STATEMENT FOR THE RECORD Assistant United States Attorney Aaron S. J. Zelinsky House Judiciary Committee June 24, 2020
Good afternoon, Chairman Nadler, ranking Member Jordan, and Members of the Committee. In response to your subpoena, I am prepared to testify before you today about the sentencing in United States v. Roger Stone.
Since 2014, I have been privileged to serve as one of over 5,000 Assistant United States Attorneys. We are non-partisan career prosecutors working in offices throughout the country. Our job is to see that justice is done, in every case, without fear or favor. Without party or politics.
I remain committed to these principles, as I am likewise committed to complying with your subpoena to the best of my ability. It is unusual for a prosecutor to testify about a criminal case, and given my role as a prosecutor, there are reasons why my testimony will necessarily be limited. The Department of Justice has indicated it may assert certain privileges related to investigative information and decisions, ongoing matters within the Department, and deliberations within the Department. I intend to respect the invocation of these privileges in appropriate circumstances, but also recognize that, for example, the deliberative process privilege does not apply when testimony sheds light on government misconduct, or when the Government has disclosed deliberative information selectively and misleadingly. The Department has cleared my submission of this written statement.
The first thing every AUSA learns is that we have an ethical and legal obligation to treat every defendant equally and fairly. No one is entitled to more or less because of who they are, who they know, or what they believe. In the United States of America, we do not prosecute people because of their politics.
And we don’t cut them a break because of their politics either. In the many cases I have been privileged to work on in my career, I have never seen political influence play any role in prosecutorial decision making. With one exception: United States v. Roger Stone.
At the time of the events in question – February 2020, I was a career Assistant United States Attorney. I was not privy to discussions with political leadership at the Department of Justice. My understanding of what happened in United States v. Stone is based on two things. The first is what I saw with my own eyes: the unusual and unprecedented way that Roger Stone’s sentencing was handled by the Department of Justice. The second is what was told to me at the time by my supervisors in the U.S. Attorney’s Office: why the Department was treating Roger Stone differently from everyone else.
What I saw was the Department of Justice exerting significant pressure on the line prosecutors in the case to obscure the correct Sentencing Guidelines calculation to which Roger Stone was subject – and to water down and in some cases outright distort the events that transpired in his trial and the criminal conduct that gave rise to his conviction. Such pressure resulted in the virtually unprecedented decision to override the original sentencing recommendation in his case and to file a new sentencing memorandum that included statements and assertions at odds with the record and contrary to Department of Justice policy.
What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President. I was told that the Acting U.S. Attorney for the District of Columbia, Timothy Shea, was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break, and that the U.S. Attorney’s sentencing instructions to us were based on political considerations. I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was “afraid of the President.”
That explanation was deeply unsettling. Together with my fellow line Assistant United States Attorneys, I immediately and repeatedly raised concerns, in writing and orally, that such political favoritism was wrong and contrary to legal ethics and Department policy.
Our objections were not heeded.
When I learned that the Department was going to issue a new sentencing memo, I made the difficult decision to resign from the case and my temporary appointment in the U.S. Attorney’s Office in D.C. rather than be associated with the Department of Justice’s actions at sentencing. I returned to the U.S. Attorney’s Office in Maryland, where I work today.
Stone’s Conduct in Advance of the 2016 Election
To put into context the events surrounding the sentencing of Mr. Stone, it is important to provide some background on the case itself and the basis for the charges that Mr. Stone obstructed and lied to Congress. I want to emphasize that in describing the proceedings against Mr. Stone that set the stage for his sentencing, I have limited myself to materials and filings that are a matter of public record, including the testimony at Mr. Stone’s trial.
Roger Stone is a longtime friend and associate of President Trump. In the summer of 2016, Stone was considered by the Trump campaign to be the campaign’s access point to WikiLeaks. Throughout the summer and fall, Stone was in regular contact with the highest levels of the Trump campaign, which was relying on him for information about Wikileaks’s activities.
Beginning in spring 2016, Stone told senior Trump campaign officials that he had inside knowledge regarding WikiLeaks’s plans, and that he communicated with Julian Assange. Stone made these claims throughout the summer to Deputy Campaign Chairman Rick Gates, Campaign Chairman Paul Manafort, and Campaign CEO Steve Bannon. These men believed his claims, and they sought information from Stone about what WikiLeaks would do to help the Trump campaign. Moreover, as the summer wore on, the senior leadership found Stone’s predictions to be reliable. Manafort instructed Gates to keep in touch with Stone regarding WikiLeaks so that he could keep then-candidate Trump updated on Stone’s information. And the senior level of the Trump campaign began brainstorming a press strategy based in part on Stone’s predictions of a WikiLeaks release of documents that would be damaging to the Clinton campaign.
That summer, Stone reached out to both Manafort and Bannon, telling Manafort that Stone had a “plan to save Trump’s ass.” And in August 2016, Stone told Bannon he knew how to “win but this ain’t pretty.” Bannon responded, “let’s talk ASAP.” In this same time period, Stone also publicly bragged that he had a backchannel to Julian Assange, and “therefore I am a recipient of pretty good information.”
On Friday, October 7, 2016, WikiLeaks began dumping into the public domain thousands of emails which the Russian government had hacked from Clinton campaign Chairman John Podesta’s personal email account. Minutes after WikiLeaks began releasing the hacked emails, one of Trump campaign CEO Bannon’s aides texted Stone, “well done.” That weekend, Campaign CEO Steve Bannon himself heard that Stone was involved in the WikiLeaks release of the hacked emails.
And that summer, Stone wasn’t just talking to the CEO, Chairman, and Deputy Chairman of the campaign. He was talking directly to then-candidate Trump himself. On June 14, 2016, the Democratic National Committee (DNC) announced that it had been hacked earlier that spring by the Russian Government. That evening, Stone called Trump, and they spoke on Trump’s personal line. We don’t know what they said.
On August 2, Stone again called then-candidate Trump, and the two spoke for approximately ten minutes. Again, we don’t know what was said, but less than an hour after speaking with Trump, Stone emailed an associate of his, Jerome Corsi, to have someone else who was living in London “see Assange.”
Less than two days later, on August 2, 2016, Corsi emailed Stone. Corsi told Stone that, “Word is friend in embassy [Assange] plans 2 more dumps. One “in October” and that “impact planned to be very damaging,” “time to let more than Podesta to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about."
Around this time, Deputy Campaign Chairman Gates continued to have conversations with Stone about more information that would be coming out from WikiLeaks. Gates was also present for a phone call between Stone and Trump. While Gates couldn’t hear the content of the call, he could hear Stone’s voice on the phone and see his name on the caller ID. Thirty seconds after hanging up the phone with Stone, then-candidate Trump told Gates that there would be more information coming. Trump’s personal lawyer, Michael Cohen, also stated that he was present for a phone call between Trump and Stone, where Stone told Trump that he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information, and Trump responded, “oh good, alright.”
Paul Manafort also stated that he spoke with Trump about Stone’s predictions and his claimed access to WikiLeaks, and that Trump instructed Manafort to stay in touch with Stone.
In his written answers to the Special Counsel’s Office, President Trump denied remembering anything about his conversations with Stone during the summer of 2016, and he denied being aware that Stone had discussed WikiLeaks with anyone associated with the campaign. One week after submitting his written answers, President Trump criticized “flipping” witnesses and stated that Stone was “very brave” in indicating he would not cooperate with prosecutors. The Special Counsel’s Report stated that the President’s statements complimenting Stone “support the inference that the President intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the President[.]”
Stone’s False Testimony to Congress
Given that Stone had publicly stated he was in contact with Julian Assange in the summer of 2016, the House Permanent Select Committee on Intelligence (HPSCI) called him as a witness in its investigation into Russian interference in the 2016 election. The HPSCI investigation sought to understand what Stone knew about WikiLeaks, how he heard about it, and what he told the Trump Campaign.
Stone repeatedly lied to the committee about these matters.
First, Stone claimed to Congress he didn’t have anything in writing that related to Julian Assange – no emails, texts, documents, or anything at all. In fact, he had hundreds of such communications.
Next, Stone lied to Congress about his intermediary to WikiLeaks, insisting that his public statements in August 2016 about an intermediary to Assange referred to Randy Credico – never naming Jerome Corsi, who had told him in August about the game “hackers were about,” and that they planned more dumps, including in October. Stone further testified that he had nothing in writing with his
intermediary, and that his intermediary was “not an email guy.” when Stone actually had hundreds of messages with both Corsi and Credico.
Lastly, Stone repeatedly lied to the Committee about his contacts with the Trump campaign. Stone testified that he’d never discussed his WikiLeaks intermediary with anyone involved with the Trump campaign. But Stone had extensive discussions involving the information he was receiving about WikiLeaks throughout the summer and fall with Manafort, Gates, Bannon, and Trump.
Rather than disclose this information, Roger Stone chose to lie. As Judge Jackson noted at sentencing, those lies hindered the efforts of Congress to investigate Russian interference in the 2016 election:
Mr. Stone lied, and he said he had no documents, no emails or texts with his claimed intermediary with Julian Assange; no emails or texts with people associated with the campaign concerning his contacts with WikiLeaks. So the committee did not issue a subpoena for the trove of material Stone had in his possession and lost that opportunity to consider them and to delve further. They spent considerable resources and they wasted them going after Credico as the supposed intermediary. They lost the benefit of his testimony when he acceded to pressure from Stone not to testify, and they didn't hear from Corsi, who wasn't identified by Stone at all. This obstruction lead the committee to reach incorrect conclusions about the lack of evidence that would contradict Stone's claims.
Judge Jackson also rejected the notion that Stone had been prosecuted “for standing up for the President. He was prosecuted for covering up for the President.”
Stone’s criminal conduct did not stop with his lies to the Committee. Following his congressional testimony, Stone embarked on an extended month- long campaign of witness intimidation and obstruction of justice targeted at Randy Credico. Stone tried to get Credico to go along with his lie that Credico had been his backchannel to Wikileaks in August 2016. Stone repeatedly told Credico to do a “Frank Pentangeli” – a character in the Godfather Part II, who lies to a congressional committee to save Don Corleone from getting prosecuted for perjury.
When Credico refused Stone’s pressure, Stone threatened Credico, telling Credico to “prepare to die.” And Stone promised that if Credico didn’t keep quiet, Stone wouldn’t just ruin Credico’s life, he would ruin the life of Credico’s friend, an attorney, by filing a bar complaint against her. In response to such threats, Credico told HPSCI he would invoke his Fifth Amendment rights if called to testify. Then, fearful of what Stone’s associates might do to him, Credico moved out of his house and wore a disguise when going outside.
