Tag Archives: Robert Mueller

Is Trump trying to lure Democrats into “Impeachment Trap”?

10 Friday May 2019

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By Frank Bowman

There’s a good deal of talk about whether Mr. Trump is purposely trying to goad Democrats into a formal impeachment investigation, on the theory that doing so poses little risk of ultimate conviction in the Republican-dominated Senate and is politically advantageous insofar as it enables him to paint himself as a victim and simultaneously divert attention from his substantive policy failures.

I had a talk with Greg Walters of Vice News on this subject, and he was kind enough to include a quote or two in his story on the subject, link here.

I have two basic reactions to this hypothesis, one constitutional and the other political.

On the constitutional score, it is hard to see how Congress (by which, in practice, we mean the House of Representatives) can avoid serious consideration of impeachment if the Trump Administration persists in its current blanket denial of cooperation with all requests for information from the House, regardless of subject, regardless of the originating committee, and regardless of whether the House merely asks politely or serves a subpoena. This posture of total resistance is without historical precedent. All presidents wrangle with Congress over information disclosure, but none has ever simply refused all cooperation. Trump’s current absolutist position, if left unchallenged, would establish a precedent essentially neutering congressional oversight and, in consequence, badly fracturing constitutional order. A presidency and an executive branch immune to question is an executive dictatorship in all but name.

The constitutional challenge presented by Trump’s maximalist intransigence leads toward impeachment in two ways.

First, the longer Trump persists in stonewalling all congressional requests, the more ominous — and obvious — the threat to basic separation of powers principles becomes. Thus, a total refusal of cooperation with congressional investigative authority can itself become impeachable conduct. At a certain point, although we may not yet be there, a formal impeachment inquiry becomes (or should become) an imperative for any Member of Congress committed to maintaining both the prerogatives of his or her own branch and a constitutional order centered on an independent and powerful legislature.

Second, as I wrote in Slate not long ago, congressional investigative power is at its strongest when that power is expressly asserted in aid of the impeachment power. Investigative authority in aid of Congress’s general oversight power is derivative of legislative power and is therefore conditional on legitimate legislative objectives. By contrast, the power to impeach is expressly and exclusively granted to Congress and necessarily implies the power to ascertain, from whatever source, the facts necessary to judge whether impeachable conduct has occurred. Both logic and the precedent of the Nixon era compel the conclusion that not even classified matters or the most intimate details of presidential consultation with his advisers are immune from disclosure in an impeachment inquiry. Thus, Congress strengthens its legal case for judicial compulsion of testimony and material withheld by the executive the moment it announces an impeachment investigation. A blanket presidential refusal to comply with all informational requests premised on oversight power almost compels Congress to invoke its impeachment authority.

The agonizingly tricky bit for constitutional patriots who also happen to be Democrats is that Trump may be right if he calculates that an impeachment contest is a political winner. The uncomfortable fact is that the general populace neither knows nor cares very much about constitutional balance. The electorate may even reward Trump in 2020 for being “tough” against a congress that nobody is very fond of.

And public disdain for and disinterest in an impeachment fight is likely to be particularly acute if Russia and the Mueller Report remain the focus of the contest. The Mueller Report did “exonerate” Trump on Russia to the extent that it found insufficient evidence of pre-election conspiracy. The public knows this and no careful explanation of why Trump’s behavior vis-a-vis Russia in 2016 remains profoundly troubling is going to dislodge that impression among either Trump supporters or the bulk of casual followers of political news.

As for the obstruction portion of Mueller’s report, it paints a shocking picture of presidential misconduct. Nonetheless, Mueller’s decision to end his report with a no-call, Barr’s choice to make his own call exonerating the president, and the resulting narrative that this was, at worst, a president blocking an investigation into what proved to be a non-crime are likely to deprive a long impeachment fight focused on obstruction of justice of much of its public bite. Just as the general public doesn’t know or care much about the constitutional niceties of checks and balances, it tends not to know or care very much about abstractions like prosecutorial independence, the rule of law, unitary executive theories of presidential power, and so forth.

Accordingly, if Democrats, whether for reasons of constitutional principle or partisan politics, feel compelled to proceed with a formal impeachment investigation, they would do well to broaden its scope beyond Mueller. Only if matters like emoluments violations, misuse of office or influence for private gain by the Trump family, connections with Russia not directly involving the 2016 election, destruction of the nation’s foreign policy and alliance structures, and pervasive dishonesty are added to the mix does an impeachment battle seem likely to prove politically advantageous.

