Tag Archives: Robert Mueller

The Letter from Trump’s Lawyers to Mueller Refutes Itself

04 Monday Jun 2018

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By Frank Bowman

The New York Times has published a lengthy letter dated January 29, 2018, from John Dowd, then head of Trump’s legal team, to Special Counsel Robert Mueller contending that Trump could successfully assert executive privilege and refuse to testify, even if subpoenaed.

The Dowd letter doesn’t quite say that Trump will invoke executive privilege.  It merely argues that he would have solid grounds for doing so and thus, by implication, warns the special counsel not to put the question to the test.  Remarkably, the letter is so poorly executed that it ends up demonstrating exactly why such a subpoena is enforceable under existing law.

Courts have recognized that presidents need a zone of confidentiality within which they can receive and discuss information and recommendations from their advisers.  To protect that zone, several privileges (often lumped together under the term “executive privilege”) have emerged.  One of these covers communications to the president  from his advisers and also communications among the advisers about matters on which they will advise the president.

Unlike many other privileges with which the public is familiar, such as the Fifth Amendment privilege against self-incrimination, the presidential communications privilege is not absolute.  If a criminal suspect claims his right against self-incrimination, he cannot be compelled to talk (at least without granting him immunity from prosecution), no matter how useful his testimony might be.  By contrast, even if a president can show that subpoenaed materials are covered by the presidential communications privilege, the court will order them produced anyway if the prosecution (or a civil litigant) can make a sufficient showing of relevance and need.

The Espy case, on which the Dowd letter places great reliance, sets out the standard for relevance and need:

[I]n order to overcome a claim of presidential privilege raised against a grand jury subpoena, it is necessary to specifically demonstrate why it is likely that evidence contained in presidential communications is important to the ongoing grand jury investigation and why this evidence is not available from another source.

The Dowd letter makes three interlocking claims: (a) implicitly that Trump’s own testimony is covered by the presidential communications privilege; (b) that Mr. Trump did not, indeed legally cannot, commit obstruction of justice and therefore the grand jury has no legitimate need for his testimony; and (c) that, even if there were a need, the White House has already provided so much information from sources other than the president’s own mouth that his testimony would be superfluous.

As to the scope of the privilege, it’s surely correct that, to the extent advice to the president is covered, the president’s memory of that advice and his mental processes in deciding how to respond to the advice should be covered, as well.  The catch, however, is that not all advice and not all presidential decisions fall within the privilege.  It exists in order to maintain the confidentiality necessary to sound exercise of the president’s legitimate powers.  However, if a president does illegitimate things, that is things he has no power to do or things that violate the criminal law, then the fact that he is the president does not immunize him or his advisers from disclosure of either the advice or his personal rationale for choosing to do wrong.  Richard Nixon was legally required comply with a subpoena seeking White House tapes that recorded him receiving advice and giving orders that amounted to criminal conduct during Watergate.

Dowd’s argument that there was no obstruction and therefore no need for a Trump interview has two threads.  The first, and the one that has drawn immediate outraged responses, is the by-now familiar claim by Trump’s acolytes that a president cannot commit obstruction of justice by firing or giving instructions to executive branch law enforcement officials.  The argument takes the noncontroversial truth that a president has wide Article II powers to hire and fire executive branch subordinates and considerable discretionary authority to supervise their work and distorts it into an absurd absolute.  This extreme application of the so-called unitary executive theory has been given thorough scholarly debunkings elsewhere.

But one scarcely needs to be a scholar to discern its absurdity.  If a president can never commit a crime by ordering his subordinates not to investigate or prosecute, regardless of how self-serving or corrupt the president’s motive, then a president can effectively exempt both himself and anyone he favors from the constraints of law.  Anglo-American jurisprudence abandoned that idea — what the English called the royal prerogative — four centuries ago during the reign of King Charles I.  The Framers did not revive this relic of absolutist monarchies in the U.S. constitution.

The second prong of Dowd’s obstruction argument is less shockingly authoritarian, but ultimately no less wrong.  Essentially, he goes through various incidents possibly indicative of obstruction — Trump’s alleged remark to James Comey about letting General Flynn go, the Comey firing, and others — and tries to show that no obstruction occurred and therefore there can be no need for Trump to testify about them.  The argument has two gaping holes.

The first was noted in the original Times report: incredibly, Dowd based his entire exposition on the wrong obstruction statute.

