Mueller’s Report May Disappoint Trump Critics

Special counsel Robert Mueller’s final report may never see the light of day. Says one expert on such investigations: “Mueller is a criminal investigator. He’s not government oversight, and he’s not a historian.”

President Trump’s critics have spent the past 17 months anticipating special counsel Robert Mueller’s final report on Russian 2016 election interference. They may be in for a disappointment, Politico reports. Experts say the public shouldn’t expect a comprehensive and presidency-wrecking account of Kremlin meddling and alleged obstruction of justice by Trump, not to mention an explanation of the myriad subplots that have bedeviled lawmakers, journalists and amateur Mueller sleuths. In fact, Mueller’s findings may never even see the light of day. “That’s just the way this works,” said John Barrett, who worked under independent counsel Lawrence Walsh during the Reagan-era investigation into secret U.S. arms sales to Iran. “Mueller is a criminal investigator. He’s not government oversight, and he’s not a historian.”

Mueller isn’t operating under the same ground rules as past high-profile government probes, including the Reagan-era investigation into Iranian arms sale and whether President Bill Clinton lied during a deposition about his extramarital affair with a White House intern. Those examinations worked under the guidelines of a law that expired in 1999 that required investigators to submit findings to Congress if they found impeachable offenses Mueller must notify Deputy Attorney General Rod Rosenstein on his budgeting needs and his office’s “significant events.” When Mueller is finished, he must turn in a “confidential report explaining the prosecution or declination decisions” — essentially why he chose to bring charges against some people but not others. Then, it will be up to DOJ leaders to make the politically turbo-charged decision of whether to make Mueller’s report public. In the crafting of the report, Mueller has significant leeway. He can theoretically be as expansive as he wants. Sources who have worked closely with Mueller say his by-the-books, conservative style is likely to win out, suggesting he might lean more toward saying less than more.

from https://thecrimereport.org

Mueller’s Report May Disappoint Trump Critics

Special counsel Robert Mueller’s final report may never see the light of day. Says one expert on such investigations: “Mueller is a criminal investigator. He’s not government oversight, and he’s not a historian.”

President Trump’s critics have spent the past 17 months anticipating special counsel Robert Mueller’s final report on Russian 2016 election interference. They may be in for a disappointment, Politico reports. Experts say the public shouldn’t expect a comprehensive and presidency-wrecking account of Kremlin meddling and alleged obstruction of justice by Trump, not to mention an explanation of the myriad subplots that have bedeviled lawmakers, journalists and amateur Mueller sleuths. In fact, Mueller’s findings may never even see the light of day. “That’s just the way this works,” said John Barrett, who worked under independent counsel Lawrence Walsh during the Reagan-era investigation into secret U.S. arms sales to Iran. “Mueller is a criminal investigator. He’s not government oversight, and he’s not a historian.”

Mueller isn’t operating under the same ground rules as past high-profile government probes, including the Reagan-era investigation into Iranian arms sale and whether President Bill Clinton lied during a deposition about his extramarital affair with a White House intern. Those examinations worked under the guidelines of a law that expired in 1999 that required investigators to submit findings to Congress if they found impeachable offenses Mueller must notify Deputy Attorney General Rod Rosenstein on his budgeting needs and his office’s “significant events.” When Mueller is finished, he must turn in a “confidential report explaining the prosecution or declination decisions” — essentially why he chose to bring charges against some people but not others. Then, it will be up to DOJ leaders to make the politically turbo-charged decision of whether to make Mueller’s report public. In the crafting of the report, Mueller has significant leeway. He can theoretically be as expansive as he wants. Sources who have worked closely with Mueller say his by-the-books, conservative style is likely to win out, suggesting he might lean more toward saying less than more.

from https://thecrimereport.org

Mueller Findings Expected Soon After Elections

Special Counsel Robert Mueller is expected to issue findings on core aspects of his Russia probe soon after the November midterm elections as he faces intensifying pressure to produce more indictments or shut down his investigation.

Special Counsel Robert Mueller is expected to issue findings on core aspects of his Russia probe soon after the November midterm elections as he faces intensifying pressure to produce more indictments or shut down his investigation, Bloomberg reports. Mueller is close to a conclusion on two of the most explosive aspects of his inquiry: whether there were clear incidents of collusion between Russia and Donald Trump’s 2016 campaign, and whether the president took any actions that constitute obstruction of justice. That doesn’t mean Mueller’s findings must be made public if he doesn’t secure unsealed indictments. The regulations governing the probe stipulate that he can present his findings only to his boss, Deputy Attorney General Rod Rosenstein. The regulations give Rosenstein discretion in deciding what is relayed to Congress and what is publicly released.

