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    Mike Pence Should Drop His Grand Jury Subpoena Gambit

    Former Vice President Mike Pence recently announced he would challenge Special Counsel Jack Smith’s subpoena for him to appear before a grand jury in Washington as part of the investigation into former President Donald Trump’s efforts to overturn the 2020 presidential election and the related Jan. 6 attack on the U.S. Capitol. Mr. Pence claimed that “the Biden D.O.J. subpoena” was “unconstitutional” and “unprecedented.” He added, “For me, this is a moment where you have to decide where you stand, and I stand on the Constitution of the United States.” Mr. Pence vowed to take his fight all the way to the Supreme Court.A politician should be careful what he wishes for — no more so than when he’s a possible presidential candidate who would have the Supreme Court decide a constitutional case that could undermine his viability in an upcoming campaign.The former vice president should not want the embarrassing spectacle of the Supreme Court compelling him to appear before a grand jury in Washington just when he’s starting his campaign for the presidency; recall the unanimous Supreme Court ruling that ordered Richard Nixon to turn over the fatally damning Oval Office tapes. That has to be an uncomfortable prospect for Mr. Pence, not to mention a potentially damaging one for a man who — at least as of today — is considered by many of us across the political spectrum to be a profile in courage for his refusal to join in the attempt to overturn the 2020 election in the face of Donald Trump’s demands. And to be clear, Mr. Pence’s decision to brand the Department of Justice’s perfectly legitimate subpoena as unconstitutional is a far cry from the constitutionally hallowed ground he stood on Jan. 6.Injecting campaign-style politics into the criminal investigatory process with his rhetorical characterization of Mr. Smith’s subpoena as a “Biden D.O.J. subpoena,” Mr. Pence is trying to score points with voters who want to see President Biden unseated in 2024. Well enough. That’s what politicians do. But Jack Smith’s subpoena was neither politically motivated nor designed to strengthen President Biden’s political hand in 2024. Thus the jarring dissonance between the subpoena and Mr. Pence’s characterization of it. It is Mr. Pence who has chosen to politicize the subpoena, not the D.O.J.As to the merits of his claim, The New York Times and other news media have reported that Mr. Pence plans to argue that when he presided over the joint session of Congress on Jan. 6 as president of the Senate, he was effectively a legislator and therefore entitled to the privileges and protections of the Constitution’s “speech or debate” clause. That clause is intended to protect members of Congress from questioning and testifying about official legislative acts. Should the courts support his claim, Mr. Pence would not be required to comply with Mr. Smith’s subpoena. Mr. Pence may also be under the impression that the legal fight over his claim will confound the courts, consuming months, if not longer, before he receives the verdict — but it’s unclear what he hopes to gain from the delay. One would have thought Mr. Pence would have seized the propitious opportunity afforded him by Mr. Smith, most likely weeks or months before he even decides whether he will run for the presidency.If Mr. Pence’s lawyers or advisers have told him that it will take the federal courts months and months or longer to decide his claim and that he will never have to testify before the grand jury, they are mistaken. We can expect the federal courts to make short shrift of this “Hail Mary” claim, and Mr. Pence doesn’t have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury.Inasmuch as Mr. Pence’s claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country’s history where it was thought imperative for someone in a vice president’s position, or his lawyer, to conjure the argument. In other words, Mr. Pence’s claim is the proverbial invention of the mother of necessity if ever there was one.Any protections the former vice president is entitled to under the “speech and debate” clause will be few in number and limited in scope. There are relatively few circumstances in which a former vice president would be entitled to constitutional protection for his conversations related to his ceremonial and ministerial roles of presiding over the electoral vote count. What Mr. Smith wants to know about are Mr. Pence’s communications and interactions with Mr. Trump before, and perhaps during, the vote count, which are entirely fair game for a grand jury investigating possible crimes against the United States.Whatever the courts may or may not find the scope of any protection to be, they will unquestionably hold that Mr. Pence is nonetheless required to testify in response to Mr. Smith’s subpoena. Even if a vice president has “speech or debate” clause protections, they will yield to a federal subpoena to appear before the grand jury. This is especially true where, as here, a vice president seeks to protect his conversations with a president who himself is under federal criminal investigation for obstructing the very official proceedings in which the special counsel is interested.Mr. Pence and his inner circle should be under no illusion that the lower federal courts will take their time dispensing with this claim. The courts quickly disposed of Senator Lindsey Graham’s “speech or debate” clause claim, requiring him to testify before the grand jury empaneled in Fulton County, Ga. — and his claim was far stronger than Mr. Pence’s. In the unlikely event that Mr. Pence’s claim were to make it to the Supreme Court, it, too, could be expected to take swift action.Mr. Pence undoubtedly has some of the finest lawyers in the country helping him navigate this treacherous path forward, and they will certainly earn their hefty fees. But in cases like this, the best lawyers earn their pay less when they advise and argue their clients’ cases in public than when they elegantly choreograph the perfect exit in private — before their clients get the day in court they wished for.Mr. Pence’s lawyers would be well advised to have Jack Smith’s phone number on speed dial and call him before he calls them. The special counsel will be waiting, though not nearly as long as Mr. Pence’s lawyers may be thinking. No prosecutor, least of all Mr. Smith, will abide this political gambit for long. And Mr. Pence shouldn’t let this dangerous gambit play out for long. If he does, it will be more than he wished for.It is a time-tested axiom in the law never to ask questions you don’t know the answer to. This should apply to politicians in spades. But the die has been cast by the former vice president. The only question now is not whether he will have to testify before the grand jury, but how soon. The special counsel is in the driver’s seat, and the timing of Mr. Pence’s appearance before the grand jury is largely in his hands. Mr. Smith will bide his time for only so long.J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, provided advice to then-Vice President Mike Pence on the run-up to the Electoral College count on Jan. 6, 2021.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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    Special Counsel Seeks to Force Pence to Testify Before Jan. 6 Grand Jury

