President Trump took to Twitter this morning ostensibly to defend his “beleaguered” Attorney General, even though at least some of that beleaguerment is, thanks to last week’s New York Times interview (and, potentially other behind-the-scenes machinations), his own doing. If, as a result, Jeff Sessions’s days as Attorney General are indeed numbered, it might be worth gaming out the three very different scenarios for his succession atop the Justice Department—given their obvious potential implications for the ongoing investigation by Special Counsel Robert S. Mueller III.  Continue Reading »

Over the weekend, the New York Times revealed that former Independent Counsel Kenneth Starr concluded that it was “proper, constitutional, and legal for a federal grand jury to indict a sitting president.” Although Starr’s conclusion was previously unknown, there can be little doubt that the President’s team has considered the possibility of an indictment for some time. As I told the Times, the specter that the President could be indicted should factor into his and his team’s legal analysis. It’s worth examining how the prospect of indictment could affect the President’s decision making.

Whenever I represent someone who is the subject of a federal criminal investigation, we consider all of the potential liability they have and sort it into tiers based on severity. Inevitably the prospect of a criminal indictment and conviction is alone in the top tier by itself. No matter who you are, the risk of becoming a convicted felon and spending time in prison dwarfs any other consideration. There are other considerations as well—being the subject of a criminal investigation has its own costs—but a criminal conviction and sentence is the most grave.

As a starting point, I typically assess the likelihood of a criminal conviction and what the potential punishment could be. At this point, the public doesn’t know how likely it is that the President could be convicted of a crime. Moreover, even if his lawyers believe there is strong evidence of guilt—which we don’t know, at this point—they would have to factor in the possibility that an indictment would be dismissed by federal courts. Continue Reading »

Overhanging Jared Kushner when he testifies before the Senate Intelligence Committee on Monday is the threat of criminal prosecution – for alleged past behavior and for perjury if he purposefully misleads Congress. The decision whether to prosecute rests with the Special Counsel, the Justice Department, and possibly the President (think: pardons). Another remedy for some of Kushner’s alleged misdeeds is revocation of his security clearances, and that decision too is in the hands of the Executive Branch and the President. But Congress may have its own supreme power available—impeachment.

It would be wise for Kushner’s lawyers to include the prospect of impeachment in their advice to their client, and it would be wise for members of Congress to consider whether it has this instrument at their disposal for Kushner and others in the administration. Those others include leadership of the Justice Department if they were to fire Bob Mueller in a situation that amounts to obstruction of justice, or Jeff Sessions for false testimony to Congress, to name some examples. Our considering whether Congress has the power to impeach Kushner informs those other scenarios as well. Continue Reading »

Tuesday, July 25

10:00am – House Foreign Affairs Committee – Authorization for the Use of Military Force and Current Terrorist Threats (here)

10:00am – House Homeland Security Committee – Deter, Detect and Interdict: Technology’s Role in Securing the Border (here)

10:00am – House Financial Services Committee – Markup of H.R. 1624, H.R. 2864, H.R. 3110, H.R. 3321, H.R. 3326, and H. Res. 442 (here)

10:00am – Senate Judiciary Committee – Nominations (United States Circuit Judge for the Eighth Circuit; United States District Judge for the District of Columbia; Judge of the United States Court of Federal Claims; Assistant Attorney General, Criminal Division) (here)

2:00pm – House Foreign Affairs Committee – Examining the President’s FY 2018 Budget Proposal for Europe and Eurasia (here)

2:00pm – House Homeland Security Committee – Securing Air Cargo: Industry Perspectives (here)

2:30pm – Senate Committee on Foreign Relations – Assessing the Maximum Pressure and Engagement Policy Toward North Korea (here)

2:30pm – Senate Committee on Armed Services – Options and Considerations for Achieving a 355-ship Navy from Naval Analysts (here)

2:30 pm – Senate Intelligence Committee – Intelligence Matters (Closed) (here)

3:00pm – House Foreign Affairs Committee – Held for Ransom: The Families of Iran’s Hostages Speak Out (here)

Wednesday, July 26

10:00am – House Foreign Affairs Committee – U.S. Cyber Diplomacy (here)

10:00am – Senate Judiciary Committee – Oversight of the Foreign Agents Registration Act and Attempts to Influence U.S. Elections: Lessons Learned from Current and Prior Administrations (here)

10:00am – Senate Committee on Foreign Relations – South Sudan’s Conflict and Famine (here)

