Congress and the public must now push for protections for the special counsel.
As ethics experts, we believe Mr. Whitaker should recuse himself from the investigation. If we have ever seen an appearance of impropriety in our decades of experience, this is it: a criminal subject president appointing his own prosecutor — one who has evidently prejudged aspects of the investigation and mused about how it can be hampered.
.. Whether or not Mr. Whitaker steps aside, Mr. Trump’s audacity now demands additional safeguards. Congress must quickly put in place a plan to protect the Russia investigation before President Trump makes any further efforts to control the special counsel’s office.
.. Our proposed solution is based upon one devised by, of all people, Robert Bork when he was the acting attorney general during Watergate. Mr. Whitaker or whoever becomes the next acting attorney general must provide the same protections against interference that Mr. Bork provided to the special Watergate prosecutor, Leon Jaworski, in a 1973 Justice Department order. Mr. Jaworski received the protections as part of agreeing to replace the previous prosecutor, Archibald Cox, who was fired in the infamous Saturday Night Massacre.
The Bork order contained much stronger provisions to protect the independence of the special prosecutor investigation than is now found in the Department of Justice guidelines that govern the Mueller inquiry. These enhanced protections should be demanded from any new person given responsibility to oversee the Mueller investigation:
● The attorney general, acting or permanent, will not remove the special counsel except for extraordinary improprieties.
● The special counsel shall not be subject to the day-to-day supervision of any Justice Department official. The attorney general shall not countermand or interfere with the special counsel’s decisions or actions.
I can’t be the only one who thinks he sounds less like an elected official than like the leader of some apocalyptic cult. Look at the way he rails against the news media at his revival-style campaign rallies. In Indiana on Thursday night, he seemed obsessed with news stories that had described empty seats and a subdued crowd at a West Virginia rally several days earlier. He claimed those reports were “fake news,” although they were demonstrably true.
.. Trump is taking a page from the playbook of totalitarian dictators: Believe only me. Reality is what I say it is. Anyone who claims otherwise is an Enemy of the People.
.. Trump’s approval rating having fallen to 36 percent, with disapproval at 60 percent.
.. more than half of those polled — an incredible 53 percent — said they “strongly” disapproved of Trump’s performance.
.. The most immediate threat to Trump from the election is not impeachment, though we may eventually reach that point. Rather, it is the prospect of genuine oversight and serious investigation. Scrutiny is Trump’s kryptonite.
.. The other thing Trump fears, of course, is the Robert S. Mueller III investigation writ large. The probe by the special counsel has now metastasized to involve the Southern District of New York, the New York state attorney general and the Manhattan district attorney
.. Trump desperately wants an attorney general who will shut Mueller down. The incumbent, Jeff Sessions, cannot do so because he is recused from the matter. Republican senators who once warned Trump not to dare fire Sessions now seem resigned to the fact that Trump will do just that.
It makes sense for Trump to make his move after the election. If Republicans still control Congress, he’ll get away with it. If Democrats take charge, he won’t.
Mr. Trump voiced disdain for “flipping,” saying that people lie to prosecutors about “whoever the next-highest one is,” so that they can get more lenient terms.
“I’ve seen it many times,” he said. “I’ve had many friends involved in this stuff. It’s called flipping and it almost ought to be illegal.”
.. Peter Zeidenberg, a former federal prosecutor, said that Mr. Trump’s comments amount to “an absolutely outrageous statement and to any prosecutor would just be shocking to hear.”
“It’s hard to overstate how fundamental” to prosecutions cooperating witnesses are, Mr. Zeidenberg said. Noting the president praised his former campaign chairman, Paul Manafort, for not seeking a plea deal in his tax- and bank-fraud trial, he said, “He doesn’t talk like a president. He talks like a crime boss.”
.. “Trump’s idea would effectively demolish one of the basic and valuable tools of criminal law enforcement in the U.S.,” said Stephen Gillers, a professor at the New York University School of Law.
.. Mr. Trump said that Mr. Cohen, who has described himself as the president’s “fixer,” was a lawyer who “didn’t do big deals” but “did small deals.”
“Not somebody that was with me that much,” he said.
