Thread by @ClimateAudit

THREAD: in excellent article, Byron York says that #1 obstruction issue is Trump's June 14 &16 telephone conversations with McGahn abt removing Mueller for conflict of interest. washingtonexaminer.com/opinion/column… Some important points have been overlooked by commentariat so far (even York)

2/ Trump's calls to McGahn were triggered by June 14 WaPo article (based on leaks from either FBI or Mueller team) that Trump was personally under investigation (for obstruction) - something that Comey had repeatedly denied to Trump during earlier phase of investigation.

3/ when Mueller expanded scope of investigation to include obstruction, new and much more complicated Mueller conflict issues arose than for collusion. A fresh and more searching DOJ conflict assessment ought to have been done, but no such study appears to have taken place.

4/ while Trump's articulation of the fresh issues arising from Mueller expanding into obstruction was undoubtedly somewhat inchoate, McGahn ought to have been able to articulate them and should have realized that there were public policy considerations, not just private issues.

5/ rather than ducking for cover out of fear that he would be criticized by Washington legal establishment, McGahn should have insisted that DOJ carry out fresh assessment of Mueller's conflicts of interest in respect of the obstruction investigation that Mueller had expanded to

6/ on the specific issue of conflict assessments carried out by DOJ, the Mueller Report is (as elsewhere) deceptive to the point of dishonesty. Mueller implied (or even stated) that DOJ had fully assessed all Mueller conflicts and dismissed the complaints as "meritless". Untrue.

7/ DOJ appears to have done an ordinary law firm conflict assessment under 5 CFR 2635.502 at the time of Mueller's appointment (more about this below) and issued a 5 CFR 2635.502(d) waiver on May 18, the day after Mueller's appointment. Notwithstanding various claims in Mueller

8/ there is NO evidence that DOJ ever carried out a conflict assessment of ANY of Trump's other conflict allegations, not even of the conflict arising from Mueller's longstanding and well-known personal relationship with Comey. The Mueller Report is very dishonest on this point.

9/ here's how the expansion of Mueller's investigation to obstruction results (or ought to have resulted) in a dramatic change to the conflict of interest equation.

10/ in addition to conflict of interest regulation 5 CFR 2635.502 (which applies to all government employees), DOJ employees participating in an investigation must also comply with conflict of interest regulation 28 CFR 45.2 - the regulation under which Sessions was recused

11/ under 5 CFR 45.2 law.cornell.edu/cfr/text/28/45…, Mueller had to recuse if he had a "personal or political relationship with (1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution", unless DOJ issues a written

12/ determination that Mueller's "participation would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution."

13/ Comey was not "substantially involved in the conduct that is the subject of the [collusion] investigation" and therefore no 28 CFR 45.2 assessment was triggered in regard to Comey-Mueller personal relationship for the collusion investigation described in Appointment Order

14/ but Comey was "substantially involved in the conduct that is the subject of the [OBSTRUCTION] investigation" when Mueller expanded scope of activities to include obstruction. The issues at time were Trump's request re Flynn (of which Comey was only witness) and Comey firing

15/ personal relationship between Comey and Mueller had actually been the subject of a 2013 profile by the Washingtonian when Comey appointed as Mueller's replacement. Article entitled "Forged Under Fire - Bob Mueller and Jim Comey's Unusual Friendship" washingtonian.com/2013/05/30/for…

16/ the Washingtonian profile described Mueller and Comey as “close partners and close allies”; it said that they had “spent many hours together developing a close partnership” and that Comey was “one of Mueller’s most trusted allies”.

17/ the article described a 2004 incident in which AG Ashcroft was incapacitated and in which Comey and Mueller banded together to oppose FISA abuse proposed by Bush administration. Comey: "there was only one person in government who he could confide in and trust: Bob Mueller”

18/ Comey fancied his stand (as DAG) against anticipated FISA abuse by Bush administration as heroic, but was encouraged that Mueller was the buddy beside him: "At least Bob Mueller will be standing on the tracks with me."

19/ given Comey's acquiescence, if not complicity, in FISA abuse by Obama admin, it seems ironic, to say the least, that Comey's claim to prominence was built in large measure on his 2004 opposition to FISA abuse by Bush administration

20/ when the crunch came in the Ashcroft incident, Comey called Mueller at home when he "was at dinner with his wife and daughter". When Comey called, Mueller "didn’t hesitate: 'I’ll be right there.'"