    Prosecutors have asked a federal judge to set aside any claims of executive privilege that former Vice President Mike Pence might raise to avoid answering questions.The Justice Department has asked a federal judge to force former Vice President Mike Pence to testify fully in front of a grand jury investigating former President Donald J. Trump’s efforts to overturn the 2020 election, seeking to cut short any attempt by Mr. Trump to use executive privilege to shield Mr. Pence from answering questions, two people familiar with the matter said on Thursday.The request — amounting to a pre-emptive motion to compel Mr. Pence’s testimony — came before the former vice president had even appeared in front of the grand jury, and before any privilege claims had actually been raised in court.The sealed motion, filed in recent days in Federal District Court in Washington, is the latest step in a long-running behind-the-scenes struggle, first by the Justice Department and now by the office of the special counsel, Jack Smith, to cut through the various assertions of privilege that witnesses close to Mr. Trump have repeatedly raised in an effort to avoid answering questions.The privilege disputes have been handled by Judge Beryl A. Howell, the chief federal judge in Washington, who oversees all of the district’s grand jury matters, which as a rule are conducted in secret. Judge Howell is expected to step down from her position next month and be replaced by another chief judge.Also on Thursday, Judge Howell rejected a request by reporters at The New York Times and Politico to unseal her rulings and associated filings about legal fights ancillary to the material presented to the Jan. 6 grand jury itself, such as hidden wrangling over whether Mr. Trump’s former aides could lawfully decline to answer questions based on executive privilege.Understand the Events on Jan. 6Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.Last week, people close to Mr. Pence previewed his attempt to fight the grand jury subpoena by saying that the former vice president planned to argue that his role as the president of the Senate meant he was protected from legal scrutiny by the executive branch — including the Justice Department — under the Constitution’s “speech or debate” clause. That provision is intended to protect the separation of powers.Such an approach would be a departure from the more traditional argument that a vice president’s interactions with a president would be subject to executive privilege, a power asserted by presidents to shield certain internal executive branch deliberations, especially confidential communications involving the president or among his top aides..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.But the special counsel’s motion to compel Mr. Pence’s testimony — reported earlier by CBS News — did not address his expected arguments about the “speech or debate” clause, the two people familiar with the matter said. Rather, it focused on the issue of executive privilege and advanced the proactive argument that Mr. Pence should not be permitted to avoid answering questions by invoking it on Mr. Trump’s behalf, the people said.A spokesman for Mr. Pence declined to comment. Joshua Stueve, a spokesman for the special counsel’s office, also declined to comment.In the fall, two former aides to Mr. Pence, Marc Short and Greg Jacob, asserted claims of both executive and attorney-client privilege in a bid to limit their own testimony in front of the grand jury investigating Mr. Trump’s role in overturning the election. The Justice Department filed a sealed motion at the time seeking to compel their testimony, and both men ultimately answered questions.Not long after, Pat A. Cipollone and Patrick F. Philbin, the two top lawyers in Mr. Trump’s White House, tried a similar gambit. Again, the Justice Department prevailed, at least in part, and both men were made to answer questions in front of the grand jury.Witnesses close to Mr. Trump have also raised claims of privilege in an effort to avoid answering questions in a separate grand jury investigation: one that is examining Mr. Trump’s handling of sensitive government documents that he took with him after leaving office to Mar-a-Lago, his private club and residence in Palm Beach, Fla.This month, one of Mr. Trump’s lawyers in that case, M. Evan Corcoran, invoked attorney-client privilege after being subpoenaed to answer questions in front of the grand jury. The special counsel’s office responded by filing a motion to Judge Howell, asking her to set aside the privilege claims under what is known as the crime-fraud exception.The crime-fraud exception allows prosecutors to work around attorney-client privilege if they can convince a judge that there is reason to believe that legal advice or legal services have been used in furthering a crime.This week, lawyers for Mr. Trump filed a response saying the crime-fraud exception did not apply to Mr. Corcoran.Charlie Savage More

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    Here’s the Status of the Four Criminal Investigations Into Donald Trump

    The revelations from grand jury proceedings in Georgia are the latest signs that federal and local inquiries into the former president could reach key decision points in coming months.When the forewoman of a Georgia grand jury investigating allegations of election interference by former President Donald J. Trump and his advisers gave a series of highly public — and highly unusual — interviews this week, she suggested that the case might soon be headed toward indictment.Three other criminal inquiries involving Mr. Trump have also been progressing relatively quickly — if not quite as fast — in recent months, with the Justice Department pressing forward in Washington and a local prosecutor moving ahead in New York.No former president has ever confronted the barrage of legal threats that Mr. Trump now faces, all of which appear to be heading toward decision points by the authorities in coming months. Heightening the stakes, the inquiries have intensified just as Mr. Trump has started ramping up his third campaign for the White House.Beyond the Georgia case, Mr. Trump is under investigation by a special counsel in Washington for his role in seeking to overturn the results of the 2020 election and for his potential mishandling of classified documents. At the same time, local authorities in New York are looking into whether Mr. Trump authorized and was involved in falsely accounting for hush money payments to a pornographic film actress who said she had an affair with him.Even though much about the inquiries seems straightforward — “It’s not rocket science,” the forewoman in Georgia, Emily Kohrs, told The New York Times — each of the cases is layered with its own array of legal complexities that make predicting an outcome difficult. And that is to say nothing about the potential complications of bringing charges in the midst of a presidential campaign against a pugnacious figure like Mr. Trump, who has long assailed attempts by the authorities to hold him