ENABLING A DANGEROUS PRESIDENT: PENCE WAS THERE

[This post first appeared on Bill Moyers & Company on May 17, 2017.]

In Part 3 of our series on President Trump and his lawyers, Harper examines the vice president’s role in affirming and defending Trump.

Trump’s disclosure of highly sensitive intelligence to the Russians and reported efforts to shut down the FBI’s investigation into former NSA Mike Flynn now shine a spotlight on the next person in line for the presidency. It should be withering because Vice President Mike Pence (JD, Indiana-Robert H. McKinney School of Law, ’86) is not a solution to Trump. His consistent dishonesty is a central part of the problem America faces. But compared to the boss whose dangerous tendencies he has enabled, Pence seems like a Boy Scout. That merely proves the depths to which the bar of acceptable behavior has fallen, if it even exists anymore.

Lies on the Campaign Trail

As an attorney, Mike Pence has a special awareness that a public servant’s lies can undermine democracy. But such knowledge seems secondary to his political ambitions. When Trump was looking for a running mate, Pence faced the serious prospect of losing re-election as governor because of his extreme positions on social issues. For example, in 2015, he signed Indiana’s Religious Freedom Act allowing businesses owners to act on their religious beliefs in refusing service to gay patrons. With Pence’s eroding popular support, the VP spot on the Republican ticket became his political lifeline, and he has repaid Trump handsomely.

Pence began to earn his Trump disinformation stripes during the first vice-presidential debate. Feigning shock at Tim Kaine’s suggestion (at the 36-minute mark) that Trump was waging an insult-driven campaign, Pence looked into the camera and said incredulously, “He says ours is an insult-driven campaign? Did you all just hear that? Ours is an insult-driven campaign?”

Trump’s actions as president make Pence’s lies during the debate even more striking, including these:

Defending Oval Office Lies

Winning the nation’s second highest office didn’t make Pence more honest with the American people he professes to serve. In December, Pence defended Trump’s false claim that millions of illegal Clinton voters deprived him of a popular vote victory. ABC’s George Stephanopoulos pressed Pence repeatedly:

STEPHANOPOULUS: “[Trump] said he would have won the popular vote if you deduct the millions of people who voted illegally. That statement is false. Why is it responsible to make it?”

PENCE: “Well, I think the president-elect wants to call to attention the fact that there has been evidence over many years of…”

STEPHANOPOULOS: “That’s not what he said.”

PENCE: “…voter fraud. And expressing that reality Pew Research Center found evidence of that four years ago.”

STEPHANOPOULOS: “That’s not the evidence…”

PENCE: “…that’s certainly his right. But, you know…”

STEPHANOPOULOS: “It’s his right to make false statements?”

PENCE: “Well, it’s his right to express his opinion as president-elect of the United States. I think one of the things that’s refreshing about our president-elect and one of the reasons why I think he made such an incredible connection with people all across this country is because he tells you what’s on his mind.”

STEPHANOPOULOS: “But why is it refreshing to make false statements?”

PENCE: “Look, I don’t know that that is a false statement, George, and neither do you. The simple fact is that…”

STEPHANOPOULOS: “I know there’s no evidence for it.”

PENCE: “There is evidence, historic evidence from the Pew Research Center of voter fraud that’s taken place. We’re in the process of investigating irregularities in the state of Indiana that were leading up to this election. The fact that voter fraud exists is…”

STEPHANOPOULOS: “But can you provide any evidence—can you provide any evidence to back up that statement?”

PENCE: “Well, look, I think he’s expressed his opinion on that. And he’s entitled to express his opinion on that. And I think the American people—I think the American people find it very refreshing that they have a president who will tell them what’s on his mind. And I think the connection that he made in the course…”

STEPHANOPOULOS: “Whether it’s true or not?”

PENCE: “Well, they’re going to tell them—he’s going to say what he believes to be true and I know that he’s always going to speak in that way as president.”

Two months later, Pence said he would be proud to head a new Trump commission to investigate the bogus voter fraud claim. It was a solution in search of a non-existent problem, and it would almost certainly morph into a justification for future voter suppression efforts. On May 11, Trump signed an executive order creating that commission and naming Pence, who stood nearby, its chairman.

The Comey Cover-up

Pence’s willingness to lie for Trump knows no bounds. That became even clearer with reports about his central role in the cover-up relating to the firing of FBI Director James Comey.

