Democrats ready to fight to make Mueller report public
By MARY CLARE JALONICK and HOPE YEN
Monday, February 25
WASHINGTON (AP) — A top House Democrat has threatened to call special counsel Robert Mueller to Capitol Hill, subpoena documents and sue the Trump administration if the full report on Mueller’s Russia investigation is not made public.
Rep. Adam Schiff, chairman of the House Intelligence Committee, said his committee will keep close watch on new Attorney General William Barr to see if he were “to try to bury any part of this report.” Schiff, D-Calif., also pledged to “take it to court if necessary.”
He said anything less than complete disclosure would leave Barr, who now oversees the investigation, with “a tarnished legacy.”
Schiff’s comments come as Democrats have made it clear that they are ready for an aggressive, public fight with the Justice Department if they are not satisfied with the level of access they have to Mueller’s findings.
Mueller is showing signs of wrapping up his nearly 2-year-old investigation into possible coordination between Trump associates and Russia’s efforts to sway the 2016 election. The report isn’t expected to be delivered to the Justice Department this coming week.
Barr has said he wants to release as much information as he can. But during his confirmation hearing last month, Barr made clear that he will decide what the public sees, and that any report will be in his words, not Mueller’s.
Schiff, in a television interview, suggested that anything short of Mueller’s full report would not satisfy Democrats. He pointed to a public interest in seeing some of the underlying evidence, such as information gathered from searches conducted on longtime Trump adviser Roger Stone and Paul Manafort, a former Trump campaign chairman.
With Democrats taking control of the House in January and Schiff now the committee chairman, he has undertaken his own investigation. That means re-examining issues covered by a now-closed GOP probe that concluded there was no evidence Trump’s campaign conspired with Russia. Schiff has said the committee also will pursue new matters, including whether foreign governments have leverage over Trump, his relatives or associates.
Some Democrats are pointing to documents that Justice Department officials provided to Congress in the wake of the investigation of Hillary Clinton’s emails, as well as information that Republicans demanded as part of their own inquiries.
Schiff said he told department officials after they released information related to the Clinton investigation that “this was a new precedent they were setting and they were going to have to live by this precedent whether it was a Congress controlled by the Democrats or Republicans.”
Beyond that, however, is “the intense public need to know here, which I think overrides any other consideration,” he said.
Democrats could use Mueller’s findings as the basis of impeachment proceedings. In a letter Friday, Democrats warned against withholding information on Trump on the basis of department opinions that the president can’t be indicted.
“We are going to get to the bottom of this,” Schiff said. “If the president is serious about all of his claims of exoneration, then he should welcome the publication of this report.”
Many Republicans have also argued that the full report should be released, though most have stopped short of saying it should be subpoenaed.
“We need to get the facts out there, get this behind us in a way that people thought that anybody that should have been talked to was talked to any question that should have been asked, was asked,” said Sen. Roy Blunt, a member of the Senate Intelligence Committee.
But asked if he thought there could be a subpoena, Blunt, R-Mo., said, “I don’t know that you can.”
The Senate committee also has been investigating whether Trump’s campaign conspired with Russia. Blunt suggested a conclusion in that probe might wait until after Mueller’s report.
“We’d like to have frankly a little more access to the Mueller investigation before we come to a final conclusion,” Blunt said. “His report will help us write our final report. We’ve given Mueller full access to all of our interviews all of our investigation. We haven’t had that reciprocated and so we’ll soon find out what else is out there that we might not know about.”
Schiff appeared on ABC’s “This Week,” and Blunt was on CBS’ “Face the Nation.”
Mueller report looming, new attorney general in hot seat
By ERIC TUCKER
Friday, February 22
WASHINGTON (AP) — William Barr has been attorney general for just one week but is on the cusp of staring down what will almost certainly be the most consequential decision of his long career: how much of the special counsel’s findings to make public.
The position catapults him from Justice Department outsider free to theorize and speculate on special counsel Robert Mueller’s investigation to the man at the center of the legal and political firestorm that will accompany its looming conclusion.
