Tag Archives: Michael Flynn

The Mueller Report

19 Friday Apr 2019

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By Frank Bowman

This is how it’s done. In the endless, degrading cacophony of the Trump era, in which the “tweet storm,” the “flame war,” the sneering insult, and the facile certainty of cable punditry have become the customary form of legal and political discourse, I had almost forgotten what the language of the law sounds like. But there it is in the 448 pages of the Mueller report
— logical, cautious, painstaking, measured, dry, yet inexorably compelling. One may quibble about details, but taken as a whole, Mueller’s product is an exemplar of the prosecutor’s craft and a powerful reminder of why a Justice Department imbued with norms of independence and professionalism is an essential counterweight to both presidential overreach and partisan hysteria.

The legal craftsmanship of the report is also an unanswerable refutation of the endlessly repeated canard that the Mueller investigation was a baseless partisan “witch hunt” by a hostile “deep state.”

In one sense, of course, the report is the work of the “deep state,” if by that foolish term one means the career professionals of American law and government. If some of those professionals are hostile to Trump and Trumpism, it is only because their lives are based on values — the dogged pursuit of truth, a commitment to fairness and due process, respect for the law, support of constitutional government — that Trump openly flouts.

Nonetheless, Trump should thank his lucky stars that Mueller’s team was composed of such old-fashioned folks. Had they indeed been the “thirteen angry Democrats” of Trump’s splenetic imagination, persons of the disposition and caliber of, say, Devin Nunes or Lindsey Graham, but of the opposite political valence, the resultant report would surely have been very different. As it is, the professional values and institutional norms by which good prosecutors live produced a report exonerating Trump of actual crime in relation to Russian election interference and withholding judgment on the legal question of obstruction.

Trump and his enablers are, of course, claiming vindication. But the caution and restraint of Mueller’s style cannot obscure the facts he meticulously reports. And those amount to a devastating portrait of a man by conduct, character, and temperament unfit for the office of president.

The section of the report on Russian election interference does clear Trump and his campaign of conspiring with the Russian government to interfere in the 2016 election. It nonetheless unequivocally affirms that the Russians did interfere. And it depicts Trump campaign operatives, including members of the Trump family, who were aware of the possibility that Russia was trying to intervene to help Trump by hacking and leaking material damaging Clinton, but saw no problem with such Russian meddling and would happily have conspired in it given the chance.

The reality of Russian intervention and the dangerous, if perhaps not quite provably illegal, proximity of Trump intimates to it frames the question of Trump’s obstruction quite differently than his defenders would like. Despite Trump’s endless denials, the Russians did meddle. As a matter of national security, that required investigation. Likewise, Trump associates and family did have troubling contacts with Russian emissaries. That, too, required investigation. Given the facts, both those long publicly known and others now laid out in Mueller’s report, investigation of neither point could, except in the mind of a willfully blind partisan, amount to a “witch hunt.”

Moreover, a truly independent inquiry into Russian electoral interference represented a political threat, or at least grave embarrassment, to Trump, because it raised the possibility that his victory was tainted by the assistance of a hostile foreign power. In addition, by no later than early 2017, Trump knew that his family and associates had, at the very least, come dangerously close to illegal entanglements with Russian representatives. Thus, Trump had powerful motives to quash the Russia investigation.

The crime of obstruction of justice depends on proof of two basic points — first, actions that obstruct or impede an investigation, and second, corrupt motive. Although a president may lawfully limit or even halt investigations for reasons genuinely related to the national interest, doing so to advance one’s partisan political prospects or to protect oneself or one’s family or friends from criminal exposure or personal embarrassment is to act corruptly.

The second volume of Mueller’s report lays out eleven different incidents or sequences of events that might amount to obstruction — from Trump’s efforts to convince FBI Director James Comey to lay off the investigation of Gen. Michael Flynn, to his repeated attempts to stop or limit the Mueller investigation, to his public and private efforts to induce witnesses Flynn, Manafort, and Cohen not to testify or to hew to Trump’s preferred view of reality.

Space precludes a blow-by-blow analysis of each of these categories, but Mueller’s conclusions — though guardedly, even opaquely, phrased — are evident and damning. He concludes that on multiple occasions Trump engaged in behavior that either did, or was intended to, obstruct or impede criminal investigations. As to some of the enumerated categories, Mueller concludes that, even if obstructive conduct occurred, there was insufficient evidence of “corrupt” motive. But as to at least five sequences of events, Mueller unmistakably believes that there is persuasive evidence of both obstructive conduct and corrupt motive. These included repeated efforts to remove special counsel Mueller; an attempt through Cory Lewandowski to induce Attorney General Sessions to limit the scope of the Mueller probe to future Russian interference in elections; a brazen attempt to convince White House Counsel Don McGahn to lie about the fact that Trump had ordered him to arrange the firing of Mueller; Trump’s efforts to influence the cooperation and testimony of Michael Flynn and Paul Manafort; and Trump’s efforts to induce Michael Cohen not to cooperate or to shade his testimony in Trump’s favor.

