(THREAD) BREAKING NEWS: A major event has occurred in the Trump-Russia investigation: Special Counsel Bob Mueller has interviewed one of his primary targets, Attorney General Jeff Sessions. This thread analyzes what it means for Trump and the nation. I hope you'll read and share. 
1/ First, here's the New York Times story on today's development: nytimes.com/2018/01/23/us/…
2/ The Times notes that Sessions is the first member of the president's Cabinet to be interviewed by Mueller, and that's true. Still, it's not the newsworthy part. What's newsworthy is he appears—from all the evidence we have—to be one of the primary targets of the investigation.
3/ An investigative "target" is someone you believe may have committed a crime, and who you don't expect you would cut a deal with to get them to testify against someone higher up in the hierarchy of the organization (or, as applicable, criminal conspiracy) you are investigating.
4/ I've previously noted two levels of *potential* targets in the Mueller probe: first, the president and vice president; second, top individuals from the Trump campaign: Don Jr., Paul Manafort, Jared Kushner, Michael Flynn, and Sessions. Pence—so far—doesn't seem to be a target.
5/ The *public* evidence we have suggests Pence was indeed misled by Flynn about Flynn's dealings with the Russians, and doesn't appear to have been in the loop as to any Trump-Russia misdeeds. So for now, we cannot *assume* Mueller's probe internally categorizes him as a target.
6/ The president is known to be under investigation for Obstruction, and we now have information to suggest the Mueller probe will be looking at possible Money Laundering. Conspiracy charges—for instance, involving Computer Crimes—and campaign-finance charges are also possible.
7/ *Any* POTUS is a big enough target that a prosecutor would probably give up someone who'd normally would be a target—so, in this case, any of Mueller's second-tier targets—in order to get sufficient evidence to indict and convict (and first, impeach and remove) that president.
8/ In this case Mueller has already made that call—by entering into a negotiated plea with Michael Flynn on one of the least serious charges that could be brought against him, Mueller has communicated that Trump is indeed a target and indeed worth "losing" another primary target.
9/ So Mueller now has four remaining second-tier targets—Manafort, Kushner, Don Jr., and Sessions. Two of these are in the Trump family—Don Jr. and Kushner—and prosecutors ordinarily assume family members will not "roll" on other family members. That leaves Manafort and Sessions.
10/ But Mueller chose to prosecute Manafort in a case he knew would not go forward on the date he originally asked for—May—due to its complexity. This confirms (a) Manafort is a target, not a candidate for cooperation with the probe, and (b) Mueller doesn't expect that to change.
11/ If Mueller ever did want to flip rather than just jail Manafort, he would have made that play immediately after indicting him, and Manafort would've taken the offer immediately after being indicted. But it's clear now both Mueller and Manafort expect Manafort to go to trial.
12/ Manafort knows the value of his cooperation diminishes with each day—and there's no reason to think Mueller can suddenly "turn up the pressure," beyond the fact of an indictment, during the pretrial discovery process—so Manafort has pretty clearly made his choice on flipping.
13/ Manafort may've done this for many reasons: he doesn't want to snitch; he knows or was told he's considered (unalterably) a primary target; he made an offer to flip and was refused; he thinks he can beat his charges; he's waiting to see if more serious (Russia) charges arise.
14/ In any case, because they're Trump's family, Jared and Don Jr. must be treated as targets—not potential witnesses against Trump. So the question becomes, did Flynn give Mueller enough on Trump that he doesn't need his other option (Sessions)? Or does he need to flip Sessions?
15/ Of course, there *are* third-/fourth-tier targets here—e.g. Papadopoulos (3rd) and Gates (4th) as well as other suspects Mueller is still looking at—but Mueller would need *many* such less-informed targets to get Trump. They're *likely* needed for getting second-tier targets.
16/ So if you're following all this, you now see why Mueller interviewing Sessions is major international news: either the Attorney General of the United States is a primary target in a criminal probe, or he's a target Mueller *needs* to get to the President of the United States.
