Loose Ends From A Crazy News Day

Ken AshfordClinton Email Faux Scandal, L'Affaire Russe, Stormy Daniels Affair, Trump & AdministrationLeave a Comment

Yesterday was one of those crazy Trump news days. Big story followed big story.

But what was odd was a lot of it was retrospective.  Things that happened in the investigation that we are NOW just learning.  It clearly got under Trump’s nerves, as shown by his tweets this morning.

It is a little silly for him to say that.  Mueller and his team have issued eight indictments covering 19 individuals and three businesses, secured five guilty pleas, have two criminal cases headed to trial, and have one individual already serving a prison sentence.  Collusion is not a crime, and obstruction is obvious.

I hit most of the big stories yesterday, but missed two  — maybe three.

(1)  Crossfire Hurricane The New York Times looks at the beginning days into the investigation of Donald Trump, a very tight-lipped FBI probe known by only a handful of agents, dubbed “Crossfire Hurricane” (after a Rolling Stones song).  According to The New York Times, only about five Justice officials knew what the whole case entailed — a far lower number than the 12 or so who would typically be read in on a case related to national security.

At the beginning of the investigation, the bureau dispatched two agents to London to interview Australian Ambassador Alexander Downer, who reportedly had proof that one of Trump’s advisers knew about Russia’s meddling in the 2016 election before it occurred.  Otherwise, agents considered, then rejected, interviewing key Trump associates, which might have sped up the investigation but risked revealing the existence of the case. Top officials quickly became convinced that they would not solve the case before Election Day, which made them only more hesitant to act. When agents did take bold investigative steps, like interviewing the ambassador, they were shrouded in secrecy.

Progressives are correct in pointing out that there is a sharp contrast between a very secret investigation against the Trump campaign compared to the FBI (and James Comey) openly discussing the Clinton emails.  As the Times says: “In the Clinton case, Mr. Comey has said he erred on the side of transparency. But in the face of questions from Congress about the Trump campaign, the F.B.I. declined to tip its hand. “

Conservatives, on the other hand, are quick to point out that this is further proof of a “Deep State” conspiracy against Donald Trump.

The article continues:

The F.B.I. investigated four unidentified Trump campaign aides in those early months, congressional investigators revealed in February. The four men were Michael T. Flynn, Paul Manafort, Carter Page and Mr. Papadopoulos, current and former officials said. Each was scrutinized because of his obvious or suspected Russian ties.

***

Mr. Trump was not under investigation, but his actions perplexed the agents. Days after the stolen Democratic emails became public, he called on Russia to uncover more. Then news broke that Mr. Trump’s campaign had pushed to change the Republican platform’s stance on Ukraine in ways favorable to Russia.

The F.B.I.’s thinking crystallized by mid-August, after the C.I.A. director at the time, John O. Brennan, shared intelligence with Mr. Comey showing that the Russian government was behind an attack on the 2016 presidential election. Intelligence agencies began collaborating to investigate that operation. The Crossfire Hurricane team was part of that group but largely operated independently, three officials said.

Senator Marco Rubio, Republican of Florida, said that after studying the investigation as a member of the Senate Intelligence Committee, he saw no evidence of political motivation in the opening of the investigation.

All this comes as a prelude to an inspector generals’ report on the handling of the Trump investigation. The inspector general’s upcoming report is expected to criticize two FBI agents for giving the appearance of bias (because they exchanged emails that were critical of Trump). It is not clear, however, whether inspectors found evidence supporting Mr. Trump’s assertion that agents tried to protect Mrs. Clinton, a claim the F.B.I. has adamantly denied.

The article adds:

The F.B.I. obtained phone records and other documents using national security letters — a secret type of subpoena — officials said. And at least one government informant met several times with Mr. Page and Mr. Papadopoulos, current and former officials said. That has become a politically contentious point, with Mr. Trump’s allies questioning whether the F.B.I. was spying on the Trump campaign or trying to entrap campaign officials.

And that is the takeaway today after the Times article came out.  Even from Trump

I like that phrase — “probably no doubt”.  And I don’t know where “embedded informant” comes from.  Certainly not the NY Time article.

(2)  Missing Treasury Files –  Well, this one is just weird. But a huge scoop from Ronan Farrow, who is becoming a hot journalist.

We’ve come to know a lot about Michael Cohen’s influence peddling, but HOW do we know it? We know it mostly because of Michael Avenatti, Stormy Daniels’ attorney, who seemed to know an awful lot about Cohen’s financial dealings. Avenatti referenced “3 Suspicious Activity Reports” related to Cohen’s dealings and teased more significant disclosures to come. The Treasury Department launched an inquiry into the potential leak.

