What if Trump fires Mueller?

  1. First, if he tries on his own unilaterally, Mueller could go to court to challenge Trump’s authority under 28 CFR 600 (don’t worry about that now). But Trump may have the power to unilaterally rescind that regulation. If Trump doesn’t rescind that regulation, an acting AG (Rosenstein, or if he recuses or is fired, the next in line) could appoint someone else, which is why I think Trump will have multiple motivations to rescind it.
  2. MOST LIKELY: A Congressional Committee could hire Mueller to be their lead investigator, and they could hire his team. The Senate Intelligence Committee seems to be the most likely, given Sen. Burr and Sen. Collins being somewhat cooperative so far.  I could imagine the Judiciary Committee also following. Sen. Grassley has been a Trump booster in general, but he has signaled that firing Mueller would be  a bridge too far.
  3. Congress could pass a statute by 2/3 of each House over Trump’s veto to create a new Independent Counsel. An acting AG would need to appoint, in all likelihood. But Congress could decide this new legal office could be appointed by a different cabinet official if the DOJ has descended into chaos due to resignations or firings.
  4. Federalism: New York’s AG Schneiderman could hire Mueller.  This could be part of the quo warranto power that every state AG has over corporations in their state (see my old posts on the background of this power in the Trump emoluments context). Trump Org. is incorporated in New York and Delaware. I presume that other state AGs could investigate financial crimes connected to their states.
  5. Emoluments suits: Each of these civil suits would have discovery over the Trump Organization, and Mueller could be hired by Maryland’s AG or D.C.’s AG or by the Congressional Democrats for full discovery and depositions. The problem is that this power will take more time to move through the courts, to respond to Trump’s motions to dismiss.

ALERT: Trump signals he’s moving towards a new “massacre”

Trump’s tweet around 9 AM this morning must be taken very seriously and very literally:

The DOJ regulations say that only the Attorney General can fire a special counsel (special prosecutor). With Sessions recusing himself, Rosenstein is the Acting AG in this case. Because Trump wants to fire Mueller, he arguably needs Rosenstein to do the firing. (There is a complicated debate about whether Trump can fire Mueller himself). Rosenstein just testified that he believes a president cannot fire a special counsel himself, and that he has no cause to fire Mueller. In fact, Rosenstein knows he would become a target of an obstruction inquiry if he did fire Mueller at this stage.  Just like Nixon’s “Saturday Night Massacre,” Trump wants to fire the AG (Rosenstein) who won’t fire thespecial prosecutor, and that will allow him to find a next-in-line who will.

Just a quick review of the Saturday Night Massacre: Nixon wanted to fire the special prosecutor Archibald Cox, but under the existing statutes and precedents, he thought he did not have the authority to do so himself. He ordered AG Richardson and Dep. AG Ruckleshaus to fire Cox, but they refused and resigned instead. That left Solicitor General Robert Bork (yes, that Robert Bork) next in line, and he fired Cox. His excuse was that, unlike Richardson and Ruckleshaus, he had not made a promise to Congress involving the special prosecutor.

In this case, Trump is looking for his Bork, and then we’re all Borked.

[note: Trump may be trying to force Rosenstein to recuse, for the same effect: shift authority to someone else who would serve as Acting AG to fire Mueller.]

Sessions preview and review: The already strong case for felony false statement might get unbearably stronger

In March, I posted that I concluded Sessions had already violated federal law with a felony false statement before the Senate for false statements, failing to disclose two meetings with Russian ambassador Kislyak.  The allegation today is that there was a third meeting in April 2016 that was not disclosed. Review the actual questions and Sessions’s answers. A third undisclosed meeting should be a third strike, given that the first two misleading or false statements required more disclosure, not evasive parsing.

A quick review of the basic facts:

On January 10th, Sen. Franken asks Sessions an unclear question about Russian contacts, ending with the question: “[I]f there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”

Sessions’s answer was false: “Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.”