The question of timing is critical. Mueller’s work won’t be concluded ahead of the Nov. 6 midterm elections. The timeline raises questions about the future of the probe itself. Trump has signaled he may replace Attorney General Jeff Sessions after the election, a move that could bring in a new boss for Mueller. Rosenstein also might resign or be fired by Trump after the election. Rosenstein has made it clear that he wants Mueller to wrap up the investigation as expeditiously as possible. Three weeks before the elections, it’s unlikely Mueller will take any overt action that could be turned into a campaign issue. Justice Department guidelines say prosecutors should avoid any major steps close to an election that could be seen as influencing the outcome. Mueller has secured more than two dozen indictments or guilty pleas.

from https://thecrimereport.org

Judge Orders New Hearing on Manafort Plea Deal

The federal judge who oversaw Paul Manafort’s trial in Virginia threw an obstacle into the former Trump campaign chairman’s plea deal by calling out as “highly unusual” a plan to seek the dismissal of deadlocked charges only after Manafort has finished cooperating with special counsel Robert Mueller.

The federal judge who oversaw Paul Manafort’s criminal trial this summer in Virginia threw an obstacle into the former Trump campaign chairman’s plea deal Thursday by calling out as “highly unusual” a plan to seek the dismissal of deadlocked charges only after Manafort has finished cooperating with special counsel Robert Mueller, reports Politico. U.S. District Judge T.S. Ellis II ordered Manafort, his lawyers and Mueller’s prosecutors to court on Oct. 19 to resolve the situation and to set a sentencing date for the longtime GOP operative. Ellis’ move doesn’t appear to jeopardize the overall deal with Manafort but has the potential to remove one of several incentives for the former Trump campaign chairman to cooperate.

Under the plea agreement, Manafort avoided a second criminal trial in Washington, D.C., by pleading guilty to conspiracy against the U.S. and conspiring to obstruct justice, along with a pledge to “cooperate fully and truthfully” with the special counsel’s probe on Russia and the 2016 presidential election. In exchange, Mueller dropped charges against Manafort related to money laundering and failing to register as a foreign agent for his work for Ukrainian political parties. Upon Manafort’s “successful cooperation” with Mueller’s team, the special counsel agreed to seek dismissal of 10 charges related to bank fraud on which a Virginia jury failed to reach a verdict in August. Ellis wants to discuss the stipulation to defer sentencing and Mueller’s decision on whether to retry Manafort on the outstanding charges case until after his cooperation is over. “This would be highly unusual,” Ellis wrote. “In this district, the government’s decision to re-try a defendant on deadlocked counts is always made in a timely manner and sentencing occurs within two to no more than four months from entry of a guilty plea or receipt of a jury verdict.”

from https://thecrimereport.org

Court Hears Case That Could Limit Mueller Options

A panel of federal appellate judges heard arguments on whether federal judges can release grand jury material. The outcome could prevent special counsel
Robert Mueller from releasing a full report on his ongoing probe of the Trump campaign’s alleged ties to Russia.

A federal appeals court is wrestling with a case that could limit special counsel Robert Mueller’s options to release a report on the findings of his probe into the Trump campaign’s alleged ties to Russia, reports Politico. The case — heard by the  U.S. Court of Appeals for the D.C. Circuit on Friday — has no direct connection to Mueller’s investigation, but centers on issues of grand jury secrecy and when judges have the power to disclose information gathered through that process.

