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Forensic News Roundup: Rosenstein reportedly curtailed Mueller’s investigation

September 1, 2020 6:58 am Adrienne Cobb

Rosenstein grounds the plane

In 2017, former deputy attorney general Rod Rosenstein secretly narrowed Mueller’s investigation into Russian interference and ties to Trump, according to the NYT. Some career FBI counterintelligence investigators believed Trump’s own relationship with Russia “posed such a national security threat that they took the extraordinary step of opening an inquiry into them.” Rosenstein reportedly allowed the FBI to believe such an inquiry was ongoing while separately telling Mueller not to investigate the matter.

Mr. Rosenstein concluded the F.B.I. lacked sufficient reason to conduct an investigation into the president’s links to a foreign adversary. Mr. Rosenstein determined that the investigators were acting too hastily in response to the firing days earlier of James B. Comey as F.B.I. director, and he suspected that the acting bureau director who approved the opening of the inquiry, Andrew G. McCabe, had conflicts of interest.

Mr. Rosenstein never told Mr. McCabe about his decision, leaving the F.B.I. with the impression that the special counsel would take on the investigation into the president as part of his broader duties. Mr. McCabe said in an interview that had he known Mr. Mueller would not continue the inquiry, he would have had the F.B.I. perform it.

Rosenstein reportedly told Mueller: “This is a criminal investigation. Do your job, and then shut it down.” This recalls what Rosenstein told Trump circa Winter 2018:

Rosenstein — who, by one account, had gotten teary-eyed just before the call in a meeting with Trump’s chief of staff — sought to defuse the volatile situation and assure the president he was on his team… “I give the investigation credibility,” Rosenstein said, according to an administration official with knowledge of what was said during the call. “I can land the plane.”

  • Definition: A criminal investigation would ordinarily pursue allegations of criminal conduct. A counterintelligence investigation, by contrast, may pursue allegations of “coordination” between U.S. persons and foreign hackers that may be unseemly and problematic if true, but potentially not criminal—such as, to use Professor Kent’s example, the possibility that a person within the United States coordinated to distribute material previously hacked by agents of a foreign government. (Lawfare)

Election security briefings

The Office of the Director of National Intelligence (DNI) sent a letter to the House and Senate Intelligence Committees last week informing them that it’ll no longer provide in-person briefings on election security issues. Instead, the committees will be given written updates, eliminating the opportunity for congress to question officials.

“This is a shocking abdication of its lawful responsibility to keep the Congress currently informed, and a betrayal of the public’s right to know how foreign powers are trying to subvert our democracy. This intelligence belongs to the American people, not the agencies which are its custodian. And the American people have both the right and the need to know that another nation, Russia, is trying to help decide who their president should be,” Pelosi and Schiff said in a statement.

Schiff pointed to Russia as the main reason for the change: “What changed is the President, probably in another fit, saying ‘I don’t want congress informed.’ Because the last time Congress was informed, the DNI had to put out a statement to acknowledge that the Russians are helping Trump again. That’s his goal – to suppress that information.” (clip)

Schiff added that the House “will compel the intelligence community to give Congress the information that we need. We will compel the intelligence community also to speak plainly to the American people.”


Court cases

Today, Tuesday, the 2nd U.S. Circuit Court of Appeals will hear arguments in Trump’s attempt to block Manhattan D.A. Vance’s subpoena for his tax returns from Mazars. In filings last week, Vance wrote that “continued delay of the grand jury’s investigation is unwarranted” and “would significantly impair the Office’s ability to discharge its constitutionally protected duty to investigate and, where appropriate, prosecute violations of New York law.”

  • Further reading: Just Security: “Given the likelihood that Vance has already obtained the needed tax returns and probable appellate rulings which will provide access to the Mazars USA material, it is possible that sufficient evidence has been obtained that would support fraud indictments of the Trump Organization and pertinent executives in the near future.”

A three-judge DC Circuit Court panel ruled that the House cannot use the courts to enforce their subpoena for Don McGahn’s testimony. Judge Judith Rogers (appointed by Bill Clinton) split from the majority, Karen Henderson (a George H.W. Bush appointee) and Thomas Griffith (a George W. Bush appointee), in the 2-1 decision. The House has already vowed to request an en banc hearing – meaning a hearing by the entire DC Circuit bench.

The majority reasoned that the House needs to pass a law authorizing it to enforce subpoenas through the courts, first. Without such a statue, the House is limited to using its inherent contempt powers, they argue.

The dissent by Rogers states that Congress’ power to enforce subpoenas is implied in the Constitution and was reinforced by the recent Supreme Court ruling in the House’s quest for Donald Trump’s financial documents. It appears very likely that the full bench with rule in Congress’s favor given the SCOTUS opinion stating: “We have held that the House has authority under the Constitution to issue subpoenas to assist it in carrying out its legislative responsibilities.”