10:00am – Senate Committee on Foreign Relations – Nominations (Ambassador to Ethiopia; Ambassador to Sierra Leone) (here)

2:00pm – House Foreign Affairs Committee – Assessing the U.S.-Qatar Relationship (here)

Thursday, July 27

10:00am – House Foreign Affairs Committee – H. Res. 259, H. Res. 311, H.R. 2061, and H.R. 2408 (here)

10:00am – Senate Intelligence Committee – Intelligence Matters (Closed) (here)

10:00am – House Homeland Security Committee – Employee Misconduct: How Can FEMA Improve the Integrity of its Workforce (here)

2:00pm – House Oversight Committee – Combatting Homegrown Terrorism (here)

2:15pm – House Foreign Affairs Committee – H. Res. 422, H. Res. 445, H.R. 2732, and H.R. 3320 (here)

2:30pm – House Foreign Affairs Committee – U.S. Interests in the Asia-Pacific: FY 2018 Budget Hearing (here)

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

TRUMP-RUSSIA INVESTIGATION

White House senior adviser Jared Kushner is scheduled to meet with the Senate Intelligence Committee behind closed doors today, followed by a private session with the House Intelligence Committee tomorrow, while the Senate Judiciary Committee’s plans to interview Donald Trump Jr. and former Trump campaign chairman Paul Manafort this week have been delayed indefinitely while negotiations with their lawyers for documents and information are ongoing, Devlin Barrett anticipating the upcoming meetings at the Washington Post.

Kushner will tell the Senate panel that neither he nor any member of the Trump campaign colluded with Russian officials during the U.S. election, according to his opening statement released ahead of the meeting today, the BBC reports.

Kushner’s full statement is provided at CNN.

Trump Jr. and Manafort cut a deal with the Senate Judiciary Committee to avoid a public hearing this week and instead provide records to the panel and be privately interviewed ahead of any public session at the end of last week, CNN’s Miranda Green and Manu Raju report.

Attorney General Jeff Sessions discussed campaign matters with the Russian Ambassador to the U.S. Sergei Kislyak on two occasions during the presidential campaign, at which time he was foreign policy adviser to Donald Trump, contrary to Sessions’ public statements, current and former U.S. officials told Adam Entous, Ellen Nakashima and Greg Miller at the Washington Post Friday.

President Trump still does not accept that Russia tried to interfere with the 2016 presidential election, new White House Communications Director Anthony Scaramucci said yesterday, Eli Watkins reports at CNN.

Green Party candidate Jill Stein’s name was included in a Senate Judiciary Committee letter requesting all communication between Donald Trump Jr. and a number of other individuals including Russian officials, making her what Alicia Cohn at the Hill calls a “surprising” addition to the congressional Trump-Russia probe.

There has been no discussion among President Trump and his legal team about whether presidents could pardon themselves, Trump’s personal lawyer Jay Sekulow insisted yesterday, after Trump himself sent out a tweet Saturday claiming that the president has the “complete power to pardon,” Kevin Robillard reports at POLITICO.

Trump can pardon any federal crime even before the alleged offender is charged with a crime, but can he pardon himself? Self-pardon has never been directly considered by the courts, and legal scholars are divided on the answer, but whether or not he can, whether he should is a different question – one the president should consider very carefully before answering, writes Jeffrey Crouch at the Hill.

Put yourself in Mueller’s shoes. The White House is attempting a systematic pushback on the independence and integrity of the special counsel investigation, and Mueller’s experience, and the steps he has taken so far to staff the Russia investigation with highly experienced lawyers, may not matter, because the president might bring things to a close with a bunch of preemptive pardons, or try to fire or rein in Mueller himself. Six things Mueller might be considering as he works out how to do his job under these circumstances are suggested by Jane Chong, Quinta Jurecic and Benjamin Wittes at Foreign Policy.

Can a sitting president be indicted? A newly-rediscovered memo from Kenneth W. Starr’s independent counsel investigation into former president Bill Clinton sheds new light on a “constitutional puzzle” that is attracting increasing attention amid the Trump-Russia investigation, writes Charlie Savage at the New York Times.

RUSSIA

An agreement on a wide-ranging Russia sanctions package was reached by Congressional Republicans and Democrats, they announced Saturday, the bill also including stiff economic penalties against Iran and North Korea, Al Jazeera reports.