Mueller’s conclusions are unmistakable despite his careful refusal to go the last step and say plainly that Trump obstructed justice. If there were any doubt on the point, it is removed by the report’s inclusion of a devastatingly thorough legal rebuttal of Attorney General Barr’s apparent view that a President cannot commit obstruction by stopping or limiting a criminal investigation. The only reason to include such an argument is if Mueller concluded that, on the facts, the president violated the law. Otherwise, the legal question is moot and a legal craftsman like Mueller would never have included such surplusage.

In the end, of course, whether a president can or cannot technically commit the crime of obstruction is itself a moot point. As I have argued many times, Bob Mueller was never going to defy DOJ policy and seek indictment of a sitting president. As to the president, therefore, Mueller’s job from the beginning was to determine the facts and present them to Congress and the public in order that a political judgment about the president’s fitness for office could be made — whether through the impeachment process or at the polls.

The picture of the current president painstakingly etched in the Mueller report is of a man with three dominant characteristics.

First, his narcissism overwhelms all other considerations. Even a more balanced and self-aware person would have found the Russia inquiry politically and personally troublesome. But one cannot escape the feeling (to which Mueller obliquely alludes) that a primary factor in Trump’s desperate efforts to squash the investigation was the fragility of his ego — a manic determination that the epic achievement of his election not be tarnished by even a hint that forces other than Trump played a role.

Second, Trump believes that, having been elected, the powers of government are to be wielded for his personal and political benefit and the law exists only as a tool to serve his ends. No institution, no law, no set of traditional norms, no professional standard, certainly no moral consideration deserves any deference if it stands in the way of his immediate wishes.

Third, the thread running through the entire report is Trump’s essential falsity. Mueller confirms that Trump not only lies constantly as part of his public act, but does so privately among his advisers and intimates and he expects others to lie for him on command. Among the most revealing vignettes is Trump’s effort to convince Don McGahn to lie about the fact that Trump ordered him to secure Mueller’s firing. McGahn, to his credit refused and showed Trump his notes documenting the order. Trump exploded in astonishment that, “Lawyers don’t take notes…. I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.” That a subordinate might have personal integrity and be unprepared to sacrifice it on Trump’s command had seemingly never occurred to him.

One other curious theme recurs throughout the report as a kind of counterpoint to Trump’s lawlessness. Even though Trump repeatedly ordered people to crush or divert or hobble the Russia investigation, over and over they refused to comply, either to his face or simply by failing to carry out his directives. Revealingly, those who resisted told Mueller that they did so because they didn’t want to be responsible for another “Saturday Night Massacre,” or they didn’t want to be another Robert Bork.

This is heartening in a sense. The example of Watergate seems to have restrained at least some Trump subordinates and helped buttress, at least for awhile, the tottering citadel of the rule of law. But the Mueller report is about yesterday’s White House. Those with historical memory, and perhaps more imbued with personal integrity and professional values, are largely gone. Quit in disillusionment. Or purged because they refused to bend to Trump’s lawless whims. In considering what to do about Donald Trump, Congress should ponder that they now confront a Trump unchanged in his essence but increasingly surrounded by aides who may prove unwilling to provide even the modest restraint on his worst impulses documented in Mueller’s report.

Whether Donald Trump violated a particular federal obstruction statute is in the end a peripheral matter. The fundamental lesson of the Mueller report is simply that he is fundamentally unfit for office and presents a persistent danger to the integrity of the American constitutional order. That is the question that Congress and the country must now address.

Michael Cohen’s sentencing pleadings

10 Monday Dec 2018

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By Frank Bowman

On Saturday, I wrote a piece for Slate analyzing some notable peculiarities in the two sentencing memoranda filed regarding former Trump lawyer Michael Coehn by the U.S. Attorney’s Office for the Southern District of New and Robert Mueller’s Special Counsel’s Office.  The link is here.

I note that the prosecutors have treated Cohen quite differently than one would treat an ordinary cooperating witness.  And I speculate that the decision to ask for a quick sentencing and to file two sentencing memos with rather different takes on Cohen’s usefulness and the credit he should get for cooperation may be a coordinated strategy to pressure Cohen to give full cooperation on everything he knows, rather than the partial cooperation he’s apparently given to date.

I note in the Slate piece that the Cohen situation is quite odd in comparison with ordinary prosecution practice.  What I find odd are three points, only two of which I really touched in the Slate piece and not completely there.  The first is the fact that SDNY and Mueller are employing Cohen as a “cooperator” at all, given that he hasn’t signed a cooperation agreement and won’t agree to be fully debriefed.  I’m sure prosecutors have done this from time to time, but I can’t recall doing that or seeing it done.  As I indicated in Slate, in any case I ever ran, my response to that kind of half-baked cooperation would have been to show the guy the door.  A half-cooperator just can’t be trusted and is a ticking bomb in your case.

Of course, I can see why, in this case, SDNY and Mueller would agree to debrief Cohen on whatever he’d give, while giving him no promises.  The importance of the case and Cohen’s position vis-a-vis Mr. Trump would make even partial information irresistible. (And by the way, I don’t recall — though certainly it’s probably been done — ever encountering a defense lawyer who’d let his client do multiple debriefings without a cooperation agreement.  Leaving all else aside, everything the guy says is arguably fair game for both sentencing enhancements under the guidelines and further charges.)

