Government Executive - Authors - Benjamin Wittes

Analysis: The Oversight Wars Are Not Going Away

Benjamin Wittes and Quinta Jurecic, The Atlantic — Tue, 11 Feb 2020 21:00:00 -0500

The impeachment trial of President Donald Trump has slouched to its preordained conclusion. But the confrontation between the president and the House of Representatives over the House’s oversight powers and the president’s authority to resist congressional demands for information and testimony is very much still ongoing.

Over the next few months, several of the skirmishes between Trump and the House are slated to come to a head. New ones may well develop. And all of them will tweak nerves left raw by the impeachment trial just completed, alongside a mounting presidential campaign in which Democratic candidates have very different postures toward Trump’s misdeeds.

The most immediate matter concerns one of the loose ends left over from the impeachment trial: what former National Security Adviser John Bolton knows. During the trial, a majority of senators voted against hearing what Bolton had to say about Trump’s pressure campaign against Ukraine, despite Bolton signaling that he would welcome the opportunity. But his story is unlikely to stay hidden for long. His memoir, a purported tell-all that reportedly contains damaging details of the president’s conduct toward Ukraine, is currently scheduled for publication in mid-March. And House Judiciary Committee Chairman Jerry Nadler said the House “will likely” subpoena Bolton following Trump’s acquittal, though House Intelligence Committee Chairman Adam Schiff has refused to commit one way or another, saying only that “the truth will come out.” Bolton slipped through the House’s grasp last year, but having since stated his willingness to testify before the Senate, he’s limited his options for defying a House subpoena.

Bolton has accused the White House of using the standard prepublication-review process to suppress his memoir by raising meritless claims that the book contains classified material. If the House does subpoena Bolton while the administration is still holding on to the manuscript, he might take that opportunity to tell his story and preempt the review process. Any concerns about classification, after all, could be resolved by holding a hearing closed to the public in the famous “basement bunker” the president has complained so much about. Alternatively, the review process might preempt a subpoena: Perhaps the review will finish in a timely manner after all and the book will go to press before the House manages to organize itself to call Bolton to testify. Either way, reporters will keep digging. The New York Times has already published damning articles based on accounts of Bolton’s book, detailing how Trump sought to enlist Bolton’s help in the pressure campaign against Ukraine.

Testimony from Bolton seems to be the splashiest information the House has yet to get its hands on, but the chamber is still seeking other material as well. The U.S. Court of Appeals for the D.C. Circuit will soon rule on two cases, one involving the House’s request for access to the grand-jury material related to the Mueller report and another concerning former White House Counsel Don McGahn’s claim that, as a close adviser to the president, he is absolutely immune from being compelled to appear before Congress. What’s more, the Supreme Court will hear arguments in March over subpoenas for Trump financial documents held by banks and an accounting firm; two of the subpoenas at issue were filed by House committees, and the third comes from an investigation by the Manhattan district attorney. Depending on how the courts rule, the cases could have a major role in shaping the scope of Congress’s power to compel documents and testimony.

There’s also the question of what more the House committees might choose to subpoena or demand. Particularly if the House prevails in the McGahn case, Democrats may feel emboldened to subpoena other senior government officials. These officials may well have plausible, even valid, claims of executive privilege before the legislature. But if McGahn loses, they’ll no longer be able to just refuse to show up. Such figures include key witnesses from the Ukraine scandal, such as Acting Chief of Staff Mick Mulvaney, and from the earlier Mueller investigation, such as former White House Staff Secretary Rob Porter.

Whether the House pursues these additional subpoenas depends a great deal on how aggressive the Democratic leadership is willing to be. Will the House be looking to put this confrontational period of oversight behind it and refocus on Democratic policy priorities going into an election year? If so, it’s likely to finish off its existing litigation over McGahn, grand-jury material, and financial records; tie off the loose end represented by John Bolton; and eschew subpoenas to actors like Mulvaney. Or will the leadership throw its energy behind forceful oversight of this administration?

Schiff and Nadler will be key in this decision making. But the single most important actor is Speaker of the House Nancy Pelosi. She was key to restraining impeachment for a number of months, and her okay was what let it go forward. What is her posture now?

Pelosi is known for her political pragmatism. A year ago, she feared that impeachment would alienate swing voters and energize and consolidate the president’s political base; the Ukraine scandal changed her mind. The coming months will look quite different depending on whether the speaker returns to that place of political caution or whether she concludes, after watching the way the impeachment process played out, that ongoing confrontation is a strategic winner for her caucus. The data on whether that’s the case are both preliminary and mixed. On the one hand, impeachment had relatively high public support, and hearing from witnesses had support from voters of both parties. On the other hand, polling suggests that the president’s approval rating during the process ticked up a bit, particularly in swing states, where impeachment was less popular. Pelosi could read the tea leaves here in any number of ways.

She may also find her situation varying greatly depending on who emerges as the Democratic presidential front-runner. Bernie Sanders, for example, seldom talks about Trump’s many scandals, beyond saying that Trump is the most corrupt president in the country’s history. He prefers to sound his policy themes, which are largely the same as they were in 2016 and are largely the same as they would be against any Republican. It’s not clear that aggressive House engagement on oversight would support, rather than distract from, the messages Sanders would want to emphasize in a campaign.