On May 3, Comey told a Senate committee that the thought of his actions during the 2016 presidential campaign affecting the election outcome made him “mildly nauseous.” When Trump heard that, he reportedly burned with anger. According to The New York Times, Pence was there as Trump vented to a handful of confidants and talked about firing Comey.

According to The Washington Post, Mike Pence was there five days later when Trump reportedly told a few close aides that he’d made up his mind: Comey had to go. According to ABC News, Pence was part of a small group that prepared media talking points on the anticipated Comey firing.

On Tuesday, May 9 the White House released Trump’s letter firing Comey and put out a false story: Trump had simply acted decisively on recommendations that Deputy Attorney Rod Rosenstein and Attorney General Jeff Sessions had brought to him that day. In the ensuing uproar on Capitol Hill, Trump needed someone to quell the exploding crisis.

Mike Pence was there Wednesday morning May 10, visiting uneasy Congressional Republicans. During a seven-minute on-camera appearance, reporters asked him whether Trump had provided the impetus for Comey’s firing. As is his wont, Pence responded with a folksy story:

“The deputy attorney general…came to work, sat down, and made the recommendation that for the FBI to be able to do its job, that it would need new leadership. He brought that recommendation to the president. The attorney general concurred with that recommendation.”

Did the firing have anything to do with the FBI’s ongoing investigation of Trump campaign ties to Russia? “That’s not what this is about,” Pence answered. It was about providing someone who could “lead that agency and all the outstanding men and women at the FBI” to greater heights.

We now know none of that was true.

The Unraveling

Deputy Attorney General Rosenstein heard the Trump administration’s narrative and didn’t like it. He pressed White House counsel Don McGahn (JD, Widener ’94) to correct the inaccurate depiction of events leading up to Comey’s dismissal. According to The Wall Street Journal, Rosenstein suggested that he couldn’t work in an environment where facts weren’t reported accurately. Less than 36 hours later, Trump gave an interview to NBC’s Lester Holt that apparently satisfied Rosenstein:

“Regardless of recommendation, I was going to fire Comey, knowing there was no good time to do it. ”

And in his next sentence, Trump described how he had linked Comey’s firing to the FBI’s ongoing investigation of ties between Russia and the Trump campaign:

“And in fact, when I decided to do it, I said to myself, I said, you know, this Russia thing with Trump and Russia is a made up story….”

Meanwhile, Trump’s false suggestion that he fired Comey “because he wasn’t doing a good job”—and Pence’s similar argument that the bureau needed new leadership—fell apart, too. As Holt was interviewing Trump, Acting FBI Director Andrew McCabe was testifying on that subject before the Senate Intelligence Committee:

“I can tell you that I hold Director Comey in the absolute highest regard,” McCabe said. “I have the highest respect for his considerable abilities and his integrity, and it has been the greatest privilege and honor in my professional life to work with him. I can tell you also that Director Comey enjoyed broad support within the FBI and still does until this day.”

The End Game

Conversations about impeaching Trump—or using the 25th amendment to remove him—are now moving from idle chatter to a more serious phase. Mike Pence wasn’t in the Oval Office with Trump and the Russians on May 10. Nor was Pence present on February 14—the day after Flynn’s firing—when Trump reportedly asked Comey to end the Flynn investigation. But as the discussions about shortening Trump’s tenure evolve, two points are worth remembering about what Sen. Bob Corker (R-TN) calls Trump’s downward spiral:

  • Pence was on the ticket that Putin helped to elect in 2016, and
  • Pence’s legal training vests him with a heightened accountability for his dishonesty.

In defending Trump, Mike Pence has sacrificed core principles of democracy. In the process, he has dishonored his profession and disserved the country. In the final analysis, he hasn’t served his president very well, either.

The next installment in this series will consider counselor to the president Kellyanne Conway (assuming she keeps her job until then).

 

 

THE TRUMP/RUSSIA TIMELINE: MAY 18, 2017 UPDATE

Here are my latest additions to the Bill Moyers & Company Trump/Russia Timeline. But for context and a small taste of the job Robert Mueller now has, read the whole Timeline.