There are a number of federal obstruction of justice statutes.  The three most important are 18 U.S.C. Sections 1503, 1505, and 1512.  The Dowd letter says, “The only statute that could even theoretically be implicated on the alleged facts is 18 U.S.C. § 1505….”  This is not only wrong, but laughably wrong.  Sections 1503 and 1512 between them cover proceedings before judges, grand juries, Congress, and executive agencies, while 1505 is directed primarily at obstruction of proceedings before federal regulatory agencies.  No prosecutor faced with allegations of obstruction of a federal grand jury investigation would ever use section 1505.

Not only do sections 1503 and 1512 fit the facts of this case far better than 1505, but Section 1512 is phrased to eliminate the technical issues raised in the Dowd letter, such as whether there was a “pending proceeding” at the time of Trump’s allegedly obstructive behavior and, if so, whether he was aware of its pendency.  Section 1512(f) specifically provides that in 1512 prosecutions “an official proceeding need not be pending or about to be instituted at the time of the offense.” In short, under Section 1512(c), all the government must prove is that the defendant corruptly attempted to obstruct, influence, or impede some official proceeding (a term that includes grand jury investigations) that is either under way or that might reasonably be anticipated.

Dowd’s choice to claim 1505 as the only applicable obstruction statute is inexplicable. It can only have drawn incredulity mixed with contempt from Mueller’s team.  And it casts everything else in the Dowd letter into doubt.

The remainder of the letter fulfills this low promise.  The primary obstacle to proving that Mr. Trump violated 18 U.S.C. 1512 is not proving that he has acted in ways that tend to “obstruct, influence, or impede” investigation of his affairs.  He plainly has.  His Twitter feed is now devoted obsessively to that project. (Which may be why the Dowd letter relies so heavily on the specious claim that a president can never obstruct justice.)  The real legal challenge for a prosecutor is proving that the president acted “corruptly,” which is to say with an improper purpose.  In other words, the one issue on which Mueller is in the most need of evidence is Trump’s state of mind.

Yet most of the factual discussion in the Dowd letter amounts to arguments that Trump acted with proper, rather than corrupt motives.  Sometimes the letter argues that the evidence already in Mueller’s hands should be read as demonstrating that Trump’s motives were pure. And sometimes, particularly with respect to former FBI Director Comey’s allegations about Trump’s private statements to him, the letter just denies that any such statements were made.

But of course all this rigamarole really demonstrates is how crucial Trump’s testimony is to the obstruction inquiry.  Only two people know what Trump said to Comey.  Mueller has Comey’s evidence.  What’s missing is Trump’s.  Even if other evidence on the point is equivocal, one person knows for certain whether Trump’s motives in impeding the Russia investigation are legitimate or corrupt.  Trump himself.

In short, the Dowd letter actually achieves exactly the reverse of its stated purpose.  It shows precisely why Mueller needs Trump’s testimony and why no other kind of evidence is a reasonable substitute.  And it therefore makes the best possible case for enforcing a subpoena to the president.

 

 

Must Trump comply with a subpoena?

06 Sunday May 2018

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By Frank Bowman

Rudolph Giuliani, the newest in the revolving cast of Mr. Trump’s lawyers, has made a number of striking legal claims in his short tenure.  His latest is that Mr. Trump is not obliged to comply with a subpoena to testify from a court or grand jury.

Giuliani is assuredly wrong.  But any attempt to subpoena Mr. Trump would raise a number of complicated issues.

First, Giuliani is right that Mr. Trump, like any other person, has a right under the Fifth Amendment to decline to answer questions that may tend to incriminate him.  However, that right does not allow Trump or anyone else to simply refuse to appear in a court or grand jury room if properly subpoenaed.  Rather, a person subject to subpoena must appear at the date and time specified in the subpoena and assert the privilege to particular questions.

If a witness is technically a “target” of a grand jury investigation and provides the prosecution with a written statement of intention to assert the Fifth Amendment, DOJ policy is that such a witness “ordinarily should be excused from testifying.”  U.S. Attorney’s Manual, 9-11.154 . But that would be a matter of discretion, not law.  And even in that case, unless the witness is expressing an intention to assert the Fifth as to all questions, he would ordinarily be obliged to appear and answer questions that cannot be reasonably viewed as seeking self-incriminatory information.

In the case of a president, even one who is not formally a “target,” the prosecutor might accommodate the president’s expressed intention not to answer questions on particular topics that seem plainly incriminatory by agreeing in advance not to ask them.  But that, too, would be a matter of discretion rather than law.

