THE MORNING PLUM:
On Jan. 24, President Trump’s former national security adviser, Michael Flynn, lied to the FBI about his contacts with the Russian ambassador during the transition. On Jan. 26, the White House was informed that Flynn had misled top Trump officials about those contacts. On Feb. 13, Trump fired Flynn.
One big question now is: Did any of Trump’s top officials — or Trump himself — direct Flynn to lie to the FBI about these contacts? This question appears to be of interest to special counsel Robert S. Mueller III, according to new NBC News reporting out this morning.
The NBC News story reports that Mueller is trying to “piece together a timeline” of the 18-day period between Jan. 26, when the White House was told by then-acting Attorney General Sally Yates that Flynn had misled Vice President Pence and other top officials by claiming he hadn’t discussed sanctions with Russian Ambassador Sergey Kislyak, and the Feb. 13 firing of Flynn.
As NBC reports: “Trump’s legal team and senior White House aides are refusing to say when and how the president first learned that Flynn had lied to the FBI.” After the news broke that Flynn had made a plea deal admitting to these lies, Trump tweeted that he’d fired Flynn because he lied to the FBI, suggesting he knew of this lying at the time, though his attorney has since insisted that this isn’t what he meant. This has raised questions as to why Trump would press his former FBI director to drop the investigation into Flynn (as James B. Comey has testified, and Trump denies) in the apparent knowledge that he’d lied to the FBI, which could constitute obstruction of justice.
But beyond that important question, there is also the question of what Trump knew about the lying itself and when. And Mueller is looking at this, per NBC:
Mueller is trying to determine why Flynn remained in his post for 18 days after Trump learned of Yates’ warning, according to two people familiar with the probe. He appears to be interested in whether Trump directed him to lie to senior officials, including Pence, or the FBI, and if so why, the sources said.
If Trump knew his national security adviser lied to the FBI in the early days of his administration it would raise serious questions about why Flynn was not fired until Feb. 13, and whether Trump was attempting to obstruct justice when FBI Director James Comey says the president pressured him to drop his investigation into Flynn.
Bob Bauer, a former White House counsel, emailed me this about the NBC News report:
“This is a potentially serious development in this investigation. Should there be evidence that the president directed or encouraged Flynn to lie, he faces an obstruction charge, and the constitutional defenses his supporters have been claiming are irrelevant. Of course, this legal exposure extends to any other officials who were involved in a decision to have Flynn make these false statements.”
That line about “constitutional defenses” is a reference to an argument that prominent Trump supporters have made: that Trump cannot by definition obstruct justice if he is simply exercising his constitutional authority, as he was when he fired Comey. That argument is itself questionable, since, as some experts have noted, he might have done this with corrupt intent. But beyond this, directing Flynn to lie to the FBI would not constitute such a legitimate exercise of authority and could constitute obstruction of justice.
“This would mean we’re now looking at potential criminality that cannot be justified as an exercise of the president’s authority,” Paul Rosenzweig, a senior counsel on Ken Starr’s investigation into Bill Clinton who is now a lecturer in law at George Washington University, told me today. “That could be obstruction of justice, or aiding and abetting a false statement to the FBI, or conspiracy to do the same.”
Another possibility, Rosenzweig noted, is that Trump or other top officials may have merely been made aware of Flynn’s lying soon after the fact. If so, the question would be why they did not try to correct the record with the FBI, which might not be criminal but could potentially be “impeachable,” Rosenzweig says. A third possibility, he says, is that Trump or top officials tacitly approved of this lying beforehand, which could constitute “a conspiracy to obstruct justice.” The bottom line, as Randall Eliason, a professor of white-collar criminal law at GWU, told me, is that if the NBC News story is true, “Mueller may be looking at possible obstruction of justice by Trump.”
To be clear, it is possible that Flynn freelanced in lying to the FBI, and that no one else either directed him to do it or was made aware of it at the time. So this could end up meaning little. Of course, it appears that Flynn was in touch with top transition officials about his contacts with Kislyak, so it’s possible that he discussed his testimony to the FBI with them, too.
Regardless, now that Flynn is cooperating with Mueller, it seems very plausible that Mueller is leaning on Flynn to detail exactly who ordered him to do what and when, and who was aware of the lies he told to the FBI, and when. “You ask Mike Flynn two questions,” Rosenzweig said of Mueller’s investigators. “First, did somebody tell you to lie? And second, who?”
It appears that these are the questions that Mueller is indeed asking Flynn.