  • June 15, 2016: After the Ukrainian prime minister visits Capitol Hill, Speaker Paul Ryan (R-WS), House Majority Leader Kevin McCarthy (R-CA) and other Republican leaders meet privately. During the session, McCarthy says, “I’ll guarantee you that’s what it is…The Russians hacked the DNC and got the opp [opposition] research they had on Trump.” Moments later he says, “There’s two people I think Putin pays: Rohrabacher and Trump,” referring to Rep. Dana Rohrabacher (R-CA) who is known in Congress as a fervent defender of Putin and Russia. Some of the lawmakers laugh, but McCarthy continues, “Swear to God.” According to a transcript prepared from a tape of the discussion, Ryan immediately interrupts the conversation, saying, “This is an off the record…[laughter]…NO LEAKS…[laughter]…alright? This is how we know we are a real family here… What’s said in the family, stays in the family.” When The Washington Post obtains the transcript in May 2017, it seeks comment from Ryan and McCarthy. Ryan’s spokesperson says, “That never happened. The idea that McCarthy would assert this is false and absurd.” As detailed in the Post video accompanying its eventual story, the Post reporter then says that he has a transcript of the discussion. Ryan and McCarthy respond that the transcript is false, maybe even made up, and certainly inaccurate. When the reporter says he has listened to an audio recording of the conversation, Ryan’s spokesperson says it was a failed attempt at humor.

***

  • May 10, 2017: At an Oval Office meeting with Russian Ambassador Kislyak and Foreign Minister Sergey Lavrov and their aides, Trump reveals highly classified intelligence about the Islamic State and American counterterrorism plans. The meeting occurs because Putin had previously asked Trump to meet with Lavrov, and Trump didn’t feel he could say no. Kislyak’s attendance was unexpected. The intelligence that Trump reveals is so sensitive that it has not been shared with American allies and has been tightly restricted within the U.S. government. Minutes after the meeting ends, Kislyak’s presence becomes known when the Russian news agency TASS publishes photographs that a Russian photographer had taken of the three men. The White House had not permitted any U.S. news organization to attend any part of the meeting, even for photographs.

***

***

  • May 15, 2017: At his daily press conference, Sean Spicer refuses—seven times—to answer whether Trump is secretly recording his conversations.
  • Also May 15, 2017: National Security Adviser H.R. McMaster issues a 40-second “non-denial denial” of the Washington Post story that Trump disclosed highly classified intelligence to Russian Ambassador Kislyak and Foreign Minister Lavrov. McMaster says, “The story that came out tonight as reported is false… At no time, at no time were intelligence sources or methods discussed. And the president did not disclose any military operations that were not already publicly known.” The Post story had said nothing about disclosure of intelligence sources and methods. “I was in the room,” McMaster concludes, “It didn’t happen.” Secretary of State Rex Tillerson, who also attended the Oval Office meeting with the Russians, issues a statement saying the group “did not discuss sources, methods or military operations.
  • May 16, 2017: Trump tweets:

 

  • Also on May 16, 2017: NSA McMaster tells reporters repeatedly that Trump’s disclosure of intelligence with the Russians was “wholly appropriate.” He doesn’t answer questions about whether the information was classified, including the location of the city from which the intelligence had been obtained. As his press conference ends, McMaster says that Trump “wasn’t even aware where this information came from. He wasn’t briefed on the source and method of the information, either.”
  • May 17, 2017: Putin offers to provide the U.S. Congress with transcripts of the May 10 Oval Office conversations among Trump, the Russian ambassador, and Russia’s foreign minister.
  • Also on May 17, 2017: Deputy Attorney General Rod Rosenstein names former FBI Director Robert Mueller as special counsel to oversee the FBI’s investigation into Russian interference with the election. In a White House statement, Trump says, “As I have stated many times, a thorough investigation will confirm what we already know—there was no collusion between my campaign and any foreign entity. I look forward to this matter concluding quickly.”
  • May 18, 2017: Trump tweets:
  • and:

 

SPECIAL UPDATE TO THE COMEY FIRING AND TRUMP/RUSSIA TIMELINES

On May 17, 2017, I added two more items to the Bill Moyers & Company Timelines on firing of James Comey and Trump/Russia:

  • Feb. 14, 2017: In a private Oval Office meeting, Trump asks FBI Director Comey to halt the investigation of former NSA Mike Flynn. According to Comey’s contemporaneous memorandum, Trump says, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” According to the memo, Trump tells Comey that Flynn had done nothing wrong. Comey does not say anything to Trump about curtailing the investigation, replying: “I agree he is a good guy.” [Added May 17, 2017]

