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Monday, December 09, 2019 {{ new Date().getDay() }}


Trump Claims He Has Presidential Power ‘That Nobody Has Ever Seen Before’

President Donald Trump has many verbal ticks that often act as tells about what he is really thinking or doing. For example, CNN fact-checker Daniel Dale has argued that when the president tells a story in which someone calls him “sir,” he’s usually lying. Another tell is that when Trump refers to a true fact that “no one ever knew” or that “people have no idea about,” it almost certainly means that the president himself just learned about this fact, even though it’s widely known.

Trump indulged in this tick during a gaggle with the press Friday morning when discussing the House of Representative’s ongoing efforts to get witnesses and officials involved in Special Counsel Robert Mueller’s investigation to testify.

Yet again, the president tried to argue that all the questions raised by the Mueller report about Trump’s ties to Russia and his potential obstruction of the investigation were moot.

“[Former Deputy Attorney General] Rod Rosenstein and [Attorney General] Bill Barr said there’s no obstruction,” Trump told reporters. “And also interesting: Number one, there’s no crime. And how do you obstruct when there’s no crime? Also, take a look at one other thing. It’s a thing called ‘Article II.’ Nobody ever mentions Article II. It gives me all of these rights at a level that nobody has ever seen before. We don’t even talk about Article II. So: They ruled no collusion, no obstruction. Very simple.”

There were many things wrong in these brief comments.

First, you can obstruct justice even if there was no underlying crime to be discovered; the law is written to allow for that possibility. Second, there were many crimes that Trump may have been trying to cover up by obstructing justice, including the criminal lies of his subordinates and his own involvement in a criminal hush money scheme during the 2016 election.

And with regard to “Article II,” Trump is referring to the second article of the Constitution that lays out presidential power. In fact, this is discussed all the time in politics, and it has come up frequently throughout Mueller’s investigation and in the aftermath of former FBI Director James Comey’s firing. Trump’s claim that “nobody ever mentions” it and that it gives him authorities and rights to act that “nobody has ever seen before” suggests that he has only recently become aware of Article II, its provision, and the debates over its scope.

Bringing it up in this context, Trump seems to be referring to an argument made most prominently by legal scholar Alan Dershowitz that presidents cannot obstruct justice by using the powers granted to them in Article II. Dershowitz’ view seems to be relatively idiosyncratic in the legal profession — most scholars likely wouldn’t buy this argument — but it’s worth considering. One person who did consider this argument, though, is Mueller. He argued forcefully in his report that president’s can, in fact, obstruct justice using presidential authorities if they do so with corrupt intent. Moreover, some of the acts of potential obstruction of justice that Mueller describes don’t even involve Trump’s presidential powers, so this argument may not even be relevant to many of the key episodes under scrutiny.

Watch the clip of Trump’s comments below:

Troubling Conclusion To Rosenstein’s Tenure At Justice

Deputy Attorney General Rod Rosenstein has been seen as a steadying force and source of integrity within the Justice Department under President Donald Trump’s tumultuous tenure, with his credibility bolstered by the action he’s most likely to be remembered for: appointing Robert Mueller to be special counsel overseeing the Russia investigation.

But as his time at DOJ is expected to soon come to an end, his credibility is beginning to crumble.

Indications that Rosenstein might not be quite the Boy Scout he’s portrayed himself as began to emerged when Mueller’s investigation wrapped up and Attorney General Bill Barr sent a letter to Congress summarizing its “principal conclusions.” The attorney general wrote that though Mueller had declined to conclude that Trump committed obstruction of justice — and also declined to exonerate the president — Barr and the deputy attorney general saw it as their role to step in. And they declared the evidence insufficient for such a charge against Trump.

Rosenstein’s role in this decision was presumably intended to give Barr additional credibility, since the new attorney general has already shown himself to be a deeply partisan figure. But Rosenstein’s input raised questions about the deputy attorney general, too. Why did he think it was OK to usurp the special counsel’s role and essentially reverse Mueller’s lack of exoneration? And perhaps more importantly — wasn’t such a decision wildly inappropriate, given that Rosenstein played a central part in firing former FBI Director James Comey, the key event in the obstruction investigation?

There have been no good answers to these questions.