In any case, it seems somewhat unlikely that even this unconventional president would want to be seen as formally “taking the Fifth” to avoid testifying.

Second, there are issues about which Mr. Trump might claim some form of “executive privilege.”  Broadly speaking, executive privilege is the claim that a president can withhold information from congress, the courts, or the public for reasons relating to the proper functioning of the presidential office.  Legitimate claims of executive privilege are generally related to national security or protecting the privacy of White House deliberations for reasons promoting the public interest.

A great many questions Mueller is said to be interested in asking cannot by any reasonable stretch of the imagination fall within the executive privilege doctrine. Virtually all the questions on the list published by the New York Times that relate to Russia seem far outside any reasonable executive privilege claim.  Leaving all other considerations aside, almost all of them relate to events that occurred before Mr. Trump took office.

Some questions Mueller might ask would probably draw objections on executive privilege grounds.  For example, questions about conversations between Mr. Trump and White House advisers about whether to fire former FBI Director James Comey would probably draw such objections on the theory that executive branch personnel decisions should ordinarily remain private.  Mr. Mueller’s team might respond that executive privilege, to the extent it exists, must yield when the inquiry is into possible criminal misuse of the presidential power being discussed.  The analogy would be to the crime-fraud exception to the attorney-client and marital privileges, pursuant to which otherwise confidential communications must be disclosed if they were in furtherance of crime.

The Supreme Court held in U.S. v. Nixon that claims of executive privilege must yield in the face of investigation of criminal wrongdoing by the president or his aides. Nonetheless, Mueller’s people would have to make more than a bare claim of investigative interest to succeed in compelling testimony from this or any president about internal deliberations on policy or personnel decisions.

Finally, one argument that has been floated in the wake of Giuliani’s comments is that the president need not comply with a subpoena because he is the head of the executive branch and thus the ultimate boss of the prosecutors running the Mueller investigation.  This is frivolous. A subpoena is not a request by a prosecutor.  It is an order issued by authority of the court (if a trial subpoena) or of the court and the grand jury (if a grand jury subpoena).  It is a command by the judicial branch.  And it is not one that a president is entitled to disobey.

My personal bet is that Mr. Trump will not agree to testify voluntarily, and that Mueller’s team will subpoena him as a last resort.  Should that come to pass, it will get interesting very fast.

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 “Take Care Clause” Does Not Permit Trump to Fire Robert Mueller Directly

16 Monday Apr 2018

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By Frank Bowman

In last Friday’s New York Times, John Yoo and Sakrishna Prakash contend that President Trump has the power to fire special counsel Robert Mueller “directly,” meaning without complying with the Department of Justice regulation mandating that a special counsel can be fired “only by the personal action of the Attorney General” (or if the AG is recused, his designee) and then only for “good cause,” such as “misconduct, dereliction of duty, incapacity, [or] conflict of interest.”  In plain terms, they are saying that the president can simply ignore the Justice Department’s chain of command and its regulations and fire Mueller for any reason or, as they insist, “no reason at all.”

It is important to understand how radical this argument is. Most of the commentary about how Mr. Trump could fire Mr. Mueller accepts the premise that Justice Department regulations specifying how and by whom a special counsel can be removed are laws, binding both officers of the Justice Department and the president himself.  Hence, the endless discussions of whether Trump will embark on a “Saturday Night Massacre” round of firings in search of a senior Justice Department official willing to behead Mueller.

To non-lawyers, it might seem odd that an internal departmental rule called a “regulation” is treated as equivalent to a “law.”  But in our legal system, departmental regulations promulgated using procedures prescribed in the “Administrative Procedure Act” are “law.” And they every bit as binding on presidents or anyone else as a congressionally enacted statute or a decision of the Supreme Court.  The Justice Department’s regulations on the special counsel are precisely this kind of regulatory law.

Yoo and Prakash try to evade this elementary reality of modern American jurisprudence by referring to Article II, Section 3, of the Constitution, which requires a president to “take care that the laws be faithfully executed.”  They say this constitutional language means that the president has absolute control over the federal law enforcement function and thus can direct that legal actions be terminated and federal law enforcement officers fired whenever it suits him.  According to them, the “take care” clause means that a president cannot be bound by any regulation, or indeed any statute that Congress might pass, purporting to limit his power to dismiss subordinates in the executive branch.

They’re wrong.  Though they focus here on the narrow issue of the tenure of a special counsel, their position is merely a local manifestation of the “unitary executive” theory occasionally fashionable on the fringes of the intellectual far right.  It remains a fringe view because, if accepted, it would strike a crippling blow to the rule of law in this country.