Why efforts to stop Mueller’s testimony are probably fruitless

06 Monday May 2019

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By Frank Bowman

Yesterday, I had the pleasure of talking with Alberto Luperon of Law & Crime Network about whether the Trump Administration would be likely to succeed if it tried to stop special counsel Robert Mueller from testifying to Congress. His article about that conversation appears here.

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.

The Mueller Report

25 Monday Mar 2019

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By Frank Bowman

The villagers are despondent. Helpless against the ogre in the white castle looming over their town, they hired Sir Robert, peerless paladin of republican virtue, and sent him forth against the monster. After a two-year quest, every hint and rumor of which was followed breathlessly by the quaking townspeople, Sir Robert has returned. But he comes not with the ogre’s severed head hanging from his saddle bow, but with a long parchment that says, “The creature in the white palace is indeed a bad fellow, certainly not better and indeed somewhat worse than you knew him to be when you selected him to live there. What you do about that is now up to you.”

Upon reading this, the scales fell from the villagers’ eyes, and Sir Robert stood before them revealed, not as a knight in glittering plate armor with pennon flying from his lance, but as what he had been all along, a grave, punctilious, honest lawyer who had done what he was tasked to do, neither more nor less. And then, in their disillusionment, those villagers most wroth against the ogre wailed and rent their garments and covered their heads with ashes.

Robert Mueller was never going to save us from Donald Trump. He was certainly never going to indict a sitting President of the United States. Indeed, given the narrow scope of Mueller’s charge — to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and any “matters that arose or may arise from the investigation” — it was always extraordinarily unlikely that he would find that Trump or high-ranking members of his presidential campaign “colluded” — or to use the better and more precise legal term, “conspired” — with the Russian government to fix the 2016 election.

The improbability of success on “collusion” narrowly construed had nothing to do with the inherent morality of Trump and his handlers. After all, Trump chose as his campaign manager Paul Manafort, a man so sleazy that, even before his recent convictions, he had been cast out of American politics to practice his black arts on behalf of the third world thugs and aspiring autocrats on the fringes of the former Soviet empire. And apart from thoroughly corrupt newcomers like Manafort and lightweight wanna-be grifters like Rick Gates, Trump’s campaign was a family affair. Which meant that a chip off the old block like Donald Jr. was empowered to gleefully accept meetings with obviously dodgy Russian intermediaries offering obviously stolen dirt on candidate Hillary Clinton.

But however much the Trump menage might have been willing to conspire with the Russians, it has always seemed improbable in the last degree that, during the campaign, the Russians ever got close enough to Trump that the interaction could be fairly categorized as a criminal conspiracy. A prosecutable conspiracy requires proof that two or more persons agree to carry out a criminal objective.

The first problem with proving that Trump conspired in the legal sense with the Russians is identifying the criminal objective of the conspiracy. The second and equally daunting obstacle is proving an agreement to commit the object crime.

What we know of Russian activities in 2016 establishes that they did two basic things to help Trump and hurt Clinton — they certainly conducted a social media disinformation campaign that favored Trump and they quite probably hacked Clinton campaign emails and fed them to the media through Wikileaks.

As to the first, one might construe the millions of rubles expended on the Russian social media effort as an illegal foreign campaign contribution, but I am aware of no evidence suggesting that the Trump campaign had any more advance knowledge of the Russian efforts on this score than anyone else. Indeed, there is no reason to think the Russians would have said anything to Trump’s people about their work in this realm. They didn’t need Trump’s help to do what they were doing and telling Trump — that famously indiscreet man — would have risked disclosure which would have nullified the whole point of the exercise.

As for the Clinton email leak, the original hack (whoever performed it) would have been illegal, but it is altogether unclear whether anything that happened thereafter was criminal. Anti-Trump legal experts have poured out barrels of internet ink arguing that for a foreign government or entity to give and an American candidate to accept negative information about an electoral opponent is a campaign finance violation. I’ve always found this contention improbable, both as a matter of law and as a matter of simple common sense.

Suppose, as was surely the case, that the British favored Hillary Clinton in the last election, and that, as was apparently not the case, they had evidence Donald Trump had long been a Russian intelligence asset. Can anyone seriously contend that it would be a crime under American law for the Clinton campaign to ask the British about their knowledge of Trump’s allegiances or indeed for the British to respond to the query? Even if one accepts the somewhat strained argument that information is a thing of value regulated by campaign finance law, no plausible reading of the First Amendment would permit criminalization of the disclosure of information so vital to the operation of the democratic process.

