Show sidebar

The Early Edition: July 26, 2017

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

The House Intelligence Committee dropped its subpoena of former Trump campaign manager Paul Manafort to appear before it to testify about a meeting he attended last year with Russian lawyer Natalia Veselnitskaya, a source familiar with the situation told Josh Dawsey, Madeline Conway and Kyle Cheney at POLITICO.

Manafort was briefly subpoenaed yesterday to appear before the Senate Judiciary Committee this morning, Katie Bo Williams reports at the Hill.

Manafort discussed a June 2016 meeting between Trump’s inner circle and Russian lawyer Natalia Veselnitskaya with Senate Intelligence Committee investigators yesterday, according to his spokesperson, in a meeting in which he “answered their questions fully” and passed investigators notes he had taken during the 2016 meeting, Eileen Sullivan and Adam Goldman report at the New York Times.

“We’ll see what happens.” President Trump continued to attack Attorney General Jeff Sessions over his decision to recuse himself from the Russia investigations yesterday, giving an ominous response when asked if he would fire Sessions and repeating an earlier assertion that he would have “picked somebody else” for the job if he’d known that “he was going to recuse himself.” Devlin Barrett, Philip Rucker and Sari Horwitz report at the Washington Post.

“I am very disappointed in Jeff Sessions,” Trump reiterated in an interview with the Wall Street Journal yesterday, without confirming whether he would fire the attorney general. Michael C. Bender reports.

“We’ll come to a resolution soon” on whether to fire Sessions, new White House communications director Anthony Scaramucci said yesterday, adding that “if there’s this level of tension” between President Trump and Sessions “that’s public,” it’s “probably right” to assume that Trump wants Sessions gone, the BBC reports.

White House senior adviser Jared Kushner was interviewed by the House Intelligence Committee for around three hours yesterday, Morgan Chalfant reports a the Hill.

Kushner’s answers were “forthcoming and complete” and he “satisfied all my questions,” the leader of the House Intelligence Committee’s investigation into Trump-Russia collusion Rep. Mike Conway (R-Texas) said yesterday after Kushner’s interview, Kyle Cheney reporting at POLITICO.

Inspector General Michael Horowitz is expected to make his first public statements about the Justice Department’s Office of Inspector General’s little-noticed investigation looking into several key issues in the Russia saga stretching back to before President Trump’s inauguration when he appears before the Senate Judiciary Committee today, Josh Gerstein reports at POLITICO.

President Trump is harming himself, alienating allies and crossing “dangerous” legal and political lines by continuing to demean Attorney General Jeff Sessions, writes the Wall Street Journal editorial board.

President Trump has placed the White House in a “virtual state of war” with the Justice Department amid a high-stakes investigation into possible Trump-Russia collusion over his denigration of Sessions, write Peter Baker, Jeremy W. Peters and Rebecca R. Ruiz at the New York Times.

The argument for retaining Sessions rests on the perception that firing him would give President Trump a free hand to fire special counsel Robert Mueller, but this is wrong and short-sighted: Trump probably has other avenues to get rid of Mueller, he could pardon those under investigation and undercut Mueller’s investigation in that way, and viewing Sessions himself solely through the lens of the Russia investigation “is an insult to the countless Americans who will suffer under Sessions’ extremist reign as attorney general.” Trevor Timm writes at the Guardian.

RUSSIA

A wide-ranging package of sanctions against Russia was approved by the House yesterday in a 419-3 vote that brings President Trump a step closer to a choice he has tried to avoid: whether to sign legislation that undermines his efforts to cool tensions with Moscow, or veto it amid the ongoing investigations into his alleged collusion with Russia during his presidential campaign, writes Matt Felegenheimer at the New York Times. Continue Reading »

A Former Federal Prosecutor Dissects Kushner’s Statement

 

 

On a smartphone? Read it here.

The statement of Jared Kushner, released yesterday by his lawyers, is a very carefully crafted document that undoubtedly was meticulously written, edited, and/or reviewed by his attorneys.  Once again Kushner, out of all of the individuals that are subjects of the Russia investigation, appears to have the best legal strategy.  Until now, he has not made public comment–releasing only carefully worded statements via his attorney–and this statement is itself a fine piece of legal draftsmanship.

