May 1, 2018

"The special counsel, Robert S. Mueller III, recently provided President Trump’s lawyers a list of questions he wants answered in an interview."

"The New York Times obtained the list; here are the questions, along with the context and significance of each. The questions fall into categories based on four broad subjects..."

3 of the 4 categories center on 4 individuals: Michael Flynn, James Comey, and Jeff Sessions. The 4th category is "Campaign Coordination With Russia."

ADDED: I cannot imagine trying to answer questions about what was going on in my mind at all these precise points in the past. Do you have access to the contents of your mind like that? Even when an interaction is happening, I don't have a clear, precise view of my own motivations and intentions. Thinking about it immediately afterwords, I might puzzle about it, even when I'm under no pressure and it's only one incident. But I would never be able — even if I believed I deserved no criminal punishment — to sit down to a high-stakes questioning about many interactions that occurred over the course of many months and purport to tell the truth about what I was thinking on all those occasions. There would be no way not to lie. Continually.

AND:

252 comments:

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President Toilet Paper Shoe's Cooked-Up Drug Deal said...

$145 million is far too little to move the famously ethical Clintons to action on behalf of the givers of $145 million.

But Trump is compromised by much less than $145 million.

Those two sentences taken together are deranged.


To what action?

"My political nemesis did something I don't like, too," is actually not a legal defense. Did you know that?

Of course not. You went to Trump U.

Take a practical law class. It might fix your ideological shortcomings, too. It sure seems to have done so for Mueller, Comey and Rosenstein.

You have no respect for the law. This is not a banana republic, you Banana Republican. "I don't like what my political opponent does" is actually not a legal defense.

Or maybe it is. Can you cite when it was used, successfully? Or ever?

What an embarrassment you are.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Those 13 Russians are in no legal danger.

Neither was bin Laden.

What are you, a moron? Fleeing justice is evidence of innocence?

Ok, then. I know that's what you must think of Roman Polanski, now.

Enjoy Europe, Roman. Birkel Clavin says you're "in no legal danger!"

This means he endorses your crime and whomever you might have colluded with to commit it.

THat's Birkel. Proud Trump U. grad.

Birkel said...

So in what other arena is taking $145,000 acceptable and inconsistent with bribery?

Keep in mind Clinton as SOS was making decisions that could influence billions or trillions in the world economy.

Now add three zeroes.

And the DOJ is performing a Clinton Foundation investigation, in addition to several state governments, in addition to some other nations investigating.

TTR sees no enemies on the Left.

Birkel said...

Are U.S. Special Forces tasked with killing 13 Russian computer jockies?

The things one learns from TTR/Ritmo Brazilian Wax.

Michael K said...

Well, Ritmo has killed this thread. See you all tomorrow.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

I didn't vote for Hillary. If you see evidence of a crime ask the prosecuting attorney of the jurisdiction in question (big word for you, I know - but you have to learn it to do this) to investigate whether to bring charges.

Even a Banana Republican like you can do that.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Are U.S. Special Forces tasked with killing 13 Russian computer jockies?

This is Birkel's way of admitting that he thinks bin Laden committed no crime and was not a fugitive from justice.

Can't make it up, folks. Trump U. grads through and through.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

But first Birkel Clavin would have to learn what a "crime" is.

And that would be hard for a guy like him. Because he's of the belief that even Osama bin Laden never committed one.

So bin Laden was innocent but Hillary Clinton was guilty... of something. That's his story and he's sticking to it!

Can't make this shit up. The country's in good hands, folks!

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Go read a book, Mikey. On the law.

Birkel said...

It does boggle the mind that your projection ("Can't make it up, folks.") is exactly like the projection the Clinton supporting Deep State used.

Beldar said...

@ Inga, who asked: "So Beldar, do you think that Trump was right when he said in his recent Michigan rally, that it was the really the Democrats who were colluding with Russians and not the Trump campaign?"