By contrast, Joe Biden has built his campaign around a relentless focus on Trump’s deviant behavior. Were he the presumptive nominee, the House might be inclined to be more aggressive, as its oversight efforts would specifically support themes the candidate would be highlighting on the stump. Pete Buttigeig and Elizabeth Warren are somewhere in between.

Finally, there’s the question of Trump’s own behavior, and that of his allies and subordinates. It would be easier for House Democrats to let impeachment flow more or less gracefully into the election without a lengthy set of investigative aftershocks if Trump “has learned from this case”—as Republican Senator Susan Collins credulously put it the other day—than if he continues to strike against people he perceives as his enemies. The early signs are decidedly not encouraging. Since his acquittal, Trump has given a truly deranged and unrepentant press conference and he has removed from their positions two of the key witnesses in the House investigation—Gordan Sondland and Lieutenant Colonel Alexander Vindman—along with Vindman’s brother, Evgeny. Trump’s personal lawyer, Rudolph Giuliani, has continued to push for investigations of Joe and Hunter Biden.

What’s more, Attorney General Bill Barr is continuing his own investigative efforts with respect to the origins of the Russia investigation. And with all the zeal of a recent convert to Trumpism, Senator Lindsey Graham, in his capacity as the chairman of the Senate Judiciary Committee, is pursuing an investigation of the Bidens’ activity in Ukraine as well. It will be nearly impossible for the House to lay low and deemphasize the oversight wars if Trump pushes these activities aggressively. It will be even more so if—as seems very likely—some new allegation of presidential abuse of power comes to light.

Trump’s impulsive abusiveness is the wild card in the ultimate future of this confrontation between the president and Congress. As T. S. Eliot put it about the Rum Tug Tugger, one of his famous “practical cats,” “he will do/As he do do/And there's no doing anything about it!”

Ultimately, the House will just have to respond.

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Analysis: The Crime of Doing the Right Thing

Benjamin Wittes, The Atlantic — Mon, 10 Feb 2020 10:07:36 -0500

In 2018, Donald Trump waited to move against Attorney General Jeff Sessions until the day after the midterm elections—but he didn’t wait a day longer than that. No sooner were the elections over than Trump dismissed Sessions, who had upset the president by recusing himself from the Russia investigation. Sessions, Trump believed, was “supposed to protect” him. The first senator to endorse Trump’s bid for the presidency never regained his favor.

Trump managed to wait two days after his Senate acquittal before taking care of family business, as Michael Corleone would put it, with respect to those who had upset him in the Ukraine affair.

Yesterday, he removed from the National Security Council staff Lieutenant Colonel Alexander Vindman—along with Vindman’s twin brother, who served as an NSC attorney, for good measure. Lieutenant Colonel Vindman had had the temerity to object to Trump’s “perfect” phone call with Ukrainian President Volodymyr Zelensky and then committed the unforgivable sin of telling the truth about the matter when the House impeachment investigation sought his testimony. The brothers were, according to reports, escorted out of the White House complex.

Explaining himself on Saturday on Twitter, Trump, of course, went on the attack:

Fake News @CNN & MSDNC keep talking about “Lt. Col.” Vindman as though I should think only how wonderful he was. Actually, I don’t know him, never spoke to him, or met him (I don’t believe!) but, he was very insubordinate, reported contents of my ‘perfect’ calls incorrectly, & was given a horrendous report by his superior, the man he reported to, who publicly stated that Vindman had problems with judgement, adhering to the chain of command and leaking information. In other words, “OUT”.

Trump also fired Gordon Sondland, the ambassador to the European Union, who had tried to play both sides—testifying in a fashion that upset Trump while being cagey at first and thus raising questions to House members about his candor. Sondland had managed to please nobody, and his presence on the scene at all was, in any event, a function of his large donation to the presidential inaugural committee. He had bought his way into service at the pleasure of the president and, having done so, proceeded to displease the president. Most eyes will, I suspect, remain dry as Sondland blusters his way back to the hotel business.

But Vindman is another story.

His was not a political position. He is an active military officer, rotating through the NSC on assignment. The president can put quotation marks around lieutenant colonel, as he did in the tweets, in an effort to demean Vindman’s service, but there is nothing to demean about his service, which has been in all respects honorable. The conduct for which his career has been attacked, what the president calls Vindman’s “insubordination,” was exceptionally brave truth-telling—both in real time and later when Congress sought to hear from him. When that happened, Vindman did not shrink from the obligation to say what had happened.

Unlike his boss, John Bolton, he did not withhold information from Congress, nor did he cite potential privileges that could be resolved only by court order or by book contract. Unlike Sondland, he didn’t waffle when called. Rather, along with a group of other public servants at the NSC, the State Department, and the Defense Department, he went up to Capitol Hill and told the truth.

And thus did Lieutenant Colonel Alexander Vindman join a very special club—a motley crew of public officials who have drawn the public ire of a president of uncompromising vindictiveness for the crime of doing the right thing. It’s a club composed of former FBI officials, including two former directors of the bureau; American ambassadors; a former attorney general; some lawyers and investigators; even the former ambassador to the United States from the United Kingdom—anyone who has a line he or she won’t cross to serve Trump’s personal needs or who insists on doing his or her job by not hiding unpleasant realities.

