Attorney General Bill Barr emerges days ahead of Mueller’s testimony to call it a “public spectacle” and floats that the DOJ would “back” Mueller if he dropped out. In this exclusive report, MSNBC Chief Legal Correspondent Ari Melber examines Mueller’s decades of hearings and clues for what he will say before Congress next week.
Compares James Comey and Robert Mueller’s approach to talking about John Ashcroft’s confrontation over warrantless wiretapping while he was in a hospital bed.
Donald Trump may look a lot like Richard Nixon right now. But there is one glaring difference between these two men’s presidencies: Fox News.
Trump and Nixon are similar in a lot of ways: they both faced major FBI investigations, were accused of obstructing justice, lashed out at the media, and oozed raw sexual charisma. Some pundits look at those similarities and assert that, like Nixon, Trump will also face impeachment. But Nixon never had Fox News. As trust in mainstream media has collapsed over the past 40 years, the amount of conservative media has exploded. And sources like Fox News have spent months casting doubt on the FBI and the Mueller special investigation. Without a uniting narrative in the media, it’s unlikely Trump will face impeachment or that Republicans in Congress will be the ones to hold the president accountable for his actions, regardless of what Mueller ultimately finds.
The New York Times recently unearthed a thorough legal memo, prepared twenty years ago for Independent Counsel Kenneth Starr, that advances the view that a sitting president can be indicted while still in office. For those keeping score, this new memo sharpens an internal divide within the Department of Justice on this important question. Two memos authored by the Office of Legal Counsel—one in 1973, in the midst of the Nixon impeachment saga, the other in 2000, on the heels of the Clinton impeachment saga—take the view that a sitting president is immune from indictment. By contrast, two different memos—authored by the Office of Special Counselinvestigating Nixon, and the Office of Independent Counsel investigating Clinton—reach the opposite conclusion.
That these different offices have repeatedly disagreed on this central question isn’t really all that surprising. They have different institutional roles, different missions, and different cultures, all of which might impact their respective approaches to the issue. For present purposes, however, the most important practical question is whether the current special counsel, Robert Mueller, is free to exercise his own independent judgment on the immunity issue, or whether he is instead bound to follow OLC’s take. If it’s the latter, then those two OLC memos would together constitute the single greatest shield protecting President Trump from prosecution: No matter how strong the evidence against him may become, if OLC’s memos are binding then the President simply cannot be indicted until after he leaves office—by which point, it bears noting, the statute of limitations for any relevant conduct may well have expired.
.. To my mind, there are at least three such points here. First and foremost, the justifications underlying the general practice of treating OLC opinions as binding on executive branch officials do not necessarily apply to the Office of Special Counsel, which is supposed to be insulated from the influence of political appointees when assessing the president’s exposure to criminal liability. Second, the formal regulations setting out the special counsel’s authority do not clearly compel him to follow OLC’s lead. And third, historical practice suggests that he need not do so.
.. As Nelson Lund explains, that practice reflects the reality that “OLC does not serve as the mouthpiece for the Solicitor General or the litigating divisions” of the Department of Justice, which “will often defend” or advance a proposition in court “even if OLC would have advised against it.” When the ball is in the litigating divisions’ court, in other words, OLC typically defers to their authority to articulate the position of the United States. And when the litigation at issue is a potential criminal prosecution of the president of the United States, the relevant “litigating division” is the Office of Special Counsel.
Yet, in an apparent deviation from its articulated best practices, OLC issued the presidential-immunity memos in the thick of two separate pending cases. Indeed, the first memo actually contradicted the litigating position that Special Counsel Jaworski soon articulated on behalf of the United States to the Supreme Court. And the second opinion was prepared as the Office of Independent Counsel was considering a draft indictment of President Clinton, in a process that had also already generated litigation. The fact that OLC may have deviated from its ordinary best practices to issue these memos—thereby perhaps usurping the special counsels’ rightful authority to articulate the government’s litigating position—may be yet another reason not to treat the memos as binding. [Editor’s Note: An earlier version of this post suggested that the Special Counsel’s Reply Brief in United States v. Nixon was filed in July of 1973. The brief was filed in July of 1974.]