A ruling that judges lack that power could close off options Mueller may have to release a public report or to transmit one to Congress. The three-judge panel gave no definitive indication of where it will come out, but one judge — Greg Katsas — seemed to favor a reading of court rules that would require judges to strictly enforce secrecy. The dispute involves a request for access to a grand jury investigation into the 1956 disappearance of Columbia University lecturer Jesus Galindez. There are indications that Galindez, a political activist, was kidnapped from New York City, taken to the Dominican Republic and murdered. Some have long suspected the involvement of the CIA in either the murder or a cover-up. Katsas, the D.C. Circuit’s only Trump appointee, sounded highly skeptical of allowing judges broad discretion to release grand jury materials. Graham Phillips, an attorney for the author seeking the records on the six-decade mystery, Stuart McKeever, tried to reassure Katsas that opening up the records wouldn’t lead to a flood of similar requests.

from https://thecrimereport.org

Cohen Boasts Giving ‘Critical Information’ to Mueller

Michael Cohen, President Trump’s former personal lawyer, says he helping special counsel Robert Mueller’s investigation into Russian interference in the 2016 U.S. election and possible coordination between Russia and the Trump campaign.

Michael Cohen, President Trump’s former personal lawyer, says he is providing “critical information” as part of special counsel Robert Mueller’s investigation into Russian interference in the 2016 U.S. election and possible coordination between Russia and the Trump campaign, reports the Associated Press. Michael Cohen, who pleaded guilty last month to campaign finance and other charges, said Thursday he is providing the information to prosecutors without a cooperation agreement. Trump’s longtime fixer-turned-foe could be a vital witness for prosecutors as they investigate whether Trump’s campaign coordinated with Russians. For more than a decade, Cohen was Trump’s personal lawyer, and he was a key player in the Trump Organization and a fixture in Trump’s political life.

Cohen pleaded guilty to eight federal charges and said Trump told him to arrange payments before the 2016 election to buy the silence of porn actress Stormy Daniels and a former Playboy model who had both alleged they had affairs with Trump. It was the first time any Trump associate implicated Trump himself in a crime. Whether or when a president can be prosecuted remains a matter of legal dispute. On Thursday, Cohen tweeted: “Good for @MichaelCohen212 for providing critical information to the #MuellerInvestigation without a cooperation agreement. No one should question his integrity, veracity or loyalty to his family and country over @POTUS @realDonaldTrump.” ABC News reported that Cohen has met several times for several hours with investigators from the special counsel’s office.

from https://thecrimereport.org

Trump Says Declassification Will Show FBI Spying

Democrats and former national security officials said that President Trump’s directive to declassify documents from the probe of Russian interference in the 2016 election is a dangerous one, threatening to undermine an ongoing investigation of his own campaign and potentially revealing confidential law enforcement and intelligence sources.

President Trump repeated a specious claim that the FBI spied on his campaign, and suggested that his decision to declassify documents from the probe of Russian interference in the 2016 election would reveal misconduct by federal law enforcement, reports the Washington Post. In morning tweets apparently quoting from a television appearance by Rep. Peter King (R-NY), Trump wrote, “ ‘What will be disclosed is that there was no basis for these FISA Warrants, that the important information was kept from the court, there’s going to be a disproportionate influence of the (Fake) Dossier. Basically you have a counter terrorism tool used to spy on a presidential campaign, which is unprecedented in our history.’ ” He added, “Really bad things were happening, but they are now being exposed.”

The comments related to Trump’s order on Monday night that the Justice Department declassify materials related to the Russia investigation, including portions of a secret court order to surveil former Trump campaign adviser Carter Page. The order was issued under what is known as the Foreign Intelligence Surveillance Act (FISA). Democrats and former national security officials have said that Trump’s directive is a dangerous one — threatening to undermine an ongoing investigation of his own campaign and potentially revealing confidential law enforcement and intelligence sources. Democrats on the Gang of Eight — which includes the leaders of the House and Senate and the leaders of each chamber’s intelligence committee — called the move a “brazen abuse of power” and asked for a briefing before any materials were disclosed. It was not clear how soon the materials would be made public.

from https://thecrimereport.org

Are ‘Orders’ from the Tweeter-in-Chief Legally Enforceable?

Based on recent precedent, it seems safe to assume that the FBI and Department of Justice will ignore President Trump’s tweets calling for investigations into cases like the recent unsigned op ed in The New York Times. But how long can we rely upon this assumption? 

While many commentators have written about President Trump’s predilection for interpreting law via Twitter (whether the actions of his personal lawyer, Michael Cohen, in allegedly arranging “hush money” payoffs, were a crime, for example), a different presidential tweet poses even more difficult questions.

