Let Me Be Very Clear Here

June 18, 2017–President Trump’s lawyers are running around today making all kinds of noise about “the president is not being investigated” for obstruction of justice. One of them, Jay Sekulow, then takes it back, telling Fox News that he can’t be absolutely sure because he can’t read the mind of Robert S. Mueller, the special counsel. Let me be very clear here. There are at least three reasons to suppose that Donald J. Trump is under investigation for that very thing.

First, Mr. Trump has said so. You may like Trump’s practice of tweeting or not. But– the way these recent tweets have been handled by associates–let’s call them the “investigation tweets”–is very interesting. White House spin doctors in the past have almost uniformly commented that the tweets stand on their own. In the case of the investigation tweets, however, they have tried to walk them back, alleging Trump to have been recycling things he heard elsewhere.

Second, is “subject of investigation” notice. The lawyers have been saying Mr. Trump has received no such notice. I have also heard there is no requirement the FBI give such a notice. I’m not sure that is true. But whether or not it is, as an investigative branch of the federal government it seems to me almost certain that, as a courtesy, the FBI would give such a notice to the chief executive of the United States. Since Mr. Trump personally adverted he is under investigation, that seems to lend weight to the original reading of the investigation tweets.

Third is the line-up of witnesses Special Counsel Mueller is preparing to interview. Dan Coats is of no interest as a figure in the Russia Caper. He is only important to investigators in the context of an obstruction inquiry. Mike Rogers of the NSA may be of some interest in the Russian affair in search of what the codebreaking agency had learned of Moscow’s activities during the period of the election. But Rogers has been specifically placed in the president’s office, and as having been telephoned by the president, in connection with the alleged obstruction. Mueller’s cast of characters makes the most sense in the context of an obstruction investigation.

The really interesting question is why President Trump’s lawyers should want to muddy the waters in this fashion. Think on that for a while.

 

More on Contempt of Congress

June 16, 2017–Today’s New York Times responds directly to the posts here yesterday and two days ago (“Obstruction Starts to Come into Focus,” June 15; “Jeff Sessions’ Looking Glass,” June 14) about contempt of Congress. Correspondent Charlie Savage enlightens us on the details (his article is titled “On Executive Privilege and Sessions’ Refusal to Answer Questions”). Justice Department officials dragged up two pieces of paper to show an explicit claim to–let’s call it “potential-presumptive executive privilege,” where the president had asserted no such claim but the individual resisting answering an inquiry uses it as authority to refuse an answer.

Both these documents date from 1982. Only one was presidential–President Ronald Reagan signed a directive in November 1982 governing response procedures for “this administration.” On the face of it Reagan’s assertion had no power on any other president. Moreover, the “policy” was swept away in the Iran-Contra Affair.

The second document was a paper from Justice’s Office of Legal Counsel (OLC), an August 1982 memo titled “Confidentiality of the Attorney General’s Communications in Counseling the President.” The OLC paper carved out a legal argument for presumptive privilege, but, Charlie Savage reports, it never addressed to the specifics of refusing to answer questions when under oath. OLC is also the entity that produced the notorious “torture memos” of the George W. Bush administration. There are two points to make here. First, here is a fresh example of why OLC papers are way overvalued when people attribute the power of court opinions to them. Second, the Reagan-era OLC opinion had no weight after January 1989. Other administrations needed to have joined with Reagan to make this a “longstanding policy.” Bottom Line: there is no such authority.

The Times also refers to an event of the Obama presidency as another exercise of the “potential privilege” power. This came during the Senate intelligence committee’s investigation of the CIA torture program, when agency officers hacked Senate committee computers and removed 10,000 pages of documents from them which the CIA had previously furnished to the Senate. (You will be able to read much more about this episode in my forthcoming book The Ghosts of Langley [New Press].) Savage describes this material as “notes of briefings and [White House] Situation Room meetings.” If so, the outrage is magnified, since the CIA itself declassified notes of these types to its own officers for them to use in an effort to discredit the Senate intelligence committee report on CIA torture. That kind of self-dealing is unacceptable.

Mr. Davidson referred to–and journalist Savage reported–the practice of halting testimony with a point of order and asking the committee chairman to overrule the witness. This has not happened in Davidson’s experience. But there was plenty of that in Congress right through the 1970s. This is the time to bring back an old practice. As I said in this space two days ago, by not enforcing its authority the Senate intelligence committee here is helping to kill democracy in America.

