Why the special counsel probably won’t subpoena the president.
.. Trump and his allies are now racing to undermine the legitimacy of Mueller’s investigation in the hope of muting the impact of its results. The longer the investigation takes, the more successful Trump’s campaign is likely to be. Mueller, therefore, would be well advised to weigh the burden of the time-consuming and distracting litigation that Trump would launch to block a subpoena against the limited value of Trump’s testimony and move on.
.. Clinton resisted sitting down with Ken Starr until the independent counsel obtained a subpoena. They then negotiated to allow Clinton to testify for four hours from the White House with his lawyer present and the grand jury connected by video.
.. Prior presidents also feared the political damage from appearing uncooperative with law enforcement. Trump has worked furiously to build political support for his resistance to cooperation and appears confident that his base and core supporters in Congress will insulate him from political consequences.
.. Mueller—because of the importance of obtaining spontaneous answers, asking follow-up questions and observing the witness’s demeanor—will not agree to anything less than live questioning.
.. Moreover, the precedent set by issuing a subpoena could be abused by less scrupulous prosecutors than Mueller to sully a president for political purposes.
.. Trump will respond to a grand jury subpoena with a protracted legal challenge that will go to the Supreme Court. At the very least, he is likely to challenge the constitutionality of the special counsel’s appointment; argue that Mueller has exceeded his authority by investigating tangential matters; urge the court to impose limits on the scope, time, place and manner of the questioning; and contend that much of the information the grand jury will seek is covered by executive privilege. Mueller is likely to prevail, but victory will take time and distract his team from wrapping up the investigation, while giving Trump endless opportunities to denounce the “witch hunt.”
.. Although taking the Fifth could be politically embarrassing, grand jury secrecy might prevent the public from learning of it.
Steve Bannon Will ‘Tell All to Mueller’
Special counsel subpoenas estranged Trump confidant Steve Bannon in Russia probe
declining to answer questions about his White House and presidential transition tenure in the House inquiry.. Mr. Bannon refused to answer some questions from Congress despite having been subpoenaed by the House committee while he was giving testimony... Mr. Bannon told lawmakers that he was willing to answer questions but that he had been asked by the White House not to disclose details about his time in the administration and the presidential transition between administrations.
.. Though his appearance before the House committee was at first voluntary, he was issued a mandatory subpoena by the committee in the middle of the meeting to force him to testify. Even after being issued the subpoena, Mr. Bannon remained unwilling to answer some of the questions, citing a request from White House attorneys
.. The White House is claiming that executive privilege governs any information Congress wants from Mr. Bannon’s stint in the White House and the presidential transition, the person close to Mr. Bannon said.
.. Mr. Bannon’s stance is that no executive privilege exists “within” the executive branch, given that Mr. Mueller, appointed by the Justice Department, “is part of the executive branch.”
Paul Manafort Is in Legal Jeopardy
But Trump may not be :
prosecutors do not obtain warrants to toss the homes of people they regard as cooperating witnesses. When they are dealing with cooperators, prosecutors politely request that documents be produced, expecting the witness (and his lawyers) to comply. If some coercion is thought necessary, they will issue a grand-jury subpoena — an enforceable directive to produce documents, but one that still allows the witness to hand over the materials, not have them forcibly seized. The execution of a search warrant, even if it goes smoothly, is a show of force. It is intimidating
.. I also emphasized its timing: predawn. Under federal law, search warrants are supposed to be executed during daytime hours, when agents can be expected to knock on the door, announce their presence and purpose, and be admitted by the occupant of the premises. If investigators want to search a home before 6 a.m., they need permission. To get it, they have to convince the judge that, if the occupant were alerted to the agents’ presence before they entered, it is likely he would destroy evidence or pose a danger.
.. the FBI entered covertly by picking the lock on Manafort’s front door while he was sleeping. Clearly, that is not standard operating procedure — certainly not in a white-collar case.
.. Mueller’s investigators wanted to start grabbing files and copying hard drives before Manafort had a chance to call his lawyers or impede the search in any way. It was their way of saying Manafort could not be trusted. That’s intimidating, too.
.. Being a foreign agent is not a crime, per se; whether the relationship is criminal depends on the nature of the actions the operative takes (including whether he has disclosed his agency, as required by federal law)
.. So in a FISA investigation, it is not necessary to show probable cause that a suspect has committed a crime in order to search his home or tap his phone; all that is needed is probable cause that he is acting as an agent of a foreign power.
