Mueller (supposedly) said Trump is not a “target” of his investigation — what does that mean?


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By Frank Bowman

The Washington Post reports that Robert Mueller’s team has told Trump representatives that Mr. Trump continues to be under investigation, but is not now a “target” of the Mueller grand jury probe.  The Post article contains a good deal of commentary about what this means, most of which is broadly correct.  However, I think the Post misses several important nuances.

If Mueller’s people said Mr. Trump continues to be investigated (which in DOJ terminology makes him a “subject”), but that he’s not now a “target,” that allows two conclusions, one positive, one negative:

First, if Trump is still under investigation — is still a “subject” — Mueller has not exonerated Trump from criminal liability. Or putting it another way, the “subject” designation suggests Mueller has found enough evidence of Trump’s possible involvement in crime that he thinks it’s worthwhile to continue to investigate Trump.

Second, the “not a target” designation doesn’t convey much of real substance concerning Mueller’s assessment of the current evidence against Trump. The Washington Post summary of the meaning of “target” is incomplete. The article says, “A target is a person for which there is substantial evidence linking him or her to a crime.” But that’s not the whole definition in the United States Attorneys Manual (9-11.151), which reads: “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Mueller really said Trump is not a “target,” all he may be saying is that, while there is substantial evidence linking him to a crime, DOJ policy precludes making him an actual indicted “defendant.” For an explanation of this policy, see this earlier post. What’s more, as several commenters in the WP article note, a subject can change to a target in the blink of an eye.

Were I one of Trump’s lawyers, I would be more alarmed than comforted by what Mueller supposedly said.

UPDATE: Jeremy Stahl over at Slate was kind enough to quote me about this point in a longer story on the Washington Post report.


The Strange Case of Jefferson Beauregard Sessions

By Frank Bowman

The endless fever dream of the Trump era has no stranger aspect than our for-now-at-least Attorney General Jefferson Beauregard Sessions.  On the one hand, from the point of criminal justice policy, he is in the running as objectively the worst Attorney General of the last half-century.  It’s not merely that he is conservative on criminal justice issues.  Any Republican Attorney General in a post-Obama Republican presidency would surely have retrenched somewhat on some of Obama’s liberalizing initiatives.

The truly distressing aspect of Sessions’ tenure is that he combines two mutually reinforcing tendencies.  The first is Sessions’ own attitudes to crime.  His views on crime and punishment were, it seems, formed in the 1980s when a core tenet of social conservatism was that the only answer to crime in general, and drug crime in particular, was punishment in the form of ever longer terms of imprisonment.  The result — mass incarceration at levels unparalleled in what used to be called the free world — has been so unpalatable, and its human and financial costs so obviously disproportionate to its benefits, that even most conservatives have recoiled and actively begun searching for more humane and cost-effective means of addressing crime. Organizations like “Right on Crime” have been proposing conservative alternatives to mass incarceration, and have had some success implementing them in the states.  Such efforts are even endorsed by liberal boogiemen like Newt Gingrich and the Koch brothers.

Indeed, criminal justice reform is one of the few tough policy areas on which there is a large degree of agreement between thoughtful conservatives, moderates, and liberals.  And yet we have in Jeff Sessions one of the last diehard paleoconservative tough-on-crime guys.  He and a handful of like-minded cavemen – a pejorative term I do not use lightly — notably including Sen. Tom Cotton, seem impervious to either moral or evidence-based arguments against thoughtless “toughness.”  By sticking together and relying on Sen. McConnell’s refusal to allow consideration of any measure without near-universal Republican support, they prevented the passage of even a modest sentencing reform bill in the last congress.  In doing so, they thwarted the wishes of the majority of their Republican colleagues, not to speak of Democrats.  Sessions’ opposition to a new effort at such legislation is again proving an impediment and has stirred the wrath even of so reliable a pillar of the Republican right as Judiciary Committee chairman Charles Grassley.

