How About Some Russia Facts?

The story told us nothing new about the Trump-Russia relationship, though it did confirm that senior officials in the FBI were in need of adult supervision. Think about the implications of this one for a minute: Senior FBI officials decided to investigate Mr. Trump because the President had fired their boss, which any President has the constitutional authority to do. This ought to be shocking—not least to civil libertarians and Democrats who profess to be horrified by the legacy of J. Edgar Hoover.

This reinforces the view that the Comey FBI was a force answering to no one but its own righteousness. The same unconstrained impulses led to its mistakes and excesses regarding Hillary Clinton in 2016. This is the reason Mr. Comey deserved to be fired, though Mr. Trump should have done it on his first day as President, as we advised him to do.

The FBI probe of Mr. Trump quickly became part of Robert Mueller’s special counsel investigation, which began within days. Some 20 months later we’re still waiting for Mr. Mueller to reveal what if anything happened between the President and Russia. Sans facts, the media used the Times report as a peg to reprise the various and sundry Trump-Russia connections that so far add up to pencil dots without a collusion narrative.

Mr. Warner and Intelligence Chairman Richard Burr have spent two years and produced hardly anything at all beyond Mr. Warner’s presence on the Sunday shows. What the American people deserve, after all of the innuendo and accusations, are the facts of what these investigations have found.

The endless investigations are one more reason for Mr. Trump to declassify the Justice and FBI documents related to 2016 and put them on the public record.

A Weak Attack on William Barr’s Nomination to Be Attorney General

Finally, adopting a hysterical tone, Hemel and Posner write:

Remember when President Trump demanded “loyalty” from [former FBI director James] Comey? If Mr. Barr is confirmed as attorney general, it looks as though the president will get what he wanted. “He alone is the Executive branch,” Mr. Barr wrote of the president. The attorney general and the Justice Department lawyers “who exercise prosecutorial discretion on his behalf” are “merely ‘his hand.’” These bizarre statements are not those of a lawyer but of a courtier.

Actually, far from “bizarre statements,” Barr’s assertions reflect the views of the late, great Justice Antonin Scalia in his much-admired dissent in Morrison v. Olson (1988). The Constitution says, “The executive Power shall be vested in a President of the United States.” As Justice Scalia memorably explained, “this does not mean some of the executive power, but all of the executive power.” Such estimable scholars as Hemel and Posner must know that Barr — far from sending a signal about “loyalty,” which former director Comey alleges President Trump demanded of him — was merely articulating the “unitary executive” theory. That theory, rooted in constitutional law, holds that Article II vests all executive power in a single official, the president; therefore, subordinates appointed to wield executive power, including government lawyers exercising prosecutorial discretion, do so as delegates of the chief executive. That, indeed, is why all executive officers serve at the pleasure of the president, who does not need a reason to dismiss them.

The professors and the Times may not like the unitary executive — most progressives do not, at least when the White House is not occupied by a Democrat. But it is beneath Hemel and Posner to pretend that the articulation of a venerable legal theory, advanced by a lawyer who is widely acclaimed to be exceptional and with whom the president was not acquainted until recently, is the flattery of a “courtier.”

Why the Anonymous Trump Official’s Op-Ed in the New York Times Matters

In 1947, “Mr. X” wrote an extremely influential article, for Foreign Affairs, advocating a policy of containment toward the Soviet Union’s expansionist tendencies. Its author turned out to be the diplomat George Kennan, who was then the second-ranking official at the U.S. Embassy in Moscow. And, in 1996, Random House published “Primary Colors,” a thinly disguised roman à clef about Bill Clinton, by “Anonymous.” Less consequential than Kennan’s contribution, the novel nonetheless created a great deal of speculation about who its author was; it turned out to be the political journalist Joe Klein.

.. By nightfall on Wednesday, there were reports that White House officials were engaged in a frantic search for the culprit.

..  “scrutiny focused on a half-dozen names.”

.. the piece merely adds to what we already know about Trump’s character and the struggle of people around him to control his destructive tendencies.

