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.

“Obstruction of Justice”: Trump, Comey, and the law

I am updating my original post on obstruction of justice in the wake of a series of new stories tonight and anticipating Comey’s testimony on Thursday.

One can argue that the combination of these allegations constitutes obstruction of justice under federal statutes: 18 U.S.C. Sections 1503, 1505, and 1512(c)(2).

Let’s first review the evidence and new allegations.

  1. On May 11, in an interview with Lester Holt here, this was Trump’s key admission: “And in fact when I decided to just do it [fire Comey,] I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should’ve won.’”  

2. From the official transcript of Trump’s meeting with Kislyak and Lavrov: “I just fired the head of the F.B.I. He was crazy, a real nut job… I faced great pressure because of Russia. That’s taken off.” 

3. Comey is expected to document Trump’s pressure to end the Russia investigation on Thursday. And we have the following stories tonight:

4. Comey telling Sessions not to leave him alone with Trump, because he knew Trump would be interfering with FBI independence.

5. Trump allegedly clearing the room so he could ask Coats and Pompeo to get Comey to back off of the Russia investigation.

6. There also is an old story of trying to manipulate U.S. intelligence officers to support his false accusation that Obama wire-tapped Trump Tower, which also could constitute obstruction of justice.

The problem is that our legal system has never addressed a president firing a law enforcement officer in order to end that officer’s investigation into his own administration.

Of course, the president has the power to fire a law enforcement official, just like he has the power to drop a bomb on someone, but the power to act in one way generally does not make any intent to do that act “legal.” The president has the constitutional authority to order a raid, order lethal force, or issue immigration bans, but that does not insulate those acts from an inquiry into the motives behind those acts, and those motives can constitute felonies (or in the case of an immigration ban, intent can render the ban illegal/unconstitutional). Moreover, a president has the power to de-classify intelligence (see the Lavrov/Kislyak meeting), but what if he was acting as part of a quid-pro-quo bribe? Or as part of blackmail to keep past crimes secret? Again, having the power to act does not mean immunity from illegal inent in acting.

Here are three relevant statutes:

18 U.S.C. Section 1512(c)(2) is the broadest provision (with thanks  to Randall Eliason):

“(c)Whoever corruptly- (2)… obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

18 USC 1515 defines “official proceeding,” and includes Congress and authorized government agencies. The question is whether a formal FBI investigation is an official proceeding, and courts are divided. The 9th Circuit held that they are not, but also acknowledged that the 5th and 2d Circuits have held that they are official proceedings. United States v. Ermonian, 727 F.3d 894, 898-902 (9th Cir. 2013), United States v. Ramos, 537 F.3d 439 (5th Cir. 2008), United States v. Gonzalez, 922 F.2d 1044 (2d Cir. 1991).

The bottom line seems to be whether the defendant acted obstructively when foreseeing a proceeding, or if the obstruction would probably lead to interference with the administration of justice. To interpret this statute, I am relying on Charles Doyle’s publication for the Congressional Research Service.

Recently the Fifth Circuit has held that, “Though a proceeding need not be actually pending at the time of the obstructive act, an obstruction of justice conviction requires some nexus between the obstructive act and some official government proceeding. A proceeding must at least be foreseen, such that the defendant has in contemplation some particular official proceeding in which the destroyed evidence might be material.” United States v. Simpson, 741 F.3d 539, 552 (5th Cir. 2014).

The 11th Circuit observed a trial court’s instruction to the jury that an element of obstruction can be merely that “the natural and probable effect of the defendant’s conduct would be the interference with the due administration of justice.” United States v. Townsend, 630 F.3d 1003, 1015 n. 8 (11th Cir. 2011).

See also United States v. Burge, 711 F.3d 803, 808-10 (7th Cir. 2013); United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); United States v. Desposito, 704 F.3d 221, 230-31 (2d Cir. 2013); United States v. Ahrensfield, 698 F.3d 1310, 1324 (10th Cir. 2012).

One observation: Though the text of 1512(c)(2) is broad, 1512(c)(1) applies more narrowly to destruction of evidence. It is possible to read the second part more narrowly in light of the first part as a matter of structural interpretation, but that’s not limited by a closer textual interpretation.

Beyond 1512(c)(2), there are two other statutes that may apply, but courts have often applied them more narrowly than in this case.

18 U.S. Code Section 1505: Obstruction of proceeding before departments, agencies, and committees: “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of 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—Shall be fined under this title, imprisoned not more than 5 years ….”