If we’re being generous, it is not easy to explain everything you mean in live testimony. It arguably could be unclear what he meant by “the Russians” in the moment, but the answer itself was untrue.  What normally happens during confirmation hearings is that a nominee reviews all of his or her testimony with lawyers afterward to make sure he or she did not accidentally mislead or lie. The nominee has days to amend their testimony, to give written clarifications if anything was untrue or misleading. If he or she does, then the problem is resolved. There is no “gotcha” for the earlier false statement, because the nominees have ample opportunity on their own to clarify.

Not only did Sessions fail to correct his false or misleading answer, but he continued to mislead when given a direct opportunity to clarify or disclose one week later in a written answer to Sen. Leahy.

First, on Jan. 12 (two days after Franken’s question), the Washington Post broke a huge story about national security adviser-designate Michael Flynn’s interactions with Russia’s Ambassador Kislyak.  On Jan. 15, Pence appears on “Face the Nation” to discuss Kislyak. At this point, every nominee has been reminded about Kislyak, that he was a really big deal, and that meeting him is a really big deal. If Sessions had somehow forgotten meeting Kislyak, he was undoubtedly reminded with a ton of bricks from the media storm around Flynn.  It was already problematic that Sessions failed to correct his answer on his own, but the problem is worse.

On Jan. 17, five days after the Washington Post story, and a week after the false answer to Franken, Sen. Leahy, the ranking Democrat on the Judiciary Committee, sends Sessions a letterasking about Russia, among other things:

Several of the President-Elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after Election Day?

RESPONSE: No.

There’s the case for perjury/ criminal false statement. Now let me be clear: by itself, the answer to Leahy appears to have wiggle room. But you cannot read the answer to Leahy by itself. It may be a second lie on its own, but more clearly, it is a failure to clarify the false statement in the live testimony, it continues to mislead, and it builds a strong case for intent to mislead and deceive.  Keep in mind, there are reports that Sessions did discuss the 2016 election with Kislyak, so in fact, both statements under oath may be false. In the very least, Sessions should have clarified his answer to Franken on his own initiative, especially once the Flynn/Kislyak story exploded two days later. But Leahy gave Sessions a gift, a fairly direct opportunity to disclose, clarify and correct a false statement, but Sessions ignored that opportunity, which already built a strong case of a deliberate false statement.

Today’s testimony could make that case too strong for Republicans to ignore, but I’m not holding my breath. The other audience today is Bob Mueller and his team of prosecutors.

Of course, that’s only one enormous legal problem on today’s docket. Sessions also has to answer for the Comey firing, about his failure to follow his recusal, about what he knew of Comey’s Russia investigation (including the timing of Comey’s request for more resources to investigate Flynn and Russia contacts), and whether Sessions participated in obstruction of justice. A third issue is whether Trump can fire Mueller (a question about the DOJ regulations).  A fourth issue is what was Sessions’s role in bringing Carter Page, the alleged Russian agent, into the Trump campaign.

I’m also looking to see if Sessions says that Trump is invoking executive privilege on any matters (I’d guess yes) and if Sessions would invoke the privilege against self-incrimination (I’d guess no). And I’m looking for the tone and body language from the Senate Republicans. Are there any more signs that they are breaking from the party line? Last week’s Comey session had some positive indications, but I hope they are approaching Sessions’s earlier conduct with sharp criticism and larger concerns.

Did Comey violate any rules by revealing his memos?

As far as I have read, the arguments that Comey violated laws in revealing his memos to Professor Dan Richman or to the press are remarkably weak.  I am chiefly responding to Trump counsel Mark Kasowitz’s letter and Jonathan Turley’s post. The bottom line is that there’s nothing to these arguments.  It’s a legal error to keep referring to Comey’s conduct as “leaking” unless one can establish that any of the information was classified or secret. The word “leak” might seem broad, but it has a specific meaning. It’s not revealing uncomfortable details if those details were not legally established as secret.