***

  • May 16, 2017: In response to press reports that former FBI Director James Comey had written a contemporaneous memorandum documenting Trump’s February 14 request to “let Flynn go,” the White House issues an unattributed statement that concludes: “This is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey.” [Added May 17, 2017]

A TIMELINE OF THE COMEY FIRING (THE TRUMP/RUSSIA TIMELINE: MAY 15, 2017 UPDATE)

[This post first appeared on Bill Moyers & Company on May 15, 2017]

Editor’s Note

Last week’s firing of FBI Director James Comey was yet another shocking plot twist in our national reality show — Sweeps Week-worthy programming. As many of you know, every Monday we’re updating our multimedia timeline with new facts and revelations in the evolving Trump-Russia affair. This week, we thought we would lay out the new developments in a separate post because so much happened in one week. Here’s Harper’s update. You can view the whole timeline here.

–Bill Moyers

The speed and magnitude of last week’s developments relating to the Trump/Russia Timeline has been historic and stunning.

To summarize:

  • Trump fires FBI Director James Comey because he doesn’t like the way Comey is running the bureau’s ongoing investigation into connections between his campaign and Russia.
  • The ensuing White House cover-up tries to pin the blame on a newly confirmed deputy attorney general whose hastily prepared memo criticizes Comey’s 2016 statements about the closed FBI investigation into Hillary Clinton’s mail server—statements that helped Trump win the presidency.
  • Within 48 hours, the cover-up implodes.

But an even more important story receiving far less attention might be percolating. The Treasury Department’s money-laundering investigators have agreed to cooperate with the Senate Intelligence Committee’s investigation into Trump and Russia.

Here are my newest additions that have now been incorporated into the complete Bill Moyers & Company Timeline.

 

  • Late summer 2015: A member of Trump’s campaign staff calls Lt. Gen. Mike Flynn to ask if he’s willing to meet with Trump. Flynn agrees. Later, Flynn says that four other Republican presidential candidates also reached out to him: Carly Fiorina, Scott Walker, Ben Carson, and Ted Cruz.

***

***

***

***

  • Also on April 25, 2017: The Senate confirms Rod Rosenstein as deputy attorney general. Because Attorney General Jeff Sessions had recused himself from matters relating to the 2016 presidential election, including the Trump/Russia investigation, Rosenstein becomes the top Justice Department official supervising FBI Director Comey on that investigation.

***

and:

  • Days before May 9, 2017: According to The New York Times, FBI Director Comey asks Deputy Attorney General Rod Rosenstein for additional resources to expand the bureau’s Trump/Russia investigation. Department of Justice spokesperson Sarah Flores denies the story, calling it “100 percent false.”
  • May 9, 2017: Citing the May 9 recommendations of Attorney General Sessions and Deputy Attorney General Rosenstein, Trump fires Director Comey, ostensibly because of his inappropriate statements about the Clinton email investigation prior to the 2016 election. Trump, Sessions and Rosenstein write that terminating Comey is necessary to restore trust, confidence and integrity in the FBI. In his termination letter to Comey, Trump also says that he “greatly appreciates you informing me, on three separate occasions, that I am not under investigation.”
  • Also on May 9, 2017: CNN reports that a federal grand jury in Alexandria, VA had recently issued subpoenas to associates of former NSA Mike Flynn.
  • Also on May 9, 2017: Late in the evening and amid bushes on the White House grounds, press secretary Sean Spicer tells reporters to “turn the lights off” before answering questions about Comey’s firing. He says that the impetus came from the deputy attorney general. “No one from the White House,” Spicer says. “That was a DOJ decision.” Counselor to the president Kellyanne Conway echoes that position on CNN, reading excerpts from Rosenstein’s memo to Anderson Cooper.
  • May 10, 2017: Vice President Mike Pence says repeatedly that Comey’s firing occurred because Sessions and Rosenstein recommended it: The deputy attorney general “came to work, sat down, and made the recommendation that for the FBI to be able to do its job, that it would need new leadership. He brought that recommendation to the president. The attorney general concurred with that recommendation.”
  • Also on May 10, 2017: Deputy press secretary Sarah Huckabee Sanders says Trump had been thinking about firing Comey “since the day he was elected,” but reiterates Pence’s position that Sessions and Rosenstein were “absolutely” the impetus for the firing.
  • Also on May 10, 2017: The Washington Post and The New York Times report that Trump had been the impetus for Coney’s firing, not Deputy Attorney General Rosenstein
  • Also on May 10, 2017: Rod Rosenstein speaks by phone with White House counsel Don McGahn. According to The Wall Street Journal, Rosenstein insists that the White House correct the misimpression that Rosenstein initiated the process leading to Comey’s firing. He suggests that he can’t work in an environment where facts aren’t reported accurately.
  • Also on May 10, 2017: The White House releases a new timeline of the events relating to Comey’s firing. It recites that the impetus for removing Comey had come from Trump, not the deputy attorney general. But the White House acknowledges that Trump met with Sessions and Rosenstein on May 8 to discuss “reasons for removing the Director” and that the attorney general and his deputy sent their written recommendations to Trump on May 9.
  • Also on May 10, 2017: House Oversight Chairman Jason Chaffetz (R-UT) asks the Justice Department’s inspector general to investigate Comey’s firing.
  • May 11, 2017: Acting FBI Director Andrew McCabe testifies that James Comey enjoyed “broad support within the FBI and still does to this day…. The majority, the vast majority of FBI employees enjoyed a deep, positive connection to Director Comey.”
  • Also on May 11, 2017: Trump tells NBC’s Lester Holt that he had already decided to fire Comey before his meeting with Sessions and Rosenstein: “Regardless of recommendation, I was going to fire Comey, knowing there was no good time to do it. And in fact, when I decided to do it, I said to myself, I said, you know, this Russia thing with Trump and Russia is a made up story….” Trump also says that on three different occasions—once in person and twice over the phone—he’d asked Comey if he was under investigation for alleged ties to Russia, and Comey told him he wasn’t. And Trump tells Holt that he had sent Sen. Lindsay Graham (R-SC) a “certified letter” from “from one of the most prestigious law firms in the country” confirming that he has “nothing to do with Russia.”
  • Also on May 11, 2017: The New York Times reports on Trump’s one-on-one dinner with Comey on January 27, when Trump asked Comey for a personal loyalty pledge that Comey refused to provide
  • Also on May 11, 2017: The Senate Intelligence Committee sent Mike Flynn a subpoena for documents that he’d refused to produce voluntarily in response to the committee’s April 28 letter request.
  • May 12, 2017: Trump tweets:

  • Also on May 12, 2017: In response to questions about Trump’s early morning tweet about Comey and “tapes,” press secretary Sean Spicer refuses to answer whether Trump was taping Oval Office conversations. “I have nothing further to add on that,” Spicer says repeatedly.
  • Also on May 12, 2017: The White House releases a one-page May 8, 2017 letter from Trump’s outside lawyers—Sheri Dillon and William Nelson at Morgan, Lewis & Bockius. The carefully worded letter states that “with a few exceptions” totaling about $100 million, Trump’s tax returns from 2005 “do not reflect” any “income from Russian sources,” “debt owed by you or [The Trump Organization] to Russian lenders,” “equity investments by Russian persons or entities,” or “equity or debt investments by you or [The Trump Organization] in Russian entities.” The letter does not define “Russian” or purport to determine whether or to what extent individuals from Russia, Ukraine, or other former Soviet-bloc countries may have used shell corporations through which they may have conducted transactions with Trump businesses. Months earlier, Dillon had developed and presented Trump’s business conflicts of interest plan whereby Trump retained all ownership in his businesses.
  • Also on May 12, 2017: The Wall Street Journal reports that the Treasury Department’s Financial Crimes Enforcement Network (FinCEN)—a unit that specializes in combating money-laundering—will share financial records with the Senate Intelligence Committee investigating Trump’s ties to Russia.

TRUMP FIRES COMEY: WHERE IS DON McGAHN?

[This post first appeared on Bill Moyers & Company on May 10, 2017.]

TRUMP’S LAWYERS AND THE RULE OF LAW – PART 2

On March 20, 2017, FBI Director James Comey confirmed that the bureau was investigating connections between Russia and the Trump campaign. Seven weeks later, Trump signed a bizarre letter firing him. Who wrote it? More precisely, where is White House counsel Donald F. McGahn II?

As the president’s lawyer, McGahn’s daunting task is to keep Trump out of trouble while preserving and protecting the U.S. Constitution. And from White House ethics compliance and the immigration travel ban to Mike Flynn and the Trump/Russia investigation, McGahn has served both his client and the country poorly.

