Could Mueller be Fired?


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Recent attacks against Robert Mueller by President Trump via Twitter have left the public in nervous anticipation of the Special Counsel’s termination. Some fear that the loss of Robert Mueller would be devastating to his investigation. Ronald Weich, former federal prosecutor and dean of the University of Baltimore law school, has said that “Mueller is a towering figure . . . . he is irreplaceable.” However, others are skeptical that firing is even possible: Howard Goldsmith, Harvard Law professor, has pointed out that the Department of Justice regulations require for any dismissal “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” So the question becomes, does Trump have reason enough to fire Robert Mueller?

Trump’s recent tweets purport to provide what justification he may need to fire Mueller. Quoting Alan Dershowitz, former Harvard Law professor and political analyst, he tweeted “Special Council is told to find crimes, whether crimes exist or not.” In a subsequent tweet, Trump wrote “there was no probable cause for believing that there was any crime, collusion or otherwise, or obstruction of justice!” There is debate as to whether there was probable cause to fuel Mueller’s investigation (I think it’s fairly certain there was). However, there is a question as to whether the belief that there was no probable cause could justify firing Mueller.

The specific regulation Goldsmith referenced was Section 600.7 of Title 28 of the Code of Federal Regulations. Subsection (d) reads:

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

The listed offenses: misconduct, dereliction of duty, incapacity, conflict of interest, and other good cause seem to set a broad standard. The Department of Justice provides some administrative guidance of this subsection:

Violation of Departmental policies is specifically identified as a ground that may warrant removal. The willful violation of some policies might warrant removal or other disciplinary action, and a series of negligent or careless overlooking of important policies might similarly warrant removal or other disciplinary action. Such conduct also would be encompassed within the articulated standard of misconduct or dereliction of duty. There are, of course, other violations of Departmental policies and guidelines that would not ordinarily be grounds for removal or other disciplinary action.

What this tells us is that at least in some cases, the intentional violation of department policy or a series of negligent acts which violate department policy could warrant dismissal. Department of Justice policy is contained in 5 C.F.R sections 2635, 3801 and 28 C.F.R section 45. These policies are reflected by, and to a degree summarize by, Executive Order 12731, which says, among other things, that it would be a violation of ethics to:

. . . .

(e) Employees shall put forth honest effort in the performance of their duties . . . .

(h) Employees shall act impartially and not give preferential treatment to any private organization or individual . . . .

(i) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities . . . .

One could argue that Robert Mueller, by pursuing an investigation without probable cause, is not putting forth an honest effort into his duties, is acting with partiality against the President, and is misusing government resources. That being said, it would be a very poor argument. Even if one were to assume Mueller had no probable cause, it would be hard to argue that he did not believe he did. That is to say, it would be hard to show Mueller acted without an “honest effort,” or that he was “impartial[].” Additionally, because Mueller did receive approval by the courts, it is not apparent that his activities were “[un]authorized.” The lesson to be taken from the examination of these policies is this: Trump may try to get Mueller fired, but justification will indeed be hard to find.

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The McCabe Firing & Jeff Sessions


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By Frank Bowman

Attorney General Jeff Sessions fired Former Deputy Director of the FBI Andrew McCabe late last night, barely a day before his pension would have vested.  This event tells us more about Mr. Sessions than Mr. McCabe.  And to me, whatever McCabe’s transgressions, the man who is leaving the Justice Department looks rather better than the man who, for now, continues to head it.

Let’s begin with a few obvious points:

  • The official reason for McCabe’s firing was a conclusion by the Justice Department’s Inspector General that McCabe had been less than candid about the circumstances under which he authorized the release of information to reporters from the Wall Street Journal about aspects of the Clinton investigation.  I am obviously not privy to the particulars of that IG report; however, I have some acquaintance with Michael Horowitz, DOJ’s Inspector General.  I know him as an excellent lawyer, an honest man, and a nonpartisan straight arrow.  He is an Obama appointee and certainly no Trump flunky.  Hence, it seems very likely that McCabe did cross some professional line.
  • That said, the decision about what penalty to impose for McCabe’s transgression did not rest with Michael Horowitz.  It has been reported that the FBI’s Office of Professional Responsibility recommended that McCabe be fired. If true, that lends further credence to the notion that McCabe’s transgression was fairly serious, or at least that reasonable professionals could view it as being so.
  • Nonetheless, the timing of the firing, after the business day on a Friday, and mere hours before McCabe qualified for a pension earned for more than 20 years of FBI service — which excepting whatever lapse of judgment got him fired, was by all accounts exemplary — can only be seen as small, vindictive, and mean spirited.  Which is to say that one would see Mr. Trump’s signature in the affair even if that master of pettiness and bile had not publicly complained that McCabe might be allowed to retire with his pension.
  • Jeff Sessions made this call.  He could have followed the advice of the FBI’s professional responsibility office and separated McCabe from government service, but a person of any class would either have allowed McCabe to retire or at worst ordered his termination sometime in the coming weeks.  Instead, he cravenly chose to do the bidding of his dark master and snatch pension benefits from a career public servant.