  1. Let’s start with the ambiguous suggestion that the conversations were privileged. It’s striking that Kasowitz never specified which privilege in his letter, but if he’s referring to executive privilege, then Trump clearly waived that privilege. Trump first referred to those particular conversations in the public statement on firing Comey on May 9th. Then he tweeted about tapes the next day. By referring publicly to their conversations and this content, he waived his claim for privilege and secrecy of those exchanges. Moreover, the Trump administration did not invoke the privilege before today, so they are trying to slam the door on the barn after the horse has already run away, as they say. It’s not only a practical problem, it’s also a legal problem. Courts are not going to take this claim seriously when the President had notice of the testimony and did nothing at the appropriate time. It’s just an empty “make-weight” argument. It’s legal noise without substance.  Moreover, executive privilege is not absolute. The Supreme Court in U.S. v. Nixon, the major Watergate case, held that executive privilege must be balanced with the public right to know. The Court rejected Nixon’s argument that he had an “absolute, unqualified Presidential privilege of immunity.” Even if Trump had asserted the privilege earlier, a court would have followed U.S. v. Nixon and find that the public interest outweighs the interests of the executive. And that’s why the administration never asserted the privilege in time: they knew it was a lose-lose situation.

2. Was Comey’s memo classified or did it contain any classified information? Comey himself said that he wrote these memos deliberately to avoid being classified, so he never included any classified information. He carefully gave written and live testimony to avoid divulging classified information.

3. Jonathan Turley suggests that Comey’s memo looks like an FBI “Field 302 form” as part of an investigation, and thus would become an official FBI record. A Field 302 form really is a form, not surprisingly. First, it would be odd for Comey to focus so deliberately on avoiding classified information, but somehow would turn his memo into a form that would limit his use of it. Second, the Trump administration keeps holding on to the fact that Comey had told Trump that he was not personally under investigation, so it’s odd to suggest that Comey’s memo of conversations is actually part of a personal investigation. Can they claim it was informally part of the investigation of others? That seems to be a stretch. One can take notes of conversations and retain his personal possession of those notes, even if they are written on an FBI laptop.

4. Turley suggests Comey violated 18 U.S.C. 641, a statute covering embezzlement, theft, and misuse of government property and records. The statute says: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority … conveys … any record … of the United States or of any department or agency thereof… shall be fined… or imprisoned…”

Turley is suggesting that Comey’s memos are official government records or exclusively government property. There’s no clear legal argument for that position. But even if it were a government record, I haven’t read anything that suggests this statute would apply. This article by David Berry, counsel to the NLRB, explains that the statute was based upon the common law crimes of larceny and conversion, and nothing is Berry’s description of the statute’s use seems to fit this case. Moreover, Berry explains that First Amendment values are a check on applying this statute too broadly as a chill on free speech.

5. Turley implies that the memo is covered by the Privacy Act, but again, the memo is not an official government record, nor does it include any information covered by the Privacy Act, as far as I have read. Turley also suggests the memo must be kept undisclosed under FBI policy, but I didn’t see any specific FBI policy addressing personal memoranda or notes. I’d like to see more specifics on this assertion.

6. Turley suggests that the FBI director had signed a non-disclosure agreement. That would be news. The FBI has internal rules, but is there any evidence of separate non-disclosure agreements? This seems speculative and unlikely.

The threat to discipline Comey for disclosing his own notes so far seems to meritless, and the filing of complaints against Comey could constitute “abuse of process.”

