Monday, September 17, 2018

Why One Little Piece Of Paper Is The Most Important Russia Scandal Document

It was another rainy late summer day in Washington.  Tuesday, September 11, to be exact.  Donald Trump was obscenely fist-bumping his way to a 9/11 attack commemoration in southwestern Pennsylvania and a smug Brett Kavanaugh was gliding to confirmation as the pivotal ninth Supreme Court justice when unnoticed to either or the wider world, Paul Manafort sat down with prosecutors for Special Counsel Robert Mueller to finalize an agreement detailing what he would provide them in return for a guilty plea to two of the charges he faced at a second criminal trial. 
The agreement, known in legal parlance as a proffer, is the single most important document in Mueller's quest to get to the bottom of the Russia scandal. 
Within the typewritten lines of the document lies the answer to the question that may well determine the fate of the Trump presidency and when or whether America can end its long national nightmare: Can Manafort, Trump's onetime campaign manager and now Mueller's harpooned white whale, provide incontrovertible proof that the campaign colluded with cut-outs for Vladimir Putin in Russia's wildly successful effort to cybersabotage Hillary Clinton?  Or failing that, can he be the missing link that, along with the mountains of evidence Mueller's team has assembled, will send Trump back to his gilded Fifth Avenue penthouse? 
Three days later, an ashen Manafort pleaded guilty to two of the seven charges to be heard at a trial scheduled on begin on September 24 in the hopes of receiving a reduced sentence and avoiding the possibility of spending the rest of his life in prison.  He also acceded to turning over most of his assets, including a $3 million condo in Trump Tower.   
The proffer agreement remains shrouded in secrecy, but Andrew Weissman, a dogged Mueller prosecutor who had pressed Manafort to flip for months, did say that the "proffer session and cooperation . . . led us to today." 
Weissman also said Manafort's cooperation would be "broad" and include participation in "interviews, briefings, producing documents, [and] testifying in other matters." 
What makes the proffer so compelling beyond what Manafort may know is that Mueller almost certainly has had a very clear idea of what he knows for some time, and that to Trump's chagrin, this is the biggest victory for the special counsel, who was appointed 16 months ago today, following many other victories, including turning several other allies of the president into cooperating witnesses. 
That the proffer pretty much rules out a presidential pardon.  And if Manafort is Mueller's golden goose, then Kavanaugh is a cooked goose.  Just you wait. 
There is yet another document, this one very much a work in progress, that could become hugely important -- the report of Mueller's investigative grand jury. 
Why shouldn't Mueller release this report when he wraps up his investigation rather than write a report for Deputy Attorney General Rod Rosenstein, his supervisor at the Justice Department, that almost inevitably would lead to a new fight when Trump's lawyers invoke executive privilege and order Justice to keep the juicy -- which is to say incriminating -- portions of the report confidential from Congress, and specifically the House Judiciary Committee, where impeachment proceedings would be initiated? 
There is a precedent for doing such an end-run.  It was called Watergate. 
In March 1974, Watergate prosecutor Leon Jaworski (photo above), who more or less played the same role as Mueller, sent to Congress a 55-page index known as the "Road Map" containing information his grand jury had gathered about President Nixon's misconduct.   The Road Map included evidence gathered by and underlying testimony given to the grand jury, but did not state whether Nixon had committed any impeachable offenses. 
On Friday, three prominent legal scholars urged in a petition that the Road Map, which was examined by the House Judiciary Committee of that era but otherwise remained secret, be unsealed by court order and made public.
Wrote the scholars, who note that most Watergate players are dead and much of the evidence already is public:
This petition presents an extraordinarily compelling interest in disclosure arrayed against a vanishingly small countervailing interest.  Not only does the Road Map carry immense historical significance in understanding the Watergate investigation, it provides a key precedent for assessing the appropriate framework for Special Counsel Mueller to report to Congress any findings of potentially unlawful conduct by President Trump.
The scholars, who are represented by the government watchdog group Protect Democracy, are Benjamin Wittes, a Brookings Institute senior fellow and editor in chief of Lawfare, an estimable online publication that specializes in national security legal policy issues; Jack Goldsmith, a Harvard Law School professor and senior Justice official in the George W. Bush administration; and Stephen Bates, a University of Nevada-Las Vegas, law professor who, as a federal prosecutor working for Ken Starr, the independent counsel who investigated President Clinton, co-wrote the report to Congress recommending that Bubba be impeached.  
The petition was accompanied by three declarations from Watergate-era figures who argued that it was time to make the Road Map public: two Watergate prosecutors, Richard Ben-Veniste and Philip A. Lacovara, and John Dean, Nixon's White House counsel, who became a key witness for Jaworski.
Is this a big deal? 
Yes.  Although Justice Department rules permit Rosenstein to veto any unwarranted "investigative or prosecutorial step," asking a grand jury to send a report to Congress that would include Manafort's post-plea bargain testimony does not necessarily qualify as such and could be an insurance policy of a sort if Trump tries to shut down Mueller's investigation. 
Jaworski, in a memoir, called the Road Map an unprecedented but legally proper solution to a difficult problem: Harnessing a grand jury's power to issue a report as a way to get around his apparent lack of power to send information directly to Congress, which also applies to Mueller.  A federal judge overseeing the grand jury and a federal appeals court approved the move.  In any event, Trump's options are increasingly limited because the rule of law is prevailing over his disdain for the law.  And he's guilty as sin.   
Intriguingly, if Trump fires Mueller and Attorney General Jeff "Mr. Recusal" Sessions, which he has threatened to do, Rosenstein becomes the acting attorney general.   
But if Trump also fires Rosenstein . . . Well, stay tuned

Click HERE for a comprehensive timeline of the Russia scandal
and related developments.


Bscharlott said...

Nice overview of the issues. If Manafort provides Mueller with compelling evidence of illegal coordination/collusion between the Trump campaign and Russia, I don't see any way Trump can keep that from coming out in some form, assuming the Dems take the House in November. Even if Trump found a way to bury Mueller's eventual report -- and that strikes me as unlikely -- a House investigation could compel Manafort to testify. For that matter, Mueller could also be called on to testify and thus all he knows could end up in the hands of Democrats in the House, who would make sure the press got the information. Let me know if my take on this seems wrong.

Unknown said...


You are spot on.

To reprise an image I've used, Trump has been backed into an incredibly tight corner. Picture him, as unpleasant as it may be, hoping on one foot in his designer satin boxer shorts.