The result is that Sessions looks far worse than McCabe.  He is exposed as a hypocrite, a weakling, and a fool.

Hypocrite: The idea that Donald Trump and Jeff Sessions combined to fire a career FBI agent for “lack of candor” reeks to heaven of hypocrisy.  Mr. Trump’s incorrigible dishonesty is by now so universally recognized that it no longer elicits much more than weary groans.  He lies to everyone, including foreign heads of state, and then brags about the lies.  But Sessions’ slate is hardly clean.  This is a man who has made repeated misstatements to the Senate about his Russian contacts. When called to account by former colleagues, he feigned outrage at the challenge to his honor, but the display rendered his strategic misrememberings no less incredible.  That this precious pair of dissemblers have the gall to discipline anyone else for lack of candor is very hard to stomach.

Weakling: The decision to fire McCabe when and how he was fired was a transparent bow to the wishes of Mr. Trump.  While the manner and timing of McCabe’s release may not have violated DOJ personnel rules (although that is a contestable point which McCabe may raise in court), it was, so far as I know, unprecedented.  I know of no case where a president publicly campaigned for the firing, humiliation, and financial punishment of a third-tier career public servant.  Still less am I aware of any case where a cabinet officer was so spineless as to acquiesce in such executive bullying.  To give him his due, Jeff Sessions has occasionally shown signs of  independence and a desire to protect the institutional integrity of the Justice Department, most recently his staged public dinner with Deputy AG Rod Rosenstein and Solicitor General Noel Francisco.  But the McCabe firing demonstrates, at least to my mind, Sessions’ essential hollowness.  Trump is a bully.  Sessions, who for all his well-documented flaws has led a life of far greater accomplishment than our erstwhile president, nonetheless lacks the moral core that moves persons of decency to stand up to bullies.

Fool: Perhaps the most remarkable thing about Sessions’ toadying to Trump by humiliating McCabe is not the meanness or the cowardice, but that, even as part of a selfish calculus of self-preservation, it surely will do Sessions no good.  Trump wants him out because, so long as Sessions is both AG and recused from overseeing Robert Mueller’s investigation, Trump can’t stop or cripple the investigation.  Therefore, Sessions is a dead man walking.  The only questions are when the axe will fall and how Sessions will be remembered once he’s gone.  Sessions is mad to think that the mad king will be sufficiently mollified by the manner of McCabe’s departure to preserve Sessions in office even a single day longer than would be the case had Sessions exhibited some magnanimity and grace.  And by yielding to the vicious whims of the plutocrat in the White House to gratuitously strike at the retirement security of a middle class career FBI agent, Sessions will earn the deserved contempt of all those who have ever been in federal service.

There is, or at least I hope there will prove to be, a sad moral in the tale of Jeff Sessions.  He hitched his wagon to the rising star of a man manifestly unfit for the high office of the presidency.  And he was rewarded beyond any reasonable expectation with his dream job — Attorney General, head of an agency that I think Sessions genuinely reveres.  But what Sessions is likely to find in the end is that his betrayal of principle in the pursuit of ambition will yield only ashes.  His lies to congress in the service of an unworthy boss have cost him the respect of many of his former senatorial colleagues.  His truckling to Trump, including the cruelty to McCabe, will cost him the respect he craves from the professionals of the Justice Department.

Jeff Sessions’ story is not yet ended.  He may yet redeem himself by some act of unexpected political courage.  But at the moment, he risks relegation to the small, sad club of ignominiously failed Attorneys General.  And his name will be spoken, when it is remembered at all, in company with Alberto Gonzales and John Mitchell, men too warped and small for the great office they ultimately sullied.

Mueller Subpoenas the Trump Organization


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Special Counsel Mueller has subpoenaed the Trump Organization for business documents. The subpoena is seeking documents related to Russia from the time before Trump ran for office. This is the first time President Trump’s business records have been subpoenaed, and marks an evolution in Mueller’s investigation.

Trump has previously stated that he would “draw a line” before he allowed his and his family’s records to be subpoenaed. Though Trump’s business records are not quite his personal records, they do bring the investigation closer to his private affairs. Mueller’s willingness to hone in on Trump indicates at least a reasonable belief that he will find documents related to Russia, and, considering the fragility of the situation, could mean an even greater suspicion.

