File 029165

Images

Text

  The Special Counsel's office, nearly leak-proof since its inception more than a year ago and seemingly immune to the President's constant taunts, might appear to be operating in some parallel universe unmoved by the every-day political turmoil. But in the course of conversations I've had recently, as a I research a new book on President Trump and the forces arrayed against him, what has become clear is that Robert Mueller and his office are preparing for a life or death confrontation with the President and the mother of all constitutional crises.
  My discussions have been with both White House advisors and people close to the investigation. No source involved in this story would speak on the record. But one source allowed me to review some of the documents related to the Special Counsel's strategy. Aspects of the Special Counsel's strategy have been confirmed by both White House sources and lawyers closely involved with the Justice Department.
  Since at least April the Special Counsel has had in place proposed charges, a bill of particulars, and an aggressive legal theory for the indictment of the president for obstruction of Justice. In the last few weeks, as the President has indulged his pardon authority, the Mueller team has also developed a legal strategy to oppose what the Special Counsel believes will be a likely pardon of former National Security Advisor, Michael Flynn, who had previously struck a plea bargain which could include his testimony against the President.
  Robert Mueller, according to one person familiar with the Special Counsel's thinking, could hardly contain his disgust when Rudy Giuliani, the President's new lawyer—hired to makes a television case for the President and to push back against the Mueller team—in May airily dismissed the notion that a president can be indicted. Adding insult to injury, Giuliani—who a White House source said had likely learned of aspects of the pending indictment—said Mueller agreed with that assessment. White House sources believe Giuliani was daring the Special Counsel to tip his hand. Mueller, in character, contained his outrage and continued to hold his cards close as his team finished preparing the obstruction case and refined the legal theories under which it would claim the right to haul the president into court.
  At this point, the case for indictment has, in effect, a judge of one. The Mueller team, according to sources both near the investigation and the White House, has prepared the case, but it requires the approval of Deputy Attorney General Rod Rosenstein, who—with the recusal of Attorney General Jeff Sessions from the Russia-related investigation—oversees the Mueller team. Indeed, Rosenstein, as recently as April, publicly declared that the President was not a target. This may have been a form of fig leaf to soothe a President who regularly demands aides assure him he is not being pursued: the President does not become a formal target until Rosenstein agrees to designate him as one.
  The proposed indictment confronts Rosenstein with matters with which he has been intimately involved. The case, according to my conversations with White House and other sources familiar with the investigation, is fundamentally Trump versus the FBI, Justice Department, and Mueller investigation itself. In many ways, it boils down to the word of former FBI Director James Comey against the word of Donald Trump. Rosenstein, at the President's behest, drafted a memo justifying the Comey firing for how the former FBI Director handled the Hillary Clinton email investigation. But that justification, in an embarrassment for Rosenstein, was shortly brushed aside by the President when he admitted that he fired Comey to disrupt the Russian investigation. What's more, the indictment is said to charge that the firing of Andrew McCabe, the former Deputy Director of the FBI, who reported directly to Rosenstein after the Comey dismissal, was an instance of illegal retaliation by the President against a potential witness.
  According to a source with knowledge of the proposed indictment, it will be all the more controversial because if finds the entire narrative of the case for obstruction in plain sight. Almost nothing about the case involves new information. "This indictment could have been drafted without anyone being interviewed," said this source. Rather it takes well covered public events and moves them to a set of circumstantial conclusions. There is no smoking gun beyond the often flagrant, custom-breaking, events of the President's 16 months in office. Indeed, much of the evidence is based on the President's public statements and tweets about those events.
  This is, according to White House sources who have gotten wind of this approach, good news: the case then, is just an issue of what motives you ascribe to the President's behavior—behavior that is, the President's supporters believe it is easy to show, impulsive and not thought out. Hence no intent. For the Mueller team, it is precisely that careless behavior and flagrant disregard for the rules that they aim to put on trial.
  There is no certainty that the Special Counsel's office will ultimately pursue its plan to indict the President. But, according to a source involved in the legal strategy, the plan is "more advanced" than it was when the indictment was drafted in April. The investigation continues and new evidence or other factors might push both prosecutors and the grand jury in another direction. Just passing its first anniversary, the Mueller investigation has conducted itself with remarkable secrecy. Descriptions of the proposed indictment provide one of the few insights into its strategy and its sense of the political peril in front of it.
  It may be noteworthy that there appears now not to be plan for an indictment related to collusion, although, legal experts say, that could come later.
  The White House view is that without the underlying collusion charge, Mueller will be presenting a weak and politically-motivated case. The Mueller view seems to be that the obstruction charges go to the heart of exposing how Trump has abused his power and turned the White House into a corrupt fiefdom.

