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Comey, Trump, Sessions and Rosenstein

The firing of James Comey is still big in the news. Here's some things reported today.

The New York Times reports just days ago Comey sought more money to investigate Russian interference in the presidential election. The request was made to Deputy AG Rod Rosenstein. A DOJ spokesperson denies it.

The new acting director of the FBI, Andrew McCabe, according to this March 28, 2017 letter from Republican Senator Charles Grassley to Comey says McCabe is the subject of an OIG investigation. [More...]

Look who's back after Comey's firing, none other than Rudy Giuliani, who has been laying in the weeds for months, ever since he was passed over for Attorney General (Photo taken at Trump's hotel in D.C. last night -- after Comey's firing. Account seems to be by a Trump media groupie, don't bother scrolling down, you'll want to take a shower afterwards.) Is Trump going to ask Giuliani to take over the FBI? Or to help with the search for the new director? Giuliani certainly has a checkered history of recommending people for sensitive positions involving matters of security -- remember Bernie Kerik, who he recommended for head of Homeland Security?

The FBI has written a letter of "clarification" on James Comey's most recent testimony to Congress regarding Huma Abedin's emails in this letter to Congress.

Director Comey appeared before your Committee on May 3, 2017 and answered several questions regarding the review of e-mails found on a laptop computer belonging to former Congressman Anthony Weiner. This letter is intended to supplement that testimony to ensure that the Committee has the full context of what was reviewed and found on the laptop. This letter further seeks to clarify reporting concerning the Director's testimony concerning certain counterterrorism investigations.

More Democrats are calling for a special investigator or an independent commission to investigate the Trump campaign's ties to Russia and its influence on the election.

Representative Adam B. Schiff of California, the top Democrat on the House Intelligence Committee, said the firing “raises profound questions about whether the White House is brazenly interfering in a criminal matter.”

Why aren't they calling for a special prosecutor to criminally investigate whether Trump and Sessions obstructed a federal grand jury investigation by firing the head of the investigation agency? Or the launch of an impeachment inquiry by the House Judiciary Committee?

Sessions has already recused himself from any investigation into the Trump campaign's ties to Russia after he inaccurately testified during his confirmation hearing he had had no contact with Russian officials, failing to mention his meetings with Sergey I. Kislyak, the Russian ambassador to the United States. (Who Donald Trump held a meet and greet with at the White House today.) Sen. Patrick Leahy castigated Sessions in March and highlighted the need for an independent investigation.

You knew Trump was in trouble yesterday when he sent out Ms. Most Unimportant Person in the World to control the message.

The New York Times editorial for Wednesday:

Mr. Comey was fired because he was leading an active investigation that could bring down a president.

That's it in a nutshell. I agree the firing has nothing to do with the FBI email investigation and everything to do with Trump seething at his inability to prevent the deepening investigation into his aides' Russian ties and Russia's influence on the election. I think he's haunted by the the images he sees of Russia outside his lonely White House bedroom window. More from the Times:

We have said that Mr. Comey’s atrocious handling of the Clinton email investigation, which arguably tipped the election to Mr. Trump, proved that he could not be trusted to be neutral, and that the only credible course of action would be the appointment of a special prosecutor. Given all that has happened ...the need for such a prosecutor is plainer than ever. Because Mr. Sessions is recused, the decision to name a special prosecutor falls to Deputy Attorney General Rod Rosenstein, whose memo, along with a separate one by Mr. Sessions, provided Mr. Trump with the pretense to fire Mr. Comey. (my emphasis.)

I see two different issues here. One is the need for an independent prosecutor or counsel or commission to continue the investigation into Trump campaign aides' ties to Russia and Russia's meddling in the presidential election.

The second, and more urgent in my view, is the need for the Deputy Attorney General to appoint a special counsel to open an investigation into whether Trump committed obstruction of justice by firing James Comey and whether Jefferson Sessions aided and abetted Trump's obstruction.

Why that's unlikely to happen: Congress, at the urging of the Department of Justice, allowed the Independent Counsel Act to expire in 1999. (Here is Janet Reno's statement to Congress asking it be abolished and Arlen Spector's plea to Congress to pass his revised version instead. The law was replaced with the regulations authorizing the AG in its discretion to appoint a special counsel. (28 CFR 600, see here.) Normally that would be Sessions, but since he has recused himself as to all matters related to the Trump campaign and Russia, that decision falls to the newly minted Deputy AG Rosenstein, who wrote the memo supporting the firing of Comey.

Here is an easy to read primer by the Congressional Research Service on what it takes to appoint a special prosecutor.

