What Robert Mueller Already Knows

Image credit: Jasjyot Singh Hans

Despite the constant lies and shrieks of "fake news" coming out of the White House, the indictments handed down to date and the growing desperation on Donald Trump's part to stop the Russiagate investigation suggest that there is fire beneath the smoke seen to date. Add the list of questions Mueller may want to ask Trump - a list seemingly leaked by the White House itself or White House staff - and while the word "collusion" isn't used, some of the questions certainly dance  closely around the topic.  Add to this the rumor that Mueller may subpoena Trump - a situation which might force Trump to testify and, given his proclivity for lying - and set the stage for future perjury charges.  Remember Bill Clinton's lie under oath that set his impeachment in motion?  Lying about having sex with a woman pales in comparison to interacting with a hostile foreign government to throw a U.S. presidential election.  As an editorial in the New York Times notes, Mueller likely knows and can document the true answer to questions to be asked of Trump.  He also no doubt knows that Trump will lie under oath about those very issues just like he lies about virtually everything else. Here are editorial highlights:

The 49 questions that the special counsel, Robert Mueller, hopes to ask President Trump as part of the yearlong Russia investigation suggest that Mr. Mueller knows a great deal more than he’s letting on — and he hasn’t even gotten to the follow-ups yet.

After the questions, which were published by The Times on Monday, were provided to Mr. Trump’s legal team in March, John Dowd, the president’s lead personal lawyer at the time, urged him to avoid sitting for an interview with Mr. Mueller. When Mr. Trump said he intended to anyway, Mr. Dowd resigned.

Reading through the list, it’s clear why Mr. Dowd was so concerned. Federal investigators don’t like being lied to, and Mr. Trump has a marked tendency to say things that aren’t true. If he agrees to speak with Mr. Mueller’s team, he will have to answer some very basic questions about what he knew, when he knew it and what motivated some of his most shocking and inexplicable actions over the past year.

To name just a few: When and why did you decide to fire James Comey, the F.B.I. director, who was leading the Russia investigation at the time? What did you mean when you told NBC’s Lester Holt that you fired Mr. Comey because “this Russia thing with Trump and Russia is a made-up story”? Did you try to persuade the attorney general, Jeff Sessions, to protect you from the investigation? Did you secretly promise to pardon Michael Flynn, the former national security adviser who has pleaded guilty to lying to federal investigators about his communications with the Russian ambassador?

The questions are a reminder of just how aberrant this White House has been. No prior president so openly assaulted the rule of law or undermined the integrity of the law enforcement community.

It may unnerve Mr. Trump, who has spent his life skirting the law and avoiding full accountability, but this is how the law works. Without saying a word publicly, Mr. Mueller and his team of experienced investigators are showing America how a government premised on the rule of law is supposed to function. The process may seem slow, but that is out of diligence and caution. Its fundamental purpose is truth-seeking — unlike, say, the embarrassing obfuscations of the Republican leaders of the House Intelligence Committee, who last week absolved Mr. Trump and his campaign of any wrongdoing in a 250-page report that reads more like a work of fantasy than a government investigation.

Obstruction of justice is itself a federal crime — see, for example, Section 1505 of Title 18 of the United States Code — regardless of whether prosecutors can establish an underlying offense. Mr. Trump and his defenders mock it as a “process crime,” but the rule of law breaks down if people can interfere, with impunity, in law enforcement’s efforts to do justice. Don’t forget that both presidents who have faced impeachment proceedings in the past few decades, Richard Nixon and Bill Clinton, were accused of obstructing justice.

Mr. Mueller appears to have at least some evidence of an underlying offense. That is the implication of about a dozen of his questions, including the most surprising of all: Was Mr. Trump aware of any efforts by his campaign, and specifically by his former campaign chairman Paul Manafort, to seek Russia’s help in winning the 2016 election?

[I]t’s worth noting that as far back as August 2017, CNN reported that American intelligence services had intercepted communications among suspected Russian operatives discussing conversations they claimed to have had with Mr. Manafort, in which he requested their help in damaging Hillary Clinton’s election prospects.

Whatever information he has, Mr. Mueller, like any seasoned prosecutor, does not ask questions unless he already knows the answers. Whether or not Mr. Trump decides to talk to him, the rest of us will know, too, soon enough.

The Legal Nightmare of Representing Trump

Ted Olsen who refused to join Trump's legal team

Earlier in the week news came out that Donald Trump had approached super lawyer Ted Olsen about joining Trump's legal team.  Olsen wisely declined the invitation apparently concerned about how history might view him and also likely aware of the dangers in representing a pathological liar.  It is one thing to provide a client with a vigorous legal defense and something quite different to participate in a deliberate effort to lie to a legal tribunal or governmental investigative authorities.  With Trump, it would seem the latter sooner or later would become unavoidable and thereby put members of his legal team at risk for disbarment or worse.  A piece in Vanity Fair looks at efforts of Trump's legal team to restrain Trump from engaging in out right lies to Robert Mueller and how such efforts may still fail to stop Trump's legal jeopardy.  Here are excerpts: 

Representing President Donald Trump is not exactly a lawyer’s dream job. True, there are high stakes and lots of media attention. The downsides, though, include a slippery client who barely listens to your advice and who might not pay your bill. That combination has forced Don McGahn, Ty Cobb, and John Dowd to make some unusual strategic choices in trying to fend off Robert Mueller. The most recent was sending the special counsel a written summary of the White House version of key events in the Russia saga. The gambit is intended to get Mueller to narrow the range of a possible Trump interview. And it’s almost certainly doomed.