After Attorney General Jeff Sessions committed to not allowing the Department of Justice to be improperly influenced by political considerations, the President tweeted the following:

Jeff, this is GREAT, what everyone wants, so look into all of the corruption on the “other side” including deleted Emails, Comey lies & leaks, Mueller conflicts, McCabe, Strzok, Page, Ohr…FISA abuse, Christopher Steele & his phony and corrupt Dossier, the Clinton Foundation, illegal surveillance of Trump Campaign, Russian collusion by Dems – and so much more. Open up the papers & documents without redaction? Come on Jeff, you can do it, the country is waiting!

While the tweet about Michael Cohen’s actions not being a crime raised questions about whether the tweet constitutes a legal determination that is binding on the executive branch, the tweet about Sessions amounts, in my view, to what appears to be a presidential directive to investigate political opponents.

To what extent may federal authorities, particularly the DOJ and the FBI, respond in ways that are consistent with their interpretation of law and policy?

The question has become even thornier with the president’s recent comment that Sessions should investigate an anonymous Op Ed published by the New York Times. The author of the Op Ed claimed that members of the administration have worked to thwart some of the president’s agenda and inclinations, though he did not suggest any crimes were committed.

On the face of it, there is no reason why such an unclassified Op Ed would not be protected by the First Amendment.

The jabs at Sessions thus raise questions about a president’s constitutional duty—as Chief Executive—to “take care that the laws [be] faithfully executed” (Article II). Let me try to unpack some of those questions from the vantage point of the civil servants actually conducting investigations.

In other words, when President Trump calls for Sessions to investigate Op Eds or look into the “other side,” what does that mean for investigators?

Most FBI agents don’t carry around a copy of the Constitution in their pocket (well, some probably do), but they all have easy access to the Domestic Investigations and Operations Guide (DIOG), which “applies to all investigative activities and intelligence collection activities conducted by the FBI within the United States” (DIOG, § 1.1).

More generally, as both an intelligence agency and a law enforcement agency within the Department of Justice, the FBI’s power is dependent upon the authority vested in the office of the Attorney General, who may delegate authority to the FBI’s officials. This has been done in part through the DIOG, as well as through documents such as the Attorney General’s.

These documents standardize the FBI’s investigation policy in national security and criminal law cases. Specifically, the DIOG permits four basic ways for the FBI to “look into” crime:

  • Assessments
  • Preliminary Investigations
  • Full Investigations, and
  • Enterprise Investigations

An Assessment is the most basic type of formal FBI investigation. Notably, the DIOG states that “[a]lthough ‘no particular factual predication’ is required, the basis of an Assessment cannot be arbitrary or groundless speculation, nor can an Assessment be based solely on the exercise of First Amendment protected activities…FBI employees who conduct Assessments are responsible for ensuring that Assessments are not pursued for frivolous or improper purposes….” (DIOG, § 5.1).

The DIOG goes into great detail about the various types of Assessments that may be opened and the standards for conducting them. As one would expect, moving to Preliminary (DIOG, § 6), Full (DIOG, § 7), and Enterprise Investigations (DIOG, § 8) requires even more exacting rules with respect to investigative scope, predication, techniques, and so on.

Preliminary Investigations are predicated based upon “’allegation or information’ indicative of possible criminal activity or threats to the national security” (DIOG, § 6.1), while Full Investigations are predicated upon an “’articulable factual basis’ of possible criminal or national threat activity” (DIOG, § 7.1).

Finally, Enterprise Investigations are opened as Full Investigations, but with respect to “a group or organization that may be involved in the most serious criminal or national security threats to the public” (DIOG, § 8.1).

Does the unsigned Op Ed, or for that matter, the suggestion to look at corruption “on the other side” fulfill any of these four guidelines for launching an investigation?

Working outside of this stringent framework would indeed be uncharted territory—at least since President Richard Nixon (and presidents before him) ordered investigations that resulted in solely political and personal information unrelated to national security.

So it hasn’t been terribly long since presidents successfully used the FBI as their personal spy agency.

The US Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (or the “Church Committee”) helped expose a variety of widespread information-gathering tactics—including illegal searches and surveillance under the FBI’s COINTELPRO program from the mid-1950s through the early 1970s.

Based on recent precedent, it seems safe to assume that the FBI and Department of Justice will ignore requests for investigations without a firm, non-arbitrary investigative basis that is consistent with policy.

But how long can we rely upon this assumption?

And there is a deeper question that has higher stakes: If there is disagreement about whether the Executive is taking care that the law be executed faithfully, what are the long-term implications for the rule of law in the United States given a dysfunctional executive branch?