  The President's scheme to obstruct the FBI's investigation into connections between the Trump campaign and Russian efforts to undermine the U.S. election, according to the Mueller indictment, began on the 7th day of the Trump administration. Three days prior to this, on January 24, National Security Advisor, Michael Flynn, lied to the FBI about his contacts with the Russian Ambassador, Sergey Kislyak. These were contacts, directed by an unnamed but ranking member of the Presidential Transition team.
  That unnamed person, in the view of several lawyers who discussed the case with me, is very likely Trump himself, and might imply that Trump encouraged Flynn to lie to the FBI, promising to protect him—using his influence or pardon powers.
  On January 27th, seven days after Donald Trump's inauguration, the President had the one-on-one dinner with FBI Director James Comey—recounted in Comey's congressional testimony and in his recent book, "A Higher Loyalty"—at which the President asked Comey if he "wanted to stay on as FBI Director." The President then requested a loyalty pledge in an effort, according to Comey's testimony before the Senate Select Committee on Intelligence, to "create some sort of patronage relationship"—a characterization the indictment accepts.
  Flynn resigned on February 13. The next day, the President cleared a meeting of its other attendees and privately asked Comey to "let this go, to let Flynn go." The indictment accepts Comey's understanding that the President was "requesting that [the FBI] drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December."
  On March 30, 2017, ten days after Comey told the House Permanent Select Committee on Intelligence that the FBI was investigating links between the President's campaign and the Russian government, the President asked Comey to "lift the cloud" of the Russian investigation, further telling Comey that the investigation was creating problems for him and expressing the "hope" that Comey "would find a way to get it out that [the FBI] [wasn't] investigating him."
  On April 11, according to the indictment, the President asked the FBI Director what he "had done about this request that [Comey] 'get out' that [the President] is not personally under investigation," saying that "the cloud" was "getting in the way of his ability to do his job." Comey asked the President to send his request to the appropriate parties at the Department of Justice. The President agreed but reminded Comey that he had been "very loyal to you [Comey], very loyal; we had that thing, you know."
  On May 9, the President fired Comey, publicly saying  that the "Russian thing" played a role in his decision to fire the FBI Director. The next day, the President said he'd "faced great pressure because of Russia," and as a result of the firing, that pressure had been "taken off."
  On May 17, soon after learning about the appointment of the Special Counsel by Deputy Attorney General Rod Rosenstein—in his role as acting Attorney General, after the recusal of Attorney General Jefferson Sessions—the President accused Sessions of "disloyalty" for recusing himself from the Russian investigation. In June 2017, the indictment alleges, the President ordered Robert Mueller to be fired, reversing course only when the White House counsel, Don McGahn, refused to implement the order.
  On July 8, after reports of a meeting between the President's son, Donald Trump, Jr., and a Russian agent, Natalia Veselnitskaya, during the 2016 campaign, the President, in furtherance of a cover-up, the indictment alleges, directed his son to state that he and Veselnitskaya had "primarily discussed a program about the adoption of children," when, in fact, according to the indictment, the meeting was organized so that "Russia and its government" could provide the Presidential campaign with "official documents and information that would incriminate" Hillary Clinton, the presumed Democratic candidate for President.
  According to the indictment, by June 7, 2017, news outlets were reporting that the Deputy Director of the FBI, Andrew McCabe, could corroborate James Comey's allegation that the President had asked for Comey's loyalty before firing him. As part of the cover-up, the indictment alleges, on July 26, 2017, the President called upon the Attorney General to fire McCabe.
  On December 21, 2017, McCabe testified before the House Permanent Select Committee on Intelligence that the President had in fact asked Comey for his loyalty before firing him. Six days later, in retaliation, the President tweeted that McCabe was "racing the clock to retire with full benefits," and implying by use of a question mark, that it was uncertain whether McCabe had "90 days to go?!!!"
  On March 16, 2018, McCabe was dismissed, depriving him of his pension. According to the indictment, the President directed McCabe to be fired with the intent to threaten and retaliate against him, the FBI, and the Office of the Special Counsel, "or to impede their respective abilities to assist or carry out the work of the FBI, DOJ, the Office of the Special Counsel, the Congressional Intelligence Committees, and the grand jury."
  Together with its narrative of Presidential behavior with, it contends, the certain intention of subverting ongoing investigations, the Mueller office is also ready to argue its right and obligation to charge a sitting president with a criminal violation.
  It is the outline of this argument that White House sources say both prompted Rudy Giuliani to scoff at the idea of indictment and, several weeks later, for the President and his lawyer to make sweeping claims about Presidential authority.
  It is a coming battle of absolutist positions.
  The Special Counsel, according to reports from both the investigation and from the White House, has spelled out an argument—one that appears to be at odds with Department of Justice standing policy that precludes charging a sitting president with a crime—that nothing in the Constitution or in an statute suggests a status with regard to criminal prosecution for the President different from any other federal office. Nor is there any statute or case law that finds that impeachment has to come before an indictment. The Mueller team dismisses the argument made most aggressively by Harvard law professor Alan Dershowitz—who offers frequent legal advice to the President both in person and via television—and repeated recently by the President, and in the recently revealed letter sent by his lawyers to the Special Counsel in January, that a president cannot be prosecuted for exercising his constitutional prerogatives, even if they foster crimes. Again, the team argues that there is no statute or constitutional authority that puts the President above the law or that allows him to contribute to breaking the law.
  Curiously, the tradition breakers in the White House—supported by a many lawyers, both right and left leaning—now argue that the President's traditional and constitutionally mandated executive powers give him wide latitude for how he carries out his duties. "I don't think you are going to find a court who will not see the president's role as unique," said one White House advisor. "The Mueller theories are wishful thinking."
  Such an indictment is described in similar ways by both Mueller and White House insiders: it puts the President's public behavior on trial. The nature of that behavior, for the Mueller team, is corrupt; this, according to the White House, is how voters elected the President to behave.