With Deputy Attorney General Rod Rosenstein preparing to exit after supervising the day-to-day investigation for nearly two years, and with Trump loyalist Matthew Whitaker now replaced in the top job, Barr is in the hot seat: He is responsible for navigating the department through congressional and public demands for details of Mueller’s findings while dealing with a White House that may challenge, or even stifle, the conclusions.
Friends say Barr is accustomed to pressure-cooker situations by virtue of his experience as attorney general from 1991 to 1993 under President George H.W. Bush and other senior Justice Department jobs. He oversaw the department’s response when Los Angeles erupted in riots after the Rodney King verdict and when Cuban inmates took hostages at a federal prison in Alabama. He blessed Bush administration pardons in the Iran-Contra scandal and offered legal advice on the White House’s ability to invade Panama.
In this case, though, no less than the fate of Donald Trump’s presidency may hang in the balance of whatever Barr decides.
“I’m sure it’s going to be a tough set of decisions and circumstances, but Bill doesn’t shy away from tough situations,” said former Justice Department colleague Timothy Flanigan. “He’s not likely to sit there fretting over what does this mean for his legacy or his long-term political viability.”
Although Barr carefully weighs difficult decisions and consults others before making them, once he’s made them, “he doesn’t kind of circle and fret,” Flanigan said.
Key decisions are expected soon as Mueller shows signs of concluding his investigation into Russian interference in the 2016 U.S. presidential election and possible coordination with the Trump campaign.
Mueller is required to produce a confidential report to Barr that explains his decisions to pursue or decline prosecutions. That could be as simple as a bullet point list or as fulsome as a report running hundreds of pages. Barr will then have to decide how much of Mueller’s findings should be disclosed to the public.
At his confirmation hearing last month, Barr was noncommittal about what he would do, though he said repeatedly that he supported making as much public as possible, “consistent with the law.” He said in his congressional testimony that he will write his own report summarizing Mueller’s findings for Congress and the public.
“I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political or other improper interests influence my decisions,” he said.
Barr has noted that department protocol says internal memos explaining charging decisions should not be released. The attorney general is required only to say the investigation has concluded and describe or explain any times when he or Rosenstein decided an action Mueller proposed “was so inappropriate or unwarranted” that it should not be pursued.
Democrats could use Mueller’s findings as the basis of impeachment proceedings and have threatened to subpoena them if they are withheld from Congress. It’s not clear what the White House or Trump’s lawyers may do to learn details of Mueller’s findings. But they may try to block the public release of any report that they believe could expose private conversations between the president and his staff.
Hovering in the background is the 2016 decision by then-FBI Director James Comey to break Justice Department norms in the Hillary Clinton email investigation by publicly criticizing the Democratic presidential candidate even while saying she wouldn’t be charged. Barr has said repeatedly that he disagrees with Comey’s decision and considers it a mistake.
It’s unclear what Mueller will place in his report and how far it will go in answering the central question of the investigation — whether the Trump campaign colluded with Russia — or how much he will reveal about whether the president sought to obstruct justice through firing Comey and other actions.
Barr made clear at his confirmation hearing that he agreed Russia had meddled in the 2016 election and that Mueller’s investigation, contrary to Trump’s claims, is not a “witch hunt.”
But his view on the obstruction question is more nuanced. As a private citizen, he sent the Justice Department a memo last June arguing that Trump couldn’t be investigated for firing Comey because a president has discretion to hire and fire subordinates. He has since sought to make clear that he believes that a president can be guilty of obstructing justice in other ways, such as by destroying evidence or instructing witnesses to lie.
It’s not clear if Mueller will make recommendations about the president, though Barr has said he sees no reason to revisit Justice Department legal opinions that say a sitting president cannot be indicted.
Barr, who friends say was reluctant to return as attorney general, has made clear that at age 68, he feels empowered to do the right thing and not care about the consequences. But that doesn’t mean it will be easy.
“I’m kind of glad it’s him,” Flanigan said, “and not me.”
Oversight committee session with Michael Cohen looks like an illegitimate show hearing
February 22, 2019
Author: Stanley M. Brand, Distinguished Fellow in Law and Government, Pennsylvania State University
Disclosure statement: Stanley M. Brand is affiliated with and currently serves as the Vice-President of the National Association of Professional Baseball Leagues, Inc. (“NAPBL”), the governing body of minor league baseball.