 

The Comey Hearing: Lots of big news (No GOP attack dogs; Lynch, Sessions, Rosenstein in trouble; McCain’s health)

  1. Nothing today changes my interpretation yesterday of the Comey timeline: taken all together WITH the firing, it constitutes obstruction of justice, but not a clear enough case for impeachment yet, especially in political terms. There are only minor additions from the testimony: When Trump said “I hope you can let it go,” Comey explained the tone: it felt like a directive. Comey also gave more context to the McCabe exchange as a hint of a quid-pro-quo. There’s more detail and context, but I don’t think that’s the biggest news of the day, other than putting a credible face and strong voice on TV with his powerful written statement from yesterday.
  2. My biggest question going into these hearings was: How seriously are the Republicans taking this inquiry?  The republic depends upon the Repubicans in Congress, and especially the Senate Intelligence Committee.  I’m not saying that Republicans were actively building a case for a prosecutor or impeachment, but I can’t emphasize enough how significant it is that none of the committee’s Republicans pressed any  attack on Comey’s character, motives, or credibility (other than McCain, more on that below). None of them were willing to play the attack dog role (see Arlen Specter from the Clarence Thomas-Anita Hill hearings). Their defense of Trump was relatively tepid, and I thought their questions were fair.  I think it’s a very positive sign that the committee will continue to investigate and work together — with Comey-ty? (Sorry!).  And there are strong signs that the inquiry will expand to other major players (more on that below, too.)

3a. Loretta Lynch, say it ain’t so. I can’t stand by my earlier criticism that the GOP was asking about Clinton email to distract from the Trump questions. They may have intended to change the subject, but they found a real subject to investigate further. Comey revealed Loretta Lynch pressured Comey to use the word “matter”, not investigation, was a huge mistake, a partisan intrusion, and probably changed history by making Comey more skeptical about her and the Clintons’ role. I inferred that it had an effect on Comey that may have changed how he handled the investigation later. She will face very tough questions. And it validates the follow-up questions on the Clinton campaign on their handling the email. We will hear a lot about this. It does not rise to obstruction, because it was wording/semantic, not the substance of investigation, but Comey was right to be troubled. Lynch and Bill Clinton should be called to testify and explain their behavior. What’s obstruction for the goose is osbstruction for the gander.

3b. But Comey re-emphasized that he was confident there was no underlying crime, and appointing an independent counsel would have been “brutally unfair.” He was wise to clarify that point.

4. McCain was incoherent and confused today, and he seemed off yesterday, too. He seemed to imply that the Clinton campaign could have been colluding with Russia, but he didn’t clarify this point. He mixed up names (Comey/Trump) and words several times. He claimed to see inconsistency with how Comey closed the Clinton case, but wouldn’t close the Trump/Russia case, but that claim is incoherent, too. I think it’s fair to attribute McCain’s conduct today to illness, not ill intent.

5. Comey repeatedly said he could not address questions about Attorney General Sessions because of the on-going investigation. Comey answered, “I was aware of facts” about Sessions’s Russia contacts that meant he didn’t go to Sessions in this matter. Comey confirms that Sessions is a possible target of the Mueller investigation. That’s not a surprise, but it underscores how this investigation is getting broader and closer to Trump. Sessions’s failure to follow up on his recusal is another big question about his own obstruction of justice in his case, as he participated in the firing.
6. Rod Rosenstein will face his own questions. Comey told Rosenstein about his concerns with Trump’s conduct (which should have raised red flags).  And yet Rosenstein still wrote the memo justifying his firing. Rosenstein may face fair questions about his possible participation in obstruction of justice.

Comey Counterarguments: The Trees, the Forest, and the Firing.

I’ve been reading the arguments that Comey’s written testimony does not show obstruction of justice here, here, here, and on Twitter off and on. For the most part, the arguments focus too narrowly on a particular event or claim. On some details, they are right: some statements and events are non-obstructive, even if improper, and a particular meeting Comey describes may be relatively innocuous. In fact, I don’t think the meetings, comments, or phone calls in Comey’s testimony are in themselves smoking guns or slam dunks of obstruction.

Nevertheless, these arguments focus on the trees to obscure the forest, and at the end of that forest is the decisive event of obstruction: Trump firing Comey. The Trump defenders ignore the totality of Trump’s contacts, and they don’t grasp that Comey’s testimony offers background for Trump’s intent to improperly influence and impede. Comey’s statement strengthens the case that his firing was the felony (and “high crime”) of obstruction of justice. My bottom line is that 1) one has to put all the events together — including their timing and frequency — to understand intent and context, 2) one needs to read the statutes (which make the attempt to influence with an improper purpose enough for obstruction), and 3) one should include Comey’s firing itself as part of the obstruction case.