Obstruction Starts to Come Into Focus

June 15, 2017–Just very quickly, because I am on something else. You are beginning to see the reasons why President Trump had an interest in having his officials stonewall at their congressional appearances. For Coats or Rogers to have confirmed that the president even mentioned to them the possibility of speaking out in behalf of Michael Flynn or, worse, pressing FBI Director Comey to drop the Flynn inquiry, would be disastrous for Mr. Trump. Our information is that the special counsel opened a wider inquiry on Donald Trump, to include obstruction of justice, shortly after the president fired Comey on May 9. Federal rules require the FBI to inform a person when they become the subject of an inquiry. Thus Mr. Trump was aware of that investigation from about mid-May. His officials, including the lap dog Jeff Sessions, testified at the Senate intelligence committee in June.

Mr. Trump could not openly claim executive privilege for his officials. There is legal precedent for criminal inquiry trumping (!!) privilege. The court hearing would merely worsen the president’s position–and his claim could itself be construed as a further act of obstruction. Mr. Trump could not claim secrecy–you saw in this space yesterday a citation to the statute that prohibits that. In addition there are prima facie grounds to argue that a personnel change is not secret. Trump’s minions were thus forced to contrive some excuse to justify their refusal to testify. An extremely awkward formula (of pretending to reserve the president’s ability to claim privilege later) was the result.

I continue to believe the Senate’s proper response, at the second (or was it the third? the first two occurred during the same hearing) instance of this maneuver, would have been to hold the witness in contempt.

Jeff Sessions’ Looking Glass–or is it America’s?

June 14, 2017–Yesterday the nation was treated to another deplorable performance by someone who is supposed to be an American leader. In fact, as attorney general, Jeff Sessions is supposed to exhibit sterling qualities, to be the president’s sidekick in the promised draining of the swamp. Instead we saw a small man, diminished further by his squirming, jumping, running away from questions. Mr. Sessions’ responses to the questions he did answer were denials that ranged from flimsy to vague. His invocation of an alleged Justice Department policy regarding non-executive privilege refusal to respond I will comment upon in a moment. Mr. Sessions was again under oath in this meeting with the Senate intelligence committee. I submit to you the odds are better than even that before this affair ends, Sessions will be revealed to have perjured himself again in that testimony. Far from draining the swamp, Mr. Sessions is dredging it deeper.

As for the alleged Justice Department “policy,” former DOJ employees were on the news shows last night saying they never heard of it. Sessions himself, after invoking this “policy,” could not say whether it was written or something in lore, could not say if he had read it (???!?!!–which means he either has no such policy or he has such short term memory problems that his ability to serve as attorney general is in question), and could not quote it as his authority. Today’s New York Times reaches back to the Iran-Contra scandal to find an instance where cabinet officials refused to answer a question in a similar fashion. That’s a poor precedent because in Iran-Contra there was an actual constitutional transgression from which to shield the president.

Here’s what we do know: that two senior intelligence community characters, director of national intelligence Dan Coats, and National Security Agency director Mike Rogers, adopted the identical approach of refusing to answer questions on the phony grounds that the president, in the future, might assert privilege over those subjects (but had not in fact done so at the moment testimony was given). It is far more likely that Sessions’ calculation was “if Coats and Rogers could get away with this, so can I.”

Jeff Sessions squirmed through his testimony, alternately lashing out (dastardly “secret innuendo” circulated about him) or pretending to ignorance (being forced to confront vague charges glimpsed through a “looking glass”). But Mr. Sessions knows very well the story Congress is trying to find out, and he must know that his actions as attorney general have created real questions as to propriety. His plaintive cry–aimed at Jim Comey–to “tell me what” the material act was that would have obliged his recusal from inquiries into the Russian Caper–followed by his strident claim that “of a certainty” there was no such thing–will ultimately escape perjury charges only because supporters will argue they were expressions of opinion rather than assertions of fact. In the meantime the question is, will Sessions get away with his behavior.

So far he has. All through the Sessions testimony I sat waiting for the senator who would stop and say, “Mr. Chairman, point of order, this witness is acting in contempt of the Senate.” The intelligence committee, in seeking information of direct relevance to its investigative purpose, is the body following a longstanding (and written) policy. The power of Congress to investigate was set in law more than a century ago. In connection with the specific refusals by Coats and Rogers, the National Security Act of 1947 explicitly provides, “Nothing in this Act shall be construed as authority to withhold information from the intelligence committees on the grounds that providing information to the committees would constitute the unauthorized disclosure of classified information” (50 U.S.C. 413, sec. 501 (e)).