In any case, I strongly suspect that when the details of Mueller’s investigation finally emerge, they will reveal no evidence of prior communication between Trump’s people and the Russians about the Clinton email hack or the feed of the material to Wikileaks. An expression of interest in the emails by Donald Jr. at the Trump Tower meeting, yes. Loud public encouragement of the release from Trump, yes. Some advance word given to Roger Stone by Julian Assange (not the Russians) of the impending release of the material by Wikileaks, perhaps. But no Trump-Russian cooperation in either obtaining or disseminating the material.

All of which makes perfect sense. The Russians perennially want to undermine their great geopolitical rival, the United States. They disliked Hillary Clinton for her past posture on matters Russian, and perceived her as the more obviously competent — and thus undesirable — candidate in the 2016 election. Therefore, they were happy to attack her to weaken her support among the American public and to cause general disruption of American civic life. But, and this is a huge but, while it is now sometimes hard to remember, before November 8, 2016, no sensible person — not the Russians and probably not even Trump himself — thought the American public would freely choose to elect such a transparently incompetent blowhard.

It was therefore always vanishingly improbable that the Russians would connect themselves directly and provably to the campaign of a weak, imprudent, huckster, thus exposing Russia to the wrath of what the Russians surely assumed to be the incoming Clinton administration. Without such connections, there can have been no criminal conspiracy.

The situation with respect to obstruction of justice is different. It appears from Attorney General Barr’s letter that Mueller did find evidence from which one might conclude that Trump obstructed justice, but elected not to opine on whether that crime was committed. We don’t yet know whether he did so because the evidence on both sides of the question was in rough equipoise, or because he concluded that the law is ambiguous, or because he decided that, since he could not under DOJ policy indict a president, he should not offer an affirmative opinion that the president committed a felony.

My best guess is that he intended that congress and the public should weigh the evidence arrive at its own conclusions. The Barr letter is a fairly transparent effort to frustrate that expectation by offering a preemptive and exonerating legal judgment carrying the imprimatur of the Attorney General. It is also a peculiar animal because it effectively concedes that Trump did obstruct the Mueller investigation in fact, but nonetheless concludes that Trump did not commit the crime of obstruction primarily because Mueller did not find that Trump “was involved in an underlying crime related to Russian election interference.”

For what it’s worth, I think, Mr. Barr is wrong on the law. His heavy reliance on the absence of proof that Trump himself committed a crime connected with Russia is certainly misplaced. One can undoubtedly obstruct justice by interfering with an investigation of the crimes of someone else. Moreover, the law is clear that one can obstruct an investigation that ultimately does not yield proof of criminal wrongdoing by anyone. Barr’s contrary conclusion is only explainable as intellectually dishonest special pleading, or as the product of an intellectually honest, but constitutionally suspect, embrace of the so-called unitary executive view of the presidency pursuant to which the president as the personal embodiment of the executive branch cannot obstruct justice by stopping investigation of anyone else.

But none of the foregoing is at all surprising. The chances of a smoking gun tying Trump to a provable electoral conspiracy with the Russians were always tiny. And any obstruction case was almost certainly going to turn on debatable views of presidential power. This does not mean that the Mueller report itself, once revealed, will be of no consequence. One suspects it will reveal a wealth of discreditable detail about Trump and his clan. Still, whatever is in it will likely serve only to confirm his opponents in their disdain, even as his fans continue to hail it as exoneration.

For me, the most important question about the Mueller report is the issues it will leave unaddressed. For example, I have long thought that the Trump campaign’s contacts with Russia during the election were a mere secondary issue. The real question about Russia is why Trump has become a reliable, even obsequious, apologist for Vladimir Putin and has, so far as he has been able against the resistance of Congress and the intelligence and defense establishments, regularly aligned himself with Russian interests. That requires explanation, and I strongly suspect Mueller did not read his charge as extending to an inquiry that would demand a deep historical analysis of Trump’s personal and business history running many years into the past. If the mystery of Trump’s open affinity for Putin is to be solved, congressional Democrats will have to solve it.

Which brings me to the three main lessons of the Mueller investigation.

