MSNBC Chief Legal Correspondent, Ari Melber, breaks down how the most devastating claim made by Michael Cohen during his public testimony before the House Oversight Committee, is relevant to the Mueller probe. Melber walks through how Michael Cohen’s allegation that Trump was aware of the Wikileaks email dump before it happened, could potentially contradict Trump’s own written answers to Special Counsel Mueller.
Indeed,the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful, subversive acts.
The President, as far as I know,is not being accused of engaging in any wrongful act of evidence impairment. Instead, Mueller is proposing an unprecedented expansion of obstruction laws so as to reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution. It appears Mueller is relying on 18 U.S.C. §1512, which generally prohibits acts undermining the integrity of evidence or preventing its production. Section 1512 is relevant here because, unlike other obstruction statutes, it does not require that a proceeding be actually “pending” at the time of an obstruction, but only that a defendant have in mind an anticipated proceeding. Because there were seemingly no relevant proceedings pending when the President allegedly engaged in the alleged obstruction, I believe that Mueller’s team is considering the “residual clause” in Section 1512 — subsection (c)(2) —as the potential basis for an obstruction case. Subsection (c) reads: (c) Whoever corruptly– (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction]. [emphasis added].
As I understand the theory, Mueller proposes to give clause (c)(2), which previously has been exclusively confined to acts of evidence impairment, a new unbounded interpretation. First, by reading clause (c)(2)in isolation, and glossing over key terms, he construes the clause as a free- standing, all-encompassing provision prohibiting any act influencing a proceeding if done with an improper motive. Second, in a further unprecedented step, Mueller would apply this sweeping prohibition to facially-lawful acts taken by public officials exercising of their discretionary powers if those acts influence a proceeding. Thus, under this theory, simply by exercising his Constitutional discretion in a facially-lawful way — for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power ~ a President can be accused of committing a crime based solely on his subjective state of mind. As a result, any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.
If embraced by the Department, this theory would have potentially disastrous implications, not just for the Presidency, but for the Executive branch as a whole and for the Department in particular. While Mueller’s focus is the President’s discretionary actions, his theory would apply to all exercises of prosecutorial discretion by the President’s subordinates, from the Attorney General down to the most junior line prosecutor. Simply by giving direction on a case, or class of
.. cases, an official opens himself to the charge that he has acted with an “improper” motive and thus becomes subject to a criminal investigation. Moreover, the challenge to Comey’s removal shows that not just prosecutorial decisions are at issue. Any personnel or management decisions taken by an official charged with supervising and conducting litigation and enforcement matters in the Executive branch can become grist for the criminal mill based solely on the official’s subjective State of mind. All that is needed is a claim that a supervisor is acting with an improper purpose and any act arguably constraining a case — such as removing a U.S. Attorney — could be cast as a crime of obstruction.
.. It is inconceivable to me that the Department could accept Mueller’s interpretation of §1512(c)(2). It is untenable as a matter of law and cannot provide a legitimate basis for interrogating the President. I know you will agree that, if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime — not a debatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.
.. First, the sweeping interpretation being proposed for § 1512’s residual clause is contrary to the Statute’s plain meaning and would directly contravene the Department’s longstanding and consistent position that generally-worded statutes like § 1512 can not be applied to the President’s exercise of his constitutional powers in the absence of a“clear statement”in the statute that such an application was intended.
Second, Mueller’s premise that, whenever an investigation touches on the President’s own conduct, it is inherently “corrupt” under § 1512 for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President’s supervisory authority. Moreover, such a limitation cannot be reconciled with the Department’s longstanding position that the “conflict of interest” laws do not, and cannot, apply to the President, since to apply them would impermissibly “disempower” the President from supervising a class of cases that the Constitution grants him the authority to supervise.
.. Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.
.. Fourth, even if one were to indulge Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt”unless the President and his campaign were actually guilty ofillegal collusion. Because the obstruction claim is entirely dependent on first finding collusion, Mueller should not be permitted to interrogate the President about obstruction until has enough evidence to establish collusion.
President Trump so alarmed his defense secretary, Jim Mattis, during a discussion last January of the nuclear standoff with North Korea that an exasperated Mr. Mattis told colleagues “the president acted like — and had the understanding of — a ‘fifth or sixth grader.’”
At another moment, Mr. Trump’s aides became so worried about his judgment that Gary D. Cohn, then the chief economic adviser, took a letter from the president’s Oval Office desk authorizing the withdrawal of the United States from a trade agreement with South Korea. Mr. Trump, who had planned to sign the letter, never realized it was missing.
.. book by Bob Woodward that depicts the Trump White House as a byzantine, treacherous, often out-of-control operation — “crazytown,” in the words of the chief of staff, John F. Kelly — hostage to the whims of an impulsive, ill-informed and undisciplined president.