In 1988, senior members of Reagan’s administration, including Lt. Col. Oliver North, were charged with conspiracy to defraud the United States over their alleged roles in illegally selling arms to Iran and passing the proceeds to rebels in Nicaragua.
The affair was investigated by Congress and independent counsel Lawrence Walsh. By the time it was over, 14 people were criminally charged and 11 were convicted — although all 11 either had their convictions overturned or received pardons from Reagan’s successor, George H. W. Bush.
Walsh later complained bitterly that the Reagan and Bush administrations stymied his investigation, including through those pardons, which were pushed hard by Bush’s then-attorney general, William Barr. Barr later recalled: “I favored the broadest pardon authority.” Perhaps not coincidentally, Barr has now been called back to the DOJ by Trump to oversee the final stages of the Mueller investigation.
.. Renato Mariotti, a former prosecutor and close Mueller-watcher, argues that the special prosecutor is unlikely to roll out a grand conspiracy — for the simple reason that it would be extremely difficult to prove beyond a reasonable doubt.After all, even behavior that appears to be a clumsy attempt at coordination might fall short of serving as evidence of conspiracy: Recall when Trump famously asked Russia to hack Hillary’s emails in the middle of the campaign.By making that call during a press conference, Trump actually made it harder to prove in court that he was somehow intentionally conspiring with Russians in the hacking of her computer, which took place later that same day.“I think most prosecutors would be reluctant to charge that, because he could say it was said in jest,” said McQuade.
As accomplished and respected as Mueller is, the SDNY has important structural advantages. While Mueller is limited by his appointment to investigating coordination between Russia and the Trump campaign (and matters that “arise directly” from such coordination), the SDNY has no substantive constraints and can go wherever the evidence leads... Mueller faces political pressure from Trump and the Department of Justice to finish his investigation; the SDNY isn’t going anywhere and can take whatever time it needs. The SDNY is also not subject to the special counsel regulations, which require attorney general approval for major prosecutorial decisions and through which Mueller ultimately must filter his findings.And, unlike Mueller, the SDNY cannot be fired or defunded; sure, Trump could fire the US attorney for the SDNY, but there will still be 150-plus apolitical career prosecutors ready to carry on.
As has been discussed ad nauseum, even if Mueller identifies criminal activity on the part of Donald Trump, Mueller will not indict a sitting president.
The real questions that should be asked are:
- Will Mueller identify coordination between Russia and the Trump campaign? This is Mueller’s original mandate.
- Will Mueller indict anyone from the Trump campaign with criminal conspiracy for this coordination? This follows from Mueller’s mandate.
- Will Mueller show that Trump was aware of the coordination and criminal conspiracy?
We already know the answer to the first question. The Trump campaign coordinated with the Russians directly and indirectly during the 2016 campaign. Here are 5 salient examples.
- Graf 44 of the July 2018 GRU indictment states that an American in contact with the Trump campaign was in touch with the Russian hackers in August 2016 discussing material stolen from the Clinton campaign. Roger Stone has admitted to being this American.
- Graf 11 of the January 2018 Roger Stone indictment states that in June 2016 Roger Stone was aware of stolen DNCC material before the DNCC publicly announced the hack.
- Graf 12 of the January 2018 Roger Stone indictment states that in July 2016 senior campaign officials were directed to contact Roger Stone about the stolen DNCC material.
- Court proceedings from the February 2018 Manafort hearing state that on August 2, 2016 Paul Manafort, while head of Trump’s presidential campaign, provided proprietary polling data to a Russian associated with the GRU.
- Court proceedings from the February 2016 Manafort hearing state that during the same August 2, 2016 meeting, the Russian associated with the GRU discussed sanction relief with Manafort.
Clearly the Trump campaign was interacting with the Russians. Mueller has already publicly identified some of this coordination. As well, paging through the Stone indictment and especially the Manafort proceedings, there are numerous redaction throughout. Mueller is aware of quite a few more interactions than he has made public. It is only a question of how deep this coordination ran.