17/ Some of you may say, hold on, how do we know he's a target at *all*? Answer: both this former criminal attorney (me) and many, many others believe that Mueller has a prima facie ("on its face") case against Sessions for Perjury, and another for Conspiracy to Obstruct Justice.
18/ Moreover, I've argued—and the facts *confirm*—that Sessions was Trump's chief Russian sanctions negotiator during the 2016 presidential campaign, a course of negotiation with the Russians that continued *after* (thus, illegally) the campaign learned of Russian hacking crimes.
19/ So there's every reason to think Mueller isn't just looking at Sessions for things he may've done to protect Trump—lie to Congress (Perjury) and pen a fraudulent justification for firing Comey (Obstruction)—but his willful, clandestine, illicit actions with respect to Russia.
20/ Some say DOJ and the FBI are loath to interview primary targets without a) first sending a "target" letter, and b) making sure their regs allow it, but neither of these steps are necessary or dispositive in a way that would prohibit Mueller from interviewing a primary target.
21/ Moreover, we have no idea what Mueller told Sessions. He may have told him that he was a target, for instance. (Likewise, he may have told him he couldn't discuss his interview with anyone—including the POTUS—which would make Sessions' trip to the Oval yesterday suspicious.)
22/ Here's what I think can be said for sure: given that Mueller has been investigating Trump-Russia ties for *eight months*, if he believed the Attorney General to merely be a potentially helpful witness—but under no circumstances a target—he would've interviewed him months ago.
23/ (To be clear, that Sessions is a key *witness* in the Trump-Russia investigation is inarguable—a team of [nonpartisan] career professionals at the Department of Justice determined that he was, which is precisely why he recused himself from the investigation in March of 2017.)
24/ So we know Sessions was a *known Trump-Russia witness* in March 2017, but the FBI didn't interview him until *ten months later*—that's an important signal that intervening events (as to Perjury and Obstruction) turned him into a primary target for Mueller, not just a witness.
25/ Just so, we know Mueller was working on flipping second-tier targets last October/November—that's why Flynn left his cooperation agreement with Trump's lawyers, then pleaded guilty December 1st—so if Sessions were a potential flip, why is Mueller only *interviewing* him now?
26/ Given this background, Sessions is *at best* a primary target who Mueller aims to flip but (for unknown reasons) is three to five months behind schedule on flipping (as compared to his "second-tier target" peer—Michael Flynn). More likely, Sessions is a primary target—period.
27/ Because Sessions isn't a *necessary* witness on the Obstruction case—Mueller can make it without him—and because Mueller doesn't *need* Sessions to make out a Perjury case against him, I think we should assume that Mueller is *most* interested in asking Sessions about Russia.
28/ On Perjury, Mueller doesn't expect Sessions to confess to lying, so the most he could ask Sessions is if he carefully prepared for testifying—which he can get from other witnesses. Likewise, he can get from others whether or not Sessions was discussing Kislyak pre-testimony.
29/ On Obstruction, Mueller *really* doesn't need Sessions—he has Trump's words, he has other witnesses, he has Comey, he has the president's public actions, he has an upcoming interview with Trump (theoretically), he has Rosenstein as a cooperative witness whenever he wants him.
30/ So those who surmise the FBI waited 10 months to interview Sessions about Obstruction, and 8 months post-Perjury to interview Sessions about Perjury—when Mueller either doesn't need or wouldn't expect much from a Sessions interview on either topic—is missing the big picture.
31/ My point: any legal analyst exceedingly familiar with the Russia case who hears today's news is thinking Mueller wants to ask Sessions about Russia—and is doing so to get him to incriminate himself on Russia-related charges *or* to do that and *then* get him to flip on Trump.
32/ So it's worthwhile to briefly review why Attorney General Sessions matters on the Russia/Conspiracy end of the Trump-Russia investigation—not just the Obstruction case against the president and the Perjury case that can clearly be made out by Mueller against Sessions himself.