I don't know. A lot depends on the object of the proposed collusion. I've seen no evidence, nor heard any convincing theories about hypothetical evidence, to prove that anything done by the Russians — on their own or in combination with anyone else — materially influenced the 2016 presidential election. But none of us in the public knows what Mueller actually has, and I'm withholding judgment on that. If I had to guess, my guess is that if Trump will control himself and let this play out, Mueller will end up accusing him and his campaign of extremely poor judgment rather than anything criminal. The poor judgment part in unarguable, whether it's Donnie Jr's meeting at Trump Tower or Trump hiring Paul Manafort, with all his baggage, as his campaign manager. If Mueller recommends no criminal charges, nor in lieu thereof a referral to the House for possible impeachment consideration — if it's a declination, in other words, letting Trump off the hook — then under the special counsel regs, that report may never, ever see the light of day: Rosenstein can put it in his desk drawer, lock it, and write a note to the chairs and ranking members of the House & Senate Judiciary Committees which reads, "Pursuant to 28 C.F.R. § 600.9(a)(3), in my capacity as Acting Attorney General, I hereby notify you of the conclusion of the special counsel investigation." The regs permit him to explain if he believes that to be in the public interest, but doesn't require it.

I can totally see Rosenstein sending that letter and locking that desk drawer. The whole thing would end without a bang, and indeed, without even a whimper. No James Comey-style press conference criticizing Trump but clearing him. No grandstanding. No further comment at all from DoJ or FBI to either confirm or deny anything. By the book, exactly.

But would it completely surprise me if it turns out that Manafort flips tomorrow and tells of being dispatched to meet Putin in a dacha on the shores of the Black Sea, there to run through their plan to use a few millions in woefully ridiculous Facebook ads to manipulate the Pennsylvania delegate to the Electoral College? No, no more than I was surprised to learn that Trump's lawyer Cohen paid a porn star $130k to cover up a consensual one-night stand. No more than I was surprised to learn that Cohen's mystery client is Sean Hannity. With Trump, we're in reality TV star land, not reality as we know it.

I do know, beyond any shadow of a doubt, that Donald J. Trump is always and ever his own worst and most effective enemy. He has been since he ran the USFL into the ground and won $3.00 (three hundred pennies) as treble damages from the NFL.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

"Clinton" = (fake crime that Birkel Clavin couldn't find a prosecutor to charge)

"Deep State" = (a non-person/non-organization that Birkel Clavin can't identify. Just nebulous hatred at the fact that there are professionals in government with higher, constitutional loyalties than any that can be given in a personal oath to Trump).

It must suck when you have to imagine indictments when you don't know what crime might have been committed and hate your government so much that you can't even get a hateful tool like Trump to find anyone competent who wants to work with/for him.

But that's how much you hate Clinton. Keep on truckin', Einstein.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Hey Birkel - if you ever get a woman to have sex with you, tell her that you'll teach your kids about The Abominable Snowman, the Tooth Fairy and Deep State.

BTW, how's that letter to the prosecutor of Hillary Clinton's crimes coming along? Or did you suddenly become the DA? The DA "at large?"

The DA of Deep State. Too funny.

Birkel said...

Beldar,
You forgot the interest attached to the USFL judgment.

It was either $3.17 or $3.18 after that.


:-)

Birkel said...

I think $3.18....

Beldar said...
This comment has been removed by the author.
Beldar said...

@ Michael, who wrote (5/1/18, 5:54 PM):

"Beldar, were he my lawyer in any of the instances when I was deposed, would have advised me to answer truthfully and carefully and, importantly, would suggest I not subject myself to self-conjecture about past feelings or actions that I did not recall with a high degree of certainty. In other words it is not embarrassing or slippery to say I do not recall."

You're exactly right, and so would almost every other lawyer. Indeed, we affirmatively and emphatically warn witnesses never to speculate, and to resist being lured into speculation. We warn against volunteering. We warn against answering a question you may not fully understand, because you're trying to get it over with quicker or be helpful. We almost all have a whole spiel we go through, custom tailoring it to each witness' situation and capacities.

Trump has been through that same prep, since he's given several sworn depositions, including some on video that you can track down on the interwebz. I don't think he's confronted a genuinely skilled interrogator yet, but against lawyers of reasonable competence he's generally done okay. He certainly hasn't yet had a "You can't handle the truth!"/Col. Jessup moment on the stand. I'd be sweating bullets throughout, but I don't think it's at all inevitable that he would crash and burn during an FBI interview whose outcome could determine the fate of his presidency.

But that's all based on the presumption that he's merely a self-centered, narcissistic, devious, self-promoting reality star turned political naif. If he's got something much worse that he's been trying to hide — if the explanation for him acting exactly like a guilty man trying to obstruct justice by discrediting and interfering with the investigation into him — and if Mueller has something powerful that the public is still unaware of, then things might be very different.

