Fox News is reporting here that a co-founder of Fusion GPS met with Russian lawyer Natalia Veselnitskaya both before and after her June 2016 meeting in Trump Tower with Donald Trump Jr., Jaren Kushner, Paul Manafort, and others. The Trump Tower meeting primarily involved a discussion of the Magnitsky Act, adoption, and/or dirt on Hillary Clinton, depending on whose version you accept. Trump Jr. has admitted that he showed up in order to hear about the dirt. According to Fox News, the first Veselnitskaya-Fusion meeting occurred "hours before" the Trump Tower meeting during a court hearing and the second Veselnitskaya-Fusion meeting occurred at an unspecified later time. The Trump Tower meeting has always smelled like a set-up to me and this report may fuel more speculation along these lines. As I noted here yesterday, I believe that Special Counsel Mueller already has authority to investigate the Steele Dossier as part of his charter. If he isn't investigating the Fusion GPS/Steele Dossier from top to bottom he should be, since, among other things, it was delivered to the FBI as part of an effort to prove that members of the Trump camp improperly coordinated with the Russian government during the 2016 campaign. If the Steele Dossier contained false information and was given to the Bureau as part of a deliberate effort to mislead the Department of Justice, somebody could conceivably be facing obstruction of justice charges. We need to know more about the Veselnitskaya-Fusion connection, but it is certainly interesting to find out that Fusion GPS had some kind of relationship with Veselnitskaya at the same time that the well-connected Russian lawyer was allegedly trying to entice the Trump team with dirt on Ms. Clinton.
Tag: Trump
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As most people have figured out by now, the most interesting development related to the charges unsealed today by Bob Mueller & company is the guilty plea entered into by an apparently marginal Trump Campaign operative named George Papadopoulos. Papadopoulos established direct and indirect contact with some Russians early in the campaign and lied about it later to the FBI. Not a good career choice. Now he has entered into a cooperation agreement and pled guilty under 18 U.S.C. Section 1001 (the Martha Stewart statute) to making false statements to government officials. Even without a downward variance his Guidelines Range is 0-6 months, so he won't be doing any time. According to the U.S. v. George Papadopoulos Statement of the Offense, which is the key document in the case, on April 26, 2016, while Papadopoulos was working on the campaign, one of Papadopoulos's foreign contacts advised him that the Russians had access to "dirt" on Mrs. Clinton and "thousands of emails." Interestingly, the Statement of the Offense does not explicitly say that the emails were offered to the Trump Campaign by the Russians or that Papadopoulos shared the information about the emails with Trump Campaign officials. Here also are the U.S. v. George Papadopoulos Criminal Information, and the U.S. v. George Papadopoulos Plea Agreement.
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The first thing to ask, if CNN's Friday night report is accurate, is who leaked? Because if the leak came from the government or court staff it is almost certainly an illegal violation of a sealed court order and/or grand jury proceedings. And if it came from the defense attorney of the party to be charged, who told him or her? The whole point of sealing something is so that the public doesn't know about it. All a courthouse staffer, moonlighting as media lookout, could have legitimately told the press is that "we saw so and so going into the court's chambers" or something along those lines.
Second, why would charges be sealed in the first place? Perhaps because the prosecution is afraid that someone will flee. That is the only legitimate reason I can think of to place an indictment under seal. If it was placed under seal to give government agents the opportunity for an early morning arrest it wouldn't surprise me one bit, given Andrew Weissman's dismal track record for hardball, heavy-handed tactics. (It will be interesting to find out someday just exactly what the government told a federal magistrate in order to get that no-knock warrant to search Paul Manafort's residence.)
Is it possible that the sealing was done in order to protect a defendant from having to spend the weekend (or at least one night) in DC jail? Unlikely. For defendants who do not turn themselves in by mid-morning in DC, the possibility of a night in jail is real. But if the prosecutors really cared about that, why not bring the charges on a weekday morning and allow the defendant to turn himself in the next day? This is done all the time.
Is it possible that the pending indictment report, true or false, is a deliberate ruse to see who will attempt to flee? In other words, does the government actually want someone to try to flee? After all, flight can be used as evidence of guilt in court. Unlikely, but anything is possible with Weissman in the number two slot.
We should find something out today. Here is Politico's excellent background piece by Darren Samuelsohn.
If there are any charges, expect them to be ancillary in nature. Look for false reporting violations or false statements to government agents. More to come.
UPDATE:
The Indictment is out and we will try to get it up as soon as possible. It is obvious that the prosecutors did the right thing in allowing Paul Manafort and Rick Gates to turn themselves in and that, in all likelihood, one of the defense attorneys leaked the news to CNN. Grand jury secrecy rules do not apply to witnesses or to those who receive their information from witnesses.
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I was on Tucker Carlson's show Tuesday night and he asked me whether Bob Mueller was guilty of "mission creep on a grand scale" by investigating "financial dealings going back some years." Presumably this was a reference to reports that Mueller and crew are investigating Paul Manafort's and President Trump's past financial arrangements with Russian citizens and business entities. I responded that Mueller's charter was broad. Special Counsel appointment letters, and the federal regulations covering the Special Counsel, are typically very vague, squishy, and capacious. This is not necessarily inconsistent with mission creep. It is to say that mission creep has to creep pretty far to run afoul of most Special Counsel charters. Attached is Rod Rosenstein Order Appointing Robert S. Mueller III as Special Counsel. Note that Rosenstein, in his capacity as Acting Attorney General (because Jeff Sessions had recused himself), made the appointment in order to "ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election." Mueller is authorized to "conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a)."
