Donald Trump

The Case Against the Case Against the Mueller Investigation

Noted attorney George Conway dismantles the constitutional arguments against Special Counsel Robert Mueller's investigation


President Trump and his defenders have sought to undermine the legitimacy of Special Counsel Robert Mueller's investigation at every turn. They have attacked Mueller personally, Mueller's office, Mueller's associates and, most recently the constitutional legitimacy of Mueller's appointment and investigation.

The latter argument received a boost when noted constitutional law scholar Steven Calabresi authored a white paper and op-ed alleging that the Special Counsel investigation, as currently constituted and conducted, violates separation-of-powers principles. According to Calabresi, "Deputy Attorney General Rod Rosenstein's appointment of Robert Mueller is unconstitutional both under the test for officer inferiority set forth in Justice Scalia's opinion in Edmond v. United States, which is cited as good authority in Free Enterprise Fund v. PCAOB and also under the test for officer inferiority set forth in Chief Justice Rehnquist's majority opinion in Morrison v. Olson. Under both tests, Mueller is acting as a principal officer even though he has not been nominated by the President and confirmed by the Senate. Mueller's appointment is therefore unconstitutional."

Today, over at the Lawfare blog, noted attorney George Conway (yes, that George Conway) patiently and painstakingly dismantles the arguments against the Mueller investigation's constitutionality. As Conway explains, Calabresi's arguments are based upon mistaken premises and misplaced comparisons. As Conway concludes, "there is no serious argument that Special Counsel Mueller's appointment under the Department of Justice's regulations violates the Appointments Clause specifically or the separation of powers generally."

As a general matter, I have been a fan of Calabresi's scholarship on many issues. Not here. Point by point, Conway has the better of the argument, and it is not particularly close. Under current law, there is no basis for claiming the Special Counsel investigation is unconstitutional.

Conway concludes:

It isn't very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldn't know the difference between a good one and a bad one. And there is absolutely nothing wrong with lawyers making inventive and novel arguments on behalf of their clients, or on behalf of causes or people they support, if the arguments are well-grounded in law and fact, even if the arguments ultimately turn out to be wrong. But the "constitutional" arguments made against the special counsel do not meet that standard and had little more rigor than the tweet that promoted them. Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyers—regardless of their politics—owe a duty to abjure.

[Note: I've edited the opening of the post to eliminate some awkward phrasing.]

NEXT: Daugherty's revenge

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  1. Calabresi has long been a proponent of a strongly unitary executive and wrote a book on it. If indeed his arguments here are a stretch for existing precedent, I suspect they are at least consistent and in support of his long held views.

    Conway accepts Rosenstein’s claims that he is properly supervising Mueller. He also assumes that Mueller has acted within the scope of his appointment, and therefore that the appointment was defined and properly specific to begin with. But this latter claim is extremely dubious, as Andrew McCarthy has cogently explained.

    The unitary executive is certainly crucial to the separation of powers. And yet, Mueller is obviously outside of the President’s control. But that must only be true politically, not legally. Is it?

    The whole reason for this special counsel mess — Session’s recusal — remains a mystery. Seems he just didn’t have the stomach to stand up to the deep state.

    1. As Steve Vladeck pointed out in responding to Calabresi (originally in a tweet thread), whether Mueller has acted within the scope of his appointment is 100% irrelevant to whether his appointment was constitutional.

      1. I’d agree with that. It is, however, 100% relevant to whether his conduct is legal.

      2. Yes, it’s sort of a tangential point. But the bigger issue isn’t whether he acted within the scope of his appointment, it’s whether the scope was properly set out to begin with. Can’t act outside of the scope when there is virtually no scope.

        1. If there is no scope it’s not a remotely appropriate appointment. It is the essence of unelected and unaccountable government.

          There is nothing tangential when the question is “the constitutional legitimacy of Mueller’s appointment and investigation.” Whether lacking in, or exceeding a defined scope either is problematic to say the least.

          1. Good point. I don’t think it’s 100% irrelevant to constitutionality at all, but it’s a distinct issue.

    2. “The whole reason for this special counsel mess — Session’s recusal — remains a mystery….”

      The only mystery is why anyone would think it was a mystery. Except for Trump. Trump’s bafflement regarding the recusal has to do with a combination of (1) his complete ignorance regarding ethical standards and (2) his belief that no legal or ethical standards should ever be an obstacle to whatever he wants when he wants it.