accountable as hoaxes and politically motivated witch hunts.Here is a look at the status of each of the criminal investigations confronting Mr. Trump.In Georgia, the Fulton County district attorney, Fani T. Willis, is looking at a variety of possible charges related to Mr. Trump’s efforts to reverse his 2020 election loss in the state.Lynsey Weatherspoon for The New York TimesGeorgia: Election InterferenceThe Georgia investigation presents two areas of exposure for Mr. Trump.One is his direct involvement in recruiting a slate of alternate presidential electors, even after Georgia’s results were recertified by the state’s Republican leadership. “We definitely talked about the alternate electors a fair amount,” Ms. Kohrs said. The other centers on phone calls Mr. Trump made to pressure state officials after the election, including one in which he told Brad Raffensperger, Georgia’s secretary of state, that he needed to “find” 11,780 votes — one more than Joseph R. Biden Jr.’s margin of victory in the state.The decision about whether to charge Mr. Trump will ultimately be made by the Fulton County district attorney, Fani T. Willis, who has been investigating the case for the last two years. Ms. Willis’s office has said it is considering everything from conspiracy and racketeering to narrower charges, such as criminal solicitation to commit election fraud.The special grand jury that Ms. Kohrs served on produced a report last month after hearing testimony since last June, but most of the report has been kept secret. In an interview this week, Ms. Kohrs said the grand jurors had recommended that several people be indicted on a range of charges, but declined to provide names before the full report was released.Understand the Events on Jan. 6Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.In the small portion of the report that was released, the jurors said they saw potential evidence of perjury by “one or more” witnesses. But Ms. Kohrs said the jurors appended eight pages of criminal code citations to their report, hinting at its breadth.A number of legal experts have said Mr. Trump faces significant jeopardy in the Georgia inquiry.“His risk of being charged was already substantial even before the grand jury report excerpts,” said Norman Eisen, a lawyer who served as special counsel to the House Judiciary Committee during Mr. Trump’s first impeachment trial. “The foreperson’s comments make that virtually certain.”Special Counsel: Overturning the ElectionThe Justice Department has been asking questions for more than a year about Mr. Trump’s sprawling efforts to overturn the election and whether he committed any crimes in connection with the Jan. 6, 2021, attack on the Capitol. The investigation — one of two inherited in November by the special counsel, Jack Smith — has used a variety of methods and has gathered an enormous amount of information.Federal agents have seized cellphones and other devices from pro-Trump lawyers like John Eastman and Jeffrey Clark — as well as from one of Mr. Trump’s chief congressional allies, Representative Scott Perry, Republican of Pennsylvania.Prosecutors have issued grand jury subpoenas to several state Republican officials and to dozens of Trump administration lawyers and officials. Those include people like Mark Meadows, Mr. Trump’s onetime chief of staff, and former Vice President Mike Pence, who presumably have knowledge of the former president’s thoughts and behavior in weeks leading up to Jan. 6. In the most recent sign the investigation is continuing apace, Mr. Smith has issued subpoenas to Mr. Trump’s daughter Ivanka and his son-in-law Jared Kushner..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Investigators have also been poring over thousands of pages of interviews conducted by the House select committee investigating Jan. 6, which recommended that Mr. Trump be prosecuted for crimes including inciting insurrection, conspiracy to defraud the United States, and the obstruction of a proceeding before Congress.One of the chief strands of the inquiry has focused on the plan to create false slates of pro-Trump electors in swing states actually won by Mr. Biden, mirroring one element of the Georgia investigation. Federal investigators have also been scrutinizing the broad claims by Mr. Trump and his allies that the election was marred by fraud, and a series of payments made by Save America PAC, Mr. Trump’s chief postelection fund-raising vehicle.Mr. Smith’s office has been tight-lipped about his plans, although several people familiar with the investigation have said that prosecutors could complete their work by spring or early summer. The process has often been slowed by time-consuming litigation as witnesses like Mr. Pence have sought to avoid or limit their grand jury testimony with various legal arguments.It remains unclear if Mr. Smith will ultimately indict Mr. Trump. But several legal experts — including Timothy J. Heaphy, a former U.S. attorney who led the House’s Jan. 6 investigation — have said that the key to bringing charges is obtaining clear-cut evidence that Mr. Trump intended to break the law.“When we started to see intentional conduct, specific steps that appear to be designed to disrupt the joint session of Congress, that’s where it starts to sound criminal,” Mr. Heaphy told The Times this week. “The whole key for the special counsel is intent.”Last August, the F.B.I. searched Mar-a-Lago, Mr. Trump’s private club and residence, and found more than 100 classified documents, after one of his lawyers had attested that no more were there.Marco Bello/ReutersSpecial Counsel: Classified DocumentsThe investigation into Mr. Trump’s handling of classified documents began in earnest last May with a subpoena. It sought the return of any classified material still in his possession, after he had voluntarily handed over an initial batch of records that turned out to include almost 200 classified documents.Within a month, a lawyer for Mr. Trump, M. Evan Corcoran, gave investigators more than 30 additional documents in response to the subpoena. Around the same time, another lawyer, Christina Bobb, asserted that a “diligent search” had been conducted at Mar-a-Lago, Mr. Trump’s private club and residence in Florida, assuring prosecutors there were no more documents with classification markings.But the inquiry took a dramatic turn in August when acting on a search warrant, the F.B.I. descended on Mar-a-Lago and discovered more than 100 additional classified documents. The affidavit submitted by the Justice Department in seeking the search warrant said that investigators had “probable cause to believe that evidence of obstruction” would be discovered.Mr. Pence and President Biden have also faced scrutiny for having classified materials in their possession — in Mr. Biden’s case, a separate special counsel investigation is underway. In the case of Mr. Trump, prosecutors have focused on a few key questions: Did Mr. Trump knowingly remove the sensitive records from the White House and did he willfully hold on to them in violation of the Espionage Act? Moreover, did he try to hinder investigators from figuring out why or where he kept them?To answer those questions, prosecutors have interviewed several junior aides to