Indictment and Trial
Stone was indicted by a grand jury in January 2019. In the months that followed, Stone repeatedly violated orders of the court, culminating in him publishing a picture of the presiding judge, Amy Berman Jackson, with a crosshairs next to her head and attacking her as corrupt. At a hearing on the matter, Stone took the stand and claimed – under oath – that the crosshairs next to the judge’s head was an “occult Celtic symbol” and that he couldn’t remember who had access to his phone the week before when the images was posted. Judge Jackson found his testimony not credible.
After a six day trial at which Stone was represented by able counsel, the jury convicted Stone on all seven counts.
Sentencing Policy
In the federal system, the imposition of sentence is reserved for the judge. But in order to promote fairness in sentencing, the law requires that every sentencing begins with a calculation of the Sentencing Guidelines applicable to the defendant and his offense. The Sentencing Guidelines are a formulaic system that starts with a base level for each offense and adds or subtracts “points” for various characteristics of the offense and of the defendant. In the end the Guidelines calculation comes up with a number that corresponds to a range of incarceration; the higher the Guidelines number, the longer the sentence.
The purposes of the Guidelines are to ensure that similarly situated defendants get similar sentences; to prevent the courts from basing sentences on impermissible considerations; and to ensure that sentences reflect the gravity of the defendant’s crime. While the Guidelines have their supporters and detractors,
the Department of Justice’s official policy – which was reinforced and made more explicit in 2017 – is generally to recommend a sentence within the Guidelines range. Prosecutors are explicitly prohibited from seeking a below-Guidelines sentence without supervisory approval.
For the Department to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant is in my experience unheard of – all the more so given Stone’s conduct in the lead-up to the trial. I was told at the time that no one in the Fraud and Public Corruption Section of the United States Attorney’s Office in the District of Columbia – which prosecuted the Stone case after the Special Counsel’s office completed its work – could even recall a case where the government did not seek a Guidelines sentence after trial.
Guidelines Calculation
The applicable Guidelines calculation is an important aspect of what happened at sentencing. In this case, the Government calculated Stone’s Guidelines as follows:
First, the so-called “Base Offense level” for obstruction of justice is 14.
Next, the government calculated that Stone received three (3) additional levels because he successfully blocked HPSCI from ever learning about Corsi, his messages and Stone’s many contacts with the Trump Campaign. Stone received an additional two (2) levels for lying to the judge under oath regarding the photo of her with the crosshairs. Two (2) more levels were added because Stone’s efforts to obstruct were extensive in scope. And eight (8) levels were added because Stone threatened to cause physical injury or property damage in order to obstruct justice – the threats to harm Credico.
Taken together, these enhancements resulted in a total offense level of 29 points. Since Stone was a first time offender, this corresponded to a Guidelines range of 87-108 months.
This Guidelines calculation reflected the egregious and unusual nature of Stone’s conduct in this case – intentionally misleading Congress regarding a matter of critical national importance; posting a picture of the Judge with a crosshairs and
then lying under oath to the same judge about it; and engaging in an extended pattern of witness tampering and obstruction.
Sentencing Memorandum
The prosecution team – which consisted of three career prosecutors in addition to myself – prepared a draft sentencing memorandum reflecting this calculation and recommending a sentence at the low end of the Guidelines range. We sent our draft for review to the leadership of the U.S. Attorney’s Office. We received word back from one of the supervisors on February 5, 2020, that the sentencing memo was strong, and that Stone “deserve[d] every day” of our recommendation.
However, just two days later, I learned that our team was being pressured by the leadership of the U.S. Attorney’s Office not to seek all of the Guidelines enhancements that applied to Stone – that is, to provide an inaccurate Guidelines calculation that would result in a lower sentencing range. In particular, there was pressure not to seek enhancements for Stone’s conduct prior to trial, the content of the threats he made to Credico, and the impact of his obstructive acts on the HPSCI investigation. Failure to seek these enhancements would have been contrary to the record in the case and to the Department’s policy that the government must ensure that the relevant facts and sentencing factors are brought to the court’s attention fully and accurately.
When we pushed back against incorrectly calculating the Guidelines, office leadership asked us instead to agree to recommend an open-ended downward variance from the Guidelines –to say that whatever the Guidelines recommended, Stone should get less. We repeatedly argued that failing to seek all relevant enhancements, or recommending a below-Guidelines sentence without support for doing so, would be inappropriate under DOJ policy and the practice of the D.C. U.S. Attorney’s Office, and that given the nature of Stone’s criminal activity and his wrongful conduct throughout the case, it was not warranted.
In response, we were told by a supervisor that the U.S. Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong. However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was “not the hill worth dying on” and that we could “lose our jobs” if we did not toe the line.
We responded that cutting a defendant a break because of his relationship to the President undermined the fundamental principles of the Department of Justice, and that we felt that was an important principle to defend.
Meanwhile, senior U.S. Attorney’s Office leadership also communicated an instruction from the acting U.S. Attorney that we remove portions of the sentencing memorandum that described Stone’s conduct. Again, this instruction was inconsistent with the usual practice in the U.S. Attorney’s Office, and with the Department’s policy that attorneys for the government must ensure that relevant facts are brought the attention of the sentencing court fully and accurately.
Ultimately, we refused to modify our memorandum to ask for a substantially lower sentence. Again, I was told that the U.S. Attorney’s instructions had nothing to do with Mr. Stone, the facts of the case, the law, or Department policy. Instead, I was explicitly told that the motivation for changing the sentencing memo was political, and because the U.S. Attorney was “afraid of the President.”
On Monday, February 10, 2020, after these conversations, I informed leadership at the U.S. Attorney’s Office in D.C. that I would withdraw from the case rather than sign a memo that was the result of wrongful political pressure. I was told that the acting U.S. Attorney was considering our recommendation and that no final decision had been made.
At 7:30PM Monday night, we were informed that we had received approval to file our sentencing memo with a recommendation for a Guidelines sentence, but with the language describing Stone’s conduct removed. We filed the memorandum immediately that evening.
At 2:48 AM the following morning, the President tweeted that the recommendation we had filed was “horrible and very unfair.” He stated that, “the real crimes were on the other side, as nothing happens to them.” President Trump closed, “Cannot allow this miscarriage of justice!”
The next morning, media reports began to circulate quoting a “senior Department of Justice official” stating that the Department would file a new sentencing memorandum overriding our old one. This was highly unusual, as the Department generally does not comment on pending filings in criminal cases. The first we heard of any new memorandum was from public media reports. When we asked the U.S. Attorney’s Office about these media reports, we were initially told they were false. But later that day, we were told that a new memorandum would be filed, countermanding our earlier recommendation and asking for a substantially lower sentence for Mr. Stone.
We repeatedly asked to see that new memorandum prior to its filing. Our request was denied. We were not informed about the content or substance of the proposed filing, or even who was writing it. We were told that one potential draft of the filing attacked us personally.
Concerned over the political influence in the case – and the explicit statements that the reasons for these actions were political, and that the U.S. Attorney was acting because he was “afraid of the President” – I withdrew. My three colleagues did the same.
That evening, the Department filed a new memorandum seeking a substantially lower sentence for Stone. No line AUSA signed the filing—which is also something that is virtually unprecedented.
The new filing stated that the first memo did not “accurately reflect” the views of the Department of Justice. This new memo muddled the analysis of the appropriate Guidelines range in ways that were contrary to the record and in conflict with Department policy. The memo said that the Guidelines were “perhaps technically applicable,” but attempted to minimize Stone’s conduct in threatening Credico and cast doubt on the applicability of the resulting enhancement, claiming that the enhancement “typically” did not apply to first time offenders who were not “part of a violent criminal organization.” The memo also stated that Stone’s lies to the Judge about the meaning of the image with the crosshairs and how it came to be posted on Instagram “overlaps to a degree with the offense conduct in this case,” and therefore should not be the basis for an enhancement.
The new memo did not engage with testimony in the record about Credico’s concerns. Nor did the new memo engage with cases cited in the old memo where the obstruction enhancement was applied to non-violent first-time offenders. And the memo provided no analysis for why Stone’s lies to Congress regarding WikiLeaks overlapped at all with his lies two years later to the judge about his posting images of her with a crosshairs. The new memo also stated that the court should give Stone a lower sentence because of his “health,” though it provided no support for that contention, and the Guidelines explicitly discourage downward adjustments on that basis.
Ultimately, the memo argued, Stone deserved at least some time in jail– though it did not give an indication of what was reasonable. All the memo said was that a Guidelines sentence was “excessive and unwarranted,” matching the President’s tweet from that morning calling our recommendation “horrible and very unfair.”
At sentencing, in the face of questioning from Judge Jackson, the Government’s attorney ultimately conceded that the original sentencing memo had the legally correct analysis of the Guidelines and that the initial filing was fully consistent with DOJ policy – notwithstanding the Department’s seeming change in position and muddled revised submission.
After hearing from both parties, Judge Jackson concluded that the Guidelines should be calculated as 27 (corresponding to 70-87 months’ imprisonment) – two points lower than the recommendation in our initial sentencing memorandum. She noted that the “government’s initial memorandum was well researched, and supported. It was true to the record. It was in accordance with the law and with DOJ policy, and it was submitted with the same level of evenhanded judgment and professionalism they exhibited throughout the trial.” Judge Jackson also found there was no evidence at all that the defendant’s health was an issue relevant to sentencing, and she rejected the contention that Stone’s post-indictment conduct did not qualify for a separate obstruction enhancement, stating that he “engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of Justice.” Judge Jackson also found that the eight- level enhancement for threats resulted in a guidelines level above that which fairly reflected Stone’s conduct. Judge Jackson then noted that the decision was a difficult one, and that she would not be influenced by extraneous events, and that it was important that the responsibility to sentence falls to “someone neutral. . . Not someone whose political career was aided by the defendant. And surely not someone who has personal involvement in the events underlying the case.”
Judge Jackson then imposed a sentence of 40 months, citing the nature of egregious nature of Stone’s conduct, and the fact that she couldn’t “ignore the circumstances involving Mr. Credico entirely.”
To be clear, my concern is not with this sentencing outcome – and I am not here to criticize the sentence Judge Jackson imposed in the case or the reasoning that she used. It is about process and the fact that the Department of Justice treated Roger Stone differently and more leniently in ways that are virtually, if not entirely, unprecedented.
When the sentence was announced, a supervisor from the D.C. U.S. Attorney’s Office forwarded me a copy of the sentencing transcript, noting that “things are raw. But I hope you know that I am grateful for you and your colleagues work. It may be cold to say, but congratulations – you achieved a remarkable result.
Please be sure to read Judge Jackson’s imposition of sentence in its entirely; it is a tribute to your work.” I responded, “Thanks for the message. I continue to believe, as I previously expressed to you, that changing a sentencing recommendation based on political considerations and the fact that the U.S attorney was ‘afraid of the President’ (in your words) was wrong, contrary to DOJ policy, and unethical, at a minimum.”
