Blog No. 142 suggested on Tuesday that talk of impeachment was premature and possibly counterproductive. At the same time, it cautioned that dramatic events might lie ahead and that Trump’s capacity for self-inflicted wounds should not be underestimated. No sooner had the blog been posted than dramatic events began to appear in astonishing succession. Indeed, attempting to take in the cascade of information from Washington last week proved to be a bit like trying to drink from a fire hose. A few highlights may be helpful.
–On Tuesday, it was reported that FBI Director Comey had kept detailed notes of his conversations with President Trump and that, according to one memorandum, Trump had suggested to Comey a termination of the Flynn investigation, “I hope you can let this go.”
–On Wednesday, Deputy General Rod Rosenstein announced that he had picked former FBI Director Robert Mueller to act as special counsel to lead the Russia investigation.
–On Thursday, Rosenstein briefed the full Senate on the Russia investigation in a closed session and on Friday he gave a similar briefing to the House.
–On Friday, it was reported Trump had told the Russian Foreign Minister and Ambassador that he had been under “great pressure” because of the Russia investigation but that he had removed the pressure by firing Comey, whom he described as a “nut job.”
–Also on Friday it was reported that the FBI investigation of ties between Russia and the Trump campaign now extends to a senior official in the Trump White House as a person of interest.
Taking all of that together, it should be acknowledged that there are still not—yet—sufficient facts to justify an impeachment. And indeed there may never be. Trump has been compared to Hitler and Mussolini, but in one respect a comparison with Saddam Hussein may be apt. Saddam, it may be recalled, denied having Weapons of Mass Destruction and, as turned out, he apparently did not. Nevertheless, by repeatedly rebuffing and interfering with UN inspectors, he had convinced not only the Bush administration but the intelligence service of every major ally that he was guilty of concealing such weapons. So, in Trump’s case, if he is truly innocent, he has done a surprisingly effective job of portraying a man who has much to hide. Given the protections of our constitutional system, Trump will fare better than Saddam, but the effect on his administration is likely to be severe.
In any case, an investigation of Russian actions and connections with Trump associates is not a witch hunt or, as Trump also put it, a “taxpayer funded charade.” It is an extremely serious matter, and there is a continuing need for vigorous investigation by both Special Counsel Mueller and by Congressional Committees. Following Rosenstein’s presentation to the Senate, Senator Lindsey Graham and others suggested that the Congressional role would be substantially diminished so as not to interfere with the FBI investigations. I believe, however, that such a view is mistaken.
Investigations by the Special Counsel and by Congressional Committees have overlapping but distinct purposes. The principal responsibility of the Special Counsel is to determine if crimes have been committed and, if so, to prosecute them, except in the case of the President. In the latter case, the Special Counsel would refer the evidence to the House Judiciary Committee, which would be responsible for considering possible impeachment and, if appropriate, recommending that action to the full House. Work by the Special Counsel should be done as quietly as possible unless and until there is an indictment or a referral to the Judiciary Committee.
The purpose of Congressional investigations, however, is to determine, and to inform the public, not only as to what happened but also to recommend any legislation that might be called for to protect against interference by Russia or other foreign powers in the future. So far as “what happened” is concerned, the Congressional investigations will parallel that of the Special Counsel but their responsibilities differ. As the Washington Post observed:
[The Special Counsel’s] job is not to inform the public or to pass judgment on actions that may have been unwise, inappropriate or unethical — but did not violate the law. That is why this appointment does not let Congress off the hook. The American public needs a full accounting of Russian interference in the 2016 election; of American cooperation in that meddling, if any; and of administration efforts to impede investigations into the meddling and collusion, if they took place.
Congressional investigations must be carried out with respect for the work of the Special Counsel. But the possibility of conflict should not be crippling. It may be recalled that, in the case of Watergate, the Senate Select Committee (aka the Ervin Committee) played a crucial role in discovering and publicizing the presidential taping system that ultimately resulted in Nixon’s resignation. Testimony before the Ervin Committee by John Dean, John Ehrlichman, Bob Haldeman and others did not impede their subsequent prosecution and conviction.