In negotiating a list of subject areas like this, Trump's lawyers — quite appropriately and effectively, given what I think is their very limited leverage — are trying to minimize the chances that Mueller has some smoking gun he's going to pull out of his briefcase in the last 10 minutes that is comparable to the line of questions about Monica Lewinski that Paula Jones started hitting Bubba with during his deposition, which resulted in Bubba perjuring himself on videotape in front of a the judge presiding over that case. That Mueller is giving Trump any sort of list of topics AT ALL is a remarkable concession, and I believe it's intended, in fact, to reassure Trump in hopes that Mueller can finish his due diligence, wrap up or try Manafort and other loose ends, and close up shop.

Matt Sablan said...

"So yes, there is a precedent on point, and no, it isn't what you say it was."

-- It is more being cheeky, specifically firing IG Walpin for investigating Obama's campaign. I'm almost always fine with the investigation going to a conclusion, but at this point, I'm under no disillusionment that the politicians in power on the left will ever treat fairly with Republican politicians, so the only thing left is to point out the double standards

Birkel said...

Anybody else notice how many of the FBI-DOJ leaks went to the WSJ?

I guess when one wants a leak believed one goes to the Liberals the Left pretends are conservatives. And also the paper with Fusion GPS ties.

Odd? Or not?

Birkel said...

Serious question, Beldar:

What series of political successes could get you to reassess your view of Trump as political naif?

Judges?
Koreas?
Iran?
GDP growrh?
Deregulation?

Or is uncouth ass hole disqualifying a priori?

Inga...Allie Oop said...

Things could get interesting, well more interesting, it seems.

Special counsel Robert Mueller’s team raised the prospect of issuing a grand jury subpoena to compel President Donald Trump to testify as part of the Russia probe, the president’s former attorney said Tuesday.

Attorney John Dowd told The Associated Press that Mueller’s team broached the subject in March during a meeting with Trump’s legal team while they were negotiating the terms of a possible interview with the president.

https://www.apnews.com/4d7ba12398314a9b867c66fed139dcca

Matt Sablan said...

Meh. I don't see why Trump can't simply ignore the subpoena the way Clinton's team ignored it by destroying evidence.

Honestly, the idea that a politician has to answer to investigators is so passe.

Inga...Allie Oop said...

“I don't see why Trump can't simply ignore the subpoena...”

He can ignore it, until the Supreme Court says he can’t.

Matt Sablan said...

Again, I'm sure that may happen, but again, I *liked* the rule of law before it got shredded to protect Clinton and Obama. I'd have liked for the last 8 years it not to have been abused and degraded, only now to suddenly find people professing a love for it, now that they can turn it against someone they dislike.

If there'd been consistency, I'd take the sudden "the president isn't above the law!" comments a lot more, if the same people hadn't scoffed to protect a rapist and to insist Obama need not answer questions asked by Congress.

Birkel said...

Mueller: Here is a subpoena.
Trump: Executive Privilege and/or The 5th.

How is that interesting?

Matt Sablan said...

"What were you thinking when you fired Comey?"

"That as the president, I have the right to fire him for any reason, and so I did."

"But... what specifically were you thinking?"

"That he was not telling me everything about the dossier, which it turns out, I was right to believe, as he lied to me. I went with my gut, and it turns out my gut was right. He was a liar."

Matt Sablan said...

“These should remind everybody forcefully that the special counsel is going to raise questions about a conspiracy between a foreign power and the Trump campaign to illegally influence the outcome of a presidential election,” Bob Bauer, the former White House counsel under President Barack Obama, told me this morning.

... That's from the WaPo.

I wonder... uh... is Mueller asking Clinton the same things, since, you know, Russia held a hate-Trump rally? Or, are we only assuming Trump may have been involved with the Russians, despite a Russian covert operative being friendly enough with the Obama administration that he let her work with his staff and his administration got her access to the country?

Matt Sablan said...

"In both these cases, Mueller has almost certainly established far more about Trump’s intent in trying to derail the probe than the public reporting indicates."

-- Also from the WaPo. Remember that McCabe and Comey have testified that the investigation was in no way derailed; Comey has acknowledged Trump asked him to continue investigating his satellites, and that despite going on a year of innuendo Trump would end the probe or fire Mueller or Rosenstein -- they're both standing. The only two people fired are McCabe--who lied under oath, and Comey, who has recently admitted to lying to Trump.

