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Former Prosecutor Renato Mariotti’s Tweet Threads on National Security (Dec. 29-Jan. 5)

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Published on January 5, 2018

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

Senate Judiciary Republicans Refer Steele Dossier Author to DOJ for Criminal Prosecution

Here, Mariotti raises questions about the referral by Sen. Grassley (R-Iowa) and Graham (R-La.) of Chris Steele to the DOJ and FBI for criminal prosecution. In his view, this referral is unlikely to contain information that the FBI does not already know, and appears to be an effort to undermine the Russia investigation.

How Trump Tower Statement Could Constitute Obstruction of Justice

In this thread, Mariotti discusses two potential ways in which President Trump’s reported drafting of Donald Trump Jr.’s statement on his Trump Tower meeting with a Russian lawyer could constitute obstruction of justice. If Trump knew the truth about the meeting and wanted to hide it, or wanted to shape his son’s testimony in the context of the Mueller investigation, those two facts alongside a pattern of other similar behavior could give rise to an inference of corrupt intent.

Revelations in Michael Schmidt’s Times Article Aid Mueller Investigation

Here, Mariotti writes that the revelations in a New York Times article by Michael S. Schmidt definitely aid the Mueller investigation. First, the reported fact that President Trump attempted to convince Attorney General Jeff Sessions not to recuse himself from the Russia investigation could serve as evidence of his mental intent: to stop or impede the investigation. Mueller could then argue that Trump had the same intent when he fired former FBI Director James Comey.

Mariotti notes that Trump’s conversations with McGahn are not privileged, and thus could be used as the basis for Mueller to question McGahn about this issue. He adds that even if Trump could plausibly argue that he did not understand the legal meaning of recusal, McGahn certainly would have known.

Note that under DC Circuit procedural rules, Trump probably would not be able to claim attorney-client privilege over these conversations, in part because they do not relate to legal advice. At the same time, Trump may try to claim executive privilege over those conversations, which would be subject to a court reviewing evidence of each conversation in camera for grand jury need and responsible court management, in line with U.S. v. Nixon 418 U.S. 683 (1974). (Special thanks to Just Security Founding Editor Andy Wright for these points.)

By contrast, Mariotti says that it is highly unusual that another Trump lawyer, Uttam Dhillon, reportedly withheld information from Trump about whether he could fire FBI Director Comey without cause. That report raises questions about the legal ethical duty of candor that all lawyers have to their clients. In this case, Dhillon’s client would be the institution of the Presidency as represented by Trump. In Mariotti’s view, this report suggests Dhillon was deeply concerned about the impact that firing Comey would have on Trump’s presidency. Mariotti notes that Mueller could interview Dhillon as a witness regarding those concerns, which could be very important.

Finally, Mariotti notes that the first sentence in Trump’s original draft letter justifying the Comey firing focused on the Russia investigation, and that a Sessions aide looked for political dirt on Comey right after the firing.

Potential Role of Fire and Fury in the Mueller Investigation

In this thread, Mariotti analyzes the potential usefulness of Michael Wolff’s book for the Mueller investigation. Investigators are more likely to find facts that could serve as leads to obtaining admissible evidence useful than the salacious opinions offered in the book. For example, if there is a recounting of events by one of the people in the book that contradicts testimony by a witness that the investigation has interviewed, that could lead the investigators to investigate the disparity and arrive at the truth, or to discount the witness’ testimony for lack of reliability.

Mariotti cites a Jennifer Rubin opinion piece in the Washington Post that points to factual developments that are likely to be of particular interest to the Mueller investigation. In particular, the book reports that Trump personally drafted the misleading initial statement that Donald Trump Jr. released to the media about his meeting with a Russian lawyer at Trump Tower in June 2016. Similar reports in the Washington Post and others have indicated that Trump personally dictated the letter while aboard Air Force One on July 8. If true, those reports suggest that Trump obstructed justice by trying to conceal the truth (that the meeting was about obtaining damaging information against the Clinton campaign) about a potentially incriminating meeting. Similarly, Axios reports about Wolff’s book that:

“Mark Corallo [spokesman for Trump’s personal legal team] … privately confiding [to Wolff] that he believed the meeting on Air Force One represented a likely obstruction of justice — quit.”

