Blog on the Run: Reloaded

Thursday, November 8, 2018 1:19 pm

In which Trump moves on Sessions like a bitch

The day after the midterms, Dolt 45 fired Attorney General Jeff Sessions and replaced him with acting Attorney General Matt Whitaker. Now, granted, no one is going to miss Sessions; a Twitter wag described the firing as the first time that Trump had taken down a Confederate monument. But Trump had been expressing frustration for a long time that Sessions had recused himself from special counsel Robert Mueller’s investigation into possible money laundering, obstruction of justice and conspiracy of the Trump campaign with Russia to interfere with the 2016 election. This move offers Trump an opportunity to take more direct control over the probe because Whitaker has not recused himself.

This isn’t quite the equivalent of Nixon’s Saturday Night Massacre, but it’s not good. Sessions had been so close with the Trump 2016 campaign that he had had to recuse himself from Mueller’s investigation, leaving it the hands of Deputy Attorney General Rod Rosenstein, who appears to have given Mueller both adequate leeway and adequate funding to do his job correctly. (In fact, given the financial forfeitures of some of those Mueller has convicted, the taxpayers are more than $10 million ahead of the game on this investigation to date, and there’s probably more profit where that came from. That money doesn’t go directly back into the investigation, of course.)

But Trump has made clear that oversight responsibility for the investigation now will rest with Whitaker instead of Rosenstein. It’s worth noting that when a Cabinet secretary leaves office, his/her deputy — Rosenstein, in this case — normally would be appointed acting agency head. That didn’t happen here. And that’s not good at all. Consider:

  • Whitaker in 2017 said he didn’t see anything wrong with Donald Trump Jr.’s meeting with Russians in Trump Tower:
  • Whitaker was associated with a D.C. nonprofit called Foundation for Accountability and Civic Trust whose main goal in life seems to be ginning up bullshit criminal cases against prominent Democrats:
  • Whitaker said in 2017 that the Mueller probe was “going too far”:

A number of Democrats already have called for Whitaker to recuse himself. Worse for Trump, Rep. Elijah Cummings, the incoming Democratic chairman of the House Oversight Committee, already has said his committee will be looking into Sessions’s firing. One possible result could be a criminal referral to the Justice Department for obstruction of justice.

(Also, the Mueller investigation aside, Whitaker appears to be just the kind of bigoted jackass that progressive and moderate voters indicated on Tuesday they’ve had enough of.)

Now, a lot of people are presuming that Whitaker’s appointment means that Trump intends to fire Mueller. And, legally, Trump could. The question that that would raise would be whether such a firing would constitute obstruction of justice, as Cummings is hinting. I am not a lawyer, and I don’t know that there’s a solid legal consensus on this issue, but I’ve seen social media posts from three or four lawyers unrelated to one another who have said that the firing would be evidence of the “consciousness of guilt.” (Remember, the whole reason there’s an obstruction-of-justice investigation in the first place is that Trump fired FBI Director James Comey in 2017 and said that he had done so because of the FBI’s Russia investigation. The uproar over THAT firing led to the appointment of Mueller as special counsel.)

However, if Trump wants to slow or halt the probe, he has other options.

He can have Whitaker eliminate the wide latitude Mueller currently enjoys under Rosenstein, restricting the probe to certain isolated subjects and people to ensure that Trump and those closest to him face no federal criminal exposure. (Possible state crimes are a whole ‘nother issue, of course, and Trump has no control over those investigations.) Or he could just direct Whitaker to, in effect, defund the investigation. A number of folks on Twitter jokingly suggested a GoFundMe for the Mueller probe if that happens. I’d support that, although that money, like the forfeitures already received, under the law could not go into the probe without having been appropriated by Congress, which the GOP-controlled Senate ain’t gonna do. (UPDATE: The appropriations bill for FY19 having already been signed into law, Mueller’s office is fully funded — at about $10 million — through next Sept. 30.)

But Trump has fewer options than he thinks.

According to the experts at the Lawfare blog, Whitaker might have to recuse himself whether Trump likes it or not:

The relevant Justice Department guideline is Section 45.2 of Title 28 of the Code of Federal Regulations, which states that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with” either “any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or “any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

Although the regulations do not indicate that Whitaker’s public statements alone necessarily require recusal, Whitaker has other connections to people whose conduct is at issue in the matter. For instance, the regulations define a political relationship as “a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof.” Rebecca Ballhaus of the Wall Street Journal reports that Whitaker chaired the 2014 Iowa state treasurer campaign of Sam Clovis, who went on to serve in the Trump campaign and administration and who, Ballhaus notes, is now a grand jury witness in the Mueller investigation. The Des Moines Register reported Whitaker’s chairmanship of Clovis’s campaign during the campaign itself. What’s more, in a text message to Ballhaus after Whitaker’s appointment, Clovis wrote that he was “proud of my friend,” referring to Whitaker, raising the question of whether there is a personal relationship as well.

There is an important process point here: Under the same Justice Department regulation mentioned above, Whitaker is obligated to seek guidance from career ethics attorneys regarding whether he should recuse. This is the process Jeff Sessions used in determining that the rules required that he recuse, and Deputy Attorney General Rod Rosenstein also sought guidance regarding his obligations, though Justice officials determined that his recusal was not required. If Whitaker either does not obtain an ethics opinion from career officials or if he departs from that guidance, that would be a serious red flag.

Also, Trump already knows that come Jan. 3, the House Oversight Committee will be looking into Sessions’s firing. And if Mueller gets fired, I would think that any of several House committees would be happy to subpoena him as an expert witness on Trump’s finances. Who knows where that could lead? (UPDATE: I’ve also seen it suggested that if Mueller gets fired, a House committee could hire him as an investigator.)

There even are a few current and incoming Senate Republicans willing to join hands with Senate Democrats long enough to protect the Mueller investigation, as Lawfare points out:

Mitt Romney, now the senator-elect from Utah, stopped short of calling for Whitaker to recuse himself, but said it is “imperative that the important work of the Justice Department continues” and the Mueller probe “proceeds to its conclusion unimpeded.”

The Maine Republican Susan Collins also stated that “it is imperative that the administration not impede the Mueller investigation,” adding that she is concerned that “Rod Rosenstein will no longer be overseeing the probe,” and that “Special Counsel Mueller must be allowed to complete his work without interference—regardless of who is AG.”

And GOP Senator Lamar Alexander said the Mueller investigation will continue.

I’ll admit I’m not optimistic. For one thing, even if all three stand their ground, the likeliest outcome of Tuesday’s election seems to indicate that Republicans would still hold a Senate majority, perhaps with the help of Vice President Mike Pence. For another, after the Kavanaugh confirmation, we now know what Susan Collins’s word is worth.

And, of course, there’s is the huge factor that Donald Trump consistently, almost predictably, acts against the best advice he gets and his own interests. Journalist Josh Marshall and novelist John Scalzi coined the term “Trump’s razor” for this phenomenon: Every option being otherwise equal, Trump will always make the stupidest possible choice. If I were a betting man, I wouldn’t often have lost had I consistently bet accordingly.

So I think Trump will fire Mueller and dare somebody to do anything about it. That puts Republican officeholders — at all levels — in a serious predicament, for, as Conor Friedersdorf observes in the Atlantic article linked above:

After Wednesday, elected officials in the Republican Party should have no doubt that Donald Trump will force them to choose in coming days, weeks, and months between loyalty to him and loyalty to the rule of law, between the public’s right to the truth and Trump’s efforts to hide it.

They’ve sworn an oath of loyalty to the rule of law. Let’s see how many of them meant it.

 

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