The second oddity is the fact, which I didn’t specify in Slate, of effectively letting the SDNY memo drive the sentencing train.  Of course, the SDNY charges are more serious from a criminal law point of view and carry longer sentences, so that gives SDNY more leverage over the outcome.  But in this case, it’s Cohen’s relationship to the Mueller investigation that obviously matters.  In SDNY, Cohen is just a run-of-the-mill white collar schnook.  Whether he does or doesn’t cooperate fully with respect to his own financial misdeeds is really unimportant.  What matters is what he can say about Mr. Trump, Trump’s business associates, and family.  I find it difficult to believe that SDNY would take a sentencing position based purely, or even primarily, on their views about Cohen’s cooperation in relation to his personal crimes.  Granted, SDNY has a reputation of having a high opinion of its own importance, but I don’t think even they are that parochial.  One has to think that the Mueller and SDNY positions have been coordinated with Mueller’s views being paramount.  Thus, the question is to what end.  My Slate piece is simply a speculation about what that end might be.

The third, and to me most outstanding, oddity is the timing of the sentencing (for both Cohen and Flynn).  I don’t recall ever seeking an immediate sentencing for a cooperator before they have completed their cooperation, including all testimony.  In any ordinary situation, and for the reasons I describe in Slate, it makes no sense.  There has to be a tactical reason for doing this.  The best explanation I can come up with for Cohen without knowing the inside scoop is the one I put in Slate.

Nonetheless, there are other possibilities.  One is that the three sentencing positions taken this week by Mueller, et al — as to Cohen, Flynn, and Manafort — are intended to be seen together as a signal to other potential cooperators.  The signal would be: (1) you cooperate fully, you get no prison (Flynn); (2) you cooperate, but hedge, you go to prison with only a very modest reduction (Cohen); (3) you screw with us, we’ll put you away for life (Manafort).  But if this is what they’re doing, who is the intended recipient of the signal?

A final possible explanation of the odd timing of the Cohen and Flynn sentencings is that Mueller doesn’t view the endpoint of this investigation as a trial in which Cohen and Flynn will testify.  Perhaps his focus is a report about the activities of the president.  If that’s the case, then ordinary practices regarding cooperators might be altered.  Presumably, Cohen has testified before a grand jury under oath and had his factual claims locked in so that any later material change during, for example, a congressional hearing in which he testified under oath would subject him to an additional charge of perjury.  And for Mueller, that may be good enough.

We shall see….

BTW, the reflections above are in part a response to a very kind and informative email I received from former federal prosecutor Julie Werner-Simon.  I reproduce it with my thanks below:

Dear FB:  In response to your piece this weekend in Slate re: Cohen’s cooperation, I, as former lifer-federal prosecutor (in white collar and organized crime), have these clarifications

to your point about the “odd”-ness in two prosecution teams having different “sentencing-takes” on the same defendant who is “cooperating” in multiple federal investigations. 

1.   What happened with Michael Cohen happened in multiple cases I worked as a federal prosecutor. The cooperating defendant (who was providing information to me) gave full and complete information and assisted in my investigation of other crimes and other defendants.  That same defendant “came in late” and provided little to the other team’s case.

2.   Our respective sentencing memoranda reflected the different “takes.”  What the other prosecution team was not permitted to do was “devalue” my team’s assessment of the cooperator.  The coordination in that case was akin to “driving a clutch” and both teams had to make sure the car did not stall out.  That we had different takes was not odd; how we orchestrated/presented the different takes was what required precision and finesse – as the government is required to ultimately speak in one voice vis-a-vis a defendant.

3.   With respect to Cohen “giving cooperation” but not being deemed by the federal prosecutors as a Sentencing Guideline “5K1.1 cooperator” is addressed in an interview I gave Friday eve to Millennial Politics. Here is the link for your review. 7 Takeaways From The Cohen Sentencing Memos | Millennial Politics

I thank you for your reporting which is based on experience “in the trenches.”  For me, it is essential that people who have held the job, conducted investigations and who understand the U.S.C. (the United States Code) as well as rules of evidence (Fed. R. Evid.) and trial practice – – actually write about it.

         Sincerely,

·       Julie A. Werner-Simon

·       Former Federal Prosecutor, 1986 – 2015, Senior Litigation Counsel, Major Frauds Section U.S. Attorney’s Office, Los Angeles, as well as Deputy Chief, Organized Crime Strike Force 

·       California Bar License 141630

·       Pennsylvania Bar License 37844

·       Post J.D. Fellow, Constitutional Studies, Southwestern Law (2017-19)

·       jawsMEDIA.LA@gmail.com

Impeachable Offenses? on Cheddar

07 Friday Dec 2018

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Several days ago, I was intrigued to do an interview about the (almost entirely redacted) sentencing memorandum of General Flynn with a new media outlet I’d never heard of – Cheddar, which bills itself as the “leading post-cable news, media, and entertainment company.”  For those interested in the interview, or just in seeing Cheddar at work, the link follows:

https://cheddar.com/videos/special-counsel-mueller-recommends-no-jail-time-for-michael-flynn

Frank Bowman

Playing “20 Questions” With Trump

01 Tuesday May 2018

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By Frank Bowman

The New York Times this morning released a series of questions which it says Special Counsel Robert Mueller’s team would like Mr. Trump to answer.  The provenance of this list is murky.

