s see how a Trump move to fire Mueller could play out.

His first call would be to Attorney General Jeff Sessions. “Sorry, Mr.President,” Session might begin. “No can do. I recused myself from this investigation, remember? Surely you recall saying you never would have hired me as attorney general if you had known I would recuse myself. Why don’t you try Rod Rosenstein, the deputy attorney general? He’s the one in charge of Mueller. Hold on while I find his number.”

So Trump would then call Deputy Attorney General Rosenstein, a career Justice Department official, summa cum laude graduate of Penn, and former Harvard Law Review editor.

“Mr. President, as I explained in Senate testimony in June, ‘I am not going to follow any orders unless I believe those are lawful and appropriate orders.’ The special counsel can only be fired for good cause. With all due respect sir, you’ve put nothing in writing that proves good cause exists to dismiss the special counsel.

“Moreover, as I’m sure your lawyer can tell you, I have been interviewed as part of the investigation into the firing of former FBI Director James Comey. So I feel like I need to decline your order.  I’m sure you understand.”

At this point, the call likely ends in one of two ways: either Rosenstein is fired or he quits.

Next up on Trump’s phone tree: the third highest-ranking official at Justice, Associate Attorney General Rachel Brand, a Harvard Law School graduate and former clerk to Justice Anthony Kennedy.

“Mr. President, as I’m sure you know, I can only fire Bob Mueller for ‘misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.’ And the law also says that the Special Counsel must be informed ‘in writing of the specific reason for his or her removal.’

‘Sir, if I may speak freely, why don’t you have your lawyers draw something up, and I’ll take a look at it?”

At this point, Brand would probably be fishing in her purse for her office keys to hand to Justice Department security on her way out.

Trump, increasingly anxious because he might miss the opening of Sean Hannity, would then reach out to Solicitor General Noel Francisco, a former Justice Antonin Scalia clerk and University of Chicago Law School graduate.

“Well, you see Mr. President, I’ve got a problem here,” Francisco might say. “Before you brought me into the Solicitor General’s office, (thanks for that, by the way), I worked for Jones Day in D.C. where I was a partner with your White House Counsel, Don McGahn. And sir, you know how hard it is to unwind all these partnership things – I have money tied up in the firm. And your 2020 campaign paid Jones Day $800,000 in the third quarter alone. I need to call the department’s ethics director, Cynthia Shaw. Can I get back to you in a few days? Oh also, do you have anything in writing why there’s good cause to fire him?”

Now here is where things get even stranger. According to a March 31 Executive Order on Justice Department succession, the next three officials in line are the U.S. Attorneys for the Eastern District of Virginia, the Eastern District of North Carolina, and the Northern District of Texas.

So the president’s next call is to Dana Boente, U.S. Attorney for the Eastern District of Virginia. Boente has had a wild ride in the Trump administration. He was appointed to his current post by President Obama. But when Acting Attorney General Sally Yates was fired in February for refusing to defend the President’s travel ban, Boente was named to replace her. He served as Acting Attorney General for ten days before Jeff Sessions was sworn in. 

Boente then served as Acting Deputy Attorney General, the no. 2 post, for 75 days until Rod Rosenstein took over. Then Boente was one of 46 U.S. Attorneys in March who Sessions ordered to resign. Yet, Trump rejected his resignation. Now, Boente is serving as acting head of the Department’s National Security Division until Trump’s nominee is confirmed. A 33-year Department veteran, Boente is known for his mild manner and intense devotion to work.

“Dude, don’t you read the papers? I announced my resignation Friday before last. I’m sticking around until you guys name a successor. Anyway, permit me to remind you that I was the guy who worked with Jim Comey investigating former National Security Adviser Michael Flynn’s lobbying deals. I empaneled grand juries that subpoenaed his business records. Those grand juries are now being run by Mueller. And you want me to fire the guy?”

It is now 8:54 p.m. Only six minutes left before Hannity.

On to Robert “Bobby” Higdon, Jr., the Trump-appointed U.S. Attorney for the Eastern District of North Carolina. Higdon spent nearly 25 years as a federal prosecutor, working in both North Carolina’s Eastern and Western districts. Yet, his record is hardly unblemished. He led the campaign finance fraud prosecution of former North Carolina Sen. and presidential candidate John Edwards, which resulted in an acquittal on one charge and the dismissal of the remaining five after a hung jury. (Full disclosure: I worked as Edwards’ Senate legislative director.)  

In 2013, Higdon was removed as head of the Eastern District’s criminal division after two federal appellate judges delivered a blistering critique of the section, saying that it had frequently withheld evidence and failed to correct false trial testimony.

Higdon was sworn-in as U.S. Attorney October 10.

People behave unpredictably in unprecedented circumstances. It’s entirely possible Higdon may prove no more malleable than the other recipients of the president’s calls. As Trump himself likes to say: Stay tuned.

Will Whoever Fires Bob Mueller Please Turn Off the Lights

by Victoria Bassetti

*This piece was originally posted by Brennan Center for Justice

White House spokesperson Sarah Huckabee Sanders says he won’t do it.