Again, I am relying on Charles Doyle’s publication for the Congressional Research Service. “The crime of obstruction of [such] proceedings has three essential elements. First, there must be a proceeding pending before a department or agency of the United States. Second, the defendant must be aware of the pending proceeding. Third, the defendant must have intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.” United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991).

First, what is a proceeding? Courts have interpreted this term broadly. An investigation itself has been interpreted as a proceeding. United States v. Kelley, 36 F.3d 1118, 1127 (D.C.Cir. 1994). In Kelley, the D.C. Circuit notes that an investigation under Section 505 needs to be more than “a mere police investigation,” and it cites a case excluding an FBI investigation under this statute. Thus, more weight should go to the provision on an inquiry or investigation by Congress. Arguably, Trump dismissed Comey because of his past role in Congressional inquiries and his potential role.

Second, Trump was obviously aware of the investigation.

Third, what is the requisite intent and what constitutes corruption?  I quote Doyle: “In the case of either congressional or administrative proceedings, §1505 condemns only that misconduct which is intended to obstruct the administrative proceedings or the due and proper exercise of the power of inquiry. In order to overcome judicially-identified uncertainty as to the intent required, Congress added a definition of “corruptly” in 1996: “As used in §1505, the term ‘corruptly’ means 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). Examples of the type of conduct that have been found obstructive vary.”

Obviously, Doyle does not offer an example of “a president firing an official to end an investigation.” But Trump was acting an improper purpose, quite simply to obstruct the investigation, and thus, to obstruct justice.

Here is 18 U.S. Code Section 1503: “Whoever corruptly, or by threats or force, or by any threatening letter or communication, … endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).” This provision is remarkably broad, and from what I’ve read, it has been applied broadly, but mainly it applies to interfering with judicial officials, rather than investigations. It would be fruitful to research just how broadly it applies to investigations.

Please note that impeachment is not limited to statutory crimes, but draws from a technical English legal term for political abuses. Many Founders are on the record explaining that “High Crimes and Misdemeanors” is about political abuse of power, rather than statutory felonies.

Nevertheless, the politics of impeachment are stronger if one can identify a concrete statutory felony, so that the high crime is also a regular crime on the books. If it’s less subjectively political, the more persuasive it is to the public and the GOP.

The other political problem is that we have a reverse Watergate. In Watergate, the underlying crime was clear, but the President’s role was unclear (and it turned out that the only proven role was the cover-up).  Here, we have a signs of a cover-up/obstruction, but not yet proof of the underlying crime. Legally, Trump can be convicted for obstruction even if there was no merit to the accusation. But politically, it is a problem. So it is politically important, if not legally necessary, to find some kind of collusion or glaringly illegal act by Flynn, Kushner, Manafort, Page, etc. I suspect those crimes will come to light, even if Donald Trump did not commit them himself.

Kushner/Flynn/Russia Timeline: The Russian Oil Mega-deal

As the details of Kushner’s and Flynn’s activities emerge, I’ve been reading about a key event that has gone unnoticed that connects the dots: “The Largest Oil Deal in Russian History,” a deal risked by the West’s sanctions on Russia, and which occurred in the middle of the key Kushner/Flynn/Russia events (right in between Kushner’s potential espionage proposal for a secret direct link to the Kremlin through the Russia embassy and Kushner’s meeting with Putin’s banker/confidant). A timeline connects the dots below, including the possibility that this “19% of Rosneftgaz” deal in December is actually the same “19% of Rosneftgaz” deal that the MI6 agent’s dossier alleges was part of a Russian deal with Carter Page, and it may be getting transferred through shady channels to unknown new stakeholders…

Here are links to the stories on this shady megadeal between Qatar and Russia on Dec. 9:

“Russian state holding company Rosneftegaz on Saturday signed a deal with the Qatar Investment Authority and commodities trader Glencore to sell a 19.5 percent stake in state-owned oil major Rosneft, Rosneft said. The privatization deal, which Rosneft Chief Executive Igor Sechin called the largest in Russia’s history, was announced by Rosneft in a meeting with President Vladimir Putin on Wednesday. Its success suggests the lure of taking a share in one of the world’s biggest oil companies outweighs the risks associated with Western sanctions imposed on Russia over the conflict in Ukraine. Rosneft had been under pressure to secure a sale of the 19.5 percent stake to help replenish state coffers, hit by an economic slowdown driven by weak oil prices and exacerbated by sanctions.”