21/ a musical interlude from James Taylor:
When you're down and troubled
And you need a helping hand...
You just call out my name
And, you know, wherever I am
I'll come running (oh yeah, baby)

22/ after Comey's Senate testimony on June 8, 2017 revealed the obstruction investigation plot, several articles forcefully raised issue of whether Mueller was reuired to recuse because of his personal relationship with Comey. Robert Barnes on June 11,2017 lawandcrime.com/high-profile/s…

23/ Michael Otis (former Special Counsel under George W Bush) on June 14, 2017 usatoday.com/story/opinion/…

24/ law professor Glenn Reynolds on June 19, 2017 usatoday.com/story/opinion/…

25/ and, a year later (for reference) Eric Felten on July 5, 2018 weeklystandard.com/eric-felten/do…

26/ on May 18, author of 2013 Washingtonian article said that Mueller was “close friend and almost mentor” to Comey and that they had “a unique partnership, one of the closest working relationships the top ranks of the Justice Department have ever seen”
politico.com/magazine/story…

27/ one more: on June 12, Breitbart published article quoting former FBI official James Kallstrom that Mueller and Comey were "the best of friends and have been for over two decades"
breitbart.com/politics/2017/…

28/ returning to the regulation: the term "personal relationship" is DEFINED in 28 CFR 45.2 as a "a close and substantial connection of the type normally viewed as likely to induce partiality".

29/ Comey and Mueller clearly had a "close and substantial connection", but this connection arose from their jobs, not from Saturday golf games or family barbecues. Some commenters jump to the conclusion that a professional relationship cannot be a 45.2 "personal" relationship

30/ However, the test is not whether the "close and substantial connection" arose socially, but whether it was "of the type normally viewed as likely to induce partiality".

31/ if DOJ did an assessment of the conflict, they would have to recuse Mueller unless they determined in WRITING that his "participation would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation"

32/ this would not be an easy hurdle to overcome. As noted above, there were already several high-profile editorials challenging the integrity of Mueller's participation in the obstruction investigation, plus Trump's own complaint.

33/ but here's a key point: if DOJ carried out a formal assessment of the Mueller-Comey friendship as it pertained to obstruction investigation, there would be a WRITTEN document explaining the decision. (28 CFR 45.2(b)). There isnt a shred of evidence that such a document exists

34/ the only known DOJ ethics related to Mueller conflict is the May 18 law firm waiver obtained by Politico in Dec 2017 pursuant to FOI politico.com/story/2017/12/….

35/ Politico obtained the document shown below politico.com/f/?id=00000160… - an authorization under 5 CFR 2635.502(d). This did NOT extent to 28 CFR 45.2 conflicts.

36/ identical 5 CFR 2635.502(d) authorizations had been issued earlier in 2017 to Noel Francisco. The Francisco recommendation memoranda were released in response to FOI, but the memorandum re Mueller was kept secret.

37/ 5 CFR 2635.502(d) authorizations are only required when “a reasonable person with knowledge of the relevant facts would be likely to question the employee's impartiality".

38/ 5 CFR 2635.402(d) authorizations can be issued if the "interest of Government in employee's participation outweighs the concern that a reasonable person may question the integrity of the agency's programs and operations." In other words, the May 18 authorization did not mean

39/ that DOJ had determined that concern over Mueller's law firm conflict was "meritless", "ridiculous" or "silly", but that the law firm conflict would "would raise a question in the mind of a reasonable person about his impartiality" and authorized him anyway.

40/ be that as it may, this very limited disposition of the law firm conflict does NOT qualify as a conflict waiver in respect of the Mueller-Comey personal relationship as it pertains to the obstruction investigation. This would have been done under 28 CFR 45.2 and prob wasn't.

41/ it's interesting and important to observe Trump's changing attitude towards Mueller's conflicts as he became aware in mid-June of Mueller's decision to incorporate Comey's obstruction allegations (both of which were more or less dismissed by Mueller)

42/ on May 23, (while Trump was on his trip to Middle East to pledge fealty to Saudi Arabia &Israel), Trump challenged Mueller conflicts in respect of the collusion investigation. raising three issues: law firm conflict, golf club fees dispute and Mueller interview for FBI job,

43/ Trump discussed these issues with Bannon and McGahn, both of whom rejected Trump's complaints. Mueller Report described these rejections in some detail. Trump appears to have accepted their advice at the time - remember: only the collusion investigation was then known about.

