MESO-Rx
Anabolic Steroids
Trump Timeline ... Trumpocalypse
- Thread starter CdnGuy
- Start date
Senorman
Well-known Member
Shortly before the holidays, I received a call from New York Times reporter Michael Schmidt asking me to meet with him about some reporting he had done. Schmidt did not describe the subject until we met up, when he went over with me a portion of the congressional interview of former FBI General Counsel James Baker, who was then my Brookings colleague and remains my Lawfare colleague. When he shared what Baker had said, and when I thought about it over the next few days in conjunction with some other documents and statements, a question gelled in my mind.
Observers of the Russia investigation have generally understood Special Counsel Robert Mueller’s work as focusing on at least two separate tracks: collusion between the Russian government and the Trump campaign, on the one hand, and potential obstruction of justice by the president, on the other. But what if the obstruction was the collusion—or at least a part of it?
Late last year, I wrote a memo for Schmidt outlining how I read all of this material, a memo from which this post is adapted.
Today, the New York Times is reporting that in the days following the firing of James Comey, the FBI opened an investigation of President Trump. It wasn’t simply the obstruction investigation that many of us have assumed. It was also a counterintelligence investigation predicated on the notion that the president’s own actions might constitute a national security threat: ...
The following is an adaption of the memo I sent Schmidt. I have updated it in important respects in light of the reporting in the Times’s actual story. The analysis remains, however, tentative; I want to be careful not to overread the threads of evidence I am pulling together here.
...
What is the significance of all of this? I have two big takeaways.
First, if this analysis is correct, it mostly—though not entirely—answers the question of the legal basis of the obstruction investigation. The president’s lawyers, Barr in his memo, and any number of conservative commentators have all argued that Mueller cannot reasonably be investigating obstruction offenses based on the president’s actions within his Article II powers in firing Comey; such actions, they contend, cannot possibly violate the obstruction laws. While this position is disputed, a great many other commentators, including me, have scratched their heads about Mueller’s obstruction theory.
But if the predicate for the investigation was rooted in substantial part in counterintelligence authorities—that is, if the theory was not just that the president may have violated the criminal law but also that he acted in a fashion that may constitute a threat to national security—that particular legal puzzle goes away. After all, the FBI doesn’t need a possible criminal violation to open a national security investigation.
The problem does not entirely go away, because as the Times reports, the probe was partly predicated as a criminal matter as well. So the question of Mueller’s criminal theory is still there. But the weight on it is dramatically less.
This possibility, of course, raises a different legal puzzle, which is whether and under what circumstances the president can be a national security investigative subject of his own FBI given that it is ultimately he who defines national security threats for the executive branch. But that’s a question for another day.
Second, if it is correct that the FBI’s principle interest in obstruction was not as a discrete criminal fact pattern but as a national security threat, this significantly blurs the distinction between the obstruction and collusion aspects of the investigation. In this construction, obstruction was not a problem distinct from collusion, as has been generally imagined. Rather, in this construction, obstruction was the collusion, or least part of it. The obstruction of justice statutes become, in this understanding, merely one set of statutes investigators might think about using to deal with a national security risk—specifically, the risk of a person on the U.S. side coordinating with or supporting Russian activity by shutting down the investigation.
It was about Russia. It was always about Russia. Full stop.
THREAD ON WHETHER MUELLER REPORT WILL BE PUBLIC, AND @washingtonpost STORY ABOUT TRUMP HIRING MANY NEW LAWYERS TO ASSERT EXEC PRIVILEGE.
Short Answer: It will be public.
1.The special counsel rules, which I drafted at DOJ 20 years ago, contemplate 2 kinds of reports. One is a report from Mueller to the AG, at the close of his investigation: “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
2. That document is to be confidential. But there is a second, separate reporting requirement, which forces the AG to notify Congress “with an explanation for each action…upon conclusion of the Special Counsel’s investigation, including…
3. ... a description and explanation of instances (if any) in which the AG concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
4.That report must explain why the investigation has concluded, and any instance in which the AG overruled the Special Counsel. The provision was designed to ensure “Congressional and public confidence in the integrity of the process.”
5.Notably, we wrote the circumstances for an AG to overrule a Special Counsel very tightly—it has to violate “established Departmental practices.”
6. So, to take one hypothetical example, generic DOJ opinions about whether a sitting President could be indicted do not create an “established Departmental practice” about whether an individual could be indicted for successfully cheating in a Presidential election.
7.There is no DOJ established practice that says if a Presidential candidate cheats enough and wins the Presidency, that he gets a get-out-of-jail-free card.
8.There is one other important aspect to the regulations. If a Special Counsel is worried that the AG may cover something up, the regs give him an important weapon.
9.Because they require a mandatory report to Congress about any instance of the AG overruling a Special Counsel, they put the thumb on the scale of a Special Counsel telling the AG he will take a sensitive act and waiting for AG to say no. That triggers the reporting requirement.
10. It is a safeguard to prevent a cover-up, it creates a mandatory report to a separate and coequal branch of govt. So that is why I believe Mueller has a move left to play if Whitaker or Barr (if confirmed) try to stymie him and his full report.
11. Now the President can try to claim executive privilege. Nixon tried that, it didn’t turn out so well. He got crushed in the Supreme Court. Trump’s claim appears even weaker—much wont even concern presidential deliberations&the part that might (Comey) has been waived by Trump.
12.And here, there is another problem: Trump’s legal team has been saying they don’t think a sitting President can be indicted.
13. Leaving aside the point above in (6) and (7), the only way that claim makes any sense is if the President must be impeached first. Every real scholar who says a sitting President can’t be indicted couples that with a view that impeachment is the remedy.
14. So if the President asserts the view he can’t be indicted, he has to allow the turnover of all investigative material to Congress. Otherwise he would be no different than King George III, literally above the law.
15.This point is fleshed out in my NYT op-ed below. The key point is that even if you think Trump won't be indicted, his legal claims about his immunity from indictment set up&invite the launch of impeachment investigation+eviscerate his exec priv claims.
It’s time to put to rest any notion that President Trump’s signature tax cuts are paying for themselves. Anyone who says otherwise is lying with numbers.
A year after the $1.5 trillion tax-cut package took effect, economic growth has accelerated, just as Republicans promised it would when pushing the law through Congress. Growth appears likely to hit 3 percent for 2018, after adjusting for inflation, which is a full percentage point higher than the Congressional Budget Office forecast for the year in 2017. Not all of that increase is attributable to the tax cuts, but some of it is.
That’s good news for Republicans’ longstanding claim that cutting taxes would provide such an economic bump that additional tax revenue would flow in to make up for what was lost through lower tax rates.
But the bad news is that hasn’t happened. The additional tax revenue has yet to show up, even with stronger growth.
Data released this week by the budget office provides the first complete picture of federal revenues for the 2018 calendar year, when the tax cuts were in full effect. (The government’s 2018 fiscal year included three months from the end of 2017, when most of the tax cuts were not in effect.)
In the inaugural year of the tax cuts — with economic growth accelerating and the jobless rate falling to an 18-year low — federal revenues from corporate, payroll and personal income taxes actuallyfell.
That’s true whether you adjust revenues and growth for inflation — or not.