.. the FISA surveillance took place in two phases:
- the first, from 2014 until sometime in early 2016;
- the second in late 2016 into early 2017
.. Initially, I suspect Manafort was investigated as an agent of the Kremlin-backed Yanukovich faction in Ukraine
.. subsequently, Manafort was investigated as a suspected agent of Russia in connection with the Putin regime’s meddling in the 2016 election. I am betting the probable-cause evidence was overwhelming in Phase I, and sketchy in Phase II.
.. the federal government is not permitted to use FISA as a ruse to conduct what is actually a criminal investigation
.. the criminal search warrant executed at Manafort’s home on July 26 would give us insight into what suspected crimes Mueller is investigating. There would have to have been a probable-cause showing of specific crimes before a judge authorized the warrant; and the warrant itself had to have described the evidence the agents expected to find.
.. Manafort has a good idea of what Mueller is after, because the agents were required by law to provide Manafort with a copy of the warrant and an inventory of what they seized. These have not been publicly revealed.
.. Not only did Manafort meet with Senate Intelligence Committee investigators the day before the search; he was also scheduled to testify before the Senate Judiciary Committee on the very day of the search. Indeed, by pouncing at the precise time Manafort was cooperating with Congress, Mueller’s investigators were able to seize binders of documents that Manafort and his counsel had prepared to assist his Senate testimony.
.. Obviously, though, Manafort would not have the same willingness to testify before Congress if he suddenly had reason to believe he was likely to be indicted (such that any testimony he gave could be used against him in a criminal case). The New York Times reports that Mueller’s prosecutors have told Manafort they intend to indict him. That, too, is intimidating.
.. CNN claims that the first FISA surveillance of Manafort was shut down in 2016, after over a year, due to “lack of evidence.” That is strange. Again, the point of FISA surveillance is not to build a criminal case but to gather intelligence about the foreign power for which the subject is allegedly acting as an agent. To say FISA surveillance was aborted for “lack of evidence” makes it sound like Manafort was not an agent for the Ukrainian faction after all.
.. Was any part of Steele’s claims used by the FBI in applications to the FISA court for surveillance and searches of Manafort or other Trump associates?
.. Was there correlation between (a) the intelligence generated by the FISA surveillance of Manafort and (b) the unmasking of people associated with the Trump campaign?
.. We should stress, of course, that if there was solid evidence of an espionage relationship between Manafort and the Kremlin, there would be nothing necessarily inappropriate in conducting surveillance and unmasking relevant American identities. The question is: Was there solid evidence?
Mueller Is Trumping Congress
Special prosecutors corrupt; independent counsels corrupt absolutely.
The main headlines of the past week—Is Donald Trump attempting to undermine Mr. Mueller? Will Trump Fire Mueller?—all speak to the challenge a special prosecutor poses to the constitutional authority of the president.
Far less scrutiny has been devoted to the challenge Mr. Mueller poses to the authority of the legislative branch. In this case, ironically, the challenge stems less from the aggressiveness of the special prosecutor than from the meekness of Congress. In between their public tributes to Mr. Mueller’s sterling character, too many in Congress seem to worry more about how they might be affecting his investigation than about what his investigation might be doing to theirs.
.. Mr. Mueller, an unelected appointee, had the Trump memos written by former FBI Director James Comey even as the FBI was refusing to release them to the elected representatives of the American people.
.. Here a May 2017 review from the Congressional Research Service is illuminating. Although witnesses before a congressional committee do have the right to invoke the Fifth Amendment, the House can get a court order directing the witness to testify so long as the threat of prosecution for that testimony is removed. Mr. Mueller might not like this, but that shouldn’t stop Congress from using a power designed to extract information rather than punish.
.. Even more intriguing, sensitive or privileged client information is not exempt from congressional subpoena. This might prove especially fascinating in the case of former Trump campaign manager Paul Manafort, who has had business dealings with a pro-Russia Ukrainian political party. Ditto for Glenn Simpson, whose Fusion GPS commissioned what became the Christopher Steele Russian dossier on behalf of political clients.
.. Not to mention the many other powers of Congress, including impeachment and the purse. The point is, Congress has many ways to get to the bottom of the Russia story and hold people accountable—if it so chooses.
.. In Anderson v. Dunn (1821), the Supreme Court correctly noted that without the power to imprison those found in contempt, Congress would be “exposed to every indignity and interruption, that rudeness, caprice or even conspiracy may meditate against it.” Two centuries later, the different examples of Ms. Lerner and Mr. Mueller both point to a brand new indignity—which Congress inflicts on itself when it is too timid to assert its own powers.