The House is expected to vote on the bill tomorrow, which would allow a senator to bring up a resolution of disapproval if the administration moved to lift the sanctions and would expedite House consideration of such a resolution once it passes the Senate, Natalie Andrews reports at the Wall Street Journal. Continue Reading »

Meetings in Riyadh last week with senior Yemeni and Saudi officials offered little hope that the war that has wracked Yemen for over two years and spawned one of the world’s worst humanitarian crises is anywhere near its end. Admittedly, the picture we were able to develop is incomplete. Still, some themes emerged from our conversations with these senior officials that may prove useful to U.S. policymakers wrestling with options the Administration can pursue to bring Yemen’s destabilizing war to a conclusion. Continue Reading »

I. The Trump-Russia Investigations

• Steve Vladeck, Five Questions about the Scope and Limits of the President’s Pardon Power (Friday, July 21)
• Andy Wright, Possible Presidential Pardon Scenarios (Wednesday, July 19)
• Joseph Cassidy, When This Part is Over–America Post the Russia Investigation (Friday, July 21)
• Ryan Goodman and Andy Wright, Three Ways Trump’s NYT Interview Worsens Team Trump’s Legal Troubles (Thursday, July 20)
• Ryan Goodman, Did Trump Campaign Collude with Russia to Defeat Republican Opponents in GOP Primary? (Tuesday, July 18)

II. Trump Tower Russia Meeting and the Magnitsky Act

• Trump Tower Meeting Helps Show Collusion Up To Election Day (Sunday, July 16)
• Rob Berschinski and Adam Nagy, Don Jr.’s Russia Meeting Reveals the Power of the Global Magnitsky Act (Monday, July 17)
• Ryan Goodman and John Reed, Kaveladze’s Writings: Called Media Coverage of Major Russian Crime Syndicate an “Ethnic Witch Hunt” (Tuesday, July 18)
• Beth Van Schaack, More Details on Trump, Russia, and the Mysterious Magnitsky Connection (Wednesday, July 19)
• Asha Rangappa, Rinat Akhmetshin: Low-Hanging Fruit for Trump-Russia Investigators (Tuesday, July 18)

III. Travel Ban

• Marty Lederman, Litigating the Supreme Court’s Entry Ban Opinion: What’s the Required Connection? (Wednesday, July 19)
• Marty Lederman, Back to the Supreme Court on the Scope of the Entry Ban Injunction: First Thoughts (Monday, July 17)

IV. Countering Violent Extremism

• Andrea Hall, Letter to the Editor: Sorry, No More Chances for CVE (Tuesday, July 18)

V. War Powers and the AUMF

• Steve Vladeck, A Deep Dive on War Powers and the AUMF: Episode 27 of the National Security Law Podcast (Monday, July 17)

VI. Civilian Casualties

• Sahr Muhammedally, Lessons From Mosul: How to Reduce Civilian Harm in Urban Warfare (Thursday, July 20)
• Charles J. Dunlap, Jr., Letter to the Editor: There Is Much More to a Civilian Casualty Investigation than Eyewitness Accounts (Monday, July 17)

VII. Norms Watch

• Hannah Ryan, Norms Watch: Democracy, the Trump Administration, and Reactions to It (July 14-July 21) (Friday, July 21)

VIII. Transparency

• Emily Hockett and Michael Price, Palantir Contract Dispute Exposes NYPD’s Lack of Transparency Thursday, July 20)
• Jameel Jaffer, The Office of Legal Counsel and Secret Law (Tuesday, July 18)

IX. Trump’s Civil Service

• Beth Van Schaack, State Dept. Office of Global Criminal Justice on the Chopping Block–Time to save it (Monday, July 17)

X. Sudan Sanctions

• John Hursh, Not So Fast: Trump Administration Continues U.S. Sanctions Toward Sudan (Friday, July 21)

XI. Peacekeeping

• Sarah Knuckey, Anjli Parrin, AbdoulAziz Sali, Lewis Alexis Mbolinani and Baptiste Martin, Nikki Haley is Wrong to Boast About Peacekeeper Budget Cuts: A View From the Central African Republic (Thursday, July 20)

Sign up here to receive Norms Watch in your inbox each Friday.

THE TRUMP-RUSSIA CONNECTION

The list of attendees at a Trump Tower meeting between Trump campaigners and Russians grows, Trump and Putin meet a second time, and Mueller’s investigation expands to finances as Trump expresses his discontent.