First, we don’t really know if it’s genuine.  Second, if the list is essentially genuine, it seems unclear whether the questions are actually those Mr. Mueller would like answered or are, instead, summaries in question form by Trump’s lawyers of broad topic areas Mueller’s people have said they’d like to discuss with Mr. Trump.  Third, the source of the list is uncertain.  According to the Times, the list did not come from Mueller’s team.  Which leaves people in the White House or others associated with Mr. Trump’s legal defense.

Although the question list is certainly a scoop for the Times, I’m not sure it adds much to our knowledge of the Mueller investigation.  All of the published questions concern issues or events that have been discussed ad nauseum in the public press.

That said, I am struck by the prevalence of questions that seem to relate primarily to obstruction of justice.  There is a set relating to the firing of former National Security Adviser Michael Flynn, a long set about the firing of former FBI Director James Comey, and, quite interestingly, a set about threats to the continued tenure of Attorney General Jeff Sessions.  In addition, several of the questions relate to the activities and potential termination of the office of special counsel itself.

My first reaction to the questions about Sessions and the special counsel’s office is that they serve as a kind of brush-back pitch — a warning that Trump’s threats to Mueller and his efforts to influence Mueller’s investigation are themselves legally and politically dangerous.

Beyond that obvious point, I find the heavy emphasis on obstruction of justice a tad disturbing.  It is undoubtedly true that obstruction of justice is a crime (albeit one for which, under current DOJ policy, a sitting president will not be indicted) and potentially an impeachable offense.  And it is also true, contrary to the assertions of Mr. Trump, that one can be guilty of obstruction of justice for impeding investigation of matters that ultimately prove not to be criminal.

Nonetheless, those who ardently oppose Mr. Trump — particularly those who long for his impeachment — must remember that this is a political process.  By which I mean that changing the public mind matters as much or more than legal fine points.  Suppose that, at the end of his investigation, all Mr. Mueller comes up with is evidence that Mr. Trump obstructed an investigation that produces no proof of other significant wrongdoing by Trump or those closest to him.  In that case, those who already despise Trump will hail the obstruction finding as a victory.  But Trump and Trump supporters will claim exoneration because, they will say, a president is entirely within his rights to squelch a politically damaging investigation into non-existent crimes.

That the Trumpists would be wrong on the law won’t matter a fig in the court of public opinion, or in the Republican precincts of the House of Representatives if, post-midterms, the House were to begin an impeachment inquiry.  It is perfectly clear that the hard core of congressional Trump supporters just aren’t interested in abstractions like prosecutorial independence or even the rule of law itself. The only result from Mueller that might change the progressively hardening partisan positions on Trump would be solid evidence of serious substantive crime.

Of course, Mr. Trump’s own tweeted response to the leaked questions, in which he claims there are “No questions on Collusion,” is flatly wrong.  Many of the questions relate directly to possible cooperation between Russian entities and the Trump campaign.  Still, one hopes that Mueller’s inquiries are focused more heavily on that end of things than the leaked queries suggest.

In short, a Trump critic should hope that the Mueller folks will, in the end, be able to show that Mr. Trump’s obstructive behavior was intended to conceal real, and incontrovertibly serious, misconduct.

The Logan Act: A Derelict Statute Robert Mueller Should Shun

06 Wednesday Dec 2017

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The following post first appeared today as an article on Slate.

The Logan Act is a 1799 statute that makes it a crime for a U.S. citizen to contact agents of a foreign government for the purpose either of influencing that government’s policies in disputes with the United States or of defeating U.S. policies. In a New York Times op-ed piece on Monday, Professors Daniel Hemel and Eric Posner argue that the Logan Act remains good law, despite the fact that no one has ever been successfully prosecuted under it. They contend that former national security advisor Michael Flynn violated it during the transition period by secretly contacting the Russian ambassador and asking that the Russian government not respond sharply to Obama administration sanctions against Russia for meddling in the 2016 election. They suggest that Trump son-in-law and senior advisor Jared Kushner is at risk of being indicted and imprisoned under the Logan Act. And they contend that, if Trump violated the Act, he would be impeachable on that ground.

I agree with the first two points. The Logan Act remains on the books and long disuse does not automatically invalidate it. Likewise, General Flynn did violate the statute. He and the other transition team officials mentioned in Flynn’s plea documents plainly sought to influence the policies of foreign governments or to defeat U.S. policies.

That said, much as I admire Hemel and Posner, they are wrong to think that Special Counsel Robert Mueller should consider indicting anyone under the Logan Act, and equally wrong to think that a Logan Act violation would be a tenable ground for impeaching a president. More importantly, their focus on a statutory obscurity like the Logan Act exemplifies an error a good many Trump opponents are making—fixating on the technical violation of a criminal statute as a basis for impeachment.

As for Mueller, he and his team have two intertwined objectives. The first is to investigate and prosecute crimes connected with Russian interference in the 2016 election. The second objective, unstated in his mandate but equally significant, is to ensure that the results of the investigation will withstand—at least in the eyes of rational observers—the inevitable allegations of political bias. Employing the Logan Act would defeat this crucial second objective.