The first is that Trump’s opponents have always invested far too much hope in Robert Mueller. He was asked to investigate one quite narrow segment of Trump’s affairs. He seems to have done so, vigorously, professionally, and dispassionately. But he was never going to be Trump’s Ken Starr, peering into every cranny of Trump’s life before and after the election for the silver bullet that would bring down a president. Mueller lacked the powers the old independent counsel statute gave Starr, and happily I think, he lacks the zealotry that propelled Starr to the sordid fizzle of the Clinton impeachment. He has provided a salutary example of what the law, and the prosecutors who serve it, are supposed to do.

Second, the very narrowness of the Mueller inquiry should remind us that the problem with Donald Trump has never been one misdeed or misjudgment, or even one extended disgraceful episode. Nor is it the things we do not know about him (unless he really is compromised by Russia). The already-obvious challenge he presents to American democracy is his endless, staggering, mind-numbing array of completely public assaults on communal decency, competent governance, and bedrock constitutional norms. We don’t need Bob Mueller to tell us what the problem is. And almost nothing Mueller was ever likely to discover would have added very much to our understanding of that problem.

Bob Mueller’s legal investigation was never going to solve our national political crisis. And by not trying to solve it, by simply doing the job the constitution and the laws asked him to do, he has paid the American system of government and his fellow citizens the great compliment of trusting us to solve it for ourselves. The truth is that both Democrats and Republicans have been hiding behind Bob Mueller for a long time. The shallow, vicious, children of Trump’s media and congressional base have transformed him and the rest of the honorable men and women of federal law enforcement into an imaginary traitorous “Deep State.” Among Democrats, “Wait for Mueller” has been the mantra of those either too cautious or too calculating to move boldly against a generational threat.

Now we are going to find out what 21st century American democracy is made of. Will congressional Democrats have the fortitude to investigate those things that remain to be investigated — and do it both thoroughly and fairly? Will Republicans honor the example of their predecessors during Watergate and cooperate in seeking the truth? While waiting for its investigations to conclude, will Congress as a body defend its prerogatives and the constitutional balance against a president who plainly respects neither? And will it have the courage, once all investigations are complete, to act both on what they find and what is already staring them in the face? And even if our elected representatives fail us, will we employ the Founders’ primary remedy against an overreaching or incompetent executive and vote to turn him out of the White House?

Bob Mueller is an old-fashioned man who has placed an old-fashioned faith in the regular processes of law and in our national commitment to intelligent self-government. I hope we are worthy of it.

Barr Releases Summary of Mueller’s Report

24 Sunday Mar 2019

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Attorney General William Barr has released a four-page summary of Special Counsel Robert Mueller’s report. In it he announced that Mueller did not find sufficient evidence to establish the President Trump’s campaign conspired with Russian groups to manipulate the results of the 2016 election. Additionally, he writes that Mueller did not make a recommendation as to whether the President should be charged with obstruction of justice, but rather presented evidence on both sides of the issue and deferred to the Attorney General. Bar and Deputy Attorney General Rod Rosenstein have decided not to pursue indictment of the President on that charge. Barr notes that he intends to release as much of the report as will not violate Federal Rule of Criminal Procedure 6(e), governing the release of grand jury information. After the release of Mueller’s findings, the House of Representatives will have to decide whether they believe the evidence is sufficient for impeachment.

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Is Mueller Almost Finished?

21 Thursday Feb 2019

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CNN Reported today that Special Counsel Robert Mueller may conclude his investigation as early as next week. Their information apparently came from sources familiar with Attorney General Bill Barr’s plan to announce the completion. But! Don’t get too excited. Though Mueller’s report may be finished soon, that doesn’t mean the public or Congress will get to see it.

The regulations which govern Special Counsels are contained in part 600 of title 28 of the Code of Federal Regulations. 28 CFR 600.8 says that when Mueller gets done, he needs to send his final product off to the Attorney General, Bill Barr. 28 CFR 600.9 says that Barr only has to tell Congress 1) that Mueller is done; and 2) if he disagreed with any of Mueller’s suggested actions because they were “inappropriate and unwarranted,” and an explanation of that conclusion. So what we’ll find out is, for the most part, at Barr’s discretion. However, Barr told Congress during his confirmation hearing that he intends to release his own summary of the report, and will be as transparent as possible within the confines of the law (for a thorough analysis of Barr’s statements, click here). If Barr releases less than what Congress would like, their remedy is a subpoena.