      But to solve the mystery for you:

      Sessions met with Russians during the campaign and failed to mention that when asked about Russian contacts with the Trump campaign during his testimony in his confirmation hearing. When the investigation involves looking into, among other things, Russian contacts with presidential campaign members, Sessions has a as clear a “conflict of interest” as it is possible to have. He did the only thing he could do consistent with his ethical obligations and common sense respect for the rule of law: he recused.

      (But, you know all this. Thanks, though, for calling it a “mystery” and attributing it to a lack of “stomach to stand up to the deep state.” Now I know what world you inhabit.)

      1. Wrong. The fact that Sessions encountered a Russian ambassador is extremely routine and unremarkable, and is not a basis for recusal. Neither is the fact that he did not mention it in response to Al Franken’s absurd question about the farcical election interference narrative, which was then being whipped up in the throes of Democrats’ delusional outrage and denial at the results of a democratic election.

        The non-mystery here is that you and so many ignorant others have bought into this.

        In reality, the cited basis for Sessions’ recusal is 28 CFR 45.2, regarding a personal or political relationship with the subject of a criminal investigation. The first problem, as McCarthy has explained, is that the investigation was purportedly a counterintelligence investigation and not a criminal one. Beyond that, at the very least, Sessions’ recusal was far too broad and sweeping.

        The fact is, there is a 10x stronger case that Mueller — a close friend of Comey and others — has a conflict of interest, than that Sessions does. Sessions recused because he the kind of man to adopt a sensitive punctilio of honor. Mueller, not so much. Personally, I suspect it also didn’t hurt that for Sessions recusal probably seemed like a way to make his life easier.

        1. I am right.

          “farcical interference narrative”…. FBI, CIA, NSA, Trump’s cabinet, yes, all part of your deep state fantasy, no doubt, in agreeing and confirming that Russia did interfere in the election in multiple ways.

          Given this starting point, it is no surprise you go off the rails in your analysis. But mainly, you crib from McCarthy, a purveyor of conspiracy theories. His various critiques of the Mueller appointment and investigation have been debunked here. He is unable to dispassionately analyze any of these issues, apparently, which lead him to embarrassingly silly assertions. Sort of like your: Sessions shouldn’t have recused himself because it was “purportedly a counterintelligence investigation.” But, again, your premise is that this is all a deep state conspiracy which even Sessions is supporting (by not standing up to it despite being AG).

          “In reality….” It is a nice place. I hope you (and Andrew McCarthy) visit sometime soon.

          “The fact is” A sure sign that you are about to assert a non-fact as fact. And, bingo.

          1. McCarthy a purveyor of conspiracy theories? Good one. No, he is a critic and skeptic of conspiracy theories, such as the election interference collusion conspiracy theory. Nobody disagrees that some Russian entities posted laughable Facebook memes. But that appeared as a click farm revenue operation, not a remotely serious political operation that could have any conceivable effect. Certainly, it was nothing compared to the Russians and a Brit cooking up a “salacious and unverified” dossier designed to discredit Trump, which was then used to justify investigation and surveillance of the political opposition. Now that’s collusion and interference. Perhaps, the Russians were also involved in real crimes re the hacking of the DNC and attempted hacking of the RNC, but there’s no proof of that or any indictments, and there’s some evidence to the contrary.

            Perhaps you can try to explain why speaking with a Russian ambassador is a basis for recusal. But you won’t, because that’s an absurd proposition. Granted, this was the political circumstance that precipitated the recusal. Sorry, I know you don’t like this, but Mueller’s connections with the people involved are much deeper than those of Sessions, and this makes Mueller’s conflict of interest much more plausible — though by no means am I saying that it’s clear Mueller has proceeded wrongly and should have recused.

            1. McCarthy is a purveyor of conspiracy theories, such as, but not limited to, that Barack Obama didn’t write his book “Dreams of My Father.”

              “election interference collusion conspiracy theory” Ha. Spoken like a true Trump apologist.

              There was election interference. All of the US intelligence agencies and Trump’s own cabinet members agree. Only the hardiest of Trump apologists denies that.

              Collusion: that’s being investigated.

