Oh shit, what are we gonna do now?

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Mongrel
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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Wed Apr 18, 2018 6:35 pm



Wheeeeeeeeeeeee!
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Re: Oh shit, what are we gonna do now?

Postby mharr » Wed Apr 18, 2018 9:13 pm

I don't know the internal realpolitick of the FBI, but could Mueller not just tell him to fuck off and carry on going to work like nothing happened? It seems likely that no-one would be keen on enforcing it.

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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Wed Apr 18, 2018 9:45 pm

mharr wrote:I don't know the internal realpolitick of the FBI, but could Mueller not just tell him to fuck off and carry on going to work like nothing happened? It seems likely that no-one would be keen on enforcing it.

Well, presumably what would actually happen mechanically is that the President would order Rod Rosenstein to fire Mueller.

I'm not exactly sure what autonomy Rosenstein would have in this scenario. Is he 100% subject to direct orders from Trump or is firing Mueller technically something only Rosenstein can do? If so, could he refuse, forcing Trump to fire him and then appointing someone who will fire Mueller? I think it's the former, but maybe it's the latter? The end result is the same, but having to fire Rosenstein first would sure make things into a bigger mess.

Anyway, even if Mueller kept coming into work after being fired, he'd have lost all legal authority to lead the probe, so he couldn't continue working on it.

I'm also not sure if the dissolution of the probe is something that would come as an automatic consequence of its head being fired, or if it would have to be terminated separately.

What I'm continually wondering about is what sort of contingency plans Mueller has in place for his being fired. He's methodical - he must have SOMETHING. With recent moves, it seems like at least part of the backup plan is maybe to shift some or all of the investigation away from federal authority entirely, and over to the NY state AG's office.
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Re: Oh shit, what are we gonna do now?

Postby Thad » Thu Apr 19, 2018 10:42 am

Mongrel wrote:
mharr wrote:I don't know the internal realpolitick of the FBI, but could Mueller not just tell him to fuck off and carry on going to work like nothing happened? It seems likely that no-one would be keen on enforcing it.

Well, presumably what would actually happen mechanically is that the President would order Rod Rosenstein to fire Mueller.

I'm not exactly sure what autonomy Rosenstein would have in this scenario. Is he 100% subject to direct orders from Trump or is firing Mueller technically something only Rosenstein can do? If so, could he refuse, forcing Trump to fire him and then appointing someone who will fire Mueller? I think it's the former, but maybe it's the latter? The end result is the same, but having to fire Rosenstein first would sure make things into a bigger mess.


There's some debate on that.

Chicago Tribune: What if Trump fires Mueller and Mueller won't go?

The president might yet try to fire Mueller directly; his press secretary, Sarah Huckabee Sanders, said Tuesday that the president “certainly believes he has the power” to do so. Or Trump could try to fire Mueller without rescinding the special counsel regulations. Or Trump and his Department of Justice might fail to follow proper procedure in withdrawing the regulations.

If that happened, Mueller very likely would refuse to budge. That is, he would announce that the president lacked the legal authority to fire him, and insist that he was still in office.

Trump wouldn’t take that lying down. He might scramble to do it right. Or he might just as easily insist that Mueller had been fired and that he had acted within his inherent constitutional authority as the executive. The president then might order Mueller out the door, or even order U.S. marshals to remove him.

The result could be a genuine constitutional crisis: a situation where there are two competing, mutually exclusive interpretations of the law adopted by relevant constitutional actors, neither of whom wants to back down.

That could put the issue into the courts. Like Mueller, the judiciary tends to be a stickler for the letter of the law. Federal district and appeals courts wouldn’t much relish the prospect of intervening in a dispute within the executive branch. But they would be very tempted to insist that Trump follow the technicalities — and consider Mueller to be in office until Trump did.