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E-Discovery in the Trump Age

04 Monday Feb 2019

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Jason Krause’s article, “But their emails! Some of the Most Contentious Political Issues are E-Discovery Disputes” published in the ABA Journal, explores the e-discovery disputes surrounding the Trump campaign and presidency and modern politics in general. He notes:

A [large] debate over preserving electronic evidence continues to hang over national politics. Donald Trump Jr.’s meetings with Russians, Michael Cohen’s plea bargain, Brett Kavanaugh’s contentious confirmation to the U.S. Supreme Court, Paul Manafort’s fraud convictions and an attempt at impeaching Deputy Attorney General Rod Rosenstein all involve, at their core, electronic evidence.

Living in the computer age means our political disputes, especially those with criminal consequences, will frequently turn on electronic data and discovery. Interested readers should follow the link above.

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Rosenstein Assures Trump he is Not a Target of the Mueller Investigation — The News Cycle Repeats Itself

01 Friday Feb 2019

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Trump said yesterday, during an interview with the New York Times, that Deputy Attorney General Rod Rosenstein informed him that he is not a target of the Mueller investigation. Trump also added that he is not a “subject” of the investigation, but it is unclear whether that is a word Rosenstein used or a descriptor Trump added. He seemed to use the words interchangeably saying first “he told the attorneys that I’m not a subject, I’m not a target,” and then added  “[t]he lawyers ask him. They say, ‘He’s not a target of the investigation.’”

Readers will recall that Trump already received the news that he is not a target of the Mueller investigation from Mueller himself in April of 2018. As Professor Bowman wrote then, what that could mean, according to the definition of “target” in the United States Attorneys Manual, is that DOJ policy prevents Trump from becoming an indicted defendant and therefore a target. However, if that is not what Rosenstein meant and Trump could be a target, then it is significant that he has not, in the past 10 or so months, become one. What is more significant is if Trump is indeed not a subject of Mueller’s investigation. That could mean that there is not enough evidence to continue investigating Trump or enough evidence to have exonerated Trump.  That, however, seems unlikely.

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Roger Stone Arrested and Indicted

25 Friday Jan 2019

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Roger Stone was arrested and received a seven count indictment this morning which included charges of misleading lawmakers about his communications with Wikileaks, the organization that released the emails which scandalized Hillary Clinton’s campaign, and intimidating fellow witness Randy Credico, who was also in contact with Wikileaks. Credico ultimately pleaded the 5th at Stone’s urging.

The emails released by Wikileaks were stolen by Russian hackers, and Stone is a long time friend and supporter of President Trump. If Stone chooses to cooperate with Special Counsel Mueller, he could provide the evidence need to finally establish collusion between Russia and the Trump Campaign. However, if Stone’s past comments are to be believed, he will not be cooperating. Much is yet to be seen.

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Giuliani helps build the case that his client may be a Russian asset (and maybe helps restore Buzzfeed’s credibility)

21 Monday Jan 2019

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By Frank Bowman

Somewhat lost in the coverage of Mr. Trump’s apparently unsuccessful effort to end the government shutdown standoff comes the quite remarkable story of Rudy Giuliani’s interview with the New York Times in which Giuliani:

  • admitted that conversations about building a Trump Tower in Moscow continued throughout the 2016 campaign up until the November election;
  • quoted Mr. Trump as saying of the Moscow project, “It was all going from the day I announced to the day I won”;
  • claimed that the whole project was run by Cohen with little input by Trump, quoting Trump as saying, “We talked about it, I knew [Cohen] was running with it, I honestly didn’t pay much attention to it”;
  • “acknowledged that Mr. Trump might have talked to Mr. Cohen before his congressional testimony [in which Cohen falsely claimed that the Trump Tower Moscow negotiations ended in January 2016], but … said his client had never instructed Mr. Cohen to lie.”

From a lawyer’s perspective, perhaps the most amazing part of this interview is the fact that Giuliani just created evidence against his own client, admissible in any court and certainly in the more procedurally relaxed setting of a congressional investigative hearing or an impeachment proceeding.

Non-lawyers probably think that whatever Giuliani says to the press presents no risk to Trump because of the attorney-client privilege. But that’s quite wrong. Attorney-client privilege covers only statements made by the client to the lawyer in confidence for the purpose of obtaining legal advice. What a client said to his lawyer is privileged as long as both lawyer and client keep it secret. Once either of them discloses a client statement, it is no longer privileged. Indeed, even unauthorized or inadvertent lawyer disclosures of client statements sometimes waive the privilege.

