January 13, 2019

Excellent article Benjamin Wittes, Lawfare: "What If Obstruction Was Collusion?"

[link:https://www.lawfareblog.com/what-if-obstruction-was-collusion-new-york-timess-latest-bombshell|

Excerpt:

The analysis that follows is lengthy and takes a number of twists and turns before laying out what I think is the significance of the whole thing. Here’s the bottom line: I believe that between today’s New York Times story and some other earlier material I have been sifting through and thinking about, we might be in a position to revisit the relationship between the “collusion” and obstruction components of the Mueller investigation. Specifically, I now believe they are far more integrated with one another than I previously understood.

Because I am certain the disclosures in this story will give rise to questions of leaks, let me start by addressing at the outset the portions of Baker’s testimony which I discuss in this post. To be very clear, I did not receive information about this from Baker. I received it from the New York Times only. And while I don’t know who gave it to Schmidt and Adam Goldman, who share the byline on the story, I am very confident it was not Baker or anyone associated with him. My assumption is that this material reached the Times from congressional sources, since the overwhelming majority of leaks of material available to Congress come from Congress, but I don’t know that for sure. Exactly one thing in the material I discuss below did come to me from Baker, and was not until today a part of the public record—and I flag that very clearly. None of this material is classified. The reporting that Schmidt shared with me made clear that the FBI specifically permitted Baker to answer the questions he addressed.

The public understanding of and debate over the Mueller investigation rests on several discrete premises that I believe should be reexamined. The first is the sharp line between the investigation of “collusion” and the investigation of obstruction of justice. The second is the sharp line between the counter-intelligence components of the investigation and the criminal components. The third and most fundamental is the notion that the investigation was, in the first place, an investigation of the Trump campaign and figures associated with it.

These premises are deeply embedded throughout the public discussion. When Bill Barr challenges what he imagines to be the predicate for the obstruction investigation, he is reflecting one of them. When any number of commentators (including Mikhaila Fogel and me on Lawfare last month) describe separate investigative cones for obstruction and collusion, they are reflecting it. When the president’s lawyers agree to have their client answer questions on collusion but draw a line at obstruction, they are reflecting it too.

But I think, and the Times’s story certainly suggests, that the story may be more complicated than that, the lines fuzzier, and the internal understanding of the investigation very different along all three of these axes from the ones the public has imbibed.

January 13, 2019

I'm reading a FB thread where people say they don't speak up against Trump....

....in order to keep disharmony and stress from relationships and others.

What if there was a pin or emblem in support of the Constitution? Keep politics out of it but wear something that supports the Rule of Law, the Separation of Powers, the Free Press...

Would you wear something like that?

Wouldn't it be great if something like that took root across America?

January 13, 2019

When will we get to see the first draft of the letter written to fire Comey?

Mueller has it.

Reportedly, it was McGahn who buried it.

January 13, 2019

Is there any possibility that NSA has audio of Putin Trump mtg in Helsinki..

...with assistance from other intel from allies?

January 12, 2019

Important thread from Neal Katyal who wrote special counsel rules 20 years ago

Fomer acting Solicitor General, Supreme Court lawyer.


Neal Katyal
?Verified account @neal_katyal

THREAD ON WHETHER MUELLER REPORT WILL BE PUBLIC, AND @washingtonpost STORY ABOUT TRUMP HIRING MANY NEW LAWYERS TO ASSERT EXEC PRIVILEGE.

Short Answer: It will be public.
7:28 PM - 9 Jan 2019

9,913 Retweets
25,492 Likes

New conversation
Neal Katyal
?Verified account @neal_katyal
Jan 9

1.The special counsel rules, which I drafted at DOJ 20 years ago, contemplate 2 kinds of reports. One is a report from Mueller to the AG, at the close of his investigation: “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
27 replies 1,099 retweets 4,082 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

2. That document is to be confidential. But there is a second, separate reporting requirement, which forces the AG to notify Congress “with an explanation for each action…upon conclusion of the Special Counsel’s investigation, including…
13 replies 846 retweets 3,762 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

3. ... a description and explanation of instances (if any) in which the AG concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
7 replies 683 retweets 3,218 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

4.That report must explain why the investigation has concluded, and any instance in which the AG overruled the Special Counsel. The provision was designed to ensure “Congressional and public confidence in the integrity of the process.”
7 replies 755 retweets 3,783 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

5.Notably, we wrote the circumstances for an AG to overrule a Special Counsel very tightly—it has to violate “established Departmental practices.”
5 replies 659 retweets 3,287 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

6. So, to take one hypothetical example, generic DOJ opinions about whether a sitting President could be indicted do not create an “established Departmental practice” about whether an individual could be indicted for successfully cheating in a Presidential election.
13 replies 793 retweets 3,518 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

