Week 109: February 17-23

Russia Investigation

The 60 Minutes interview with McCabe aired Sunday night. He describes that Rosenstein discussed the possibility of the cabinet evoking the 25th Amendment, and Rosenstein wearing a wire to collect evidence from Trump. Rosenstein released a statement that did not deny these things were discussed. As Lawfare puts it: “If Rosenstein and the Justice Department do not want people to believe McCabe’s account, they will need to start by denying it clearly. Evidently doing so presents a problem for them…. as the picture comes into tighter focus, the image that emerges is of a chaotic period, one in which everyone was under intense stress and Rosenstein in particular was handling the stress badly and making erratic judgments.”

Here is the full transcript of the interview, which includes this key quote: “It’s many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?”

In an interview for The Atlantic McCabe hits the same point he has made in all his interviews this week when asked if Trump is compromised by the Russians: “it certainly could be. I don’t know that for a fact. That was the reason we initiated the [counterintelligence] investigation. We were concerned, and we felt like we had credible, articulable facts to indicate that a threat to national security may exist. And, in fact, that a crime may have been committed: obstruction of justice. My own view of it is that those two things, the obstruction and the national-security threat, are inextricable. They are two sides of the same coin.” As Wittes pointed out a few weeks ago on Lawfare, some in the FBI believe(d) that Trump obstructed justice precisely becasue he is or has worked at the behest of the Russians.

Here’s what McCabe predicts about Mueller: “He’ll explain his findings in the report, and then if he’s called upon to testify about it, he’ll certainly do that. But he is always the guy who will say less than more. He’ll seek less attention than more attention. He is perfectly happy to do his job and to do it fully and completely. And then, when it’s all said and done, he’ll lock the door behind him and go home.”

Rosenstein announced he will depart the DOJ in mid-March. And Jack Goldsmith writes in a retrospective on Whitaker’s tenure that “power and resilience of Justice Department norms of independence” held since Whitaker did nothing to interfere with any investigations on Trump’s behalf, so far as we know.

The New York Times published an investigative report on the history of Trump’s attacks against DOJ investigations of him going back to January 2017, a “sustained, more secretive assault by Mr. Trump on the machinery of federal law enforcement.” The goal of the investigation is that “fusing together the strands reveals an extraordinary story of a president who has attacked the law enforcement apparatus of his own government like no other president in history, and who has turned the effort into an obsession. Some tidbits:

  • Trump asked Whitaker about whether or not a rump ally in SDNY could be put in charge of the Cohen/hush money investigation.
  • Trump appears to have believed that firing Flynn would have ended the Russia investigation: “This Russia thing is all over now because I fired Flynn.”
  • But it also appears that he did not fire Flynn, that Flynn resigned, and Trump adopted Paul Ryan’s statement that Trump asked him to resign, even though this appears not to be the case.
  • “One of Mr. Trump’s lawyers also reached out that summer to the lawyers for two of his former aides — Paul Manafort and Mr. Flynn — to discuss possible pardons. The discussions raised questions about whether the president was willing to offer pardons to influence their decisions about whether to plead guilty and cooperate in the Mueller investigation.”
  • After the Cohen raid: “Since then, Mr. Trump has asked his advisers if Mr. Rosenstein was deliberately misleading him to keep him calm.”

News began to break mid week that Mueller was preparing to release his report by next week. According to the Washington Post, Mueller closing his shop does not necessarily mean DOJ prosecutors will stop pursuing their cases that began during the Russia investigation: “According to people familiar with the special counsel’s work, Mueller has envisioned it as an investigative assignment, not necessarily a prosecutorial one, and for that reason does not plan to keep the office running to see to the end all of the indictments it has filed.”