Where, exactly, is the obstruction?

Birkel said...

Matthew Sablan,

You are forgetting the most important charge: Obstructing the duly coordinated election of Hillary Clinton.

She was going to grow the federal government and really lock in those million dollar home prices in Prince George County and NoVA.

Achilles said...

President Pee-Pee Tape said...
"Clinton" = (fake crime that Birkel Clavin couldn't find a prosecutor to charge)

Sailor jailed for 1 year for 6 pictures.

He had no intent or attempt to distribute.

Hillary Clinton destroyed 33,000 emails, multiple mobile devices and hard drives that housed information she downloaded off of SIPRnet.

She sent thousands of emails to people without clearances. She had her housekeeper print this shit out for her.

That is intent to distribute which carries higher penalties.

Thousands of these emails ended up on Carlos Danger's lap top he was using to view kiddie porn.

It is ok to admit you don't believe in the rule of law. We already know you don't so it changes nothing.

Michael K said...

But that's all based on the presumption that he's merely a self-centered, narcissistic, devious, self-promoting reality star turned political naif.

The TDS is thick here. I wonder of the Trump haters like Beldar and Patterico are prepared for what would happen if they actually succeeded in deposing Trump on some 'trumped up" grounds?

It would be interesting for the first few days. Then we would have the crash.

I think I have enough ammunition but you cannot be too sure.

Achilles said...

Hillary and Obama have been caught hiring foreign agents to dig up dirt on a political opponent. Through intermediaries they paid Christopher Steele millions of dollars to undermine the US election.

It not being enough that they paid a foreign spy for the dossier they used it in a deceptive and illegal way to get warrants allowing them to spy on their political opponent.

The only people who colluded with Russians in 2016 were Obama and Hillary. Have fun with that.

DavidD said...

“How did you learn about the Watergate break-in, Mr. President?”

“ ‘I heard it through the grapevine....’ ”

Birkel said...

The intermediaries were Perkins Coie law firm and Fusion GPS.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Anybody else notice how many of the FBI-DOJ leaks went to the WSJ?

I guess when one wants a leak believed one goes to the Liberals the Left pretends are conservatives. And also the paper with Fusion GPS ties.

Odd? Or not?


It's not odd that anyone would rely on the media that Trump attacks when leaking the misdeeds and dramas and difficulties of Trump-State.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

It is ok to admit you don't believe in the rule of law. We already know you don't so it changes nothing.

It's ok to admit that you have mental problems that confuse me with whichever prosecutor you forgot to write to to ask for charges to be brought.

Republicriminals really do have a mental problem that makes them think anyone they're angry with is judge, jury and whomever else let them down.

Comey was a Republican and couldn't find probable cause for someone in the position he investigated to be charged.

Try going to law school if you disagree, ignorant domestic terrorist wanna-be.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

The only people who colluded with Russians in 2016 were Obama and Hillary. Have fun with that.

It's not as much fun as watching you flunk your law school exams. Again, write your Republican prosecutor and request the charges. I'm sure they will be happy to take your advice and maybe have you provide back-up counsel for them through the trial, too!

Make sure you tell them about your illicit backyard pharmaceutical manufacturing operations while you're at it, Mr. Rule of Law.

ROFLMAO!

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

The reason the country's in the gutter is because you have ignorant assholes like Birkel Clavin and Domestic Terrorist Achilles who refuse to believe that they might not know as much about the law as an actual lawyer or prosecutor. They just can't handle not being judge and jury in any vengeful partisan matter that pisses them off.

They're really not fit for a law-abiding society. Maybe they belong in prison like all those other Republicriminals. LOL!

Birkel said...

Correct. The country was in the gutter due to Leftist Collectivist governance under Barack Obama.

Now we are at an annualized 3% GDP growth.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

The country was in the gutter due to Leftist Collectivist governance under Barack Obama.

Now we are at an annualized 3% GDP growth.


Oh wow! For less than a year! (But "annualized" out to pretend it's for an actual year). And we only had to poison our water and air to do it! Awesome.

Do you think he could get it up the rate it was under Clinton? Or would that take even more poisoning of the American landscape?

Good thing you're not an investor in 2018, Clavin. Or any year.

President Toilet Paper Shoe's Cooked-Up Drug Deal said...

Birkel loves to not only count his chickens before they hatch, he can't even remember how many eggs there are.