Well how did Avenatti know?  A leaker. From the US Treasury Department.  And that’s where Ronan Farrow’s reporting comes in.  He does not identify the leaker, but he explains WHY the leaker is leaking.  And this is the incredible part — a law enforcement official leaked the documents after becoming concerned that two reports on Cohen’s suspicious financial activity could not be found in a government database. Both of those reports, according to the New Yorker, detail even more substantial financial transactions — about $3 million, three times the amount of last week’s disclosures.

This is an extraordinary allegation. This whistleblower is claiming the documents went missing from the database, the more sinister implication being that they were purposely being withheld.

The documents this law enforcement official said they could not find are not easily misplaced bureaucratic paperwork. Suspicious activity reports, or SARs, are reports that banks and other financial institutions file if they have an inkling that someone might be engaging in money laundering or another illicit activity. They are filed with the Financial Crimes Enforcement Network, which maintains a database for government and law enforcement officials. A suspicious activity report is not proof of any crime, just a red flag, and can help authorities establish patterns.

“I have never seen something pulled off the system. … That system is a safeguard for the bank,” the source told the New Yorker. “It’s a stockpile of information. When something’s not there that should be, I immediately became concerned.”

Disclosing a suspicious activity report could violate federal law. The whistleblower said the personal risk was outweighed by the possibility that the reports were purposely hidden or removed. “Things that stand out as abnormal, like documents being removed from a system, are of grave concern to me,” the official said.

Perhaps even more chilling is that there doesn’t seem to be an ordinary explanation for why those two reports have seemingly vanished from the searchable database. Some former government officials suggested to the New Yorker that it’s possible (though it would be extremely unusual) that access is restricted because of the extremely sensitive nature of the SARs, given that Cohen is under federal investigation by the Manhattan US attorney’s office.


(3)  Giuliani says that Mueller told him that he cannot indict a sitting PresidentCNN reported that Mueller and Trump’s legal team had determined that the Russia probe would end with a report to Congress on potential crimes, not an indictment. The source was Rudy Giuliani.  And there seems to be some confusion about this one.  Did Mueller actually SAY that to Giuliani? Or did Giuliani just assume that Mueller believes that he cannot indict a sitting President?  The Justice Department guidelines currently say a sitting president cannot be indicted.

In a meeting a few weeks ago, Trump’s lawyers and Mueller’s team agreed that the special counsel would follow Justice Department guidelines, indicating that the federal investigators ultimately would not indict Trump in the Russia probe unless he were impeached, according to the Washington Post.

He didn’t seem to want to give the answer,” Giuliani told the Post. “It reminded me of that scene in ‘The Godfather,’ with Sonny and the Godfather, where he said, ‘Oh, you’re going to take care of us? We can take care of ourselves.’ One of his assistants broke in and said, ‘Well of course, we’re bound by Justice Department policies.’ Mueller looked at him like, ‘Don’t interrupt me.’”

In case everyone has, like the various Rudy Giulianis, lost the plot here, let me summarize:

  1. Rudy Giuliani told NBC News that Special Counsel Mueller told him directly that he could not prosecute the President because of the 1970s guidance from the Office of Legal Counsel.
  2. Rudy Giuliani, in an attempt to clarify what Rudy Giuliani told NBC News, told The Washington Post that he doesn’t actually know what Special Counsel Mueller or his personnel told Jay Sekulow and he can’t find out because Jay is in Israel.
  3. Rudy Giuliani, in an attempt to sound tough and make Special Counsel Mueller look bad, as well as further clarify Rudy Giuliani’s clarification to The Washington Post of Rudy Giuliani’s (who comes from a family that was mobbed up) statement to NBC News, stated that Bob Mueller (who brought down John Gotti) is like an Italian mafiosi from a movie.

Okay, whatever. The thing is, the DOJ guidelines are just that: guidelines. They can be changed, or even not followed if the situation calls for it.

In fact, Neal Katyal, who wrote the existing guidelines for DOJ Special Counsels had this to say about the 1970s Office of Legal Counsel guidance:

“This old opinion from 20 years ago does preclude, in general, the Justice Department from indicting a sitting president for constitutional reasons,” Katyal said. “But an exception can be given.”

Katyal repeated Wednesday that the rules “permit Mueller to depart from DOJ policy.”

Referring to Deputy Attorney General Rod Rosentein, who is acting as attorney general in the context of the Russia investigation because Attorney General Jeff Sessions recused himself, Katyal said on MSNBC’s “All In With Chris Hayes”: “The way to do this is to ask the acting attorney general, so he does have a way forward.”

Bottom line: There really is no settled law on this.