The one area of concern may be in the granting of immunity by Congressional committees. In Watergate the special prosecutor, Archibald Cox, did attempt to block the grant of immunity to Dean and others, but when he failed to do so, it did not prevent successful prosecutions. On the other hand, Congressional immunity in the Iran-Contra scandal did result in the convictions of Oliver North and Admiral John Poindexter being overturned. In the present case it has been previously reported that General Michael Flynn has sought a grant of immunity in order to testify before Congress and others may as well. Clearly, Congressional committees should be cautious in granting immunity and should coordinate their consideration of any such grant with the Special Counsel.
Moreover, some witnesses may be willing to testify without immunity, including some for whom a demand for immunity might be politically untenable. One such witness might be Jared Kushner, Trump’s son-in law, who has a broad portfolio of assignments in the White House. The Washington Post story identifying a senior adviser who is a person of interest in the FBI investigation did not identify the individual, but several Twitter accounts and media outlets have claimed that it is Kushner. That claim has not been confirmed or endorsed by Trump’s bete noire, the mainstream media, but he is perhaps the most plausible candidate.
Kushner has acknowledged meeting with Russian Ambassador Sergei Kislyak and Sergei Gorkov, chairman of a Russian bank, Vnesheconombank. The bank was placed under sanctions following Russia’s seizure of Ukraine, and CNBC reported in March that Senate investigators wanted to question Kushner, as well as Flynn, about whether they discussed with Gorkov the possibility of the bank investing in the Kushner Co. building at 666 Fifth Avenue in New York or other Kushner or Trump properties if the new administration lifted the sanctions.
Kushner had previously expressed a willingness to be interviewed by the Senate Intelligence Committee concerning his contacts, but that has not occurred. Whether his offer is still open, and would extend to public testimony is unclear. The New York Times has reported that Kushner urged the firing of Comey and that when Rosenstein appointed Mueller, Kushner argued for a “counterattack.” The Times did not report, and it is difficult to imagine what sort of counterattack Kushner might have had in mind. But one is tempted to think there might have been an element of self-protection in his strategic counsels.
Another witness who would surely not ask for immunity is Deputy Attorney General Rod Rosenstein, who might be asked to testify about the circumstances concerning the memorandum he prepared that severely criticized James Comey and that was, for several days, claimed by the White House to be the very reason for Comey’s firing. Although Trump later admitted that he had other reasons to fire Comey, and had decided to do so before receiving the Rosenstein memorandum, the deployment of Rosenstein and his memo as a short-lived cover story, remains quite relevant in assessing Trump’s conduct. The subject was reportedly covered to some extent in Rosenstein’s closed-door briefings to the Senate and the House, but it appears that many questions were not asked and that some questions asked were not answered. In any case, closed-door briefings are no substitute for a public airing.
It may be pertinent to note here that on Monday, the New York Times reported a conversation between Comey and Ben Wittes, Editor of Lawfare, in which Comey had indicated reservations as to Rosenstein’s appointment as Deputy Attorney General. As later set out more fully in Lawfare, Wittes recalled that:
[Comey] said one other thing that day that, in retrospect, stands out in my memory: he expressed wariness about the then-still-unconfirmed deputy attorney general nominee, Rod Rosenstein. This surprised me because I had always thought well of Rosenstein and had mentioned his impending confirmation as a good thing. But Comey did not seem enthusiastic. The DOJ does need Senate-confirmed leadership, he agreed, noting that Dana Boente had done a fine job as acting deputy but that having confirmed people to make important decisions was critical. And he agreed with me that Rosenstein had a good reputation as a solid career guy.
That said, his reservations were palpable. “Rod is a survivor,” he said. And you don’t get to survive that long across administrations without making compromises. “So I have concerns.”
* * * *
So he was asking himself, I suspect: What loyalty oath had Rosenstein been asked to swear, and what happened at whatever dinner that request took place?
After receiving considerable criticism in the media, Rosenstein sought to repair his damaged reputation by announcing on Wednesday the appointment of Robert Mueller as Special Counsel. Mueller is uniformly respected for his integrity and relentless pursuit of facts and had worked closely with Comey when Comey was Deputy Attorney General in the Bush administrations. So perhaps Comey’s concerns were now moot. Or not. On paper, Mueller will have autonomy approaching that of an Independent Prosecutor, but he will remain under Rosenstein’s overall supervision. For example, one of the governing regulations is set out in 28 CFR 600.7 :
(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress specified in § 600.9(a)(3).
The possibility of conflict down the road cannot be ruled out. And Mueller might feel some constraint in examining the man who appointed him and who remains his superior. Hence a further reason for public testimony by Rosenstein before Congress.