.. it was reported that the Secretary of Defense, the Secretary of State, and the national-security adviser at the time—James Mattis, Rex Tillerson, and H. R. McMaster—had privately agreed to avoid being out of Washington at the same time.

.. There have been numerous reports about how Don McGahn, the outgoing White House counsel, tried to talk Trump out of firing James Comey and Jeff Sessions.

.. The real importance of the Op-Ed is that it corroborates these reports, provides a window into the mind-set of people who continue to work for Trump, and also reveals some intriguing details. “Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president,”

.. Really? “Early whispers within the cabinet” of invoking the Constitution to oust the President? If this is true, it is information of enormous consequence, and leads to a series of further questions. Who was involved in these discussions, and how far did the whispers go?

.. The suggestion that at least some members of the Cabinet have talked about invoking these powers is new and shocking. But what does it mean to say that the whisperers didn’t want to precipitate a crisis? After all, the rest of the article makes clear that the crisis already exists and is deadly serious.

.. The head of state of the most powerful country in the world is someone whose own subordinates and appointees regard as unmoored, untrustworthy, and potentially dangerous.

.. “The root of the problem is the president’s amorality,” the Op-Ed says. “Anyone who works with him knows he is not moored to any discernible first principles that guide his decision making. . . . Meetings with him veer off topic and off the rails, he engages in repetitive rants, and his impulsiveness results in half-baked, ill-informed and occasionally reckless decisions that have to be walked back.”

.. “I have no respect for someone who would say these things—of whose truth I have no doubt—in an anonymous oped, rather than in a public resignation letter copied to the House Judiciary Committee.”

.. He or she has enflamed the paranoia of the president and empowered the president’s willfulness.”

.. These are legitimate concerns, but the larger one is that we have a menacing dingbat in the White House, and nobody with the requisite authority seems willing to do anything about it, other than to try to manage the situation on an ad-hoc, day-to-day basis. Perhaps this could be seen as a “Trump containment” strategy, but it falls well short of the systematic containment strategy that Kennan advocated, and, in any case, the Trumpkins, unlike the early Cold War strategists, are not necessarily dealing with a rational actor. Something more is surely needed.

 

Trump’s ‘Perjury Trap’: Confessing to Obstruction of Justice or Lying About It

Rudy Giuliani tells Axios that his client, President Trump, is currently willing to speak to Special Counsel Robert Mueller on the condition that he not be asked about two subjects: why Trump fired FBI director James Comey, and what Trump said to Comey about the investigation of former national security adviser Michael Flynn.

You might wonder if the specificity of this demand sounds just a wee bit suspicious, as if Trump’s lawyers are pointing frantically at a locked door at a crime scene and shouting “Don’t go in there!” You would be right.

.. The Russia scandal has followed an eerily similar fact pattern to Watergate. Both cases feature as the central underlying crime the burglary of private files from the Democratic National Committee in order to give Republicans an advantage in a presidential campaign. Both cases also feature the president leaning on the FBI to quash an investigation that might connect the burglary to the president and his inner circle.

..  We are accustomed — not only by Watergate but by every criminal or detective drama — to expect evidence to mount to a crescendo over time. Nobody knows quite how to respond to the spectacle of a president committing high crimes and misdemeanors in his first few weeks in office, and then simply confessing to them casually in a subsequent television interview.

.. A perjury trap is a real thing. The term describes when prosecutors lure a witness into giving false testimony, usually for reasons other than covering up a crime, knowing they can prove the claim was false, and then nail them for perjury.

.. The impeachment of President Clinton was a classic perjury trap. Special Prosecutor Ken Starr asked the president about an affair with Monica Lewinsky, knowing Clinton — like most people who have affairs, especially politicians — would lie about it.

.. Asking Trump about his attempt to manipulate his FBI director is not a perjury trap. The question is not extraneous to a crime, it is a crime. He was very consciously attempting to stop an investigation into his administration. The mere fact that his lawyers are discussing it well in advance indicates that the subject matter is not a perjury trap, because the “trap” aspect involves the witness not knowing beforehand that the question is designed to produce a lie.