Mr. Trump and compelled grand jury testimony from more senior aides like Kash Patel.They have also sought to force Mr. Corcoran to testify fully in front of the grand jury. Mr. Corcoran tried to avoid answering questions by asserting attorney-client privilege on behalf of Mr. Trump. But the prosecutors have sought to pierce that privilege with the so-called crime-fraud exception, which can be invoked when there is evidence that legal advice or services have been used in furthering a crime.It remains unclear whether Mr. Smith will bring charges in this inquiry either. While no evidence exists at this point that Mr. Biden or Mr. Pence have sought to obstruct investigations into their own handling of documents — both brought their possession of the documents to the attention of the Justice Department — the parallel probes have complicated the political landscape and could give Mr. Trump a reason to cry foul if he is charged and the others are not.Manhattan District Attorney: Stormy DanielsThe investigation into Mr. Trump’s role in paying hush money to the porn actress Stormy Daniels has spanned five years, two Manhattan district attorneys and multiple grand juries.But recently, prosecutors under the current district attorney, Alvin L. Bragg, appear to have moved closer than ever to indicting the former president. Last month, they began presenting evidence to a newly seated grand jury, which has heard from several witnesses as the office lays the groundwork for potential charges against Mr. Trump.The case would likely center on whether Mr. Trump and his company falsified business records to hide the payments to Ms. Daniels in the days before the 2016 election. But an indictment — let alone a conviction — is hardly assured.Any prosecution of the case would rely on testimony from Michael D. Cohen, Mr. Trump’s former personal lawyer, who made the payment to Ms. Daniels and who pleaded guilty himself in 2018 to federal charges. Mr. Trump reimbursed Mr. Cohen for the $130,000 he paid out, and according to court papers in Mr. Cohen’s case, Mr. Trump’s company falsely identified the reimbursements as legal expenses.In New York, it is a misdemeanor to falsify business records. To make it a felony, prosecutors would need to show that Mr. Trump falsified the records to help commit or conceal a second crime — in this case, violating New York State election law, a legal theory that has not been tested. Mr. Trump has denied all wrongdoing and lashed out at the prosecutors for leading what he calls a partisan witch hunt against him. He has also denied having an affair with Ms. Daniels.Under Mr. Bragg’s predecessor, Cyrus R. Vance Jr., the district attorney’s office had begun presenting evidence to an earlier grand jury about a far broader case focused on Mr. Trump’s business practices, including whether he fraudulently inflated the value of his assets by billions of dollars to secure favorable loans and other benefits.But in the early weeks of his tenure last year, Mr. Bragg developed concerns about the strength of that case and halted the grand jury presentation, prompting the resignations of two senior prosecutors leading the investigation.Jonah E. Bromwich More

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    Barr and Durham Made a Mockery of the Rules I Wrote

    The recent revelations about Special Counsel John H. Durham’s investigation of the origins of Robert Mueller’s Russia inquiry paint a bleak picture — one that’s thoroughly at odds with governing law. Those rules, called the Special Counsel Regulations, contemplate someone independent of the attorney general who can reassure the public that justice is being done.I drafted those guidelines as a young Justice Department official, and there is zero chance that anyone involved in the process, as it was reported on by The New York Times, would think that former Attorney General William Barr or Mr. Durham acted appropriately.According to the report, Mr. Barr granted Mr. Durham special counsel status to dig into a theory that the Russia investigation likely emerged from a conspiracy by intelligence or law enforcement agencies. That investigation took almost four years (longer than Mr. Mueller’s inquiry) and appears to be ending soon without any hint of a deep state plot against Mr. Trump.Furthermore, the reporting suggests that the Durham inquiry suffered from internal dissent and ethical disputes as it lurched from one unsuccessful path to another, even as Americans heard a misleading narrative of its progress.But now Merrick Garland, not Mr. Barr, is the attorney general, and the regulations give him the power to require Mr. Durham to explain himself — and to discipline and fire Mr. Durham if the explanation is not adequate. Right now, there are a plethora of investigations in Washington — in addition to Mr. Durham’s, two special counsels are looking into presidential handling of classified documents, the new Republican House of Representatives has created a “weaponization” of government committee and the new House Oversight Committee is ramping up as well.At this moment, it is critical for Mr. Garland to use the supervisory powers under the Special Counsel Regulations that govern Mr. Durham to remind Americans of what actual justice, and independent investigations and decision making, look like.The special counsel regulations say that a special counsel must have “a reputation for integrity and impartial decisionmaking” and that, once appointed, the counsel “shall not be subject to the day-to-day supervision” of the attorney general or any other Justice Department official.The point of the regulations was to create a strong degree of independence, especially in highly fraught political investigations where the attorney general’s status as a presidential appointee might cause the public to question the appearance of partiality. The appointment of Robert Hur, a former Trump-appointed U.S. attorney, to examine President Biden’s handling of classified documents is a perfect illustration. The special counsel is supposed to be someone who cannot be reasonably accused of laundering an attorney general’s dirty work.In light of the new reporting, it is hard to view Mr. Durham as anything else. Indeed, no one involved in developing these regulations thought that a prosecutor who has regular scotch-sipping sessions with the attorney general would ever be remotely fit for the job. Yet that was the relationship reportedly developed by Mr. Durham and Mr. Barr, who jetted off to Italy as a team, where they learned of a lead about President Trump and potential criminal acts. Mr. Barr gave that investigation, too, to Mr. Durham, where it appears to have died.The regulations were set up to avoid a headless fourth branch of government, and so gave the attorney general the power to discipline or fire a special counsel. The Justice Department inspector general, too, should immediately begin an investigation, as members of Congress have recently requested.The regulations also require Mr. Durham to write a final report outlining his actions. Mr. Garland should call for that report immediately, and if Mr. Durham claims he has some ongoing work to do, he should be told to submit an interim report for Mr. Garland.That report should go