Conclusion
Let me close briefly on a personal note.
I take no satisfaction in publicly criticizing the actions of the Department of Justice, where I have spent most of my legal career. I have always been and remain proud to be an Assistant United States Attorney.
It pains me to describe these events. But as Judge Jackson said in this case, the truth still matters. And so I am here today to tell you the truth.
Showing posts with label Barr. Show all posts
Showing posts with label Barr. Show all posts
Wednesday, June 24, 2020
Wednesday, May 29, 2019
Mueller Speaks in Public
"If we had confidence the president clearly did not commit a crime, we would have said so. We did not." - Robert Mueller; May 29, 2019
There you have it, folks.
Monday, May 13, 2019
Conason Suggests A TV Show
Joe Conason on Barr's lying about the Mueller Report:
''Sooner or later, someone will find a way to convey the report’s actual facts and conclusions to Americans in a comprehensible form. Maybe a movie or a comic book (or an impeachment hearing) would work. Then, despite the incessant spinning by Trump, Barr, and their craven servants in Congress, people may understand that the absence of a criminal indictment does not exonerate Trump at all. If it did, Mueller would have had no reason to publish hundreds of pages of evidence describing the shady, unethical, and unpatriotic conduct of the Trump campaign, all the way from George Papadopoulos and Roger Stone to the president himself.''
https://www.nationalmemo.com/what-made-robert-mueller-so-mad/
''Sooner or later, someone will find a way to convey the report’s actual facts and conclusions to Americans in a comprehensible form. Maybe a movie or a comic book (or an impeachment hearing) would work. Then, despite the incessant spinning by Trump, Barr, and their craven servants in Congress, people may understand that the absence of a criminal indictment does not exonerate Trump at all. If it did, Mueller would have had no reason to publish hundreds of pages of evidence describing the shady, unethical, and unpatriotic conduct of the Trump campaign, all the way from George Papadopoulos and Roger Stone to the president himself.''
https://www.nationalmemo.com/what-made-robert-mueller-so-mad/
Saturday, May 11, 2019
Congress Can Arrest Barr
The Rarely Used Congressional Power That Could Force William Barr’s Hand
It hasn’t been done in nearly a century, but House Democrats could arrest the attorney general after they find him in contempt.
Russell Berman
May 8, 2019
Impeachment is Congress’s most famous, yet rarely exercised, power over wayward presidents and other federal officers. But as Trump-administration officials continue to defy House subpoenas related to Special Counsel Robert Mueller’s investigation, Democrats in control of the chamber could turn to an even blunter weapon in their arsenal: arrest.
Courts have recognized that the House and Senate each have the authority to enforce their orders by imprisoning those who violate them—literally. They can direct their respective sergeant at arms to arrest officials they’ve found to be in contempt and bring them to the Capitol for trial and, potentially, jail. Congress hasn’t invoked what’s known as the “power of inherent contempt” in nearly a century, but the escalating clash between two co-equal branches of government has Democrats talking about moves previously deemed unthinkable.
“Its day in the sun is coming,” Representative Jamie Raskin of Maryland told me by phone on Tuesday. Raskin, a second-term Democrat and former constitutional-law professor, sits on the House Judiciary Committee, which on Wednesday approved, on a vote of 24–16, a resolution finding Attorney General William Barr in contempt for his refusal to give Congress the full, unredacted Mueller report. As lawmakers met to consider the move, the White House carried out its threat to assert executive privilege over the document.
The contempt resolution now goes to the full House, where it will likely clear on a party-line vote with the backing of Speaker Nancy Pelosi, who announced on Wednesday morning that she supported holding Barr in contempt. From there, Democrats would have three options to force Barr’s hand: They could refer the matter to the U.S. attorney in Washington, D.C., who would decide whether to launch a criminal prosecution of his own boss, the attorney general. Democrats could turn to the courts to enforce the subpoena. Or they could take matters into their own hands and call their sergeant at arms. Raskin himself brought up the arrest option when I asked him how far this confrontation could go, even as he acknowledged that not many members of the House were aware of that particular congressional power, much less supported its use.
The debate over how congressional Democrats intend to defend their constitutional prerogative to oversee the executive branch extends beyond Barr; Donald Trump’s administration is challenging the House’s authority across a range of areas, from the Ways and Means Committee’s bid to get the president’s tax returns from the IRS to the Judiciary Committee’s request to hear from both Mueller and one of his key witnesses, former White House Counsel Don McGahn.
“This is not some peripheral schoolyard skirmish,” Raskin said. “This goes right to the heart of our ability to do our work as Congress of the United States.”
Still, Democrats have been reluctant to launch impeachment proceedings against Trump for fear that they would backfire politically. Would they really send the House’s sergeant at arms down Pennsylvania Avenue to the Department of Justice with instructions to haul the nation’s chief law-enforcement officer to the Capitol, in handcuffs if necessary? House Republicans made no such effort after they voted to hold then–Attorney General Eric Holder in contempt in 2012 over his refusal to turn over documents connected to the “Fast and the Furious” probe.
In our interview on Tuesday, I spoke with Raskin about the Judiciary Committee’s confrontation with the Trump administration over subpoenas and the bubbling debate within Congress over impeachment. Our conversation has been lightly edited for length and clarity.
Russell Berman: If the House does vote to pass the resolution to hold Barr in contempt, where would it go from there?
Jamie Raskin: Well, first of all, at that point the contempt finding is complete. In other words, that goes on his permanent record, as you might say. He has been held in contempt of Congress, meaning in contemptuous or contumacious defiance of a lawful order of Congress, okay? So at that point, contempt is complete. However, we still need to enforce the contempt resolution in order to obtain compliance with the subpoena. There are different ways of doing that. There could be a criminal prosecution, but given the object of the resolution, there might be a problem getting the U.S. attorney to act forcefully and with dispatch. But we also have the power to go to court.
We also have the power—and I should say I’m speaking for myself here, because I don’t know how many people I’ve been able to convince about this—but we do have the power to exercise the so-called inherent powers of contempt of Congress. It was ruled in the 19th century, in a case called Anderson v. Dunn in 1821, that Congress has the power to enforce its own orders. Just as a court can enforce its orders, Congress can enforce its orders. And in the 19th century, Congress had the sergeant at arms arrest and detain people until they complied with lawful orders of Congress. And we would have the power to fine people who were out of compliance with the law. So that provides another avenue.
Berman: If it got to that point, do you think the House would have the attorney general arrested by the sergeant at arms?
Raskin: Well, the vast majority of the Judiciary Committee, much less the House itself, are just not aware of this process. So it’s just premature to be talking about it. But, you know, its day in the sun is coming. We will educate people about the power of the House to do it. The executive branch is acting in categorical bad-faith contempt of Congress. This is not like a dispute over one document or the timing of the arrival of a particular witness. This is the president of the United States ordering the executive branch not to comply with the lawful requests of Congress.
The Supreme Court has emphasized that Congress has the power of inquiry and investigation. This is essential to our lawmaking function. We have a responsibility to research how the current laws are working and what conditions are that might require legislative changes. We also have a specific power, the Supreme Court has emphasized, to investigate corruption, self-dealing, fraud, waste, and abuse in the executive branch of government. So, you know, this is not some peripheral schoolyard skirmish. This goes right to the heart of our ability to do our work as Congress of the United States.
Berman: From your point of view, would you personally support and advocate this move, which in modern times is unprecedented, to have the attorney general arrested by the sergeant at arms? Would you personally advocate that?
Raskin: Well, no, nobody has advocated that specifically. But I just want to make sure that we have all instruments on the table, and we should be aware that Congress has inherent powers of contempt that can relate to fines, orders, as well as arrests. But I, you know, nobody’s calling for that at this point.
Berman: Is there a risk that if the president does resist all of these attempts by the House to conduct its oversight, and if he wins in the courts, that it would actually set a new precedent for executive authority? That he could end up not only skirting oversight himself, but that, through court rulings, it could end up that the presidency itself winds up with more power?
Raskin: Well, it’s definitely been suggested by a number of people that the president has succeeded in packing the courts, including the Supreme Court, to the point that they essentially are part of the White House political operation. I hope that this is not the case.
In any event, we know that the executive branch is acting in categorical defiance of lawful orders of Congress for information. And whether or not we can get the Supreme Court to agree with us in this or that case is irrelevant to that broader judgement. We will decide, as the House of Representatives did when it drafted the third article of the Nixon articles of impeachment, whether President Trump has been acting in an unlawful way to obstruct the work of Congress.
Look, the obstructionism that was canvassed so methodically by Special Counsel Mueller in his report came leaping off the pages and right onto our doorstep and into our committee rooms. The president has been obstructing us with the same kind of vigor and zeal that he obstructed the special counsel.
Berman: Do you expect that the Judiciary Committee will follow this same process for each of the potential refusals to comply? Barr also refused to appear before the committee. Do you expect a second contempt process to begin if he continues to refuse to testify, and then would that same process also apply to McGahn and anybody else who refused to testify?
Raskin: Well, let’s broaden the question. The president essentially is trying to pull a curtain over the executive branch of government, and to systematically thwart and defy the will of Congress. The word on the street is that they are begging for an impeachment, and they think this is the proper way to get it. And I just want to say about that: If we are going to impeach the president, we are going to do it on our own schedule and at our own pace. We are not going to be pulled into it just by a series of provocations from the president.
In our last two Judiciary meetings, I counted Republicans invoking impeachment a dozen times. If they are so eager for impeachment and they think the time is right, they should go ahead and introduce impeachment articles on their own. Otherwise, they’re going to have to trust our strategic and constitutional judgments.
Berman: Lastly, there has also been the suggestion that Barr should be impeached himself. Is that a path you could see the House going down, or is the contempt path the better one?
Raskin: Well, there are certainly members calling for the impeachment of William Barr, and it is likely that he has committed high crimes and misdemeanors supporting and advancing the president’s project of obstructing Congress in doing its work. So that becomes a strategic question of what we’re going to do in order to get to the truth that is in the Mueller report and to defend our constitutional system of government. And I can’t say that any of those judgments have been made yet.
Berman: You mentioned the Supreme Court and the president’s ability to install conservative judges more broadly. Is it possible that Trump will just win this fight—that the courts might just rule in his favor?
Raskin: I find it hard to believe that the courts have been so corrupted by Donald Trump already that they would completely abandon the rule of law. But we live in a time where nothing is normal. Let’s hope for the best, be prepared for the worst, and go fight like hell for the Constitution.
We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.