Consider its effect in the law enforcement setting.  If the Take Care Clause effectively overrides Justice Department regulations on the special counsel, it also overrides all statutory and regulatory rules purporting to safeguard federal employees from arbitrary dismissal. In that case, the president may not only fire a prominent special appointee like Robert Mueller, without process and without cause, but also every career prosecutor, FBI agent, analyst, and secretary who worked on a case that displeased the president.

A criminal justice apparatus cowed by the chief executive and wielded only according to his unchecked whims is the first step on the road to autocracy.

Moreover, the extremist view propounded by Yoo and Prakash resonates far beyond criminal justice.  After all, the president’s obligation to ensure faithful execution of “the laws” is not limited to criminal statutes.  It extends to all of the myriad laws – constitutional, statutory, and regulatory – that govern all aspects of our national existence.  A president is every bit as obliged to ensure faithful execution of laws governing revenue collection, fair housing, collective bargaining, workplace safety, environmental protection, and the distribution of Medicare and Social Security benefits as he is to ensure proper administration of laws against fraud and official corruption.

Thus, if Yoo and Prakash are right, the president cannot constitutionally be prevented from firing any executive branch employee in any department whenever he feels that such an employee isn’t executing the law as the president would prefer it executed.  For them, legal protections against arbitrary or politically motivated dismissal can be of no effect so long as it is the president who orders a firing. In short, their reading of the constitution would effectively destroy the federal civil service system which, since 1883, has protected the country from the corruption endemic whenever a president or ruling party has unchecked power to dismiss federal employees who will not obey directions from political superiors.

No court will, or should, accept a reading of the constitution so contrary to long-settled legal norms and so destructive of the professionalism and political neutrality of federal civil servants.

It has been reported that the White House has sought advice on whether Robert Mueller might be directly dismissed, and that it has received some scholarly support for the idea.  One hopes that Mr. Trump has not relied on ideas like those of Professors Yoo and Prakash, which combine the defects of being constitutionally unsound, unlikely to find acceptance in the courts, and deeply subversive of the rule of law.

It’s Too Late for a New “Saturday Night Massacre”

13 Friday Apr 2018

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By Frank Bowman

In the hours following Mr. Trump’s infuriated reaction to the FBI’s search of his lawyer’s office, the media crackled with speculation that the president would fire either special counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, or Attorney General Jeff Sessions, or perhaps all three together.  It hasn’t happened yet. And while nothing is certain with our increasingly erratic chief executive, if he retains both a shred of rationality and advisors with some knowledge of the federal criminal system and the capacity to make their boss face reality, there will be no firings. And if there are, they won’t stop the hounds baying at Mr. Trump’s heels.

Mr. Trump wants to fire those he perceives to be his tormenters in order to make the torment – the investigations they supervise – stop. But the simple truth is that Justice Department investigations involving Mr. Trump, his campaign, his family, and his businesses have now proceeded so far that, while they could be hindered or delayed, they cannot be stopped.  That Mr. Trump seems to think that a few firings would achieve that end only shows how little he understands about the federal criminal justice system and the professionals who serve it.

Trump’s most well-known problem, of course, is that, despite his press secretary’s confident assertions to the contrary, he cannot fire Mueller directly.  Under Justice Department regulations, a special counsel can be “removed from office only by the personal action of the Attorney General,” or where the Attorney General is recused, by his deputy, Rod Rosenstein. So to get to Mueller, Trump would have to fire Rosenstein and then put someone in his place willing to axe Mueller.

But the Senate would not confirm an obvious hatchetman as permanent replacement to Rosenstein. So Trump would have to begin working his way down the DOJ line of succession, ordering Mueller’s removal, and then firing anyone who refused, until he found someone willing to be this generation’s Robert Bork (who as Solicitor General complied with President Nixon’s order to fire Watergate Special Prosecutor Archibald Cox).  It’s possible that he could find someone pliable enough to at least consider firing Mueller.

But Trump’s problem is that firing Mueller cannot, by itself, stop the investigations run by Mueller’s office. Mueller has already filed multiple cases. Some of them, like Paul Manafort’s, remain to be tried.  Mueller’s office also employs or supervises dozens of prosecutors and investigators who are actively investigating other crimes and defendants.  He has collected thousands of documents and hundreds of witness interviews and presented reams of grand jury testimony. To stop all that — and to bury the results so they no longer threaten Mr. Trump – would require Trump’s chosen executioner not merely to fire Mueller, but to order the immediate cessation of all the investigative activity being carried on by Mueller’s office and the immediate destruction or sealing of all the information they had gathered.