Harvard Law Professor Jack Goldsmith, who worked in the George W. Bush administration, observes that McGahn is either incompetent or ineffectual. The result is the same. On a broad range of issues relating to the fate of American democracy, a question cries out:

Where is Don McGahn?

Conflicts of Interest

McGahn is a Washington insider who has thrived in “the swamp.” After graduating from Widener Law School in 1994, he got a job at a politically connected law firm. From 1999 to 2008, he was general counsel for the National Republican Congressional Committee. In the early 2000s, he represented then-House Majority Leader Tom DeLay (R-TX), a one-man ethics scandal band. In July 2008, President Bush appointed McGahn to the Federal Election Commission, which McGahn then helped to paralyze. In 2013, he returned to private practice.

Now, all Trump conflict of interest roads run through McGahn. The White House counsel’s office is supposed to deal with ethical issues swirling around the president’s people. Perhaps Newt Gingrich’s December 2016 musings have become McGahn’s ultimate malpractice insurance policy.

“[The president] has, frankly, the power of the pardon,” Gingrich said of the burgeoning Trump administration conflicts of interest. “I mean, it is a totally open power, and he could simply say, ‘Look, I want them to be my advisors, I pardon them if anybody finds them to have behaved against the rules, period.’”

Since the creation of the independent Office of Government Ethics in 1978—in the aftermath of Watergate—presidential administrations have followed its rules and regulations. But in February 2017, deputy White House counsel Stefan C. Passantino wrote to OGE Director Walter Schaub that “many” of those regulations “do not apply to the Executive Office of the President.” Schaub responded that Passantino’s position was legally incorrect and troubling. To make matters worse, Trump has issued secret waivers exempting former corporate employees and lobbyists in the Trump administration from complying with ethics rules and eliminated public access to White House visitor logs.

Similarly, if McGahn is a restraining influence on the Trump family’s exploding business conflicts of interest, it’s not apparent. In a February 8 tweet, Trump blasted Nordstrom for dropping his daughter’s fashion line:

The next morning, Kellyanne Conway – counselor to the president and herself a lawyer – followed up with a Fox & Friends appearance. “Go buy Ivanka’s stuff,” she urged. “I’m going to give it a free commercial here. Go buy it today everybody. You can find it online.” For that ethical violation, Conway received counseling from McGahn’s deputy, Passantino, as sales of Ivanka’s “stuff” soared to the “best performing weeks in the history of the brand.”

Like her father, Ivanka retains financial interest in her company, thereby creating a clear financial path for those seeking influence. Two months after the Nordstrom episode, she dined with China’s President Xi Jinping at Mar-a-Lago as her company won three Chinese trademarks that “include monopoly rights to sell her distinct brand of jewelry, bags, and space services.” After that story broke, the outside lawyer advising Ivanka said that her client “will recuse herself from particular matters where she has a conflict of interest or where the White House counsel determines that her participation would present appearance or impropriety concerns.”

As for husband Jared Kushner’s conflicts, in late April, Trump spokesperson Hope Hicks assured the public that he “continues to work with the Office of White House counsel….” to resolve them. Meanwhile, on May 7, Kushner’s sister, Nicole Meyer, used Jared’s proximity to the president in pitching potential Chinese investors for Kushner real estate projects. She even touted a fringe benefit: for an investment of $500,000 or more a path to U.S. citizenship opened. A day earlier, Trump had signed a bill extending the controversial EB-5 visa program to which she referred.

Where is Don McGahn?

The Travel Ban

As federal courts declared the travel ban unconstitutional, Trump has repeatedly attacked the judges ruling against him. Harvard’s Jack Goldsmith observes that White House counsel is supposed to ensure inter-agency coordination on important legal policies, anticipate court challenges and, as necessary, persuade the president to refrain from actions that compromise the defense of those policies. After a chaotic rollout, the ban suffered decisive courtroom defeats and Trump’s rants worsened his litigation position. If McGahn didn’t anticipate the ban’s logistical and constitutional problems, Goldsmith writes, he’s incompetent. If he did anticipate them, but couldn’t persuade Trump to abandon a misguided course and subsequent tweets, he’s ineffectual. Based on the record so far, McGahn could be both.

No one with a legal degree and respect for the Constitution’s separation of powers could embrace the incendiary White House statement issued after Trump’s April 25, 2017 courtroom defeat on sanctuary cities, which included these passages:

“This San Francisco judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk… Ultimately, this is a fight between sovereignty and open borders, between the rule of law and lawlessness, and between hardworking Americans and those who would undermine their safety and freedom.”