Monday, May 6, 2019
Trump Would Have Been Indicted
"Trump would have been charged with obstruction were he not president, hundreds of former federal prosecutors assert"
"More than 370 former federal prosecutors who worked in Republican and Democratic administrations have signed on to a statement asserting special counsel Robert S. Mueller III’s findings would have produced obstruction charges against President Trump — if not for the office he held." - Washington Post
“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice,” wrote over 370 former federal prosecutors.
https://tinyurl.com/y23zommm
"More than 370 former federal prosecutors who worked in Republican and Democratic administrations have signed on to a statement asserting special counsel Robert S. Mueller III’s findings would have produced obstruction charges against President Trump — if not for the office he held." - Washington Post
“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice,” wrote over 370 former federal prosecutors.
https://tinyurl.com/y23zommm
Friday, May 3, 2019
Substantial Evidence of Obstruction
Mueller concluded, “Taking into account that information and our analysis of applicable statutory and constitutional principles . . . we determined that there was a sufficient factual and legal basis to further investigate potential obstruction-of-justice issues involving the President.” - Volume II; Page 12 - Mueller Report
https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html#g-page-224
https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html#g-page-224
Thursday, May 2, 2019
Mazie Hirono Blasts Barr
Mazie Hirono’s full comments to Barr are transcribed below:
Thank you, Mr. Chairman. Mr. Barr, now the American people know that you are no different from Rudy Giuliani or Kellyanne Conway or any of the other people who sacrifice their once decent reputation for the liar who sits in the Oval Office.
[You] once turned down a job offer from Donald Trump to represent him as his private attorney. At your confirmation hearing, you told Sen. Feinstein that the job of attorney general is not the same as representing ... the president. So you know the difference. You’ve chosen to be the president’s lawyer and side with him over the interest of the American people.
To start with, you should never have been involved in supervising the Robert Mueller investigation. You wrote a 19-page unsolicited memo, which you admit was not based on any facts, attacking the premise of half of the investigation. And you also should have insisted that Deputy Attorney General Rod Rosenstein recuse himself. He wasn’t just a witness to some of the president’s obstructive behavior; we now know he was in frequent personal contact with the president, a subject of the investigation. You should have left it to career officials.
Then once the report was delivered by the special counsel, you delayed its release for more than two weeks and let the president’s personal lawyers look at it before you even deigned to let Congress or the public see it. During the time, you substituted your own political judgment for the special counsel legal conclusions and in a four-page letter to Congress — and now we know, thanks to a free press, that Mr. Mueller wrote you a letter objecting to your so-called summary.
When you called Mueller to discuss his letter, the reports are that he thought your summary was giving the press, Congress, and the public a misleading impression of his work. He asked you to release the report summaries to correct the misimpression you created, but you refused.
When you finally did decide to release the report, over a congressional recess and on the eve of two major religious holidays, you called a press conference to once again try to clear Donald Trump before anyone had a chance to read the special counsel report and come to their own conclusions.
But when we read the report, we knew Robert Mueller’s concerns were valid and that your version of events was false. You used every advantage of your office to create the impression that the president was cleared of misconduct. You selectively quoted fragments from the special counsel report, taking some of the most important statements out of context and ignoring the rest. You put the power and authority of the office of the attorney general and the Department of Justice behind a public relations effort to help Donald Trump protect himself.
Finally, you lied to Congress. You told Rep. Charlie Crist that you didn’t know what objections Mueller’s team might have to the March 24 so-called summary. You told Sen. Chris Van Hollen you didn’t know if Robert Mueller supported your conclusions — but you knew you lied, and now we know.
A lot of officials were surprised by your efforts to protect [the president], but I was unsurprised. You did exactly what I thought you would do. It is why I voted against your confirmation. I expected you would try to protect the president, and, indeed, you did in 1989. This isn’t something you hadn’t done before. In 1989, when you refused to show Congress an OLC opinion that led to the arrest of [Panamanian leader] Manuel Noriega in 1992, when you recommended pardons for the subjects of the Iran-Contra scandal and last year when you wrote the 19-page memo telling Donald Trump that, as president, can’t be guilty of obstruction of justice and then didn’t recuse yourself from the matter.
From the beginning, you were addressing an audience of one, that person being Donald Trump. That is why before the bombshell news of yesterday evening, 11 of my Senate colleagues and I called on the Department of Justice Inspector General and Office of Professional Responsibility to investigate the way you have handled the Mueller report.
I wanted them to determine whether your actions complied with the department’s policies and practices and whether you have demonstrated sufficient impartiality to continue to oversee the 14 other criminal matters that the special counsel referred to other parts of the Department of Justice.
But now we know more about your deep involvement and trying to cover up for Donald Trump. Being attorney general of the United States is a sacred trust. You have betrayed that trust. America deserves better. You should resign.
___________
https://www.vox.com/2019/5/1/18525727/william-barr-testimony-mazie-hirono-senate
Thank you, Mr. Chairman. Mr. Barr, now the American people know that you are no different from Rudy Giuliani or Kellyanne Conway or any of the other people who sacrifice their once decent reputation for the liar who sits in the Oval Office.
[You] once turned down a job offer from Donald Trump to represent him as his private attorney. At your confirmation hearing, you told Sen. Feinstein that the job of attorney general is not the same as representing ... the president. So you know the difference. You’ve chosen to be the president’s lawyer and side with him over the interest of the American people.
To start with, you should never have been involved in supervising the Robert Mueller investigation. You wrote a 19-page unsolicited memo, which you admit was not based on any facts, attacking the premise of half of the investigation. And you also should have insisted that Deputy Attorney General Rod Rosenstein recuse himself. He wasn’t just a witness to some of the president’s obstructive behavior; we now know he was in frequent personal contact with the president, a subject of the investigation. You should have left it to career officials.
Then once the report was delivered by the special counsel, you delayed its release for more than two weeks and let the president’s personal lawyers look at it before you even deigned to let Congress or the public see it. During the time, you substituted your own political judgment for the special counsel legal conclusions and in a four-page letter to Congress — and now we know, thanks to a free press, that Mr. Mueller wrote you a letter objecting to your so-called summary.
When you called Mueller to discuss his letter, the reports are that he thought your summary was giving the press, Congress, and the public a misleading impression of his work. He asked you to release the report summaries to correct the misimpression you created, but you refused.
When you finally did decide to release the report, over a congressional recess and on the eve of two major religious holidays, you called a press conference to once again try to clear Donald Trump before anyone had a chance to read the special counsel report and come to their own conclusions.
But when we read the report, we knew Robert Mueller’s concerns were valid and that your version of events was false. You used every advantage of your office to create the impression that the president was cleared of misconduct. You selectively quoted fragments from the special counsel report, taking some of the most important statements out of context and ignoring the rest. You put the power and authority of the office of the attorney general and the Department of Justice behind a public relations effort to help Donald Trump protect himself.
Finally, you lied to Congress. You told Rep. Charlie Crist that you didn’t know what objections Mueller’s team might have to the March 24 so-called summary. You told Sen. Chris Van Hollen you didn’t know if Robert Mueller supported your conclusions — but you knew you lied, and now we know.
A lot of officials were surprised by your efforts to protect [the president], but I was unsurprised. You did exactly what I thought you would do. It is why I voted against your confirmation. I expected you would try to protect the president, and, indeed, you did in 1989. This isn’t something you hadn’t done before. In 1989, when you refused to show Congress an OLC opinion that led to the arrest of [Panamanian leader] Manuel Noriega in 1992, when you recommended pardons for the subjects of the Iran-Contra scandal and last year when you wrote the 19-page memo telling Donald Trump that, as president, can’t be guilty of obstruction of justice and then didn’t recuse yourself from the matter.
From the beginning, you were addressing an audience of one, that person being Donald Trump. That is why before the bombshell news of yesterday evening, 11 of my Senate colleagues and I called on the Department of Justice Inspector General and Office of Professional Responsibility to investigate the way you have handled the Mueller report.
I wanted them to determine whether your actions complied with the department’s policies and practices and whether you have demonstrated sufficient impartiality to continue to oversee the 14 other criminal matters that the special counsel referred to other parts of the Department of Justice.
But now we know more about your deep involvement and trying to cover up for Donald Trump. Being attorney general of the United States is a sacred trust. You have betrayed that trust. America deserves better. You should resign.
___________
https://www.vox.com/2019/5/1/18525727/william-barr-testimony-mazie-hirono-senate
Barr Didn't Review the Evidence
"No prosecutor worth her salt would make a decision on whether (the President) was involved in obstruction of justice without reviewing the evidence," Harris said. "This Attorney General lacks all credibility and I think has compromised the public’s ability to believe he is a purveyor of justice."
https://www.cnn.com/politics/live-news/barr-testimony-mueller-report/index.html
https://www.cnn.com/politics/live-news/barr-testimony-mueller-report/index.html
Wednesday, May 1, 2019
Mueller's Letter to Barr
U.S. Department of Justice
The Special Counsel's Office
Washington, D.C. 20530
March 27, 2019
The Honorable William P. Barr Attorney General of the United States Department of Justice Washington, D.C.
Re: Report of the Special Counsel on the Investigation Into Russian Interference in the 2016 Presidential Election and Obstruction of Justice (March 2019)
Dear Attorney General Barr:
I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel's report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. We also had marked an additional two sentences for review and have now confirmed that these sentences can be released publicly.
Accordingly, the enclosed documents are in a form that can be released to the public consistent with legal requirements and Department policies. I am requesting that you provide these materials to Congress and authorize their public release at this time.
As we stated in our meeting of March 5 and reiterated to the Department early in the afternoon of March 24, the introductions and executive summaries of our two-volume report accurately summarize this Office's work and conclusions. The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office's work and conclusions. We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations. See Department of Justice, Press Release (May 17, 2017).
While we understand that the Department is reviewing the full report to determine what is appropriate for public release—a process that our Office is working with you to complete that process need not delay release of the enclosed materials. Release at this time would alleviate the misunderstandings that have arisen and would answer congressional and public questions about the nature and outcome of our investigation. It would also accord with the standard for public release of notifications to Congress cited in your letter. See 28 C.F.R. $ 609(C) ("the Attorney General may determine that public release" of congressional notifications "would be in the public interest").
Sincerely yours,
Robert S. Mueller, III Special Counsel
The Special Counsel's Office
Washington, D.C. 20530
March 27, 2019
The Honorable William P. Barr Attorney General of the United States Department of Justice Washington, D.C.
Re: Report of the Special Counsel on the Investigation Into Russian Interference in the 2016 Presidential Election and Obstruction of Justice (March 2019)
Dear Attorney General Barr:
I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel's report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. We also had marked an additional two sentences for review and have now confirmed that these sentences can be released publicly.
Accordingly, the enclosed documents are in a form that can be released to the public consistent with legal requirements and Department policies. I am requesting that you provide these materials to Congress and authorize their public release at this time.
As we stated in our meeting of March 5 and reiterated to the Department early in the afternoon of March 24, the introductions and executive summaries of our two-volume report accurately summarize this Office's work and conclusions. The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office's work and conclusions. We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations. See Department of Justice, Press Release (May 17, 2017).
