Thread by @RickPetree

THREAD One: Highlights of panel discussion at Noon today @ NYU Law School, titled “Probing Mueller,” featuring @PreetBharara (PB) and @NatashaBertrand (NB), chaired by Ryan Goodman @rgoodlaw (RG).

2. RG: What shd we look for in the report to be released tomorrow ? NB: Per convos she’s had w/ @neal_katyal, his SCO regs were never meant to cover a CI investigation. Mueller has therefore concentrated on crim investigations.

To extent there’s *any* trace of CI work in report, it will be heavily redacted. This leaves unresolved many ‘conspiracy/collusion’ related issues: TT meeting; Manafort passing polling data to KK; role of Mifsud, etc.

3. NB: Therefore, unredacted portions of report will be mostly abt obstruction (OOJ), which is potentially most damaging to DJT, IHO. PB: Agrees, all eyes will be on OOJ, not conspiracy/collusion. The 4 categories of redactable material ID’ed by Barr apply mostly to conspiracy;

and since so much of the OOJ has happened “in plain view” (Holt interview, etc.), it’s harder to justify OOJ related redactions. If we see heavy redactions in OOJ portion of report, PB will question the ‘good faith’ of redaction process.

4. PB: He will be looking, especially, to see what, if anything, Barr says in releasing the (redacted) report ? Will there be a further ‘gloss’ of that report ?

5. RG: Will we *ever* see the full, unredacted report ? RG doubts we will. NB: If Cong. ever gets it, it will leak to public. Wrt Congress getting GJ materials, there’s talk of initiating impeachment enquiry to establish standing. All avenues “run through the Hill.”

PB: There’s a parallel in GOP’s accessing, and releasing, info underlying FISA warrant on Page: GOP has “already breached that line.” Doesn’t know how long subpoena litigation might take, but Trump/Barr goal appears to be to push it past 2020 election.

Assuming Dems win in 2020, high likelihood full report wd then be made public.

6. RG: How much of SCO’s work was, in fact, wrapped up by the time Barr announced office wd close, and there wd be “no further indictments”, etc. ?

NB: The most shocking ‘loose thread’ was absence of any indictment of Corsi (who seems to have ‘played’ SCO skillfully, getting detailed information on the case against him, then terminating his cooperation agmt., and coming out taunting the SCO).

NB: Also, failure to charge Prince for ‘blatant’ lying to Congress. Mueller has repeatedly shown he’s “not shy about charging for perjury,” so why no charge here ?

*Most important* issue, in terms of whether SCO had reached a genuine end point, is whether the CI investigation is ongoing. For NB, this is “one of the most important Q’s” to be asked of Mueller.

PB: Agrees “the Corsi thing is very strange.” There’s *no way* a prosecutor shows details of the evidence to a target unless he’s really prepared to charge. Thinks a ‘tactical error’ may have been made by SCO.

PB: Asks “Why did Mueller choose to end when he did ? He could, absolutely legitimately, have continued to work for many months.” Speculates reasons might include: (i) outside pressures (Trump attacking him constantly), making him feel he had to hurry,

(ii) assuring a ‘life after SCO’ for those cases he was able to hand off, and (iii) “maybe there are more things going on than we know.”

PB: Along with the Corsi ‘loose thread,’ notes comment by McCabe, in filing related to Manafort/ Kilimnik, that it raised issues that “go to the heart of what SCO is investigating.” Clearly implied significant, ongoing investigation.

So, for PB, it seems there was “a *lot* left up in the air.” “A really, really big question is why Bob Mueller wrapped up.”

7. On whether CI investigation is ongoing: NB notes that, as related in McCabe’s book, the CI investigation was opened shortly after Comey was fired. As reported by McCabe, *no one* on the GOP side voiced misgivings abt necessity or wisdom of that investigation.

She considers it “telling” as a signal of how GOP actually views Trump, i.e., “they all seemed to agree that Trump might pose a threat” to national security.

PB notes that CI investigations can continue “a long, long time,” and don’t always result in prosecutions b/c sensitive other ‘considerations’ (diplomatic, etc.) may weigh against it. But they can, at same time, stay open.

PB also notes that Mueller may have ‘handed off’ the OOJ issue to Congress b/c he wanted to ‘get it in front of the public before the election.’

8. RG asks PB if SDNY has some way (despite OLC memo, inability to indict sitting POTUS, etc.) to inform the public that there is sufficient evidence to believe that the POTUS. has committed a crime ?

RG also asks: if an argument for OLC position is that POTUS can’t have a “badge of dishonor” pinned on him thru criminal conviction (b/c it would interfere w/ discharge of his office), doesn’t Cohen's conviction *already* pin that dishonor on Trump, so why worry further ?

End Thread One (limit reached). See Thread Two.

THREAD Two:
PB: (i) the OLC memo is binding policy (w/ a caveat, see below); (ii) doubts that a campaign finance violation ‘rises to the level’ that would justify an unelected public official in ‘thumbing his nose’ at the policy, which has political as well as legal underpinnings

(i.e., avoiding ‘polarization’); (iii) does not think Mueller, in his sphere, would have ‘flouted’ the policy.

PB’s caveat: there are extreme fact scenarios (POTUS murders someone on Fifth Ave.) which lead to ‘common sense’ conclusion that POTUS *can* be indicted. If such counter-policy scenarios are imaginable, it casts doubt on the strength of the policy, at least as now articulated.

PB also notes that the OLC memo isn’t only a ‘policy position’ on prudential grounds. It purports to articulate *Constitutional* limits on indictment of a POTUS. DOJ lawyers will fight state indictments of Trump on same grounds.

RG asks about the ‘resiliency’ of DOJ ‘norms,’ whether they can be defended, and whether they’ll bounce back. NB:more than Whitaker or anyone else, the person who high-level FBI and other DOJ officials she’s talked with think has done the most damage to DOJ ‘norms’ is RR.

“Rosenstein has plowed thru those norms,” by (i) continuing to advise Barr on OOJ, in which he had a clear conflict of interest and was himself a fact witness; (ii) ordering the IG to open an investigation of ‘unauthorized surveillance’ of Trump campaign

(which NB says RR did solely b/c Trump was ‘tweeting non-stop at him about it’); and (iii) handing over to Congress reams of documents on ongoing investigations, which then promptly leaked to WH. Recalls Comey’s "not necessarily complimentary" reference to RR as a ‘survivor.’

PB responds by agreeing with each of the transgressions listed by NB, but notes at same time that Dems have never asked RR to recuse, and even today the prevailing view is that RR did his best to protect Mueller. Above all, Dems overlook RR’s sins b/c *he appointed Mueller.*

Illustrating power of ‘norms’ to constrain someone like RR, PB says that, after the world learned of his “pretextual memo” to Trump outlining a spurious story abt Comey’s firing, “the whole world crashed in on” RR, who realized

the entire fraternity of ppl he respected was going to “shun” him. To mitigate that reputational damage, RR appointed Mueller. So, for PB, the vigorous assertion of ethical norms was what led, eventually, to Mueller.

RG asks PB if, with a POTUS who “prides himself on overturning norms,” we shd fear for the independence of SDNY. PB says he’s working w/ a group that's sketching out legislative ‘fixes’ for many of the problems we’ve encountered:

more protection for the SCO; limits on pardon powers; strengthening of anti-nepotism laws; strengthening of divestment rules and laws; strengthening of security clearance procedures, etc., etc.

But there is *no* legislative ‘fix’ for buttressing and protecting the ‘norm’ of the SDNY’s independence. NB concurs that Trump *will* seek to undermine SDNY independence. END Thread Two.