Membership in this ever less exclusive club entitles Vindman to a number of, uh, benefits: unending, random attack by the most powerful man in the world using any of his available means of communication with the entire globe; mockery and derision by his associated media outlets, a category of abuse that in Vindman’s case includes anti-Semitic insinuations and frivolous allegations of inappropriate liaison with a foreign power; the security threats that inevitably come with such unwanted attention; damage to a distinguished career, a dramatic example of which happened yesterday; and, perhaps most unnerving of all for people who are used to anonymity, a kind of notoriety that leaves club members wondering if the person catching their eye on the street recognizes them with hatred or admiration or something else.

It is all part of a civil-liberties violation so profound that we don’t even have a name for it: the power of the president to suddenly point his finger at a random person and announce that this is the point in the story when that person’s life gets ruined.

Membership in this particular club has some genuine benefits, too. They are hokey things, such as honor and patriotism and duty. Because one thing all of the members of this particular club have in common is that—in very different ways—they all tried to do their jobs. They sought the truth. And they told the truth when called upon to do so.

In his congressional testimony, Alexander Vindman promised his father, “I will be fine for telling the truth.” It is the solemn obligation of the Pentagon and the military brass not to make a naïf of him for saying this. It is the job of the Washington policy community and the private sector to make sure that he is employable when he leaves military service—a role the community has not always played effectively with respect to members of this particular club.

And it is all of our jobs to make sure that Trump’s stigmatization does not work, to push back against his ability to turn public servants into nonpersons when honor and truth-telling displease him.

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Viewpoint: If the Witnesses Could Exonerate Trump, Why Aren’t They Testifying?

Benjamin Wittes and Quinta Jurecic, The Atlantic — Mon, 09 Dec 2019 16:04:32 -0500

Speaking with George Stephanopoulos on ABC this weekend, Representative Matt Gaetz—one of President Donald Trump’s most relentlessly enthusiastic congressional supporters—had an unexpected suggestion for how the president should proceed in the impeachment inquiry. Mick Mulvaney, the director of the Office of Management and Budget and acting White House chief of staff, should testify before Congress, Gaetz argued—along with Secretary of State Mike Pompeo and perhaps even the president’s personal lawyer Rudy Giuliani. All three men have so far refused to cooperate with House requests for information. But, said Gaetz, “I think it would inure to the president’s advantage to have people testify who could exculpate him.”

This is the kind of thing one can say only if one has a certain confidence that the witnesses in question will not, in fact, testify. And Gaetz himself seemed to hedge, indicating that the need to preserve executive privilege made the question of Mulvaney’s and Pompeo’s testimony “a tough balance for the president.”

Whatever spin these three men might put on their interactions with the president, the facts that might be elicited from them, given the wealth of information about their activities in the Ukraine scandal, are most unlikely to exculpate Trump. And it’s not only them: There’s also Trump’s former national-security adviser John Bolton, who has publicly suggested that the White House harbors “fear of what I may say.” The last time Mulvaney opened his mouth at a public press conference, he openly admitted that military aid to Ukraine was held up, in part, pending “investigations.” Giuliani, meanwhile, seems to blab major admissions every time a journalist gets him on the phone—or every time he inadvertently butt-dials a journalist. And that’s before the former New York City mayor starts tweeting.

These are not people the president should want Congress to hear from.

What remains of Trump’s defense is only a question of his intent in doing the things that nobody disputes he did. There is no question that Trump had a conversation with Ukrainian President Volodymyr Zelensky in which he asked for an announcement of investigations into the Biden family and into a nutty conspiracy theory about Ukrainian possession of a Democratic server from the 2016 election. There is also no question that he froze aid to Ukraine. And there is no question, either, that his administration communicated to the Ukrainians that these two issues were tied—that the aid wouldn’t flow until the investigations were announced.

The questions on which Trump’s defense turns are, first, whether the president meant for these investigations to be targeted efforts to harm political opponents or whether his request reflected earnest anti-corruption concerns on his part; and, second, whether the linkage between aid and investigations reflected Trump’s own wishes and orders or whether it reflected freelancing by underlings.

A handful of witnesses are in a position to speak directly to Trump’s intent—all of whom have refused to testify. Though Trump said recently that Giuliani “wants to go before Congress,” the president’s lawyer has so far failed to show up in front of the House or the Senate. The House has not subpoenaed Pompeo’s testimony, but the Intelligence Committee report on impeachment writes that he “has not produced a single document sought by [Congress] and has not indicated any intent to do so going forward.” Mulvaney has outright defied a subpoena. After Bolton indicated that he wouldn’t comply with a subpoena absent a court order to do so, the House withdrew its demand for his testimony. The same is true of Bolton’s former deputy Charles Kupperman, who took the unusual step of asking the courts to weigh in on whether he had an obligation to comply.

