On Saturday, the New York Times published an expose on how White House Counsel and former Trump campaign counsel Don McGahn has been cooperating with the Mueller investigation and has given thirty hours of interviews. Yet, instead of being praised for his cooperation and transparency, Mr. McGahn's character is being attacked by the "Gray Lady" in its ongoing efforts to undermine President Trump.
The Wall Street Journal's editorial board responded, pointing out that Mr. McGahn could have only cooperated with President Trump's permission:
The thesis of the New York Times story is that Mr. McGahn cooperated in a way that could hurt Donald Trump in order to protect himself and because he doesn’t trust the President. This fits the media narrative that Mr. Trump is covering up his collusion with Russia and his obstruction of justice, and thus Mr. McGahn must be scrambling to save himself.
Yet lost in the resulting tempest is a crucial fact that appears to contradict this spin: Mr. Trump had to waive executive privilege for Mr. McGahn to cooperate with Mr. Mueller. . . . But as White House counsel Mr. McGahn represents the Presidency. He is a careful enough lawyer to advise Mr. Trump that agreeing to answer Mr. Mueller’s questions would waive executive privilege. And the Times reports that Mr. McGahn’s attorney, William Burck, said on the record that Mr. McGahn cooperated only after Mr. Trump waived any privilege claim.
Executive privilege is held by the chief executive - the President - and as with other legal privileges, only the holder of the privilege can waive it. Unlike President Clinton when investigated by Ken Starr or President Obama's administration when investigated by Congress, President Trump has nothing to hide and is cooperating with the Mueller investigation, despite its problems and failure to return any evidence of wrongdoing by the President or his campaign after over a year of investigation:
This isn’t what you’d expect if Mr. Trump is leading a coverup. . . . Yet when Mr. Trump doesn’t invoke privilege for his White House counsel, he gets no credit. . . . Keep in mind that Mr. Trump’s lawyers cooperated extensively with Mr. Mueller for months, turning over tens of thousands of documents—also without claiming executive privilege.
The Wall Street Journal's editorial board pointed to the heart of the problem in the Times' misleading report - the effort to portray the Trump White House as fractured. Mr. McGahn has been loyal to the President throughout his cooperation with the Mueller investigation:
Mr. McGahn has been one of the President’s most effective advisers—notably on judicial nominations. But some in and outside the White House resent his influence and might want to portray him as undermining Mr. Trump. The bottom line is that readers should remain skeptical about what is reported about Mr. Mueller’s probe, waiting to see the evidence he actually produces.
To see the double standard here, one must only imagine what the news stories would be were the political parties reversed. The mainstream media would lament the waste of taxpayer dollars spent on a lengthy, unnecessary investigation by the Republicans and either applaud a Democratic administration for cooperating with it for the good of the country or defend the administration for not cooperating.
The trial of Paul Manafort has been frequently in the news the past few weeks, and to listen to the mainstream media, it would appear that the trial is about Mr. Manafort's crimes on behalf of President Trump during his brief time with the Trump campaign in 2016. But as Hans von Spakovsky pointed out, the trial has nothing to do with President Trump, the Trump campaign, or alleged Russian interference in the 2016 election:
But when it comes to the mandate given to Mueller on May 17, 2017, we’ve learned absolutely nothing. Mueller was charged with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
But neither Gates nor any other witness at the Manafort trial has testified about the Russian election interference or any alleged collusion between the Trump campaign – or Trump himself – with the Russians. . . . All of the testimony at the Manafort trial has addressed events that occurred long before Manafort went to work for 2016 Trump campaign. The testimony has focused on Manafort’s and Gates’s activities as alleged “unregistered agents” representing the Ukrainian government starting in 2006.
It would be absurd to argue that Manafort’s other clients in the 12 years since then are somehow to blame for any criminal activity he may have engaged in – and prosecutors aren’t even trying to point the finger at President Trump for these activities.
As Mr. von Spakovsky describes, the only connection between President Trump and Mr. Manafort's alleged misdeeds is how President Trump's opponents will try to attack him through his brief association with Mr. Manafort:
If Manafort is found guilty of tax evasion and bank fraud, some will try to use his very brief association with the Trump campaign to tar the president. But such criticism would ignore two crucial facts.
First, presidential campaigns are not law enforcement agencies. They have neither the capacity nor the resources to do detailed background investigations on the thousands of individuals who volunteer to work with a campaign.
Second, Manafort appeared to be a successful, ethical businessman. Even the government – including the IRS, the FBI and our intelligence agencies – had no idea that he was allegedly engaging in any wrongdoing for a foreign government through an elaborate scheme of offshore bank accounts and shell companies, until Mueller’s office started investigating him.
While the trial of Mr. Manafort is rife with political overtones, it is important that he not only receives a fair trial but also that the coverage of any evidence presented and the eventual verdict is accurate and not used as a political weapon through distorting the subject matter of the trial.
Ruth Marcus of The Washington Post needs either a law degree or a course in logic if she intends to comment intelligently on the legal issues presented in the Mueller probe. In this video commentary, Ms. Marcus, sounding like Edith Bunker, strains the law and principles of logic to argue that Donald Trump, Jr. committed a crime by engaging in a conversation with a Russian lawyer but Hillary Clinton did nothing illegal by concealing campaign expenditures to pay Christopher Steele to reach out to Kremlin sources for dirt on Donald Trump, compiling that foreign-derived information to paper, and then shopping that information throughout the media corps to influence the outcome of the presidential election.
Here's Marcus’ argument:
In one case, Trump’s, an emissary of a foreign government – have I said that enough? – foreign government – came to you to offer you dirt on your opponent because the foreign government, it was said in the emails, wanted to see you elected. In the other case [Clinton’s] a campaign was doing actually, as the President has said, what campaign’s generally do. They investigate their opponents. There is no rule that says if you investigate your opponent you can’t make overseas phone calls, you can’t talk to overseas sources. You are allowed to collect information. You are allowed to pay somebody to do that collection. But asking for it is really very different from being the ‘if it’s what you say I love it, bring it on attitude’ that the Trump campaign had towards information that as far as it knew and was told was being peddled by the Russian government. Big difference!
Where’s the logic in that distinction? If you take a meeting to listen to information being peddled by a foreign government representative you are a criminal, but if you conceal an expenditure to a foreign citizen (Steele) to “make overseas phone calls” to Kremlin-linked sources and then distribute that information to American press outlets like The Washington Post to influence the election, that’s different? Marcus’ argument makes no sense.
Mr. Mueller should listen closely to the logical errors one must commit in order to contrive a crime here. Mere conversations become “things of value.” But one conversation is a crime, because your name is Trump. Other conversations, “overseas phone calls,” are not crimes, because your name is Clinton.
Meanwhile, Ms. Marcus, and presumably Mr. Mueller, will turn a blind eye to Clinton’s knowing and willful concealment of her campaign expenditure to Christopher Steele and Clinton’s knowing and willful peddling of the Steele opposition research report, containing information from Kremlin-linked sources, from American media to the FBI and federal courts.
The General Services Administration (GSA) may have improperly turned over documents, including private and privileged documents, from the Trump transition team to Special Counsel Robert Mueller. RNLA member Kory Langhofer, counsel to Trump for America (TFA), the 501(c)(4) organization that supported the Trump Presidential transition, wrote:
To inform the Committees of unlawful conduct that undermines the Presidential Transition Act
of 1963, as amended, and will impair the ability of future presidential transition teams to
candidly discuss policy and internal matters that benefit the country as a whole. More
specifically, we write to inform you that (a) career staff at the General Services Administration
(“GSA”) have unlawfully produced TFA’s private materials, including privileged
communications, to the Special Counsel’s Office; and (b) although the Special Counsel’s Office
was aware that the GSA did not own or control the records in question, the Special Counsel’s
Office has extensively used the materials in question, including portions that are susceptible to
claims of privilege, and without notifying TFA or taking customary precautions to protect TFA’s
rights and privileges; and
To request that Congress act immediately to protect future presidential transitions from having
their private records misappropriated by government agencies, particularly in the context of
sensitive investigations intersecting with political motives.
Mr. Langhofer's letter details the various ways in which the GSA improperly reviewed and disclosed presidential transition team records and the improper ways in which they have been reviewed and used by the Special Counsel. He notes that TFA only became aware of the improper disclosure last week. Mr. Langhofer also makes a number of recommendations for statutory changes that would prevent such situations in the future and protect future presidential transition teams' confidentiality and privilege.
The House Oversight Committee is taking the letter under advisement regarding whether Congress should act to protect presidential transitions' records, but stated that the improprieties described in the letter would fall under the purview of a court, not Congress. The Senate Committee on Homeland Security and Government Affairs, however, sent a letter to the GSA on Tuesday requesting a number of documents by January and noting (footnotes omitted; emphasis added):
According to the allegations received by the Committee, the GSA's General Counsel's office provided records owned by TFA to the Special Counsel's Office without the consent of or notice to TFA. The GSA's General Counsel's office allegedly provided these records without the execution of a search warrant or a subpoena; instead, it produced the material voluntarily in response to a request letter. In defending these actions, GSA's Deputy General Counsel Lenny Loewentritt suggested that GSA maintained a degree of control over the records, stating that transition team members entered into agreements acknowledging possible GSA "monitoring and auditing of devices." The GSA General Counsel's office allegedly did not review the material for privilege or relevancy before providing records to the Special Counsel's Office. In addition, according to the allegations, the Special Counsel's Office failed to implement methods--such as "taint teams" or "ethics walls"--to protect any privileged material. . . .
GSA's alleged actions could have serious ramifications for presidential transitions in the future. An incoming administration must be ready to govern on day one. Any threat to the close coordination between the transition and outgoing administration could create vulnerabilities to governance, readiness, and national security. In minimizing vulnerabilities caused by a transition, the Justice Department has advised "afford[ing] the confidentiality necessary for candid and effective/transition team communications." The allegations received by the Committee--namely that GSA turned over TFA privileged material, and that material later became public--could discourage future transitions from trusting GSA to secure its confidential information.
If the allegations in Mr. Langhofer's letter are true, the disclosure of the documents by GSA without any relevancy or privilege review is an astounding breach of the Trump transition's rights of confidentiality. We will monitor this story for further developments.