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Impeachment in the States: Missouri Governor Edition, Part 4 (Erratum)


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By Frank Bowman

If one is going to offer oneself as an “expert” on stuff to the press, one has to be ready for the inevitable humbling moments when one’s off-the-cuff opinions prove wrong.  The other day, the Columbia Missourian interviewed me about impeachment procedure in Missouri, and I suggested that, if Governor Greitens were convicted of a felony in St. Louis,  then RSMo 561.021, which disqualifies any elected official from office if convicted of a felony, would require Gov. Greitens’ immediate removal from office without the necessity of an impeachment proceeding.

A better-informed reader of the Missourian wrote in to say, politely, that I was talking through my hat.  Rather, the reader pointed out, several Missouri cases have held that, in  the case of statewide offices which are created by the constitution and for which the constitutionally prescribed means of removal is impeachment, the legislature may not prescribe some other removal procedure.  For those interested, the main cases are State Ex Inf. Attorney-General v. Brunk, 34 S.W.2d 94 (Mo. 1930) and State ex Inf. Nixon v. Moriarty, 893 S.W.2d 806 (1995).

Had I been thinking more clearly before succumbing to the pleasures of bloviation, I would have realized that the federal constitutional principle that permits removal of “the President, Vice President and all civil officers” only upon impeachment should apply equally in the states.  Missouri differs from the federal situation in that Missouri has a statute that purports to disqualify all elected officials who suffer a felony conviction.  But the principle that has forestalled Congress from attempting to pass felony disqualification laws or other removal shortcuts for federal officeholders is the same in both the federal and state situation. The basic idea is that, if the fundamental law of a nation or state provides an exclusive means of removing the holders of major offices, then the legislature cannot create a shortcut to that end through enactment of a mere statute.

So, with thanks to the Missourian‘s astute reader, I stand corrected.  If Governor Greitens is to be removed, it will be through impeachment, even if he is first convicted of a felony in St. Louis.

A Meeting of Casual Agents


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George Nader, a Lebanese American businessman, is now cooperating with the Mueller investigation. Nader has ties to the Emiratis, and significantly, was at the ‘Seychelles Meeting’. Previous reports have shown that Erik Prince, founder of Blackwater, had met with with Kirill Dmitriev, a man who runs an investment fund for Vladmir Putin. Prince has claimed that the meeting was pure coincidence and very casual. But Nader’s attendance casts the encounter in a new light.

Prince has close ties with the Trump Administration; ties which could be said to mirror those of Nader’s to the Emiratis and Dmitriev’s to the Kremlin. So what is one to make to make of such a meeting? The Washington Post claims that this development substantiates the idea that the meeting was intended to set up a “back-channel” between Trump and Russia. If that is so, the implications of the meeting for the emerging pattern of Trump-Russia connections are intriguing.

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Getty Images/AFP/Mark Wilson


Nunberg Considers Refusing Mueller’s Subpoena


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Sam Nunberg, former campaign adviser for President Trump, has said that he intends to refuse to comply with the subpoena that was issued to him by Mueller’s investigation. Nunberg seems not to take so much issue with the idea of testifying against Trump, whom he is “not a fan of,”  as he does spending time going over the emails that he exchanged with Steve Bannon and Roger Stone. He is quoted as saying”I think it would be really really funny if they wanted to arrest me because I don’t want to spend 80 hours going over emails . . . .” Nunberg also said he is planning to appear on Bloomberg TV to tear up the subpoena.

The Mueller investigation issues grand jury subpoenas to obtain interviews and documents. Grand Jury Subpoenas are governed by Rule 17 of the Federal Rules of Criminal Procedure. Rule 17(g) of the FRCP holds that a person refusing to comply  with a subpoena may be held in contempt of court. Section 402 of title 18 of the U.S. Code describes when contempt may be considered a crime:

Any person . . . . willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, . . . . if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted . . . . and shall be punished by a fine under this title or imprisonment, or both.

So, what that says is that if in refusing to comply with a court order one commits an additional crime, they are subject to a fine and imprisonment. But has Nunberg committed a crime? He would if he were to actually follow through with his plan to tear up his subpoena on Bloomberg TV. Section 1519 of Title 18 of the U.S. Code reads:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

So, this law makes destruction of documents related to a federal investigation a crime. Additionally, the mental state written in this statute is pretty broad: one need only intend to “impede, obstruct, or influence” an investigation. If Nunberg is using the destruction to demonstrate his contempt, it is arguable that in so doing that he intended to impede or influence Mueller’s investigation. So, if Nunberg were to refuse to comply with Mueller’s subpoena, and in so doing destroyed his subpoena, he could be charged with criminal contempt, as well as punished for the destruction of the document itself.

Luckily for Nunberg, however, he thought better of this course of action. He conceded late Monday that he would cooperate with Mueller. Considering the possible ramifications of his actions, that seems a wise choice.