One line from 1973 strikes me as particularly apt for Trump: "There is a cancer on the presidency."

I see speculation on Twitter that Rosenstein's memo was a ghost job as it appears to be sourced by Google rather than Westlaw. (The comments in the thread are funny: "Did all DJT lawyers get their license from Trump Univ?", "It's as as if Trump's personal physician wrote it"..."It looks like a 2nd. Grader wrote it. Home School Choice", "Westlaw actually requires a well thought out search query." and "Yep Pres Bannon wrote #JamesComey firing letter!"

Who is Rosenstein? According to his written answers at his confirmation hearing a few weeks ago, he is a specialist in criminal appeals (as a prosecutor, representing the U.S.). He specifically touts his expertise in writing legal briefs. It hardly seems like someone with his background in brief writing would write such a pedestrian memo consisting of a rehash of news articles and comments by former prosecutors. Or may it's to be expected, given his slippery testimony at his confirmation hearing when he repeatedly refused to answer whether he would appoint a special prosecutor on Russia and insisted a dozen times he had not read any reports and didn't know what happened. As if Donald Trump and Jeff Sessions would appoint someone they knew would be taking charge of any Russia investigation before knowing his views on it.

Also interesting about Rosenstein: He worked under Ken Starr when he was independent counsel investigating Whitewater, the company formed by the Clintons when they purchased 220 acres of land with some partners in Arkansas in 1978. Rosenstein, in his written answers to the Senators' questions, touts his work prosecuting James and Susan McDougal and Guy Tucker, both at the trial and appellate levels, as one of his most important cases he's most proud of.

From 1995 to 1997, I served as an Associate Independent Counsel for the Whitewater investigation. From 1995 to 1996, I was based in Little Rock, Arkansas, where I conducted grand jury investigations and was a member of the trial team that prosecuted Arkansas Governor Jim Guy Tucker, James McDougal and Susan McDougal. I also wrote all or part of briefs defending their convictions on appeal.

James McDougal, you may recall, died in prison. Susan McDougal refused to cooperate and testify against the Clintons and went to jail for contempt.

Mrs. McDougal accused prosecutors of twisting the truth throughout the Whitewater inquiry and said one of Mr. Starr's associates had promised to take steps to have her prison sentence reduced and to have charges against her in an unrelated case in California dropped, in return for incriminating evidence against the President or the First Lady.

Interesting that Rosenstein, at his confirmation hearing, also praised long mandatory mandatory minimum drug sentences, saying they made people give up the "no snitching" code. (Transcript here.) (Sessions has announced he's planning on making full use of the draconian mandatory minimum statutes.)

Democrats on the House Judiciary Committee seem to be on the right path. They sent a letter last night to the White House asking that all documents regarding James Comey's firing and the Russia investigation be preserved.

Back to Jefferson Sessions: He didn't just recuse himself from an investigation into Russia. He recused himself from any investigation, pending or in the future, on any matter related to the Trump campaign for President. You can watch him say it here. It is also posted on the DOJ website.

Here is Jeff Sessions in October saying Comey had no choice but to disclose the Clinton email investigation to the public 11 days before the election. Here he is again in November, justifying Comey's actions.

Via Think Progress: Constitutional law experts say Trump's firing of Comey could be an impeachable offense .

I don't think there will be a special prosecutor for Donald Trump and Jeff Sessions. The system is stacked against it. Even if one was appointed, he or she would hardly be independent from the Justice Department. Nor do I think anyone will open an impeachment inquiry with teeth. Republicans control the House -- at least until 2018.

After that, all bets are off. I am confident, over time, Trump and Sessions will so abuse their power that they will become more hated than Richard Nixon and John Mitchell. Here is Hunter Thompson's epic obituary of Richard Nixon, "He Was a Crook."

[He was] a hubris-crazed monster from the bowels of the American dream with .... an overweening lust to be President. ....[He] stomped like a Nazi on all of his enemies and even some of his friends....He was not only a crook but a fool. ...Nixon's spirit will be with us for the rest of our lives --This is not a generational thing....He has poisoned our water forever.

Nixon will be remembered as a classic case of a smart man sh*tting in his own nest. But he also sh*t in our nests, and that was the crime that history will burn on his memory like a brand. By disgracing and degrading the Presidency of the United States, by fleeing the White House like a diseased cur, Richard Nixon broke the heart of the American Dream.

I can only imagine what Hunter would have to say about Donald Trump, who evokes so much contempt and loathing in tens of millions of Americans.

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