There are good reasons why the Logan Act has not been successfully invoked in more than 200 years. The primary one is that it is violated routinely and enforcing it would contravene well-established norms of political behavior.

Consider, as but one example, the plethora of private persons and organizations interested in U.S.-Israeli relations. Lobbying groups like the American Israel Public Affairs Committee and J Street are routinely involved in disagreements between Israel and the United States. Sometimes they align with the policies of the administration of the day in Washington. Sometimes they oppose those policies as inimical to the well-being of Israel.  Regardless of the issue or the prevailing degree of comity between the U.S. and Israeli governments of any given moment, American Jewish groups are constantly in “correspondence or intercourse” with official representatives of Israel.

The same could be said of any number of other associations. Many Latino groups oppose current U.S. immigration policy. Does anyone seriously suppose that representatives of such groups should be criminally prosecuted if they met with, say, the Mexican ambassador, and urged the Mexican government to continue opposing Trump’s infamous wall? Amnesty International and Human Rights Watch vigorously opposed the U.S. practice of torture and so-called “extraordinary rendition” during the Iraq War and its aftermath. Should American members of these organizations be prosecuted if they met with representatives of foreign governments urging them, in the words of the Logan Act, to “defeat the measures of the United States.”

Criminal prosecutions for this ordinary form of American political behavior would excite clamorous public objections, invite comparison to efforts by authoritarian regimes like Russia to suppress domestic contact with Western open society groups, and draw immediate constitutional challenge on either First Amendment or overbreadth grounds. The fact that in Flynn’s case the American contacting foreign agents had quasi-official status as a member of a presidential transition team made it rather more likely that the meddling would have some practical effect. But transition contacts with foreign governments, complete with signals of varying degrees of directness about impending policy changes, are hardly unprecedented, even if they are poor form. And it’s hard to see why a member of a transition team should be prosecuted when others never have been.

This is not to say that contacts between members of the Trump team and Russia during the transition period were necessarily innocent. They may end up as components of some criminal charge. But Mueller and his people are not likely to complicate any case they bring by basing it on a controversial and constitutionally doubtful relic like the Logan Act. Doing so would be a gift to those who seek to question the legitimacy of their work. And these guys seem unlikely to score that kind of own goal.

For similar reasons, a Logan Act violation is not a plausible impeachable offense. It is a crime, yes, but, as the Clinton affair taught us, not all crimes are “high crimes and misdemeanors.” Conversely, not all “high crimes and misdemeanors” are violations of the criminal code. For example, James Madison maintained that abuse of the pardon power was impeachable. Edmund Randolph thought the same of receiving foreign emoluments. George Mason, who proposed the phrase “high crimes and misdemeanors,” was most concerned with what he termed “attempts to subvert the constitution.” Speaking generally, an impeachable offense is conduct that is both grave and involves genuine danger to the constitutional order. The danger can arise either if the conduct itself endangers constitutional order—as for example Nixon’s efforts to use intelligence and law enforcement against political enemies—or if the conduct indicates that the president is personally unfit to continue service. A violation of the Logan Act—which has been virtually ignored without consequence for two centuries—just doesn’t cut it.

Of course, if Trump were shown to have “colluded” with the Russians to rig the election and if, in gratitude for the help, he made policy concessions of some sort, either during the transition or later, the concessions could be part of an argument that Trump’s pre-election behavior constituted an impeachable offense.  Founder George Mason observed that corrupting the “electors” – by which he meant members of the Electoral College — would be impeachable.  In the social media age, one could fairly argue that some kinds of cooperation with a foreign power to affect voter decisions is a modern equivalent.  But in such a case, the impeachable offense would be the election meddling in collusion with a hostile power and the giving of the quid pro quo.  Adding the Logan Act into the equation would merely confuse the issue and weaken the case.

The fact that brilliant legal scholars like Hemel and Posner are arguing for reanimation of a legal derelict like the Logan Act seems likely to reinforce two themes regularly advanced by Trump’s defenders—first, that Trump opponents are mining the federal criminal code for nitpicky crimes that can be stretched to cover normal political behavior, and second, the popular misconception that impeachable “high crimes and misdemeanors” must be indictable crimes.

The reality is that, however thorough and professional Mueller’s team may be, they have a limited brief—to investigate the Trump campaign’s involvement with Russian interference in the 2016 election. They are turning up a lot of dodgy behavior, but it is entirely possible, indeed likely, they will never produce indisputable evidence that Trump himself committed the kind of plain, unambiguous crime that people across the political spectrum will accept as an impeachable offense.

Sure, it’s possible that Mueller will find that Vladimir Putin has had leverage over Trump for years, or that the efforts of Trump’s bumbling crew of children, in-laws, and campaign sycophants to cadge Clinton dirt from the Russians rendered Trump subject to Russian blackmail. But face it—that kind of dramatic, unambiguous outcome is improbable. The current wishful obsession with Mueller’s work merely invites crushing disappointment among Trump’s opponents and cries of “I told you so” from his defenders. What’s more, a narrow focus on pre-election conduct in a way that relies on dubious laws like the Logan Act diverts attention away from what ought to be a primary focus of any effort to impeach Trump—his near-daily post-election assaults on the norms of American constitutional order. It is that behavior that makes Trump a constant danger to the Republic. And it was to defend against precisely that kind of danger that the Founders gave us the power to impeach a president.