44/ Comey's Senate appearance on June 7, 2017 brought obstruction into play: see NYT
nytimes.com/2017/06/08/us/… and WaPo web.archive.org/web/2017120310…

45/ this occasioned editorials cited above. In addition, Mueller's office notified the White House that it would be “interviewing intelligence agency officials who allegedly had been asked by the President to push back against the Russia investigation" II, 89, not just collusion

46/ on June 13, Sessions testified to Congress that he had recused because of 28 CFR 45.2 - CNN report here cnbc.com/2017/06/13/her…]

47/ interestingly, this regulation was even mentioned in a Fox News tweet on June 13

48/ also on Jun 13 (per Report), Trump’s personal counsel formally complained to Special Counsel Office about possible conflicts: “Mueller's previous partnership in his law firm, his interview for the FBI Director position, and an asserted personal relationship he had with Comey”

49/ on June 14, shortly after Trump’s complaint to SC Office about conflicts, either FBI or SCO leaked that Trump was personally under investigation for obstruction of justice, a “major turning point” washingtonpost.com/world/national… archive archive.is/w4ADX

50/ up to that point, Trump had stressed both to the US public and to world leaders that he was not personally investigation. The June 14 leak from Mueller's office and/or FBI undermined even this attempt at keeping control of the government.

51/ Trump's concern over conflict of interest was both revived and magnified many times: now that Mueller was investigating Comey's obstruction allegations, the conflict arising from Mueller-Comey personal relationship really infuriated him.

52/ on the evening of June 14, Trump pleaded with McGahn for help with the conflict complaints. McGahn didn't have the least interest in helping. McGahn doesn't appear to have had any appreciation of the additional conflict issues which arose with the obstruction investigation.

53/ on these issues, while Trump's understanding was undoubtedly inchoate, his instinct seems to have been far more perceptive than McGahn's. McGahn refused to help on the grounds that Trump's complaints about conflict were in his personal capacity, not in his official capacity.

54/ however, if Mueller-Comey personal relationship was a 28 CFR 45.2 conflict (as seems probable, and certainly possible), then there was a public interest (not merely private interest by Trump) in a DOJ assessment of that conflict. IMO McGahn should have supported the request

55/ that DOJ formally assess the various conflicts asserted by Trump, including and especially the Mueller-Comey personal relationship. If they had done so, it would have been very helpful in clearing the air.

56/ however, McGahn seems to have been more concerned about appearances in the Washington legal community, as opposed to taking an unpopular stand in support of conflict complaints against Mueller and stood down.

57/ McGahn, like Comey before him, appears to have held his telephone at the length of his arm while Trump was badgering him, paying little attention to what Trump was actually saying. Like Comey, he promised to do something with no intention of doing so.

58/ before commenting further on McGahn incident, I want to show the dishonesty and sleight-of-hand of the Mueller Report in their characterization of DOJ conflict assessment and secondarily of assessments by Trump advisors.

59/ in the Executive Summary, Mueller stated that the "President's advisors told him the asserted conflicts were meritless and had already been considered by the Department of Justice" II,4 Watch the pea. This statement is both a deception and an embellishment.

60/ there is zero evidence that any adviser ever told Trump that his concern over the Mueller-Comey personal relationship in respect of the obstruction investigation was "meritless" or that it had "already been considered" by DOJ. Bannon (and presumably McGahn) had told him that

61/ this concerns over golf club dispute and Mueller interview for FBI job were meritless in respect of collusion investigation, but it was the obstruction investigation and the Mueller-Comey relationship that was on Trump's mind on June 14.

62/ there is no evidence that Trump's advisors told him that DOJ had already considered this issue. Nor is there any evidence that DOJ had considered this issue. This statement in Executive Summary was deceptive bait-and-switch.

63/ similar in section E Overview. Mueller said that DOJ "ethics officials similarly cleared the Special Counsel's service". DOJ did issue 5 CFR 2635.502(d) authorization in relation to law firm conflict, but no evidence of any 28 CFR 45.2 conflict assessment. Bait-and-switch.

64/ also, once again, note that advice from Trump advisors was in respect of collusion investigation and not about Mueller-Comey relationship.

65/ watch how Mueller Report evades analysis of Mueller conflicts of interest. It never conducted its own analysis of the impact of Mueller-Comey relationship on obstruction investigation, instead relying on supposed opinions of Trump advisors and non-existent DOJ assessments

66/ there are several references in the text of section E which are worth considering: search on terms "cleared", "silly", "ridiculous"

67/ in section E Analysis (II,90), Mueller again made the deceptive statement that "the Department of Justice had already cleared the Special Counsel's service". Once again, Mueller implied that DOJ had assessed all conflicts, including Mueller-Comey relationship, but, in reality

68/ DOJ had only issued the limited 5 CFR 2635.502(d) law firm waiver (and only at a time when it was presumably considering collusion, not obstruction.)

69/ the most obvious question for Mueller on this topic tomorrow: your report stated that the various conflict complaints made by the President, including about your personal relationship with Comey, were considered by the DOJ. Did you ever receive or view a written report

70/ issued under 28 CFR 45.2 in respect of conflicts arising for the obstruction investigation from Comey's role in the conduct being investigated?