Last Monday, she was asked: “Is the President going to rule out, once and for all, firing [Special Prosecutor] Robert Mueller.”

“There's no intention or plan to make any changes in regards to the special counsel,” she replied.

Sen. Bob Corker (R-Tenn), fresh off warning that the President might start World War III, can’t imagine he’ll do it.

Last Tuesday, a reporter cornered the president’s harshest Senate critic in a hallway and posed the following: “There are stories that the President is thinking about firing Mueller. Do you think that’s appropriate?”

Continue reading "Will Whoever Fires Bob Mueller Please Turn Off the Lights" →

Benchmarks Provide Sound Guidance on Conducting Credible Congressional Oversight

by Kristin Amerling, Managing Director of Lanthorn Strategies, consultant to ACS, former chief counsel to the House Committee on Oversight and Government Reform and the House Committee on Energy and Commerce, and former chief investigative counsel to the Senate Committee on Commerce, Science, and Transportation.

Recently a bipartisan group of congressional oversight experts issued a set of principles titled “Benchmarks for Congressional Investigations into Russian Interference with U.S. Elections and Related Matters.” This initiative is an important tool for evaluating the credibility and rigor of ongoing investigations into alleged election malfeasance. 

The document describes four major oversight goals:

 

(1) a publicly defined investigation scope that includes commitment to follow the facts where they lead;

(2) comprehensive bipartisan cooperation;

(3) transparency on developments and findings; and

(4) regular public reporting on investigative activities.

It also outlines specific ways for Congress to demonstrate commitment to these principles, such as by holding hearings in public unless there is a compelling reason for a closed session.

The benchmarks focus on investigations examining foreign manipulation of our elections – an issue with high stakes for Americans across the political spectrum. But regardless of the inquiry’s subject matter, adherence to practices set out in this document will promote effective congressional oversight and reinforce public confidence in investigative findings.

To underline this point, let us take a closer look at the congressional subpoena authority. This is a tremendous power that enables Committees to demand documents and testimony from witnesses – and pursue criminal contempt proceedings against those who don’t comply.

The benchmarks document encourages the exercise of this power with bipartisanship and transparency, recommending that committees issue subpoenas only with agreement of the Chair and Ranking Member or by Committee vote.

Such a practice demands dialogue across party lines and accountability to the public. When issues are so contentious that the chair and ranking member do not agree, they get airing in a committee meeting, allowing the public to better understand the need for and scope of the proposed action.

For many years, this approach to subpoena practice was in fact standard operating procedure for House and Senate investigations. The Iran-Contra, Senate Whitewater, and Nixon impeachment investigations – all high-profile inquiries – followed bipartisan subpoena practices. And to this day this approach is written into the rules of most Senate Committees.

During the 1990s, however, the House Committee on Oversight veered away from this tradition. When Representative Dan Burton became Chair in 1997, he began unilaterally issuing subpoenas. And more recently, House leadership has revised the rules for other committees to provide unilateral subpoena authority to their chairmen.

The Oversight Committee’s experience with subpoena power highlights the value of building bipartisanship and public scrutiny into the process.

During his six-year tenure at the Committee helm, Chairman Burton issued over 1000 subpoenas with neither minority concurrence nor Committee debate. Of these, 97% targeted Clinton Administration or Democrats.

And when subpoena mistakes occurred, accountability was lacking. For example, the Committee erroneously issued a subpoena to a professor who happened to have the same name as the intended target. When this error was discovered, instead of apologizing, majority staff suggested the professor still might be under investigation, telling the media that “Whether [he] deserves a subpoena or not, we haven’t decided. We’ve put it on hold. If you make a mistake, and we’re not sure we made one, you want to look into it.”

While the Oversight Committee’s written rules have retained unilateral subpoena authority since the Burton years, some of the Chairs who succeeded Burton nonetheless adopted bipartisan practices. For example, in 2006, Chairman Tom Davis issued a subpoena in a joint inquiry with Ranking Member Henry Waxman on Administration contacts with lobbyist Jack Abramoff. And when Waxman was Chairman he obtained Davis’s support or Committee vote for every subpoena he issued.

As then-chief counsel to Chairman Waxman, I saw firsthand that following traditional subpoena practices did not prevent rigorous oversight. During Waxman’s tenure, Ranking Member Davis requested a Committee vote on only a handful of proposed subpoenas, such as a demand to the Republican National Committee for information on alleged Administration use of RNC email for official business. Even then, the Chair was able to issue subpoenas after Committee debate and approval – and the public had a role in vetting the most contentious subpoenas.

With rules changes in recent years, many House committee chairs -- including those with jurisdiction over alleged election interference – have authority to issue unilateral subpoenas. However, like Chairman Waxman, they can choose to involve bipartisan and public review. Close public attention to the choices committees make on “benchmark” practices will encourage credible outcomes as investigations unfold.