And Rosenstein’s credibility has only tanked from there. Barr’s letter and the press conference he delivered ahead of the report’s release, with Rosenstein at his shoulder, have now been shown to be clearly deceptive by a full examination of Mueller’s findings. Mueller’s report was much more damning for Trump than Barr had let on. In some cases, it looks like Barr outright lied about it.

Yet Rosenstein has defended Barr.

“He’s being as forthcoming as he can, and so this notion that he’s trying to mislead people, I think is just completely bizarre,” Rosenstein told the Wall Street Journal before the report was released. Even if it hadn’t turned out Barr was as deceptive as he was, there was still reason to doubt Barr’s credibility given what was known at the time. Rosenstein’s incredulity was purely performative and only more damaging to his own case.

All this looked even worse Friday, when the Washington Post dropped a bombshell report about an incident in which Rosenstein was almost fired. Back in late September 2018, The New York Times had broken the story, since confirmed by former Acting FBI Director Andy McCabe, that after Comey was fired, Rosenstein suggested he might wear a wire when talking to the president. (Rosenstein has tried to cast doubt on the story.)

According to the new Post report, Rosenstein called Trump after the Times’ story broke and tried to save his job:

“I give the investigation credibility,” Rosenstein said, in the words of one administration official offering their own characterization of the call. “I can land the plane.”

Trump ended the call with Rosenstein thinking he was “on the team after all,” one senior administration official said, adding that the president has been further swayed by Rosenstein’s deference in meetings and other settings.

Rosenstein also told Trump he wasn’t a “target” of the probe. Trump was, however, a subject of the probe, and it is now clear that he would have been a target had he not been a sitting president.

The deputy attorney general tried to push back against the characterization of the Post’s account, denying any suggestion that he was capitulating to the president.

But in addition to the evidence discussed above that Rosenstein is less credible than he once was seen to be, the deputy attorney general delivered a speech Thursday night giving the impression that he really is on Trump’s team.

For example, he lashed out at the media:

A republic that endures is not governed by the news cycle. 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. It quickly fades away. The principles are what abide.

And then he criticized the Obama administration for its choices in response to Russia election interference, while ignoring the fact that the sitting president has denied (and encouraged) the attacks:

Some critical decisions about the Russia investigation were made before I got there. The previous Administration chose not to publicize the full story about Russian computer hackers and social media trolls, and how they relate to a broader strategy to undermine America. The FBI disclosed classified evidence about the investigation to ranking legislators and their staffers. Someone selectively leaked details to the news media. The FBI Director announced at a congressional hearing that there was a counterintelligence investigation that might result in criminal charges. Then the former FBI Director alleged that the President pressured him to close the investigation, and the President denied that the conversation occurred.

There, too, he conveniently elided how James Comey became the “former FBI director.”

He also favorably cited Trump on the “rule of law”:

We use the term “rule of law” to describe our obligation to follow neutral principles. 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.”

This was absurd on its face, given that the Justice Department just published a report that shows how extensively Trump tried to obstruct justice and undermine the rule of law. And of course, Rosenstein and Barr are helping Trump get away with his subversion of democratic principles.

In perhaps the strangest section of the speech, Rosenstein even seemed to get in a dig at Mueller himself, saying:

It is not our job to render conclusive factual findings. We just decide whether it is appropriate to file criminal charges.

Mueller’s report, in fact, showed that he took it as a responsibility of his investigation to create a thorough factual and analytical record of Trump’s obstruction efforts without recommending charges. What’s particularly strange about Rosenstein’s point on this matter, though, is that he knew what Mueller was doing all along and knew that Trump wasn’t going to be indicted. If he thought what Mueller was doing was somehow contrary to the Justice Department’s mission, why did he let it continue?

In his time at the Justice Department, Rosenstein has been criticized by people on both sides of the aisle. Much of the time, in fact, he was taking heat from Republicans and even the president himself for his role in the investigation. But at the close of the special counsel’s probe, and as his time as deputy attorney general comes to an end, Rosenstein seems to be undermining the whole point of appointing an independent special counsel in the first place by inserting himself and ingratiating himself to the president. It will leave him with a complex legacy to explain.

What Happened To Rod Rosenstein — And When Will He Testify?

