Rational Calculation

Nate Silver and Ned Price disagree as to whether Times reporters Michael Schmidt and Nicholas Fandos correctly portray the White House as "calculating" because

The Trump administration directed a top American diplomat involved in its pressure campaign on Ukraine not to appear Tuesday morning for a scheduled interview in the House’s impeachment inquiry.

The decision to block Gordon D. Sondland, the United States ambassador to the European Union, from speaking with investigators for three House committees is certain to provoke an immediate conflict with potentially profound consequences for the White House and President Trump. House Democrats have repeatedly warned that if the administration tries to interfere with their investigation, it will be construed as obstruction, a charge they see as potentially worthy of impeachment.

Democrats from the House Intelligence, Foreign Affairs and Oversight committees did not immediately respond on Tuesday.

But in making the decision, hours before he was scheduled to sit for a deposition in the basement of the Capitol, the Trump administration appears to be calculating that it is better off risking the House’s ire than letting Mr. Sondland show up and set a precedent for cooperation with an inquiry they have strenuously argued is illegitimate.

Or the White House may be panicked as all hell and not really calculating rationally at all.... https://t.co/HPjqRhaOH5

— Nate Silver (@NateSilver538) October 8, 2019

I'm throwing in with Price. As Lawrence O'Donnell's guest James B. Stewart, lawyer, NY Times columnist, and author of the intentionally ironically titled "Deep State" explains, then-Acting Attorney General Rod Rosenstein twice raised the possibility of invoking the 25th Amendment to rid the nation of President Trump. He even approached Attorney General Sessions and Chief of Staff Kelly in the  effort and (as seen beginning at 3:37 of the video below)

....the Justice Department was drafting the press release that he was fired when he went over there (summoned by Trump). He was being taken to the woodshed. Everybody knew, the New York Times had printed that he was going to wear the wire. Trump was ready to fire him.

Somehow, he left with his job intact.What did he do to keep his job and reassure Trump? And then, in turn, what did he do to keep Mueller in the job? I mean, he was Mueller's boss. What did Muellerhave to do or not do in order to keep from being fired by Rosenstein?

Now, Rosenstein's colleagues say to me, in his defense, that his sole mission was to protect Mueller. He did what he had to do to get Mueller over the finish line.

But if the price of getting him over the finish line was to clip his wings, to not let Mueller insist on getting testimony from the President (as every prosecutor I now believes he should have done), then for Mueller to have ignored the whole story of Rosenstein in his report- which I report in my book but he didn't put in the report- and I now he knew it because Rosenstein was one of the first people he interviewed, why that wasn't in there remains very baffling and I think leads to legitimate suspicion that Mueller was influenced to, you know, pull some punches there.

In turn. Whatever it was that got Mueller "to pull some (extremely important) punches," the President knew what it was. This is not the portrait of someone stupid, crazy, out of control, or even more than reasonably panicked. It is someone whose instincts of self-preservation are very much intact, just as they were when he or his lawyers decided Tuesday morning that it would not be wise to have Gordon Sundland spill his guts, or even some of them.

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Semper Fidelis, Mr. President

There are a few exchanges which took place on Wednesday before former Special Counsel Robert Mueller and two congressional committees which are emblematic of the investigation of Russian interference in the 2016 presidential election. They include the following:

MUELLER: I was going to say, the expectation was, if we did subpoena the president, he would fight the subpoena and we would be in the midst of the investigation for a substantial period of time.

MALONEY: Right, but as we sit here, you’ve never had an opportunity to ask the president, in person, questions under oath, and so obviously that must have been a difficult decision. And you’re right, appendix C lays that out, and indeed, I believe you describe the in-person interview as vital. That’s you word.

And of course, you make clear, you had the authority and the legal justification to do it, as you point out. You waited a year, you put up with a lot of negotiations, you made numerous accommodations, which you lay out, so that he could prepare and not be surprised. I take it you were trying to be fair to the president. And, by the way, you were going to limit the questions, when you got to written question, to Russia only.

And, in fact, you did go with written questions after about nine months, sir, right? And the president responded to those and you have some hard language for what you thought of those responses. What did you think of the president’s written responses Mr. Mueller?

MUELLER: It was certainly not as useful as the interview would be.