into detail about the Italy-focused investigation of Mr. Trump and what the investigators found. And Mr. Garland should scrutinize that report closely, because it certainly appears that we can’t trust Mr. Durham’s prosecutorial judgment. Mr. Barr has said that the Italian tip “was not directly about Trump” and that it “turned out to be a complete nonissue,” but given his and Mr. Durham’s many failures and obfuscations, there is a need for more than Mr. Barr’s word.Remember, Mr. Durham tried to prosecute Michael Sussmann, a former lawyer for Hillary Clinton’s campaign, but the jury acquitted him. He then tried to prosecute Igor Danchenko about the Steele Dossier, but that prosecution led to an acquittal, too.As many lawyers will tell you, a federal prosecutor almost has to go out of his way to be 0-2 in federal jury trials. Mr. Durham managed to do it. (His only measly conviction was a minor plea for a low-level F.B.I. lawyer.) Still, Mr. Durham’s failures in court do not show a violation of the special counsel regulations. They just show bad judgment.Attorney General William Barr with Donald Trump in front of the Capitol building in 2019.Doug Mills/The New York TimesMr. Garland knows all this, so he should demand a report — though this would not be the sort of report that should be automatically made public. It may very well be that the investigation into Mr. Trump off the Italian lead fizzled because there was nothing to the allegations. If so, Mr. Garland can say that he is refusing to make the report public, but that he has looked into the matter and is satisfied by Mr. Durham’s resolution of it.That, too, is something the special counsel regulations contemplated — they were drafted after the Starr Report and its gratuitous tarnishing of individuals, and so they made clear the special counsel’s report need not be public. (More recently, James Comey tarnished Hillary Clinton in a similar way, underscoring the need for the Justice Department to speak through indictments, not public attacks.)Unfortunately, Mr. Durham and Mr. Barr allowed a misleading narrative to gain traction in public. When news organizations began to report in October 2019 that Mr. Durham’s investigation had morphed from an administrative inquiry into a criminal investigation, creating the misimpression that there might have been criminal wrongdoing by those involved in the Russia investigation, neither man corrected the narrative, even though the real investigation involved Mr. Trump.The Trump administration dealt an awful blow to the notion of a fair investigation. Mr. Trump’s playbook was to relentlessly attack the investigators. Yet foundational to our government is the notion that no one is above the law.Assuming the reporting is accurate, Mr. Barr and Mr. Durham behaved in a way that betrayed this bedrock principle. The question of who guards the guardians has plagued democracies since Juvenal. If Mr. Durham were not acting with the independence required for the position, it corrodes the rule of law and opens the door to the perception, if not the reality, of special treatment for the politically powerful.Mr. Garland has the power now to examine the accuracy of the reporting and to take the corrective action necessary to ensure that no adverse precedent is set for future investigations into high-level wrongdoing.Neal K. Katyal is a professor at Georgetown University Law Center and a co-author, with Sam Koppelman, of “Impeach: The Case Against Donald Trump.” He was an acting solicitor general in the Obama administration.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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    Jack Smith, Special Counsel for Trump Inquiries, Steps Up the Pace

    Named less than three months ago to oversee investigations into Donald J. Trump’s efforts to hold onto power and his handling of classified documents, the special counsel is moving aggressively.Did former President Donald J. Trump consume detailed information about foreign countries while in office? How extensively did he seek information about whether voting machines had been tampered with? Did he indicate he knew he was leaving when his term ended?Those are among the questions that Justice Department investigators have been directing at witnesses as the special counsel, Jack Smith, takes control of the federal investigations into Mr. Trump’s efforts to reverse his 2020 election loss and his handling of classified documents found in his possession after he left office.Through witness interviews, subpoenas and other steps, Mr. Smith has been moving aggressively since being named to take over the inquiries nearly three months ago, seeking to make good on his goal of resolving as quickly as possible whether Mr. Trump, still a leading contender for the 2024 Republican presidential nomination, should face charges.Last week, he issued a subpoena to former Vice President Mike Pence, a potentially vital witness to Mr. Trump’s actions and state of mind in the days before the Jan. 6, 2021, assault on the Capitol by a pro-Trump mob.His prosecutors have brought a member of Mr. Trump’s legal team, M. Evan Corcoran, before a federal grand jury investigating why Mr. Trump did not return classified information kept at his Mar-a-Lago residence and private club in Florida. Justice Department officials have interviewed at least one other Trump lawyer in connection with the documents case.Since returning to Washington from The Hague, where he had been a war crimes prosecutor, Mr. Smith has set up shop across town from the Justice Department’s headquarters, and has built out a team. His operation’s structure seems to closely resemble the organization he oversaw when he ran the Justice Department’s public integrity unit from 2010 to 2015.Three of his first hires — J.P. Cooney, Raymond Hulser and David Harbach — were trusted colleagues during Mr. Smith’s earlier stints in the department. Thomas P. Windom, a former federal prosecutor in Maryland who had been tapped in late 2021 by Attorney General Merrick B. Garland’s aides to oversee major elements of the Jan. 6 inquiry, remains part of the leadership team, according to several people familiar with the situation.In addition to the documents and Jan. 6 investigations, Mr. Smith appears to be pursuing an offshoot of the Jan. 6 case, examining Save America, a pro-Trump political action committee, through which Mr. Trump raised millions of dollars with his false claims of election fraud. That investigation includes looking into how and why the committee’s vendors were paid.M. Evan Corcoran has represented Donald J. Trump in the case related to his handling of classified material for many months.Alex Kent/Getty ImagesInterviews with current and former officials, lawyers and other people who have insight into Mr. Smith’s actions and thinking provide an early portrait of how he is managing investigations that are as sprawling as they are politically explosive, with much at stake for Mr. Trump and the Justice Department.Current and former officials say Mr. Smith appears to see the various strands of his investigations as being of a single piece, with interconnected elements, players and themes — even if they produce divergent outcomes.Mr. Smith has kept a low