7.There is no DOJ established practice that says if a Presidential candidate cheats enough and wins the Presidency, that he gets a get-out-of-jail-free card.
26 replies 1,359 retweets 4,814 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

8.There is one other important aspect to the regulations. If a Special Counsel is worried that the AG may cover something up, the regs give him an important weapon.
8 replies 786 retweets 3,521 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

9.Because they require a mandatory report to Congress about any instance of the AG overruling a Special Counsel, they put the thumb on the scale of a Special Counsel telling the AG he will take a sensitive act and waiting for AG to say no. That triggers the reporting requirement.
19 replies 852 retweets 3,755 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

10. It is a safeguard to prevent a cover-up, it creates a mandatory report to a separate and coequal branch of govt. So that is why I believe Mueller has a move left to play if Whitaker or Barr (if confirmed) try to stymie him and his full report.
22 replies 945 retweets 4,358 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

11. Now the President can try to claim executive privilege. Nixon tried that, it didn’t turn out so well. He got crushed in the Supreme Court. Trump’s claim appears even weaker—much wont even concern presidential deliberations&the part that might (Comey) has been waived by Trump.
30 replies 795 retweets 3,603 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

12.And here, there is another problem: Trump’s legal team has been saying they don’t think a sitting President can be indicted.
18 replies 571 retweets 2,784 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

13. Leaving aside the point above in (6) and (7), the only way that claim makes any sense is if the President must be impeached first. Every real scholar who says a sitting President can’t be indicted couples that with a view that impeachment is the remedy.
11 replies 679 retweets 3,239 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

14. So if the President asserts the view he can’t be indicted, he has to allow the turnover of all investigative material to Congress. Otherwise he would be no different than King George III, literally above the law.
37 replies 1,137 retweets 4,581 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

15.This point is fleshed out in my NYT op-ed below. The key point is that even if you think Trump won't be indicted, his legal claims about his immunity from indictment set up&invite the launch of impeachment investigation+eviscerate his exec priv claims.
30 replies 1,505 retweets 4,919 likes
Neal Katyal
?Verified account @neal_katyal
Jan 9

16. Bottom line: the President can try to hide the Mueller Report. He will lose to the public’s right to know.
320 replies 2,020 retweets 9,037 likes

January 12, 2019

Greenwald is pushing this very dangerous flip of Dem history.

I've begun to see this all 'round social media. That Dems are the war-loving party and Trump is the peacemaker.

Here comes Greenwald with an essay to that effect in The Intercept.

I find it extremely cynical propaganda and dangerous.

[link:https://theintercept.com/2019/01/11/as-democratic-elites-reunite-with-neocons-the-partys-voters-are-becoming-far-more-militaristic-and-pro-war-than-republicans/|

January 12, 2019

Fallacy in "Declare national emergency and then Congress can vote to open government" updated OP

Why do we assume that one follows the other?

THE KEY IS THIS: McConnell must bring the vote to the floor. There is no mention of that in this prediction.


Trump can declare national emergency, steal money for the wall, and still keep government shuttered.

This premise is a potential trick, is it not?

The extended shutdown is likely to bring chaos to the streets, and increasing trouble in our daily lives. Putin's dream. Chaos in America.

Change it to this: Declare national emergency and McConnell will bring the vote to the floor so government will open.

That ain't what Trump is saying.

January 11, 2019

a feature of the shutdown? Govt web sites rendered unaccessible.

Shutter government!! That has been the plan.

Here's part of the rollout.

[link:https://screenshots.firefox.com/TQfrvrx1RZQskk5p/twitter.com|

January 11, 2019

It is illegal to solicit campaign funds from the White House.

Think Al Gore. 1997. He made a few fundraising calls from the WH and was excoriated for it.

In his defense of his phone calls and insistence that they raised no legal issue, Mr. Gore referred today to a statute that makes it unlawful for ''any person to solicit or receive any contribution'' ''in any room or building occupied in the discharge of official duties,'' such as the offices in the White House.

The statute, Section 607 of Title 18 of the United States Code, has its roots in an 1876 law intended to discourage ''political assessments'': the collection from Government employees of part of their salary to support the incumbent party. The statute carries a maximum penalty of $5,000 and three years' imprisonment.

Unlike the Hatch Act, Section 607 makes no exceptions for any officials -- including the President or Vice President. And on its face, it is broadly worded, seeming to apply to any official who asks for a donation.

[link:https://www.nytimes.com/1997/03/04/us/gore-says-he-did-nothing-illegal-in-soliciting-from-white-house.html|

January 10, 2019

NBC EXCLUSIVE: Wall steel barrier prototype sawed through. Jan 10 2019

[link:https://www.nbcnews.com/politics/immigration/test-steel-prototype-border-wall-showed-it-could-be-sawed-n956856|


Jacob Soboroff reporting from the border.