MALONEY: In fact -- in fact, you pointed out, and by my count, there were more than 30 times when the president said he didn’t recall, he didn’t remember, no independent recollection, no current recollection and I take it by your answer that it wasn’t as helpful, that’s why you used words like incomplete, imprecise, inadequate, insufficient. Is that a fair summary of what you thought of those written answers?

MUELLER: That is a fair summary. And I presume that comes from the report.

Mueller "put up with a lot of negotiations" and made "numerous accommodations," yet did not issue a subpoena. However, it's easy to miss the red flag when Democrats spent yesterday (and the prior two years) touting the personal and professional resume of the ex-Marine. Continuing:

MALONEY: And yet, sir, and I ask this respectfully -- by the way, the president didn’t ever claim the Fifth Amendment, did he?

MUELLER: I’m not going to talk to that.

Mueller wouldn't talk about that because Mueller spent the day refusing to answer questions, over 200 times in all. Please continue, Representative Maloney:

MALONEY: Well I -- from what I can tell sir, at one point it was vital and then at another point it wasn’t vital. And my question to you is, why did it stop being vital, and I can only think of three explanations. One is, that somebody told you couldn’t do it, but nobody told you couldn’t subpoena the president, is that right?

MUELLER: No, we understood we could subpoena the president.

MALONEY: Rosenstein didn’t tell you, Whitaker didn’t tell you, Barr didn’t tell you, you couldn’t ...

MUELLER: We could serve a subpoena.

Of course, Mueller could serve a subpoena. Neither the Attorney General nor the Assistant Attorney General stood by the employee, waiting to snatch out of his hands any subpoena he might obtain. However, in the same manner, you could walk into your boss' office tomorrow, call him or her a bumbling fool and even accuse the latter of having an affair with your spouse. You could, and you'd be fired. Mueller did not have to be explicitly told. Barr did not explicitly prohibit a subpoena, thus the congressman continued:

MALONEY: So, the only other explanation -- well, there’s two others I guess, one, that you just flinched. That you had the opportunity to do it and you didn’t do it. But sir, you don’t strike me as the kind of guy who flinches.

MUELLER: I’d hope not.

If ever there were an investigation which featured flinching as its animating characteristic, this was it. Nevertheless

MALONEY: Well then the third explanation -- I hope not too sir. And the third explanation I can think of is that -- is that you didn’t think you needed it. And in fact, what caught my eye was page 13 in volume 2, where you said, in fact, you had a substantial body of evidence and you sight a bunch of cases there don’t you, about how you often have to prove intent to obstruct justice without an in-person interview, that’s the kind of nature of it, and you used terms like a substantial body of evidence, significant evidence of the president’s intent.

So, my question sir is, did you have sufficient evidence of the president’s intent to obstruct justice and is that why you didn’t do the interview.

Robert Mueller pointedly refused in his report to state that the President attempted to commit obstruction of justice or any other crime. Yet he did not interview Trump because, we are to believe, he had sufficient evidence of the President's intent to obstruct justice. This makes a great deal of sense, in some alternate universe.

MUELLER: No, there’s a balance. In other words, how much evidence you have that would satisfy the last element, against how much time are you willing to spend in the courts litigating a -- the -- interviewing the president?

MALONEY: In this case, you felt that you had enough evidence of the president’s intent?

MUELLER: We had to make a balanced decision in terms of how much evidence we had, compared to length of time it would take...

It seems from the testimony above that it would have taken too darned long for the Special Counsel's office to obtain a subpoena to ascertain the truth in the most important investigation of a President in United States history.

It would have taken a minimum of time for the Special Counsel to request a subpoena and the Office of the President to tell said lawyer to go suck an egg. Mueller then would have had additional evidence of obstruction of justice while the American people would have more clearly understood that the President was not cooperating with the investigation and had much to hide. But, "the length of time it would take."

There are several possible reasons that no subpoena for a personal interview was pursued with the guy who said "Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing."

Both Mueller's report and testimony elicited Wednesday established that President Trump asked White House Counsel Don McGhan to fire the Special Counsel, then asked him to create a false report to cover it up.  Moreover, there was widespread and intense speculation during most of the investigation that the President either would have fired Mueller (directly or indirectly) or replaced Assistant Attorney General Rosenstein with someone who would do so.