Trump administration officials are here attempting to carve out a wholly new rationale with which to deny information to Congress and the public. Democracy begins to die when executive powers believe they can act with impunity, and outside checks and balances. Sessions should have been held in contempt, not just because he was withholding information from a duly authorized congressional investigative body, but because he was participating in the construction of a wall to insulate the executive branch from proper oversight. The Senate intelligence committee demonstrated its powerlessness by failing to enforce its right to investigate. Chairman Richard Burr and the Republican members of the committee, by putting partisanship ahead of the authority of the Senate, are establishing their irrelevance. The Democratic members, by failing to pose the point of order, are acquiescing in that act. Democracy in America took a hit yesterday.

Trump’s “Satellites”

June 10, 2017–So, like Nixon at Watergate, The Donald does not mind jettisoning minions to avoid the hammer of justice descending upon his own head. There has already been a good deal of attention devoted to a set of individuals directly involved in the Russia Caper, but what about those people who work for President Trump within his own administration? Who might those “satellites” be?

Jeff Sessions: Let’s start with the Attorney General, both because of his prime position but also because former FBI director James B. Comey hinted during his June 9 testimony before the Senate intelligence committee that the Bureau was aware considerably in advance of things in his record that would oblige Sessions to recuse himself from investigations related to the Russia Caper. Apart from his potential vulnerability to Russia Caper charges, Sessions is open to perjury charges for sworn testimony before Congress. If Sessions did have vulnerabilities that required him to recuse himself, then his participation in the firing of James Comey opens him up to charges of conspiracy plus aiding and abetting illegal activity.

Sean Spicer: The president’s press spokesman of course has stood before the public day after day, effectively spouting lies. Some of those lies may have abetted the illegal activity. Also the degree to which he was witting of the rest, and the political advice he gave, may expose Spicer to conspiracy charges.

Political advice, public posturing, and leaking may expose Steve Bannon and Reince Priebus to charges of conspiracy and of leaking classified information.

Dan Coats, Mike Rogers, and Mike Pompeo, respectively the Director of National Intelligence, and heads of the NSA and CIA, have stonewalled Congress, opening them to contempt charges, since the National Security Act of 1947, as amended, explicitly provides that no order, charge, or other instruction may be cited to justify denying Congress any information necessary for its oversight role. Their stonewalling posture also aids and abets the cover up. President Trump also made an affirmative attempt to recruit Coats and Rogers to pressure the FBI to drop its investigation of Mike Flynn. If these officials either did as asked, or indicated to President Trump that they would do so, they would become active participants in an obstruction of justice. Depending on the advice they gave the president, the spooks may also be open to conspiracy charges.

H. R. McMaster : Here we’ve taken to calling the general “Appropriate Dereliction” McMaster for his excuses made for the Trump campaigners who asked the Russians for a backchannel on Russian communications links, an element of the Russian Caper conspiracy (which I am treating separately). Though that action represents a separate transgression, McMaster’s defense of it as completely “appropriate” is part of the cover up. If Donald Trump ordered McMaster to mount that defense, it would be an unlawful order and, as an active-duty Army officer General McMaster would be liable for carrying out an illegal order (Universal Code of Military Justice, 908– 890 (Art.90[20]); 891 (Art. 91 [2]); 892, Art. [1], [2]). If McMaster did this voluntarily and the conspiratorial act is found to have been criminal, then he is open to charges of aiding and abetting.

Stupid Foreign Policy = Damaged National Security

June 9, 2017–When President Donald J. Trump sashayed over to Europe on his first foreign trip, in this space we commented about the stupidity of the foreign policy. The context there primarily concerned NATO and how snubbing our great friends in the alliance was certainly not a good thing. Our coverage mentioned the fabulism involved in thinking that Israel and its Arab neighbors were moving along converging pathways. Now I want to return to the Middle East to show just how stupid all of this has been.

Let’s start with Syria. The cruise missile attack on the Russian-Syrian airbase has come and passed. As Jack Kennedy once said, it’s like taking a drink–after a while the effect wears off and you need another. Trump is there now. The U.S. is upping the ante, sending in more Special Forces for more active roles, and moving ahead with heavy arms for Syrian rebel troops. But since the target is ISIS, America is effectively ranging itself alongside the Syrian government (and against the rebels we are arming) and the Russians. This was a problem for Obama policy too–made in this space years ago now–but Trump has not solved it.