              You focus on the “laughable Facebook memes” and skip lightly by the “real crimes re hacking of the DNC”. Um, again, the intelligence community has stated unequivocally that Russia was behind the hacking. I suppose Assange’s and Putin’s denials count as “some evidence”, but there really isn’t much dispute as to where the greater weight of the evidence lies. Russia hacked the DNC.

              1. The election interference collusion conspiracy theory is a real doozy. And the people who buy into it deeply are dupes.

                Who did the hacking? Yes, we have a handful of intelligence officials stating they believe it was Russia. They have not provided a shred of evidence supporting this, and it’s hard to think of a reason why they wouldn’t supply that if they had it. They never examined or even asked to examine the hacked servers. There is some evidence, though not iron-clad, that the breach originated with a local transfer and a leak rather than a remote hack. Finally, these same intelligence officials have been wrong many times, and also less than completely truthful at times. Despite all this, I’m willing to give better odds to the proposition that some type of Russian entity (not sure who or why) did the hacking, just based on the word of intelligence officials. But it’s far from a sure or known thing.

                Meanwhile, the collusion investigation is coming up short.

                1. You say, quite wrongly, that:

                  “They have not provided a shred of evidence supporting this.”

                  The Washington Post reported that several private cybersecurity firms (competitors of each other) concluded that Russia did the hacking and provided evidence and the US government released a declassified report explaining the evidence (protecting classified material, obviously) pointing to Russia.

                  And from Bloomberg, the Dutch intelligence service has info they shared with US intelligence services which led to the “high confidence” in the conclusion that Russia was behind the hack.

                  To say they “have not provided a shred of evidence” is misleading at best, completely false in truth.

                  And you conclude by following McCarthy’s lead (and now this new author) in making unwarranted assumptions about the “collusion investigation” based on, as you put it, unrelated criminal charges. Mueller hasn’t shown his hand, so it is all unfounded speculation regarding what he has or has not found.

            2. Sessions doesn’t have to recuse because he spoke with a Russian ambassador. Sessions was a major figure in the Trump campaign (chairman of the National Security Committee), he had spoken with the Russian ambassador but did not disclose the contact and later had to amend his Congressional testimony, the Russians interfered in the election in an effort to benefit Trump, and the DOJ/FBI was tasked with investigating Russia’s efforts to interfere which might have involved some people associated with the Trump campaign. There is more than a little appearance of impropriety for a prominent member of a campaign (Sessions) to run an investigation into whether people in that campaign had inappropriate contacts with a hostile foreign power. This is particularly so where the person omitted his own contacts with Russians during testimony before Congress when asked about contacts between the Trump campaign and Russia.

              It isn’t rocket science. You can only believe there is no conflict if you are already prejudging the facts of the case (i.e. no inappropriate contacts, no collusion, etc.). But the whole purpose of the investigation is to find out the facts. In short: Sessions would, essentially, be in charge of the investigation into his own conduct.

              1. By all accounts, then-Senator Sessions’ role in the campaign was extremely minimal, and the Nat Sec Advisory Committee only met a few times and was never functional. Nonetheless, I agree there is a colorable conflict when we survey the lofty heights of the “appearance of impropriety.” The same goes double for Mueller. But even so, the conflict is more limited in scope than Session’s sweeping recusal. As I’ve already stated, Sessions’ recusal is explained by his overly cautious approach and extreme degree of sensitivity to any appearance of impropriety.

                1. Hey! We agree that Sessions was right to recuse from at least a portion of the investigation.

          2. Mueller also received some type of ethics waiver, the details of which the DOJ won’t disclose, but that may relate to his law firm.

            Your link includes a lot of tendentious nitpicking and misstates of McCarthy’s positions, and some otherwise valid points. But it’s far from a “debunking” of McCarthy’s various observations and conclusions. For example, it is a real hoot to claim that a slew of charges *completely unrelated* to collusion and the 2016 election “alone belie any claim there was not sufficient indicia of criminal activity to justify a special counsel.” At the end the author stresses the speculative nature of some of McCarthy’s well-founded suppositions. But that cuts both ways.

            I use deep state sort of tongue in cheek. It is what it is.

            1. “tendentious nitpicking” = points too solid for you to rebut

              “otherwise valid points” = McCarthy is full of it.

