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December 1, 2017

Here is an exposition and analysis of some of this week’s national security-related threads authored by Just Security Editorial Board member and former federal prosecutor Renato Mariotti.

Trump Urged Congress to End Obstruction Investigations

Mariotti analyzes the question of whether the news that Trump urged Senate Republicans this summer to end the Senate Russia investigation constitutes obstruction of justice. Under 18 U.S.C. §1505, the crime of interfering with a Congressional investigation requires two things: first, a “corrupt” mental intent, and second, an act of “influenc[ing], obstruct[ing], or imped[ing],” or attempting to do one of those things, with respect to “the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.”

Here, as Renato notes, a compelling argument can be made that Trump satisfies the act requirement because he appears to be using his influence as President to end an investigation. However, the “corrupt” mental state requirement, in other words that Trump knew he was ending an investigation unlawfully, is more difficult to establish. Mariotti notes that Trump’s team would argue that Trump was asking them to end the investigations because he believed they were merit less and a waste of time, rather than because he wanted to prevent them from finding incriminating evidence against him. Likewise, the NYT story notes that GOP Congressional representatives argue that he is naive and does not realize he is doing anything improper. It would be harder to show Trump had an unlawful mental state with respect to the Congressional investigations, and thus difficult to establish beyond a reasonable doubt that he obstructed justice.

However, as Mariotti notes, this information could serve as evidence of Trump’s mental state, coupled with other evidence, with respect to the Comey firing — showing that he believed he was doing something unlawful by removing Comey. At the least, it suggests the importance of the Russia investigations for Trump, another aspect that could factor into establishing Trump’s mental state with respect to the FBI’s investigations into his administration.

 

Mueller Team Interviews Jared Kushner

In this thread, Mariotti discusses the potential significance of Special Counsel Robert Mueller’s team’s reportedly interviewing Jared Kushner about a meeting between Kushner, Michael Flynn, and Russian Ambassador Sergey Kislyak, in which the investigators purportedly focused on Flynn’s role. Mariotti notes that Kushner’s interview does not necessarily carry legal significance as to Kushner himself — his lawyer allowed him to be interviewed, which he would not do if he believed Kushner did anything illegal with respect to his activities with Flynn. Note Mariotti’s claim is narrower than the proposition put forward by the New York Times in its reporting. The Times wrote, “Defense lawyers typically do not allow such interviews if they believe that their clients are the target of an investigation.”

Because Flynn is now likely either cooperating with or negotiating about the terms of cooperation with Mueller, this particular aspect of the investigation is presumably wrapping up, so it is unlikely Kushner will be interviewed about it again. However, Kushner may still be interviewed in the future about other aspects of the Russia investigation or charges against other individuals, and he himself is not out of legal jeopardy.

 

Carpenter v. U.S. Supreme Court Oral Argument and Cell Site Location Information

In this thread, Mariotti discusses the factual and legal issues at play in the Carpenter v. U.S. case. The issue is about whether law enforcement can access historical cell site location information (CSLI), which is recorded any time a phone sends or receives a call or text message to the accuracy of within a mile or so. In the case, law enforcement officers collected historical location data without a warrant to establish that a suspect was at particular locations at the time crimes were committed.

Law enforcement is able to gain access to historical location data by getting a court order that has lower standards than getting a warrant: they have to establish specific facts that show the location data would be relevant to a criminal investigation. Mariotti notes that as a federal prosecutor, he obtained more precise, forward-looking location data, which requires obtaining a warrant from a court. The legal standard for a warrant is establishing probable cause that a crime was committed.

Historical CSLI can be obtained without needing to get a warrant because of the so-called Third-Party Doctrine, which holds that if people transmit communications information to an independent entity, such as logs of phone calls to the local telephone company, they don’t have an expectation of keeping that information private. On this theory, government access to that data without a warrant does not constitute an unreasonable search under the Fourth Amendment.

Based on the Justices’ questioning at oral argument, it looks like at least five Justices are in favor of creating an exception to the Third-Party Doctrine in this situation and requiring a warrant. If that were to happen, it would have significant implications for government surveillance generally, especially in the national security realm.

 

Trump Believes Mueller Investigation Will Exonerate Him

Here, Mariotti discusses potential consequences of White House Special Counsel Ty Cobb’s framing of the Russia investigation to President Trump. According to the Washington Post, Cobb has painted an optimistic picture of the investigation for Trump, and has assured him that it will be over and that he will be exonerated by the end of the year (though initially he suggested to Trump that it would be over by Thanksgiving). He has told Trump that the investigation has stopped requesting new documents, which means that the investigation could be over in two weeks, and that Mueller could then write a report exonerating Trump. The Post writes, “One outside adviser to Trump warned that the president would ‘blow a gasket’ if there was no statement of exoneration by year’s end.”

Likewise, Mariotti notes that he can’t imagine Mueller ending the investigation any time soon, and that Ty Cobb might have violated his ethical duty to tell his client the truth by painting this rosy picture, which is what Trump wants to hear. Mariotti also raises concerns that Trump may launch an “all-out assault” on the FBI and the Special Counsel if Mueller continues the investigation past this year.

 

White House Counsel Don McGahn Expected to be Interviewed in Mueller Investigation

Here, Mariotti highlights the importance of the news that White House Counsel Don McGahn is expected to be interviewed soon in the Russia investigation. The CNN report in the thread notes that White House counsels have previously tried to invoke attorney-client privilege to protect their communications with the President from being revealed in court, but that this strategy has failed in the past with respect to President Clinton’s lawyer and the Ken Starr investigation. What’s more, the Mueller investigation has already overcome attorney-client privilege once in issuing the Manafort and Gates indictments.

McGahn is in a unique position to provide evidence to Mueller because he has been advising Trump on legal affairs throughout his campaign and presidency. He was likely to have given Trump legal advice on issues like whether firing FBI Director James Comey would be legal, or how to deal with the Trump Organization after entering office. And Mariotti notes earlier reports that McGahn edited Trump’s letter justifying the Comey firing, and ultimately rejected the draft that Trump developed. This implicates the question of whether McGahn advised Trump of the legal problems involved with firing Comey, or whether he merely edited it to ensure for political acceptability and tone.

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