CNN, which also reports that Mueller may be closing shop, reports a similar idea: “Even with these signs of a wrap up, the DC US Attorney’s office has stepped in to work on cases that may continue longer than Mueller is the special counsel. That office has joined onto some of the Mueller’s team’s casework, including the cases against Stone, a Russian social media propaganda conspiracy, and in an ongoing foreign government-owned company’s fight against a grand jury subpoena…. visiting them more often than ever before are the prosecutors from the DC US Attorney’s Office and others in the Justice Department who’ve worked on the Mueller cases.”

Wheeler speculates that Mueller may have chosen this moment to wrap up his investigation because Whitaker is now gone, Rosenstein is back in charge because Barr has not completed the ethics review process: “Mueller is choosing this timing (and choosing not to wait for the appeals to be done). Whatever reason dictates this timing, by doing it in this window, Mueller can ensure the legitimacy of what happens, both legally (because Barr will be in place) and politically (because it will be clear Rosenstein presided over it). So whatever comes next week, people on both sides should accept that it is the outcome of the investigation that Mueller deemed appropriate.”

Neal Katyal, who helped write the Special Counsel regulations, makes a similar point: “A concise Mueller report might act as a “road map” to investigation for the Democratic House of Representatives — and it might also lead to further criminal investigation by other prosecutors. A short Mueller report would mark the end of the beginning, not the beginning of the end. …now the investigation resembles the architecture of the internet, with many different nodes, and some of those nodes possess potentially unlimited jurisdiction. Their powers and scope go well beyond Mr. Mueller’s circumscribed mandate; they go to Mr. Trump’s judgment and whether he lied to the American people. They also include law enforcement investigations having nothing to do with Russia, such as whether the president directed the commission of serious campaign finance crimes, as federal prosecutors in the Southern District of New York have already stated in filings.”

Then Friday the AP reported they have a source–“a senior department official”–telling them the report will not be released next week. and here is the New York Time’s take in the question: “The new attorney general, William P. Barr, is preparing for the special counsel to deliver a report in coming weeks on the results of the investigation into Russian interference in the 2016 election, two officials briefed on the Justice Department’s preparations said.”

Mueller submitted the final sentencing memo before Manafort is to be sentenced next week. It is about 850 pages. There is a lot in it about how much of a crook Manafort is, but no big details about his dealings with Russia during the election. Wheeler believes that means: “he’s certain he will be able to provide a report in some public form, presumably in the same kind of detail he has presented in all his other statements. He doesn’t need to avail himself of this opportunity to do so…. I believe it suggests that Mueller plans to and believes he can present the details about that August 2 meeting somewhere else.”

In Other News

By Monday, 16 states joined a lawsuit against Trump’s emergency declaration.

From the New York Times: “Top Trump administration officials have pushed to build nuclear power plants throughout Saudi Arabia over the vigorous objections of White House lawyers who question the legality of the plan and the ethics of a venture that could enrich Trump allies, according to a new report by House Democrats released on Tuesday.

The Magnitsky act requires the president to inform Congress of it’s view on whether Kashoghi was murdered. The Trump Administration has refused to do this, and Politico reports that the new chairman of the Senate Foreign Relations Committee is covering for them, “even giving potentially misleading information” to other Republicans on the committee in order to quell dissent.

Trump’s Syria policy shifted a few more times this week, with the administration finally announcing that 200 then 400 troops will remain. This after NATO allies said they would not remain in Syria if US troops pulled out entirely: “The Pentagon was not expecting the decision so quickly and had anticipated delivering a final pitch to the president in a few weeks. Officials described a surreal atmosphere at the Pentagon among military leaders who work on Syria policy and no longer know what to expect from one day to the next.”

Immigration News

Newly released data shows that children and parents are still being separated at the border: “nearly 250 parents have been separated from their children since June 26. Meanwhile, a report released Thursday from the advocacy group Texas Civil Rights Project suggests that those separations might be dwarfed by the number of other relatives — siblings, aunts and uncles, grandparents, cousins — who bring a child to the US without her parents and are then separated from her by immigration agents.”

Trump’s Job Approval: 42.7%

(Trump has regained all the approval points he lost since December 9th, before the shutdown.)