              You put quotes around “completely unrelated” as if that was said by Randall Eliason, but he said no such thing. Playing footsie with some dishonesty there.

              Or are you quoting yourself? Or are you using scare quotes because “completely unrelated” is a silly characterization? The latter is a defensible position, but one hardly beneficial to your larger point.

              The investigation has already produced guilty pleas which, as the author states, is indicia of criminal activity by at least some of those Special Counsel was authorized to investigate.

              You admit the “speculative nature of some of McCarthy’s well-founded suppositions”. In other words, McCarthy is guessing at facts which most support his pro-Trump position.

              You are being far too generous with “well-founded.” McCarthy’s suppositions are unfounded suppositions. For example, he has no way of knowing whether special counsel has uncovered any evidence of collusion (beyond Don Jr. being excited to get dirt on Hillary, a member of Trump’s campaign apparently being aware of the DNC hack and that material damaging to Hillary would be released prior to that fact being common knowledge, etc. etc.). He has no way of knowing what Flynn’s guilty plea means. As Eliason points out, McCarthy presents as truth things about which he is only guessing.

            2. “But that cuts both ways.” No. McCarthy’s guessing only cuts against McCarthy and those who cite him as authority. And it cuts deeply.

              “I use deep state sort of tongue in cheek.”

              Quite irresponsible. There is a significant minority who buy into the deep state conspiracy theory. But, at least you find it silly enough to be a joke.

              1. I used asterisks, not quotes, to emphasize the fact that the charges are completely unrelated to the core election interference collusion conspiracy theory.

                McCarthy’s observations and conclusions include, but are not limited to, some well-founded suppositions. Eliason’s statement that McCarthy “knows that no evidence of collusion has been uncovered” is a good example of a misstatement of McCarthy’s position. Regardless, at what point in time would you find it reasonable to conclude that Mueller most likely does not have evidence that amounts to a criminal collusion case against the Trump campaign? I’m sure you can find some overstated language here and there, but McCarthy is at least as incisive and compelling as anyone else who is writing about these matters, and far more so than the vast majority.

                1. “at what point in time would you find it reasonable to conclude that Mueller most likely does not have evidence that amounts to a criminal collusion case against the Trump campaign?”

                  Now that is a great question! I would have thought the answer obvious: When Mueller reports what he has found (or closes the investigation with no publicly available report but also with no indictments which amount to a criminal collusion case in our loose, lay parlance). His investigative team has been impressively leak free, so we don’t know what they have.

                  You say Eliason mistates McCarthy’s position, but McCarthy says (in December 2017):

                  “For all practical purposes, the collusion probe is over.”

                  “…Mueller has no collusion case.”

                  I think those fairly convey to McCarthy’s readers that he is asserting that Mueller has no evidence of collusion.

                  Those are asterisks. Perhaps an optometrist would help that particular oversight of mine.

  2. I agree that arguments about the legality of the Mueller investigation are generally meritless (aside from the ones that some attorneys have actually posited in court) .

    That, however, is irrelevant to the question of whether it is normal, and follows department guidelines (also whether the previous FBI actions did). I have yet to see a case put forward that that is the case. Almost everything about this investigation is abnormal, although technically legal.

    1. It’s a Mueller investigation. It’s abnormal by definition.

      40 Questions Special Counsel Robert Mueller Needs to Answer Now

      Quotes (but read the whole article):
      As head of the criminal division while assistant U.S. attorney, then as acting U.S. attorney in Boston, Mueller oversaw a cluster of prosecutions tied to protected FBI informant and mob kingpin Whitey Bulger.

      Mueller’s stewardship of these prosecutions led to wrongful murder convictions, cover-ups and a $100 million settlement to the victims or their families, as two of these men died in prison. The Boston Globe only had one “lingering question” ? I have a few more.

      12.) Why did the U.S. Attorney’s office, under your direction, let the FBI protect known mobster Whitey Bulger?

      1. You can tell people are hacks when they say something like this:

        Mueller’s stewardship of these prosecutions led to wrongful murder convictions,

        The “wrongful murder convictions” happened while Mueller was in college, and involved state, not federal, prosecutions.

        12.) Why did the U.S. Attorney’s office, under your direction, let the FBI protect known mobster Whitey Bulger?

        The FBI does not report to the U.S. Attorney’s office.