Regarding the second question. It has been a source of puzzlement among people closely following Mueller’s progress why no Americans have been charged with activities related to the 2016 election. The charges to date have related to financial crimes before the election or false statements after the election.
Some have claimed that Mueller has not filed any indictments because there was no criminal activity during the election. This position is, at best, misguided, as criminality is apparent in the publicly released information.
Roger Stone’s activities, particularly his interaction with the Russian hackers, were criminal. Before Mueller is done, Stone will be indicted, at a minimum for conspiracy to hack the Clinton campaign, but also likely for Conspiracy to Defraud the United States in relation to his efforts with Russia to influence the election.
Paul Manafort’s activities, in particular his supplying of polling data to the Russians, appear criminal. Either Manafort stole the data from the Trump campaign, or Manafort acting as chairman of the campaign, was enlisting the aid of Russians to influence the election. Manafort will almost assuredly be indicted for Conspiracy to Defraud the United States.
Given that we know Mueller can charge at least two individuals who were part of, or associated with, the 2016 Trump campaign, why hasn’t Mueller filed any indictments? It goes to reason that Mueller is waiting to file multiple indictments at a later date, and not just for the above activity.
One might ask who else might be indicted? Mueller has yet to interview either Donald Trump Jr. or Jared Kushner about the 2016 campaign. Given that Mueller has interviewed pretty well everyone else associated with the campaign, and give that both of these individuals were at the June 2016 Trump Tower meeting with the Russians during the campaign, it is telling that neither has been interviewed. An obvious conclusion from this is that both are targets of the investigation and likely will be indicted before Mueller is finished.
All evidence points to Mueller filing multiple indictments for conspiracy to defraud the United States. It is a foregone conclusion that Stone and Manafort will be charged. It is quite possible that Don Jr. and Kushner will be charged as well.
About the third question, will Mueller show that Trump was aware of the conspiracy?
This is the million dollar question. Has Mueller found a smoking gun linking Trump to a criminal conspiracy with the Russians?
Clearly Trump is involved with, nay in bed with, Russia. One would have to be willfully ignorant to not notice how Trump has consistently thwarted efforts to sanction Russia, and how Trump has gone out of his way to have private conversations with Putin. But that is not the question. The question is whether Mueller can prove that Trump agreed to conspire with the Russians.
Mueller has hinted that he has some evidence of Trump’s direct involvement. As noted above, the Stone indictment indicates someone directed senior campaign officials to reach out to Stone. Exactly who could direct senior campaign officials? Was that Trump?
We do not know, although Mueller undoubtedly does.
- Mueller has already shown that member of the, or people associated with the Trump campaign coordinated with the Russians during the 2016 election.
- Information Mueller has released strongly suggests that individuals associated with the Trump campaign will be charged with criminal conspiracy.
- Mueller has yet to provide evidence that Trump was aware of, or involved in, this criminal activity.
So yes, I am still waiting with baited breath for Mueller to complete his investigation, and to see whether he implicates Trump in Russia’s efforts to influence the election.
Purported hackers obtained and leaked confidential information about special counsel Robert Mueller’s investigation as part of a pro-Russian disinformation campaign that appeared to be aimed at discrediting the inquiry, Mr. Mueller’s office disclosed Wednesday.
Mr. Mueller’s office had turned over the documents to a Russian firm fighting federal charges, Concord Management & Consulting LLC, as part of the disclosure process ahead of a trial.
.. This month, Concord’s attorneys criticized the judge overseeing the case, U.S. District Judge Dabney Friedrich, in an unusual filing saying she had created an appearance of bias in favor of the government. That came after Judge Friedrich, appointed to the bench by Mr. Trump, told Concord lawyer Eric Dubelier that he was engaging in unprofessional behavior in his attacks on Mr. Mueller’s team and told him to “knock it off.”
.. The Wednesday filing came in response to request by Concord to share documents with colleagues in Russia, including one of the indicted defendants, Yevgeny Prigozhin, who is a close ally of Russian President Vladimir Putin and known as the Kremlin’s favorite restaurateur.