Trump’s lawyers have presumably concluded that they have no defense of his obstruction of justice. Faced with a choice between admitting to obstruction of justice, or denying it and risking perjury, Trump’s choice is to avoid the question altogether.

Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena

Mr. Mueller has told the president’s lawyers that he needs to talk to their client to determine whether he had criminal intent to obstruct the investigation into his associates’ possible links to Russia’s election interference. If Mr. Trump refuses to be questioned, Mr. Mueller will have to weigh their arguments while deciding whether to press ahead with a historic grand jury subpoena.

Mr. Mueller had raised the prospect of subpoenaing Mr. Trump to Mr. Dowd in March.

.. The attempt to dissuade Mr. Mueller from seeking a grand jury subpoena is one of two fronts on which Mr. Trump’s lawyers are fighting. In recent weeks, they have also begun a public-relations campaign to discredit the investigation and in part to pre-empt a potentially damaging special counsel report that could prompt impeachment proceedings

.. Mr. Giuliani said in an interview that Mr. Trump is telling the truth but that investigators “have a false version of it, we believe, so you’re trapped.”

.. “Ensuring that the office remains sacred and above the fray of shifting political winds and gamesmanship is of critical importance,” they wrote.

.. They argued that the president holds a special position in the government and is busy running the country, making it difficult for him to prepare and sit for an interview. They said that because of those demands on Mr. Trump’s time, the special counsel’s office should have to clear a higher bar to get him to talk. Mr. Mueller, the president’s attorneys argued, needs to prove that the president is the only person who can give him the information he seeks and that he has exhausted all other avenues for getting it.

“The president’s prime function as the chief executive ought not be hampered by requests for interview,” they wrote. “Having him testify demeans the office of the president before the world.”

They also contended that nothing Mr. Trump did violated obstruction-of-justice statutes, making both a technical parsing of what one such law covers and a broad constitutional argument that Congress cannot infringe on how he exercises his power to supervise the executive branch. Because of the authority the Constitution gives him, it is impossible for him to obstruct justice by shutting down a case or firing a subordinate, no matter his motivation, they said.

“Every action that the president took was taken with full constitutional authority pursuant to Article II of the United States Constitution,” they wrote of the part of the Constitution that created the executive branch. “As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.”

That constitutional claim raises novel issues, according to legal experts. Under the Constitution, the president wields broad authority to control the actions of the executive branch. But the Supreme Court has ruled that Congress can impose some restrictions on his exercise of that power, including by upholding statutes that limit his ability to fire certain officials. As a result, it is not clear whether statutes criminalizing obstruction of justice apply to the president and amount to another legal limit on how he may wield his powers.

.. The letter does not stress legal opinions by the Justice Department in the Nixon and Clinton administrations that held that a sitting president cannot be indicted, in part because it would impede his ability to carry out his constitutional responsibilities. But in recent weeks, Mr. Giuliani has pointed to those memos as part of a broader argument that, by extension, Mr. Trump also cannot be subpoenaed.

Subpoenas of the president are all but unheard-of. President Bill Clinton was ordered to testify before a grand jury in 1998 after requests for a voluntary appearance made by the independent counsel, Kenneth W. Starr, went nowhere.

To avoid the indignity of being marched into the courthouse, Mr. Clinton had his lawyers negotiate a deal in which the president agreed to provide testimony as long as it was taken at the White House and limited to four hours. Mr. Starr then withdrew the subpoena, avoiding a definitive court fight.

In making their arguments, Mr. Trump’s lawyers also revealed new details about the investigation. They took on Mr. Comey’s account of Mr. Trump asking him privately to end the investigation into Mr. Flynn. Investigators are examining that request as possible obstruction.

But Mr. Trump could not have intentionally impeded the F.B.I.’s investigation, the lawyers wrote, because he did not know Mr. Flynn was under investigation when he spoke to Mr. Comey. Mr. Flynn, they said, twice told senior White House officials in the days before he was fired in February 2017 that he was not under F.B.I. scrutiny.