  • History: In February, the same appeals court panel split along the same lines in addressing whether the House has standing to sue executive branch officials. The House took the issue to the full DC Circuit court, which overturned Griffith and Henderson’s ruling 7 to 2, thus supporting Congress’s right to sue McGahn for testimony. In yesterday’s opinion, Griffith and Henderson write that “The en banc court held that the Committee has Article III standing, but the Committee ‘also need[s] a cause of action to prosecute’ its case in federal court.” It is the latter issue that the court is addressing currently.
  • Note that Judge Thomas Griffith is retired yesterday, as planned, opening the seat for McConnell protege Justin Walker – who was confirmed by the Senate in June (in the middle of a pandemic). Arguably, Walker will be farther right than Griffith. He is perhaps most well known for aggressively lobbying for and defending Brett Kavanaugh during the latter’s confirmation process to the Supreme Court (example of one of his Fox News appearances from the time).

The full DC Circuit ruled that the case against Michael Flynn does not have to be immediately dismissed, thus allowing District Judge Emmet G. Sullivan to question prosecutors’ unusual move to dismiss Flynn’s case ahead of sentencing. The 8-2 ruling reversed a previous ruling by a three-judge panel – made up of Judge Karen Henderson (same as from the McGahn panel) and Neomi Rao, a Trump appointee who has written numerous legally questionable and biased opinions. Obama appointee Robert Wilkins dissented on the panel.

The current full bench opinion states that the court has no reason to compel a district court to decide an undecided motion in a particular way:

“The only separation-of-powers question we must answer at this juncture is whether the appointment of an amicus and the scheduling of briefing and argument is a clearly, indisputably impermissible intrusion upon Executive authority, because that is all that the District Judge has ordered at this point,” the majority opinion said. “We have no trouble answering that question in the negative, because precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances.

The House Intelligence Committee voluntarily narrows its subpoena to Deutsche Bank seeking Trump’s financial information in order to expedite the case. The new subpoena focuses only on Trump, Don Jr., Eric, and Ivanka.

The Supreme Court laid out a test last month after President Trump fought the subpoena…The opinion itself held that courts should consider four factors when weighing congressional subpoenas that involve a sitting president, including whether or not the information is available in other ways, the breadth of the request, the request’s legislative purpose, and the burden placed on a President by complying with the request.

Similarly, the House Oversight Committee issued a memo explaining why their subpoena to Mazars seeking Trump’s financial records already satisfies the four factors identified by the Supreme Court. In a filing to the DC Circuit, the House counsel writes, “if this Court does not resolve this case now, the Trump Plaintiffs will almost certainly have succeeded in blocking the 116th Congress from obtaining any documents pursuant to its subpoena.”

A coalition led by the National Urban League asked a federal judge on Tuesday to act promptly and extend the 2020 census response deadline, which is just over a month away. The Trump administration set September 30 as the date to stop collecting responses, despite earlier saying it needs extra time due to the pandemic.

A federal judge has ordered the State Department to issue a U.S. passport to the daughter of a married gay couple whom the Trump administration had argued in court was ineligible for birthright citizenship. Derek Mize and Jonathan Gregg are both U.S. citizens. Their daughter, Simone, was born in July 2018 via a gestational surrogate in the United Kingdom using one father’s sperm and an anonymously donated egg.

For the second time in a week, a federal judge issued a blistering ruling against a controversial rule by Betsy DeVos’s Education Department that directs states to give private schools a bigger share of federal coronavirus aid than Congress intended.


Congress

The House Oversight Committee officially notified members that Chairwoman Maloney intends to issue a subpoena to Postmaster DeJoy. Maloney said the subpoena will seek “documents he has been withholding from Congress,” including those requested at the emergency hearing on August 24.

On Friday night—two days after this deadline—DeJoy sent a letter to the Committee stating: “I trust my August 24 testimony before the Committee on Oversight and Reform clarified any outstanding questions you had.” DeJoy has not produced a single additional document since the House and Senate hearings were held.

  • Further reading: One week after Postmaster General Louis DeJoy announced he was temporarily suspending changes to the United States Postal Service, NBC News spoke with eight postal union representatives from throughout the nation, all of whom expressed concerns and provided examples of ongoing delays in mail delivery.
  • USPS Board of Governors Chairman, Robert M. Duncan, was revealed to be a director of the Mitch McConnell-allied Senate Leadership Fund super PAC. This is in addition to his position as director of pro-Trump super PAC American Crossroads.

The House Foreign Affairs Committee is preparing to hold Secretary of State Mike Pompeo in contempt for his repeated refusal to cooperate with the committee’s investigations. Pompeo told the committee that he would only turn over the subpoenaed documents if the House also investigated the same anti-Biden conspiracies as the Senate was.

Chairman Engel said, “From Mr. Pompeo’s refusal to cooperate with the impeachment inquiry to his willingness to bolster a Senate Republican-led smear against the President’s political rivals to his speech to the RNC which defied his own guidance and possibly the law, he has demonstrated alarming disregard for the laws and rules governing his own conduct and for the tools the constitution provides to prevent government corruption. He seems to think the office he holds, the Department he runs, the personnel he oversees, and the taxpayer dollars that pay for all of it are there for his personal and political benefit.