.. The White House, in a statement, dismissed “Fear” as “nothing more than fabricated stories, many by former disgruntled employees, told to make the president look bad.”
.. Mr. Woodward portrays Mr. Mattis as frequently derisive of the commander in chief, rattled by his judgment, and willing to slow-walk orders from him that he viewed as reckless.
.. Mr. Trump questioned Mr. Mattis about why the United States keeps a military presence on the Korean Peninsula. “We’re doing this in order to prevent World War III,” Mr. Mattis responded, according to Mr. Woodward.
.. In April 2017, after President Bashar al-Assad of Syria launched a chemical attack on his own people, Mr. Trump called Mr. Mattis and told him that he wanted the United States to assassinate Mr. Assad. “Let’s go in,” the president said, adding a string of expletives.
The defense secretary hung up and told one of his aides: “We’re not going to do any of that. We’re going to be much more measured.” At his direction, the Pentagon prepared options for an airstrike on Syrian military positions, which Mr. Trump later ordered.
.. another layer to a recurring theme in the Trump White House: frustrated aides who sometimes resort to extraordinary measures to thwart the president’s decisions — a phenomenon the author describes as “an administrative coup d’état.” In addition to Mr. Mattis and Mr. Cohn, he recounts the tribulations of Mr. Kelly and his predecessor, Reince Priebus, whose tensions with Mr. Trump have been reported elsewhere.
.. Mr. Cohn, Mr. Woodward said, told a colleague he had removed the letter about the Korea free trade agreement to protect national security. Later, when the president ordered a similar letter authorizing the departure of the United States from the North American Free Trade Agreement, Mr. Cohn and other aides plotted how to prevent him from going ahead with a move they feared would be deeply destabilizing.
.. Last January, Mr. Woodward writes, Mr. Dowd staged a practice session in the White House residence to dramatize the pressures Mr. Trump would face in a session with Mr. Mueller. The president stumbled repeatedly, contradicting himself and lying, before he exploded in anger.
.. Mr. Woodward told Mr. Trump he interviewed many White House officials outside their offices, and gathered extensive documentation. “It’s a tough look at the world and the administration and you,” he told Mr. Trump.
“Right,” the president replied. “Well, I assume that means it’s going to be a negative book.”
WASHINGTON— Rudy Giuliani said Sunday that President Donald Trump would only submit to an interview with Robert Mueller if the special counsel could show a “factual basis” for the Russia investigation, which he characterized as corrupt.The new statement from Mr. Trump’s lawyer, repeated on three Sunday news shows and in an interview with the New York Times, suggests prospects are receding for a sit-down between the president and Mr. Mueller... “We would not recommend an interview for the president unless they can satisfy us that there is some basis for this investigation,” Mr. Giuliani said on NBC, a hardening of the White House’s stance after months of negotiations on the terms under which the president would agree to testify.
The special counsel investigation was established by Deputy Attorney General Rod Rosenstein to handle the FBI’s Russia investigation, which began in 2016, after Mr. Trump fired FBI Director James Comey in May 2017.
The enabling documents for the probe authorize Mr. Mueller to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” as well as “any matters that arose or may arise directly from the investigation.”
.. Lawyers for Mr. Trump had been eyeing early July as a possible time for an interview with the special counsel, likely at Camp David or the White House and lasting for about 2½ hours.
.. Earlier this year, Mr. Trump said he would be willing to testify under oath. But Mr. Giuliani later struck a more combative stance, saying he should only agree to such a meeting if federal prosecutors made clear the role played by a suspected informant said to have approached Trump campaign aides.
.. Mr. Giuliani said the investigation wouldn’t find any “evidence of wrongdoing” by the president.
“I have a pretty good idea because I have seen all the documents that they have,” Mr. Giuliani said on CNN, adding the investigation had produced 1.4 million documents.
.. Mr. Giuliani cited an inspector general report that found a former Federal Bureau of Investigation agent on Mr. Mueller’s team, Peter Strzok, had sent text messages critical of Mr. Trump. Mr. Strzok was reassigned from his post last summer after Mr. Mueller learned about the messages. “It cast a taint over the entire investigation,” Mr. Giuliani said on ABC. He added: “This is the most corrupt investigation I have ever seen.”
.. Mr. Trump would be “like a lamb going to the slaughter” if he were to testify, Mr. Giuliani added.
.. Mr. Giuliani also said he had “zero” concerns about Mr. Trump’s longtime personal lawyer Michael Cohen speaking with federal prosecutors as part of a separate probe into Mr. Cohen’s business dealings. Mr. Cohen has denied any wrongdoing. “As long as he tells the truth,” said Mr. Giuliani, “We’re home free.”