        I called it hackish based on the limited content you quoted, but I went to the link and saw that it was posted by one of the dumbest human beings on the planet, Louie Gohmert, and virtually everything in there — not just the two things you quoted — is a lie.

        1. Here you go:

          In 2001, the four men convicted of Teddy Deegan’s murder were exonerated. Turned out the FBI let them take the rap to protect one of their informants, a killer named Vincent “Jimmy” Flemmi, who just happened to be the brother of their other rat, Stevie Flemmi. Thanks to the FBI’s corruption, taxpayers got stuck with the $100 million bill for compensating the framed men, two of whom, Greco and Tameleo, died in prison.

          Albano was appalled that, later that same year, Mueller was appointed FBI director, because it was Mueller, first as an assistant US attorney then as the acting US attorney in Boston, who wrote letters to the parole and pardons board throughout the 1980s opposing clemency for the four men framed by FBI lies.

          Of course, Mueller was also in that position while Whitey Bulger was helping the FBI cart off his criminal competitors even as he buried bodies in shallow graves along the Neponset.

          1. Re: your boldfaced claim.

            (1) Not sure what that has to do with the claim that “Mueller’s stewardship of these prosecutions led to wrongful murder convictions.” You’re talking about what he did twenty years after convictions that he played no role in “stewarding.”


            1. (2) The claim is false anyway:

              Much has been made about an assertion made by Michael Albano, the former mayor of Springfield, Mass., who served on the Massachusetts Parole Board in the 1980s. He has said repeatedly that he saw a letter from Mr. Mueller, written during the period while he was in the United States attorney’s office in Boston, opposing the release of one of the four men.

              But no copy of that letter has ever been produced, and Mr. Dershowitz now says in a statement that several days after making his remarks on the Catsimatidis show, The Boston Globe “revealed for the first time to my knowledge that no such letter has been found. I never repeated the allegation after that.” Still, he said, “further investigation seems warranted, since absence of evidence is not conclusive evidence of absence, especially in government files.”

              Perhaps. But an accusation of such gravity demands more. I found no such letter from Mr. Mueller in the commutation files in the court record. Neither did the lead trial lawyer for the plaintiffs, Ms. Balliro, who has a complete copy of the parole board files of all four men, which were produced in response to a subpoena before the trial. Other letters from federal prosecutors are in those files. But there was nothing from Mr. Mueller.

              That’s from the federal judge who oversaw the lawsuit against the government by the families of the wrongfully convicted.

              1. It doesn’t matter.

                They will just keep regurgitating the same lies, over and over, and if one is debunked, move on to the next.

    2. Trump will pardon anyone convicted of anything so the stakes are actually very low.

      1. We’ve had convictions, and yet no pardons.

        Because a pardon actually raises the political stakes.

        1. “We’ve had convictions, and yet no pardons.”

          Who’s been convicted? As opposed to pleading guilty? I ask this seriously, I might have missed something.

          1. It’s all guilty pleas, as is how white collar prosecutions go.

            Is there a material difference in the distinction you’ve made?

            The point is Sebastion is wrong – The stakes are clearly nontrivial, or else Trump would end the investigation via his pardon power.

            1. Any adjudications to date?

              Have any of those pleas been altered or amended?

            2. “Is there a material difference in the distinction you’ve made?”

              Of course there’s a material distinction: To convict you need to actually make a persuasive case that somebody is guilty. To get a plea, all you have to do is make a persuasive case to the defendant that they’ll end up bankrupt if they contest the charge.

              1. Brett, everything is material to something. Materiality depends on one’s thesis.

                Your distinction is immaterial to my (and SB’s) thesis about pardons.

        2. “We’ve had convictions, and yet no pardons.”

          Yet is the key word.

          No one has gone to prison yet. That is when the commutations will start.

          1. No one has gone to prison yet.

            The fuse on Manafort’s prison reporting date appears to have been lit (by Manafort).

            I hope Trump pardons Manafort, mostly because I want to see much of the Republicans’ political wish list destroyed in a self-inflicted fireball.

  3. “Noted attorney George Conway dismantles the constitutional arguments that Special Counsel Robert Mueller’s investigation”

    Jon, you forgot to finish the sentence/headline. I assume it’s supposed to end with something like, “. . . Mueller’s investigation . . . has no constitutional basis.”, or something along those lines, yes?