That won’t happen.  For two reasons.

First, it is extremely doubtful that Mueller’s prosecutors and agents would obey an order shutting and sealing their investigations, particularly if given for no better reason than that the President (who is a subject of their inquiry) said so.  There is no legal basis for such an order.  More to the point, an order to both close and suppress the results of Mueller’s investigations would itself be a plain case of obstruction of justice under either 18 U.S.C. 1503 or 1512.

Second, no rational Rosenstein replacement, no matter how deeply in thrall to Mr. Trump, would order Mueller’s work both stopped and sealed.  Any person who gave such an order would, at one stroke, commit career suicide and become a criminal target himself.

From Trump’s perspective, the rosiest scenario after Mueller’s firing would be: (a) appointment of a replacement for Mueller somewhat more tractable to the president’s wishes, or (b) a dispersal of Mueller’s staff and a transfer of their cases and investigations to regular U.S. Attorney’s Offices who would carry on the work.  Either might slow things down, but the investigations would still be run by career prosecutors and agents who would not simply walk away.

Moreover, the part of the investigation that Trump now apparently most fears – the result of the search through his lawyer’s office – is already outside the special counsel’s bailiwick and being pursued by the U.S. Attorney’s Office for the Southern District of New York.   Neither the New York prosecutors nor the FBI itself, which has a large measure of independent investigative authority, will stop so long as there are grounds to believe federal crimes may have been committed.

In short, while a DOJ firing spree might provide Mr. Trump a moment of satisfying catharsis, it will not resolve his legal problems.

At this critical juncture in his life, Donald Trump confronts a phenomenon with which he has never before had to reckon – the principled dedication of the men and women of the Department of Justice.  The “deep state,” if you like. Though individually subject to all the flaws of any professional assemblage, their institutional allegiance is to no man and no party, but to the vigorous and impartial enforcement of the law. If Mr. Trump has, as he says, done nothing wrong, he has nothing to fear.  But it’s now too late to prevent the Justice Department from following the evidence wherever it may lead.

 

The FBI Raid on Trump’s Lawyer: Not a “Witchhunt”

10 Tuesday Apr 2018

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By Frank Bowman

The New York Times reported this afternoon that FBI agents executed a search warrant on the Manhattan office of Michael Cohen, who has long served as Donald Trump’s lawyer and has often been referred to as his “fixer.”  Mr. Cohen has assumed particular prominence lately because he apparently arranged the pre-election $130,000 payment to adult film actress Stormy Daniels designed to keep her quiet about an alleged affair with Mr. Trump.

Mr. Trump immediately labeled the raid a “disgrace” and a “witch hunt.”  

We don’t know precisely what the FBI was looking for and what it might have found.  No doubt that will become clearer with time. What is clear is that federal searches of lawyer’s offices are extremely unusual and, under Justice Department rules, require extraordinary justification and multiple layers of internal approvals. And then the warrant application must be approved by a federal judge.

Moreover, the Cohen warrant was sought, not by Robert Mueller’s office, but by the U.S. Attorney for the Southern District of New York, acting on a referral from Mueller.  In short, before the application even reached the judge who signed it, it garnered the approval of Special Counsel Mueller and U.S. Attorney Geoffrey Berman (appointed by Mr. Trump).  Moreover, as I explain below, DOJ procedures for approving such a warrant would require the concurrence of Acting Assistant Attorney General for the Criminal Division John Cronan.  Any suggestion that this search was a frivolous fishing expedition by an uncontrolled special counsel — or, in Mr. Trump’s tirelessly repeated phrase, “a witch hunt” — simply won’t wash.

The Department of Justice is acutely conscious that communications between attorneys and their clients enjoy special status under the Sixth Amendment and the common law attorney-client privilege.  Except in rare circumstances, attorney-client communications may not be seized for use in investigations or introduced in court to prove a crime.  There are exceptions, such as when an attorney gives a client advice about how to commit a future crime, but judges are exceptionally protective of the attorney-client relationship and tend to construe such exceptions very narrowly.

Therefore, any law enforcement search of an attorney’s office will always be a ticklish business.  Even when a search is authorized by warrant, merely locating the material covered by the warrant will almost inevitably involve inspecting documents that contain attorney-client communications for clients other than the one who is the subject of the warrant.  And once the batch of material related to the client at issue is found, there are very likely to be some communications covered by the privilege commingled with material that has no attorney-client communications or communications that are unprivileged.