Next to Qatar. This one is all Trump. The president insists he encouraged the Saudis to act aggressively against supporters of terrorism. Saudi Arabia and a number of other locals–some of them on Trump’s travel ban list, by the way–joined together to ostracize Qatar. Now it happens that Doha, Qatar’s capital, is a main transit point for American soldiers headed for Afghanistan and a site for diplomatic contacts, with the Taliban, among others. Qatar also hosts Al Uedid, the major U.S. airbase from which the Syrian war is being conducted, as well as a sophisticated command center that wages it. Trump not only supports the Saudi initiative he went on twitter to claim credit for encouraging it. Saudi Arabia is angry at Qatar for supporting the other side in its Yemeni war. U.S. policy in that affair is completely at odds with our interests in Syria and Afghanistan.

Now Iran. The Trump-era CIA has just refashioned one of its mission centers to target Iran–with which we are supposed to be improving relations because they are keeping their side of the nuclear bargain (something the U.S. concedes). Worse, ISIS is now attacking Iran too. So, in Iran Mr. Trump now has the United States allied with ISIS?

President Trump’s grasp of American national interests is so tenuous that policy careens from pillar to post. Stupid foreign policy damages U.S. security.

[EDITOR: This piece was actually written to appear before the “update” on this website but it appears the posting instructions were entered incorrectly. Sorry!]

 

Update: Senate Torture Report

June 9, 2017–Some days are better than others. Yesterday North Carolina Senator Richard Burr seemed fairly reasonable in his questioning of James B. Comey before the Senate intelligence committee. Not long before that, Burr raised concern when he renewed earlier demands he had made that the federal executive return to the intelligence committee all copies of the SSCI report of its investigation into CIA torture and detention programs. That day was a pretty poor one.

The Obama administration took little formal action on Burr’s demand. Its Justice Department wavered on whether to declare the report a “federal record,” which would have ensured its perseveration and opened it to freedom of information requests. It ordered other agencies not to “open” their copies. The John Brennan CIA working to bury the report, interpreted that as an instruction to destroy copies in its possession. Now, under the Trump administration, Senator Burr is about to get his wish.

The publisher Melville House, which put out one of the printed editions of the executive summary of the committee study, is responding to this effort to put the report back in the secret vault by making its edition available to the public for free. Get in touch if you are interested.

Stupid = Damage : Update

June 9, 2017–The latest gem to percolate to the surface here is that President Donald J. Trump, when encouraging Saudi Arabia to bully the Persian Gulf nation of Qatar, did not know that there are 10,000 American servicemembers stationed at a Qatari airbase and command center. (Not to mention that nearby Bahrain, with its port Manama, serves as base for the U.S. Fifth Fleet, our Gulf battle fleet.)

Did not know? What kind of excuse is that? It is the responsibility of the president to know these things. When making decisions affecting U.S. forces, in particular, a president does not proceed without due deliberation. The president has an entire bureaucracy behind him precisely to ensure stupidities like this do not occur. No doubt Trump would like to blame his NSC staff, but the president was shooting from the hip in his conversations with the Saudis, and never consulted them. No doubt he would like to blame the State Department, but it is Trump himself who has done his best to ensure the diplomats have nothing to do, plus empty seats and desks to do it from. And Trump himself went on twitter to claim credit for this stupidity–apparently not even knowing it was that.

On the whole this was an average Trumpian performance. Not worse than usual and definitely not better. The arrogance is only exceeded by the incompetence. No wonder America’s allies now doubt us.

 

Watergate and its “Satellites”

June 8, 2017–Everyone here is abuzz with the testimony of former FBI director James B. Comey before the Senate intelligence committee. Some pundits are saying the remarks move us further in the direction of something akin to the Watergate scandal of 1972-1974, when the presidency of Richard M. Nixon was brought down by initial criminal acts, followed with attempts to cover them up. There are some distinct differences between what happened in America in 1972 and in 2016, but here I want to focus on two kinds of similarity.