Given that neither the Special Counsel nor his staff was hermetically sealed, walled off from all news media and gossip surrounding the investigation, it is virtually certain that Robert Mueller understood throughout that his days might be numbered. It was widely- including, probably, by Trump's personal attorneys- that the President could not make it through an interview without telling a whopper or two or three, thereby obviously committing perjury.

Obtaining a subpoena mandating the President's appearance would have set the President off.  TheRubicon would have been crossed and Special Counsel Mueller fired.

All that work he and his staff had done, Mueller realized, would have gone for naught. Except, of course, that it wouldn't have, inasmuch as even Nancy Pelosi at that point probably would have realized that impeachment proceedings were inevitable.

Whatever would have transpired in the Senate, a President of the United States of America would have been impeached. The loyal and decorated Marine would have let his Commander-in-Chief (not constitutionally, but still) down.  And maybe that is what Robert Mueller has been trying to avoid all along.

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Speaking The Unspeakable

Rod Rosenstein has submitted to President Trump his letter of resignation, concluding "America first," mimicking a successful campaign slogan. More significantly, he commented "I am grateful... for the courtesy and humor you often display in our personal conversations," an odd remark for someone holding a position in which he should have no personal conversations at all with the President of the United States of America.

The letter itself may be a plea for a nomination to a federal judgeship.  Taking a different approach,

 CNN anchorperson Don Lemon asked colleague Chris Cuomo Monday night “I’ve been wanting to ask you this. There have been reports about him, right. Do you think he’s a double agent type?”

We don't know, and may never know, whether Rosenstein simply was able to see beyond the horizon by recognizing that he had in Robert Mueller a man with impeccable credentials who could be rolled. We may learn what Rosenstein was up to if House Democrats succeed in having the now ex-Special Counsel testify, under oath, in public, and in a manner to elicit the most information. 

That is the only way in which it will be even possible to determine what Special Counsel Robert Mueller, who was appointed by then-Acting Attorney General Rosenstein, was thinking as he conducted an investigation, prepared a report, and looked on as the report was delivered to Congress. For now,  unfortunately, we have to lean on those few individuals who will question conventional wisdom, recognize a sort of Republican version of bait-and-switch, and have the courage to be politically incorrect.

The latter brings us, as it often does, to Bill Maher, who Friday evening noted "if Dostoyevsky had written the  report, it would be called 'Crime and No Punishment.'" He continued

Mueller's report is full of buts:  Don Jr. met with the Russians, but; Manafort gave internal polling data to a Russian, but; Trump obstructed justice every day, but....

Throughout, pundits, lawyers, and Democratic politicians have lionized Mueller as the stern and objective tough-guy ex-Marine who has selflessly and tirelessly served the public interest in both Republican and Democratic administrations. The image, which somehow has largely persisted even following release of the report., has not escaped the attention of Maher, who stated

Just because you have a stone face, doesn't mean you belong on Mt. Rushmore....

And you, tough guy, couldn't get the the President's taxes. You couldn't "follow the money?" You couldn't interview Trump, we're told, because he couldn't testify under oath without perjuring himself?" And that's our problem? It's one feckless punt after another.

Although a memorandum from the Office of Special Counsel investigating Nixon and one from the Office of Independent Counsel investigating Clinton argued that an incumbent president could be indicted, lawyers (with journalists and others following their lead) have been arguing otherwise. Unsurprisingly, in 1973, the Office of Legal Counsel under President Nixon's Justice Department, as well as the same office under the Clinton Justice Department in 2000, contended that a sitting president could not be indicted.

Despite the conflicting legal history, it became accepted wisdom that a President while in office is immune to indictment. Though (or maybe because) he isn't a lawyer, Maher understands

For a guy who didn't want to break precedent by indicting a president, Mueller sure created a lot of new precedents. That's what law is- new precedents. It's always evolving. You can't indict  a sitting president? It's not in the Constitution. It's not even a law. It's a guideline, like drinking white wine with fish or f _ _ _ _ _ _ your cousin. It's a f_ _ _ _ _ _ memo.

