Speculation and Manafort’s Change of Lawyers

I want to draw your attention to the some specific language in the Politico story on Paul Manafort’s change of lawyers, quoting a Manafort spokesman (see especially my bold language):

A spokesman confirmed the change. “Mr. Manafort is in the process of retaining his former counsel, Miller & Chevalier, to represent him in the office of special counsel investigation. As of today, WilmerHale no longer represents Mr. Manafort,” Jason Maloni said in a statement.

Now I have absolutely no factual knowledge of the situation.

However, I can not help but notice this.  Apparently, the process of moving back representation to prior counsel was not, at least at the time of the statement, complete.  But, “as of today,” WilmerHale is out of the picture, and apparently it has become important that this is made clear immediately.

Now all the media coverage has focused on the possibility that this change reflects realization of the newly serious situation Manafort faces.  But what strikes me is the apparent speed and finality of the change — so fast that the statement is issued before the retaining of new counsel is complete.  This is in direct contrast to changes made in representation of others caught up in this scandal.  Of course, in a fast moving case, in which the prosecutor has already  shown a willinness to push hard, going even an hour without a lawyer can be very risky.

As a totally general matter, it is an open secret among lawyers that “getting off a case,” is often triggered by disagreement about testimony, or representations made by counsel to legal bodies. Sometimes this can be related to prior testimony or such representations.  More specifically often the problem is the reluctance of counsel to become embroiled in knowing (emphasis added) that testimony is false.  (One might speculate that in such situations, timing can be of the essence.)

Regardless of whether any of my speculation is accurate, you can be sure that Mueller’s staff are already going through everything they have to try to figure out where any problem might be, and to then adjust their strategy.

Not good news for any of those potentially implicated.

Note:  This post appeared initially in my access to justice blog.

 

Lets Face It — a Constitutional Crisis Is Certain

Calm, measured, careful David Brooks, on the News Hour Friday night, said something like this (reconstructed, not quoted):

Look Trump is transparent.  He has said — if you want to find my corruption go to the tex returns.  And he has said to Mueller, if you got the tax returns, I will fire you. So, we know exactly what will happen.  Mueller will go to the tax returns, Trmp will fire him, and we will have a constitutional crisis of some king.

I conclude that at this point we all actually know that a constitutional crisis is coming.  All that remains to find out is exactly what will trigger it, how the parties align at that point and perhaps how it will end.  Although I am pretty confident of the ultimate outcome.

This reminds me of my mother, who as 15 at the time of the events, saying that after Munich in 1938, everyone knew that war was coming, and that it was almost a relief when it finally did so.  Then people knew what they had to do.  I think it is the same now.

Now, the crisis could come from an attempted firing, it could be triggered by a refusal to comply with court or congressional orders, or less likely, it could be set off by extra-judicial illegal executive actions.  Nor do we know what the triggering event will be about.  It could be the now essentially admitted as to intent, Russia Collusion, the obstruction of justice claim, financial irregularities, or even the emoluments clause, to name just a few of the options.

But the outcome will depend on the willingness of the Courts and Republican politicians to enforce our constitutional norms. While it is clear that almost none of our Republican leaders have read or internalized Profiles in Courage, at some point the pain barrier will be reached.

Finally, I sometimes wonder what the definition of a constitutional crisis is?  Is it when one when of the corrective measures in the constittuion cuts in and works, as it did in 1974, or is it when that mechanisms are not triggered, or fail, causing a braoder legitimacy problem.  I hope we do not find out.

If Pre-President Trump Does Not Know the Limits, What Will Post-President Trump do?

So, Trump (or at least his most trusted advisor) felt it OK to act as a President, and go around his own intelligence agencies to create a secret channel to an adversary, what will he do after being President?

Set up his own private channel?

Continue to leak secrets from our allies (no, post presidents do not have the declassification power.)

Alienate allies regardless of cost?

Use his reputation to increase the value of licensing his name?

“Take this plane to Moscow?”

Have taxpayers continue to finance his buildings, his travel, and his security?

Undercut his successor has he has tried to do his predecessor?

Bottom line.  There has to be a strategy to keep him under tight control.

 

Why Did Sessions Not Report His Russian Contact to the FBI?

According to the Washington Post:

One of the meetings was a private conversation between Sessions and Russian Ambassador Sergey Kislyak that took place in September in the senator’s office, at the height of what U.S. intelligence officials say was a Russian cyber campaign to upend the U.S. presidential race.

Given the context, I find it hard to believe that Sessions would not have told State, FBI, CIA or NSA about that contact.  Moreover, surely any sane politician would have written a “memo to file” as a future potential defensive tool.  I would have assumed that they one or more of the above would have known anyway.

I regard the apparent absence of both (or even just a failure to report them by now), as something close of consciousness of guilt — although I have no personal knowledge of such general procedures, or what he did.

This story is just not going to go away.

 

The Right Wing Press Loses Its Credibility if They Do Noting to Pressure Trump on Press Access

Fox, the Wall Street Journal and friends, now face a critical pass-fail test.  As the Times put it:

Reporters from The Times, BuzzFeed News, CNN, The Los Angeles Times, Politico, the BBC and The Huffington Post were among those shut out of the briefing. Aides to Mr. Spicer admitted only reporters from a group of news organizations that, the White House said, had been previously confirmed.

Those organizations included Breitbart News, the One America News Network and The Washington Times, all with conservative leanings. Journalists from ABC, CBS, The Wall Street Journal, Bloomberg and Fox News also attended.

Reporters from The Associated Press and Time magazine, who were set to be allowed in, chose not to attend the briefing in protest of the White House’s actions. The Washington Post did not send a reporter to the session.

Is the response of the right wing press, to paraphrase Martin Miemoeller:

First they came for the mainstream press, and we did not speak out, because we are not mainstream press.   .    .   .

And here the immediate needed action, shown by AP and Time, is simple.  If you want to talk to us, you have to talk to everyone.

If those who attended the gaggle, fail this test again, they will have shown that political loyalty and short term economic interest trump freedom of the press.  So, they have lost all intellectual credibility, and so have any who continue to work for them.

This is a pivotal moment of choice.  History will hold them accountable, whatever else happens.

Any Innocent Administration Would Be Urging a Full Investigation to Repair Their Credibility

To be effective, a government has to be credible.  To be effective the Trump administration is desperately in need of a process that will both give in a breather in the short term, and credible proof of innocence in the long term about the whole Russia thing.

So they should be out there leading the establishment of such a process on investigation into the Russian scandal.  It would have to be set up so its product would be so solid and so credible that it was essentially unanswerable.

So why are they not doing so.  Well, there are three possible reasons.

  1. That they are so short term oriented that they do not understand this truth about credibiity.
  2. That they are in such chaos that they are unable to put any investigation together.
  3. That they are so guilty that the last thing they want is an investigation of any kind.

I will go with number three.  But if number two is true, we should see the investigation set up in a few weeks.  If number one is the reason, then it may take a bit longer, but wiser heads should prevail relatively soon.

Or perhaps most likely, all three could be true, in which case this story will play out much faster than we expect.

 

 

How do you ask someone to be the first American to die for a Putin policy?

Testifying against the Vietnam war in 1971, John Kerry famously asked “How do you ask a man to be the last man to die for a mistake?”

Today, given Trumps’s conflicts and the likely illegitimacy of the election result, due to the events that led to the CIA hacking finding, we now have to ask:

How do you ask someone to be the first person to die for a Trump hotel?

How do you ask someone to be the first person to die for a Putin policy?

I do not know how to answer the question, but I do know that this country is heading towards the largest crisis of leadership legitimacy it has ever faced.