“There could not possibly have been intent to obstruct an ‘investigation’ that had been neither confirmed nor denied to White House counsel,” the president’s lawyers wrote.

Moreover, F.B.I. investigations do not qualify as the sort of “proceeding” an obstruction-of-justice statute covers, they argued.

“Of course, the president of the United States is not above the law, but just as obvious and equally as true is the fact that the president should not be subjected to strained readings and forced applications of clearly irrelevant statutes,” Mr. Dowd and Mr. Sekulow wrote.

But the lawyers based those arguments on an outdated statute, without mentioning that Congress passed a broader law in 2002 that makes it a crime to obstruct proceedings that have not yet started.

Samuel W. Buell, a Duke Law School professor and white-collar criminal law specialist who was a lead prosecutor for the Justice Department’s Enron task force, said the real issue was whether Mr. Trump obstructed a potential grand jury investigation or trial — which do count as proceedings — even if the F.B.I. investigation had not yet developed into one of those. He called it inexplicable why the president’s legal team was making arguments that were focused on the wrong obstruction-of-justice statute.

They went beyond asserting Mr. Trump’s innocence, casting him as the hero of the Flynn episode and contending that he deserved credit for ordering his aides to investigate Mr. Flynn and ultimately firing him.

“Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the president,” they wrote. “His actions speak louder than any words.”

The lawyers acknowledged that Mr. Trump dictated a statement to The Times about the 2016 Trump Tower meeting between some of his top advisers and Russians who were said to have damaging information about Hillary Clinton. Though the statement is misleading — in it, the president’s eldest son, Donald Trump Jr., said he met with Russians “primarily” to discuss adoption issues — the lawyers call it “short but accurate.”

.. Mr. Mueller is investigating whether Mr. Trump, by dictating the comment, revealed that he was trying to cover up proof of the campaign’s ties to Russia — evidence that could go to whether he had the same intention when he took other actions.

The president’s lawyers argued that the statement is a matter between the president and The Times — and the president’s White House and legal advisers have said for the past year that misleading journalists is not a crime.

Mr. Trump’s lawyers also try to untangle another potential piece of evidence in the obstruction investigation: his assertion, during an interview with Lester Holt of NBC two days after Mr. Comey was fired, that he was thinking while he weighed the dismissal that “this Russia thing” had no validity. Mr. Mueller’s investigators view that statement as damning, according to people familiar with the investigation.

But the lawyers say that news accounts seized on only part of his comments and that his full remarks show that the president was aware that firing Mr. Comey would lengthen the investigation and dismissed him anyway.

The complete interview, the lawyers argued, makes clear “he was willing, even expecting, to let the investigation take more time, though he thinks it is ridiculous, because he believes that the American people deserve to have a competent leader of the F.B.I.”

The Trump team’s chilling message to Mueller

For months we’ve heard President Trump’s TV lawyers, as he calls them, bandy about the argument that he — or any president, for that matter — couldn’t have obstructed justice because justice is what he says it is.

In other words, that because, they claim, a president possesses absolute power to cut short a criminal investigation, he cannot by definition be guilty of obstructing it. Or, in the famous Nixonian formulation, as Richard M. Nixon told David Frost, “Well, when the president does it, that means that it is not illegal.”

.. The precise context involved the president’s discussion with then-FBI Director James B. Comey in which, according to Comey’s testimony, Trump cleared the Oval Office of other witnesses before discussing his just-fired national security adviser, Michael Flynn. According to Comey, Trump expressed his “hope you can see your way clear to letting this go, to letting Flynn go.”

.. The letter disputes Comey’s version of events but says it wouldn’t matter if Trump had made those statements. And then, in a magnificently gaslighting move, the letter claims that Trump is actually the hero of any obstruction story, because he fired Flynn: “Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the President.”

.. the notion that the president could peremptorily call off any prosecution for any reason whatsoever — no matter how corrupt — would be laughable if it weren’t so scary.