33/ Sessions ran Trump's NatSec team. So he was Papadopoulos' boss as Papadopoulos was meeting with Kremlin agents; he was Page's boss as Page was meeting with Kremlin agents; he was J.D. Gordon's boss as Gordon was changing the GOP platform to benefit Putin—then lying about it.
34/ Sessions was (it is quite reasonably believed) on *all* of the email chains about the Trump campaign's repeated contacts with Russia that came through Sessions' national security team: emails from Papadopoulos, Page, Clovis, Kubic, Dearborn, Manafort, Lewandowski, and others.
35/ Sessions met Russian Ambassador Sergey Kislyak at the Mayflower Hotel in April 2016, and lied to Congress about it; he met with Kislyak at the RNC that July and lied to Congress about it; he met Kislyak *again*—in his office—on September 8, 2016 and lied to Congress about it.
36/ Sessions knew about Page's trip to Moscow beforehand—a trip during which Page met secretly with Kremlin and Rosneft officials, as alleged in Steele's dossier (and lied about it). Sessions also met Papadopoulos multiple times—even sat next to him at a dinner—and lied about it.
37/ Sessions was at the Trump International Hotel in DC on March 31, 2016, when Papadopoulos revealed himself directly to Trump—and to Sessions, and to Trump's full national security team—as a Kremlin agent tasked with setting up a meeting between Donald Trump and Vladimir Putin.
38/ Instead of immediately contacting the FBI and/or firing Papadopoulos—which was *his* job to do—Sessions *allegedly* shut Papadopoulos down. But he then knowingly allowed Papadopoulos to continue his extensive efforts to connect the Trump campaign to the Kremlin *unabated*.
39/ When other individuals at the March 31, 2016 meeting gave false accounts of what happened at that meeting to the press—including saying that Trump had no reaction to Papadopoulos' big revelation—Sessions allowed those lies to stand. His excuse? Presumably, his Russia recusal.
40/ But that recusal didn't stop Sessions from being convinced by Trump to re-open the Clinton email issue; it didn't stop Sessions from weighing in on who should be the new FBI Director; it didn't stop Sessions from *pressuring Wray to fire McCabe*—a witness in the Russia probe.
41/ Sessions has now *conceded* that he talked about sanctions with Russian Ambassador Sergey Kislyak at *both* the RNC *and* in his office in September 2016. And we know from other information—and Sessions' *own self-contradictions*—that he's *still* lying about those exchanges.
42/ And of course all of this leaves out Sessions' knowing participation in the big charade surrounding Comey's firing—which Sessions tried to help Trump convince the American people was because of Comey's handling of the *Clinton email investigation*, not the Trump-Russia probe.
43/ And after preparing for *hours* for multiple Congressional testimonies, Sessions lied repeatedly or claimed to have no recollection of any events involving Russia, *even as* he had perfect recall for any fact that was exculpatory—which will suggest criminal intent to Mueller.
44/ Even today, we see signs of Sessions' duplicity: the White House refuses to say if Sessions discussed his interview with Mueller with the president yesterday—when that discussion would be totally inappropriate *even if* Mueller *didn't* explicitly forbid him from having it.
45/ What people want to know *now* is, did Sessions refuse to answer Mueller's questions the same way Trump had Bannon and Lewandowski refuse to answer Congress' questions? The short answer is "no." But you should read this executive privilege primer first:
46/ As you can see from the executive privilege primer offered in Tweet #44, Sessions *cannot* assert executive privilege to avoid answering a question. Only Trump can assert executive privilege, and he must do so *formally* and in a manner that's *narrowly tailored by question*.
47/ To drill down on this: if Trump had wanted to keep Sessions from answering questions about Sessions' time in the White House, he had to notify Mueller in advance that certain narrow lines of questioning would be subject to a claim of privilege. We've no evidence Trump did so.
48/ Moreover, Trump had and has *no power whatsoever* to keep Sessions from answering questions about the presidential campaign, and (by case law) no power to keep him from answering questions about the transition—though Trump theoretically could try to litigate the latter point.