 

Obstruction of Justice Case Against Trump Only Scratches the Surface

Last week’s comprehensive paper from the Brookings Institution analyzing the case for obstruction of justice against President Donald J. Trump makes a compelling case that the President has violated the law. The report takes a deliberately narrow focus, and it likely just scratches the surface of the investigation being conducted by Special Counsel Robert S. Mueller, III.  Mueller will no doubt want to conduct a complete investigation to learn the broader picture of Russian involvement in the 2016 election, so that if there is a case for impeachment, even the Republican-controlled House of Representatives will be unable to ignore it.

The Brookings paper, produced in partnership with Citizens for Responsibility and Ethics in Washington (CREW), provides an in-depth analysis of the facts known to date. The paper concludes that “the public record contains substantial evidence that President Trump attempted to impede the investigations of Michael Flynn and Russian interference in the 2016 presidential election, including by firing FBI Director James Comey.”  In 108 pages, the report documents some of the key facts that are publicly known that support a conclusion of criminal intent, such as Trump’s asking Comey for his loyalty, clearing the room before telling Comey he hoped that the FBI could let the Flynn investigation go, asking Daniel Coats, Director of National Intelligence, to persuade Comey to stop investigating Flynn, firing Comey, and then providing shifting explanations for the firing.  While additional facts are likely already known and will become known to Mueller as the investigation proceeds, the facts documented in the report alone make a persuasive case that Trump could be charged with obstruction today.

Of course, Mueller has a far broader mandate than just investigating obstruction of justice. As outlined in his appointment order, Mueller’s mission is to probe three things: (1) “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” (2) “any matters that arose or may arise directly from the investigation,” and (3) “any other matters within the scope of 28 CFR 600.4(a).” This last section authorizes Mueller to investigate federal crimes committed to interfere with the investigation, such as perjury or obstruction of justice.

The obstruction charge is likely only a small piece of the bigger puzzle that Mueller is trying to put together.  If Mueller is able to make the case for obstruction, he is not likely to stop there.  For example, some very serious concerns have emerged about the use of social media by Russian interests to influence the election. Mueller’s mandate would certainly include exploring whether Russian actors had any assistance from members of the Trump campaign regarding geographic areas to target and issues to exploit.

In addition, other facts have emerged regarding significant financial ties between Russia and former Trump campaign chairman Paul Manafort. A recent report alleged that Manafort offered in an email message a private briefing on the campaign to a Russian oligarch. Mueller will want to explore potential violations of campaign finance laws, which are designed to keep foreign money out of American elections. He may also be considering charges under the Foreign Corrrupt Practices Act, which makes it a crime to bribe foreign officials.

Other recent reports have alleged that Manafort was the subject of not one but two separate surveillance orders issued by the Foreign Intelligence Surveillance Court. If so, that means that a FISA judge has found probable cause to believe that Manafort was acting as an agent of a foreign power, and that a significant purpose of the surveillance was to collect foreign intelligence information. In addition, other reports allege that a no-knock search warrant was executed at Manafort’s home, meaning that a judge found probable cause that evidence of a crime would be found on the premises and authorized an unannounced raid for exigent circumstances. Far from a witch hunt. Manafort and Former National Security Advisor Michael Flynn may both face possible charges of failing to timely register as agents of foreign governments for their lobbying work, which may give Mueller leverage to induce them to explain other connections between Russia and the Trump campaign.

And of course, there are the email messages in which Donald Trump, Jr., accepted a June 2016 meeting with Russians to obtain disparaging information about Hillary Clinton as “part of Russia and its government’s support of Mr. Trump.” Trump Jr., responded by saying, “If it’s what you say I love it especially later in the summer.”  The meeting was attended by Trump, Jr., as well as two other high-level advisors -- Manafort and Trump’s son-in-law, Jared Kushner. President Trump’s role in drafting a press statement about that meeting raises additional questions about his knowledge of the meeting and offers of assistance from Russia.

Mueller and his team are no doubt chasing down all of these avenues of investigation, and possibly others than are not known to the public.  Obstruction of justice is just one of these avenues.

The Brookings paper argues that the obstruction of justice charges could come in the form of a criminal indictment.  Mueller, however, is required to comply with all Department of Justice policies. Opinions from DOJ’s Office of Legal Counsel written in 1973 and 2000 conclude that sitting presidents cannot be charged criminally. Although the Brookings paper makes strong arguments that these opinions are not legally binding, Mueller is likely to abide by them as DOJ policy. While Trump could be charged once he leaves office, it seems more likely that Mueller would present his findings sooner than that to the House of Representatives for potential impeachment proceedings. It would then be up to the Republican-controlled Congress to decide whether this case of obstruction of justice meets the Constitution’s standards for “high crimes and misdemeanors” sufficient to remove Trump from office. House members may conclude that this obstruction case is not serious enough for removal from office.  There is no court of appeals for their decision.

But, if Mueller can prove that Trump accepted assistance from Russia to win the election, even the Republican House will be unable to vote against impeachment.