  4. Well, it seems to me that Conway’s argument is a double edged sword. Mueller’s appointment is constitutional if he is an inferior officer, can be removed by the President, and/or his work is supervised or directed by the President (or one of the Presidents principal officers.) Conway’s argument is not good for Mueller and his investigation any more than .Calabresi’s

    Under Conway’s analysis, if Mueller picks a fight with the President and attempts to act as an Independent Counsel separate from the DOJ, he loses constitutional legitimacy – among other things he loses the thin veil of DOJ “supervision”. To maintain his legitimacy Mueller needs to stay well within his lane and not get too embroiled in a direct fight with the President. The bigger the fight, the less legitimate the appointment of Mueller will appear under Conway’s analysis.

    1. “…if Mueller picks a fight with the President and attempts to act as an Independent Counsel separate from the DOJ, he loses constitutional legitimacy – among other things he loses the thin veil of DOJ “supervision”.”

      Why would the veil of DOJ supervision go away if he picks a fight with the President?

      1. All the executive power is vested in the President. The premise of Conway’s argument is that Mueller indirectly reports to the President. The more independent Mueller tries to be, the more executive power Mueller usurps.

        1. Mueller can be independent (whatever you mean by that) and still answer to Rod Rosenstein. If Mueller is answerable to Rosenstein, it doesn’t matter how “independent Mueller tires to be”. Since Rosenstein can fire Mueller, there’s no executive power for Mueller to usurp.

          1. Mueller is answerable to Rosenstein, and Rosenstein to Trump. Ergo Mueller can be fired by Trump. If he can be fired, Mueller is not really independent is he?

            Where it becomes problematic is when Mueller tries to assert independence, pick a fight, and claim he cannot be fired.

            1. And since Trump is answerable to the people, people like dwb68, it follows that dwb68 can fire Mueller. So, why haven’t you?

              1. Mueller has not been fired because he is a great gift to Republicans. Every second the Dems are talking about Russia and Mueller, they are not talking about the economy or record low unemployment.

                Trump is like a cat pointing a laser, and everyone seems to fall for it. Mueller lets Trump pretend to be the outsider in the White House in Trump’s epic “Me vs Swamp” battle.

                The minute Mueller stops being useful in Trump’s epic, dramatic, reality TV-show Presidency, Mueller will be gone.

            2. If he can be fired, Mueller is not really independent is he?

              Who claimed he was? He’s a special counsel, not an independent counsel.

              1. I think people seem to conflate “special counsel” and “independent counsel.”

                If he can be fired by the president, what is so special or independent about Mueller anyway?

  5. Two lawyers disagree, and each attempts to convince his audience (in this case, anonymous blog readers) that the other is a few bricks shy of a load, intellectually. Standard rhetorical device, which doesn’t work on me, though it certainly works on some. It would be more persuasive to me if Adler summarized the argument without characterizing one side or the other as “patient” and “painstaking,” or asserting that one side’s argument has been “demolished.”

    1. Maybe. But also: Trump throws out factually inaccurate statements for the purpose of controlling the conversation, energy, and focus. He now has a bunch of high profile lawyers debating the legitimacy and constraints of Mueller. Now, people think this issue has way more importance than they did last year. He basically moved the debate into his territory and forced Mueller into a box, one oddly created by Trump’s own critics. We are now debating the legitimacy of constraints surrounding Mueller in the mainstream media. Either Mueller is illegitimate under Calabresi, or he can be fired or redirected under Conway. This is all bad news for Mueller.

      Trump does this a lot. He puts out a controversial Tweet where people get hyper-focused in the tweet’s wrongness. Trump may lose debate about the Tweet, but he wins by controlling and framing debate.

      1. And thanks to the tweets, people know more about the 11 Democrats on Mueller’s team than they otherwise would.

        Andrew Weissmann, Mueller’s top gun in Russia probe known for hardball tactics, overturned rulings

        Quotes (but read the whole article):
        Defense attorneys say Mr. Weissmann bent or broke the rules. As proof, they point to appeals court decisions, exhibits and witness statements.

        They say he intimidated witnesses by threatening indictments, created crimes that did not exist and, in one case, withheld evidence that could have aided the accused. At one hearing, an incredulous district court judge looked down at an Enron defendant and told him he was pleading guilty to a wire fraud crime that did not exist.

        “Weissmann seemed more interested in obtaining convictions than in promoting justice,” said Tom Kirkendall, a Houston lawyer who represented an Enron executive.

        Said Mr. Cogdell, a colorful courtroom performer dubbed a “gunslinger” by the local press, “He’s the most aggressive prosecutor I’ve ever been up against. He is, if not win at all cost, he’s win at almost any cost.”

      2. Trump’s tweets only look like he’s just reflexively repeating whatever straw-grasping arguments attack the investigation of his administration. In actuality it’s carefully considered multidimensional chess!

        1. Trump’s tweets are the equivalent of a laser pointer leading a cat around. The motion appears random, but it still has a purpose: Distracting the cat.

          It actually kind of reminds me of my college roommate, the president of the Chess club. I was a so-so chess player, but I could usually play him to a draw if I attacked so aggressively that he was off balance until the board had been simplified enough for me to cope.

          Trump profits by keeping his foes agitated, too much so to effectively oppose him. His tweets are a primary tool in accomplishing it. While they’re agitated, he continues working on his real agenda in the background.

          1. “While they’re agitated, he continues working on his real agenda in the background.”

            Gee, you guys are sooooooooo smart.

            Absolutely no one is watching–and countering–Trump’s real actions.


            1. Pen, phone, and stray voltage will only take you so far…

    2. Worse, this all conclusory assertions; no facts anywhere to be seen. All in all, very disappointing to see coming from a law professor

  6. Good reading: Civil rights lawyer Harvey Silverglate: How Robert Mueller Tried To Entrap Me

    I have known Mueller during his career as a federal prosecutor. My experience has taught me to approach whatever he does in the Trump investigation with a requisite degree of skepticism or, at the very least, extreme caution.

    When Mueller was the acting United States Attorney in Boston, I was defense counsel in a federal criminal case in which a rather odd fellow contacted me to tell me that he had information that could assist my client. He asked to see me, and I agreed to meet. He walked into my office wearing a striking, flowing white gauze-like shirt and sat down across from me at the conference table. He was prepared, he said, to give me an affidavit to the effect that certain real estate owned by my client was purchased with lawful currency rather than, as Mueller’s office was claiming, the proceeds of illegal drug activities.

    My secretary typed up the affidavit that the witness was going to sign. Just as he picked up the pen, he looked at me and said something like: “You know, all of this is actually false, but your client is an old friend of mine and I want to help him.” As I threw the putative witness out of my office, I noticed, under the flowing white shirt, a lump on his back ? he was obviously wired and recording every word between us.

    1. Yeah, sure; I totally believe every word of your fable, um, story.

      Is it possible? Sure, in the existential sense. But since it runs contrary to every bit of evidence on Mueller’s behavior, based on decades of experience, I know which one is more credible.

      But you, of course, did report this extremely unethical behavior at the time, right? Can you cite us to that disclosure that you did make to the court? It will be on the record, of course, so it should be no problem for you to do that.

      1. “This evidence . . . runs contrary to all of the evidence! Um, except for this evidence, of course. But all of the rest is contrary, just trust me . . . “

      2. Is it possible? Sure, in the existential sense. But since it runs contrary to every bit of evidence on Mueller’s behavior, based on decades of experience, I know which one is more credible.

        Can you explain behavior in the anthrax investigation in 2001? When two innocent people were targeted as the sources when it was clear, early on, neither one was guilty.

        Yes, Mueller is the one prosecutor who wouldn’t skirt the rules…

      3. It’s not my fable, it’s a story told by noted civil rights attorney Harvey Silverglate. I can understand that it punctures the narrative of the Heroic Mueller and so you don’t want to listen to it.

    2. I encourage people to read the entire actual article. It’s not especially damning to Mueller.

  7. Conway doesn’t do himself any favors by using so much exaggeration in describing the position that he is criticizing. I for one, almost automatically question the cas of anyone using so much exuberance – if their case were really that strong, would they have to resort to as much hyperbole? He should really take writing nag tips from Eugene Voloch here.

  8. Conway doesn’t do himself any favors by using so much exaggeration In describing the position that he is criticizing. I for one, almost automatically question the cas of anyone using so much exuberance – if their case were really that strong, would they have to resort to as much hyperbole? He should really take writing tips from Eugene Voloch here.

    1. What is going to be interesting is to see how Judge Ellis of the ED VA handles somewhat similar arguments from Manafort. So far, he seems much less willing to trust Mueller and his highly redacted augmented authority memo from DAG Rosenstein. Think about it for a minute – Mueller is saying to the judge “trust us – Rosenstein authorized this investigation. It is too critical and important that we can’t let you, the judge, see the entire authorization, but we assure you that it covers what we are doing”. Last I knew, Ellis was essentially saying “bs – I have the security clearance to see the redactions, and have long experience in classified matter so”. I think that you could make a decent argument that defendants excluded from seeing the basis of a prosecutor’s power to prosecute, in special and unique situations, doesn’t violate Due Process protections – as long as the judge in the case is protecting the defendants’ interests. Judge Jackson, of the DC District, seemingly trusts Mueller and his team, and that the redactions are not relevant. Judge Ellis clearly does not. My view is that Ellis doing the better job here, in his job protecting the Constitutional rights of defendants. You may not. In any case, Conway’s uncritical, and, really, exuberant support of Jackson’s decision without at a minimum mentioning that Ellis seems headed in the opposite direction, weakens his case.

      1. Ellis doesn’t seem headed in the opposite direction. You’re basing that solely on him asking a few questions at the last hearing. As several defense lawyers pointed out, Ellis likes to give prosecutors a hard time in court, but then rules in their favor. Moreover, it ultimately doesn’t matter about the document Ellis is asking about; the regulations that were supposedly violated give no enforceable rights to Manafort.

        1. “Ellis likes to give prosecutors a hard time in court, but then rules in their favor.”

          Is it a show trial quite when the judge does things just for show?

  9. Is Adler the Conspiratory that blogs over there too? Don’t we have evidence that the people at the Lawfare Blog have been in on this failed coup attempt against Trump?

    Is Adler a real, actual conspirator?

    1. Guys! Sam Gompers is the same name as a labor leader. And we have some evidence that some union leaders were Communists.

      Is Gompers a real, actual Communist?

  10. The problem with Muellers investigation is that there was no identified crime he was to investigate.

    There is no authority for a special counsel in a counterintelligence investigation.

    Plus, there have been zero charges related to the Trump campaign colluding with Russians. Mueller needs to put up or shut up.

      1. Hasn’t Mueller found crimes and both indicted and had people plea out?

  11. The interesting thing to me is the Conway family dynamic.

    Attacking the wife’s boss publicly and repeatedly shows a high degree of bad judgment imho.

    1. How Mr. Conway and his wife address her daddy issues is their business.

      1. Shocker. The woman has all of the problems in Kirkland’s world.

        Well, he is a male feminist, so this seems to fit the usual M.O

        1. Wrong.

          I sense Mr. Conway has plenty of problems.

      2. “daddy issues”. Yes, a powerful woman must have daddy issues.
        The dark cloud of the War on Women is forever hovering over Republicans but usually manages to land on Progressives and Democrats:

        Michelle Obama’s Promotion of Misogyny and Date Rape

        Michelle and Barack Obama have openly promoted rap artists who glorify misogyny, sexual objectification of women, and even date rape… In April 2016, the Obamas invited numerous rap artists to the White House … including:

        * Rick Ross’s, “U.O.N.E.O.” glorifies date rape with the lyrics, “Put molly all in her champagne/ She ain’t even know it / I took her home and I enjoyed that/ She ain’t even know it.” .. Ross’ “Same Hoes” is meanwhile not about agricultural implements as shown by its lyrics, which consist primarily of the F word, a variant of the N word, and “hoes.”

        * Jay Z, who proclaims, “I’ve got 99 problems and a b***h ain’t one.”

        * Nicki Minaj: “Hey Mama,” “Make sure mama crawls on her knees keep him pleased rub him down be a lady and a freak” and also “Yes I do the cooking/ Yes I do the cleaning/ Yes I keep the nana real sweet for your eating/ Yes you be the (boss) yes I be respecting.”

        1. When Johnny Cash was invited somewhere, did that mean the invitee was endorsing shooting people in Reno?

        2. its lyrics, which consist primarily of the F word, a variant of the N word, and “hoes.”

          Oh, American Thinker, why even bother with the dog whistle?

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