  The Mueller team may have a high hurdle in convincing Rosenstein to approve the indictment. Giuliani recently put standing DOJ policy against the indictment of a president in hyperbolic terms: the President could kill James Comey if he wanted to without fear of prosecution. But, according to one former senior DOJ lawyer, Rosenstein in this circumstance may have the power to override the DOJ guidelines. The Mueller team appears to believe that Rosenstein's pledge before congress that, absent malfeasance, he will support the Special Counsel's independence with regard to the Russian investigation, means he will let the indictment go forward. In one view—and in the suspicion of some in the White House—he may have already authorized Mueller to proceed with the indictment.
  The counsel's office does, however, according to the papers I have reviewed, worry about the possibility that Trump will replace Rosenstein with someone who will fire Mueller or curtail the investigation. Indeed, the Mueller investigation seems concerned or shadowed by daily procedural questions of an existential nature—anticipating its own demise and what consequences that might bring.
  It believes that in the inevitable Supreme Court battle that would follow a direct attempt by the President to fire the Special Counsel, the Court would surely rebuff such an expansion of Presidential authority. At the same time, according to its internal research, the Mueller team understands that the President, acting with only somewhat more subtlety, would have the authority to order the Attorney General—even given his prior recusal—to repeal the Special Counsel regulations and close down the investigation, and fire the Attorney General if he refuses. The President, could, too, according to the Special Counsel's analysis, fire Rosenstein and seek someone else to oversee the investigation in ways more to his liking. Both of these actions could, the Special Counsel believes, become part of the behavior that it argues in the indictment amounts to a prima facie case for obstruction of justice.
  The team does yet believe it is protected by political realities—the President can not know how Congress might respond—and by bureaucratic ones. Changes to the Special Counsel authorization might require an extended comment period.
  Still, what if the President acting unilaterally does shut it down? This, people around the President say is the unknown legal area that might be advantageous to the President. Delays and disruption might well be the President's legal friends.
  What, for instance, happens to all the work the Special Counsel's office had done, and, indeed, to the sitting Grand Juries reviewing the evidence? The special counsel's view, according to insiders working on the issues, is that nobody knows. The optimistic legal view is that the Office and staff would survive the Special Counsel's ouster and their work preserved. And that actions taken by the Grand Jury would remain in effect.
  This, however, would probably not be true if the Attorney General refused the next Special Counsel's budget request—due on July 1. That would shut down the whole operation—the Special Counsel staff and grand juries. There might, however, according to research the team has prepared, be enough time between the order and the shuttering for the Special Counsel to share the grand jury evidence with other federal prosecutors.
  The President's constitutional pardon powers appear to be some of the most troubling and threatening issues for the Special Counsel. The Counsel's office believes the President will use his pardon power as an instrument to undermine the investigation.
  According to present and former White House advisors, the President's recent spates of pardons are in part his way of taunting the Special Counsel. The White House, according to these sources, is aware that the Special Counsel has concluded the pardon power is near absolute: the President can certainly pardon himself, and others involved in the investigation.
  Early in June, the Special Counsel, believing that a pardon for Michael Flynn was imminent, rushed to build a case that might form an exception to the President's pardon authority. The argument, perhaps a slim thread one, tries to undermine what both the White House and many outside legal authorities, and much of the Special Counsel's own research, believes to be one of the few unchallengeable powers granted the President. In effect, the Special Counsel continues the theme of it's case: there is a level of obstruction of justice that all reasonable men might know when they see it. If you pardon someone to get yourself off the hook, that's a "corrupt" action. Since the President is in charge of upholding the constitution and much of the constitution is about preventing corrupt acts, the pardon, in the case of Michael Flynn, is unconstitutional. What's more, since there is an impeachment process in place—or there at least several impeachment resolutions before congress—and impeachment is the province of Congress, a pardon of a potential witness in this impeachment is an unconstitutional trampling on the separation of powers.