Four House chairs are seeking an investigation by the Defense Dept. IG into retaliation against the Vindmans. Last week, Yevgeny Vindman filed a whistleblower complaint saying he was retaliated against for raising concerns about Trump’s phone call with Zelensky and alleged sexist and unethical behavior by national security adviser Robert O’Brien, as well as O’Brien’s senior adviser Alex Gray.


Details from upcoming books

The New York Times’ Michael Schmidt has a book coming out called “Donald Trump v. The United States.”

Schmidt reports that White House counsel Don McGahn sent a two-page memo to Chief of Staff John Kelly arguing that Jared Kushner’s security clearance needed to be downgraded in 2018. Kelly had serious concerns about granting Kushner a top-secret clearance in response to a briefing he had received related to the routine FBI investigation into Kushner’s background. The pair reduced Kushner’s clearance from top secret to secret, but ultimately Trump intervened to ensure Kushner got his top-secret security clearance.

Schmidt reports that the day after Trump fired Comey, the president offered then-Homeland Security Secretary John Kelly the job – but demanded Kelly be loyal to “only him.” “Kelly immediately realized the problem with Trump’s request for loyalty, and he pushed back on the president’s demand,” Schmidt writes. “Kelly has told others that Trump wanted to behave like an authoritarian and repeatedly had to be restrained and told what he could and could not legally do.”

Schmidt reports that Pence was ready to take over for Trump during his so-called “routine” visit to Walter Reed Medical Center late last year.

Describing Trump’s unexpected November 2019 visit to Walter Reed National Military Medical Center, he reports the White House wanted Mike Pence “on standby to take over the powers of the presidency temporarily if Trump had to undergo a procedure that would have required him to be anesthetized.” (NYT)

Finally, Schmidt writes that Mitch McConnell fell asleep during a classified briefing on Russia.

First lady Melania Trump’s former senior adviser and close friend, Stephanie Wolkoff, also has a book coming out.

Donald Trump wanted his inauguration to look like a North Korean military parade. When discussing the parade with Winston Wolkoff and Ivanka during the transition, Trump said: “I want tanks and choppers. Make it look like North Korea,” he told them. Winston Wolkoff wrote: “He really wanted goose-stepping troops and armored tanks? That would break tradition and terrify half the country.”

In her book, she describes how Melania didn’t want to move to the White House right away in part because she didn’t want to have to use the same shower and toilet as former first lady Michelle Obama and was waiting for the bathroom to be renovated. (Politico)

Wolkoff says she is now “working with three different prosecutors” regarding their investigations into Trump’s inaugural committee, which she helped plan. The U.S. Attorney’s Office in the Southern District of New York and local attorneys general in New Jersey and Washington, D.C., are reportedly scrutinizing millions of dollars in allegedly excessive and inexplicable expenditures.


Environmental news

FEMA administrator Peter Gaynor repeatedly declined to answer on CNN’s “State of the Union” Sunday whether he believes human activity is responsible for climate change, instead saying, “I’m going to leave all that up to the scientists.”

A U.S. appeals court on Monday overturned the Trump administration’s July 2019 rule that sought to suspend a regulation that more than doubled penalties for automakers failing to meet fuel efficiency requirements.

On Friday, attorneys general from 21 states joined together to sue the Trump administration to stop changes to the National Environmental Policy Act, often called the Magna Carta of environmental laws.

Washington Attorney General Bob Ferguson (D): “NEPA requires something basic, but very important from the federal government,” he said. “It basically requires the federal government to look before they leap. Pretty straightforward. Look at the science, look at the impacts. What’s going to happen if we go forward? …What the Trump administration wants to do is put blinders on before the federal government leaps, so we don’t know what those impacts are.”

Two separate coalitions of green groups are suing the Trump administration to challenge plans that would open 82 percent of Alaska’s National Petroleum Reserve to oil drilling.

A coalition of 13 groups sued the Interior Department and National Park Service on Wednesday over its decision to ease restrictions on hunting bear cubs and wolf pups at national preserves in Alaska.


Immigration News

The U.S. government has detained children at several major hotel chains — more than previously known — during the coronavirus pandemic instead of transferring them to government-funded shelters. Since March, the Trump administration has used hotels to hold at least 660 children, most unaccompanied by a parent, before expelling them to their countries of origin.

A 50-year-old Honduran man who had been in ICE custody died at a Texas hospital after testing positive for COVID-19. The man had been detained at the Joe Corley Processing Center in Conroe, Texas, where, according to agency statistics, 50 people have tested positive for the disease since the beginning of the pandemic.

Two women who were featured in a video of a naturalization ceremony shown at the Republican National Convention on Tuesday night said they did not know it would be aired at the political event.

Customs and Border Protection paid $476K for people’s phone location data from a company that’s under investigation for selling personal data.



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