The arguments against obstruction make a few fundamental errors. I have reviewed the statutes on obstruction of justice on this blog here and here. It’s important that when Cogress required proof of “corrupt” influence or obstruction, it defined corruption broadly to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information,” 18 U.S.C. 1515(b). The two big questions are: 1) Did Trump intend to influence or impede the investigation? And 2) What constitutes evidence of an improper purpose?

  1. First, Comey’s testimony lays out a timeline that corresponds directly to events in which Trump and his staff learned of an investigation gaining steam and having hard evidence of wrongdoing by that staff. We learned new details of that timeline today, and it’s a powerful argument for intent and improper purpose: On Jan. 27, Yates met with McGahn about Flynn, and at noon, Trump called Comey to have dinner together to ask for loyalty; Feb. 14, Flynn resigned and Trump called Comey to “let it go”; March 30, Trump complained to Comey about his Congressional testimony and asked him “to lift the cloud.” (Don’t forget the end of the timeline, not in the testimony, that his firing came immediately after he asked the DOJ to increase his resources for the Russia investigation.) As the investigation moved forward, Trump intervened to influence and impede. Trump’s defenders isolate events out of this context of the overall investigation, and doing so obscures a clear picture of Trump’s awareness of the investigation and his intent.
  2. This timeline addresses one particularly specious argument: “If Trump thought the Russian investigation was a wild goose chase, [it was] not corrupt of him to try to persuade Comey to drop it.” (See James Suroweicki on Twitter). Again, the timeline and the hard evidence against Flynn undercut this hypothetical: there is no way to allow for a good faith belief that the Flynn investigation was a wild goose chase. In fact, as the investigation grew stronger, Trump increased his contacts with Comey.   Moreover, the statutes offer no exception based on the merits of the investigation, and it would be absurd to allow an actor to avoid obstruction charges by defining “proper” or “improper” based on a subjective and self-interested interpretation. Even if it turns out that there is no underlying crime, it is still obstruction of justice to thwart an investigation. And given uncertainty, how do we know if no underlying crime is discovered precisely because the obstruction was successful in delaying, impeding, and undermining an investigation?
  3. Some of the arguments suggest that Comey did not feel influenced or pressured by Trump. Comey’s feelings are not relevant. The questions under federal law are A) the actor’s intent, regardless of effect, and B) obstruction statutes include attempt, which also does not depend on any effect.  Comey’s testimony suggests repeated intent and attempt to obstruct. (18 U.S.C. 1505 criminalizes “endeavors” to influence, and 1512(c)(2) criminalizes “attempts” to influence an investigation).
  4. Some of the arguments suggest that Trump’s comments are “grossly inappropriate” but fall short of obstruction. Those arguments separate the comments from the ultimate firing. My contention is that Trump firing Comey is arguably the obstruction of justice. The question is why Trump fired Comey, and the grossly inappropriate comments are evidence of improper intent (the definition of “corrupt”) under the federal statutes and case law. I’ve seen Trump’s defenders argue again and again that because Trump has the power to fire any FBI director, then the firing itself can’t be improper. That’s a fundamental error of law. Just because someone has the power to do something does not mean the exercise of that power is always lawful. The president has the power to order a military strike, but what if he orders that military strike in order to kill his wife’s lover? Someone with incriminating evidence against the president? To commit a war crime? The existence of other laws sets the limits on presidential power, based on intent. Even if Trump generally had the power to fire Comey, if his intent was to impede the Russia investigation, Trump used that power illegally. If one concedes that the contacts were repeatedly grossly inappropriate, then the ultimate firing must be seen in light of those improper contacts, which are evidence of an improper purpose.
  5. It seems to me that Trump’s defenders are using Comey’s attention to detail against Comey (or at least against the obstruction charge). Not every event in his testimony is incriminating or even inappropriate. Trump’s defenders highlight those good “trees” to obscure the forest. The Jan. 6 briefing was innocuous. Comey records that Trump told him on March 30, “that if there were some ‘satellite’ associates of his who did something wrong, it would be good to find that out.” Indeed, that sounds like encouraging some kind of investigation, but in context, it’s clear that Trump was deflcting attention from Flynn and more central figures. The continuation of the call shows Trump’s broader purpose was to influence the investigation: he “also contined to say but that he hadn’t done anything wrong and hoped I would find a way to get it out that we weren’t investigating him.”  It’s absurd to interpret this phone call as a pro-investigation contact. And those are the most favorable details for Trump’s side as non-obstruction. The rest of the contacts are explicit attempts to influence, and to do so with an improper purpose.
  6. One argument seems too silly to even repeat, but I’ve heard it repeated so often as noise, it demands a mention. Yes, it turns out that Comey did tell Trump two or three times that he was not personally being investigated, and that confirms some of Trump’s claims. Some of Trump’s defenders say that Trump could not obstruct justice if he was not personally being investigated. Laughable. Someone can obstruct the investigation of another for many improper reasons (to protect onself, to protect a friend, to avoid scandal around one’s administration). And it is meaningless that Trump was not (yet) a target of the investigation. We only entertain this argument  because we assume Trump’s ignorance of the legal system. Some defenders seem to focus simply on the fact that this part of Comey’s testimony lines up with a part of Trump’s. It’s like arguing a murderer is exonerated because he claimed to be wearing a red tie, and the police report confirms that he was wearing a red tie.

