Rosenstein was strategically smart, but Congress needs to act to protect Mueller

I agree with Dahlia Lithwick in Slate: Optically, it was strategically smart to have Rosenstein make the announcement himself. It presents a unified front at the DOJ, and it looks more obstructive if Trump tries to fire him. I just want to elaborate on the quote I provided for her:

As Mueller makes more progress in the investigation, it makes it more difficult legally to fire Mueller because it is more blatantly obstructive. On the other hand, as Mueller gets closer to where the “bodies are buried,” and because Trump may know where the bodies are buried, Trump might take his chances with obstruction charges in order to actually obstruct the revelations that would actually end his presidency. Until Congress passes a veto-proof bill to protect Mueller from firing without cause, what makes Trump think that there would be a significant immediate cost to firing Mueller or Rosenstein? Every indictment raises the stakes of obstruction but also increases the chance of a temper tantrum firing with no clear consequences until Congress changes hands. If Congress can’t pass a Mueller statute, in the very least the Senate intelligence committee needs to make a more public stance.

If Trump fires Mueller, I still think the Senate Intelligence Committee or NY AG Eric Schneiderman could hire him to continue the investigation with subpoena power. But Trump firing Mueller would still delay and disrupt the investigation. Congress needs to act by giving Mueller formal job security: by statute, DOJ officials should not be able to fire Special counsels without good cause. And the President should not have the power to fire special counsels at all. 

I’ll have more to come on constitutional and legal arguments for such statutes.

Nunes is nuts, but he’s not guilty of obstructing justice.

Three people I deeply respect and admire, Norm Eisen, Caroline Frederickson, and Laurence Tribe, argued yesterday in the New York Times that Devin Nunes is [potentially] guilty of the federal crime of obstruction of justice for his role in the memo. I don’t agree.

Frank Bowman, who has zero sympathy for Nunes, lays out a good rebuttal here. I don’t agree with everything Bowman says here, but I agree with most of it.

I’ll add the following points:

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Associate Attorney General Rachel Brand is out. Who is next in line supervising the Mueller investigation?

Rachel Brand used to be the next in line after Deputy Attorney General Rod Rosenstein in supervising the Mueller investigation. The New York Times has just reported that she is resigning after nine months in the job. The question of Rosenstein’s job security has been enormous from the beginning, but it is bigger than ever. The DOJ regulations assign the power to supervise — and to fire — a special counsel to the Attorney General, and Rosenstein is the acting AG on this investigation after Sessions’s recusal.

If Trump fires Rosenstein, or if Rosenstein eventually has to recuse himself, who takes over the supervision of Mueller and the Russia investigation?

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Justice Without Jail

I’ve been writing about the possible criminal liability of the Trump administration: Trump’s criminal liability for obstruction of justice, and his and his advisors’ potential liability for various other federal and state crimes. These questions are relevant for impeachment, even though “high crimes and misdemeanors” are not limited to statutory crimes. And these questions are especially relevant if Trump hands out pardons to undermine the investigation, because the president cannot pardon state crimes, and if Trump fires Mueller, because state prosecutors could take over the investigation and prosecution on the state level.

In response to my posts, critics have suggested that I want to “jail Trump.” The implication is that I am a “Lock Him Up!” rejoinder to the Trumpian “Lock Her Up” chant. I write here to clarify that I am calling for criminal investigation, prosecution, and potentially conviction, but not jail time (at least not at this stage for what we know now).

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Did the Nunes Memo Answer Rangappa’s Five Questions? The Nunes Memo is a Nothing Memo.

The Nunes Memo is out. Schiff’s memo is blocked. So we need to rely on the next best thing: Yale Law’s Asha Rangappa offered an excellent post asking five key questions. If the Nunes Memo did not address them, it seriously undercuts its credibility. I re-produce her questions here and go through step by step, with her Takeaway quoted. For her full explanations, see her original post here. You can find the Nunes Memo here. A first observation: I can’t believe the Nunes Memo is barely three pages long. And I can’t believe that the House Republicans and President Trump are spending so much political capital on the credibility of Carter Page, who was suspected to be a Russian agent long before 2016 and whose own testimony shows that he was colluding with Russia during the campaign. I addressed Page’s stunning admissions in this blog post from last November here. I discussed more about Page and Russian collusion confirming details of the Steele memo in my blog post last January here.

Continue reading “Did the Nunes Memo Answer Rangappa’s Five Questions? The Nunes Memo is a Nothing Memo.”