.. “For 30, 40 years I’ve been watching flippers,” he said. “Everything is wonderful and then they get 10 years in jail and they flip on whoever the next highest one is, or as high as you can go….It’s not fair.”
.. In the Fox News interview, Mr. Trump suggested that Democrats still have great sway over the Justice Department, which is now led by his appointees. He suggested that his annoyance with Mr. Sessions stems in part from the Justice Department’s failure to prosecute his 2016 election opponent, Democrat Hillary Clinton, over her email practices when she served as secretary of state.
.. “Even my enemies say that ‘Jeff Sessions should have told you that he was going to recuse himself, and then you wouldn’t have put him in.’ He took the job, and then he said I’m going to recuse myself,” Mr. Trump said.
The White House counsel, Donald F. McGahn II, has cooperated extensively in the special counsel investigation, sharing detailed accounts about the episodes at the heart of the inquiry into whether President Trump obstructed justice, including some that investigators would not have learned of otherwise, according to a dozen current and former White House officials and others briefed on the matter.1
In at least three voluntary interviews with investigators that totaled 30 hours over the past nine months, Mr. McGahn described the president’s fury toward the Russia investigation and the ways in which he urged Mr. McGahn to respond to it
.. It is not clear that Mr. Trump appreciates the extent to which Mr. McGahn has cooperated with the special counsel. The president wrongly believed that Mr. McGahn would act as a personal lawyer would for clients and solely defend his interests to investigators
.. Mr. McGahn cautioned to investigators that he never saw Mr. Trump go beyond his legal authorities, though the limits of executive power are murky.
.. the two rarely speak one on one — the White House chief of staff, John F. Kelly, and other advisers are usually present for their meetings — and Mr. Trump has questioned Mr. McGahn’s loyalty.
.. Mr. McGahn that he has called the president “King Kong” behind his back, to connote his volcanic anger, people close to Mr. McGahn said.
.. Mr. Burck said that Mr. McGahn had been obliged to cooperate with the special counsel. “President Trump, through counsel, declined to assert any privilege over Mr. McGahn’s testimony
.. He wanted to take on Mr. Mueller directly, attacking his credibility and impeding investigators. But two of his newly hired lawyers, John M. Dowd and Ty Cobb, have said they took Mr. Trump at his word that he did nothing wrong and sold him on an open-book strategy.
.. As White House counsel, not a personal lawyer, he viewed his role as protector of the presidency, not of Mr. Trump. Allowing a special counsel to root around the West Wing could set a precedent harmful to future administrations.
.. Mr. Trump blamed him for a number of fraught moments in his first months in office, including the chaotic, failed early attempts at a ban on travelers from some majority-Muslim countries and, in particular, the existence of Mr. Mueller’s investigation.
.. Mr. McGahn’s decision to cooperate with the special counsel grew out of Mr. Dowd’s and Mr. Cobb’s game plan, now seen as misguided by some close to the president.
.. Last fall, Mr. Mueller’s office asked to interview Mr. McGahn. To the surprise of the White House Counsel’s Office, Mr. Trump and his lawyers signaled that they had no objection, without knowing the extent of what Mr. McGahn was going to tell investigators.
Mr. McGahn was stunned
.. Mr. Burck has explained to others that he told White House advisers that they did not appreciate the president’s legal exposure and that it was “insane” that Mr. Trump did not fight a McGahn interview in court.
.. the White House has to understand that a client like Mr. Trump probably made politically damaging statements to Mr. McGahn as he weighed whether to intervene in the Russia investigation.
.. Mr. McGahn and his lawyer grew suspicious. They began telling associates that they had concluded that the president had decided to let Mr. McGahn take the fall for decisions that could be construed as obstruction of justice, like the Comey firing, by telling the special counsel that he was only following shoddy legal advice from Mr. McGahn.
.. McGahn told people he was determined to avoid the fate of the White House counsel for President Richard M. Nixon, John W. Dean, who pleaded guilty to conspiracy to obstruct justice in the Watergate scandal.
Mr. McGahn decided to fully cooperate with Mr. Mueller. It was, he believed, the only choice he had to protect himself.