The likelihood of encountering commingled privileged and unprivileged material creates a special problem — if the searching agents see privileged matter and accidentally or purposely convey such material to the agents and prosecutors who ultimately charge and prosecute the case, the privileged matter may “taint” the rest of the evidence and could require suppression of some evidence or even dismissal of the entire prosecution.

For all these reasons and more, the Justice Department has special detailed procedures for authorizing and conducting attorney searches.  Before a warrant can even be presented to a federal judge for approval, the following internal steps must be taken:

  1. The prosecutor contemplating an attorney warrant must consider whether the material sought can be obtained by any less intrusive means, such as a subpoena. U.S. Attorneys Manual 9-13.420(A).
  2. Any attorney search warrant must be approved by the U.S. Attorney in the district where the warrant is sought. U.S. Attorneys Manual 9-13.420(B).
  3. A prosecutor seeking an attorney warrant for material concerning representation of a client must also obtain prior approval of the Assistant Attorney General in charge of the Criminal Division in Washington, D.C., using a specific and highly detailed application form. U.S. Attorneys Manual 9-13.420(C).
  4. Because of the risk of taint, DOJ rules require that an attorney warrant application specify procedures for guarding against it.  DOJ rules state: “Procedures should be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search. … [I]n all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.”  U.S. Attorneys Manual 9-13.420(D).
  5. The anti-taint procedures will customarily involve a separate team of agents and lawyers charged with executing the search and reviewing the materials found in order to limit the material seized to matters that (a) are covered by the warrant, and (b) are not privileged.  Those agents and lawyers will be strictly barred from communicating to the main prosecutorial team any documents or information deemed privileged or outside the scope of the warrant.
  6. Often, the final privilege determination will be made by submitting material about which there is question to a judge or special master.

The procedural and logistical difficulties in seeking and executing a warrant for an attorney’s office have the practical effect of making such searches extraordinarily rare.  When permission to seek judicial approval of such a warrant is sought, you can be assured that the highest levels of the Justice Department have been satisfied on two critical points: First, the information sought is of very high importance to a case of genuine significance, and second, the evidence supporting issuance of the warrant is very solid.

Moreover, judges review an application to search a lawyer’s office with infinitely more care than a warrant for virtually any other location.

These general observations are triply valid in the case of Mr. Cohen, the president’s personal lawyer.

We can’t yet know what the FBI was searching for or what they found.  But we can be absolutely sure the Department of Justice had darn good reasons to look for it.

 

 

More on Trump’s status in the Mueller investigation

08 Sunday Apr 2018

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By Frank Bowman

After my last post on the implications of the Washington Post report that Robert Mueller’s team had told Mr. Trump’s lawyers that he was not a “target,” the good folks at the Kansas City Star asked me to explain the situation a little further.  I was happy to oblige.  The result appeared in this morning’s paper (link here).  I reproduce it below:

Trump shouldn’t relax to hear he isn’t a ‘target’ in Mueller investigation (Kansas City Star, April 8, 2018)

The Washington Post reported this week that Special Counsel Robert Mueller’s team may have told Mr. Trump’s representatives that, although Trump remains under investigation, he is not a “target” of the investigation. The same sources said that Mueller wants to interview Trump as a last step before writing a “report” to Deputy Attorney General Rod Rosenstein. 

If either or both of these things are true, what do they mean?

First, if Trump is still under investigation, he is what the Department of Justice calls a “subject.” Mr. Trump was reportedly relieved by this status report.  He probably shouldn’t be.  If Trump is a “subject,” Mueller has not exonerated him from criminal liability. Indeed, the “subject” designation suggests Mueller has found enough evidence of Trump’s possible involvement in crime that he thinks it’s worthwhile to continue to investigate Trump.

Second, the “not-a-target” designation doesn’t convey much about Mueller’s current assessment of the evidence against Trump. DOJ rules define a “target” as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”  Trump’s reported relief probably stems from focus on the first half of the “target” definition.  Perhaps he thinks that not being a target means that Mueller doesn’t have “substantial evidence” of crime.

But that ain’t necessarily so. The Department of Justice has long taken the position that a federal prosecutor (like Mueller) may not indict a sitting president – even if there is plenty of evidence that the president committed a crime. There are many reasons to question the correctness of DOJ’s policy, but Mueller is bound by it.  Therefore, if Mueller really said Trump is not a “target,” all he may be saying is that, while there is substantial evidence linking Trump to crimes, the president cannot be a “putative defendant” because DOJ policy bars indicting him.  

