Will Obstruction Of Justice Pay Off For Republicans?

Over the weekend, the NY Times reported that Don McGahn, the top White House lawyer seems to be taking on the John Dean Watergate role in Putin-Gate. He voluntarily sat with Mueller's team for over 30 hours in at least 3 sessions over the last 9 months. I always thought it would be Kushner-in-law who would be the first to rat out Trump. McGahan, who often refers to Trump as "King Kong," was directed to focus on helping the Special Counsel build the obstruction of justice case by answering questions about Trump’s anger towards the investigation and especially towards Comey and Sessions. The Times asserted that McGahn's extensive testimony included pieces of the puzzle "that investigators would not have learned of otherwise."

McGahn described the president’s furor toward the Russia investigation and the ways in which he urged Mr. McGahn to respond to it. He provided the investigators examining whether Mr. Trump obstructed justice a clear view of the president’s most intimate moments with his lawyer.

Among them were Mr. Trump’s comments and actions during the firing of the F.B.I. director, James B. Comey, and Mr. Trump’s obsession with putting a loyalist in charge of the inquiry, including his repeated urging of Attorney General Jeff Sessions to claim oversight of it. Mr. McGahn was also centrally involved in Mr. Trump’s attempts to fire the special counsel, Robert S. Mueller III, which investigators might not have discovered without him.

For a lawyer to share so much with investigators scrutinizing his client is unusual. Lawyers are rarely so open with investigators, not only because they are advocating on behalf of their clients but also because their conversations with clients are potentially shielded by attorney-client privilege, and in the case of presidents, executive privilege.

“A prosecutor would kill for that,” said Solomon L. Wisenberg, a deputy independent counsel in the Whitewater investigation, which did not have the same level of cooperation from President Bill Clinton’s lawyers. “Oh my God, it would have been phenomenally helpful to us. It would have been like having the keys to the kingdom.”

Mr. McGahn’s cooperation began in part as a result of a decision by Mr. Trump’s first team of criminal lawyers to collaborate fully with Mr. Mueller. The president’s lawyers have explained that they believed their client had nothing to hide and that they could bring the investigation to an end quickly.

Mr. McGahn and his lawyer, William A. Burck, could not understand why Mr. Trump was so willing to allow Mr. McGahn to speak freely to the special counsel and feared Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction, according to people close to him. So he and Mr. Burck devised their own strategy to do as much as possible to cooperate with Mr. Mueller to demonstrate that Mr. McGahn did nothing wrong.

It is not clear that Mr. Trump appreciates the extent to which Mr. McGahn has cooperated with the special counsel. The president wrongly believed that Mr. McGahn would act as a personal lawyer would for clients and solely defend his interests to investigators, according to a person with knowledge of his thinking.

In fact, Mr. McGahn laid out how Mr. Trump tried to ensure control of the investigation, giving investigators a mix of information both potentially damaging and favorable to the president. Mr. McGahn cautioned to investigators that he never saw Mr. Trump go beyond his legal authorities, though the limits of executive power are murky.

Mr. McGahn’s role as a cooperating witness further strains his already complicated relationship with the president. Though Mr. Trump has fought with Mr. McGahn as much as with any of his top aides, White House advisers have said, both men have benefited significantly from their partnership.

Of course, when it comes to obstruction of justice, Trump is an endless fount. On MSNBC last week, former U.S. Attorney Joyce Vance said that Trump’s comment calling former campaign chairman Paul Manafort a "very good person," despite 18 criminal charges against him, was a "strategic" message to Manafort that he would be pardoned if he doesn't abandon Trump to Mueller. "If you’re Paul Manafort," said Vance, "and you hear about that-- and we all know Paul Manafort’s heard about that-- it’s difficult to read that as anything other than a message to Manafort: "Hold on, don’t cut a deal with the government while the jury is out."

Meanwhile Mueller was sending a different kind of message to indicted witnesses: screw around and wind up in prison. On Friday Reuters reported that Papadopoulos could get as many as six months in the pokey on Mueller's recommendation. Papadopoulos lied to investigators, promised to cooperate and then didn't cooperate enough.

Papadopoulos pleaded guilty in October to lying to FBI agents and is scheduled to be sentenced on Sept. 7.

According to Mueller’s sentencing memorandum to the judge, Papadopoulos lied about his contacts with people who claimed to have ties to top Russian officials, including his meeting with a professor who said Russia had “dirt” on Democratic presidential candidate Hillary Clinton.

“The defendant’s crime was serious and caused damage to the government’s investigation into Russian interference in the 2016 presidential election,” Mueller’s memo said.

“The defendant lied in order to conceal his contacts with Russians and Russian intermediaries during the campaign and made his false statements to investigators on January 27, 2017, early in the investigation, when key investigative decisions, including who to interview and when, were being made,” Mueller said.

Mueller said the government believed a sentence of up to six months in prison was “appropriate and warranted” along with a fine of $9,500.