Giuliani, of course, appears to have been in communication with the president about his activities in Ukraine: Trump told the team of administration officials working on Ukraine issues to “talk to Rudy,” several witnesses have testified. Pompeo was listening to the July 25 phone call with Zelensky in which Trump made his demands of Ukraine, was kept in the loop by Ambassador to the European Union Gordon Sondland about Sondland’s efforts to make the quid pro quo materialize, and met with the president about the withholding of aid to Ukraine. And according to the testimony of multiple witnesses, Mulvaney seems to have been directly involved in placing the hold on aid at the president’s request.

In Bolton’s case, testimony from numerous other witnesses has identified the former national security adviser as uncomfortable with Trump’s efforts on Ukraine—the “drug deal” between Sondland and Mulvaney, as he reportedly called it. The former National Security Council staffer Tim Morrison testified that Bolton directed him to draft a memo encouraging Trump to release the aid to Ukraine, though Bolton ultimately never presented the memo to the president. And Morrison also testified that Bolton met one-on-one with Trump about the withholding of aid. Bolton seems almost uniquely well positioned to speak to Trump’s state of mind on the issue. So, too, is Kupperman, who took over as acting national security adviser after Bolton departed the job on September 10—the day before the White House finally released the aid.

To the extent that the lack of testimony from these witnesses creates holes in the record, those are likely to be damning for Trump. Take Bolton, for example: According to Morrison, after meeting with Trump about the Ukraine aid, Bolton told Morrison that the president “wasn’t ready” to release the aid and that Morrison should “continue to look for opportunities” to convene a meeting with officials who could persuade Trump to do so. This doesn’t sound like Bolton was convinced that the president was legitimately concerned with addressing corruption in Ukraine.

The House of Representatives has received some criticism for not slowing down to try to compel testimony from these witnesses before moving forward with articles of impeachment. The merits of the criticism are complicated. It’s understandable that the House doesn’t want to let the White House goad witnesses into forcing long delays through drawn-out litigation over the merits of a subpoena. But the evidentiary record is, as a result, weaker on the matter of intent than it likely would be if these witnesses were actually made to testify.

Moreover, the failure to get testimony from these witnesses in House proceedings raises an odd possibility: that perhaps they will appear before Congress for the first time during the Senate’s impeachment trial. This is highly risky for whoever calls them to testify, whether that be the impeachment managers or, for some reason, Trump’s defense team. The last thing you want in litigation—and a Senate trial is, among other things, a high-stakes form of litigation—is to have key testimony from a witness, or multiple witnesses, you haven’t interviewed before and the parameters of whose stories are thus unknown.

This may well be what happens. If the House impeachment managers who prosecute the case in the Senate try to call these witnesses, it is likely—though not certain—that they could be compelled to testify. Ditto if Trump’s lawyers are foolish enough to call them as defense witnesses. Under the Senate impeachment rules, their testimony could be challenged, and a majority of senators could vote to block it. But the Senate rules presume that, absent such a vote, both sides get to call witnesses with relevant information. In the case of these particular witnesses, there would be both executive-privilege questions and—in Giuliani’s case—potential attorney-client-privilege questions. So while the likeliest scenario is that we will hear something from these witnesses in the context of the Senate trial, it’s not clear how much they’ll actually say.

But let’s imagine for a moment that the day comes when these men are compelled to testify—and that they tell the truth. Does anyone believe that the truth will set Trump free—that the real story here is that the president had long-standing concerns about corruption in Ukraine and earnest anxieties about Ukrainian intervention in the 2016 election, and that he asked for investigations out of a disinterested anti-corruption passion he has never exhibited before in his life?

Does anyone believe that Giuliani’s account of his own activities, which he has described in the past as part of his work as Trump’s defense lawyer, would support such a claim? Does anyone believe that Mulvaney’s story, given under oath, would support the notion that the president ordered the freeze in aid in a fashion not conditioned on the announcement of the investigations and not motivated by a desire to force their initiation?

If these men end up testifying, Republicans will face yet another moment of reckoning as the strongest defense of the president, and the last factual defense, falls away. In an ideal world, that would finally force them to acknowledge the outrageousness of the president’s conduct, and Trump’s support in Congress would plummet. More likely, they will revert to the last defense: that the phone call with Zelensky was, as the president has insisted, “perfect,” and that Trump’s abuse of power is actually a model of how presidents should behave—or if not that, then at least not impeachable behavior.

Whether Gaetz is being dishonest or whether he is deluding himself, he is very likely wrong about the missing testimony—which is almost certainly inculpatory material whose absence is protecting, not hurting, the president. Consider one final factor: If these men had exculpatory testimony to give, do you really think Trump would keep them from Congress for a hot second out of concern for protecting the prerogatives of his office?

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Mueller Is Laying Siege to the Trump Presidency

Benjamin Wittes and Mikhaila Fogel, The Atlantic — Tue, 04 Dec 2018 10:12:00 -0500

“Today is the first day I actually thought Donald Trump might not finish his term in office,” said the legal commentator Jeffrey Toobin on CNN last Thursday.

“This is the beginning of the end for Trump,” declared Neal Katyal, a former acting solicitor general, on MSNBC.

“The deal may be among the biggest news in the nearly 18-month investigation,” wrote Barry Berke, Noah Bookbinder, and Norman Eisen in The New York Times.