Manafort Files Civil Lawsuit Against Rosenstein, Mueller, DOJ

In this thread, Mariotti notes the unusual nature of Paul Manafort filing a separate, civil lawsuit against Rosenstein, Mueller, and the Department of Justice. Typically, a plaintiff claiming that an indictment was issued unlawfully would make a motion to dismiss the indictment in the criminal trial in which the indictment was issued.

Mariotti believes that the suit has almost no chance of success, and that even if it were to succeed, another federal prosecutor could charge the same crimes against Manafort. His decision to file a separate civil suit likely reflects reflects a desire to gain media exposure while not putting himself at risk of upsetting the judge who will ultimately decide Manafort’s case. Interested readers may want to read Mariotti’s full take on Just Security: “Paul Manafort’s Latest Publicity Stunt.”

As Steve Vladeck notes, the civil lawsuit is likely to fail on both procedural and substantive grounds. Procedurally, Younger v. Harris 401 U.S. 37 (1971) holds that a federal court cannot enjoin an ongoing state criminal prosecution without a “showing of bad faith, harassment, or any other unusual circumstance . . . where the danger of irreparable loss is both great and immediate.” In other words, the party seeking a federal injunction against a state court criminal prosecution has to show that the state court prosecution was undergone in bad faith or as harassment — for example, if the government knows a defendant is innocent but continues to charge him, as in Dombrowski v. Pfister 380 U.S. 479 (1965).

Moreover, that holding is part of a broader principle called equitable restraint, holding that collateral attacks on ongoing criminal proceedings are precluded, unless the plaintiff can show there is no adequate legal remedy available in the criminal trial. And that principle applies with equal force to federal criminal proceedings. Manafort, however, writes nothing in his initial complaint about the inadequacy of the legal remedies available to him in his criminal trial. Indeed, that would be the most appropriate place to bring a motion to dismiss the indictment.

Marty Lederman points out further that Manafort’s argument that Special Counsel Mueller went beyond the terms of the Special Counsel statute in charging him with crimes that occurred prior to the Trump campaign has a fatal flaw. Rosenstein acted under the statutory authority by which Congress vested in the Attorney General the power to conduct any legal proceeding that U.S. attorneys are authorized by law to conduct. That authority extends to the acting Attorney General upon delegation from the AG, which applies to Rosenstein in this case because of Sessions’ recusal, and to any attorney appointed by him, which applies to Mueller. The text of Mueller’s appointment letter states Rosenstein is appointing him:

[b]y virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C. §§ 509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice.

Lederman notes that Rosenstein likely did so because the Special Counsel regulations allow the appointment of a special prosecutor to look into criminal matters, whereas the Trump-Russia investigation is a counterintelligence matter, and thus more appropriately under the purview of the AG authority statutes passed by Congress.

Bannon: Trump Campaign Should Have Consulted FBI Over Russia Meetings

Here, Mariotti analyzes two alleged Bannon statements quoted in Michael Wolff’s book. The quotes suggest that Trump campaign officials should have consulted the FBI over Trump Jr.’s June 2016 meeting with a Russian lawyer at Trump Tower. They also suggest that Kushner, Manafort, and Trump Jr. should have brought legal counsel into the meeting. Mariotti adds, however, that the reason why Bannon continues to insist the Russia investigation is a hoax in spite of these alleged statements is: politics.

Founders of Research Firm Behind Steele Dossier Correct the Public Record

Mariotti discusses the recent New York Times op-ed authored by the founders of Fusion GPS, the firm behind the Steele dossier. In it, they defend the integrity of their research, as well as discuss information contained in their research that is relevant to the Trump Russia investigation, but which congressional investigators have failed to follow up on.

In Mariotti’s view, this information, and the Steele dossier itself, are not particularly relevant because they cannot be admitted as evidence in trial. Rather, what matters is the evidence that the Mueller investigation is able to obtain, and whether that evidence proves crimes were committed beyond a reasonable doubt, or that implicates the counterintelligence investigation into Russian interference in the 2016 election.

Thus, Mariotti believes the focus by Republican congressmen and Trump’s support base on the Steele dossier is a distraction from the Russia investigation.

Revelations About George Papadopoulos in the New York Times

Here, Mariotti analyzes a recent New York Times articles reporting that emails show Trump campaign aide George Papapdopoulos continued to try to arrange a meeting between Trump and Putin even after Jeff Sessions ordered him not to do so. In his view, the Trump legal team may claim that in this instance as in others, Papadopoulos acted without campaign authorization. But those comparisons may fail, he believes, because of the difference between acting against explicit orders and acting without orders. He concludes that Times‘ account makes it more difficult for the Trump team to insist that Papadopoulos was a low-level volunteer.