That said, because the document was written by sophisticated lawyers, the words that the statement uses reveal some details of his lawyers’ strategy and thought process.  The comments in the markup below (click the highlighted text) are meant to give you a sense of what I saw when I carefully read the document.  I suspect that Mueller’s team had similar observations. Continue Reading »

If “Love” Knows No Bounds: On Criminal “Intent” and the Scope of Campaign Finance Law

If the Trump campaign solicited support from Russians in the race against Hillary Clinton, did it, or any of its staff, have the mental state required for prosecution under federal criminal law?  The discussion so far has largely centered on Donald Trump Jr.’s actions in scheduling the June 9, 2016 meeting at Trump Tower, and for a number of commentators, the issue seems to be his own personal liability.  Professor Andy Grewal has made the point that the bar for establishing criminal intent is high. He is not alone in this judgement. Professor Saikrishna Prakash agrees.

It is without doubt correct that people should not go to jail for breaking a law unless the rule they violate is clear and they had the requisite intent to violate it. This is, of course, especially imperative when they are engaged in core First Amendment-protected activities like participating in a political campaign.

In the case of the June 2016 Trump Tower meeting, however, this argument can be–and has been– both overstated and misdirected. Now that Jared Kushner has provided his account of the meeting, there is additional material useful in analyzing the campaign’s culpability.

Moreover, in sorting out these issues, it is essential to keep in mind what conduct the campaign finance law does, or does not reach. Commentators like Professor Prakash and Eugene Volokh fear that even if the Trump campaign, its candidate and it senior staff sought and received Russian Government help, an overly expansive construction  of the campaign finance laws to reach this conduct could present major constitutional risks. For example, journalists might be liable for seeking or accepting from foreign nationals information intended to damage a political candidacy.  These concerns are also off the mark, because the there is nothing exceptional or overbroad in a reading of the law that covers the Trump campaign conduct. Continue Reading »

Q&A on the Senate Judiciary Committee’s Decision to Subpoena Manafort

 

On Monday night, the leaders of the Senate Judiciary Committee issued a subpoena to compel Paul Manafort, the former chairman of the Trump presidential campaign, to testify at a public hearing on Wednesday. The subpoena came as a surprise because just days earlier, Manafort and Donald Trump Jr. had reached a deal with the panel where they would provide records and be interviewed privately (versus in open session) in order to avoid being subponeaed at that time. According to the statement from Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Dianne Feinstein, negotiations with Manafort broke down over who in Congress would be able to access his transcribed interview:

 Mr. Manafort, through his attorney, said that he would be willing to provide only a single transcribed interview to Congress, which would not be available to the Judiciary Committee members or staff.  While the Judiciary Committee was willing to cooperate on equal terms with any other committee to accommodate Mr. Manafort’s request, ultimately that was not possible.

To better understand this latest development, I turned to Andy Wright, Just Security’s in-house expert on congressional investigations, to help explain it.

 

Q: Why did the Senate Judiciary Committee decide to subpoena Manafort when it appeared he was all set to testify in closed session on Wednesday?

Manafort made demands that the committee, and likely the broader Congress, could not accept.  The committee wanted to get a transcribed interview of Manafort and Trump, Jr. before any subsequent public hearing. Sen. Grassley, as committee chair, had threatened to issue subpoenas for a public hearing, and used that leverage to obtain agreements to voluntarily appear for transcribed interviews. However, unlike a hearing under subpoena compulsion, someone who voluntarily appears can seek to extract some procedural concessions from the investigating committee. For example, witnesses might seek commitments on the duration, format, legal representation, and transcript access (so the witness can review for error). Once negotiations broke down, the committee reverted to its compulsory subpoena power.

Q: What was Manafort not agreeing to? What was the deal breaker for him?  Continue Reading »

The Danger of a Grand Bargain: The Wrong Peace Deal Could Mean Endless War in Yemen

 

The United Nations Security Council issued a presidential statement last month calling on all parties in Yemen’s internationalized civil war to “engage in peace talks in a flexible and constructive manner without preconditions, and in good faith.” But the warring parties in Yemen do not seem to be listening. While they drag their heels on ceasefire negotiations, a new initiative driven by Saudi Arabia and the United Arab Emirates (UAE) is taking shape behind closed doors. Dubbed the “Grand Bargain” by some observers, it threatens to sideline the U.N. peace process. Such a deal would be disastrous, and would repeat the mistakes made in the wake of the 2011 revolution in Yemen. In order to end a popular uprising and avert a war between rival elites, the Gulf States—with support from the wider international community—compelled then-president Ali Abdullah Saleh to hand over power to his deputy in November of 2011. The deal addressed none of the demands Yemen’s revolutionary youth raised; it allowed Saleh to stay in Yemen with immunity from prosecution and influence over much of Yemen’s military, and left the rest of his corrupt regime in place. Three years after the deal was signed, the world learned what Yemenis already knew: war had not been averted, but merely delayed.