Frank Bowman

The Flynn guilty plea — don’t break out the champagne just yet

01 Friday Dec 2017

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When news broke this morning that Michael Flynn, former National Security Adviser, had pled guilty to lying to the FBI, was cooperating with the Mueller probe, and was prepared to testify that Trump ordered him to “contact the Russians,” the stock market dropped 350 points. Presumably  traders feared that Flynn’s cooperation would lead directly to impeachment proceedings and all the attendant governmental disruption and economic uncertainty.

After an hour or two, Wall Street’s pulse steadied and the market went back up. There is a lesson for the rest of us in this financial spasm.

First, Flynn’s decision to flip – to plead guilty to a felony violation of 18 U.S.C. 1001 and to enter a cooperation agreement with the government – is potentially a very big deal and potentially very bad news for Mr. Trump and those close to him.  Flynn was an early supporter of Mr. Trump, was a campaign insider, and was one of the first people to whom Trump publicly offered a position after the election. Flynn had extensive contacts with Russian officials, including Vladimir Putin, before he joined the Trump camp. We know, and Flynn has now officially admitted, that he had contact with high Russian officials such as Ambassador Sergey Kislyak after the election.

Therefore, if the Trump campaign was actively colluding with Russia to affect the 2016 election, it’s a fair bet that Flynn might know about such things. And that would be a big deal.

But this is the Trump campaign we’re talking about here.

In an ordinary presidential campaign, overtures to a traditionally hostile foreign power would be inconceivable. If such a thing  were to occur, it would only be after careful consultation by the candidate with his or her senior foreign policy advisers — which, for Trump, would have included Michael Flynn. But if we know anything about the “Trump campaign,” it is that it had none of the attributes of a normal campaign apparatus.  Little organization, no meaningful subject matter expertise, and no clear lines of authority. It was, at its core, just the Trump family and a ragtag of opportunistic second-raters, many of whom — notably Donald Trump, Jr., George Papadopoulos, and Carter Page — were prone to thoughtless freelancing in foreign policy matters far beyond their competence.

Therefore, even if some Trumpists were colluding with both hands, it’s entirely possible that Flynn would know nothing at all about it.

Indeed, among the many notable features of Flynn’s plea agreement and the accompanying statement of offense is the complete absence of any reference to any event prior to the November 2016 election. Flynn pleads guilty only to lying about contacts with the Russian ambassador in December 2016.  Additionally, in the statement of offense he admits to lying about December 2016 contacts with foreign officials (including Russians) concerning an Egyptian effort to secure UN Security Council condemnation of Israeli settlements, and about his lobbying work for the Turkish government.

Moreover, the report that spooked Wall Street — that Flynn will testify that Trump directed him to “contact the Russians”  — doubtless seemed earthshaking because people read it to mean that Trump directed Flynn to contact the Russians about influencing the election.  But that reading is not supported by the plea documents. Flynn admits that “a very senior member of the Presidential Transition Team” (later reported to have been Jared Kushner) directed Flynn to meddle in diplomacy on the Egypt-Israel Security Counsel resolution, after the election and before Trump took office.  If true, and even if Trump himself passed the instruction on to Flynn through Kushner (which seems quite probable), that’s extremely poor form in a president-elect, but without more I can’t see how it is either criminal (except under the never-enforced Logan Act) or impeachable.

So, if Flynn’s plea is to matter to anyone other than himself, it will be because he has tales to tell Robert Mueller that none of us yet know about.  Despite all the feverish speculation, no one other than Mueller’s people and Flynn himself has any real idea what those tales may be. Moreover, the fact that, even though Flynn’s plea had been foreshadowed for weeks, Mr. Trump took no dramatic step like firing Mueller or pardoning Flynn speaks volumes.

An ordinary president, one who felt constrained by traditional norms of American political life, might refrain from doing such things even if he knew that Flynn could damage him severely.  Mr. Trump, one need scarcely say, is not an ordinary president.  He is rarely even aware of presidential norms and he violates those he is aware of with positive glee.  Moreover, he is a congenital risk-taker.  So fear of the sort of backlash that followed Nixon’s Saturday Night Massacre firing of Archibald Cox will worry him less than it would an ordinary man.  In the last two years, he has violated every rule of American political life and ignored every warning about the probable catastrophic consequences of such behavior.  And yet, here he is, President of the United States.

Consider for just a moment this question: If Flynn has a smoking gun that could plausibly bring down the Trump presidency or produce major criminal indictments against anyone Trump really cares about — a tiny circle, I agree, but one that surely includes himself and perhaps his natural children — do we really imagine that Mr. Trump would not long since have reacted spasmodically to news of Flynn’s impending cooperation?  Is it realistic to think that if Trump genuinely believed Flynn to present a deadly danger that he would not have gambled on a Mueller firing or a round of pardons?