The Supreme Court might not agree. The strongest basis for Trump’s position would be that the regulation, issued by the attorney general, can’t constitutionally or legally restrict the president’s power to remove Justice Department employees. After all, the attorney general isn’t Congress, and the regulation isn’t a law. The attorney general is, constitutionally speaking, a creature of the president — as is Mueller.


Nixon tried the "order the AG to do it, and if he says no, fire people until you have an AG who'll do it" route. It did not work out well for him.

I've seen a lot of speculation recently that Trump is likelier to fire Rosenstein than Mueller -- that he'd fire Rosenstein so he could get somebody in there who'll keep Mueller on a tighter leash, while (probably ineffectively) attempting to dodge the same backlash he'd get for firing Mueller. Maybe.

Anyway, even if Mueller kept coming into work after being fired, he'd have lost all legal authority to lead the probe, so he couldn't continue working on it.


It depends; see the quoted passage above.

I'm also not sure if the dissolution of the probe is something that would come as an automatic consequence of its head being fired, or if it would have to be terminated separately.


Terminating Mueller wouldn't end the probe. It's entirely possible that the DoJ (Rosenstein or his replacement) would just bring in a new special prosecutor to pick up where he left off.

The existing indictments and plea deals wouldn't go away either. Nor would the case against Cohen. Or any of the civil suits.

The ball's rolling. I don't think firing Mueller will stop it at this point. Trump may not understand that, but so far he's followed his lawyers' advice and refrained from firing Mueller or Rosenstein even though he clearly wants to.

What I'm continually wondering about is what sort of contingency plans Mueller has in place for his being fired. He's methodical - he must have SOMETHING. With recent moves, it seems like at least part of the backup plan is maybe to shift some or all of the investigation away from federal authority entirely, and over to the NY state AG's office.


That certainly seems to be part of the strategy, yes. And it's probably a bulwark against pardons as much as against Mueller being fired; the president can't pardon state-level crimes.

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Re: Oh shit, what are we gonna do now?

Postby Grath » Thu Apr 19, 2018 11:17 am

Thad wrote:
What I'm continually wondering about is what sort of contingency plans Mueller has in place for his being fired. He's methodical - he must have SOMETHING. With recent moves, it seems like at least part of the backup plan is maybe to shift some or all of the investigation away from federal authority entirely, and over to the NY state AG's office.


That certainly seems to be part of the strategy, yes. And it's probably a bulwark against pardons as much as against Mueller being fired; the president can't pardon state-level crimes.

Plus, NY AG Schneiderman is trying to get the power to ignore Trump's pardons wholesale by asking for an exemption to double-jeopardy laws in regards to presidential pardons.

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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Thu Apr 19, 2018 9:07 pm



Note: Dude is actually a CURRENT, not FORMER, Trump lawyer. Although after this interview, perhaps "Future former" would be a better descriptor.

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Re: Oh shit, what are we gonna do now?

Postby Thad » Sat Apr 21, 2018 12:52 am

Ken White's had a couple good posts on Cohen's attempt to stay the civil suit by Stormy Daniels.

Lawsplainer: Michael Cohen's Attempt To Delay The Stormy Daniels Litigation

Michael Cohen's Motion to Stay The Stormy Daniels Case Deferred, Cohen's Situation Pronounced Ominous

Cohen's got a dilemma: his best possible justification for delaying the Daniels suit is to say he's going to have to plead the Fifth to avoid incriminating himself in the criminal case that the DoJ is building against him, but pleading the Fifth will almost certainly tank the civil case. (Pleading the Fifth can't be used as evidence of guilt in a criminal case, but it can in a civil suit.)

Daniels and Avenatti, meanwhile, have weakened their case against the stay. Their argument is that they need this case resolved ASAP because otherwise Daniels will be unable to discuss her sexual relationship with Trump and the subsequent attempt to hush her up, for fear of legal reprisal. The judge has noted that she doesn't seem like she's afraid to talk about it.