Third, in any case, the real danger to Trump is not indictment, but impeachment (or at least the politically debilitating trench warfare of a formal impeachment investigation). That’s where a Mueller report comes in.

If Mueller were to write a report largely exonerating Trump, the administration would surely want to release it publicly.  On the other hand, if Mueller finds criminality, or simply a plethora of unindictable, but arguably impeachable, conduct, the Trump administration would be quite desperate to keep it secret.  For the rest of us, the big question is – regardless of what Mueller concludes, will Congress and the public see his conclusions?

The answer is surprisingly complicated and uncertain. The DOJ norm is that the reasons behind a decision not to charge someone are not made public, particularly if describing the reasons would make the subject of the investigation look bad.  Former FBI Director James Comey broke this DOJ norm with his report to Congress on the Hillary Clinton email investigation.  And that was the ostensible reason for his firing.

DOJ regulations governing Special Counsel Mueller require him to make certain reports to his departmental superiors, and in certain circumstances to Congress.  But a report finding that a president committed crimes for which DOJ won’t indict him doesn’t fit automatically into special counsel regulations requiring or permitting disclosure.

The decision about whether to release a report critical of Trump, and to whom, would probably rest with Deputy Attorney General Rosenstein.  And the rules give him little guidance about how to use his discretion.

That leaves the possibility that Congress, having gotten wind of a Mueller report, could subpoena it.  That would probably work, but might be vigorously resisted by Trump’s people.

At this point, the most that can be said is this: If Mueller’s report is favorable to Trump, it will be released immediately, regardless of the technicalities.  If Mueller’s report alleges criminal or impeachable conduct, release will depend on the judgment of Rod Rosenstein or the courts’ willingness to enforce a congressional subpoena.

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

04 Wednesday Apr 2018

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By Frank Bowman

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

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

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

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

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

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

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

 

Mueller indicts some Russians … and the noose tightens

17 Saturday Feb 2018

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By Frank Bowman

Yesterday, Deputy Attorney General Rod Rosenstein announced that Robert Mueller’s team had obtained an indictment against thirteen Russian persons and three Russian firms charging them with a variety of crimes committed in the course of an integrated scheme by the Russian government to swing the 2016 presidential election to Mr. Trump.  I’m not going to discuss the details of the indictment here; they are well-covered elsewhere, including in the New York Times and Slate, and anyone who reads this blog will surely  have devoured the particulars.  For now, I’ll make only a couple of points:

  • This is an important development. It puts into the public realm the particulars of the long-reported conclusions of every U.S. intelligence agency that Russia meddled in the 2016 election on Trump’s behalf, and stamps those conclusions with the imprimatur of a federal grand jury.  Mr. Trump, who rarely lets facts constrain his private musings or public utterances, may keep doubting Russian interference.  But except in the more fever-haunted corners of the right-wing media, the fact of Russian meddling on Trump’s behalf now becomes impossible to deny.
  • Ardent Trump opponents will doubtless be disappointed that the indictment does not charge any affiliates of the Trump campaign with knowingly aiding Russians in their nefarious activities.  It does say that Trump campaign affiliates cooperated with Russians in various ways, but is careful to describe such persons as “unwitting individuals affiliated with the Trump campaign.” The key point here, as numerous commentators have observed, is that the particular activities specified in the indictment are of a sort that required concealing Russian involvement.
  • However, this indictment does not address the events most likely to have included knowing collusion with Russians by Trumpists, most notably the multiple efforts by high-level Trump campaign operatives, including Donald Trump, Jr., to obtain “dirt” on Hillary Clinton from Russians; Donald Trump Sr.’s public encouragement of Russian theft of Clinton e-mails; possible contacts between Trump operatives and Wikileaks (which in turn probably got dirt on Secretary Clinton from the Russians); etc.  And this indictment has nothing to say about the possibility that Russia may have secured compromising information about Mr. Trump, thus giving them the sort of leverage over him that would help explain their enthusiasm for his candidacy.
  • Accordingly, the claim by Trump spokesmen that this indictment clears Mr. Trump of “collusion” is nonsense.  All one can say is that this indictment does not address that issue.  Whether subsequent indictments will do so is an entirely different question.