profile, making no public appearances and sticking to a long pattern of empowering subordinates rather than interposing himself directly in investigations. It is a chain-of-command style honed during stints as a war crimes prosecutor in The Hague, a federal prosecutor in Tennessee and, most of all, during his tenure running the Justice Department’s public integrity unit, which investigates elected officials.A spokesman for Mr. Smith had no comment.But various developments that have surfaced publicly in recent days show his team taking steps on multiple fronts, illustrating how he is wrestling with multiple and sometimes conflicting imperatives of conducting an exhaustive investigation on a strictly circumscribed timetable.The intensified pace of activity speaks to his goal of finishing up before the 2024 campaign gets going in earnest, probably by summer. At the same time, the sheer scale and complexity and the topics he is focused on — and the potential for the legal process to drag on, for example in a likely battle over whether any testimony by Mr. Pence would be subject to executive privilege — suggest that coming to firm conclusions within a matter of months could be a stretch.“The impulse to thoroughly investigate Trump’s possibly illegal actions and the impulse to complete the investigation as soon as possible, because of presidential election season, are at war with one another,” said Jack Goldsmith, a former assistant attorney general and current Harvard Law professor. “One impulse will likely have to yield to the other.”In looking into Mr. Trump’s efforts to hold onto power after his election loss and how they led to the Jan. 6 riot, Mr. Smith is overseeing a number of investigative strands. The subpoena to Mr. Pence indicates that he is seeking testimony that would go straight to the question of Mr. Trump’s role in trying to prevent certification of Joseph R. Biden Jr.’s victory in the election and the steps Mr. Trump took in drawing a crowd of supporters to Washington and inciting them.His team is sifting through mountains of testimony provided by the House Jan. 6 committee, including focusing on the so-called fake electors scheme in which some of Mr. Trump’s advisers and some campaign officials assembled alternate slates of Trump electors from contested states that he had lost..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.More recently his team has been asking witnesses about research the Trump campaign commissioned by an outside vendor shortly after the election that was intended to come up with evidence of election fraud. The existence of that research was reported earlier by The Washington Post.The apparently related investigation into the activities of Mr. Trump’s main fund-raising arm, the Save America PAC in Florida, was emerging even before Mr. Smith arrived in Washington around Christmas from The Hague.A vast array of Trump vendors have been subpoenaed. Investigators have been posing questions related to how money was paid to other vendors, indicating that they are interested in whether some entities were used to mask who was being paid or if the payments were for genuine services rendered.In the investigation into Mr. Trump’s handling of classified information, and whether he obstructed justice when the government sought the return of material he had taken from the White House, investigators are casting a wide net. They appear to be seeking to recreate not only what took place once Mr. Trump had departed the White House with hundreds of sensitive documents, but also how he approached classified material and presidential records long before that, according to multiple people briefed on the matter.Mr. Smith’s team is seeking interviews with a number of people who worked in the Trump White House and who had familiarity with either how he consumed classified information, or how he dealt with paper that he routinely carted with him in cardboard boxes, during much of the span of his presidency.Such interviews could help Mr. Smith establish patterns of behavior by Mr. Trump over time, such as how he handled secret information he was provided about foreign countries and how he treated presidential documents generally.Alina Habba is another of Mr. Trump’s lawyers.Jefferson Siegel for The New York TimesMr. Trump was known to rip up pieces of paper, and to bring documents up to the White House residence. Notes taken by aides in 2018 show that Mr. Trump’s advisers appeared to be contending with tracking documents he had brought with him to his club in Bedminster, N.J., where he stayed over weekends during the warmer months of the year.In some cases, Mr. Trump tore up documents and threw them in toilets in the White House. Aides would periodically retrieve what was not flushed down and let it dry, then tape it back together and pass the documents on to the staff secretary, whose office managed presidential paper flow, according to two people familiar with what took place.In the documents investigation, Mr. Smith has the challenge of interviewing several unreliable narrators who may have an interest in protecting Mr. Trump.Several of Mr. Trump’s advisers have been interviewed by the Justice Department. Some have gone before the grand jury, including Mr. Corcoran, who has represented Mr. Trump in the case related to his handling of classified material for many months and had a central role in dealing with the government’s efforts to retrieve the documents, according to two people briefed on his appearance.Another aide to Mr. Trump, Christina Bobb, served as the custodian of the records the Justice Department was interested in. She signed an attestation in June claiming that a “diligent search” had been conducted of Mar-a-Lago in response to a grand jury subpoena. She asserted that the remaining documents turned over in June were all that remained.Ms. Bobb has appeared twice before the Justice Department and has told people that Mr. Corcoran drafted the statement she signed; The Wall Street Journal reported that one visit was before the grand jury. She has also said she was connected with Mr. Corcoran by Boris Epshteyn, another Trump lawyer and adviser who brought Mr. Corcoran into Mr. Trump’s circle and, empowered by Mr. Trump, for months played a lead role coordinating lawyers in some of the investigations.The Justice Department contacted another of Mr. Trump’s lawyers, Alina Habba, late last year about an appearance. Ms. Habba does not represent Mr. Trump in the documents case, but she spoke about it on television. She also signed an affidavit in another case saying she had searched Mr. Trump’s office and residence in May, meaning investigators may be interested in whether she saw government documents there.The Justice Department is also seeking to question a former Trump lawyer, Alex Cannon, who people briefed on the matter said repeatedly urged Mr. Trump to turn over the boxes of material that the National Archives was seeking.Mr. Trump’s disclosure of newly located documents has been ongoing. Lawyers for the former president notified prosecutors recently about a potential witness they might want to speak with: a relatively junior former staff member to Mr. Trump who had uploaded classified material onto a laptop and discovered it only after the fact, according to a different person familiar with the incident.The discovery occurred when the staff member was placing a large trove of Mr. Trump’s daily White House schedules on the computer and realized that a small amount of classified material had been included in the schedules, the person said.In an interview with CNN on Sunday, one of Mr. Trump’s lawyers, Tim Parlatore, said the Justice Department had issued a subpoena for a manila folder marked “classified evening summary” after Mr. Trump’s aides provided the department with reports on materials they had found after their own searches. He said it was not actually a classified marking, contained nothing and was being used by Mr. Trump to dim a blue light on his bedside phone at Mar-a-Lago that “keeps him up at night.”