His 9:36 PM comment is the most hilarious example of premature exclamation I've ever seen from someone who doesn't get up at 5 AM to Twitter away.

Birkel said...

Yea, asking what future events might satisfy Beldar that Trump is not a horrible president is.... something.

I often find setting benchmarks hilarious.

Beldar said...

@ Birkel, who asked (5/1/18, 9:36 PM): "What series of political successes could get you to reassess your view of Trump as political naif?"

"Political naif" is the best he'll ever get from me. He's been very successful at not being Obama or Clinton, and that is by far the best thing that can be said for or about him, and I do say it. He's done several things of which I approve, and for which I've expressed my approval publicly. Of the ones on your list, I'd agree with you on judges and deregulation. The others are still, at best, premature to judge, and in fact, so far, on Iran & Korea he's done nothing different from Bubba, Dubya, or Obama, which is to say: The Norks and the Mullahs are making as much fissile material as they can, hand over fist, while luring us and our allies into a series of diplomatic tangos that end in utter frustration and more bomb- and missile-making. I'm hopeful that the Norks may actually collapse, not so much because of anything having to do with Trump, but because they're facing literal starvation combined with in influx of truth from outside their borders, so I'll hope for the best.

For every thing that Trump has done of which I approve, though, I can point you to ten things he's done of which I disapprove, or in which I find fault with his inadequacies. And I believe he's thoroughly toxic and corrosive to American values. That's also true of the Clinton family, of course. There is no universe in which I would ever have voted for either Bill or Hill, nor in which I would ever vote for Trump, for anything. They all peg my "unfitness" meter, albeit they get there in different ways.

Beldar said...

@ Birkel, who also wrote (5/1/18, 9:46 PM):

---begin quote---
Mueller: Here is a subpoena.
Trump: Executive Privilege and/or The 5th.

How is that interesting?
---end quote---

Those are very different things. Executive privilege covers particular communications; it's not an immunity from prosecution, nor an immunity from having to testify at all, but a possible objection one can assert with respect to particular commuinications exchanged in private between a POTUS and his cabinet heads and other high executive branch officers.

So if Trump says, "Executive privilege," Mueller will say, you can argue that in your motion to quash, and you'll be told that it's no defense to appearing before the grand jury, although it might, depending on the question, be a basis for refusing to answer specific questions, in which event the judge presiding over the grand jury will hear and rule on your privilege objections -- whether they're based on executive privilege, attorney-client privilege, or any other evidentiary privilege."

If Trump refuses to answer any questions because he pleads the Fifth, then in theory, Mueller could confer immunity on him and, freed from criminal jeopardy (at least for federal crimes), he could try to force Trump to testify notwithstanding his Fifth Amendment assertion. I think instead, Mueller would do what prosecutors do whenever defendants take the Fifth: Decide whether a case can be proved beyond a reasonable doubt without the benefit of the defendant's testimony, and either indict or decline to indict accordingly. Note well: In the overwhelming majority of such situations, the decision is to indict anyway, for the prosecutor's full expection is that the defendant will indeed take the Fifth. Defendants like Scooter Libby -- who was obliged to waive the Fifth and submit to FBI interviews and grand jury subpoenas on order of the POTUS -- are the exception. But Trump's situation is like Bubba's: What's within his constitutional rights as an individual citizen may not be within the tolerance of the Congress that passes upon his continued fitness to hold office. Bubba didn't take the Fifth because he was sure he could talk his way out of it (typical Clinton misplaced hubris; he made it worse), and he knew that taking the Fifth would itself persuade the Congress and American people that he had crimes to hide. Jurors in criminal trials aren't permitted, in theory, to draw adverse inferences from a defendant's refusal to testify; but a POTUS' relationship to Congress and the public isn't that of a criminal defendant, and we can and should expect better from any POTUS, because the person charged with executing faithfully the Constitution and laws of the United States ought to be willing to be held accountable and answerable, literally, to the country and the Congress.

I repeat: Trump's most formidable opponent is himself, and his most intractable problems are of his own creation, and he prolongs them daily by refusing to follow his lawyers' advice to STFU and stop acting like he's guilty with things he has to keep hidden. Having lived through the backlash from the Nixon resignation in 1973 and the resultant blue wave with veto-proof majorities in both chambers of Congress in 1974, I genuinely hope he can get his act together sufficiently to stop making this worse. But doing so will run absolutely contrary to all of his impulses, and I'm genuinely fearful — for the sake of the country — that he'll self-immolate instead, e.g., by firing Mueller and/or Rosenstein, by taking the Fifth, or by some other act of impulsive desperation.