While we understand that the Department is reviewing the full report to determine what is appropriate for public release—a process that our Office is working with you to complete that process need not delay release of the enclosed materials. Release at this time would alleviate the misunderstandings that have arisen and would answer congressional and public questions about the nature and outcome of our investigation. It would also accord with the standard for public release of notifications to Congress cited in your letter. See 28 C.F.R. $ 609(C) ("the Attorney General may determine that public release" of congressional notifications "would be in the public interest").
Sincerely yours,
Robert S. Mueller, III Special Counsel
Thursday, April 18, 2019
What Barr Did NOT Tell You
Mueller wrote: "If we had confidence . . . that the President clearly did not commit obstruction of justice, we would so state . . . we are unable to reach that judgment."
https://www.politico.com/story/2019/04/18/redacted-mueller-report-released-1280960
________________
A searchable version of the Mueller report can be viewed here:
https://cdn.cnn.com/cnn/2019/images/04/18/mueller-report-searchable.pdf
https://www.politico.com/story/2019/04/18/redacted-mueller-report-released-1280960
________________
A searchable version of the Mueller report can be viewed here:
https://cdn.cnn.com/cnn/2019/images/04/18/mueller-report-searchable.pdf
Misty Claims to Have the Mueller Report in Advance
1905 PM: Mistysea [Quote] -- 5:34am -- Thu, Apr 18, 19 pst
Mistysea
I got my hands on a copy of the Mueller report.... here are the highlights.
Mistysea
I got my hands on a copy of the Mueller report.... here are the highlights.
Tuesday, April 9, 2019
Barr Backtracks on "Summary"
"I do not believe it would be in the public’s interest for me to attempt to summarize the full report or to release it in serial or piecemeal fashion.” - AG William Barr explaining that he has not and will not release a summary of Mueller's findings.
https://www.esquire.com/news-politics/politics/a26992060/william-barr-letter-mueller-report-donald-trump/
https://www.esquire.com/news-politics/politics/a26992060/william-barr-letter-mueller-report-donald-trump/
Vagne Spreads Falsehoods about Mueller Report
1105 PM: Vagne [Quote] -- 8:37am -- Tue, Apr 9, 19 pst
Vagne
Because their are LAW'S preventing it [release of Mueller report] ....some information is classified.....Barr is working in collaboration with Mueller regarding what can be released....it's BIPARTISAN.....
____________
1) There are NO laws prohibiting the release of Mueller's report. Barr CHOOSES to hide it from the House.
2) Vagne has not SEEN the report; he has no idea whether it contains classified material.
3) Barr and Mueller are BOTH republican appointees...there is NOTHING bi-partisan about it.
Vagne
Because their are LAW'S preventing it [release of Mueller report] ....some information is classified.....Barr is working in collaboration with Mueller regarding what can be released....it's BIPARTISAN.....
____________
1) There are NO laws prohibiting the release of Mueller's report. Barr CHOOSES to hide it from the House.
2) Vagne has not SEEN the report; he has no idea whether it contains classified material.
3) Barr and Mueller are BOTH republican appointees...there is NOTHING bi-partisan about it.
FBI, Secret Files, and Hillary
Who says Barr can't turn anything over to congress? The DOJ certainly turned over top secret documents to Congress when the intent was to damage Hillary's political fortunes.
"WASHINGTON — The F.B.I. on Tuesday handed over to Congress documents related to its investigation of Hillary Clinton’s private email server after House Republicans pushed the bureau to surrender material it had gathered before it concluded last month that she should not face criminal charges.
The documents were believed to include notes from the F.B.I.’s 3½-hour interview with Mrs. Clinton in early July, the last step in a lengthy investigation into her email practices as secretary of state that continues to dog her run for president."
https://www.nytimes.com/2016/08/17/us/politics/fbi-gives-congress-documents-related-to-hillary-clinton-e-mail-inquiry.html
"WASHINGTON — The F.B.I. on Tuesday handed over to Congress documents related to its investigation of Hillary Clinton’s private email server after House Republicans pushed the bureau to surrender material it had gathered before it concluded last month that she should not face criminal charges.
The documents were believed to include notes from the F.B.I.’s 3½-hour interview with Mrs. Clinton in early July, the last step in a lengthy investigation into her email practices as secretary of state that continues to dog her run for president."
https://www.nytimes.com/2016/08/17/us/politics/fbi-gives-congress-documents-related-to-hillary-clinton-e-mail-inquiry.html
Thursday, April 4, 2019
CAG and the Law
5075 PM: Christians [Quote] -- 1:29pm -- Thu, Apr 4, 19 pst
The Director's report to the AG cannot be released to the public by law. Nor should it be.
___________
Now for the truth: According to the law (28 CFR § 600.9), Mueller's report CAN be released to the public.
"The Attorney General may determine that public release of these reports would be in the public interest . . . "
https://www.law.cornell.edu/cfr/text/28/600.9
The Director's report to the AG cannot be released to the public by law. Nor should it be.
___________
Now for the truth: According to the law (28 CFR § 600.9), Mueller's report CAN be released to the public.
"The Attorney General may determine that public release of these reports would be in the public interest . . . "
https://www.law.cornell.edu/cfr/text/28/600.9
Wednesday, April 3, 2019
Appendix to House Letter to Barr
This is the Appendix attached to a letter sent to Attorney General William Barr by six House Committee chairs on April 1, 2019. The link to the original PDF archived at Chairman Nadler's House website is below:
https://nadler.house.gov/components/redirect/r.aspx?ID=471137-70950625
1. Congress Urgently Requires the Full Report and the Evidence
The Attorney General's March 24 letter indicates that the Special Counsel found that President Trump may have criminally obstructed the Department's investigation of Russia's interference in the 2016 election and related matters. The Special Counsel pointedly stated that the evidence the investigation uncovered "does not exonerate” the President of obstruction, and includes potentially criminal acts not yet known to the public. It is difficult to overstate the seriousness of those actions if, in the wake of an attack by a hostile nation against our democracy, President Trump's response was to seek to undermine the investigation rather than take action against the perpetrators.
The longer the delay in obtaining this information, the more harm will accrue to Congress's independent duty to investigate misconduct by the President and to assure public confidence in the integrity and independence of federal law enforcement operations. These are not only matters of addressing the harm that has occurred; they are urgent ongoing concerns. As has been publicly reported and referenced in the March 24 letter, multiple open investigations referred by the Special Counsel to other U.S. Attorneys' offices may implicate the President or his campaign, transition, inauguration, or businesses. These critically important inquiries could be compromised if the President is seeking to interfere with them. Among other things, Congress has considered and continues to consider legislation to protect the integrity of these type of investigations against precisely the sorts of interference in which the President appears to have engaged.
Moreover, the Judiciary Committee is engaged in an ongoing investigation of whether the President has undermined the rule of law, including by compromising the integrity of the Justice Department. Other committees are engaged in investigations related to whether the President, his associates, or members of his administration have engaged in other corrupt or unethical activities or are subject to foreign influence or compromise by actors abroad. Congress's authority “to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government” has been unquestioned since the earliest times in its history.” That interest is at its height when Congress's oversight activities pertain to potentially illegal acts by the President. As a court determined in another context involving the release of a report about potential obstruction of justice by a President, “[i]t would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.
The March 24 letter also claims that the Special Counsel's decision not to reach a definitive legal conclusion about obstruction “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime."? That view is fundamentally flawed. As a coequal branch of government–indeed, as the only branch of government that is expressly empowered by the Constitution to hold the President accountable—Congress must be permitted to assess the President's conduct for itself. The Attorney General cannot unilaterally make himself judge and jury. That is particularly so where the Attorney General has already expressed the view—in arguing against a theory of obstruction in this very investigation—that "there is no legal prohibition ... against the President's acting on a matter in which he has a personal stake."
The Attorney General's pre-confirmation memorandum on this topic also stated that “the determination of whether the President is making decisions based on ‘improper motives or whether he is ‘faithfully discharging his responsibilities is left to the people, through the election process, and the Congress." Neither the American people nor Congress, however, can make any such a determination without all of Special Counsel Mueller's evidence, analysis, and findings—unfiltered and in his own words.
The Special Counsel's investigation also confirmed that Russia engaged in extensive efforts to interfere in the 2016 presidential election, and Congress's need for that information is no less urgent. The Special Counsel's report, according to the Attorney General, describes "crimes committed by persons associated with the Russian government in connection with these efforts,” including “efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election.”
These hostile acts are ongoing: The Department has indicated in at least one other case that Russian influence efforts continued into the 2018 midterm elections. The Director of National Intelligence likewise testified last year in regard to the 2018 midterm elections that Russia would continue to use "persistent and disruptive cyber operations” and would target "elections as opportunities to undermine democracy” both here and against our allies in Europe. More recently, Director Coats warned that Russia and other adversaries "probably are already looking to the 2020 U.S. election” to conduct malign influence operations and that "Moscow may employ additional influence toolkits—such as spreading disinformation, conducting hack-and-leak operations, or manipulating data—in a more targeted fashion to influence U.S. policy, actions, and elections.”l3 It is imperative that Congress have access to the Special Counsel's full descriptions and evidence of these crimes and malign influence operations that the Russian government or associated actors perpetrated against our democracy.
Moreover, the Attorney General's March 24 letter acknowledges "multiple offers from Russian-affiliated individuals to assist the Trump campaign.»14 The facts and circumstances uncovered by the Special Counsel's Office surrounding these and any other overtures by foreign actors, as well as the individuals associated with them and how they responded to such offers, are of vital importance to Congress. The Foreign Affairs Committee, for example, requires access to these facts as it investigates whether the foreign and financial entanglements of the President and his associates may be improperly influencing foreign policy in ways that serve their private interests rather than the national security of the United States. Moreover, the House Permanent Select Committee on Intelligence must have access to the full facts as it evaluates counterintelligence threats and risks during and since the 2016 U.S. election, and as it considers remedies necessary to prevent, or mitigate to the greatest extent possible, the vulnerability of campaigns, or persons associated with them, to foreign influence or compromise operations.
Congressional committees have conducted multiple hearings regarding foreign influence operations and the security of our election systems and have proposed numerous legislative reforms to address vulnerabilities. 15 In an appropriations bill enacted into law last year, Congress allocated much-needed funding to support election security initiatives.16 It is critical to legislation that has or will be introduced this year to understand foreign intelligence disinformation campaigns, risks to our élection infrastructure security, evolving methods of voter targeting and suppression, and the manner in which foreign adversaries seek to exploit campaign vulnerabilities as well as the technology industry in our elections moving forward.