“I’ve never seen anything like it,” Chuck Rosenberg, a former federal prosecutor and former F.B.I. official, said of the cascade of Trump aides and lawyers becoming drawn into investigations. “It’s just a whirling dust cloud, and everyone who gets near it gets covered in grime.”While Mr. Smith did not ask Mr. Garland’s permission to subpoena Mr. Pence, one of the most extraordinary developments of his short time as special counsel, he almost certainly consulted him about it: Under the regulations, special counsels are expected to report major developments to the attorney general.The Justice Department is also seeking to question Alex Cannon, a former Trump lawyer.Pool photo by Andrew HarnikBut many legal observers see the current situation — with two likely 2024 presidential rivals, Mr. Trump and Mr. Biden, facing separate special counsel investigations — as evidence that the special counsel mechanism is being used far beyond its intended, limited purpose.“The special counsel regulations were an effort to give the attorney general some independence in a conflict-of-interest situation,” Mr. Goldsmith added, “but it was never intended to carry the burdens that are being imposed on it now. It is a problem, these political investigations, that our constitutional system is not equipped to handle.”Ben Protess More

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    This Is What Happened When the Authorities Put Trump Under a Microscope

    In retrospect, the Mueller report was a cry for help.“The Office,” as the special counsel so self-effacingly called itself in its report, knew its limits, or at least chose them. It could not indict a sitting president. It was generous with the benefit of the doubt when evaluating a potential “obstructive act” or gauging criminal intent by President Donald Trump. It considered mitigating, and sometimes dubious, explanations for his behavior, and was as restrained in interpreting the president’s misdeeds as it was zealous in listing them.Its conclusion on whether Trump obstructed justice became a Washington classic of needle-threading ambiguity: “While this report does not conclude that the President committed a crime, it also does not exonerate him.” The Office declined to call Trump a criminal, however much it might have wanted to.Instead, scattered throughout its 448 pages, the Mueller report includes some not-so-subtle instructions and warnings that future investigators, less inhibited, could heed when facing fresh misdeeds.The two highest-profile congressional investigations of Trump that followed — the 2019 report by the House Intelligence Committee on Trump’s pressuring of Ukraine as well as the recently released report by the select committee on the Jan. 6 attack — read like deliberate contrasts to the document produced by Robert Mueller and his team. Their presentation is dramatic, not dense; their conclusions are blunt, not oblique; their arguments are political as much as legal. And yet, the Ukraine and Jan. 6 reports seem to follow the cues, explicit or implied, that the Mueller report left behind.Read together, these three major investigations of the Trump presidency appear in conversation with one another, ever more detailed drafts of a most unorthodox historical record — a history in which these documents are characters as much as chroniclers.The documents try to explain the former president, and they also strain to contain him. The Mueller report inspects the guardrails that Trump bent and sometimes broke. The Ukraine report lays out the case that led to his first impeachment. The Jan. 6 report now declares him “unfit” to return to the nation’s highest office — the very office Trump is again pursuing — or to any office below it.The effect is cumulative. While the Mueller report evaluates Trump’s behavior as a series of individual, unrelated actions, it knows better, stating near the end that the president’s “pattern of conduct as a whole” was vital to grasping his intentions. The Ukraine and Jan. 6 reports took up that task, establishing links among Trump’s varied transgressions.While the Mueller report wonders whether Trump and his advisers committed certain acts “willfully” — that is, “with general knowledge of the illegality of their conduct” — the investigations into his strong-arming of Ukraine and the Capitol assault seek to show that Trump knew that his actions violated the law and that his statements ran counter to the truth.And while the Mueller report grudgingly posits that some of the president’s questionable actions might have been taken with the public, rather than the private, interest in mind, the Ukraine and Jan. 6 reports contend that with Trump, the distinction between public and private always collapsed in favor of the latter.The Mueller report would not declare that the president deserved impeachment or had committed crimes, but it didn’t mind if someone else reached those conclusions. It states plainly that accusing Trump of a crime could “pre-empt constitutional processes for addressing presidential misconduct,” that is, the constitutional process of impeachment, which the Ukraine investigation would soon deliver.The Mueller report also notes in its final pages that “only a successor Administration would be able to prosecute a former President,” which is what the Jan. 6 special committee, with its multiple criminal referrals, has urged the Biden administration’s Justice Department to do.The Ukraine and Jan. 6 reports did their best to answer Mueller’s call.ALL THREE REPORTS INCLUDE quintessentially Trumpian scenes, consistent in their depictions of the former president’s methods, and very much in keeping with numerous journalistic accounts of how he sought to manipulate people, rules and institutions.When the Jan. 6 report shows Trump haranguing Mike Pence, telling the vice president that Pence would be known as a “patriot” if Pence helped overturn the 2020 election, it’s hard not to recall the scene in the Mueller report when the president tells Jeff Sessions that the attorney general would go down as a “hero” if he reversed his recusal from the Russia investigation.All three reports show Trump deploying the mechanisms of government for political gain. Less than four months into his term, Trump relies on a Department of Justice memo as cover to fire the F.B.I. director; he uses the Office of Management and Budget to delay the disbursal of military aid to Ukraine in 2019; and he attempts to use fake