Beldar said...

@ Michael K (5/1/18, 10:05 PM): I'm not trying to depose Trump. See above. But congratulations on Obama-caliber straw-manning.

Beldar said...

For completeness (and out of lawyer pedantry, since, as Achilles wrote, I hold myself out as a lawyer):

On the particular communications on which Trump attempts to assert executive privilege, it's entirely possible that the judge or magistrate hearing those objections, and privilege assertions in support thereof, will agree that the communication is covered by privilege. Everything said between them in Comey's private meeting with Trump after Trump dismissed everyone else (including the AG) probably is entitled to be covered by executive privilege. That's why Comey's an unethical weasel who should, at a minimum, lose his law license: Despite his fiduciary duties to preserve for his principal, Trump as POTUS, the opportunity to at least assert executive privilege before those communications become public, he deliberately and knowingly breached those duties and disclosed them (or at least his version thereof). That's not technically a waiver of privilege — for waiver can only be done by the principal, just as only the principal may decide whether to assert the privilege. But it makes the privilege worthless to the principal to the extent that it puts into the public communications that the Executive was entitled to keep private.

BUT:

Executive privilege isn't absolute. It's qualified, and can be overcome depending on circumstances, as it was in the Nixon tapes case, and assuredly would be here were Trump to try to actually assert executive privilege on that very same conversation with Comey.

In short, your script is incomplete, and either alternative you propose would only lead to a next step, in court, where Trump will lose.

Bruce Hayden said...

“If Trump refuses to answer any questions because he pleads the Fifth, then in theory, Mueller could confer immunity on him and, freed from criminal jeopardy (at least for federal crimes), he could try to force Trump to testify notwithstanding his Fifth Amendment assertion.”

If you think about this, it is a bit circular. The power to confer immunity is part of a President’s Article II Executive Powers delegated to prosecutors by the President. So, you are essentially suggesting that the prosecutors utilize power delegated to them by Trump to offer immunity to Trump (or even to force him to testify). And, indeed, this sort of circularity is endemic with the prosecution of a President by employees of his to whom both the power to prosecute, and the power not to prosecute have been delegated to them by the President. Moreover, what is the legal effect of his pleading “not guilty”? Isn’t that effectively an order not to prosecute him, which would be, essentially, withdrawal of the power to prosecute, and the prosecution essentially ultra vires?

Note, btw, two differences between what Clinton faced, and what Trump might face. The Ken Starr prosecution was pursuant to an independent counsel statute, that was allowed to expire, and wasn’t ever reinstated. The Mueller prosecution doesn’t have that fig leaf of specific statutory authorization. Could Clinton have fired Starr and his team? Probably, but not certainly, give the, since expired, Special Counsel statute. And the contempt proceedings against him for lying under oath was a proceeding by the Judiary. You have Separation of Powers issues there, as contrasted to a completely Executive Branch investigation and prosecution, such as we have with Mueller.
And, as for asserting Executive Privilege, the latter questions are mostly not what did Trump do, or even know, but rather about his decision process, which is squarely within Executive Privilege territory.

Bruce Hayden said...

Also, WTF should Mueller be able to ask the President about his conversations with one of his top aides? (Even ignoring, for a moment, that the President raising Executive Privilege is effectively an order to his subordinate not to ask the question, or at least pursue it, and, thus, pursuing that against the President is insubordination, and is, again, ultra vires - or, maybe more formally, invocation of Executive Privilege in this situation is, essentially, revocation of the prosecutorial discretion that allowed asking the question in the first place).

Bruce Hayden said...

Let’s flip the script a bit, and go with a popular Democratic President, instead of a controversial Republican one. We all remember Comey essentially exonerating Crooked Hillary for her illegal email server by stating that no (DoJ) prosecutor would prosecute her based on a deliberately wrong intent standard for violation of the Espionage Act. He essentially said that they couldn’t prove specific intent (they probably could have) and only had gross carelessness, when the correct standard was specific intent OR gross negligence. What is often ignored though is that neither Comey, nor the DoJ prosecutors who weren’t going to prosecute her because the incorrect intent standard was being used, had determined that this incorrect intent standard be applied to her case. Rather, it came straight from Obama, who said, essentially, that despite her being very careless, she hadn’t intended to do anything illegal. By doing that, he was, essentially, determining prosecutorial discretion in regards to Clinton. Statutory construction is part of prosecutorial discretion, esp when it comes to overly conservative or limiting interpretations, that lead to underprosecution.