The end result was this: Cohen has until next Wednesday to file a declaration supporting his request and establishing that he intends to take the Fifth. Avenatti can file a rebuttal within 24 hours. Then the judge will rule in writing. Based on my observation, I think that there's a strong chance that Cohen will lose the motion outright if he doesn't file the declaration. If he does, I suspect Judge Otero will grant a limited stay — not so much to preserve Cohen's interests in the civil case, but to give his lawyers a reasonable amount of time to get a grip on what is going on and make longer-term decisions about how to deal with the civil case. Judge Otero repeatedly noted that the criminal case could take a long time, but that it was reasonable for the lawyers to want to regroup to evaluate the situation and how to weigh Cohen's interests in the two matters.

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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Sun Apr 22, 2018 8:57 pm

Oh hey! Kushner somehow has a bunch of money and isn't hundreds of millions underwater on a building he tried to offload for a decade. Hmmmmmmmmmmmmmmmmmmm........

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Re: Oh shit, what are we gonna do now?

Postby Thad » Tue Apr 24, 2018 11:03 am

The DNC has filed a suit against the Trump campaign, Russia, and Wikileaks for leaking its E-Mails during the 2016 campaign.

I've read up on the suit on Techdirt, Popehat, and Litigation and Trial, and my conclusion is that this is a bad suit that makes a lot of spurious claims.

There's not much I can say in the DNC's defense, but I can say that it's not entirely their fault they filed now, before all the facts come in from the Mueller investigation. The statute of limitations is nearly up on several of their claims, so it was now or never. People saying that this is an election year publicity stunt are probably wrong; the timing here is due to a filing deadline, not an (unnecessary) attempt to keep the Russia story in the news ahead of the November election. In fact, I suspect this will do more harm to the Democrats than good (in terms of PR), and the best move the DNC can make is to move for a stay pending the resolution of the Mueller investigation.

Here's how the two-part Litigation and Trial piece concludes:

So, what’s next? In my humble opinion, the DNC has solid CFAA and SCA claims against Russia, Russia’s GRU, and any hackers it can personally identify. The DNI investigation into Russia’s efforts to influence the election, the DHS/FBI investigation into “Grizzly Steppe,” and the CrowdStrike investigation into the DNC hack provide more than enough for a “plausible” claim that should survive a motion to dismiss.

But that’s just about all the DNC has going for it – even for those claims, pursuing them now walks right into Russia’s FSIA defense (and potential intervention by the United States), and if Russia and its agents are dismissed early, the rest of the case will likely fall apart completely, because Russia’s role in the alleged facts is likely so central that the other parties cannot be held liable without them. Moreover, the current facts against the other parties are weak. As a political matter, there is a lot that can be drawn from what we know about the contacts between the Trump campaign, Wikileaks, and Russia, but as a legal matter it is hard to see how the non-Russia parties can be held liable for anything on the existing record. It is likely in the DNC’s best interest to wait for the Mueller investigation to continue producing something, be it more indictments or a report that is made public or something else that can help bolster their allegations.

If I represented the DNC, I’d probably upfront admit the statute of limitations issue to the court and ask the court to stay all of the proceedings until, at the earliest, the Special Counsel investigation either concluded or at least indicated that it had finished its work relating to the Trump campaign. Whether they do that, and whether the court would grant it, is another matter.


That still doesn't excuse the additional, spurious claims the DNC is making. While it's often a good idea to ask for more than you want and leave yourself some room to argue your claims down, there's a difference between that and just throwing everything against the wall and seeing what sticks. The DMCA claim is ridiculous, and the RICO claim in particular is probably just going to piss the judge off.

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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Wed Apr 25, 2018 7:14 pm

NYT: Explosive allegations about Ronny Jackson basically being a pill-machine, as well as a drunk and addict himself

I am once again reminded of the fact that the Nazi high command basically spent all of WWII coked up and stoned on other fun substances.
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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Thu Apr 26, 2018 2:33 pm

Apparently Trump just admitted on national TV that Michael Cohen represented him in the Stormy Daniels negotiation?
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Re: Oh shit, what are we gonna do now?