Partners: Pennsylvania State University provides funding as a founding partner of The Conversation US.
Convicted perjurer Michael Cohen’s testimony next week at a congressional hearing promises to be a political spectacle.
But Cohen’s appearance may not actually be legitimate under congressional rules.
In Cohen’s case, the Government Oversight and Reform Committee’s description of the issues it will explore in his hearing include “the President’s debts and payments relating to efforts to influence the 2016 election … the President’s compliance with campaign finance laws…the President’s business practices …” even the “accuracy of the President’s public statements.”
These subjects have nothing to do with the committee’s jurisdiction. The committee’s role is to investigate the “overall economy and efficiency and management of government operations and activities.”
While Congress does have authority to pursue any “subject on which legislation can be had” as well as inquiries into “fraud, waste and abuse” in government programs, that power is not unlimited.
As a former counsel for the House of Representatives from 1976 to 1983, I believe the Cohen hearing’s broad range of subjects go far beyond the jurisdiction of the committee.
In my view, that makes this a show hearing, not a legitimate exercise of the committee’s duties.
Power of the state
Cohen is appearing willingly, almost enthusiastically, before the Government Oversight and Reform Committee.
But for many witnesses subpoenaed by congressional committees, their appearance is a fraught and frightening experience full of legal jeopardy, where they face interrogation by a committee of some of the most powerful men and women in the nation.
The seemingly all-encompassing power of Congress to investigate has been the subject of numerous Supreme Court and lower federal court rulings that attempt to limit the power of these government committees against individual witnesses. The rulings ensure that witnesses facing such awesome government power are protected by the Constitution’s guarantee of due process.
The means the courts have insisted on strict adherence by members of Congress to the rules that circumscribe committee jurisdictions.
Maintaining this balance – of the need for investigations versus protection of individual rights – is the legal challenge facing the now Democratically controlled House as it embarks on an array of investigations into the Trump administration.
But is it legitimate for Congress to hold such show hearings? Serious questions are raised by Supreme Court precedents issued during the Red Scare era about the authority of Congress to pursue investigations that may have a political point, but which they do not have the actual authority to conduct.
Grandstanding or public interest?
According to Republicans on the committee, Cohen’s lawyer told them he “picked this committee” to tell his “story” which would include “anecdotes about his time with the President.”
The power granted to Congress in Article I of the Constitution – “all legislative powers therein shall be vested in Congress” – means that its inquiries must aid in the achievement of a legislative purpose.
But the president’s business practices or his campaign finance activities simply are outside the scope – government operations and activities – of the committee that will hear Cohen’s testimony. The House rules give jurisdiction over federal elections and campaign finance to the Committee on House Administration. Other committees could have jurisdiction to hear testimony on the president’s business practices.
In addition, the courts have ruled that questions asked in a committee hearing must be “pertinent” to the subject under investigation. They shouldn’t be fishing expeditions for tangential, unrelated matters. And because the stakes are so high – a witness can go to jail for up to one year for contempt of Congress or potentially longer for perjury or false statements – that pertinence must be shown with a “degree of explicitness and clarity.”
Numerous cases from the 1950s and 1960s show how tough the court’s limits are about who can be compelled to testify in front of Congress and on which subjects.
In one case, a Senate committee whose jurisdiction was the “economy and efficiency of those doing government work” (a jurisdiction almost identical the House Committee in the Cohen case) summoned a defense contractor in connection with its hearings into communist infiltration of the defense industry.
The contractor refused to testify. He was convicted of contempt. But on appeal, the court ruled that the Senate committee’s charge to study the “economy and efficiency of doing government work” did not extend to independent defense contractors.
The court said that “private operation of private industry is not activity performed by the government” and reversed the conviction.
In another case, a Cornell professor was subpoenaed to testify before the House Un-American Activities Committee in Washington. He refused to name people with whom he had engaged in communist party activities at Cornell and in Ithaca. He was convicted of contempt of Congress.