Deputy Attorney General Rod Rosenstein appointed Special Counsel Robert Mueller to lead the Russia investigation, and he oversaw the probe until his boss, Attorney General Jeff Sessions, was forced to resign from the Justice Department.

But as the end of the investigation becomes ever more mired in controversy — driven by the actions of Attorney General Bill Barr and his lack of transparency — Rosenstein’s absence from the public stage is growing increasingly conspicuous.

Some of Barr’s most controversial decisions involve Rosenstein directly. In his letter summarizing the “principal conclusions” of the investigation, Barr said that Mueller had declined to reach a decision about whether President Donald Trump had committed the crime of obstruction of justice in the course of the probe, the special counsel left “it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” (It is far from clear this is what Mueller intended, however; many suspect he wanted Congress to make the final judgment.)

Barr said that he and Rosenstein together reached the conclusion that there was not sufficient evidence to conclude Trump obstructed justice.

Since this letter has come out, though, we have yet to hear publicly about Rosenstein’s thoughts on the matter from the man himself. (The Justice Department did not respond to a request for comment by the time of publication.)

This is significant for several reasons. Rosenstein, as the official who deemed it necessary to appoint Mueller in the first place, has more credibility than Barr in the investigation.  He was also a much more bipartisan pick to supervise the investigation — he was confirmed by a vote of 94-6 in the Senate, while Barr’s nomination was approved in a divisive 54-45 vote. The deputy attorney general consistently defended the investigation even as Republicans and the president maligned and attacked him. From this perspective, if he spoke out and affirmed Barr’s decisions, it could give them more credibility.

On the other hand, Rosenstein is in some ways even more conflicted than Barr. Arguably, Barr should have recused from the investigation because he drafted a memo attacking Mueller’s investigation the summer before he was appointed to the head of the Justice Department. But there’s an even clearer reason why Rosenstein should have been recused from the obstruction investigation: He is a key witness in any case against the president.

That’s because it was Rosenstein who wrote the justification that Trump used to fire former FBI Director Jame Comey. Comey was then overseeing the Russia investigation in May 2017, and while Rosenstein’s memo argued for his ouster because of his actions during the Hillary Clinton email case, Trump later admitted on TV that he fired the director because of “the Russia thing.”

This act triggered the obstruction investigation. But while Rosenstein was involved in this central act, he still oversaw the investigation for nearly two years, and we have now learned that he was a part of making the final decision about whether Trump’s behavior was criminal.

“It is very odd for someone to be supervising the investigation for which they are a witness, let alone a central witness to the underlying act,” Jed Shugerman, a professor at Fordham Law School, told The Atlantic. “It compromises the conclusion that they did not find a criminal act, because it gets Rosenstein off the hook in several ways.”

While this issue had been discussed in media, few major figures publicly called for Rosenstein’s recusal — perhaps because, for the reasons mentioned above, he was viewed as being almost uniquely credible. Now that assessment must be revisited. (Sessions, the attorney general at the time of Mueller’s appointment, was recused because he was involved in Trump’s campaign. For that very reason, though, it seems he shouldn’t have been involved in Comey’s firing, as he was.)

And in recent days, multiple outlets have reported that members of Mueller’s team are fuming about Barr’s handling of the investigation’s final report, believing he has misled the public about how damaging the findings are for the president. In response, Barr’s Justice Department appears to be going on offense. This only makes the fact of Rosenstein’s absence from the public stage even more troubling — is he really going to sit back while his boss and the vital investigation he oversaw are feuding?

This is particularly perplexing because Rosenstein was initially expected to leave the Justice Department in March. CNN reported in mid-March, though, that he decided to stay on longer to be a “heat shield” for any “fallout” from the Mueller probe.

Right now, he doesn’t seem to be absorbing any heat. So why did he stick around?

All of these circumstances surrounding the still developing conclusion of the Russia investigation make it paramount that Rosenstein come forward, address the concerns, and provide satisfactory answers. Congress is already preparing to have Barr testify, and Mueller will almost certainly be called before lawmakers. Rosenstein, too, must make an appearance and explain his actions to the American people.

