Blog No. 143. Notes from a Witch Hunt

The Hunt of the Witch Trump, Marian Kamensky, 2017

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.

11 thoughts on “Blog No. 143. Notes from a Witch Hunt

  • Another insightful post, Doug, on the difference between the two investigations.

    I had just posted a comment agreeing with you that talk of impeachment should be measured when the next shoe fell. And the the next and the nest and the next. I’m tempted to say we are dealing with a centipede, but I think it is more like a millipede. What will the next shoe to drop?

  • Doug, this may be your most informative post to date (which is saying a lot!).
    Meanwhile, I somehow missed the report that Kid Kushner had recommended a “counterattack” in response to the appointment of Special Counsel Mueller. Say what???
    I also missed Alan Dershowitz’s input (“another precinct heard from,” as my husband would say), but there’s a word many use when describing Mr. Dershowitz…which I shall refrain from repeating in your high-minded blog.

  • As Doug said there are not yet suffient facts to justify an impeachment, what he should have said is that that are no facts to justify one.

  • I’m with Bill here. Thanks very much for the clarifying post. There are so many conflicting versions out there, it’s hard to part the weeds enough to find the grass. While Dershowitz probably does have his own agenda (what a shock…Washington beltway types have an agenda!) I still value his input. He is a democrat who voted for Hilary, a smart Harvard professor of law, and well acquainted with all the rules of the games played in DC. I am still hopeful Trump will flounder into some positive things accomplished for this nation…against all odds and against his own proclivity to screw up. We’ll see. For now, I’m holding on to my illusions.

  • The events of tthe past several weeks –beginning with the fiasco surrounding Mike Flynn and ending withb the firing of James Comey — bear a striking resemblance to Watergate.

    President Nixon probably had no prior knowledge of the burglary of the DNC headquarters at the Watergate apartments. But his associates did, and Nixon’s efforts to cover up for them lead to his downfall.

    The same may prove true of Trump’s efforts to protect his friends — who may not be his accomplices — with regard to Russia’s meddling in our last presidential election.

    Trump’s palpable and almost constant stream of lies (and lies about lies) make him an easy target for a savy special counsel like Robert Mueller — a professional friiend and fellow FBI director of James Comey.

    Trump also happens to be a very weak leader — perhaps the most ignorant and ill-suited man for the office of the presidency in our nation’s history.

    Unlike Nixon, he has no saving graces and his fall from power may be swift.

    .

  • Thanks, Doug, for a very clarifying and informative post. How the various investigations differ, interact, and overlap is confusing, and your analysis helps. While underway, they certainly attract a significant bulk of Administration attention, slowing down any progress towards realizing the goals of their political agenda. Those of us opposed to their agenda don’t mind that, but unfortunate to again see our government stymied from effective functioning for a perhaps extended period.

  • We should have an early indication of how much leeway Mueller will give the Congressional committees when we see if Comey goes through with his agreed-upon public testimony after Memorial Day. Meanwhile, Alan Dershowitz made two very interesting points: (i) there is no obstruction of justice where a President instructs his FBI director to handle a pending investigation in a particular way because it the President is vested with the constitutional authority to do just that as head of the executive branch; and (ii) even if it were shown that Trump or his campaign had “colluded” with Russian governmental agents after the DNC breach, that in and of itself is not a crime. (He assumes that the “collusion” did not entail participation in the hacking scheme itself or the receipt of illegal foreign campaign contributions.) Either would be terrible politics, of course, but Dershowitz would argue not illegal.

    • Jack — Don’t believe everything Dershowitz says. He’s a smart guy but has a hidden agenda: for the U.S. to okay Jerusalem as the new capitol of Israel. Of course, the president has the power to do many things, just as Nixon had the power to fire Arcibald Cox, et .al But when a presidnt acts in bad faith in a matter of serious concern to our country, he can be impeached. No crime is necessary for an impeachable “offense.” Even incompetence in office will sufffice.

      • I’m not sure which country you’re describing, Roger, but that is not the case under the U.S. Constitution. The President may be removed from office only following impeachment for, and conviction of, treason or other high crimes and misdemeanors. Impeachment, under the Constitution, is not a “vote of no confidence” such as we might see under a parliamentary system. While the Supreme Court has declined to intervene in at least one questionable impeachment of a federal judge, there is no assurance that it would similarly abstain should the Senate attempt to remove a President for “incompetence.” (In our political environment, of course, “incompetence” would be a highly subjective judgment in any case.) If “incompetence” were a crime, there would be very few left in Congress.

        • I forgot to mention bribery: so the Constitutional parameters are treason, bribery or other high crimes and misdemeanors.

        • I respectfully disagree. Of course, it is conceivable the Supreme Court might negate an impeachment, but highly improbable that it would do so. Bear in mind that it is impossible to convict a president of any crime until after he is impeached and removed from office. This suggests that the decision whether or not a president should be impeached rests exclusively with the US Senate, not the Supreme Court.

          Might does not make right.

          Best. -Roger

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