Of course, we later find out that the reason that Obama essentially drove the decision not to prosecute a Crooked Hillary for her illegal mail server under the Espionage Act was that he was complicit in it. He had communicated with her, on her private server, using an alias, which no doubt meant using a commercial email service. He very likely violated the Official Records Act, if not the Espionage Act, himself. At a minimum, he knew that she was guilty of those violations, yet not only did nothing to end it, he helped her, by communicating with her on her illegal server. Obstruction of Justice here, esp given his selfish motive?

My view is that what Obama did was quite a bit more egregious than anything that Trump has credibly been accused of doing. Nevertheless, I believe that Obama was operating within his Article II power when he was essentially determining prosecutorial discretion in the case of Crooked Hillary’s illegal email server - despite his selfish motive for doing so. The legal remedy for that was not prosecution through the legal system, but, rather, political, in the form of impeachment.

Bruce Hayden said...

@Beldar - I haven’t reread the Nixon Executive Privilege case for quite some time now, but I think that the standard pretty much has to be whether a prosecutor has probable cause to believe that the conversation or document would show that a crime had been committed. In many cases, that a prima facile case is made that the information that the prosecutor has reasonable cause to believe is contained in the conversation or document, combined with known and verified information show a violation of a specific criminal statute (or a tort having been committed). One big danger, being protected against, is fishing expeditions. Also perjury traps. I have seen no credible evidence yet that Mueller can make such a prima facile case. For example, Trump would have been perfectly within his rights as the US President telling Comey to not prosecute Gen Flynn (which doesn’t appear to have happened), unless, for example, money had changed hands. Thus, prosecutors should need more (such as proof of money changing hands) to overcome Executive Privilege over that conversation.

Birkel said...

Beldar,
In internet years we go back quite a long way. So when I ask what follows I would ask you to read it in the light most favorable to ne, the writer, as an effort to get you, an audience of one, to reconsider your response to Trump:

If you believe life has given you lemons, why are you so convinced that the only thing to do is allow the fruit to spoil on the vine? There are a momentous occasions happening and the outcomes are unclear.

The president is flawed and was not my first choice. He was my choice only after all the primary challengers withdrew. But I can see past those flaws and note the vastly superior (to my expectations) performance currently underway.

But you admit to no set of circumstances that would have you change your mind.

In what other context would such an unyielding determination be appropriate or advantageous?

I submit that a flaw inside YOU is revealed through your own tactics.

Make lemonade.

Beldar said...

Birkel, thanks for your civility, which I genuinely appreciate. Let's conclude for now, perhaps, with this: When our lemon of a POTUS does things that produce lemonade — withdrawing from the Paris Climate accords, or wisely outsourcing to others the task of identifying potential judges from among which he makes his appointments, or directing his executive department heads to reverse the growth of federal regulation — I'll drink it and thank him for it and toast him with my glass. As I said, I'm not demanding his impeachment, I'm not even demanding his resignation, and while I think his election was a fluke, I don't think the Russians put him into office or any such nonsense.

But he's profoundly unfit for this office, as he demonstrates daily. He isn't smart; he doesn't play 3-D chess; he is self-obsessed and reactive instead of principled; and he brings out the very worst in those around him. There is no chance that I will ever vote for him for anything; I'll campaign actively and vote for someone else in the 2020 GOP primaries, presuming he runs again; and I'll not withhold my criticism for his stupidity. His stupidity and abysmal judgment have now tied the country up for more than a year while the Democrats bat him about the head and shoulders with the brickbats he has handed them. And the consequence of that in the biggest of pictures is that we've effectively lost a rare, sparkling opportunity, in which the GOP had the WH and majorities in both chambers of Congress, with nothing much to show for it but the tax cut bill (good) and a budget-busting free-spending appropriations bill (Obama-caliber bad).

Let's you & me both hope for more days with lemonade.

Mr. Hayden: Someday after you've re-read the Nixon tapes case and Jones v. Clinton, perhaps we can chat at more length about executive privilege. I don't say that dismissively, for I respect your abilities and intelligence, and before that discussion, I'd want to re-read them too.

Cheers to you both, if you happen to still be following this thread. :D

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