To end the violence in Yemen, the international community must instead work towards a peace framework that fulfils the revolution’s demands by ending corruption and authoritarianism, and allowing for a government based on the will of the people to take hold.

Since the Houthi movement staged a coup in Yemen in 2014, the U.N. special envoy has attempted to broker a ceasefire and a political settlement. But nearly three years later, Yemen remains split between the Houthis, and their ally-of-convenience former president Saleh; President Abdu Rabbu Mansour Hadi’s internationally-recognized government and its Gulf state sponsors; and local stakeholders, including tribal militias and al-Qaeda in the Arabian Peninsula (AQAP). The international community is officially in consensus that a U.N.-brokered peace agreement is the only way forward, but thus far foreign powers have failed to back up that pro-peace rhetoric with decisive support for the U.N.-led process. Feeding off the apparent indifference of the wider world, the Houthis and the Hadi government have both attacked U.N. envoy Ismail Ould Cheikh Ahmed, rhetorically and literally, each accusing him of bias in favor of the other.  Continue Reading »

The Three Sessions Succession Scenarios

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 »

President Trump’s Unsurprising Endorsement of Illegal Solicitation–His 2016 Campaign Repeatedly Violated Ban on Soliciting Foreign Donations

It’s not surprising that President Donald Trump believes that “most politicians would have gone to a meeting like the one Don Jr. attended in order to get info on an opponent” – his reference, of course, is to the infamous June 9 meeting organized by Donald Trump Jr. to obtain incriminating information on Hillary Clinton offered, as he knew, by the Russian government.

President Trump and his supporters keep trying to spin the line that there was nothing illegal about what Trump Jr. did.

That’s plain wrong.

Setting aside the question of criminal intent, the public record shows that Trump Jr. knowingly solicited “something of value” for the Trump campaign from a foreign source. Doing so was a violation on the federal ban on soliciting foreign support for a campaign. The fact that this was a foreign government, hostile to US democratic institutions, is not relevant to this legal analysis, though it is relevant to what we think of his actions as an ethical matter. Whether Trump Jr. actually received valuable information is irrelevant to the “solicitation” violation that occurred.  In other words, the solicitation of a contribution, i.e. something of value to the campaign, from a foreign national is itself illegal, whether a contribution is or is not actually received in response to the solicitation.

According to an AP article a folder of information reportedly was given to Trump Jr. by the Russian government lawyer at the meeting. A participant in the meeting, Rinat Akhmetshin, said that the attorney brought with her a plastic folder with printed-out documents that detailed what she believed was the flow of illicit funds to the Democrats. Akhmetshin recalled the attorney saying “This could be a good issue to expose how the DNC is accepting bad money,” according to the AP.

This was just one account of the meeting and we do not know what was in the folder or what happened to the documents.

Whether that information in the folder was something “of value” to the campaign is a question that requires investigation.  If it was and it was taken, then Trump Jr. and the campaign committed a second violation of not only soliciting but also receiving a contribution from a foreign national.

President Trump’s claim that “most politicians” would do what his son did means that the President thinks that most politicians would engage in illegal conduct by soliciting opposition research of value to the campaign from a foreign source, including a foreign adversary that has no respect for free and open elections.

The President’s position is not surprising, however, since his campaign knowingly and repeatedly violated the same statutory solicitation prohibition during the 2016 presidential election — by soliciting illegal campaign contributions multiple times from multiple foreign sources.

In June 2016, reports started surfacing that members of parliament in Iceland, Scotland, England, and Australia were receiving solicitations for campaign contributions from the Trump presidential campaign.

In response, Democracy 21 joined with the Campaign Legal Center to file an FEC complaint charging the Trump campaign with illegally soliciting foreign contributions and calling on the agency to send a clear message that foreign money is prohibited in U.S. elections.

The FEC complaint generated significant media attention. Multiple news organizations requested comments from the Trump campaign about the FEC complaint, putting the campaign squarely on notice about the illegality of its activities.

In July 2016, The Hill published an article reporting that “Donald Trump’s campaign is still soliciting illegal donations from foreign individuals” and is doing so “weeks after the campaign was put on notice by watchdog groups.” Continue Reading »

The Early Edition: July 25, 2017

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

“I did not collude with Russia, nor do I know of anyone else on the campaign who did so.” White House senior adviser Jared Kushner spoke to reporters outside the White House following his closed-door interview with the Senate Intelligence Committee yesterday, with his private meeting with the House Intelligence Committee due to take place today. Rebecca Ballhaus reports at the Wall Street Journal.

“Next up, 11 year old Barron Trump!” Kushner “did very well yesterday,” President Trump tweeted this morning, the Hill’s Rebecca Savransky reports.