Note that the overall purpose of the Mueller appointment was to ensure a full and thorough investigation of Russian interference in the 2016 election. How can an investigation be full and thorough if Mueller is not entitled to follow every potential lead, including past business dealings? Note also that Mueller is authorized to take over the pre-existing FBI investigation confirmed by Comey. Thus, anything and everything already being looked at by Comey and his people is fair game for Mueller.
Then come the three non-exclusive categories of inquiry. First, any links or any coordination between the Russian government and individuals associated with Trump's campaign. With respect to the Russians, this would include individuals acting at Moscow's behest. Mueller would need to investigate who was acting at Moscow's behest. With respect to Trump's campaign this would include people informally associated with the campaign, paid or unpaid, including family members.
Second, any matters that arose or may arise directly from the investigation. Hypothetical example? The FBI questions a former Trump associate from Russia who reveals that Trump violated the Foreign Corrupt Practices Act four years ago in his dealings with Brazil. It's covered.
Third, any other matters within the scope of 28 CFR§ 600.4(a), which reads in part as follows: "The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted."
So you see, where Special Counsel Mueller, and virtually all Special Counsel are concerned, there may be mission creep, but there is no such thing as unauthorized mission creep. It may not be right. It may not be fair. But it's the law.
And one other thing. The media's focus on Mueller's alleged investigation of obstruction of justice in connection with Comey's firing misses the mark in my view. Absent something additional, the firing of Comey, even if done with the specific intent to shut down the Russia investigation, is alone insufficient to support obstruction of justice charges. But President Trump's many reckless statements and warnings, prior to Ty Cobb's arrival on the scene, may potentially be relevant on the issue of knowledge or intent. For example, if something shady is found in connection with past family dealings in Russia, President Trump's warning to Mueller not to go into that area could easily be admissible in evidence.
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Talking heads were in a dither yesterday, trying to decipher DAG Rosenstein's brief statement about the danger of relying on news accounts from supposedly reliable sources. See here for the Washington Post's account. Below is Rosenstein's statement in full:
Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country — let alone the branch of agency of government — with which the alleged sources supposedly are affiliated. Americans should be skeptical about anonymous allegations. The Department of Justice has a long established policy to neither confirm nor deny such allegations.
My reading of it is simple. Any prosecutor or case agent who has ever been involved in a high-profile investigation knows that the vast majority of press accounts about the investigation are far off the mark. Rosenstein is acutely aware of this phenomenon, having worked for Ken Starr in the Office of Independent Counsel in pre-Monica days. Yet the prosecutors and case agents are generally not allowed to talk to the press about the investigation, even to rebut preposterous stories, because this would entail disclosing highly confidential information, and prosecutors and case agents are subject to strict secrecy obligations. Self-important and self-interested people, however, inside and outside of law enforcement, love to parade their inside knowledge to the press, even anonymously. Rosenstein is trying to make that point, but he is doing something else as well. I think he is trying to throw a lifeline to Bob Mueller.
As those who professes to be an expert on television should know, sources interviewed by the government or brought before the grand jury are not, except in rare instances, under any obligation of secrecy. So a person whose lawyer is called by an Assistant Special Counsel or FBI Special Agent and asked to schedule an interview or accept service of a federal grand jury subpoena can shout it to the rooftops or anonymously leak it.
What if the source contacted by the government for an interview is strategically aligned with the target or subject of the overall investigation? What better way to conspire to attack the prosecution team than to anonymously leak your client's upcoming interview or grand jury appearance to the press, tip off the main subject's lawyer, and then sit back and watch while that lawyer attacks the prosecution team for illegal leaks? It is possible that something like this is happening right now to Mueller and company, and I believe that Rosenstein's statement was meant to cover this situation as well. The bottom line is that Mueller and company may not be leaking anything, yet are essentially powerless to do anything about the accusations against them.
But what if there really is an orchestrated effort by President Trump and his attorneys to have their allies leak to the press and then falsely accuse Team Mueller? In my view, this might supply the falsehood element that is required to prove a criminal obstruction of justice and has been, so far as we know, missing in the case of President Trump–Jeff Toobin and company to the contrary notwithstanding. Absent the extra element of lying or bribery, the firing of Comey or anybody else by Trump does not constitute obstruction. As I have previously said in these pages with regard to Comey's firing:
[B]arring new information, the idea that [Comey's] firing itself constitutes criminal obstruction is unsound. It was no more an obstruction of justice than Nixon's firing of Archie Cox. Trump could fire Rod Rosenstein and Bob Mueller tomorrow and order their successors to shut down the Russia Investigation and it still wouldn't be an obstruction of justice. He is the chief executive of the Executive Branch and has the authority to fire either one of them. Don't think it is an impossibility. Of course, it would signal the beginning of the end of Trump's tenure.
This kind of thing would be extremely difficult to prove, and trying to prove it could seriously sidetrack the investigation and alienate the press. But if it is happening and Mueller can prove it, such conduct could constitute criminal obstruction of justice.
MattBray.net 