More recent reports have focused on the shadiness of the deal and its subsequent transactions: “More than a month after Russia announced one of its biggest privatizations since the 1990s, selling a 19.5 percent stake in its giant oil company Rosneft, it still isn’t possible to determine from public records the full identities of those who bought it. The stake was sold for €10.2 billion to a Singapore investment vehicle that Rosneft said was a 50/50 joint venture between Qatar and the Swiss oil trading firm Glencore.”

The Dec. 9th deal falls in the middle of the shadiest events in the Kushner/Flynn/Kislyak timeline, which connects the dots on a mix of known illegal non-disclosures, corruption, potential espionage, and Logan Act violations. They certainly explain why Kushner advised Trump to fire Comey (obstruction of justice).

Dec. 1: Just 8 days before this oil mega-deal, Flynn & Kushner met Ambassador Kislyak at Trump Tower, and proposed secret communication link with the Kremlin through the Russian Embassy. The parties admit that the idea was to avoid any detection of these communications by U.S. authorities.

Dec. 9: The Largest Oil Deal in Russian History

Dec. 13: At Kislyak’s urging, Kushner meets Gorkov, who chairs Russia’s government-owned VE Bank and is Putin’s close confidante. Journalists describe VE Bank (VEB) as Putin’s slushfund, a source of money independent from official Russia budgeting. VE Bank is under strict US sanctions.  Here is good commentary on these events.

Dec. 14: Gorkov immediately flies to Japan to meet with Putin.

Dec. 29, Obama orders new Russian sanctions for election hacking and interference. On the same day: Flynn calls Kislyak five times about Russian sanctions. Trump tweets to Putin, calling him “very smart” for not responding, effectively saying, “Don’t worry, I’ve got your back.”

Jan. 4: Flynn reveals to Don McGahn, chief attorney for the transition effort, that he’s under FBI investigation. (He is still appointed and receives security clearance, and he resigns on Feb. 13, long after Sally Yates reveals incriminating details about Flynn on Jan. 26-30).

Jan. 9: Trump transition team announces that Kushner will join the administration as a senior adviser.

Jan. 15: Pence denies that Flynn and Kislyak discussed sanctions.

Jan. 18: Kushner applies for top-secret security clearance, omitting many meetings with foreign officials, including the relevant ones with Kislyak and Gorkov in December. Those omissions are potentially criminal, from my reading of security experts.

I add two more stories for context. The first is from the alleged MI6 dossier on Trump, with the caveat that the dossier has not been verified:

“A dossier with unverified claims about President Donald Trump’s ties to Russia contained allegations that Igor Sechin, the CEO of Russia’s state oil company, offered former Trump ally Carter Page and his associates the brokerage of a 19% stake in the company in exchange for the lifting of US sanctions on Russia.”

I’m reading more about how the two Rosneft sales may have been related. Was there an initial negotiation with the Trump campaign for the Rosneft stake, as the dossier claims? It just happened to be 19% in the alleged dossier, the same number in the December deal (19.5%!).  And did that turn into the December Qatar deal, which in turn was laundered into a deal for Trump Associates, through a Singapore firm? Was Kushner negotiating that deal? Lots of shell companies and the Cayman Islands are involved, perhaps as a way to hide the beneficiaries.

And everyone should listed to this TrumpCast (Slate’s chair and host Jacob Weisberg) interviewing Tim O’Brien of Bloomber Business News. O’Brien explains how, 10 years ago, a 26-year-old Jared Kushner made a terrible bet on Manhattan real estate. His father had just been released from prison, and Jared had taken over the family real estate business. He was looking to make a big splash, so he sold off his family’s holdings in New Jersey in order to purchase a huge building in midtown Manhattan (666 5th Ave., I am not making that up) for $1.8 billion. It was 2007, the peak before the crash. Suddenly, Jared had a financial disaster on his hands. He negotiated a deal to save the project from bankruptcy with a 10-year loan, but the creditors were set to call in their debts in 2017 or 2018.  About a year ago, Kushner had a deal with a Chinese bank in place to re-structure the deal with a huge windfall of $500 million, but journalists at Bloomberg found out, and their story blew the deal (because it was a corrupt deal). And once again, Kushner’s real estate business is heading towards disaster… unless he can find another authoritarian state bank to bail him out.

Guess what happens next? O’Brien explains that Kislyak arranged this December meeting between Kushner and Gorkov (the chair of the Putin-affiliated Russia bank VEB).