The first is the initial conspiracy. In both 1972 and 2016 the future president would be insulated from conduct of the conspiracy. In 1972 that was handled by the attorney general (interesting, huh?) with his campaign unit called CREEP (Committee to Re-Elect the President). The conspiracy was embodied in a political “intelligence” plan presented at a briefing by CREEP official G. Gordon Liddy. Aside from Nixon’s attendance at that briefing there is no direct evidence of the president’s participation in the first stage plotting. For 2016 the political organization of the conspiracy has yet to come into focus, but it involves the characters who have been discussed here. In some combination they include Paul Manafort, Roger Stone, Michael Flynn, Jared Kushner, Carter Page, Jeff Sessions, and others. The apparent participation of candidate Donald J. Trump occurs at an April 2016 speech, where he is introduced to the Russian ambassador; and at the Republican party convention, where operatives collaborated to alter the party platform in a way that rewarded Russia, a move that required Mr. Trump’s approval.

The second element is the coverup. In both 1972 and, it now appears, 2016, presidents responded similarly to exposure of conspiratorial plotting. James Comey gave the word today for Donald Trump: in one of his conversations with the president, Mr. Trump (relieved the FBI director was telling him he was not, at that time, a subject of investigation) assured the FBI that he stood with them if they uncovered “satellites” among his campaign staff who had engaged in criminal activities. In other words, Trump stood ready to throw his minions under the bus. Richard Nixon, the same. Nixon first gave up his super-loyal chief of staff H. R. Haldeman, and counselor John D. Ehrlichman; later Mr. Mitchell; then other staff, until the harsh light of suspicion showed right in on him.

Watergate, it is always said, shows the coverup is worse than the crime. With Mr. Comey’s testimony the evidence mounts against Donald Trump. The coincidences in time between key points in the discovery of the Russian Caper and Trump’s actions (or the lack of them), the president’s efforts to get the FBI to shut down parts of its investigation (in Watergate Nixon attempted to get the CIA to shut down the FBI), the sacrifice of “satellites,” are all astonishing.

A few weeks ago a lot of people were swaggering around like lords of the manor. Today in Washington, it seems the worst possible thing is to be a “satellite.”

“Appropriate Dereliction” McMaster’s At It Again!

June 5, 2017–In case you thought I was too hard on Hal McMaster several weeks ago (“H.R. McMaster: Appropriate Dereliction,” May 17, 2017), here’s more–he’s at it again. Remember, by the way, that “dereliction” is his word, not mine. “Dereliction” is what McMaster accused the military’s top officers of doing when, during the Vietnam war, they hesitated to express their hard-nosed visions of reality to President Lyndon Baines Johnson. Today, General McMaster is doing the same, covering for our simpleton president instead of educating him. McMaster held that the Joint Chiefs of Staff were derelict in not resigning when LBJ kept to his own course. General McMaster today is also doing the same thing for which he accused the Joint Chiefs of dereliction. The word “appropriate” is also from McMaster. In his previous sally he excused the actions of President Donald J. Trump as entirely appropriate. Hence we have “Appropriate Dereliction” McMaster.

In a speech over the weekend to the “Global Forum” conference of the American Jewish Committee, General McMaster engaged in fantasy and articulated falsity. It is a fantasy to say, as “Appropriate Dereliction” did, that Israel and its Arab neighbors are on converging paths. McMaster and Trump may believe this is a moment of opportunity, but we will be unable to take advantage of any such chances if we misunderstand the national interests of the involved states and the global context which drives them. McMaster also asserted that President Trump, on a visit with NATO leaders, had reaffirmed United States support for Article 5 of the NATO treaty, which Trump did not do. Quoting Trump’s warm up before his denunciation of NATO allies as an affirmation is fake news. There is a reason why allies like Germany are running around questioning America’s steadfastness–and it’s not because Trump supports them. McMaster’s damage control effort is appropriate dereliction.

So is “Appropriate Dereliction’s” comment on Trump and the recent terrorist attack in London. Where the president is poking at British officials and using the incident as fodder for his own political goals, McMaster evades any reference to Trump’s major display and quotes merely the single statement of support the president made before misrepresenting the mayor of London. The United Kingdom is a NATO ally. How does Trump’s action square with Article 5? Appropriate dereliction again.

Seventy-three years ago today American and British troops–plus contingents from many nations that are now NATO allies, were in the middle of the English Channel, on their way to invade France, clear northwest Europe, and end World War II. The Joint Chiefs of Staff approved that mission. The architects of that operation and the postwar alliance would be aghast at the antics of “Appropriate Dereliction” McMasters.