It happens this way every time: A big news event in the Trump-Russia investigation takes place, and commentators talk about it as though a house of cards were collapsing or a row of dominoes were falling. Each time, it’s the beginning of the end. Each indictment or plea is the “big one.” And then those expectations are disappointed. The sun rises the next day—in the east, as expected—and it sets in the west, as it did the day before. The Trump presidency endures.

This time it was the new plea deal from Michael Cohen, President Trump’s former lawyer and fixer. On Thursday, Cohen pleaded guilty to one count of lying to Congress, related to how long into the 2016 campaign he pursued building Trump Tower Moscow—and who exactly was aware of his efforts. In the surprise criminal information that formed the basis of his plea, Cohen admitted that, although he had told Congress the project had ended in January 2016, in advance of the Iowa caucus, planning for the project continued well into June 2016. What’s more, a person named in the criminal information as “Individual 1” but identifiable as Trump, along with his family members and his campaign officials, were briefed on Cohen’s efforts along the way. Additionally, Cohen was in contact with senior Russian officials about the matter.

The admission that the Trump Organization was working secretly—colluding, one might say—with the Russian government on a business deal late into the campaign and that Trump knew about this activity led many observers, including those quoted above, to treat this latest plea as the turning point for Special Counsel Robert Mueller’s investigation.

But the underlying metaphors are wrong. There is no sudden bend in the path of the investigation. There is no house of cards. The dominoes will not fall if gently tipped. The administration is not going to come crashing down in response to any single day’s events. The architecture of Trump’s power is more robust than that.

We need to stop thinking of it as a fragile structure waiting for the right poke to fall in on itself. Think instead of the myriad investigations and legal proceedings surrounding the president as a multi-front siege on a walled city that is, in fact, relatively well fortified.

Siege warfare is not a matter of striking precisely the correct blow at the correct moment at a particular stone in the wall. It is a campaign of degradation over a substantial period of time. While those inside the fortified city may rely only on the strength of their walls and their stored resources, the attackers can take their time. Volleys of projectiles—arrows or trebuchets—pepper the city walls and those atop them, while the strength of the defending army diminishes as soldiers slip away and food dwindles. Moreover, active conflict is an episodic, not a constant, feature of siege warfare; the enemy army can encamp outside the walled city and blockade it without firing a shot. Over time, the walls and defending forces become degraded to such a degree that the invaders are able to scale the walls and sack the city.

No, Mueller and his forces are not a Mongol horde, but the Trump White House is very much under siege.

Mueller’s army isn’t the only force encircling Trump’s fortress, but it is the largest and most active force, and it actually has several distinct encampments. One contingent of Mueller’s forces is charged with investigating efforts by the Russian government to interfere with the 2016 election. In this capacity, the special counsel’s office has indicted individuals associated with the Internet Research Agency, a Russian troll farm that has spread disinformation and propaganda on social media. His office also indicted 13 members of the Russian military intelligence organization, the GRU, in connection with deliberately hacking into the Democratic National Committee server and passing the fruits of that hack to WikiLeaks “to interfere with the 2016 U.S. presidential election.”

The immediate threat this particular force poses to the castle right now involves its evident interest in Roger Stone and the group of people around him. The GRU indictment does not name Stone, but he has publicly admitted that he is the person referred to in the indictment “who was in regular contact with senior members of the presidential campaign of Donald J. Trump” and who corresponded with a fake hacktivist persona used by the Russians.

This front of the siege has become hot in recent months and will likely remain an area of intense activity over the coming weeks. Recently, Jerome Corsi publicly shared a draft statement of offense in connection with a plea agreement offered him by the special counsel’s office. The document details contact between Corsi and an individual reported to be Stone regarding WikiLeaks’ planned release of the hacked material. Moreover, in the coming weeks, the U.S. Court of Appeals for the D.C. Circuit is expected to rule on whether Andrew Miller, another Stone associate, is obligated to testify before Mueller’s grand jury. Miller had appealed a contempt citation, contending that Mueller’s appointment was unconstitutional. Stone and Corsi both seem to expect indictments.

This front is likely to remain active and to generate big news events. But note as well if and when either man or both face charges, that will not be the sky falling for Trump any more than last week’s Cohen plea was. It will be just another set of stones blasted out of the city walls.

Last week’s events revealed another force surrounding the castle, also under Mueller’s command: the investigation of Trump’s efforts to do financial business in Russia. The president, while insisting there was “NO Collusion with Russia,” admitted that he “lightly looked” into building a tower in Moscow months into the 2016 campaign. Trebuchets from the Cohen front sounded into Friday evening, when Cohen’s lawyers filed a sentencing memorandum as a follow-up to the guilty plea. In the memo, Cohen’s legal team said that Cohen “remained in close and regular contact with White House–based staff and legal counsel to Client-1,” another euphemism for Trump. It’s unclear to what extent this investigation is one and the same with the main Mueller collusion force, but it is evidently an active matter, too.