Here is Josh Marshall’s view (and chart) from last week, without taking note the oil mega-deal:

“This chart, let me be clear, is not a statement of fact. It is an effort to illustrate a series of patterns which are the subject, the subtext, of many of the reports about the Trump/Russia story and indeed the investigation. It looks at what each side wants, what each side seems to be getting. President Trump’s efforts to destabilize NATO and the EU are the most clear. These things are happening. The election hacking and subversion did happen. We know the Trump Organization has taken vast sums of money from Russia and other parts of the former Soviet Union over the last twenty years. Whether there’s any explicit quid quo pro today is what we don’t know. When people talk about collusion, this is the pattern of actions they’re looking at and trying to confirm.”


Today, Bloomberg reports that the Kushners are buried in debt to Chinese lenders on a New Jersey deal. I had no idea about this other financial crisis. Like father, like father-in-law, like son. The Kushners and Trumps are all criminal fraudster/bankruptcy artists, just looking desperately to sell out the US for billlions in return for personal millions.

And NBC is following up on this story on the linke between Kushner’s 666 5th Ave. real estate disaster and potentially using the “backchannel” to find a Russian banker to bail him out.

Let me add a point/counterpoint. A friend pointed out that the 19.5% in both the dossier’s Russia/Carter Page deal and the Qatar Dec.9 deal might not be directly connected, because there may be a 20% legal threshold rule for reporting financing and investors. But the fact that each of these deals is under that 20% threshold suggests that the dealmakers are unusually focused on secrecy, so that it dictates the scope of the deal.

George Washington’s secret land deal actually strengthens CREW’s Emoluments claim [Updated]

[Update on June 20: In his original SSRN draft, Tillman did not include evidence that the auction was publicized. On June 16, 2017, Tillman filed an amicus brief that offers evidence that the auction was advertised in advance and was public, although it is still unclear from the footnotes and sources cited if there were any newspaper coverage of Washington’s purchases at the auction. It is possible that Washington himself was confused about whether the acquisition of land, as opposed to a payment, could be an emolument. Or perhaps he was being conveniently selective or forgetful about the emoluments clause.]

Mikhail’s Blackstone breakthrough: Emoluments meant private benefits

I am crossposting John Mikhail’s breakthrough findings on the Emoluments Clause from Balkinization.

For background: The “foreign emoluments” clause of the Constitution states, “[N]o person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Art. I, Sec. 9, cl. 8. The “domestic emoluments” clause states: The President “shall not receive … any other Emolument from the United States, or any of them [any state].”  I have written before about how President Trump is receiving both foreign and state emoluments.  I am working with Mikhail, Jack Rakove, and Gautham Rao on an historians’ amicus brief on the legal meaning and context of the word “emoluments” in the eighteenth century.

Trump’s lawyers have argued in a white paper that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  They suggest a narrow reading excluding the payments to Trump’s businesses for market transactions. I have argued that such market transactions should be considered “office-related,” but Mikhail’s research shows that emoluments are not limited to “office related payments.”  In Blackstone’s Commentaries, the primary usage of the term included private benefits and advantages. As most judges and legal scholars probably know, Blackstone was one of the most important legal sources for the Founding generation. Founding-era Americans cited Blackstone far more than any other English or American legal scholar.  Mikhail also adds a poignant reference to emoluments by the executor of Blackstone’s will, using “emoluments” in reference to the benefits from Blackstone’s estate.

I excerpt Mikhail’s post summarizing his findings:

“Blackstone does not support such a narrow reading [by Trump’s lawyers].  … The majority of Blackstone’s usages of “emolument” involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

For example, Blackstone uses “emolument” in the context of family inheritance, private employment, and private ownership of land.  He refers to “the power and emoluments” of monastic orders; to “the rents and emoluments of the estate” managed by ecclesiastical corporations; and to the “pecuniary emoluments” which the law of bankruptcy assigns to debtors.

Blackstone describes the advantages to third-party beneficiaries of a gift as “the emolument of third persons.”  He uses “emolument of the exchequer” to refer to an increase in the national treasury.  Finally, in explaining the law of corporations, he characterizes “parish churches, the freehold of the church, the churchyard, the parsonage house, the glebe, and the tithes of the parish” as among the “emoluments” vested in the church parson.