Trump Jr., Manafort and Kushner Met With Russian-American Lobbyist and Accused Money Launderer In Trump Tower

Although Donald Trump Jr. promised last week to be “transparent” as he released copies of emails that showed he attended a meeting after being promised dirt on Hillary Clinton as part of “Russia and its government’s support” for Trump, he did not reveal the identities of all present, disclosing only Trump’s son-in-law Jared Kushner, then-campaign chairman Paul Manafort and Russian lawyer Natalia Veselnitskaya, and British pop manager Rob Goldstone.

One attendee not mentioned by Trump Jr. is Rinat Akhmetshin, a Kremlin-connected lawyer and Soviet army counterintelligence veteran who holds both American and Russian citizenship. He has been accused by some U.S. critics of having links to Russian spy services, and at the time of the June 2016 meeting he was lobbying against the Magnitsky Act, which imposes sanctions on Russia for human rights violations. Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, has asked why Akhmetshin was not registered under the Foreign Agents Registration Act.

Another attendee Trump Jr. overlooked is Ike Kaveladze, a U.S.-based employee of a Russian real estate company who has been the subject of a congressional inquiry into Russian money laundering in U.S. banks. The accusations arose out of his time as president of International Business Creations, a Delaware Corporation. Kaveladze was never charged, and he described the inquiry as “another Russian witch hunt in the United States.” His attorney told the Washington Post he attended the meeting as the representative of Aras and Emin Agalarov, Russian developers who hosted the Moscow Miss Universe pageant in 2013.

The revelations in the news media about the different people in attendance follow Trump Jr.’s shifting explanations for the meeting, which he initially characterized as “primarily” about adoptions, and repeated denials from Trump aides that campaign officials had contact with Russians ahead of the election. The meeting was also attended by Veselnitskaya’s translator Anatoli Smorchornov.

The Senate Judiciary Committee has called Trump Jr. and Manafort to testify publicly next week. Kaveladze has reportedly agreed to be interviewed by special counsel Robert Mueller. Kushner will testify before the Senate Intelligence Committee in a closed-door session on Monday.

Trump Asks Advisers About Pardon Powers

Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the Russia investigation, the Washington Post reports.

Trump Says He Wouldn’t Have Hired Jeff Sessions If He’d Known He Would Recuse Continue Reading »

On the front page of today’s Washington Post, Carol D. Leonnig, Ashley Parker, Rosalind S. Helderman, and Tom Hamburger report that the Trump administration is currently considering a range of options to control and/or block Special Counsel Robert S. Mueller III’s Russia investigation, including the p-word—pardons. On Wednesday, Andy Wright walked through some of the pardon scenarios, and folks should really start with his post. But I wanted to take a shot at framing the pardon issue around five distinct questions, many of which are being asked by folks reacting to today’s Post story. Below the fold, I ask (and try to answer) the questions.  Continue Reading »

After months of speculation, the Trump administration has decided that the current U.S. sanctions against Sudan will remain in place – at least for now.

The State Department announced on July 11 that it would postpone the decision concerning the future of the sanctions. It said it needed more time to review the Sudanese government’s actions pursuant to Executive Order 13761, which President Obama signed on January 13 during his final days in office. Obama’s order surprised many human rights organizations and Sudan analysts as it temporarily removed some sanctions towards Sudan. But the Obama executive order included a six-month window during which the United States had to verify continued progress by the Sudanese government on “five tracks” before permanently lifting the sanctions.

These tracks included a marked reduction in offensive military activity, a pledge to maintain a cessation of hostilities in Sudan’s conflict areas, improved humanitarian access throughout Sudan, and cooperation with the U.S. on addressing regional conflicts and the threat of terrorism. Citing previous progress on these issues, Obama suspended the longstanding U.S. trade embargo with Sudan, unfroze assets, and removed financial restrictions. All of these acts, however, were conditional, pending the six-month assessment.

Other than pushing the sanctions decision from July 12 to October 12, Trump’s executive order does little to alter EO 13761. The interagency decision-making process, which includes input from NGOs, remains the same. Likewise, the general license issued by the Treasury Department’s Office of Foreign Assets Control remains in place. The general license makes otherwise prohibited transactions permissible while the sanctions continue. Finally, the criteria for removing the sanctions remain the same, although some have suggested expanding these requirements and the State Department noted the administration’s intention to engage the regime on issues outside of the five tracks including human rights and ensuring that the Sudanese government is not aiding North Korea. Still, as long as Sudan sustains the positive actions that led to Obama’s decision in January, the U.S. will likely end the sanctions program in October.  Continue Reading »