.. “This sure has echoes of Richard Nixon’s White House counsel, John Dean, who in 1973 feared that Nixon was setting him up as a fall guy for Watergate and secretly gave investigators crucial help while still in his job,” said the historian Michael Beschloss.
.. By exerting attorney-client privilege, which allows the president to legally withhold information, they would have gained the right to learn what Mr. McGahn planned to tell investigators and what he might reveal that could damage the president. But the president’s lawyers never went through that process, although they told people that they believed they still had the ability to stop Mr. Mueller from handing over to Congress the accounts of witnesses like Mr. McGahn and others.
.. Mr. Burck and Mr. McGahn met the special counsel team in November for the first time and shared all that Mr. McGahn knew.
.. Mr. McGahn gave to Mr. Mueller’s investigators, the people said,
- a sense of the president’s mind-set in the days leading to the firing of Mr. Comey;
- how the White House handled the firing of the former national security adviser, Michael T. Flynn; and
- how Mr. Trump repeatedly berated Mr. Sessions, tried to get him to assert control over the investigation and threatened to fire him.
.. it became apparent that Mr. McGahn and Mr. Burck had overestimated the amount of thought that they believed the president put into his legal strategy
Before President Trump headed to meet Vladimir Putin last month, Deputy Attorney General Rod Rosenstein requested a meeting in the Oval Office. He was ready to indict Russian officials for election hacking and wanted to know if the president wanted the Justice Department to announce the charges before or after the trip.
Mr. Trump told Mr. Rosenstein to issue the statement as soon as possible, adding that it would strengthen his position in talks with Moscow, according to people familiar with the exchange.
The moment was the latest indication of a significant change in the rapport between the two men.
.. Mr. Rosenstein has steadily developed a stable relationship with the president that suggests he has more staying power than either his supporters or detractors suspect.
.. The two men talk once or twice a week, and Mr. Trump calls Mr. Rosenstein on his cellphone to discuss such issues as immigration, according to one person familiar with the matter. Mr. Rosenstein consistently prepares the president’s team ahead of major news, officials said. And he visits the White House as often as three times a week, meeting with the president or White House chief of staff John Kelly. He also has a regular lunch with White House general counsel Don McGahn.
.. “It’s fantastic,” Mr. Trump said about his rapport with Mr. Rosenstein when a spokesman told him The Wall Street Journal was seeking a comment. “We have a great relationship. Make sure you tell them that.”
.. But the rapprochement may signal that, despite the president’s public statements, the investigation isn’t in immediate danger of being halted.
.. Senior White House officials privately praise Mr. Rosenstein’s handling of demands by congressional Republicans to share internal documents on the Federal Bureau of Investigation’s investigations of Hillary Clinton’s email server and any Trump campaign contacts with Russia. Some Trump allies—such as Reps. Mark Meadows (R., N.C.) and Jim Jordan (R., Ohio)—accuse Mr. Rosenstein of stonewalling, but White House officials say they view their effort to impeach Mr. Rosenstein as a sideshow.
Indeed, the president has recently come to rely on Mr. Rosenstein, the No. 2 at the Justice Department whom the White House increasingly views as the No. 1, given the president’s disenchantment with Attorney General Jeff Sessions over his decision to recuse himself from the Russia investigation because he served on the Trump campaign.
Every indication is that this is far from the end of the committee majority’s mischief. All signs instead point to this week’s developments as the beginning of a new chapter in the story, in which House Republicans go on the offensive to support President Trump — and fight the special counsel, Robert Mueller.
.. First, the committee’s chairman, Representative Devin Nunes, attempted to provide cover for President Trump’s false allegation that he was wiretapped by his predecessor. Mr. Nunes met with White House officials in secret and then held news conferences in which he claimed that the outgoing national security adviser, Susan Rice, and her colleagues had wrongly sought to “unmask” (i.e., identify by name) certain Trump associates in surveillance reports.
.. When that effort ran out of steam, Mr. Nunes and the majority shifted their attention to the process by which law enforcement agencies obtained Foreign Intelligence Surveillance Act authorization to conduct electronic monitoring of a former Trump campaign adviser, Carter Page.
