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.

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.”

The Russian Caper

March 4, 2017–Even as two days ago Attorney General Jeff Sessions recused himself from any inquiry on the Russian caper, the Trump White House was busily asserting that Mr. Sessions was being improperly accused. Just another step in this delicate dance. Let’s review the latest developments in the story of the Russian caper.

First, the Russians. The evidence on them grows by the day. Yesterday the New York Times reported that Dimitri K. Simes, of the Center for the National Interest, introduced the Russian ambassador to the United States, Sergei I. Kislyak, to Donald J. Trump. That happened in April 2016 at a Center dinner. On March 2, Trump adviser Carter Page admitted on an MSNBC telecast, “All In with Chris Hayes,” that he had met with Ambassador Kislyak in Cleveland during the Republican Convention last July. Jeff Sessions who gave the nominating speech for Trump at Cleveland, also met with Kislyak at the convention. Michael T. Flynn, the retired Army general who initially led Trump’s national security staff, was in Cleveland too, but his contacts there with the Russian ambassador have yet to be established.

Now there are new skeins of yarn atop those. In the early days of the Trump campaign the candidate hardly had a foreign policy advisory shop. Just a few people, really, and Trump explicitly mentioned Carter Page as one of them. J.D. Gordon was another. Both participated in a Global Partners in Diplomacy round table event held at Case Western Reserve University during the convention, where they spoke afterwards with the Russian ambassador. Both men, when initially questioned, denied having met Mr. Kislyak. Equally to the point, Gordon had an official role at the convention as representing Trump’s interests on the Republican Platform Committee, and there he acted to block language in the party platform that would have condemned Russia’s aggressive actions in the Ukraine. Here the quid for the quo begins to come into view.

On July 25 the Federal Bureau of Investigation (FBI) announced it had begun investigating Russian hacking of the Democratic National Committee. Two days after that Mr. Trump virtually invited the Russians to hack America, in the guise of asking if they could find emails of Hillary Clinton that were missing from her computer servers.

Jeff Sessions saw the Russian again, in Washington at the then-senator’s Capitol Hill office, on September 8. According to the assorted reports on the Russian hacking from U.S. security services, the cyber intrusions peaked around May 2016. Readers of this space will know that already last year we observed that the American spies botched their inquiry into the Russian caper by serving up watered down evidence that permitted both the Russians and the Republicans wide scope for denial. But you can see in this chronology a logical progression– the Russian links with Trump, Russian cyber positions itself to act, Russians apparently all over the Republican convention, Trump invites them to do more, Kislyak sees Sessions at least one other time.

Sessions’s role is underlined by the odd way he responded at his confirmation hearing for Attorney General, when asked if he would recuse himself from any U.S. investigation of the Russian Caper. Sessions did not answer that question at all. Instead the nominee talked about his contacts with Russians: “I didn’t have–did not have communications with the Russians.” Since Senator Sessions was under oath when he said this, the categorical denial amounted to perjury.

Another key Trumpian power player, son-in-law Jared Kushner, had more contacts with Ambassador Kislyak during the transitional period following the November 2016 vote. The Washington Post reminds us of an important Russian comment, just after the election, from deputy foreign minister Sergei Ryabkov, who told the Interfax news agency not only that there had been Russian contacts with the Trump campaign, but went on, “Obviously, we know most of the people from his entourage.”

Now let’s bring back General Flynn. It became apparent shortly after Mr. Trump’s inauguration that, in December, when President Obama imposed sanctions on Russia to respond to the hacking, Flynn was on the phone to Kislyak the same day. The general lied to Vice-President Michael Pence about the contacts, leading the latter to spread falsehoods in defending the Trump campaign. Flynn’s lies were serious enough to force him to resign as national security adviser.

What is it that requires multiple participants to obfuscate, lie, or otherwise obscure their roles when asked about an activity? Guilty knowledge. This is not an individual event. There is a pattern here. Whether or not the conspiracy was criminal can be established only by investigation. The FBI itself is not entirely in the clear. Its questionable role adds to the mystery. It’s a good thing Mr. Sessions recused himself, but I fear America is going to need more than that to get to the bottom of this.