In addition, the House of Representatives' appropriations process for the next fiscal year is already underway—including for funding any election security, cybersecurity, and offensive or defensive counterintelligence operations needed to combat attacks during the 2020 election with submission deadlines scheduled for April and appropriations packages expected to reach the House floor in June."? However, Congress cannot fully address the scope of these threats (whether through appropriations or other legislation) without a thorough accounting by the Special Counsel's Office of the attack that occurred in 2016. Indeed, it is difficult to envision any function of Congress more important than ensuring the integrity of our democratic elections, authorizing and appropriating funding for the relevant federal authorities, and authorizing critical national security programs.
2. The Application of Rule 6(e) is Limited and Does Not Bar Disclosures to Congress
The Attorney General has indicated that the Department is reviewing the Special Counsel's report to identify material whose disclosure may be limited by Federal Rule of Criminal Procedure 6(e), which prohibits certain disclosures of “matter[s] occurring before the grand jury.” In a call with Chairman Nadler, the Attorney General suggested that redactions made in accordance with Rule 6(e) will be substantial. But even assuming Rule 6(e) applies with respect to disclosures to Congress, 18 the law clearly forbids the Department from making sweeping designations as to any evidence that happens to have been presented to a grand jury or was obtained through a grand jury subpoena.
Rule 6(e) "does not 'draw a veil of secrecy ... over all matters occurring in the world that happen to be investigated by a grand jury.""19 “The mere fact that information has been presented to the grand jury does not mean that the information is prohibited from disclosure.20 Further, as the D.C. Circuit has made clear, the fact that evidence was obtained through a grand jury subpoena does not necessarily mean that it is barred from disclosure by Rule 6(e).21 As a result, the Department cannot withhold documents or information simply because they were produced in response to a grand jury subpoena. Because a person receiving the documents would not know whether they were obtained through a grand jury subpoena or other means, "subpoenaed documents would not necessarily reveal a connection to a grand jury.922 Just last year, the D.C. Circuit reaffirmed this principal in Bartko v. Dep't of Justice, where it made clear that "copies of specific records provided to a federal grand jury” were not covered by Rule 6(e) because “the mere fact the documents were subpoenaed fails to justify withholding under Rule 6(e).'"
For this reason, it is clear the Department cannot withhold portions of the Special Counsel's report merely because they discuss information that was presented to the grand jury or documents that were obtained through a grand jury subpoena. Likewise, the Department cannot withhold underlying evidence simply because it was presented to the grand jury or obtained through a grand jury subpoena. That is particularly so because the Special Counsel's Office obtained a great deal of evidence by other means. The Special Counsel's team interviewed numerous witnesses on a voluntary basis and acquired voluminous records without resorting to grand jury subpoenas.24 Other evidence was obtained through different types of mandatory legal process, such as through the issuance of nearly 500 search warrants. That evidence can of course be disclosed without implicating Rule 6(e).
And because so much evidence was obtained through these other means, the Department would have no basis to withhold materials or descriptions of materials that it happens to have gathered by issuing grand jury subpoenas. So long as those materials do not on their face “reveal a connection to a grand jury,” Rule 6(e) does not bar their disclosure.
As to testimony or other grand jury materials that are genuinely subject to Rule 6(e), the Department can and should work with the House Judiciary Committee to obtain the permission of the district court overseeing the grand jury to make disclosures to Congress on a confidential basis, as it has done in the past in analogous circumstances. The Department took that precise path after the grand jury considering evidence in the Watergate affair issued a report describing potentially criminal acts by President Nixon. The Justice Department filed briefs fully supporting disclosure of the report to the House Judiciary Committee, and made the obvious point that "[t]he need for the House to be able to make its profoundly important judgment on the basis of all available information is as compelling as any that could be conceived." Independent Counsel Kenneth Starr likewise sought the court's authorization to disclose grand jury material regarding President Clinton to the House of Representatives.
The district court would have ample authority to permit disclosure of relevant materials to Congress. As Chief Judge Howell, the judge overseeing this grand jury, explained in a recent opinion, “numerous courts have recognized [that] a district court retains an inherent authority to unseal and disclose grand jury material not otherwise falling within the enumerated exceptions to Rule 6(e)."29 Indeed, every federal court of appeals to have considered this question has reached that conclusion.30 Congress's need for these materials is beyond compelling, and the public interest in Congress receiving these materials is at its height. President Trump, moreover, has expressed public support for the report's release." As such, the Department should immediately request that these materials be released to Congress.
The Attorney General has refused thus far to work with Congress in that regard. At his confirmation hearing, however, the Attorney General stated: “I... believe it is very important that the public and Congress be informed of the results of the special counsel's work. My goal will be to provide as much transparency as I can consistent with the law." The most efficacious way to honor that commitment would be to join with the House Judiciary Committee in seeking expedited disclosure of any Rule 6(e) material to Congress, and to refer any questions about the scope of Rule 6(e)'s application to independent court review.
3. Any Potential Claim of Executive Privilege Has Been Waived
Although the Attorney General's March 24 letter made no mention of executive privilege, his March 29 letter states that “there are no plans to submit the report to the White House for a privilege review," because the President “intends to defer” to the Attorney General on those issues. Whatever that may mean, it would be highly improper for the Department to conceal portions of the report based on claims of executive privilege on behalf of the President. As an initial matter, the Department's own long-standing policy is that executive privilege “should not be invoked to conceal evidence of wrongdoing or criminality on the part of executive officers."
In any event, the President and the White House have waived any claims of executive privilege. The White House voluntarily disclosed millions of documents to the Special Counsel's office and permitted multiple senior officials to be interviewed by the Special Counsel's team, without asserting any type of privilege. Having voluntarily disclosed this evidence, the President cannot now seek to invoke executive privilege to block its release. As the D.C. Circuit has held in an analogous context, regarding waiver of attorney-client privilege, "[t]he client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others." Moreover, the White House has similarly shared information and documents with numerous former White House officials and their private counsel.36 The D.C. Circuit has expressly held that the White House “waive[s] its claims of privilege in regard to [] specific documents that it voluntarily reveal[s] to third parties outside the White House: "
Lastly, in the unlikely event that the White House has preserved privilege as to any of the evidence underlying the Mueller report, the public interest in disclosure would still overwhelmingly outweigh the President's interest in secrecy. The privilege pertaining to presidential communications is not absolute. Just as the Supreme Court determined in United States v. Nixon, the public interest here in the "fair administration of justice” outweighs the President's "generalized interest in confidentiality."
4. Ongoing Investigations, Classified Information, and Privacy and Reputational Interests of Third Parties Should Not Prevent Release to Congress
The fact that certain investigations remain ongoing cannot justify the Department withholding critical evidence from Congress that pertains to Russia's interference in our federal elections or obstruction of justice by the President. Indeed, during the previous Congress, the Department produced to congressional committees thousands of pages of highly sensitive law enforcement and classified investigatory and deliberative records. Many of these were related to this very same investigation—which of course was open and ongoing at the time.
Similarly, the mere presence of classified information in the Mueller report or in underlying evidence cannot justify withholding evidence from Congress, which is well equipped to handle classified information and does so on a daily basis. The Department can provide any classified materials to the appropriate committees for handling in secure facilities. It can also permit the Intelligence Community to review the report on an expedited basis in order to share with Congress whatever equities the Intelligence Community feels may be implicated by the release of specific information contained in the report or any underlying materials. Additionally, to the extent the Special Counsel's Office is in possession of underlying evidence that is particularly sensitive, the relevant committees are in a position to work with the Department to reach an accommodation to ensure appropriate handling as Congress has in the past on numerous occasions. However, the Department should not be able to simply invoke the same reasons for redacting the report from public view as a shield against disclosure to a coequal branch of government.
Finally, the Department also should not be able to keep from Congress information related to the “reputational interests of peripheral third parties” as referenced in the Attorney General's March 29 letter. To the extent the Special Counsel has developed information relative to President Trump's family members (including those employed by the White House) or his associates, campaign employees, consultants, advisers, and others within the scope of the investigation, that should not be withheld from Congress. It is precisely the type of information that the relevant committees need to perform their oversight, legislative, and other responsibilities. There is no constitutionally recognized privilege that would apply in such instances, and there is ample precedent for provision of such information, as recently as the last Congress.
https://nadler.house.gov/components/redirect/r.aspx?ID=471137-70950625
1. Congress Urgently Requires the Full Report and the Evidence
The Attorney General's March 24 letter indicates that the Special Counsel found that President Trump may have criminally obstructed the Department's investigation of Russia's interference in the 2016 election and related matters. The Special Counsel pointedly stated that the evidence the investigation uncovered "does not exonerate” the President of obstruction, and includes potentially criminal acts not yet known to the public. It is difficult to overstate the seriousness of those actions if, in the wake of an attack by a hostile nation against our democracy, President Trump's response was to seek to undermine the investigation rather than take action against the perpetrators.
The longer the delay in obtaining this information, the more harm will accrue to Congress's independent duty to investigate misconduct by the President and to assure public confidence in the integrity and independence of federal law enforcement operations. These are not only matters of addressing the harm that has occurred; they are urgent ongoing concerns. As has been publicly reported and referenced in the March 24 letter, multiple open investigations referred by the Special Counsel to other U.S. Attorneys' offices may implicate the President or his campaign, transition, inauguration, or businesses. These critically important inquiries could be compromised if the President is seeking to interfere with them. Among other things, Congress has considered and continues to consider legislation to protect the integrity of these type of investigations against precisely the sorts of interference in which the President appears to have engaged.
Moreover, the Judiciary Committee is engaged in an ongoing investigation of whether the President has undermined the rule of law, including by compromising the integrity of the Justice Department. Other committees are engaged in investigations related to whether the President, his associates, or members of his administration have engaged in other corrupt or unethical activities or are subject to foreign influence or compromise by actors abroad. Congress's authority “to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government” has been unquestioned since the earliest times in its history.” That interest is at its height when Congress's oversight activities pertain to potentially illegal acts by the President. As a court determined in another context involving the release of a report about potential obstruction of justice by a President, “[i]t would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.
The March 24 letter also claims that the Special Counsel's decision not to reach a definitive legal conclusion about obstruction “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime."? That view is fundamentally flawed. As a coequal branch of government–indeed, as the only branch of government that is expressly empowered by the Constitution to hold the President accountable—Congress must be permitted to assess the President's conduct for itself. The Attorney General cannot unilaterally make himself judge and jury. That is particularly so where the Attorney General has already expressed the view—in arguing against a theory of obstruction in this very investigation—that "there is no legal prohibition ... against the President's acting on a matter in which he has a personal stake."
The Attorney General's pre-confirmation memorandum on this topic also stated that “the determination of whether the President is making decisions based on ‘improper motives or whether he is ‘faithfully discharging his responsibilities is left to the people, through the election process, and the Congress." Neither the American people nor Congress, however, can make any such a determination without all of Special Counsel Mueller's evidence, analysis, and findings—unfiltered and in his own words.