A further illustration of the fact that Blackstone understood emoluments to relate to private commercial transactions can be found in the forms of “Conveyance by Lease and Release” that appear at the end of Book II of the Commentaries.  In the first of these forms (“Lease, or Bargain and Sale, for a year”), Blackstone suggests the following language for conveying parcels of land:

THIS INDENTURE . . . witnesseth, that [A.B. and C.]. . . have bargained and sold . . . unto [D.E. and F.G.] . . . the capital messuage, called Dale Hall . . . and all those their lands . . . called or known by the name of Wilson’s Farm . . . together with all and singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, underwoods, ways, waters, watercourses, fishings, privileges, profits, easements, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever to the said capital messuage and farm . . .”

Blackstone uses the same language in his second form (“Deed of Release”).  Both forms can also be found in his Analysis of the Laws of England (1756), published ten years earlier.  Yet Blackstone probably did not create these forms on his own.  Many form books and other legal manuals of the period included similar templates.  In Giles Jacob’s Law Dictionary (1729), for instance, which included not only a dictionary of legal terms, but also writs, case reports, and deeds and conveyances, one finds a “Form of a Release and Conveyance of Lands” with almost identical language, in which “A.B.” conveys to “C.D.” a piece of property together with “all . . . Easements, Profits, Commodities, Advantages, Emoluments, and Hereditaments whatsoever.”

“When Americans bought and sold property during the founding era, they frequently referred to emoluments in their deeds and conveyances…

“Based upon the foregoing considerations, it seems clear that Blackstone did not understand “emolument” in the restricted fashion advocated by Trump’s lawyers.  Nor, it seems, did the founders themselves. The current deadline for the President to respond to the second amended complaint in CREW et al., v. Trump is June 9.  It remains to be seen what originalist or historical arguments, if any, the Department of Justice will make to Judge Ronnie Abrams, to whom the case is assigned.”

Lieberman should not be FBI Director

Get ready for Trump to nominate Lieberman FBI director. And get ready to fight it. Trump would pick Lieberman only because he used to be a Democratic Senator and he would be useful political cover. Lieberman offers Trump a facade of bipartisanship, but it is a poorly kept secret that he resents the Democratic Party leadership for turning against him in 2004. There were many stories between 2004 and 2010 that he was bitter about the Clintons and Obama. He openly flirted with endorsing Trump over the summer, before eventually endorsing Clinton. I didn’t find the flirtations to be a sign of nonpartisanship. Trump’s nomination of Lieberman would be gaming the Senate for rushed confirmation of old colleague, to manipulate Lieberman’s old neo-con Senate buddies McCain and Graham, and to avoid tough questions.

Moreover, Lieberman also doesn’t have enough relevant experience for the FBI. He served as Connecticut state attorney general in the 1980s, and that office plays a law enforcement role, but it is not like FBI today. In particular at this moment, having FBI/DOJ experience in this moment is vital.

Lieberman shares Trump’s Islamophobia. He has surrendered old principles for a post 9/11 right-wing neo-Con agenda. In 2015, Lieberman led a campaign against the Obama administration’s Iran deal for United Against Nuclear Iran. My view is that the opposition to the Iran deal was politicized/partisan. I have written before on the blog about the deal being complicated but necessary because of Russia and China undermining the sanctions no matter what we wanted. But even if one agrees with the opposition to the deal, one should recognize how his leadership of the opposition compromises his role for what must be a non-political position at the FBI in the middle of a politicized crisis.

But what is also disqualifying is his recent breach of professional ethics of disclosure. This year, Lieberman introduced Betsy DeVos as Trump’s nominee in Senate hearings, but he failed to disclose his conflict of interest because of his law firm’s close representation of Trump’s casinos and his campaign. Trump casinos have been penalized repeatedly for laundering money and are suspected of being the origin of Trump’s Russia ties. Lieberman’s firm represented Trump during campaign, and threatened legal action against the New York Times for publishing his taxes.  You can read more here.

More on conflicts here.

I hope the rumors are wrong, and I hope that Trump will not nominate Lieberman. If he does, it will be challenging to overcome the Senators’ self-aggrandizing pseudo-aristocratic view of their own Senatorial privilege of collegiality, almost literally an Old Boys Network. Lieberman is has lost that privilege with his lack of professionalism, and Trump must not be allowed to exploit it.




Once upon a time, we celebrated “Fitzmas.” (The 2005-06 Fitzgerald investigation into Valerie Plame leaks by Rove and Libby) Now do we await “Muell-tide” (Myule-tide)? That’s better than Muellukkah. [A twitter follower @jhohos suggests “Mueller Time,” and that’s even better]

We have lots to anticipate optimistically. The Mueller appointment is outstanding. This riveting must-read article is one reason why: