If Mueller Is Fired What Can/Could/Should He Do

(THIS ARTICLE IS COURTESY OF THE HILL NEWS)

 

Let’s assume a worst-case scenario: Acting Attorney General Matthew Whitaker straight-up fires special counsel Robert Mueller — no half-measures of refusing to allow Mueller to take certain investigative steps, or drastically cutting Mueller’s budget to starve his Russia investigation of resources, but a flat out “You’re fired!”

If that were to happen before Democrats take control of the House in 2019, no congressional committee is likely to subpoena Mueller to testify to his findings or the evidence he has obtained. Until January, the Republican majority will continue to stand behind President Trump. So what could Mueller do to disclose his investigation in the absence of receiving a congressional subpoena to testify or hand over his findings? And what would he choose to do — assuming he believed the president has committed wrongdoing the public should know about?

Taking the second question first, Mueller may choose to do absolutely nothing. We know that Mueller is a military man; he follows orders. And his marching orders as special counsel, pursuant to the governing regulations, are to conduct relevant investigations, bring appropriate charges, and write a confidential report for the Department of Justice (DOJ). So, once the job is done, by firing or otherwise, it wouldn’t be out of character for Mueller to simply go quietly off into the sunset. To date, he has kept an extremely low profile. He doesn’t even show up in court when his cases are brought, and the leak-proof nature of the ship he captains is the stuff of legend.

But let’s assume for a moment that Mueller instead goes the way of former FBI Director James Comey and is more than willing, upon an unceremonious firing, to present his side of the story to the public in any way he’s asked to do so. Or that (perhaps more likely) Mueller reluctantly concludes, upon his firing, that we have reached a point of constitutional crisis requiring the immediate publicizing of the president’s misdeeds because the DOJ under Whitaker is not acting in the best interests of the country. What would Mueller’s options be for disclosing currently non-public evidence and conclusions of his investigation without a subpoena from Congress?

The special counsel regulation, 28 CFR 600 et seq., requires the special counsel to write a report at the conclusion of his work, explaining his prosecution and declination decisions. It also states that the attorney general can publicly release the report, if that is in the public interest, to the extent that release complies with applicable legal restrictions. And there’s the rub — Whitaker would be hard-pressed to explain how Mueller’s report being released is not a matter of massive public interest, but he could fall back on secrecy rules of the grand jury to argue that grand jury materials disclosed in the report should not be released, resulting in the continued secrecy of most or all of the report.

Federal grand jury rules, which apply to Mueller as special counsel, are strict. Generally speaking, pursuant to Federal Rule of Criminal Procedure 6(e), a government lawyer cannot disclose proceedings before, or evidence gathered by, the authority of the grand jury, even after the lawyer leaves government service. Exceptions are limited. One exception states that a government lawyer can disclose material or testimony gained under a grand jury subpoena  to local or state lawyers, for the purpose of assisting in the prosecution of a federal criminal law violation.

Prosecutors use this provision to share information when conducting an investigation in conjunction with a district attorney’s office, or a state attorney general’s office, for example.  Without question, Mueller has been in communications with the New York State Attorney General’s Office, and could share information with them under this exception of Rule 6(e), although this would not be a public disclosure on Mueller’s part. It is also possible that additional pieces of the Mueller investigation could make their way to the Southern District of New York or another U.S. attorney’s office and, ultimately, could come to light through charges that way.

Of course, much evidence is not subject to Rule 6(e). Witness statements, for example, given to agents or prosecutors do not fall under the rule’s protections. Documents provided voluntarily to the special counsel’s office, instead of being provided pursuant to subpoena, likewise can be discussed publicly. And, of course, anything disclosed publicly through the criminal processes that have played out in cases the special counsel has charged, is fair game.

Finally, Mueller’s conclusions about crimes committed, as opposed to descriptions of the underlying evidence itself, aren’t prohibited from disclosure under Rule 6(e), although he would have to be careful about violating DOJ guidelines for discussing criminal subjects and proceedings, even with a subpoena.

In short, if Mueller were fired tomorrow, he would be very limited in what he could say about his investigation — and that indeed may be the impetus for the president’s action in firing Jeff Sessions and replacing him with a man who appears, by most accounts, to be a Trump loyalist.  We would all have to wait for what certainly would be the world’s most anticipated congressional subpoena.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”

Jennifer Rodgers is a lecturer in law at Columbia Law School. Until mid-2018, she was executive director of the Center for the Advancement of Public Integrity at Columbia Law School and now serves on its advisory board.

LOAD COMMENTS (198)

The Senate shouldn’t be sleeping on Whitaker’s unconstitutional appointment

(THIS ARTICLE IS COURTESY OF THE WASHINGTON EXAMINER NEWS)

 

The Senate shouldn’t be sleeping on Whitaker’s unconstitutional appointment

The resignation of Attorney General Jeff Sessions and his replacement with “acting Attorney General” Matthew Whitaker has proven quite controversial since it was announced. Big-name, right-of-center constitutional experts — including, it appears, Supreme Court Justice Clarence Thomas by a backdoor route — have opined that it is straight-up unconstitutional.

It is a conclusion that’s hard to disregard on its merits. But the failure of the administration to respect the “advice and consent” clause of the Constitution is not the only reason why the Senate should be pushing back, and hard, on the acting attorney general situation.

There’s a far more straightforward reason: The appointment of Whitaker is a blatant power grab, and no senator worth his salt should be willing to give up his power over the staffing of the administration.

[Read more: Maryland challenges Whitaker’s appointment as acting AG]

That is especially so if the politician in question is named Mitch McConnell.

The Republican Senate majority leader from Kentucky regards himself as being “in the personnel business.” What McConnell means by that is that the most important impact he and his colleagues can have in government is getting people they like confirmed to high office, where they can make legally bulletproof decisions that will shape the future of this country for decades to come.

The area where this is most evident, pertinent, and with the longest-term consequence is in the judiciary. But Senate-confirmable administration posts count as well — not only those confirmed or blocked, but also those thwarted or prevented behind the scenes.

Why, then, would McConnell — let alone his other 99 colleagues — allow their power to be grabbed in such an overt and easily stopped manner by any president? Why not demand that if President Trump wants Whitaker, he put him forward as a nominee for attorney general? And if he does not want Whitaker, why not demand he name his preferred successor to Sessions right now, so the Senate can get on with the constitutionally mandated confirmation process?

The reality is, Trump should have had a nominee’s name ready to announce the second news broke of Sessions’ resignation. It’s not like he hasn’t had time to think about it. Rumors that Sessions would exit after the midterm elections have been swirling D.C. for months now. Trump has wanted him gone for much longer than that.

But it is simply unacceptable that the Senate would not be forcing the president to get on with it now. Every day he delays is an erosion of the Senate’s power and reason for existence.

Under former President Barack Obama, we saw a consistent erosion of the notion that administrations need to adhere to constitutional law.

That was actually the problem at issue in the case that George Conway, Kellyanne Conway’s husband, and former Solicitor General Neal Katyal cited in their op-ed last week dubbing the “acting attorney general” situation unconstitutional.

And Thomas, Trump’s “favorite justice,” considered what the Obama administration did with National Labor Relations Board appointments to be not merely unlawful but unconstitutional — and he was right.

Trump can and should do better than Obama did in this regard. But so should McConnell, if he really is in the personnel business. The majority leader should not tolerate this unconstitutional power grab, which overtly and directly hurts him and his caucus.

Liz Mair is president of Mair Strategies and strategist to the Swamp Accountability Project.

POEMS THAT I HAVE NEVER FOROTTEN.

REVOLUTIONS ACROSS MINDS

‘ He is a Golly wog,

He has a black face,

He wares a white collar.

——–

The summer sun is sinking low,

Only the tree tops redden and glow,

only the weather cock on the spire,

of the church is flame of fire,

All is in shadow below.

———

The mountain and the squirrel had a quarrel and

the former called the latter little prig:

bun replied,you are doubtless very big,

but all sorts of things and weather, must be taken together to make up a year and a sphere,

i shall not deny you to make a very pretty squirrel track,

talents differ and all is wisely put,

if i cannot carry forest on my back,

neither can you crack a not.

————

for want of a nail the shoe was lost,

for want of a shoe, the horse was lost,

for want of a horse, the rider…

View original post 179 more words

Beneath Antarctica’s Ice, Intriguing Evidence of Lost Continents

Source: Beneath Antarctica’s Ice, Intriguing Evidence of Lost Continents

Venus hovers near Spica

Source: Venus hovers near Spica

Juno’s Latest Photo of Jupiter Is Breathtaking

via Juno’s Latest Photo of Jupiter Is Breathtaking

Recent discoveries cast a different light on the most famous—and most feared—pirate of the early 18th century

via Recent discoveries cast a different light on the most famous—and most feared—pirate of the early 18th century

The Day of Saints and Souls

roxy743

The Day of the Dead is a festive day in the country

Family gathering anywhere like a Sunday

Getting together mostly at the park or cemetery

Starting from dusk til dawn halloween party.

~

All Saints’ Day is a day of obligation

It is so-called the Feast of All Saints in our nation

To attend mass as part of the tradition

To pray for all of them as our day’s mission.

~

All Souls’ Day is also a big celebration

Cleaned tomb ready for the occasion

Others are home to where they belong

Spend time with families and get along.

~

Praying for the poor souls in purgatory

And all forgotten souls who are lonely

That they may all rest in peace

In God’s loving mercy.

~

Visiting the grave of our departed ones

Making their spirit happy to see everyone

Offering food and lighting candles must be done

Remembering…

View original post 47 more words

Was A Group of High Schoolers Photographed Performing a Nazi Salute?

(THIS ARTICLE IS COURTESY ODF SNOPES FACT CHECKER)

 

Was a Group of High Schoolers Photographed Performing a Nazi Salute?

Claim

Several male students at Baraboo High School were photographed performing the Nazi “Sieg Heil” salute.

Rating

Origin

Both police and school officials in Wisconsin launched an investigation into a photograph of local high school students flashing a Nazi salute after a journalist posted the picture online.

On 11 November 2018 Reporter Jules Suzdaltsev posted the picture of a group of boys, reportedly comprising Baraboo High School’s entire male graduating class of 2019, with several of them visibly flashing the extended-arm “Sieg Heil” gesture. His tweet was shared more than 14,000 times within 24 hours:

Jules Suzdaltsev

@jules_su

If anybody from Baraboo High School in Wisconsin can clue me in on why it appears the entire male class of 2018 is throwing up a Sig Heil during their prom photos – that would be great.

h/t @CarlySidey

31.7K people are talking about this

“I was contacted by a former student who shared with me a post she made about the photo, which was posted by a student run page with the caption, ‘We even got the black kid to throw it up #BarabooProud,’” Suzdaltsev told us via email a day after posting the photograph. “I was not familiar with the school, but the photo was shocking and I assumed it would be shocking to others as well.”

Suzdaltsev followed up by posting screenshots of messages he received from other Baraboo students accusing the boys seen in the photograph of posting racist and misogynist harassment:

Jules Suzdaltsev

@jules_su

Someone who would like to remain anonymous just sent me this message and picture of herself that was posted by a classmate.

Seriously, what is going on with this school? @BarabooSD

View image on Twitter

Jules Suzdaltsev

@jules_su

I am being flooded with messages from students of this school about some of the guys in the group photo.

It sounds like there is a lot of racist bullying and the school tends to do nothing about it. pic.twitter.com/yvPZWI196A

3,711 people are talking about this

Other students accused the school of ignoring requests for help, and one said to Suzdaltsev that when they informed an official that one of the boys in the photograph yelled “white power” in the hallway, they were told to “look up videos of Black Lives Matter protesters being violent to police and that [they] should grow a tougher skin.”

Another student said that the gesture was suggested to the boys by the photographer. A student seen in the picture told the same thing to television news outlets:

Jordan Blue, now a senior at Baraboo High School, said that in May of this year, he and his male classmates had been posing for pictures in front of a local courthouse before their junior prom when the photographer told them to “raise your hand.”

Peter Gust, the photographer who took the picture, has defended himself, saying he told the students to wave goodbye to their parents, not to make the Nazi gesture.

“I didn’t tell them to salute anything,” Gust said in a statement to CNN. “There was nothing that diminished the quality of anyone’s life. There was nothing that diminished anyone’s stature in society, nothing that was intended to point a finger at anyone in their class that may have some kind of difference. There was none of that.”

The Hubble Telescope Has Found a Smile in Space to Warm Your Heart

Source: The Hubble Telescope Has Found a Smile in Space to Warm Your Heart