Nor should any attorney by silence or otherwise, condone Trump’s subsequent twitter-fit:

Where is Don McGahn?

The Flynn Affair

McGahn is at the center of the Mike Flynn scandals. On January 26, 2017, Acting Attorney General Sally Yates informed him that Trump’s national security adviser was “compromised.” Pence and others were telling the American public that Flynn’s late December 2016 calls with the Russian ambassador had not covered newly announced U.S. sanctions for Russia’s election interference. Yates told McGahn that such statements were not true. But for 18 more days, Flynn kept his NSA job – the most sensitive foreign policy position. Only after reporters uncovered the truth did Trump fire him a few days later.

According to Sean Spicer, McGahn took Yates’ report to Trump: “When the President heard the information as presented by White House counsel, he instinctively thought that General Flynn did not do anything wrong, and the White House counsel’s review corroborated that.” But Yates had told McGahn that it wasn’t just Flynn’s lies. His underlying conduct was “problematic in and of itself.”

In a second conversation about Flynn on January 27, 2017, McGahn asked Yates why it matters to the Department of Justice if one White House official lies to another White House official. Yates reiterated her concerns about Flynn’s underlying conduct and explained that Flynn’s lies made him vulnerable to Russian blackmail. The Russians knew that Flynn had lied and likely could prove it. With every new White House statement repeating the lie, Russia’s leverage over Flynn grew. Trump fired Yates four days after her first meeting with McGahn, but he kept Flynn as NSA for two more weeks.

It gets worse. McGahn had already dropped an earlier ball. Flynn’s attorneys claim that during the transition, they informed McGahn that their client – Trump’s NSA-designate – might have to register as a foreign agent for Turkey. When that news broke in March, Sean Spicer said that was “not the job of a transition attorney” to follow up. But it was McGahn’s job to protect the president-elect and the country from a would-be NSA who might be violating the law as an unregistered foreign agent. In March 2017, Flynn registered retroactively – long after Trump fired him over the earlier scandal.

As Yates prepared to testify before a Senate subcommittee about the Flynn affair, Trump tweeted himself into those proceedings:

Where is Don McGahn?

The Trump/Russia Scandal

As the Trump/Russia scandal got hotter, Trump tweeted a baseless diversion that he’d been “wire tapped” by President Obama.

Apparently, it became McGahn’s job to find supporting evidence where none existed.

Two weeks after Trump’s tweet, a McGahn underling (along with a former Mike Flynn protégé whom Trump had saved personally from reassignment by new NSA H.R. McMaster) supplied confidential documents to Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee investigating the Trump/Russia connection. Nunes, who had also been on Trump’s transition team, rushed to the White House and briefed Trump on documents that Trump’s own staffers had shown him.

Nunes then hinted publicly about a non-existent bombshell, and Trump declared that Nunes’ revelation to him vindicated his false wiretapping allegation “somewhat.” A few days later, the press revealed that the entire episode had been a farce featuring a key player in McGahn’s office; Trump’s wiretapping claim was still bogus. Nunes recused himself as chairman of his committee’s Trump/Russia investigation.

When Trump fired FBI Director James Comey on May 9, his letter referred to conversations that supposedly exonerated Trump with respect to the bureau’s Russia investigation. That detour waived executive privilege. The stated reason for the firing was frivolous on its face, namely, that prior to the election, Comey had made inappropriate public statements about the FBI’s investigation of Hillary Clinton’s email server – statements that Trump had praised as he exploited them to win the White House. It also relied on the recommendation of Attorney General Jeff Sessions, who had supposedly recused himself from the Trump/Russia and Clinton investigations.

Where is Don McGahn?

Someday in a setting he won’t enjoy, McGahn will probably have to answer that question – and many more – under oath. If so, he won’t be the first White House counsel to traverse that path. John Dean, his predecessor in the Nixon administration, knows how this could end: Sometimes it’s not the crime; it’s the cover up.

The next installment in the series will consider chief of staff Reince Priebus and Vice President Mike Pence.