Mueller’s forces also include a major encampment focused on obstruction of justice. This force has so far not done anything the public can see, but it may be getting ready to launch some kind of report against the castle. And this report, whenever it materializes, may prove devastating. But note that the day such a report is completed will also not be the “big one”—the cataclysmic event that causes the house of cards to collapse. After all, any report would likely have to undergo a lengthy approval process, either from within the Justice Department or by the courts, or both. It might have to be approved by Matthew Whitaker, the acting attorney general, before being released. It may have significant classified components. Even if the findings in this report are of bombshell proportions, given that it is unlikely Mueller will reject Office of Legal Counsel guidelines against the indictment of a sitting president, the damage that bombshell will inflict will ultimately be determined by Congress, and its detonation would likely be substantially delayed.

The forces in the castle have actually fought off one part of the besieging fighters. Paul Manafort has floated in and out of headlines throughout the siege. He was the first person, along with his longtime business associate Rick Gates, to be charged by the special counsel in October 2017 for various financial crimes. After his first conviction and subsequent guilty plea and cooperation agreement, his “flipping” appeared to pose a major threat to Trump. But that threat seems to have passed. The special counsel has declared that Manafort is still lying and has breached his plea agreement, and will file a memo this week detailing the extent of Manafort’s breach. This sucks for Manafort, but it’s great news for the folks in the castle. He’s almost certainly useless at this stage as a witness for Mueller. The part of the siege represented by Manafort has, at least for now, lifted.

Possibly more threatening, if less high profile, is Michael Flynn, the former national-security adviser, who is expected to appear for sentencing on December 17. Flynn’s sentencing hearing has been delayed for months, signaling active cooperation of some sort. Back in December 2017, Flynn pleaded guilty to lying to the FBI in relation to conversations with then-Russian Ambassador Sergey Kislyak. He’s been silent since. Nobody knows what his cooperation with Mueller has consisted of—and thus how worried the forces in the castle should be about the Flynn encampment.

Cohen’s sentencing memo highlighted the presence of some allied forces around the castle separate from Mueller. It described, for example, Cohen’s cooperation with prosecutors in the U.S. attorney’s office in the Southern District of New York, the prosecutors who reached Michael Cohen’s first plea agreement back in August. You remember this force: Cohen pleaded guilty to eight felonies of tax evasion, one count of bank fraud, and two counts of campaign-finance violations involving hush-money payments to Stormy Daniels and Karen McDougal. This front is also active. The Wall Street Journalrecently reported that David Pecker, CEO of American Media Inc., has been granted immunity in the criminal investigation related to the investigation into Cohen. Allen Weisselberg, the longtime chief financial officer of the Trump Organization, was also granted limited immunity in this case. This front could explode at any time, but again, if and when it does so, the sun will rise and set the next day then too.

Cohen’s Saturday sentencing memo also put the spotlight on a non-federal front in this siege: New York Attorney General Barbara Underwood’s civil suit against the Trump Foundation for “a pattern of persistent illegal conduct, occurring over more than a decade,” for which she seeks $2.8 million in restitution. As the Cohen sentencing memo notes, Cohen has cooperated extensively with this suit as well as with investigations run by New York tax authorities.

There is also an encampment made up of private litigants. Trump is facing civil litigation regarding possible violation of the Emoluments Clause pending in the District Court for the District of Columbia. The plaintiffs are Democrat lawmakers. He also faces additional lawsuits challenging the constitutionality of his appointment of Matthew Whitaker as acting attorney general following the forced resignation of Jeff Sessions.

Finally, there’s the big new army marching on the Trump fortress, with an expected arrival of January 3, 2019: The leadership of the new Congress has already promised to intensify oversight of this administration. Representative Adam Schiff, incoming head of the House Intelligence Committee, has hintedat a restart of that committee’s moribund investigation into Russian interference in the 2016 election. Other committees will be aggressive as well.

Meanwhile, the castle’s defenders are slipping away at night: John Dowd, the president’s personal lawyer, has left matters in the dubious hands of Rudy Giuliani and Jay Sekulow. The White House counsel’s office is a ghost town. Ty Cobb and White House Counsel Don McGahn are both gone. The office now appears to be manned by acting White House Counsel Emmet Flood and a skeleton staff of 25 lawyers (of the estimated 40 it would require to handle its workload).

So what will the big one look like, if not some Mueller-lobbed bombshell? When the walls are finally breached, how will we know that it really is the beginning of the end? Here’s a hint: The big one will not be a legal development, an indictment, or a plea. It will be a political development—that moment when the American political system decides not to tolerate the facts available to it any longer. What does that look like? It looks like impeachment. It looks like enough Republicans breaking with the president to seriously jeopardize his chances of renomination or reelection. The legal developments will degrade the walls. But only this sort of political battering ram can breach them.

Not all sieges succeed. Mont-Saint-Michel, a tiny fortified island off the coast of France, withstood English siege for the entirety of the Hundred Years’ War. If the political system does not come to care about what we are learning, it doesn’t matter how many boulders Mueller hurls against the walls of Castle Trump; the forces laying siege to it will, like the defeated Ottoman Empire after the siege of Vienna, eventually slink away into the snow.