The professor appealed, and the Supreme Court ruled that he was not guilty. Why? Because the questions he had refused to answer from the committee were not “pertinent to the subject under inquiry,” which was communist infiltration in Albany – not Ithaca, which is 140 miles away.
This is the strict level of specificity imposed by the courts in enforcing congressional subpoenas, where 140 miles can make the difference between jail and freedom.
No inquiry an end in itself
In Cohen’s case, just how does his testimony to the Government Oversight and Reform Committee on his experience working for Donald Trump relate to government activities?
There’s one more problem that argues against Cohen’s testimony.
In a 1957 case, the Supreme Court held that Congress has “no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress. … Nor is Congress a law enforcement or trial agency.”
The 1957 opinion continues: “No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress.”
As the House moved forward to investigate legitimate areas of oversight, it needs to carefully frame its pursuit of these subjects in a way that satisfies the requirements laid down by the courts.
That’s something it does not appear to have done in the Cohen case.
A stern memo about Manafort says he ‘brazenly violated’ law
By CHAD DAY and ERIC TUCKER
Sunday, February 24
WASHINGTON (AP) — Former Trump campaign chairman Paul Manafort committed crimes that cut to “the heart of the criminal justice system” and over the years deceived everyone from bookkeepers and banks to federal prosecutors and his own lawyers, according to a sentencing memo filed by special counsel Robert Mueller’s office.
In the memo, submitted Saturday in one of two criminal cases Manafort faces, prosecutors do not yet take a position on how much prison time he should serve or whether to stack the punishment on top of a separate sentence he will soon receive in a Virginia prosecution. But they do depict Manafort as a longtime and unrepentant criminal who committed “bold” crimes, including under the spotlight of his role as campaign chairman and later while on bail, and who does not deserve any leniency.
“For over a decade, Manafort repeatedly and brazenly violated the law,” prosecutors wrote. “His crimes continued up through the time he was first indicted in October 2017 and remarkably went unabated even after indictment.”
Citing Manafort’s lies to the FBI, several government agencies and his own lawyer, prosecutors said that “upon release from jail, Manafort presents a grave risk of recidivism.”
The 25-page memo, filed in federal court in Washington, is likely the last major filing by prosecutors as Manafort heads into his sentencing hearings next month and as Mueller’s investigation approaches a conclusion. Manafort, who has been jailed for months and turns 70 in April, will have a chance to file his own sentencing recommendation next week. He and his longtime business partner, Rick Gates, were the first two people indicted in the special counsel’s investigation. Overall, Mueller has produced charges against 34 individuals, including six former Trump aides, and three companies.
Manafort’s case has played out in stark contrast to those of other defendants in the Russia investigation, such as former national security adviser Michael Flynn, who prosecutors praised for his cooperation and left open the possibility of no jail time.
Manafort pleaded guilty to two counts of conspiracy arising from his Ukrainian political consulting work and his efforts to tamper with witnesses. As part of that plea, he agreed to cooperate with Mueller’s team, a move that could have helped him avoid a longer prison sentence. But within weeks, prosecutors say he repeatedly lied to investigators, including about his interactions with Konstantin Kilimnik, a business associate who the U.S. says has ties to Russian intelligence. That deception voided the plea deal.
The sentencing memo comes as Manafort, who led Donald Trump’s 2016 campaign for several critical months, is already facing the possibility of spending the rest of his life in prison in a separate tax and bank fraud case in Virginia. Mueller’s team endorsed a sentence of between 19.5 and 24.5 years in prison in that case.
Prosecutors note that the federal guidelines recommend a sentence of more than 17 years, but Manafort pleaded guilty last year to two felony counts that carry maximum sentences of five years each.
Prosecutors originally filed a sealed sentencing memo on Friday, but the document was made public on Saturday with certain information still redacted, or blacked out.
In recent weeks, court papers have revealed that Manafort shared polling data related to the Trump campaign with Kilimnik. A Mueller prosecutor also said earlier this month that an August 2016 meeting between Manafort and Kilimnik goes to the “heart” of the Russia probe. The meeting involved a discussion of a Ukrainian peace plan, but prosecutors haven’t said exactly what has captured their attention and whether it factors into the Kremlin’s attempts to help Trump in the 2016 election.