Our history illuminates how executive authority and discretionary power have grown to such a degree that it is trending toward illiberal practices and policies. This is not a Republican or a Democratic problem. It is a broader problem regarding the limits imposed by the legal, political, and philosophical norms of a constitutional democracy in the liberal tradition.

Luke Hunt

Luke William Hunt

Although it may sound alarmist, the evidence suggests that we are returning to an older model of executive power that entertains political whims. There is no doubt that presidential executive power includes a great deal of discretion, but all of us should take care that we remain a state governed by the rule of law—not executive discretion.

Luke William Hunt is Assistant Professor of Criminal Justice at Radford University. After law school and a federal judicial clerkship, he worked for seven years as an FBI Special Agent and Supervisory Special Agent in Charlottesville, VA, and Washington, D.C. After leaving government service, he completed his doctoral work in philosophy at the University of Virginia. He is the author of “The Retrieval of Liberalism in Policing,” forthcoming with Oxford University Press.

from https://thecrimereport.org

Manafort Plea Deal Discourages a Trump Pardon

Paul Manafort’s plea agreement appears to extract a promise from him not to seek another form of executive clemency that could relieve him of the obligation to turn over tens of millions of property to the government.

Special counsel Robert Mueller’s plea agreement with Paul Manafort took possibly unprecedented steps to undercut President Trump’s ability to pardon his former campaign chairman, reports Politico. The deal Mueller struck with Manafort contains several provisions that appear intended to discourage the former Trump aide both from seeking a pardon and to rein in the impact of any pardon Trump might grant. Attorneys who advocate for broad use of clemency criticized what they call an effort by Mueller’s team to tie the president’s hands. Mueller is “seeking to impede the ability of the president to exercise his constitutional pardon authority,” said David Rivkin, a Justice Department official under Presidents Ronald Reagan and George W. Bush.

The deal doesn’t explicitly prohibit Manafort from seeking a pardon, but it appears to extract a promise from Manafort not to seek another form of executive clemency that could relieve him of the obligation to turn over tens of millions of property to the government. The agreement says prosecutors can come after five identified homes or apartments, three bank accounts and a life insurance policy “without regard to the status of his criminal conviction.” Another part of the deal says that if Manafort’s guilty pleas or convictions are wiped out for any reason, prosecutors have the right to charge him with any other crimes he may have committed previously or confessed to during plea negotiations. The inclusion of a section barring Manafort from filing a “petition of remission” troubled advocates because it appears to prohibit not just a request to the Justice Department but also directing such a request to the president.

from https://thecrimereport.org

Manafort Deal Could Answer Key Questions on Russia

“This is a big win for Mueller’s team. Gaining Manafort’s cooperation has always been viewed as the Holy Grail of this investigation,” said a former prosecutor.

President Trump’s former campaign chairman Paul Manafort’s plea deal could help special counsel Robert Mueller answer some of the most critical questions about whether any Americans conspired with Russian efforts to influence the 2016 election, the Washington Post reports. The decision to cooperate with Mueller in hopes of a lesser prison sentence is a stunning development, signaling Manafort’s surrender to criminal charges that he cheated the Internal Revenue Service, violated foreign lobbying laws and tried to obstruct justice, while opening a new potential legal vulnerability for Trump.

As part of his plea, Manafort ­admitted to years of financial crimes to hide his money from the IRS and promised to tell the government about “his participation in and knowledge of all criminal activities.” Flipping Manafort gives Mueller a cooperating witness who was at key events relevant to the Russia investigation — a Trump Tower meeting attended by a Russian lawyer, the Republican National Convention and a host of other behind-the-scenes discussions in the spring and summer of 2016. “This is a big win for Mueller’s team. Gaining Manafort’s cooperation has always been viewed as the Holy Grail of this investigation,” said Robert Mintz, a former federal prosecutor, adding, “It is unlikely that prosecutors would have been willing to strike this deal unless they were already convinced that he has valuable information.” Manafort was talking in detail to prosecutors at least as early as Sept. 10. In return for his cooperation, Manafort hopes to have years shaved off a potential 10-year prison sentence and see his family hold on to some property. Kevin Downing, an attorney for Manafort, said, “He wanted to make sure his family remained safe and live a good life.”

from https://thecrimereport.org