Postby Yoji » Thu Apr 26, 2018 2:54 pm

Mongrel wrote:Apparently Trump just admitted on national TV that Michael Cohen represented him in the Stormy Daniels negotiation?

Pretty much just blurted it out on Fox this morning, yeah. ETA: I guess he also said he hardly knew Cohen at all? Fuck this, this is all stupid, I'm going to watch Dogs in Sunglasses.

Also, I heard Michael Cohen said he's going to plead the Fifth. And about damn time; if these guys can't start acting like they're innocent, it's past time they started acting guilty.
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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Thu Apr 26, 2018 3:10 pm

Yoji wrote:
Mongrel wrote:Apparently Trump just admitted on national TV that Michael Cohen represented him in the Stormy Daniels negotiation?

Pretty much just blurted it out on Fox this morning, yeah.

Also, I heard Michael Cohen said he's going to plead the Fifth. And about damn time; if these guys can't start acting like they're innocent, it's past time they started acting guilty.

If you've read the Popehat articles, he pretty much has to plead the Fifth. That basically loses him the civil case though.
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Re: Oh shit, what are we gonna do now?

Postby Thad » Sat Apr 28, 2018 5:32 pm

Yoji wrote:
Mongrel wrote:Apparently Trump just admitted on national TV that Michael Cohen represented him in the Stormy Daniels negotiation?

Pretty much just blurted it out on Fox this morning, yeah. ETA: I guess he also said he hardly knew Cohen at all? Fuck this, this is all stupid, I'm going to watch Dogs in Sunglasses.

Yeah, Seth Meyers has a pretty good breakdown.



It bears noting that Trump is trying to assert that whatever the FBI just seized from Cohen is protected by attorney-client privilege and he and his lawyers should be allowed to review it and decide what the FBI should and should not have access to. Which makes "Michael Cohen barely does any legal work for me at all" a pretty fucking stupid thing to say on national TV.

The FBI amended its filing to note Trump's statements on Fox and Friends within two hours of his making them.

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Re: Oh shit, what are we gonna do now?

Postby Grath » Sun Apr 29, 2018 1:04 am

Thad wrote:It bears noting that Trump is trying to assert that whatever the FBI just seized from Cohen is protected by attorney-client privilege and he and his lawyers should be allowed to review it and decide what the FBI should and should not have access to. Which makes "Michael Cohen barely does any legal work for me at all" a pretty fucking stupid thing to say on national TV.

The FBI amended its filing to note Trump's statements on Fox and Friends within two hours of his making them.

I'm sure Michael Cohen does plenty of illegal work for Trump, and he just forgot that you're not supposed to admit that on national TV.

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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Sun Apr 29, 2018 1:21 am

Grath wrote:I'm sure Michael Cohen does plenty of illegal work for Trump, and he just forgot that you're not supposed to boast about that on national TV.
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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Wed May 02, 2018 3:43 pm

Ty Cobb just got kicked to the curb.

His replacement? Slick Willie's defence lawyer during his impeachment, Emmet Flood.
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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Wed May 02, 2018 11:18 pm

Guliani just sold Cohen down the river. Was it malice or sheer stupidity? I'll leave the determination as an exercise to the reader:



Another opinion:
“It obviously increases the president’s exposure to potential campaign finance violations, but it also makes him look terrible,” said Sol Wisenberg, a defence attorney who was a deputy independent counsel during the Starr special counsel investigation into President Bill Clinton.

“I don’t understand the Giuliani strategy,” he added. “Maybe it’s been too long since he’s been in the criminal justice field.”

lolololol
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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Thu May 03, 2018 1:53 am

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Re: Oh shit, what are we gonna do now?

Postby Mongrel » Thu May 03, 2018 4:21 pm



Ruh-roh!

This is also fun:

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