The Special Counsel's investigation also confirmed that Russia engaged in extensive efforts to interfere in the 2016 presidential election, and Congress's need for that information is no less urgent. The Special Counsel's report, according to the Attorney General, describes "crimes committed by persons associated with the Russian government in connection with these efforts,” including “efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election.”
These hostile acts are ongoing: The Department has indicated in at least one other case that Russian influence efforts continued into the 2018 midterm elections. The Director of National Intelligence likewise testified last year in regard to the 2018 midterm elections that Russia would continue to use "persistent and disruptive cyber operations” and would target "elections as opportunities to undermine democracy” both here and against our allies in Europe. More recently, Director Coats warned that Russia and other adversaries "probably are already looking to the 2020 U.S. election” to conduct malign influence operations and that "Moscow may employ additional influence toolkits—such as spreading disinformation, conducting hack-and-leak operations, or manipulating data—in a more targeted fashion to influence U.S. policy, actions, and elections.”l3 It is imperative that Congress have access to the Special Counsel's full descriptions and evidence of these crimes and malign influence operations that the Russian government or associated actors perpetrated against our democracy.
Moreover, the Attorney General's March 24 letter acknowledges "multiple offers from Russian-affiliated individuals to assist the Trump campaign.»14 The facts and circumstances uncovered by the Special Counsel's Office surrounding these and any other overtures by foreign actors, as well as the individuals associated with them and how they responded to such offers, are of vital importance to Congress. The Foreign Affairs Committee, for example, requires access to these facts as it investigates whether the foreign and financial entanglements of the President and his associates may be improperly influencing foreign policy in ways that serve their private interests rather than the national security of the United States. Moreover, the House Permanent Select Committee on Intelligence must have access to the full facts as it evaluates counterintelligence threats and risks during and since the 2016 U.S. election, and as it considers remedies necessary to prevent, or mitigate to the greatest extent possible, the vulnerability of campaigns, or persons associated with them, to foreign influence or compromise operations.
Congressional committees have conducted multiple hearings regarding foreign influence operations and the security of our election systems and have proposed numerous legislative reforms to address vulnerabilities. 15 In an appropriations bill enacted into law last year, Congress allocated much-needed funding to support election security initiatives.16 It is critical to legislation that has or will be introduced this year to understand foreign intelligence disinformation campaigns, risks to our élection infrastructure security, evolving methods of voter targeting and suppression, and the manner in which foreign adversaries seek to exploit campaign vulnerabilities as well as the technology industry in our elections moving forward.
In addition, the House of Representatives' appropriations process for the next fiscal year is already underway—including for funding any election security, cybersecurity, and offensive or defensive counterintelligence operations needed to combat attacks during the 2020 election with submission deadlines scheduled for April and appropriations packages expected to reach the House floor in June."? However, Congress cannot fully address the scope of these threats (whether through appropriations or other legislation) without a thorough accounting by the Special Counsel's Office of the attack that occurred in 2016. Indeed, it is difficult to envision any function of Congress more important than ensuring the integrity of our democratic elections, authorizing and appropriating funding for the relevant federal authorities, and authorizing critical national security programs.
2. The Application of Rule 6(e) is Limited and Does Not Bar Disclosures to Congress
The Attorney General has indicated that the Department is reviewing the Special Counsel's report to identify material whose disclosure may be limited by Federal Rule of Criminal Procedure 6(e), which prohibits certain disclosures of “matter[s] occurring before the grand jury.” In a call with Chairman Nadler, the Attorney General suggested that redactions made in accordance with Rule 6(e) will be substantial. But even assuming Rule 6(e) applies with respect to disclosures to Congress, 18 the law clearly forbids the Department from making sweeping designations as to any evidence that happens to have been presented to a grand jury or was obtained through a grand jury subpoena.
Rule 6(e) "does not 'draw a veil of secrecy ... over all matters occurring in the world that happen to be investigated by a grand jury.""19 “The mere fact that information has been presented to the grand jury does not mean that the information is prohibited from disclosure.20 Further, as the D.C. Circuit has made clear, the fact that evidence was obtained through a grand jury subpoena does not necessarily mean that it is barred from disclosure by Rule 6(e).21 As a result, the Department cannot withhold documents or information simply because they were produced in response to a grand jury subpoena. Because a person receiving the documents would not know whether they were obtained through a grand jury subpoena or other means, "subpoenaed documents would not necessarily reveal a connection to a grand jury.922 Just last year, the D.C. Circuit reaffirmed this principal in Bartko v. Dep't of Justice, where it made clear that "copies of specific records provided to a federal grand jury” were not covered by Rule 6(e) because “the mere fact the documents were subpoenaed fails to justify withholding under Rule 6(e).'"
For this reason, it is clear the Department cannot withhold portions of the Special Counsel's report merely because they discuss information that was presented to the grand jury or documents that were obtained through a grand jury subpoena. Likewise, the Department cannot withhold underlying evidence simply because it was presented to the grand jury or obtained through a grand jury subpoena. That is particularly so because the Special Counsel's Office obtained a great deal of evidence by other means. The Special Counsel's team interviewed numerous witnesses on a voluntary basis and acquired voluminous records without resorting to grand jury subpoenas.24 Other evidence was obtained through different types of mandatory legal process, such as through the issuance of nearly 500 search warrants. That evidence can of course be disclosed without implicating Rule 6(e).
And because so much evidence was obtained through these other means, the Department would have no basis to withhold materials or descriptions of materials that it happens to have gathered by issuing grand jury subpoenas. So long as those materials do not on their face “reveal a connection to a grand jury,” Rule 6(e) does not bar their disclosure.
As to testimony or other grand jury materials that are genuinely subject to Rule 6(e), the Department can and should work with the House Judiciary Committee to obtain the permission of the district court overseeing the grand jury to make disclosures to Congress on a confidential basis, as it has done in the past in analogous circumstances. The Department took that precise path after the grand jury considering evidence in the Watergate affair issued a report describing potentially criminal acts by President Nixon. The Justice Department filed briefs fully supporting disclosure of the report to the House Judiciary Committee, and made the obvious point that "[t]he need for the House to be able to make its profoundly important judgment on the basis of all available information is as compelling as any that could be conceived." Independent Counsel Kenneth Starr likewise sought the court's authorization to disclose grand jury material regarding President Clinton to the House of Representatives.
The district court would have ample authority to permit disclosure of relevant materials to Congress. As Chief Judge Howell, the judge overseeing this grand jury, explained in a recent opinion, “numerous courts have recognized [that] a district court retains an inherent authority to unseal and disclose grand jury material not otherwise falling within the enumerated exceptions to Rule 6(e)."29 Indeed, every federal court of appeals to have considered this question has reached that conclusion.30 Congress's need for these materials is beyond compelling, and the public interest in Congress receiving these materials is at its height. President Trump, moreover, has expressed public support for the report's release." As such, the Department should immediately request that these materials be released to Congress.
The Attorney General has refused thus far to work with Congress in that regard. At his confirmation hearing, however, the Attorney General stated: “I... believe it is very important that the public and Congress be informed of the results of the special counsel's work. My goal will be to provide as much transparency as I can consistent with the law." The most efficacious way to honor that commitment would be to join with the House Judiciary Committee in seeking expedited disclosure of any Rule 6(e) material to Congress, and to refer any questions about the scope of Rule 6(e)'s application to independent court review.
3. Any Potential Claim of Executive Privilege Has Been Waived
Although the Attorney General's March 24 letter made no mention of executive privilege, his March 29 letter states that “there are no plans to submit the report to the White House for a privilege review," because the President “intends to defer” to the Attorney General on those issues. Whatever that may mean, it would be highly improper for the Department to conceal portions of the report based on claims of executive privilege on behalf of the President. As an initial matter, the Department's own long-standing policy is that executive privilege “should not be invoked to conceal evidence of wrongdoing or criminality on the part of executive officers."
In any event, the President and the White House have waived any claims of executive privilege. The White House voluntarily disclosed millions of documents to the Special Counsel's office and permitted multiple senior officials to be interviewed by the Special Counsel's team, without asserting any type of privilege. Having voluntarily disclosed this evidence, the President cannot now seek to invoke executive privilege to block its release. As the D.C. Circuit has held in an analogous context, regarding waiver of attorney-client privilege, "[t]he client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others." Moreover, the White House has similarly shared information and documents with numerous former White House officials and their private counsel.36 The D.C. Circuit has expressly held that the White House “waive[s] its claims of privilege in regard to [] specific documents that it voluntarily reveal[s] to third parties outside the White House: "
Lastly, in the unlikely event that the White House has preserved privilege as to any of the evidence underlying the Mueller report, the public interest in disclosure would still overwhelmingly outweigh the President's interest in secrecy. The privilege pertaining to presidential communications is not absolute. Just as the Supreme Court determined in United States v. Nixon, the public interest here in the "fair administration of justice” outweighs the President's "generalized interest in confidentiality."
4. Ongoing Investigations, Classified Information, and Privacy and Reputational Interests of Third Parties Should Not Prevent Release to Congress
The fact that certain investigations remain ongoing cannot justify the Department withholding critical evidence from Congress that pertains to Russia's interference in our federal elections or obstruction of justice by the President. Indeed, during the previous Congress, the Department produced to congressional committees thousands of pages of highly sensitive law enforcement and classified investigatory and deliberative records. Many of these were related to this very same investigation—which of course was open and ongoing at the time.
Similarly, the mere presence of classified information in the Mueller report or in underlying evidence cannot justify withholding evidence from Congress, which is well equipped to handle classified information and does so on a daily basis. The Department can provide any classified materials to the appropriate committees for handling in secure facilities. It can also permit the Intelligence Community to review the report on an expedited basis in order to share with Congress whatever equities the Intelligence Community feels may be implicated by the release of specific information contained in the report or any underlying materials. Additionally, to the extent the Special Counsel's Office is in possession of underlying evidence that is particularly sensitive, the relevant committees are in a position to work with the Department to reach an accommodation to ensure appropriate handling as Congress has in the past on numerous occasions. However, the Department should not be able to simply invoke the same reasons for redacting the report from public view as a shield against disclosure to a coequal branch of government.
Finally, the Department also should not be able to keep from Congress information related to the “reputational interests of peripheral third parties” as referenced in the Attorney General's March 29 letter. To the extent the Special Counsel has developed information relative to President Trump's family members (including those employed by the White House) or his associates, campaign employees, consultants, advisers, and others within the scope of the investigation, that should not be withheld from Congress. It is precisely the type of information that the relevant committees need to perform their oversight, legislative, and other responsibilities. There is no constitutionally recognized privilege that would apply in such instances, and there is ample precedent for provision of such information, as recently as the last Congress.