  As the President, by nature and design, tries to claim aggressive new powers, the Mueller team, almost in equal proportion, is trying to limit the theory of Presidential power and, even, to criminalize an expansive exercise of those powers.
  People who know and have worked with Mueller find it, at best, unexpected that such a traditional, and by the book, G-man, would be pursuing such far-reaching legal theories. One view, shared by the White House, is that Mueller is overly reliant on his staff. In this scenario, the legal charge is being led by his number two, Andrew Weissman, the aggressive prosecutor whose pursuit of the accounting firm Arthur Anderson in the Enron debacle end in its conviction—a judgement reversed well after the firm's bankrupcy and dissolution. Weissman is a particular bet noir and favorite whipping boy for the White House.
  But in another view it is precisely because Mueller, a former Marine, is so by the book and Semper Fi that he finds Trump's behavior to be personally offensive, and, on its face, corrupt. "Bob Mueller is all about limits and rules. Donald Trump has none and acknowledges none."
  It may yet be even a more profound clash then that, the executive branch at war with itself—the Justice Department against the White House.
  Indeed, it is a war strategy, in the view of some legal observers. Such an indictment would be litigated to the hilt. It would force both the substantive issues of obstruction and abuse of power and the meta issues of Presidential immunity—the hot button issues of the President's claims to being above the law—into open court for a long and painful review and dissection that might shadow the November election.
  Legal experts believe that the Mueller team might well prevail in lower courts with a less likely, but not at all certain outcome, in the Supreme Court.
  "Might such an expansive claim win, yes. Should it win, no. But everyone knows the reality: weak president's lose cases, strong president's win them."
  Were the case to reach the Supreme Court after the November election, it might well be the results of that election that help seal the President's fate not just in Congress but also in the courts.




  MORE TK