Certainly once the lawyer assumes the role of public spokesman for the client and makes public assertions of fact in that role, the lawyer becomes a “speaking agent” of the client and the lawyer’s statements are admissible against the client. Federal Rules of Evidence 801(d)(2)C). This basic rule doesn’t change where the fact publicly asserted by the lawyer is the content of what his client said in an otherwise-private conversation.

Hence, Giuliani just became a witness to the duration of the Trump Tower Moscow project and to Trump’s knowledge of that duration. He may also have become a witness to what Trump told him about any conversation with Michael Cohen before Cohen’s congressional testimony.

Why it could matter

It has been reported that, right up to election night, Trump did not expect (or maybe even want) to win the election. He admits that he was keeping his options open. As he put it, “There was a good chance that I wouldn’t have won [the election], in which case I would have gone back into the business. And why should I lose lots of opportunities?” But both during and after the campaign he repeatedly insisted that he had no deals in Russia. In January 2017, after his election, he explicitly stated that, “I have no dealings with Russia, I have no deals in Russia, I have no deals that could happen in Russia because we stayed away.”

Of course, as we now know, he and the Trump Organization had not “stayed away” from Russia. Far from it. Nonetheless, once the existence of Moscow tower negotiations became public, Trump minimized his interest and the duration of negotiations. As recently as two months ago, in a statement on the South Lawn of the White House, he claimed that they did not continue past “the early part of ’16.” Placing that end date on the project allowed him to dismiss any connection between his financial self-interest in 2016 and his otherwise odd chummy attitude to Putin and promotion of pro-Russian policy throughout the election season. 

Michael Cohen tried to back Trump’s story by telling Congress that the Trump Tower Moscow project ended in January 2016. Cohen has admitted this was a lie and that the project was pursued  actively through at least June 2016. But Giuliani has now established that the project continued still longer. More importantly, he has provided independent proof that Trump knew about its duration and repeatedly lied about it. Proof of Trump’s knowledge no longer depends on Michael Cohen’s unsupported assertions or even on inferences from whatever Trump Organization documents Mueller may have. Instead, it can be established by Giuliani’s testimony about what Trump himself admitted.

Proof of the duration of the Moscow project and Trump’s knowledge of it matters because it solidifies at least one incentive for Trump’s peculiar affinity for Russia during the campaign. More importantly, it proves beyond any shadow of a doubt that, after the election, the Kremlin had leverage on Trump.

Once Trump won, the Kremlin knew that Trump had been actively trying to do a deal in Moscow, while simultaneously and repeatedly publicly denying it. That gave Putin leverage. He could expose the new president as a liar who had been trying to curry financial favor with a traditional enemy state. There are multiple other Russian pressure points that remain unproven – mostly the possibility of ongoing financial relations with Putin-backed Russian oligarchs – but here we have a concrete indisputable fact, corroborated by both Trump’s former and current attorney.

And this concrete indisputable fact lends credence to the still-astonishing possibility that the President of the United States is compromised by a hostile foreign power.

Giuliani’s Times interview does one other thing — it may help rehabilitate, at least somewhat, the BuzzFeed report that Trump told Cohen to lie before Congress. Giuliani denies that Trump told Cohen to lie, but concedes that Trump “might have” talked to Cohen before Cohen’s congressional testimony. That statement has two effects.

From a common sense perspective, Giuliani’s “might have” is as good as an admission that such a conversation occurred. Admission of its occurrence would help Cohen’s credibility immensely if he were to claim that Trump made damaging statements. After all, the mere occurrence of such a conversation — the President having a private talk with a potential witness against him –would be breathtakingly inappropriate. One obvious purpose of such a conversation would be to influence the upcoming testimony. Although speculation is dangerous, Giuliani’s de facto admission suggests that Robert Mueller’s repudiation of BuzzFeed‘s reporting may stem from the wording of the Buzzfeed story, rather than its essence. For example, Cohen may be prepared to say, not that Trump unequivocally told him to lie, but that Trump hinted at how he would prefer the testimony to run. Likewise, Mueller may have objected to the language of the BuzzFeed story insofar as it over-promised, suggesting that the special prosecutor had documentary corroboration of an express presidential direction to commit perjury.

From a legal point of view, Giuliani’s choice to discuss with the press what his client said about the occurrence of a Trump-Cohen conversation and its contents may constitute a waiver of attorney-client privilege on that topic. It certainly provides a legitimate basis upon which a grand jury or a congressional committee could subpoena Mr. Giuliani and seek to compel his testimony about what the President told him about any pre-testimony talk with Cohen.

Things grow curiouser and curiouser.