The International Criminal Court (ICC) prosecutor’s long-expected request to open an investigation of U.S. armed forces and the CIA for crimes allegedly committed in Afghanistan will likely be approved and – although far from certain – it remains a possibility that U.S. officials could ultimately be indicted by the Court.

On November 20th, ICC Chief Prosecutor Fatou Bensouda requested the that the court’s pre-trial chamber authorize an investigation into the situation in Afghanistan. Besides crimes allegedly committed by the Taliban and Afghan security forces, the prosecutor says she wants to investigate ill-treatment of detainees by U.S. armed forces and the CIA. Since this presents the first time the court would be investigating a major western power, there is considerable uncertainty and speculation concerning how this process will unfold.

However, taking into account a number of legal and policy issues, it is entirely possible that U.S. officials could be indicted.

The ICC’s rationale

First off, Bensouda’s move should be seen through the lens of a calculated gamble that could dramatically increase the court’s status as a powerful international institution.

Bensouda must be aware that indicting U.S. officials would bring the ICC into a head-on confrontation with the U.S. that will prove difficult for the court to manage. However, the prosecutor also knows this will be seen as a major boost to the court’s legitimacy among key audiences, in particular the human rights community and State Parties skeptical towards the court’s tendency to focus on less powerful players. While a potential investigation in Afghanistan could undermine the ICC’s effectiveness as a criminal court in so far as indictments do not lead to trials, its relevance and reputation as an international organization could ultimately be enhanced, as others have argued.

Importantly, the Afghanistan investigation request comes amid the most serious crisis of the office of the prosecutor to date. This crisis – involving, among other allegations, accusations of undue contact between prosecutors and Western diplomats and a willingness to ‘let go’ of politically sensitive cases – mainly relates to the conduct of the previous chief prosecutor, Luis Moreno-Ocampo. Yet, it could be a factor influencing how the office would like to proceed in this situation, in part because prosecutors may be keener than ever to demonstrate their independence and willingness to proceed against powerful players.

Gravity

In this particular case, Bensouda is relying on the so-called ‘proprio motu’ powers in the ICC Statute, which allows her to pursue an investigation in the absence of a referral by a State Party or the UN Security Council. To make this happen, the pre-trial chamber would need to determine that there is a ‘reasonable basis’ to proceed with an investigation.

One key issue in this regard is whether the chamber will find that the so-called ‘gravity’ requirement in the statute is satisfied. That is, are the alleged crimes serious enough to warrant an investigation by the court?

For now, Bensouda has submitted evidence relating to torture and other forms of ill-treatment by the U.S. military and CIA against 54 and 24 detainees, respectively. This is a relatively small number of incidents for a case appearing before the ICC, and something that the chamber will likely take into account when weighing the gravity of the crimes.

However, the ‘reasonable basis’ threshold for authorizing an investigation is low, and other factors, such as the manner in which the alleged crimes were committed and their impact on victims, are likely to pull the chamber towards a conclusion that the gravity threshold should be seen as satisfied at this stage.

Complementarity

The ICC is popularly known as a court of ‘last resort’. This refers to the so-called complementarity regime of the ICC whereby a case is inadmissible if it is – or has already been – investigated or prosecuted by a state which has jurisdiction over it “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

In her request for an investigation, Bensouda submitted that “it is apparent that either no national investigations or prosecutions have been conducted or are ongoing against the persons or groups of persons” covered by the request, “or the information available is insufficient to identify the contours of any relevant national proceedings.”

At this stage, the pre-trial chamber is likely to agree with these observations, meaning that the principle of complementarity won’t bar the ICC from moving forward. It is possible however that the assessment of national proceedings in the U.S. could change in the course of an investigation, something that could potentially lead to a termination of the aspects of the investigation relating to U.S. armed force and the CIA.

This could happen if the U.S. opens new criminal investigations covering the alleged crimes in Afghanistan. But as David Bosco argues, “the chances of the Trump administration (or, in truth, any U.S. administration) launching additional domestic investigations and prosecutions are remote.”

In theory, the U.S. could also formally challenge admissibility of the cases presented by Bensouda on the basis that past investigations and prosecutions in the U.S. covered the same crimes. However, because the U.S. disputes the ICC’s jurisdiction over U.S. citizens, the administration is unlikely to seriously consider formally engaging the legal process.