In a passive-aggressive manner, the Special Counsel seemed to be urging impeachment proceedings.  "While this report does not conclude that the President committed a crime," Mueller noted, "it also does not exonerate him." He acknowledged "if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state."  But Maher recognizes

The Attorney General is corrupt. The Congress is dysfunctional. What good is leaving a road map for impeachment if you know a tribal before party Republican Senate will never remove the President?.Bob, your trail of bread crumbs isn't good enough. We're not that smart anymore. America is an aging shortstop. You have to hit it right at us.

While the subject (Donald Trump) of the investigation was not interviewed in-person (and otherwise, only about collusion) and the President's taxes not requested (as far as is known)

To me, this report is summed up in the words "Donald Trump Jr. declined to be voluntarily interviewed." So make him. Was he too busy? You couldn't work around his tweeting schedule?

We don't know why Robert Mueller conducted a shoddy investigation, nor whether the apparent careerist Rod Rosenstein foresaw how it would play out or instead has some hidden interest in the rule of law or the quaint notion of equal standing under that law. However, it is clear that sworn testimony by Robert Mueller, though not sufficient, is necessary to determine what happened and why.

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A Very Good Day

One of the best days for Donald Trump in campaign 2016 was Halloween, when The New York Times misled the country with the headline "Investigating Donald Trump, FBI Sees No Clear Link to Russia."  Besides being highly misleading, it now appears- almost 30 months later- to have been flat-out inaccurate.

And one of (perhaps the) the best days of the Trump Administration transpired when The New York Times on September 21, 2008 reported

The deputy attorney general, Rod J. Rosenstein, suggested last year that he secretly record President Trump in the White House to expose the chaos consuming the administration, and he discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.

Rosenstein, as well as a Justice Department official present in the room denied that the remark was meant to be taken seriously, but almost no one bought that story and the damage was done. President Trump recognizes leverage when he sees it.

On October 17, 2018 the President met with Rosenstein on Air Force One, after which Trump- who has without evidence complained that President Obama wiretapped him-  declared he had "a good relationship" with the DAG, with whom he "had a very good talk." 

And a very good talk it probably was for Mr. Trump. Prescient Elie Honig and Mimi Rocah, both former US Attorneys at the SDNY, wrote a couple of weeks later

But the mere fact that Trump has summoned Rosenstein for the meeting creates an appearance—at a minimum—that Trump continues to try to exert influence over Mueller. That Rosenstein is attending the meeting similarly leaves open questions of what assurances he will have to give the president to remain in place.

Now we learn that Rosenstein was "teary eyed" in the meeting and told the President "I give the investigation credibility. I can land the plane." Pleading for his job, he then (and thereafter), told Trump that he believes the latter is being treated "unfairly,'" as described by The Washington Post.






The Post has reported that in Rosenstein's speech Thursday

“Some of the nonsense that passes for breaking news today would not be worth the paper it was printed on, if anybody bothered to print it,” he said.

He also criticized the Obama administration for not publicizing the “full story” about Russian hacking and social media influence operations.

Evidently concerned he wasn't being sufficiently transparent about his partisan bias, Rosenstein added “The rule of law is our most important principle. As President Trump pointed out, ‘we govern ourselves in accordance with the rule of law rather [than] . . . the whims of an elite few or the dictates of collective will’.”

A slightly more generous Elizabeth de la Vega, in two tweets, poses five questions (though #1 and #4 are similar):

 were there before the final went to Barr? What was Rosenstein's role in the editing/rewriting of the report before it became final? When the final version was submitted to Barr, how many pages were in it?

— Elizabeth de la Vega (@Delavegalaw) April 26, 2019

How much did Rosenstein water down the report before it became known as the final Mueller report? How much did Rosenstein "steer" Mueller away from areas of investigation and proposed courses of action? The entire process is in question. https://t.co/UZTUCXKhiW

— Elizabeth de la Vega (@Delavegalaw) April 26, 2019

"The big picture on Rod," Benjamin Wittes argues, "is extremely complicated."  Yet just barely, and without answers to questions such as those posed by de la Vega, it will become quite clear that Rod Rosenstein became severely compromised when reports of his threat to record the President emerged.  That report, as well as the one of September 21, 2008, could scarcely have been better for Donald J. Trump.

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