Again, I don’t think there is any one meeting, comment, or phone call in Comey’s testimony that is in itself a smoking gun/slam dunk of obstruction. Trump firing of Comey as the decisive act of obstruction. If Trump had not fired Comey, I don’t think these contacts taken together would be enough for a prosecution. But there is a separate question: impeachment is not the same as a regular prosecution. I have written before that “High crimes and misdemeanors” are not the same as regular felonies and misdemeanors. The English used this phrase for political abuses of power, and the American founders explicitly adopted the same phrase for the same broader purpose. This aspect of impeachment cuts both ways: The House and Senate do not need articles of impeachment that are limted to the law on the books. One can look at these facts and identify a clear abuse of power.  These facts are strikingly similar the articles of impeachment against Nixon.

But at the same time, Watergate is an important lesson about the politics and precedent of impeachment. Watergate started with a clear crime (the break-in), and then proceeded with finding a smoking gun of a cover-up. The Trump/Russia affair is so far a reverse Watergate: a relatively clear cover-up/obstruction, without hard proof of concrete crimes by anyone in the Trump administration. Failure to disclose contacts is not politically the same thing as a crime. I could be persuaded that the Comey firing combined with other abuses of power are impeachable, but I don’t agree that impeachment should be rushed. We have not reached a legitimacy threshold or consensus yet. My view is that impeachment proceedings just on the Comey events are premature until we know more about the underlying events. And that will take more time, patience, and openmindedness on both sides.

 

Seven Reactions to Today’s Coats/Rogers Testimony

I watched the Coats/Rogers/Rosenstein/McCabe testimony before the Senate Intelligence Committee live today. Even though the testimony provided no direct answers, that’s exactly why it was so significant. The news is what did NOT happen.