“I think it’s the nuttiest thing I’ve ever heard,” says Solomon Wisenberg, the former federal prosecutor who elicited the damning “It depends upon what the meaning of the word ‘is’ is” answer from President Bill Clinton during grand-jury testimony for the Monica Lewinsky investigation. “I’ve never heard of defense attorneys doing that. If you’re Mueller, it’s highly unlikely you accept what somebody’s lawyer said, when that somebody is a subject, at the least, of your investigation. . . . . when people are interviewed in a criminal investigation, they don’t get to narrow the topic.”

The chances are actually stronger that the maneuver will backfire, helping Mueller refine not just any questioning of the president but the investigation as a whole. “Mueller is learning a lot by letting this little passion play over Trump and the interview proceed,” says Joyce Vance, a former U.S. attorney for Alabama.

Negotiations will continue, and will likely grow more complicated with the addition of a new lawyer on the Trump side, Joe diGenova, who has suggested that the F.B.I. set out to frame Trump. Attorneys familiar with Mueller or his current team increasingly wager that this protracted dance over presidential testimony ends up in court—that Trump will eventually refuse to talk to the special counsel and that Mueller will subpoena him to appear. “I think Trump will chicken out, and his lawyers will dissuade him from talking because he’s not capable of doing the homework and staying on track,” . . . his side has all kinds of issues. They don’t know what Michael Flynn has told the government. They don’t know exactly what James Comey and Andrew McCabe have said, what Rick Gates has overheard. Normally you tell your client, ‘Just tell the truth.’ But the truth could be really bad for Trump.”

[I]f Mueller wants to question Trump, he has little incentive to cede ground on the scope. “There’s no reason to negotiate your ability to ask questions for the simple reason you can issue a subpoena and the defendant has to submit to any and all questions you want to ask,” . . . You want to ask the president in person what he knew, and eyeball his appearance of truthfulness when he responds. If an interview matters to Mueller, he gets his interview, whether voluntarily or under the compulsion of a subpoena.”

The courts would be likely to expedite hearings, with the case reaching the Supreme Court probably inside of two months after Mueller files to compel Trump’s cooperation. Two things could short-circuit that scenario, however: Trump fires Mueller, setting off a different, explosive legal and political battle. The second possibility? Mueller doesn’t even ask for Trump’s testimony, because he’s made the president a target of the probe, rather than just a subject, as was Bill Clinton in the Ken Starr investigation.

If the special counsel doesn’t subpoena Trump, that might be a signal right there that Mueller thinks he’s got sufficient evidence and that they view Trump as a target.” The months-long buildup toward a melodramatic face-to-face confrontation between Trump and Mueller would vanish. But the second act curtain would fall with a compelling twist.

Over my 40+ years as an attorney, other than non-payment of fees, every time I have fired a client it was because I caught them lying to me. Nothing is worth disbarment or, worse yet, facing criminal prosecution.  I cannot help but question the judgment of the members of Trump's legal team. Trump has a documented history of lying about just about everything.  He could well take them down with him.  

Is It Political Suicide for Republicans if They Block a Trump/Russia Investigations?

With news reports seemingly changing by the minute - and not for the better for Der Trumpenführer (who spent the day role playing at Newport News Shipbuilding in nearby Newport News) and his possibly treasonous coquetry of henchmen and stooges - the question becomes one of when does it become political suicide for Republicans to continue to protect Trump and block meaningful investigations into Trump/Russia ties?  The reality is that Republicans have prostituted themselves to Trump out of fear of his ignorance embracing and racist supporters.  Now, it's as if they know that a full, unfettered investigation will reveal what they know in their hearts to be true about Trump and his ties to Russia, and they want to keep the truth bottled up.  The risk, of course, is that if they play this game, European allies may yet provided the smoking gun evidence to take Trump down and fawning Republicans with him.  A column in the Washington Post argues that Republicans are playing a game of Russian roulette (no pun intended).  Here are highlights:

President Trump's Russia problems just got a whole lot worse.

Attorney General Jeff Sessions spoke with Russian Ambassador Sergey Kislyak twice in 2016, according to The Washington Post, conversations that run directly counter to Sessions's assertions during his confirmation hearing to be the nation's top cop.

In that Judiciary Committee hearing Jan. 1o, Sen. Al Franken (D-Minn.) asked Sessions whether he was aware of any contacts between Trump campaign officials and Russian intelligence officials. “I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians,” Sessions replied.

It does not take a political genius to understand how big a problem this is for Sessions, Trump and congressional Republicans more broadly. (Sessions's response — I talked to a lot people! — isn't going to cut it.)

Before this report, most congressional Republicans were resistant to the idea of appointing a special prosecutor to investigate the contacts between Russia and Trump campaign officials and surrogates — insisting that the ongoing FBI investigation and congressional committees looking into the issue were more than enough.

That's going to become an untenable position for Republicans — starting with House Speaker Paul D. Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.) — in light of this new information about Sessions. Not only is there a very serious question about whether Sessions misled — purposely or accidentally — his colleagues while under oath, but this is also the latest incident involving unanswered questions about the ties among Trump, his top advisers and Russia.

Former national security adviser Michael Flynn lost his job last month after lying to Vice President Pence — and lots of other people — about the nature of his conversations with Kislyak. Trump has repeatedly refused to condemn Russian President Vladimir Putin while insisting that stories about his ties to Russia are “fake news.”

In short: Where there's smoke and smoke and smoke and smoke and smoke, most reasonable people will assume there is fire — or that there should be an independent investigation to determine whether there is fire. Arguing that “there's nothing to see here” is simply not a tenable position for Republicans at this point.

The details here — particularly given the Flynn resignation — almost certainly will force an act of political triage from GOPers. They need to find a way to wall themselves off from what, with each passing day, is becoming more and more toxic. Otherwise, the spillage could leak all over them.