...Muller also told the judge that Papadopoulos had not fully cooperated with prosecutors.

“The defendant did not provide ‘substantial assistance,’ and much of the information provided ... came only after the government confronted him with his own emails, text messages, internet search history and other information it obtained via search warrants and subpoenas,” Mueller wrote.

Mueller also said Papadopoulos avoided until the last moment telling prosecutors about a cell phone he used in London that had “substantial communications” on it between he and the professor who claimed to know about Russian information on Clinton.

Jonathan Chait observed in New York Magazine that what Señor T is doing now is what all authoritarians have to get to quickly: making the Department of Justice into his own private goon squad. Does that define construction of justice in a macro sense? Mueller sure seems to think so and he's "probing the circumstances surrounding Trump’s firing of Comey for a possible obstruction-of-justice charge." Trump has presided over "a series of firings and demotions of law-enforcement officials" who were looking into what Chait insists is "obstruction of justice "as a way of life."

The slowly [slowly???] unfolding purge, one of the most vivid expressions of Trump’s governing ethos, has served several purposes for the president. First, it has removed from direct authority a number of figures Trump suspects would fail to provide him the personal loyalty he demanded from Comey and expects from all officials in the federal government. Second, it supplies evidence for Trump’s claim that he is being hounded by trumped-up charges-- just look at all the crooked officials who have been fired! Third, it intimidates remaining officials with the threat of firing and public humiliation if they take any actions contrary to Trump’s interests. Simply carrying out the law now requires a measure of personal bravery.

Trump has driven home this last factor through a series of taunts directed at his vanquished foes. After McCabe enraged Trump by approving a flight home for Comey after his firing last May, the president told him to ask his wife (who had run for state legislature, unsuccessfully) how it felt to be a loser. This March, Trump fired McCabe and has since tweeted that Comey and McCabe are “clowns and losers.” The delight Trump takes in tormenting his victims, frequently calling attention to Strzok’s extramarital affair-- as if Trump actually cared about fidelity!-- underscores his determination to strip his targets of their dignity.

Trump has driven home this last factor through a series of taunts directed at his vanquished foes. After McCabe enraged Trump by approving a flight home for Comey after his firing last May, the president told him to ask his wife (who had run for state legislature, unsuccessfully) how it felt to be a loser. This March, Trump fired McCabe and has since tweeted that Comey and McCabe are “clowns and losers.” The delight Trump takes in tormenting his victims, frequently calling attention to Strzok’s extramarital affair-- as if Trump actually cared about fidelity!-- underscores his determination to strip his targets of their dignity.

But while Trump’s apparent ongoing intimidation of the national-security apparatus is worrying, the truly terrifying exercise in power has been his purge of federal law enforcement. If a determined authoritarian president were to probe the system for weaknesses that would allow him to consolidate his power, the awesome authority of the Department of Justice is where he would focus. Either by instinct or by happenstance (we can rule out conscious planning), this is where Trump has arrived. The police powers of the state could, if corrupted, become a fearsome weapon both to hound the opposition party and to permit illegality by the president’s allies.

The Department of Justice has designed a credo, undergirded by a web of rules, to restrict it from interfering in politics. Those rules have proved pliable-- indeed, Trump and his party began battering away at them during the 2016 campaign. The FBI’s famously Republican-leaning staff leaked promiscuously to Republicans such as House Intelligence Committee chairman Devin Nunes and, likely, Trump crony (and now lawyer) Rudy Giuliani. It was in part to head off a revolt from partisan agents, Comey later acknowledged, that he violated FBI norms by announcing a reopening of the investigation into Hillary Clinton’s emails in the waning days of the election.

Later, of course, Comey’s capitulation to Republican pressure became a pretext to fire him. The twisted genius of Trump’s purge is that it feeds on itself. Officials who resist Trump’s bullying can be fired for “bias,” but so too can officials who try to accommodate it.

...[Trump] has a vise grip on the loyalties of his party base, and Republicans in Congress, for all their private misgivings, see crossing him as an act of career suicide. Shame has no more power over this administration than does Santa Claus. The remaining factor, control of Congress, hangs in the balance with the midterm elections. As does much else.

It isn't hard to imagine seeing scores of Republicans defeated in the midterms-- take Putin allies Devin Nunes and Dana Rohrabacher as two good examples-- rewarded with new jobs in the Justice Department. Vulnerable Republican congressmembers like Steve King (IA), Don Bacon (NE), Jaime Herrera Beutler (WA), Peter King (NY), Mimi Walters (CA), Barbara Comstock (VA), Ron Estes (KS), Bruce Poliquin (ME), Steve Knight (CA), Cathy McMorris Rodgers (WA), Andy Barr (KY), Pete Sessions (TX), Keith Rothfus (PA), John Culberson (TX) and Claudia Tenney (NY) are all Trump rubber stamps who could wind up losing in November. But they could all go on rubber-stamping and enabling Trump with new jobs at Justice.