The more intelligent among Mr. Trump’s defenders should be very worried by this indictment.  For these reasons:

  • By laying out in surgical detail a calculated foreign assault on American democracy, it shreds the notion that the Mueller investigation is a partisan “witch hunt.”  In light of the facts laid out in the indictment, the Trumpist effort to blame the whole investigation on a convoluted conspiracy between Democrats and Russians to manufacture the Christopher Steele dossier becomes facially absurd.  That’s not to say Trump allies won’t keep flogging Mr. Steele.  They surely will. But to anyone with even a hint of objectivity, the idea that the Mueller investigation is all about a “dodgy dossier” is now untenable.
  • The indictment makes plain that the Russians were not merely intervening against Hillary Clinton, but were working for Mr. Trump, uniquely among Republican candidates. Among the indictment’s nice details is the fact that the Russians campaign  disparaged not only Secretary Clinton, but also Ted Cruz and Marco Rubio.  This fact gives rise to the obvious question — why Trump?  There are two possible answers, neither of them happy for Trump fans.  Either the Russians simply thought of Trump as the chaos candidate, a man whose ascendance would disrupt American democracy (a sadly prescient notion), or in a more sinister vein, they really do have something “on” Trump in the sense of possessing information about either his personal or business affairs that would render him amenable to Russian pressure.
  • This indictment makes it materially harder for Mr. Trump to fire Mueller and stop his investigation.  To fire Mueller now would halt an investigation into a demonstrated national security threat, something all but the most degraded congressional Republicans would find hard to swallow. Moreover, by choosing to personally announce the Mueller indictment, Deputy AG Rosenstein signaled that the Justice Department as an institution is standing behind Mueller’s work.  Rosenstein is saying, as plainly as if he put up a sign, “To get to Mueller, you have to take me out first.” What’s more, I read this as not merely a personal declaration, but as Rosenstein throwing down the gauntlet on behalf of career federal prosecutors unwilling to be cowed by the bluster of a president under suspicion.  This doesn’t mean Trump won’t go on a firing spree anyway.  But I think this indictment makes that less probable and makes the political cost of such a spasm much higher.
  • Which leads me to the last, and perhaps most critical point. Had Mr. Trump fired Mueller last week, he could (and would) have tried to excuse it as stepping in to stop a frivolous politically-motivated fraud. With this indictment, the Mueller investigation has irrefutably become a matter of protecting national security.  Should Mr. Trump shut the whole thing down now, that alone would, in my judgment constitute an impeachable offense and one that would resonate across party lines.  It would be bad enough for a president to fire a special counsel to protect his personal or political interests.  That would be impeachable behavior, to be sure, but Trump’s apologists could try to justify the firing as mere self-protection against the corrupt activities of evil Democrats and the nefarious “Deep State.”  But for Mr. Trump to shut Mueller down now would be to abrogate, openly and unapologetically, the president’s basic responsibility to protect the country and constitutional democracy itself from foreign enemies.  Even if the degraded specimens who now represent the Republican Party on the House Judiciary Committee were unwilling to move against Trump in such a case, a Democrat-controlled House would view the matter differently.  And I suspect, or at least hope, that a good number of honest Republicans would agree.

No, the Grand Jury Can’t Proceed Without Mueller (or at least some federal prosecutor)

15 Thursday Feb 2018

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By Frank Bowman

As regular readers of this site are well aware, I deeply disapprove of Mr. Trump, his shameless enablers, and all their works.  And I’m entirely in favor of employing the legitimate tools of both law and politics to oppose Mr. Trump and to expose his criminal or impeachable conduct, if any.

But, at least for me, that doesn’t mean anything goes. Indeed, because the fundamental sin of Trumpism,  from which all its other evils flow, is disregard of legal rules and norms, Trump critics have a special responsibility not to bend the law or misrepresent what it permits.  This being so, I have too regularly found myself in the role of starchy maiden aunt prudishly reproving fellow Trump critics when they trot out yet another implausible interpretation of the law or the mechanics of criminal practice.

Earlier this week, I got after Professor Larry Tribe and co-authors for suggesting that Congressman Devin Nunes committed obstruction of justice by releasing the infamous memo.  And sadly, I’m back at it today.

In the February 14 edition of Politico, law professors David Yassky and Bennett Gershman contended that, even if special counsel Robert Mueller and all his team were fired, somehow the grand jury empanelled to investigate the Trump-Russia connection could continue the investigation, and even produce an indictment. For a half-a-hundred reasons, some legal and some practical, this could not happen.  In my own piece on Politico today, linked here, I explain why.

I hope, in future, to spend more time on what Trump opponents can do, and less on what they can’t.