General Flynn surely does have tales to tell, or Robert Mueller would not have made so favorable a plea agreement with him.  And what he will say will doubtless help unwind the Russia story and do no good to the reputation of Mr. Trump and his intimates. But Mr. Trump’s forbearance strongly suggests that Flynn’s revelations will not be of the explosive variety so many are confidently predicting.

If there is a road to Mr. Trump’s removal from office, it is going to be a long and tortuous one.  The Flynn plea is but one waystation, and will likely provide no shortcut to the ending many crave.  In short, until we know more about exactly what Mr. Flynn will say, people should moderate their expectations.

Frank Bowman

Flynn Cuts off Communication with Trump

24 Friday Nov 2017

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This article from the Washington Post, reports that former National Security Adviser Michael Flynn’s legal team has halted communication with President Donald Trump’s legal team. Norm Eisen, who has worked with Special Counsel Mueller before, believes that the reason for that is that Flynn is planning to implicate a ‘higher up’ in the Trump campaign — possibly Trump himself. That could leave the President on the hook for either collusion or obstruction of justice; either of which is an impeachable offense.

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The Russian collusion investigation: Bumbling grifters & the risks of keeping it all in the family

12 Sunday Nov 2017

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Earlier this week, I had the pleasure of doing an interview with Canada’s CTV network on developments in, and speculations about, the progress of the Mueller investigation.  The anchor wanted to talk about the testimony of  former Trump campaign foreign policy advisor, Carter Page, to the House Select Committee on Intelligence, Attorney General Session’s upcoming appearance before the House Judiciary Committee, and the rumor that an indictment of former Trump National Security Advisor Michael Flynn (and possibly his son) will soon be forthcoming.

I can’t say that I had anything particularly novel to tell Canada’s TV audience about any of these subjects, but reflecting on the interview has provoked a couple of observations.

First, as I have had occasion to observe before, passionate opponents of Mr. Trump who confidently expect (or even fervently hope) that the Mueller investigation of Russia-Trump campaign collusion in the recent election will produce some smoking gun that will lead naturally to articles of impeachment should moderate their expectations.  So far, at least, the picture is not one of sophisticated, nefarious, high-level Trump operatives working hand-in-glove with agents of the Russian government, but of something altogether murkier and more ambiguous.

To be sure, there exists nearly irrefutable evidence that the Kremlin was working hard through every means at its disposal to harm the Clinton campaign and help Mr. Trump. Mr. Putin’s repeated denials that Russia was meddling and Mr. Trump’s on-again–off-again acceptance of those denials may convince his endlessly credulous base, but outside those blinkered precincts it merely prolongs the bizarre spectacle of an American president siding with the dictator of a hostile foreign power against the conclusions of his own intelligence agencies.

(As an aside, when I began drafting this post, Mr. Trump had just said that he accepted as sincere Putin’s denial of meddling.  Mere hours later, Trump straddled the question, saying that he accepts both the findings of U.S. intelligence and Putin’s sincerity.  This waffling is either: (a) Yet another example of Mr. Trump’s persistent tendency to say whatever he thinks will please the audience immediately in front of him, with no thought for either truth or how today’s effort to ingratiate will affect his own or the country’s interests tomorrow; (b) Yet another example of Mr. Trump’s seeming inability to engage in rudimentary critical thinking — the idea that the Russian government could engage in a wide-ranging effort to influence the American presidential election without the knowledge or approval of Vladimir Putin is laughable, and thus it is impossible for U.S. intelligence to be right and for Putin to be sincere; or (c) Just another manifestation of Mr. Trump’s knee-jerk rejection of any fact, however firmly established, that might suggest his election victory was due to anything other than his own personal merits. My best guess is that all three factors were at work.)

But it is not a crime or an impeachable offense merely to be the unwitting beneficiary of foreign efforts to damage one’s political adversaries.  What must be shown to prove a crime is that affiliates of the Trump campaign consciously aided or sought to aid the Russians’ subversion and violated some statute in the process.  What must be shown for any of this to amount to an impeachable offense is that Mr. Trump himself approved, was aware of and failed to stop, or later tried to cover up culpable conduct by his subordinates.

It is too early to assess the ultimate question about whether culpable collusion occurred.  But the emerging (though far from complete) evidence suggests at least three points about the Trump campaign’s Russian contacts:

  • Repeated claims by Mr. Trump and his subordinates that there were no contacts between persons associated with the Trump campaign and Russian officials or agents were simply untrue.  As the Chicago Tribune summarizes, at least nine people in the Trump orbit had Russian contacts during the campaign or transition.
  • At least some of those contacts involved persons high up in the campaign hierarchy or personally close to Mr. Trump, people like Donald Trump, Jr., Jared Kushner, Paul Manafort, and Jeff Sessions.  Others, like George Papadopoulos and Carter Page, had impressive-sounding titles like “foreign policy adviser,” but  were in reality on the fringes of what was always a barely coherent campaign organization. Nonetheless, it is now clear that campaign higher-ups, like Senator Sessions, Stephen Miller, Hope Hicks, J.D. Gordon, campaign manager Cory Lewandowski, and national campaign co-chair Sam Clovis, knew about the Page and/or Papadopolous contacts.
  • Whether contacts between Trump surrogates and Russian actors ever produced concrete results, such as the direct transfer to the Trump campaign of negative information about Secretary Clinton or her team, remains unclear … and frankly seems doubtful.  What is clear is that multiple members of the Trump entourage were willing and eager to receive that kind of material — even when it was plain that the source would have to have been Russian intelligence services, and that the means employed to obtain the material would likely have involved violations of American law. The first proof of their eagerness was the now-famous Donald Trump Jr. – Kushner – Manafort meeting with the Russian lawyer.  Now Mr. Papodopoulos admits to having received a purported Russian offer of “dirt” on Secretary Clinton in the form of emails, and to have passed the offer along to Trump campaign officials.
  • If, in the end, Trumpists and Russian emissaries never quite did a deal that produced active cooperation or transmission of opposition research “deliverables,” efforts to cover up all the active flirtation could nonetheless amount to criminal obstruction of justice and even impeachable conduct.  That’s the thing to watch for in coming months.

Second, the overriding impression, reinforced by each new revelation, is that both the inner circle of the Trump campaign and the outer rings of staff, consultants, and advisers consisted primarily of pathetically ill-informed amateurs like the Trump children and in-laws, eccentrics like Carter Page, desperate wanna-be‘s like George Papodopoulos, or outright scoundrels like Paul Manafort.  Even those with long government resumes and conventional credentials, like Trump’s short-tenured National Security Adviser Michael Flynn and Senator Jeff Sessions, gravitated to Trump because, in Flynn’s case, he had been expelled from the circles of power for persistent bad judgment, and in Sessions’ case, he was a fringe player in the Senate, with views on many subjects too extreme even for for a caucus edging steadily to the right, and no path to any meaningful leadership role.

Moreover, the one character trait common to virtually all of this ill-assorted crew is greedy opportunism. The Trump family, from the paterfamilias on down, has profited by skating on or over the edge of legality for decades and has been monetizing its connection to the presidency ever since the election.  Manafort’s long career as apologist for thugs and dictators should have disqualified him from a role in any American presidential campaign, and predictably has both embroiled Trump in controversy and produced an indictment founded in part on money laundering and tax evasion. Page reportedly combined his Russian overtures for Trump with efforts to secure private deals for himself.  Michael Flynn is under investigation for an array of dodgy, but potentially lucrative, deals, as well as illegal failures to report work on behalf of authoritarian regimes like that of ascendant Turkish dictator Recip Erdogan.

The mix of incompetence, bad judgment, blithe disregard of normal legal and ethical boundaries, and personal greed in the Trump campaign is both a gift and an impediment to any effort to impeach Mr. Trump.

On the one hand, it is increasingly obvious that people high and low in the Trump campaign were trying quite hard to collude with a hostile foreign power to win a presidential election.  On the other hand, it may prove that the Russians simply didn’t trust these escapees from the Island of Misfit Toys enough to enter into any active collaboration, preferring to feed toxic misinformation to the American electorate indirectly through Wikileaks and directly through social media.  Now that Mr. Trump has shed virtually all of the primary actors in the Russian contacts — with the notable exceptions of his family members — he can disavow former staffers’ conduct as the inconsequential bumbling of fringe nobodies.

BUT — having foolishly chosen to ignore settled norms against nepotism in the White House, Mr. Trump is probably stuck with whatever the kids have done or may yet do. Even an ordinary father would shrink from throwing his children overboard and into the clutches of waiting prosecutors, but in Mr. Trump’s case, ordinary considerations of paternal affection are infinitely complicated by the fact that the Trump campaign was, and the Trump Organization remains, a family business … and the kids, notably including son-in-law Jared Kushner, are privy to their secrets.  Perhaps Ivanka or Don Jr. might be willing to take a fall for dear old dad.  Were I Mr. Trump, I would not bet that, at the last extremity, young Mr. Kushner would do the same.

Thus, Mr. Trump will never be able to make a clean break from the Russian meddling investigation. Some of its central figures will remain close to him.  He will continue defending them.  And as in Watergate, it may prove that the cover-up, rather than the original wrong, will be his undoing.

Finally, it would be easy to dismiss the near-universal obsession of those around the Trumps with self-enrichment through politics as a side issue.  For two reasons, it’s not.

First, as Mr. Manafort recently discovered, the United States has a web of laws that regulate, and often criminalize, aspects of the “deals” he and his ilk are so eager to make.  Those laws are a tool box for Robert Mueller’s prosecutors, and the questionable financial motives and maneuvers of those involved in contacts with Russian representatives will provide legitimate grounds for inquiring deeply into financial matters the Trumps would surely prefer remain hidden.

Second, to the extent Mr. Mueller’s investigation or other sources reveal that Mr. Trump and family have used the presidency for personal profit, such disclosures implicate at least two grounds for impeachment.  The most obvious of these is violation of the emoluments clauses.  But I would go a bit further.  I do not believe that a technical violation of, for example, the foreign emoluments clause of Article I, Section 9, is required to make out an impeachable offense if it could be shown that, as James Madison put it, the president “pervert[s] his administration into a scheme of peculation.”

I will expand on this latter point in later posts.  Stay tuned.

Frank Bowman