Deputy AG Rosenstein Hints At Guidelines For Releasing Mueller Probe Details

Speaking at the Center for Strategic and International Studies on Monday, the typically enigmatic Deputy Attorney General Rod Rosenstein made waves with provocative comments that seemed to offer hints about the Justice Department’s approach to the release of any report from Special Counsel Robert Mueller’s Russia investigation.

One of the outstanding questions about any public release of the investigation’s findings concerns the president and how any discovery of his potential wrongdoing could be revealed, given that he is unlikely to face indictment while in office.  As Washington Post reporter Matt Zapotosky recounted, one portion of Rosenstein’s comments seemed particularly relevant to this question:

We’re eager to look to things that have gone wrong and figure out how we can best address them. one of the challenging issues we face in the department, and this is an issue that we’ll be discussing nationally, is the question of whether transparency is a good thing, and there’s a knee jerk reaction to suggest that we should be transparent about what we do in government, but there are a lot of reasons not to be transparent about what we do in government…
Just because the government collects information doesn’t mean that information is accurate, and it can be really misleading if you’re overly transparent about information that the government collects, so I think we do need to be really cautious about that. And that’s against not to comment on any particular case. There may be legitimate reasons for making exceptions, but as a general principle, my view is the Department of Just is best served when people are confident that we’re going to operate — when we’re investigating American citizens in particular — we’re going to do it with appropriate sensitivity to the rights of uncharged people …
The guidance I always gave my prosecutors and the agents that I worked with during my tenure on the front line of law enforcement were if we aren’t prepared to prove out case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.

He also, critically, made it clear that he has great respect for newly appointed Attorney General William Barr, who he said the country can count on to do the right thing. This is of paramount importance because Trump has repeatedly made it clear that he would like, if possible, to intervene in the Mueller investigation, which made his selection of Barr an immediately suspect choice. But Rosenstein, who first appointed Mueller, has an almost unique position of independence from Trump, and his confidence about the sitting attorney general speaks volumes.

Rosenstein also expressed confidence in the special counsel regulations themselves, noting that if Mueller (or any special counsel) were overruled on a key decision by the attorney general, a report would have to be sent to Congress to explain why.

Andrew Prokop


Rosenstein here stresses that, if Mueller “believed something should be done and we prohibited him from doing it, there would be a report about that to Congress at the end.”

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Unsurprisingly,  Rosenstein’s comments created a stir. Though he said, for the most part, that he wasn’t addressing any particular case, the principles he laid out shows how he thinks about some of the central issues regarding how to make the Mueller investigation’s findings public.

They also, notably, seemed to reflect his ongoing opposition to former FBI Director James Comey’s decision to publicize negative information about Hillary Clinton when the bureau wrapped up its investigation into her emails.

But his comments about the fact that transparency is not always a good thing when it comes to law enforcement, and that prosecutors shouldn’t make allegations unless they’re prepared to prove them beyond a reasonable doubt in court, seemed to touch directly on outstanding issues in the Mueller investigation.

“If you are expecting Mueller/DOJ to willingly release a report that blasts Trump or other, un-indicted people in his orbit, please read these remarks today from Rod Rosenstein, who appointed Mueller and supervised most of his investigation,” said Zapotopsky.

“This is both 100% correct,” said former DOJ spokesperson Matthew Miller said of Rosenstein’s remarks, “and in no way contradicts the need for DOJ to turn over to Congress evidence of wrongdoing by a sitting president, the one person against whom DOJ says it cannot make a case in court.”

There seemed to be at least two different ways of interpreting Rosenstein’s remarks. He could have been indicating that people shouldn’t expect a damning report about the president from the DOJ. Or he could be saying that, if Mueller brings forward such a case, it will be air-tight and of the sort that lays out clear and demonstrable criminal activity. This ambiguity is almost certainly intentional on Rosenstein’s part.

While he did note that there may be exceptions to the general principles he described – and if any position demands exceptions, the presidency does — we can be pretty confident Rosenstein was sending this message: At least for most people involved in the special counsel’s investigation, they will either be charged, or Mueller won’t say much about them. He’s not going to release a slew of troubling, but non-criminal, allegations against Trump’s allies or others in his circle. And while that may be disappointing to some, there are good reasons for valuing this adherence to principle.