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Following the Money


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“Counterintelligence 101 is following the money, because following money is how you compromise people,” says Sen. Ron Wyden of the Senate Finance Committee and Senate Intelligence Committee. Democrats belonging to congressional committees have grown frustrated with the lack of access to President Trump’s financial records. Though members of the House Intelligence Committee have sought subpoenas for the Deutsche Bank, the major lender to the Trump Organization, they have so far been unsuccessful. The Deutsche bank has declined to give any privileged information without subpoena.

President Trump has drawn a “red line” before his family’s financial records, and many Republican congressmen support him in this decision. However, Democrats believe that said records may contain evidence of Russian collusion. That does seem possible. As Wyden has said: “[follow] the money.”

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Governor Greitens Indicted


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Governor Greitens, of Missouri, has been indicted on a felony invasion of privacy charge in Saint Louis. The Governor allegedly took a photo of his former hairstylist, with whom he was having an affair, while she was blindfolded. Additionally, he is alleged to have threatened to release the photo, if she were to speak of their affair. The photo portrayed the woman in at least partial nudity, and Greitens is said to have transferred it onto his computer. The relevant statutory language reads as follows:

1. A person commits the offense of invasion of privacy if he or she knowingly:
(1) Photographs, films, videotapes, produces, or otherwise creates an image of another person, without the person’s consent, while the person is in a state of full or partial nudity and is in a place where one would have a reasonable expectation of privacy . . . .

2. Invasion of privacy is a class A misdemeanor unless:
(1) A person who creates an image in violation of this section distributes the image to another or transmits the image in a manner that allows access to that image via computer . . . . Mo. Rev. Stat. Ann. § 565.252 (West).

Greitens denies the allegations, and has indicated that he has no plans to resign.

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Trump Claims Obama Acquiesced in Face of Russian Interference


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In response to the indictment of a group of Russians for meddling with the 2016 presidential election, Trump seems to have asked why Attorney General Jeff Sessions has not investigated the crimes of President Obama, because the meddling happened during the Obama administration, and “. . . . [he] [didn’t] do something about [it].” The allegation came in the form of a tweet, which read:

Question: If all of the Russian meddling took place during the Obama Administration, right up to January 20th, why aren’t they the subject of the investigation? Why didn’t Obama do something about the meddling? Why aren’t Dem crimes under investigation? Ask Jeff Sessions!

Trump’s question as to why Jeff Sessions, the Attorney General, is not investigating the Obama Administration and the the crimes of the Democrats, reads as an allegation of criminal conduct. The fact that he sandwiched Obama’s lack of action in the middle of his question further suggests that President Obama, by virtue of his inaction, is guilty of a crime. If that analysis is correct, the President is suggesting that acquiescence in the face of a complete conspiracy is criminal conduct. There is some argument to made here (though a very poor one). Section 3 of Title 18 of the United States Code says that “whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” This crime, though arguably the most relevant to Trump’s allegation, is a very bad fit. One would have to believe that Obama, in not speaking out harshly enough against the Russian meddlers, relieved, comforted, or assisted them to prevent their prosecution. One might argue that if Obama were to impose no sanctions on Russia he may in some way be preventing its “punishment.” Still, that would be a very abstract argument, because if President Obama had decided not to sanction the Russians, there would be no punishment to prevent. This argument is still more outrageous, in light of the fact that Obama DID sanction Russia for election meddling in the last two years of his administration.

All that being said, I think it is far from accurate to suggest that a less-than-fierce reaction to Russian election interference could be considered criminal. However, if it could, Trump would have something far worse to fear than President Obama — President Trump himself has yet to impose the Russian sanctions passed by Congress last year. Despite all this analysis, I doubt Trump meant to make a serious accusation. Rather he continues to try and distract the American people by pointing fingers away from himself.

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A sound, if politically improbable, way to protect Mueller


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By Frank Bowman

Readers of this site who don’t also take the New York Times should consider reading a Times Op-Ed by Neal Katyal and Ken Starr, linked here. It relates a little-remembered coda to Robert Bork’s decision to acquiesce in Richard Nixon’s order to fire Watergate Special Prosecutor Archibald Cox.  Bork, to his immense credit, appointed a solid replacement for Cox in Leon Jaworski, and promulgated an internal DOJ regulation making it extremely difficult for the president to fire the new guy.  That regulation has long since lapsed, to be replaced by the less protective one under which Robert Mueller operates.  Nonetheless, something like it could be implemented without congressional action.

The key questions, however, are whether Attorney General Jeff Sessions would countenance such a regulation, and, even more centrally, whether Mr. Trump would squelch the idea.  The likelihood that either or both would allow it seems very small indeed. Still, unlike a lot of stuff that appears in the national press about the Mueller investigation, this is a reasonable proposal from two people with long experience at DOJ.