49/ Had Trump formally invoked executive privilege with Mueller before his Sessions interview, Mueller could then have gone to court to battle those line-of-question-specific claims in advance of meeting with the AG. Again, we have no evidence that any of that has occurred here.
50/ So we should assume that Mueller had an unfettered interview with the AG—who's a primary target of his probe *and* can help incriminate Trump—in which he discussed Perjury, Obstruction, *and* Conspiracy with Russia (of several possible types) during the presidential campaign.
CONCLUSION/ This may just be the first of several Mueller-Sessions meetings, so it doesn't mean the probe is almost over, nor that Sessions won't flip on Trump—he may well do so. In any case, it's a *major* development in the Trump-Russia probe and very, very bad news for Trump.
NOTE/ Sessions wasn't testifying before a grand jury. It was a voluntarily meeting—no subpoena—which is why I say this might not be their last meeting. It also means that—while lying to Mueller's a crime—Sessions could refuse to answer a question (which would lead to a subpoena).
INTERVIEWS/ Here's an updated list of Trump officials Mueller has interviewed (and could charge with a crime if they lied to him): Clovis, Coats, Flynn, Hicks, Kellogg, McFarland, McGahn, Miller, Priebus, Rogers, Rosenstein, Sessions, Spicer. Upcoming (allegedly): Trump himself.
INTERVIEWS2/ Another upcoming Mueller interview (confirmed): Bannon.
Note that we don't know if Mueller had an FBI agent with him during the Sessions interview—or some of these others—which could (per some experts) affect the legal implication for lying during such an interview.
Note that we don't know if Mueller had an FBI agent with him during the Sessions interview—or some of these others—which could (per some experts) affect the legal implication for lying during such an interview.
NOTE2/ I've been asked about my earlier reference to DOJ/FBI regs. The idea is that if someone is a target of a federal criminal investigation, you're not supposed to subpoena them to a grand jury—as you'd just be forcing them to plead the Fifth—but rather "invite" them to do so.
NOTE3/ So Sessions, Trump and others can be interviewed by Mueller and also be targets—but in theory they wouldn't be subpoenaed to a grand jury if, based on the evidence he had at the time, Mueller had determined that they were targets. Some say this is a "good sign" for Bannon.
NOTE4/ Bannon was originally subpoenaed to appear before Mueller's grand jury—which some took as a sign he wasn't (at present) a target—but struck an agreement to interview with Mueller voluntarily. My understanding is these interviews are arranged so that lying will be a crime.
NOTE5/ I say "my understanding" because Richard Ben-Veniste—a Watergate prosecutor—says if Mueller were to interview a witness without an FBI agent present it would *not* be Making False Statements, as Mueller isn't acting in place of the FBI but (on Russia) the Attorney General.
NOTE6/ I can't at the moment confirm or deny Ben-Veniste's legal analysis on this point, or—more importantly—if Mueller is bringing FBI agents to these interviews as a way around the legal peculiarity Ben-Veniste describes. Even if he's not, lying to Mueller could be Obstruction.
INTERVIEWS3/ I accidentally left Kushner off the "interviews" list—I knew about (and have threaded at length about) that interview, which was a Making False Statements "trap" for Kushner, via Flynn—but when you're dealing with so many names, sometimes one gets dropped by mistake.
INTERVIEWS4/ And of course some of you will know, if you've followed today's breaking news, that another key Mueller interview was conducted with James Comey.
That interview occurred last year, and focused on Comey's 2017 interactions with the president. thehill.com/homenews/admin…
That interview occurred last year, and focused on Comey's 2017 interactions with the president. thehill.com/homenews/admin…
NOTE7/ The reason I say I can't confirm or deny Ben-Veniste's claim is—well—I'm trying to be cordial. Honestly, I think he's wrong—18 U.S.C. § 1001 (Making False Statements) is very broad, and shouldn't require FBI presence at an interview. But I respect Ben-Veniste's experience.