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Analysis: The Flaw in Trump's Obstruction-of-Justice Defense

Benjamin Wittes, The Atlantic — Mon, 04 Jun 2018 15:53:59 -0400

President Trump’s lawyers, in a letter released over the weekend, staked out bold the ground that the president can’t commit obstruction of justice in his interactions with the federal law-enforcement apparatus—neither by firing investigators nor by interfering with their performance of their duties. In the letter, written back in January to Special Counsel Robert Mueller and recently leaked to The New York Times, they write that “the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”

For understandable reasons, this argument has a lot of people reaching for the smelling salts. It has, after all, overtones of both Richard Nixon’s claim that “when the president does it, that means that it is not illegal” and also of the executive power absolutism that scared a lot of people during the George W. Bush administration.

This may surprise some readers, but I actually don’t think the argument is frivolous. How exactly the obstruction-of-justice statutes interact with the president’s broad powers to supervise the executive branch under Article II of the Constitution is a genuinely difficult question. There is no doubt in my mind that Article II limits to a considerable degree the application of the obstruction statutes to the president when he is acting in his capacity as chief law-enforcement officer of the country.

The president’s argument leads to an absurdity and it therefore must have a flaw, but identifying what precisely is wrong with it is a bit of a puzzle. And it’s worth doing carefully—not simply dismissing the argument because of the clownish aspects of the letter or because of the argument’s audacity.

The key question here is not whether Article II limits the application of the obstruction laws but how much it does so—whether it does so absolutely or only partially. And critically, if it does so only partially, what is the principle under which the obstruction statutes operate against the president?

This is a puzzle over which I have no doubt Mueller’s team has spent a lot of time. It’s a question on which we have relatively little solid law, but Mueller simply could not conduct a protracted obstruction investigation without having developed a theory of whether and how and the president can and cannot violate the obstruction statutes. I don’t know Mueller’s theory. But here is how I would think about the question if I were in his shoes.

Let’s dispense with the easy question first: It is definitely possible for a president to obstruct justice. A president who coaxes a witness to lie, who pays off a witness, who bribes a juror, or who picks up the phone and threatens a federal judge would of course be amenable to criminal prosecution (at least after he leaves office) for obstruction of justice. There would be no plausible defense that he was entitled to do these things because of Article II. This is why both Richard Nixon and Bill Clinton faced plausible criminal jeopardy under the obstruction statutes: In both cases, their obstructive behaviors went well beyond their management of the Executive Branch.

But the allegations against Trump are different, and trickier. They are allegations that his use of his acknowledged Article II powers might constitute an obstruction. The allegations all involve acts—firing people, for example, and supervising investigations and staff—that the Constitution specifically gives the president the power to do. So these allegations raise a different question: Is it possible for a president to obstruct justice in the context of performing his constitutionally assigned role, that is, using only otherwise valid exercises of his constitutional powers?

Before your knee jerks as you exclaim, “Of course!” keep in mind that Congress cannot with a mere criminal statute take away power that the Constitution gives the president. With that principle in mind, it simply has to be the case that Article II, at least to some degree, limits application of the obstruction statutes to otherwise valid presidential actions.

This is a question I considered at some length at Lawfare back in December, and that analysis continues to apply today. The president has the inherent authority to direct the Executive Branch. And to direct sometimes means to hold back, which is to say to obstruct. I don’t doubt that there are many presidential acts that would constitute obstructions of justice if anyone but the president engaged in them but which constitute legitimate exercises of presidential power when the president engages in them.

If this sounds Nixonian, a few examples should suffice to show that it is clearly correct and not even troubling from a democratic perspective. If anyone other than Congress impeded the bringing of terrorism suspects to court for trial, it would arguably constitute an obstruction of justice. When Congress does precisely that by passing a law, we call it a transfer restriction and we don’t even think about obstruction of justice. If anyone but a president sought to unilaterally invalidate a criminal conviction and set a felon loose from prison, we would be horrified. The president has that explicit constitutional power in the pardon and commutation authority.

The nature of constitutional delegations of power is that they entitle the empowered official to do certain things that other people can’t do. So the president is immune from obstruction-of-justice charges for pardoning Joe Arpaio, though the effect of the pardon was certainly to obstruct the due administration of justice in a pending case and though Trump issued the pardon with specific intent to do precisely that. Similarly, firing former FBI Director James Comey was, in and of itself, not a criminal act but a step that the president had the authority to take.

But the obstruction statutes are a tricky business. By their terms, they generally do not prohibit specific acts alone. They prohibit those acts when taken “corruptly, or by threats or force, or by any threatening letter or communication.” They prohibit those acts when someone engages in them “willfully” and with specific intent to tamper with the justice system. They use words like “corruptly persuade.” The same exact act can be an obstruction of justice or not depending entirely on what the perpetrator of that act intends. Consider the phrase, “That’s a nice house. It would be a shame if something happened to it.” If you’re an insurance salesman, that’s a homeowner’s insurance sales pitch. If you’re a mobster and you’re speaking to a potential witness, that’s a textbook violation of the witness-tampering statute.