Tuesday, April 2, 2019
House Chairs Demand Mueller Report
''The Attorney General's March 24
letter indicates that the Special Counsel found that President Trump may
have criminally obstructed the Department's investigation of Russia's
interference in the 2016 election and related matters.'' --- Letter
from six House Committee chairs to William Barr
https://nadler.house.gov/components/redirect/r.aspx?ID=471137-70950625
April 1, 2019
The Honorable William P. Barr
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Dear Attorney General Barr:
On March 25, 2019, we sent you a letter requesting that you produce
to Congress the full report of Special Counsel Robert S. Mueller III and
its underlying evidence by Tuesday, April 2, 2019. “To the extent you
believe the applicable law limits your ability” to produce the entire
report, we urged that you “begin the process of consultation with us
immediately” to resolve those issues without delay.[1]
On Wednesday,
April 3, 2019, the House Judiciary Committee plans to begin the process
of authorizing subpoenas for the report and underlying evidence and
materials. While we hope to avoid resort to compulsory process, if the
Department is unwilling to produce the report to Congress in unredacted
form, then we will have little choice but to take such action.
As Chairman Nadler explained in his phone conversation with you on
March 27, Congress requires a complete and unedited copy of the Special
Counsel’s report, as well as access to the evidence and materials
underlying that report. During your confirmation hearing in January,
you stated that your “goal will be to provide as much transparency as I
can consistent with the law.” As such, if the Department believes it is
unable to produce any of these materials in full due to rules governing
grand jury secrecy, it should seek leave from the district court to
produce those materials to Congress—as it has done in analogous
situations in the past. To the extent you believe any other types of
redactions are necessary, we again urge you to engage in an immediate
consultation to address and alleviate any concerns you have about
providing that information to Congress.[2]
We also reiterate our request that you appear before the Judiciary
Committee as soon as possible—not in a month, as you have offered, but
now, so that you can explain your decisions to first provide Congress
with your characterization of the Mueller report as opposed to the
report itself; to initiate a redaction process that withholds critical
information from Congress; and to assume for yourself final authority
over matters within Congress’s constitutional purview. In addition, as
Chairman Nadler also requested on his call with you, we ask for your
commitment to refrain from interfering with Special Counsel Mueller
testifying before the Judiciary Committee—and before any other relevant
committees—after the report has been released regarding his
investigation and findings.
Congress is, as a matter of law, entitled to each of the categories
of information you proposed to redact from the Special Counsel’s report
in your March 29 letter.[3] In the attached appendix we provide a more
complete legal analysis of each of the potential redaction categories
your letter identified. We expect the Department will take all
necessary steps without further delay—including seeking leave from the
court to disclose the limited portions of the report that may involve
grand jury materials—in order to satisfy your promise of transparency
and to allow Congress to fulfill its own constitutional
responsibilities.[4]
Full release of the report to Congress is consistent with both
congressional intent and the interests of the American public. On March
14, 2019, by a vote of 420-0, the House unanimously passed H. Con. Res.
24, a resolution calling for “the full release” of the Special Counsel’s
report to Congress, as well as the public release of the Special
Counsel’s report except to the extent the disclosure of “any portion
thereof is expressly prohibited by law.” The American people have also
consistently and overwhelmingly supported release of the full report.
The President himself has likewise called for its release in full.
The allegations at the center of Special Counsel Mueller’s
investigation strike at the core of our democracy. Congress urgently
needs his full, unredacted report and its underlying evidence in order
to fulfill its constitutional role, including its legislative,
appropriations, and oversight responsibilities. Congress can and has
historically been provided with sensitive, unredacted, and classified
material that cannot be provided to the general public. In addition,
the American people deserve to be fully informed about these issues of
extraordinary public interest, and therefore need to see the report and
findings in Special Counsel Mueller’s own words to the fullest extent
possible.
For all these reasons, we hope you will produce to Congress an
unredacted report and underlying materials to avoid the need for
compulsory process.
Sincerely,
__________________________________
Jerrold Nadler
Chairman
House Committee on the Judiciary
__________________________________
Maxine Waters
Chairwoman
House Committee on Financial Services
__________________________________
Elijah E. Cummings
Chairman
House Committee on Oversight and Reform
__________________________________
Richard E. Neal
Chairman
House Committee on Ways and Means
_________________________________
Adam Schiff
Chairman
House Permanent Select Committee on Intelligence
______________________________
Eliot L. Engel
Chairman
House Committee on Foreign Affairs
[1] Letter from Chairpersons Jerrold Nadler, H Comm. on the
Judiciary, Elijah Cummings H. Comm. on Oversight & Reform, Adam
Schiff, H. Perm. Select. Comm. on Intelligence, Maxine Waters, H. Comm.
on Fin. Servs., Richard Neal, House Comm. on Ways & Means, and Eliot
Engel, H. Comm. on Foreign Affairs, to Att’y Gen. William P. Barr (Mar.
25, 2019). See also Letter from Chairpersons Jerrold Nadler, H
Comm. on the Judiciary, Elijah Cummings H. Comm. on Oversight &
Reform, Adam Schiff, H. Perm. Select. Comm. on Intelligence, Maxine
Waters, H. Comm. on Fin. Servs., Richard Neal, House Comm. on Ways &
Means, and Eliot Engel, H. Comm. on Foreign Affairs, to Att’y Gen.
William P. Barr, informing him of their expectation that he will make
Special Counsel Robert Mueller’s report public “without delay and to the
maximum extent permitted by law” (Feb. 22, 2019).
[2] Congress is authorized by law and equipped to receive and examine
the U.S. government’s most sensitive materials and information. The
Department of Justice and the Federal Bureau of Investigation have long
provided to relevant congressional committees sensitive law enforcement
and investigatory information and records in complete and unredacted
form, including those involving classified information, that are not
provided to the general public.
[3] Letter from Att’y Gen. William P. Barr to Chairman Lindsey Graham,
S. Comm. on the Judiciary, and Chairman Jerrold Nadler, H. Comm. on the
Judiciary (Mar. 29, 2019).
[4] At a minimum, the Department should produce a detailed log of each
redaction and the reasons supporting it in order to facilitate the
accommodation process and to provide sufficient clarity for Congress to
evaluate the Department’s claims.
Monday, April 1, 2019
MwJohnson: Comey "Slandered" Hillary
3355 PM: Mwjohnson [Quote] -- 12:01pm -- Mon, Apr 1, 19 pst
Mwjohnson
Unfounded allegations sent to the public are slander.
3357 PM: Mwjohnson [Quote] -- 12:02pm -- Mon, Apr 1, 19 pst
Mwjohnson
Innocent until proven guilty
Mwjohnson
Unfounded allegations sent to the public are slander.
3357 PM: Mwjohnson [Quote] -- 12:02pm -- Mon, Apr 1, 19 pst
Mwjohnson
Innocent until proven guilty
Mueller's IS a Criminal Investigation by Law
When the Trump supporters tell you Mueller wasn't appointed to do a criminal investigation, remind them of the law that authorized his appointment in the first place. Clearly, the law states in unambiguous terms that the special counsel is appointed for the purposes of conducting a "criminal investigation."
§ 600.1 Grounds for appointing a Special Counsel.
"The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted . . . "
https://www.law.cornell.edu/cfr/text/28/600.1
And, yes, the AG may choose to make public the Special Counsel's report.
§ 600.9 Notification and reports by the Attorney General.
"The Attorney General may determine that public release of these reports
would be in the public interest, to the extent that release would comply
with applicable legal restrictions . . ."
https://www.law.cornell.edu/cfr/text/28/600.9
§ 600.1 Grounds for appointing a Special Counsel.
"The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted . . . "
https://www.law.cornell.edu/cfr/text/28/600.1
And, yes, the AG may choose to make public the Special Counsel's report.
§ 600.9 Notification and reports by the Attorney General.
"The Attorney General may determine that public release of these reports
would be in the public interest, to the extent that release would comply
with applicable legal restrictions . . ."
https://www.law.cornell.edu/cfr/text/28/600.9
Friday, March 29, 2019
Barr Promises Report to Congress
The Attorney General Washington, D.C.
March 29, 2019
The Honorable Lindsey Graham Chairman,
Committee on the Judiciary United States Senate
290 Russell Senate Office Building
Washington, D.C. 20510
The Honorable Jerrold Nadler Chairman,
Committee on the Judiciary United States House of Representatives
2132 Rayburn House Office Building
Washington, D.C. 20515
Dear Chairman Graham and Chairman Nadler,
I write in response to Chairman Nadler’s March 25, 2019 letter and Chairman Graham’s March 27, 2019 letter, which addressed the investigation of Special Counsel Robert S. Mueller, III and the “confidential report” he has submitted to me pursuant to 28 C.F.R. § 600.8(c).
As we have discussed,I share your desire to ensure that Congress and the public have the opportunity to read the Special Counsel’s report. We are preparing the report for release, making the redactions that are required. The Special Counsel is assisting us in this process. Specifically, we are well along in the process of identifying and redacting the following: (1) material subject to Federal Rule of Criminal Procedure 6(e) that by law cannot be made public; (2) material the intelligence community identifies as potentially compromising sensitive sources and methods; (3) material that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices; and (4) information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties. Our progress is such that I anticipate we will be in a position to release the report by mid-April, if not sooner. Although the President would have the right to assert privilege over certain parts of the report, he has stated publicly that he intends to defer to me and, accordingly, there are no plans to submit the report to the White House for a privilege review.
Also, I am aware of some media reports and other public statements mischaracterizing my March 24, 2019 supplemental notification as a “summary”of the Special Counsel’s investigation and report. For example, Chairman Nadler’s March 25 letter refers to my supplemental notification as a “four-page summary of the Special Counsel’s review.” My March 24 letter was not, and did not purport to be, an exhaustive recounting of the Special Counsel’s investigation or report. As my letter made clear, my notification to Congress and the public provided, pending release of the report, a summary of its “principal conclusions”—that is, its bottom line. The Special Counsel’s report is nearly 400 pages long (exclusive of tables and appendices) and sets forth the Special Counsel’s findings, his analysis, and the reasons for his conclusions. Everyone will soon be able to read it on their own. I do not believe it would be in the public’s interest for me to attempt to summarize the full report or to release it in serial or piecemeal fashion.
As I have discussed with both of you, I believe it would be appropriate for me to testify publicly on behalf of the Department shortly after the Special Counsel’s report is made public. I am currently available to testify before the Senate Judiciary Committee on May 1, 2019 and before the House Judiciary Committee on May 2, 2019.
Finally,in the interests of keeping the public informed as to these matters, | intend to make this letter public after delivering it to you.
Sincerely,
Attorney General
Ce: Ranking Member Dianne Feinstein; Ranking Member Doug Collins
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