  1. When asked directly and repeatedly about whether Trump asked them to influence the Comey investigation into Russia, they had clearly rehearsed a way to avoid answering the question. They said, “We have never felt pressure.” That’s not an answer to the question, and deliberately so. They could have answered, “No, the President never asked.” Instead, they answered a completely different question, and of course, their answer matches up nicely with presenting an image of their toughness, professionalism, and independence. It is most definitely not an answer to the Senators’ questions of what Trump asked or attempted to do. This morning’s non-denials were the biggest tell and a signal to watch for more.
  2. Asked repeatedly for a legal basis for refusing to answer, none of the four provided even a weak legal argument. They acknowledge that their refusal did not have a legal basis. None of the four asserted executive privilege, and the White House never gave them an answer about executive privilege, which is stunning. The President through White House counsel needs to authorize an executive official to claim executive privilege, and that clearly did not happen. Coats etc. said they never heard back from the White House one way or the other, which is amazing but not surprising. It’s chaos, and White House counsel McGahn is already up to his neck in legal trouble himself over Flynn.
  3. What if Trump and McGahn change their minds and invoke executive privilege? Thanks to Sens. Warner, Wyden, and King for repeating questions, Coats and Roges seemed to give enough answers to have waived executive privilege permanently (thanks particularly to Sen. Angus King!). The Democrats changed their questions enough to ask generally about Trump’s questions, and Coats answered just enough to open the door to a waiver argument. If they wanted a strong argument for executive privilege, it should have been granted/invoked at the beginning of the session today.
  4. Instead of invoking privilege, Coats and Rogers focused on “confidentiality” and even more on the “inappropriateness” of answering questions in an open session. There is no legal claim of confidentiality here that could supercede Congress’s duty and power to supervise and ask. The only legal argument relating to confidentiality would be the executive privilege claim that they explicitly refused to invoke. The bottom line for Coats was that it would be more appropriate to answer the questions in a closed session, and they seemed to agree to answer those questions in this afternoon’s closed Intelligence Committee session. We won’t know the answers directly, but from the tenor of today’s session, the Democrats and some Republicans (Sen. Burr in particular) will not tolerate stonewalling in the closed session after this morning’s answers. And in any event, Coats seemed to unwilling to dispute the Washington Post story in public, which means he is unwilling to be a good Trump foot soldier. Coats has a solid reputation, and I’m inferring that he is going to answer questions honestly, both this afternoon and when interviewed by Mueller.
  5. As for the half-hearted arguments, mostly from Rosenstein and McCabe, that they could not answer questions about Comey because of the Mueller inquiry, those arguments are not solidly supported by historical practice. Watergate and Iran Contra had simultaneous investigations by Congress and special prosecutors, and yet those witnesses did not refuse to answer Congressional questions with the excuse of a parallel criminal inquiry. Perhaps the proper compromise here is that the witnesses must answer Congress’s questions, but in closed session out of respect for the special counsel’s investigation. But the Senators showed that they are not going to tolerate less than that.
  6. Senator Burr, the chair of the committee, was remarkably tough on the witnesses and their lack of cooperation in his closing statement on the session. This is one of the best signs of the day. He told them he is not going to tolerate further stonewalling, and he embraced Congress’s role as an equal branch, a check on the executive, and their power to have their questions answered. I am very pleasantly surprised by Sen. Burr’s leadership today and over the past two months. He could be the surprise statesman. Unfortunately, his less balanced reaction to Sen. Harris — interrupting her when he allowed other Senators to interrupt witnesses — marred his day. It was a gray area of how much interrupting to tolerate, but Burr did not treat all interrupters equally today.
  7. Sen. McCain’s presence at the hearing was very unusual. He is not a member of the Intelligence Committee, and the story is that he asked to join. The speculation was that he had a purpose to be there, to push harder on the Trump/Russia story, and it would be a sign of Republicans on the committee being open to such a pushback against Trump by allowing McCain to be there for such a role.  McCain started strong, then seemed unfocused, and then attacked leaks more than asking tough questions. I’m still going to suggest that McCain didn’t totally whiff, but is playing an active but not pugnacious role. Perhaps he understood his role as a guest of the committee, and also read the signals of Coats (his old friend from their Senate days together) than Coats would be more comfortable in the closed session. Maybe I am being naive, but McCain’s presence is a signal that he is increasing an active role as a check on Trump, and a signal that the Republicans on the Intelligence Committee are open to him playing that role. This could get more and more interesting even before tomorrow’s Comey testimony if Coats reveals more in the closed session.