Note that you have the First Amendment right to speak those specific words every bit as much as the president has the inherent authority under Article II to manage the executive branch. So the fact that you have the right to say those words does not answer the question of whether you have the right to say them with the specific intent of committing a federal crime. A judge has inherent authority to manage her courtroom, but if she maliciously holds a grand juror in contempt specifically to prevent him from voting in a fashion she doesn’t like on an indictment of a mobster who has befriended her, that presumably violates the obstruction statute that prohibits “corruptly, or by threats or force … [impeding] a grand or petit juror … in the discharge of his duty.”

So yes, the president’s lawyers are correct when they argue that the president isthe executive branch, so presidential obstruction of justice might produce the tautology of the president’s obstructing himself. The Justice Department and the FBI are merely arms of the president, after all. And this might be a compelling answer to an obstruction question where the obstruction takes place entirely within the executive branch.

But here’s where we come to what I think is one significant flaw in the president’s legal theory. Major criminal investigations seldom do take place entirely within the executive branch. Criminal investigations take place in a complex interaction between the Justice Department and grand juries, which are instrumentalities of the judiciary, and they end up in court in criminal proceedings. A facially valid action taken in the service of managing the executive branch, if taken with specific intent to commit a crime in order to influence a judicial proceeding, can theoretically violate statutes designed to protect the judicial function.

To understand this point, let’s consider a few hypothetical examples which all involve facially valid presidential action to supervise the executive branch, but which I think should be understood as obstructions of justice: What if the president offered for sale the dismissal of cases to defendants? This would be bribery, and that the president would be subject to impeachment and later prosecution for that. But now think about the obstruction case that would arise as well. The other participants in this scheme would all presumably be vulnerable to prosecution for obstructing justice, as well as for bribery. Would the (former) president get a pass on this count of the indictment because the dropping of the cases was itself within his power to order?

What if the president directs his Cabinet to do whatever is necessary to shut down the Mueller investigation—not specifying the means or ordering anyone to do anything illegal, but making clear that he will issue whatever pardons are necessary to anyone who effectuates his will. The president, in such an instance, would do nothing but engage in the lawful function of directing the senior officers of the executive branch—without even specifying a particular action, just a particular outcome. Would we really say that the fact that he has the authority to direct the conduct of the executive branch substantively immunizes him from a charge of obstruction? If one of his Cabinet officers subsequently takes dramatically illegal action based on his direction and promise of a pardon, does the president have no criminal exposure here?

Finally, imagine that a federal judge’s daughter works in the Justice Department. And imagine that the president directs Attorney General Sessions to make sure she gets outrageous promotions and that he does so with the specific intent of influencing her mother’s handling of a case he cares about. Imagine, for that matter, that he tells her this explicitly: “I’m taking care of you so your mom will take care of me.” All he would have done, of course, is manage the executive branch. He is as entitled to promote a young Justice Department lawyer as he is entitled to fire his FBI director. Would we really say that the obstruction statutes here do not operate?

Good faith has to matter. At some point, specific intent has to matter, too. That’s what the statutes all say. And I think it’s actually what the Constitution says, too.

The president takes an oath of office in which he promises to “faithfully execute the Office of President of the United States” and he is obliged by the Constitution to “take Care that the Laws be faithfully executed.” The law professors Eric Posner and Daniel Hemel suggest a legal test in which “a president commits obstruction of justice when he significantly interferes with an investigation, prosecution, or other law enforcement action to advance narrowly personal, pecuniary, or partisan interests.” I can imagine other formulations of the same rough idea. The key point, however, is the prosecutor’s obligation to prove—when dealing with a president—that the allegedly obstructive action was taken provably outside the contours of the president’s oath office and his take-care clause obligations. When that happens, the obstruction statutes should apply to the president every bit as much as they do to anyone else—even if he is purporting to manage the executive branch.

This understanding puts a significant burden on a prosecutor—a burden that would require Mueller to prove not merely that Trump took steps that look suspicious or may have been self-interested but that he took them in bad faith and that his actions cannot plausibly be understood to flow from any legitimate presidential-management objective. This burden might not be surmountable in the real world, though it might. But at least in theoretical terms, it is quite different from saying that the president is immune as a matter of law from charges of obstruction for acts within his Article II authority.

To amend Nixon’s crude formulation, it’s an understanding that when the president does it, that probably means that it is not illegal—or at least that its illegality will be hard to prove.

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How Obama decides your fate if he thinks you're a terrorist

Daniel Byman and Benjamin Wittes, The Atlantic — Thu, 03 Jan 2013 09:10:28 -0500

Over the past two years, the Obama administration has begun to formalize a so-called "disposition matrix" for suspected terrorists abroad: a continuously evolving database that spells out the intelligence on targets and various strategies, including contingencies, for handling them. Although the government has not spelled out the steps involved in deciding how to treat various terrorists, a look at U.S. actions in the past makes evident a rough decision tree.

Understanding these procedures is particularly important for one of the most vexing, and potentially most dangerous, categories of terrorists: U.S. citizens. Over the years, U.S. authorities have responded with astonishing variety to American nationals suspected of terrorism, from ignoring their activities to conducting lethal drone strikes. All U.S. terrorists are not created equal. And the U.S. response depends heavily on the role of allies, the degree of threat the suspect poses, and the imminence of that threat -- along with other factors.

Read the entire story at The Atlantic.

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