House Intelligence Committee Chairman Devin Nunes is expected to attend today’s interview with Kushner, despite stepping aside from the House’s Russia probe in April after the House Ethics Committee launched an enquiry into his handling of classified information, according a G.O.P. source who spoke to Kyle Cheney at POLITICO.

The Kremlin did not order a meeting between Kushner and the chairman of Russian bank Vneshekonombank head Sergei Gorkov, then a Russian ambassador, included in Kushner’s statement to Congress yesterday, a spokesperson for Russian President Putin said today. The AP reports.

Attorney General Jeff Sessions “has taken a VERY weak position on Hillary Clinton crimes,” President Trump tweeted this morning, ramping up his criticism of Sessions, also attacking the acting head of the F.B.I. Andrew McCabe in relation to his attitude toward former campaign rival Clinton in another tweet, Kyle Balluck reports at the Hill.

Why aren’t “beleaguered A.G.” Jeff Sessions, the Committees and investigators “looking into Crooked Hillarys crimes & Russia relations?” President Trump inquired via Twitter as his son-in-law prepared to speak to the Senate Intelligence Committee yesterday, this and other complaints by the president about Sessions raising suspicions that he is considering appointing a new attorney general who will be empowered to end special counsel Robert Mueller’s Trump-Russia investigation, writes Katie Bo Williams at the Hill.

President Trump and his advisers are mulling the possibility of replacing Attorney General Jeff Sessions, according to people familiar with the talks, some of whom view replacing Sessions as part of a wider strategy to fire special counsel Robert Mueller and put an end to his investigation into possible Trump-Russia collusion, reveal Sari Horwitz, Matt Zapotosky and Robert Costa at the Washington Post.

Attorney General Jeff Sessions, Donald Trump Jr. and now Jared Kushner have all confirmed on-record that they met with Russian officials during the presidential campaign, contradicting the repeated denials of President Trump, Vice President Mike Pence, White House counselor Kellyanne Conway, White House spokesperson Sarah Huckabee Sanders, former White House press secretary Sean Spicer, Trump spokesperson Hope Hicks and former Trump campaign manager Paul Manafort, write Zachary Cohen and Marshall Cohen at CNN.

Jared Kushner’s decision to release a written statement and appear voluntarily before Congress is a “clear strategy to try to navigate a political storm,” but it is not without risk: lying to Congress is a federal crime, even though he was not under oath, and his “frequently unequivocal” public statement leaves him with little room for maneuver if fresh evidence comes to light contradicting what he said, writes Matt Apuzzo and Maggie Haberman at the New York Times.

Kushner set his administration colleagues the example of “comprehensive disclosure” in his speech yesterday, which expressly rebutted some of the more “incendiary” recent media reports, including the recently-disclosed meeting between Donald Trump Jr. and Russian lawyer Natalia Veselnitskaya, at which Kushner was present and which he said was a waste of time – a statement that can now be proved with a copy of the email he sent to his assistant ten minutes in which asked “can u pls call me on my cell? Need excuse to get out of meeting,” suggests the Wall Street Journal editorial board.

Kushner’s defense is that he isn’t corrupt, he’s just in over his head – he didn’t really know what he was doing and he was too busy. Coming from the man in charge of handling everything from Middle East peace to opioids, this is less than reassuring, write Dana Milbank at the Washington Post.

The “widespread” suspicion that President Trump himself or someone close to him leaked the top-secret signals intelligence revealing that Attorney General Jeff Sessions not only lied about meeting Russian ambassador Sergey Kislyak during the presidential campaign but lied about what they discussed – matters including Trump’s positions on Russia-related issues and prospects for U.S.-Russia relations in a Trump administration – reported by the Washington Post last week is perfectly plausible, suggests Max Boot at Foreign Policy.

An inside look at the day Jeff Sessions recused himself from the Russia investigation and set the stage for the appointment of special counsel Robert Mueller to take over is revealed by Sessions’ schedule, obtained by the watchdog group Citizens for Responsibility and Ethics in Washington and passed to The Daily Beast’s Betsy Woodruff.

RUSSIA

The House is expected to vote overwhelmingly for a bill placing further sanctions on Russia as well as Iran and North Korea today, but the measure’s fate in the Senate is still uncertain after Republican Sen. Bob Corker, chairman of the Senate Foreign Relations Committee said that the deal’s announcement “seemed somewhat premature,” Amanda Becker and Patricia Zengerle report at Reuters. Continue Reading »

How the Prospect of Indictment Could Impact the President’s Decision Making

 

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 »

Can Jared Kushner Be Impeached?

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 »