White House Attorney Don McGahn & the possibility of pardons

I write here to make three points. 1) The plea deal continues Robert Mueller’s strategy of neutralizing Trump’s pardon power. 2) The obstruction of justice charge against Trump just got a whole lot stronger. 3) Everyone is rightly focusing on Trump, but Vice President Mike Pence and White House Counsel Don McGahn are in bigger trouble than ever.

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I’ve written before that Trump already confessed to obstruction, more or less, on national television. His explanation for firing FBI Director James Comey indicated “corrupt intent” to impede the FBI’s investigation of his campaign’s potential collusion with Russia.

  Slate

That's admission number one. Here's number two, just today.

White House Counsel Don McGahn should also be concerned, as he, like Pence, was involved in Flynn’s appointment during the presidential transition. Pence and McGahn could be facing their own charges of obstruction of justice, even before we learn anything new from Flynn’s cooperation with the special counsel.

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On Nov. 10, 2016, immediately after the election, President Obama warned President-elect Trump not to hire Flynn. The next day, Pence became head of the transition team. On Nov. 14, new allegations appeared about Flynn’s improper lobbying for Turkey. On Nov. 18, Rep. Elijah Cummings, the House Oversight Committee’s ranking member, notified Pence that Flynn was lobbying for Turkey without registration. Two days later, Trump announced Flynn as his choice for national security adviser.

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On Jan. 4, Flynn allegedly told transition counsel (and soon-to-be White House Counsel) Don McGahn that he was under investigation. McGahn failed to follow up.

Or already knew, and it wasn't a concern for Trump's criminal cabal who seem to think they're untouchable.  Well, not anymore they don't.

Keep in mind that Pence, as head of the transition, and McGahn, as transition counsel, were working together closely on all these matters.

Which makes it highly unlikely that Pence didn't know, and that Flynn lied to him.

On Jan. 26, Sally Yates warned McGahn that Flynn had been misleading Pence about his lobbying activities.

She would have assumed Pence didn't know, or he would have taken action.

On Jan. 27, she warned him that Flynn was vulnerable to blackmail. Nevertheless, Pence and McGahn did nothing, and Flynn remained national security adviser for more than two weeks, only resigning on Feb. 13. The next day, Trump lobbied Comey to “see your way clear to letting this go, to letting Flynn go.”

Is that the key for Trump's tweet today incriminating him in obstruction of justice? He says he let Flynn go because he "lied to the Vice President and the FBI."

He knew Flynn lied to the FBI, a crime, but he asked Comey to overlook it. And then fired Comey, but not before McGahn & Pence cooled down Trump's letter of termination because "they recognized it created an impression that Trump was admitting his intent to obstruct justice." We don't have that first draft, but Mueller does.

Pence’s involvement in the letter, if he acted materially to assist the firing of Comey and to cover up Trump’s corrupt intent, could constitute conspiracy to obstruct justice as well as aiding and abetting the obstruction of justice.

If such allegations are true, then the combination of Pence’s participation in the letter revision and his lies afterward would constitute the affirmative acts by a public official necessary for misprision of a felony, 18 U.S. Code Section 4.

Implicating McGahn, as well.

Flynn might now cooperate by telling the special counsel how much more Pence and McGahn (and Trump) knew of these matters, and how many times they may have misled the public and FBI investigators.

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[T]he dilemma here is whether to assume everyone is holding out or whether to assume someone else is confessing to get a better deal. Up until now, only a very small figure—Papadopoulos—had confessed, not enough to make any central figure rethink his assumptions.

But now that Flynn is cooperating with Mueller, all bets are off. Everyone knows the next few cooperators will get deals, but the later you cooperate, the worse deal you get. The last (and biggest) co-conspirators get no deals at all. Flynn’s deal could be a moment that breaks the silence, and opens the gates for others to cooperate with Mueller to get a deal while there are still deals on the table.

So who's left to make deals if Pence and Trump are the top of the ladder? McGahn. Kellyanne Conway and John Kelly, perhaps. Sebastian Gorka. K.T. McFarland.  Hope Hicks, for certain. Jared Kushner. Junior. Jeff Sessions. Ivanka? Steve Bannon? Roger Stone?  Reince Priebus?

Dear Santa Mueller, Those people are all on my Christmas wish list. I'm sure there are more. Too bad Sarah Hucabee-Sanders isn't on that list, but there's no way she's anything other than Sean Spicer's better toady replacement.

Feb. 14, 2017

Jack Goldsmith wrote in Lawfare [...] that the crucial question moving forward will be "what McGahn did with [Sally Yates'] information, and when, and why."

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"There were early indications that McGahn ignored the usual protocols for ethics vetting of Cabinet officials," Goldsmith wrote. "Since then the problem has only grown worse and has drawn bipartisan ire. One wants to know what McGahn's role has been in ensuring (or not ensuring) compliance with relevant ethics rules, and (as several Democrat senators asked last week) what 'clear and specific steps the White House is taking to prevent further violations of government ethics laws by members of the White House?'"

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"[Two] biggest Trump debacles so far were both in WH Counsel McGahn's wheelhouse: Muslim ban EO & Yates telling him about Flynn convos," he tweeted.

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On the travel ban, Goldsmith wrote that one of McGahn's responsibilities was to coordinate with multiple agencies on legal policies and that he should have been able to anticipate and correct any problems with the executive order before it was issued.

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"If McGahn did not do these things, he is incompetent, and perhaps we can attribute impulsive incompetence to the president. But if McGahn did do these things — if he tried to put the brakes on the EO, and if he warned his client about the adverse impact of his tweets — then he has shockingly little influence with the president and within the White House."

  Business Insider

There is a third possibility: he did not do these things, and he is as corrupt as the rest of them.

Let's go back to the top and address Trump's pardon powers.  But let's do it in another post.  This one is already too long.

UPDATE:

Uh-oh.  McGahn is fucked and lying his ass off, which makes him even more fucked.

Don McGahn told the New York Times on Friday [...] that when former Acting Attorney General Sally Yates warned him about Flynn in January, she did not mention that Flynn had committed a federal crime.

  Business Insider