* BAD FAITH ROTS AWAY AT TAX BILL IN FINAL DAYS: The Post’s Erica Werner reports on the remarkably rushed and sloppy process by which the GOP tax bill is coming together:
Questionable special-interest provisions have been stuffed in along the way, out of public view and in some cases literally in the dead of night. Drafting errors by exhausted staff are cropping up and need fixes, which must be tackled by congressional negotiators working to reconcile competing versions of the legislation passed separately by the House and the Senate. And the melding process underway has opened the door to another frenzy of 11th-hour lobbying as special interests, including President Trump’s rich friends, make one last dash for cash….
Seems legit. All of this is because Republicans want to do this with zero Democratic votes (the only way to pass something this monstrously regressive) and because Trump needs something to boast about right now, dammit!
* AMERICANS KNOW THE GOP TAX BILL IS A SCAM: A new USA Today-Suffolk poll finds that only 32 percent of Americans support the GOP tax plan, while 48 percent oppose it. And:
A 53 percent majority of those surveyed predict their own families won’t pay lower taxes as a result of the measure, and an equal 53 percent say it won’t help the economy in a major way. … only 35 percent believe that the bill will boost the economy, and 31 percent that their own families’ tax bills will be lowered as a result. Nearly two-thirds, 64 percent, say the wealthy will get the most benefits; just 17 percent say the middle-class will.
USA Today also notes that this comprises the lowest level of public support of “any major piece of legislation enacted in the past three decades.” Who says President Trump isn’t making history?
* ROY MOORE’S LATEST: CNN reports that Roy Moore told an extremist radio station in 2011 that getting rid of all the constitutional amendments after the 10th would “eliminate many problems” with our “form of government.” Historian Eric Foner emails me his thoughts:
The judge is ignorant and utterly retrograde. The 14th amendment is the basis of laws and other initiatives to protect the essential rights of all Americans. Evidently he feels it is okay if the states violate Americans’ rights so long as the federal government doesn’t. Let’s also not forget that the women’s suffrage amendment would be eliminated if his ideas prevailed. … One would have thought a judge would know better.
A Moore spokesman told CNN that he does not favor eliminating those amendments and was merely expressing concern about the “historical trend” favoring “federal empowerment over state empowerment.”
* A BIG PUSH TO GET OUT THE BLACK VOTE: The New York Times reports on Democrat Doug Jones’ big final push to get out the African American vote in the Alabama Senate race:
Mr. Jones’s campaign … has deluged black radio stations with commercials … one of which describes Mr. Moore as “backed by the racist alt-right groups” and brands him “a birther, still insisting that Barack Obama was born in Kenya and isn’t an American.” … Mr. Jones’s campaign has bought a huge file of cellphone numbers for African-Americans, which it plans to use for a get-out-the-vote appeal via text message, two people familiar with the plan said.
The campaign is also highlighting his prosecution of Ku Klux Klan members who bombed a Birmingham church. He needs African Americans to represent at least 25 percent of the electorate.
* ROY MOORE GOES UNDERGROUND: The Associated Press sums up Roy Moore’s approach in the final weeks:
He’s appeared at only a handful of rallies in front of friendly audiences and steadfastly has shunned reporters from the mainstream media. … his relative absence from the spotlight this time around is nearly unheard of for a major party candidate. Moore has focused on meeting with small groups of supporters and an aggressive social media campaign out of camera range.
Nothing screams innocence like steadfastly avoiding the very reporters who are most likely to ask him about the believable allegations against him.
* QUOTE OF THE WEEKEND, YES-THERE-WAS-COLLUSION EDITION: Rep. Adam Schiff (D-Calif.), on CNN’s “State of the Union,” spelled it out plainly:
“We do know this. The Russians offered help. The campaign accepted help. The Russians gave help. And the president made full use of that help. And that’s pretty damning, whether it is proof beyond a reasonable doubt of conspiracy, or not.”
Collusion happened. What remains to be seen is just how serious the misconduct really was.
* AND OUR MUELLER MOMENT IS FAST APPROACHING: E.J. Dionne Jr. warns us to take very seriously indeed the escalating attacks on special counsel Robert S. Mueller III from Republicans and Trump’s media allies:
Because we are inured to extreme partisanship and to the political right’s habit of rejecting inconvenient facts, we risk overlooking the profound political crisis that a Trumpified Republican Party could create. … Only recently, it was widely assumed that if Trump fired Mueller, many Republicans would rise up to defend our institutions. Now, many in the party are laying the groundwork for justifying a coverup. … We are far closer to the edge than we want to think.
To reiterate, this is an effort to goad Trump into trying to remove Mueller, and we need to get Republicans on record now as to whether they will view this as an impeachable offense.