Friday, January 26, 2018

It Almost Wasn't Mueller Time, Con't

The crew at Lawfare discuss the revelations of Donald Trump's attempt to fire Robert Mueller last June and what it means to the investigation and the White House going forward.

This new reporting fills in a disturbing picture of what was going on behind the scenes at the White House during this time. The Times doesn’t peg Trump’s attempt to fire Mueller to a specific date in June, so it’s impossible to know whether Ruddy spoke to Woodruff before, after or just as Trump gave McGahn the order. But in any case, Ruddy’s worries about a presidential attempt to dismiss the special counsel appear to have been firmly grounded in reality.

Second, Trump’s apparent willingness to fire the special counsel in a fit of rage—even after experiencing the blowback that followed his dismissal of Comey—drives home the fact that his hints about firing other senior members of federal law enforcement are far from idle. Indeed, the Times broke this story only days after Axios reported that Attorney General Jeff Sessions had pressured FBI Director Christopher Wray to dismiss Deputy Director Andrew McCabe. As with McGahn, Wray reportedly threatened resignation and the attorney general ultimately backed off. So when Trump hints about firing Sessions or Rosenstein, it should be clear that they may be in real danger. On the other hand, as Jack Goldsmith argued on an upcoming special edition of the Lawfare Podcast, the fact that Trump could not get his own White House counsel to execute his will on this point shows that the president really is constrained in his apparent desire to shut down the Russia investigation. Particularly in combination with the Axios story about Wray, the incident paints a picture of a president who desperately wants to corrupt the justice system but just can’t get it done: malevolence tempered by incompetence, one might call it.

Third, in contrast to the many valid reasons to criticize McGahn’s White House tenure, this episode illustrates—at least in this instance—the White House counsel’s deft performance of his duties under difficult circumstances, perhaps even skillful management of a particularly ornery client. McGahn has not always behaved so admirably; he reportedly was willing to carry out Trump’s earlier instruction to pressure Attorney General Jeff Sessions not to recuse himself from this investigation. But in this instance, he allegedly managed to ride out a presidential temper tantrum, both offering the president reasonable advice and declining to carry out a presidential order clearly not made in good faith.

Fourth, the story also shows rather vividly how successful Ty Cobb has been in calming the president in the months since and persuading him to take a less adversarial posture—at least publicly—toward Mueller and the Russia investigation generally. Consider the difference between Trump in June, who actually gave an order to fire Mueller, and today’s Trump, who has turned over material the special counsel wants and allowed interviews with White House witnesses and has said he is even willing to be interviewed himself. Cobb seems to have convinced Trump that the path to making the Russia investigation go away lies in cooperation. If Cobb is correct that the Mueller investigation will end well for a cooperative Trump, this is all a laudable example of excellent client management. Cobb’s strategy, however, seems to rely on convincing Trump that the investigation is going to conclude in the near future if he just plays along. If Cobb is wrong on this point, and the investigation isn’t, in fact, close to wrapping up, then he may have simply deferred the June explosion to the date when Trump realizes that the end is not in sight. Thursday night’s story shows that this explosion, whenever it happens, can be pretty big.

Finally, congressional response thus far has tended to bolster the special counsel. Republican Senators Orrin Hatch and Jim Lankford tweeted vague support for non-interference by the White House, while Democrats Richard Blumenthal and Mark Warner were quick to declare that Mueller’s firing would cross a red line and endorsed bills designed to protect the special counsel investigation. In the end, the key constraint on the president’s ability to fire Mueller is the willingness of other actors to use their power to push back. As McGahn’s handling of the June episode shows, signaling a willingness to do so, particularly when done by Republicans, is a key deterrent.

Tim O'Brien at Bloomberg argues that the Mueller firing attempt story was leaked on purpose while Trump was out of town in Davos this weekend and the obvious source is McGahn himself.

Let's not pretend, however, that the president will remain subdued for very long. All of this transpired last June. Since then, Mueller has indicted or secured guilty pleas from four former Trump insiders for a variety of crimes. He's conducting interviews with senior White House officials and a meeting with the president apparently is on the horizon. As the temperature of his investigation rises, expect the president to act out in increasingly volatile ways, and to stretch the boundaries of the law to counter Mueller's probe.

What might that look like?

Trump has the power to fire Deputy Attorney General Rod Rosenstein, the official overseeing Mueller's probe, if Rosenstein doesn't obey a request to fire Mueller. Trump could then tear through the Justice Department's senior ranks, firing people until he finds one who would comply with his demands.

Although there's some debate among legal scholars about how much latitude the president would have for such a purge, Trump's previous maneuvering in this investigation suggests he believes he can do almost whatever he wants. That might explain why the Times report is surfacing now: Perhaps White House officials, perhaps even McGahn himself, are worried that the president is set again on toppling Mueller and they want to stop it (having the president safely tucked away in Switzerland and unable to counter-program probably helps).

McGahn also has much on the line himself. Last January, he met with Sally Yates, the acting attorney general at the time, after she told him that Trump's national security adviser, Michael Flynn, had lied to the White House about his contacts with a Russian official. McGahn invited Yates back the next day and asked her why the Justice Department cared if White House officials were lying to one another. Yates said that it would possibly give the Russians leverage to blackmail Flynn. As it turned out, the White House knew for weeks that Flynn hadn't been truthful about his communications with Russia -- and neither McGahn nor Trump apparently felt concerned enough to force him out.

If McGahn is now in Mueller's crosshairs, he might have decided that the simplest solution is to cooperate with the probe and turn over information in exchange for gentler treatment. In that scenario, McGahn becomes the source, directly or indirectly, of all kinds of interesting stuff for investigators and the media to ponder.

If you're still shocked that the key to the putative President of the United States is "tiptoe around him like he's a volcanic toddler" then you clearly haven't been paying attention. The orange l'enfant terrible is just that and eventually he's going to blow his stack again and come for Mueller, especially as the investigation closes in on his guilty family. 

It's possible McGahn did try to leak this to stop Trump.  But given the complete non-response from Republican in Congress, it's probably going to have the opposite effect: it just proved that Trump can and probably will get away with firing Mueller.  And hey, maybe that was the actual point of the leak too.



So far the GOP hasn't lifted a finger over any of these.  Why would they do so now?

One more note: reporter April Ryan had this story nailed back in June 2017.  It went nowhere then.  It should have, if only America would have listened to a black woman who knew damn well what she was talking about.

Stay tuned.
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