Like other Americans close to the president charged in the Mueller probe, Manafort hasn’t been accused of involvement in Russian election interference.
Read the sentencing memo: http://apne.ws/8MYWHdV
Trump ally Stone gets gag order after ‘crosshairs’ post
By MICHAEL BALSAMO
Friday, February 22
WASHINGTON (AP) — A federal judge issued a broad gag order forbidding Roger Stone to discuss his criminal case with anyone and gave him a stinging reprimand Thursday over the longtime Trump confidant’s posting of a photo of the judge with what appeared to be crosshairs of a gun.
She promised to throw him behind bars if he violates the court order in any way.
U.S. District Judge Amy Berman Jackson said that it would be “foolhardy” for her not to take any action over the Instagram post and that Stone would “pose a danger” to others in the case if the conditions of his release weren’t modified to include a gag order.
“Roger Stone fully understands the power of words and the power of symbols and there’s nothing ambiguous about crosshairs,” the judge said. “How hard was it to come up with a photo that didn’t have a crosshairs in the corner?” she quipped at one point.
Stone has pleaded not guilty to charges he lied to Congress, engaged in witness tampering and obstructed a congressional investigation into possible coordination between Russia and Donald Trump’s 2016 presidential campaign. The charges stem from conversations he had during the campaign about WikiLeaks, the anti-secrecy group that released material stolen from Democratic groups, including Hillary Clinton’s campaign.
The political operative and self-described dirty trickster is the sixth Trump aide or adviser charged in special counsel Robert Mueller’s investigation. He was arrested last month and has remained free on a $250,000 personal recognizance bond. Stone has maintained his innocence and blasted the special counsel’s investigation as politically motivated.
During Thursday’s tense and animated hearing in federal court in Washington, Stone took the witness stand to try to explain his Instagram post and apologize to the judge, repeatedly telling her he had made an egregious and inexcusable mistake.
“Thank you, but the apology rings quite hollow,” she shot back before instituting the gag order.
The judge said she doubted Stone had learned his lesson and it was clear he needed “clear boundaries” about what he can and can’t say to prevent potential jurors from being prejudiced.
She said she was not reassured by “the defense suggestion that Mr. Stone is all talk and no action and this is all a big mistake.”
Jackson told Stone that he made “deliberate choices” to post the photo of her and created a very real risk.
“No, Mr. Stone, I am not giving you another chance,” she said.
The 66-year-old Stone said the image had been selected by a volunteer who was working for him, though he couldn’t say who picked the photo or list the five or six volunteers who have been working for him when he was asked by prosecutors.
He said he had several photos to choose from and posted the image himself to his profile.
“You had a choice?” the judge interjected.
Stone said he picked the photo “randomly,” a suggestion the judge almost immediately dismissed.
“It was an egregious mistake. I obviously wish I could do it over again, but I cannot,” Stone said. “I recognize I let the court down, I let you down, I let myself down. … It was a momentary lapse in judgment.”
He has said the photo was “misinterpreted,” the symbol was actually the Celtic cross, not crosshairs of a gun, and he was not trying to threaten the judge.
Last week, Judge Jackson had implemented a limited order that prevented Stone from discussing his case near the courthouse and generally prohibited his lawyers, prosecutors and witnesses from making public comments that could “pose a substantial likelihood” of prejudicing potential jurors. But that order stopped short of imposing a broad ban on public comments, as Thursday’s order does.
After Stone posted and then deleted the photo on Instagram, the judge ordered him to return to Washington and appear in court for Thursday’s hearing. He and his lawyers filed a notice with the court that said they recognized the photo was “improper and should not have been posted.”
Stone’s lawyers argued, unsuccessfully, that placing any limits on his public comments would infringe on his constitutionally protected right to free speech.
His attorney, Bruce Rogow, said Stone’s post was inexcusable but argued his client should have another chance to comply with the judge’s initial gag order.
Special counsel Mueller’s team has been dwindling in recent weeks and lawyers from the U.S. attorney’s office in Washington were assigned to Stone’s case from the beginning, which could be an indication that Mueller is planning to hand off the investigation.