The committee released a highly misleading memo claiming that the F.B.I. and the Department of Justice had abused their powers — claims which turned out to be unfounded.
The special counsel is examining three core issues:
- Did Russia attack the 2016 elections to aid Mr. Trump;
- did Mr. Trump or members of his campaign collude with the Russians to do so; and
- did Mr. Trump or others obstruct the investigation of these matters?
.. the majority report endeavors to gut the second question, declaring the absence of collusion altogether.
.. It would be a grave error to think the committee will stop here, especially its chairman. There is nothing in Mr. Nunes’s record to suggest that he will let up in the face of opposition
.. The so-called “Nunes memo,” although widely considered a flop, was just the first in a series that he has said he plans to issue.
.. The president and his supporters have argued that his constitutional power to direct the Justice Department and the F.B.I. and to fire their personnel means he cannot as a matter of law be held accountable for obstructing an investigation.
.. we fully expect them to weigh in on the side of the president, and against accountability.
.. Should Mr. Mueller move to compel the president to testify by obtaining a grand jury subpoena, for example, look for them to back arguments circulated by Mr. Trump’s lawyers that the special counsel has not met the threshold for such a step.
.. We also expect more overt attacks on Mr. Mueller himself
.. We must in addition look for Representative Nunes and his ilk to back the president should he seek to install a crony in one of the positions within the Justice Department that oversees the Mueller investigation.
.. Mr. Trump instead can try to throttle him by replacing Attorney General Jeff Sessions or his deputy, Rod Rosenstein, with a compliant soul who can slowly choke off Mr. Mueller by cutting his budget, trimming his staff or curtailing the scope of his review.
.. In a week in which there has already been a major cabinet reshuffle, with the firings of Secretary of State Rex Tillerson and one of his top aides, Steve Goldstein, the possibility of such a move looms larger
.. When Mr. Nunes released his first memo, there were ominous rumblings that it was intended to target Mr. Rosenstein for his alleged role in FISA warrant abuses. When the memo fell flat, the rumors faded away. We would hardly be surprised to see a renewed effort against him — and his boss.
.. The special counsel must gird himself for this battle, and all of us must be ready to defend him.
Democrats have argued that such calls are simply an effort to undermine the ongoing Russia investigation. Sessions, moreover, has a serious ethical problem he refuses to acknowledge: He has already recused himself from anything involving the Russia probe, as well as from anything involving the 2016 Trump and Clinton campaigns. Appointing and overseeing a special counsel assigned to investigate conduct related to the Russia investigation would seem to be a direct violation of that recusal.
.. Enter President Trump’s lawyer, who took to his radio show Thursday to urge Sessions to make the appointment and to repeatedly insist that Sessions’ recusal shouldn’t stop him from doing so.
.. Sekulow is also the chief counsel for the conservative American Center for Law and Justice, and he hosts a weekday radio show that he’s used to attack the Mueller investigation.
.. Without saying so explicitly, their letter also suggests that the new special counsel could investigate the DOJ and FBI’s decision not to prosecute Hillary Clinton in the summer of 2016.
.. On Wednesday night, Sessions gave an interview to Fox News’ Shannon Bream, in which he said he was indeed considering appointing a second special counsel.
.. “This is completely independent of what Bob Mueller is doing on the Russia inquiry,” he said, stressing that he was directing his comments to any reporters listening. “It’s completely separate. This is involving the FISA issues.” He went on to add that it could also include an investigation into Clinton’s emails and the bogus “Uranium One” Clinton scandal—both of which Sessions is supposed to be recused from.
.. But in the course of the show, Sekulow and his co-hosts made comments that seemed to confirm that the investigation they were calling for would, in fact, have an impact on the Mueller investigation. The proposed new special counsel could investigate “potential criminal conduct involved in, one, the Clinton investigation; two, what then led to the Russia investigation and the Trump campaign, because it was the same actors, and the FISA abuse,”
“Department of Justice has an opportunity to start cleaning house,” Jordan Sekulow said later in the show. “It involves the Clinton investigation, the Trump-Russia investigation.”