Worse, Sessions’ personal rigidity is meshing with the near-official Trump Administration policy of voiding any Obama policy initiative, regardless of merit.  Sessions is reversing all the Obama-era ameliorations of prosecution policy on drug and other cases, and threatening to upend the federal-state ceasefire regarding differing treatment of marijuana.  It also appears that the Sessions Justice Department has effectively gutted Obama-era federal prison education initiatives.  And the beat goes on.

And yet, as dreadful as Sessions is on substance, he remains, perversely, the single flimsy barrier against removal of Robert Mueller and the shutdown of the investigation Mueller heads.  Sessions’ one possible redeeming feature is his respect for the Justice Department as an institution.  He has compromised the Department on more than one occasion, most recently in his firing of former FBI Deputy Director McCabe.  But he seems to be clinging to some shreds of personal and institutional self-respect.  Just his week, Sessions appears to have done another good thing, in deflecting the call by House Republicans for a second special prosecutor to look into Hillary Clinton, the dossier, and who knows what else by instead referring the investigation of all such matters to the DOJ Inspector General and to a general review by, John W. Huber, the U.S. Attorney for the District of Utah.

The assignment of Huber to be something more than a regular U.S. Attorney and something less than a “special counsel” is an interesting move.  Presumably, Sessions hopes that Huber’s work will check the cacaphony from House Republicans without unleashing a new special counsel operating at cross-purposes with Mueller.  Likewise, it may be that Sessions hopes that, if Huber finds no reason for more extensive investigation, that will carry weight with Orin Hatch, who himself carries considerable heft in paleoconservative circles.

I have had hard things to say of Mr. Sessions before, and doubtless will again.  But at least as regards Mueller and related matters, he is — tenuously — clinging to his reputation as a Justice Department institutionalist.    Whether that will be enough in the end to redeem him, and the rest of us, remains to be seen.

Executive Lies and How to Handle Them


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National Security Lies, written by Tung Yin, and published in the Spring 2018 edition of the Houston Law Review, is  an article which reviews the types of lies which have been told by officials of the Executive Branch, and explores what remedies are available in light of such lies. This article is especially relevant in light of what our current President views as ‘alternative facts.’ Below is the article’s abstract:

What legal consequences, if any, exist (or ought to exist) when the President or other Executive Branch officials mislead, dissemble, or outright lie and then, when exposed, justify the deceit in the name of national security? This is a complicated question to answer, because some lies (such as those by the Carter Administration to deny the existence of a rescue mission on the eve of the ill-fated Operation Eagle Claw) are so naturally understandable, while others (such as the false stories surrounding the capture of Private Jessica Lynch in Iraq and the killing of Sgt. Pat Tillman in Afghanistan) seem to have been issued for less defensible reasons.

This article categorizes a number of notable national security lies in American history, examines the seductive appeal of national security lies for executive branch officials to explain why such lies may seem like better options than saying nothing, explains the harms caused by national security lies, and analyzes the likely reasons that national security lies generally incur no sanctions (criminal or otherwise). Finally, the article proposes a model for regulating national security lies that draws from the statutes governing the related areas of covert actions, classification of information, and invocation of state secrets to block litigation.

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Is Trump Capable of Receiving Legal Help?


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News surfaced today that Joseph diGenova and Victoria Toensing are leaving President Trump’s legal team only 5 days after being selected to join it. Apparently, diGenova and Toensing’s law firm represents two other people being investigated by Mueller, thereby creating a conflict of interest, which prevents them from representing Trump in the Mueller investigation. However, Trump may have created his own obstacles to representation: reports indicate that Trump did not feel “he had personal chemistry” with the lawyers. This news compounds with the recent resignation of John Dowd, the lawyer who headed Trump’s outside team addressing the Russian probe. A source reported that Dowd was frustrated that the President was not taking his advice. This resignation came soon after Trump attacked Mueller via twitter.

There has been speculation that lawyers are reluctant to work with Trump; allegations that Trump has denied. However, the question remains as to whether Trump is too stubborn to work with his lawyers. If Trump is ignoring his lawyer’s advice, that may lead to a number of ramifications, including the firing of Mueller. That can only make impeachment more likely.

Image result for toensing digenovaThe Washington Post, via Getty Images


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:

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(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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