And as Stephen Pomper recently argued on this site, the U.S. could also try negate the need for further ICC involvement by informally submitting information concerning the nature and scope if its own past investigations into the cases Bensouda is pursuing, in an attempt to show that these were genuine proceedings covering the persons responsible for the crimes.

Yet even if the U.S. provides the court with information relating to these past proceedings, it is far from certain this will lead to a termination of the investigation. One key challenge for the U.S. is that the ICC is primarily interested in seeing national proceedings being conducted covering the persons most responsible for the alleged crimes – and these proceedings need to be criminal in nature. As the prosecutor noted in her request, no (publically available) information suggests that criminal investigation or prosecution ever occurred in the U.S. with respect to officials who devised, authorized or bore oversight responsibility for the crimes committed.

Unless the U.S. commences fresh criminal investigations targeting senior decision-makers, the ICC is therefore likely to maintain that complementarity does not present an obstacle for moving ahead.

Evidence

When some commentators believe it is rather unlikely that the ICC would ever indict any U.S. government officials it is in part because it will be difficult to develop the necessary evidence in the absence of cooperation by the U.S. and other key states such as Afghanistan. Whereas it is true that it will be difficult – if not impossible – to interview many key witnesses in the absence of such cooperation, it is equally true that important evidence, such as documents pointing to the authorization of enhanced interrogation techniques, is publically available. As the prosecutor notes, a U.S. Senate Committee found that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” This presents a unique opportunity for Bensouda to use the novel approach of building a case mainly on the basis of documentary evidence.

Likely targets of an ICC investigation

Should the ICC proceed to a full investigation, who then are the most likely targets? In her request, the prosecutor hinted that she may be particularly interested in pursuing persons associated with the CIA.

For one, she intimates that she views the crimes committed by the CIA as both more serious and systematic compared to crimes committed by U.S. armed forces. The prosecutor notes that the treatment of CIA detainees “appears to have been particularly grave on a qualitative assessment.” She further emphasizes that “compared to the localised approval of certain interrogation techniques within the US military command structure in Afghanistan, the CIA’s use of the interrogation techniques . . . was authorised as official policy.”

Another key reason why the prosecutor may be likely to focus primarily on the CIA has to do with the Obama administration’s policy decision not to prosecute CIA officers. As noted in the prosecutor’s request, whereas some investigations and prosecutions have taken place in situations where CIA detainees died, a decision was made by the DOJ not to prosecute “any person who acted in good faith within the scope of the legal guidance given by the OLC regarding the [CIA’s] interrogation of detainees.”

Importantly, the prosecutor asserts that the OLC’s legal advice amounts to criminal conduct under the ICC Statute, noting that the scope of authorization provided by the legal opinions “breached the applicable prohibitions under the Rome Statute and international law more generally against torture, cruel treatment and outrages against upon personal dignity.”

Ramifications for the US

So far, U.S. reactions to the ICC prosecutor’s move have been measured (some would say surprisingly restrained given Trump’s habits), mainly relying on standard objections to the ICC claiming jurisdiction over U.S. citizens. This could change if an official investigation is opened – and it most certainly would if senior U.S. officials are indicted.

Although it seems unlikely that any U.S. citizen will ever stand trial at the ICC, the potential issuing of arrest warrants would create some trouble for the U.S. Should arrest warrants be issued, member states to the ICC – involving more than 120 states, some of which (including Japan, the United Kingdom and other European states) are among the U.S.’ closest allies – would be legally compelled to enforce the arrest warrants, even if they target current or former government officials. While U.S. pressure would likely result in these states putting their legal obligations aside, such a situation would nonetheless create significant diplomatic and legal trouble for the U.S. and its allies. ICC indictments, especially if met by U.S. non-cooperation, would also seriously compromise the U.S.’ already threatened position as an advocate of international justice and the rule of law abroad.

Image: Drew Angerer/Getty Images
FEATURED IMAGE: NEW YORK, NY - JANUARY 9: Don McGahn, White House Counsel to President-elect Donald Trump, arrives at Trump Tower, January 9, 2017 in New York City. President-elect Donald Trump and his transition team are in the process of filling cabinet and other high level positions for the new administration. (Photo by Drew Angerer/Getty Images)

About the Author

Artin Afkhami

Associate Editor at Just Security (2017-2018). You can follow him on Twitter @artinafkhami.

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