THE TRUMP/RUSSIA TIMELINE: MAY 8, 2017 UPDATE

Trump’s tweets immediately preceding FBI Director James Comey’s congressional testimony brought to mind one of the articles of impeachment against President Richard Nixon: “[I]nterfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees;….” (Article 1, #4)

Here are my newest additions to the Bill Moyers & Company Timeline:

  • Sometime in 2014: Golf writer and co-author of Arnold Palmer’s memoir James Dodson is playing golf with Donald and Eric Trump at Trump National Charlotte in North Carolina. In an interview airing May 5, 2017 on Boston’s public radio station, Dodson describes the episode, beginning with a question he asks Donald Trump before the round: “‘What are you using to pay for these courses?’ And he just sort of tossed off that he had access to $100 million. So when I got in the cart with Eric, as we were setting off, I said, ‘Eric, who’s funding? I know no banks — because of the recession, the Great Recession — have touched a golf course. You know, no one’s funding any kind of golf construction. It’s dead in the water the last four or five years.’ And this is what he said. He said, ‘Well, we don’t rely on American banks. We have all the funding we need out of Russia.’ I said, ‘Really?’ And he said, ‘Oh, yeah. We’ve got some guys that really, really love golf, and they’re really invested in our programs. We just go there all the time. Now that was three years ago, so it was pretty interesting.” On May 7, 2017, Eric Trump calls Dodson’s claim “categorically untrue” and “complete garbage.”

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  • July 19, 2016: Bloomberg reports that over the past year, Trump’s debt load has almost doubled from $350 million to $630 million.

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  • Nov. 18, 2016: Rep. Elijah E. Cummings (D-MD), Ranking Member of the House Committee on Oversight and Government Reform, sends Trump transition team chair (and Vice President-elect) Mike Pence a letter expressing concerns about NSA-designate Mike Flynn’s conflicts of interest. Specifically, Cummings worries about Flynn’s work for an entity affiliated with the government of Turkey, as well as a paid trip to Moscow in December 2015 during which Flynn was “highly critical of the United States.”

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  • April 28, 2017: The chair and vice chair of the Senate Intelligence Committee send letters to several former Trump campaign advisers, including Carter Page, Mike Flynn, Paul Manafort, and Roger Stone. Among other requests, the letters ask for a “list of all meetings between you and any Russian official or representative of Russian business interests which took place between June 16, 2015 and January 20, 2017.” The letters also request information about any such meetings of which they are aware, as well as all documents relating to Trump campaign communications with Russian officials or business representatives. The Committee also seeks information about any financial and real estate transactions related to Russia from June 15, 2015 through Trump’s inauguration.

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  • May 2, 2017: On the eve of FBI Director James Comey’s testimony before the Senate Judiciary Committee, Trump tweets: “FBI Director Comey was the best thing that ever happened to Hillary Clinton in that he gave her a free pass for many bad deeds! The phony… Trump/Russia story was an excuse used by the Democrats as justification for losing the election. Perhaps Trump just ran a great campaign?”
  • May 3, 2017: In response to Sen. Patrick Leahy (D-VT), who asks FBI Director Comey about Trump’s April 29, 2017 interview in which he said that the hacking of the DNC “could’ve been China, could’ve been a lot of different groups,” Comey answers, “The intelligence community with high confidence concluded it was Russia.” [Added May 9, 2017]
  • May 5, 2017: The chair and vice chair of the Senate Intelligence Committee issue a joint statement, saying: “Three days ago, Carter Page told Fox News he was cooperating with the Committee’s investigation into Russian activities surrounding the 2016 Election. Today we have learned that may not be the case.” The statement expresses the hope that Page “will live up to his publicly-expressed cooperation with our effort.”

ABOUT THOSE CONFLICTS

Does anyone remember Trump’s first post-election press conference in January. That’s when his tax lawyer, Sheri Dillon at Morgan, Lewis & Bockius, assured everyone that Don Jr. would stay out of politics while he ran his father’s business. Do they think no one notices when Don Jr. shows up four months later at a campaign rally in Montana?

(Photo from 5/5 NYT).

That’s just a sample of the obvious stuff emanating from the charade that Dillon touted as the comprehensive solution to the Trump family’s ongoing conflicts of interest.

In the latest ethical failures, the State Department promoted Mar-a-Lago and Ivanka’s new book. And the Kushner family is trading on Trump ties to woo Chinese investors “into wealthy luxury developments” with $500,000 “investor visas.” So it’s not just the presidency that’s for sale, it’s America itself.

When will it end? Whenever the public starts to care. And even then, maybe not.