state electoral certificates to upend the results of the 2020 vote.Perhaps no moment is more believable than the Ukraine report’s description of Trump’s April 2019 conversation with the newly elected Ukrainian president, Volodymyr Zelensky, when Trump makes a point of mentioning that Ukraine is “always very well represented” in the Miss Universe pageants.Still, each investigation offers a slightly different theory of Trump. In the Mueller report, Trump and his aides come across as the gang that can’t cheat straight — too haphazard to effectively coordinate with a foreign government, too ignorant of campaign finance laws to purposely violate them, often comically naïve about the gravity of their plight. When Michael Flynn resigns from the White House after admitting to lying about his contacts with Russian officials, Trump consoles him with the assurance, “We’ll give you a good recommendation,” as if Flynn were a departing mailroom intern rather than a disgraced ex-national security adviser.When the Trump campaign tried to conceal details surrounding its infamous Trump Tower meeting with a Russian lawyer in June 2016, the Mueller report suggests that the effort “may reflect an intention to avoid political consequences rather than any prior knowledge of illegality,” that is, that the Trump team might have felt just shame, not guilt.The Mueller report rebuts the Trumpian notion that the president can employ his legitimate authority regardless of the illegitimacy of his purpose. “An improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority,” the report states, in the patient tone of a parent explaining household rules to a child. But even in the damning sections on Trump’s potential obstruction of justice (in which “the Office” all but states that it would have charged Trump if it could have), the report theorizes that the president may have been attacking the inquiries against him out of concern that they hindered his ability to govern, not because he was hiding some nefarious activity.The Ukraine report, by contrast, regards Trump as more strategic than chaotic, and it does not wallow in the netherworld between the president’s personal benefit and his public service. “The President placed his own personal and political interests above the national interests of the United States, sought to undermine the integrity of the U.S. presidential election process, and endangered U.S. national security,” Representative Adam Schiff declares in the report’s preface.The three investigations tell different stories, but the misdeeds all run together, more overlapping than sequential. The president’s effort to squeeze Zelensky’s government into investigating the Biden family (ironically, under the guise of Trump’s anti-corruption concerns) was an attempt to manipulate the 2020 election, while his desire for Ukraine to investigate its own supposed U.S. election interference (on behalf of the Democrats, naturally) was part of Trump’s ongoing battle to defend the glorious memory of his 2016 victory. “We were struck by the fact that the President’s misconduct was not an isolated occurrence, nor was it the product of a naïve president,” Schiff writes. Indeed, several weeks before Trump’s famous phone conversation with Zelensky on July 25, 2019, Trump had already ordered a hold on hundreds of millions of dollars in military aid to Ukraine, which it would dangle as leverage. And the purely political nature of the enterprise was made plain when the report notes that Trump did not care if Ukraine in fact conducted any investigations. It simply had to announce them.The Mueller report argues that “Viewing the [president’s] acts collectively can help to illuminate their significance.” The Ukraine report shows that the conversation that Trump described as “a perfect call” was not the ask; it was the confirmation. When Trump said, “I would like you to do us a favor, though,” Zelensky and his aides had already been notified what was coming. The Ukraine scandal was never about a single call, just like the Jan. 6 report was not about a single day.The Jan. 6 report is the most dramatic — and certainly the most readable — of the three documents. It is vaguely journalistic in style, even adopting the narrative convention of turning memorable quotes into chapter titles, like “I Just Want to Find 11,780 Votes” and “Be There, Will Be Wild!” (Contrast this with the Mueller report’s “Background Legal and Evidentiary Principles” or “Legal Defenses to the Application of Obstruction-of-Justice Statutes to the President,” among its other sexy teasers.) At times, the Jan. 6 report applies too much writerly gloss. When it points out that Trump and his campaign used bogus claims of election fraud after the 2020 vote to raise more than $250 million from supporters, the report says that the Big Lie enabled “the Big Rip-off.” I’m sure someone was proud of that wording, but in this case it is more than enough just to state the facts.The Jan. 6 report takes seriously the admonition to view the president’s actions collectively, not individually; the phrase “multipart plan” appears throughout the report, with Trump as the architect. Several observers of the Trump era have described how the president learned to maneuver his way through the executive branch and grew bolder in his abuses of it; in the Jan. 6 report, that transition is complete. No longer the bumbling, reactive and instinctual occupant of the Oval Office, here Trump is fully in charge — purposely spreading false information about election fraud, pressuring Pence to refuse to certify the Electoral College count, leaning on state and local electoral officials to change the vote totals, summoning tens of thousands of supporters to Washington on Jan. 6, 2021, and urging them to march to the Capitol, then standing by for hours as the violent attack was underway. “The central cause of Jan. 6 was one man, former President Donald Trump, whom many others followed,” the report concludes.Trump told America that he alone could fix it; the Jan. 6 report tells us that he alone could break it.Even more so than the Ukraine report, the Jan. 6 report repeatedly emphasizes how Trump knew, well, everything. “Donald Trump’s own campaign officials told him early on that his claims of fraud were false,” Liz Cheney, the committee vice chair, writes in her introduction. “Donald Trump’s senior Justice Department officials — each appointed by Donald Trump himself — investigated the allegations and told him repeatedly that his fraud claims were false. Donald Trump’s White House lawyers also told him his fraud claims were false.”There is no room here for the plausible deniability that the Mueller report entertained, for the notion that Trump didn’t know better, or that, in the immortal words of Attorney General William P. Barr when he creatively interpreted the Mueller report to exonerate Trump of obstruction of justice, that the president was “frustrated and angered by his sincere belief that the investigation was undermining his presidency.”This alleged sincerity underscored the president’s “noncorrupt motives,” as Barr put it. In the Jan. 6 report, any case for Trumpian sincerity is eviscerated in a six-page chart in the executive summary, which catalogs the many times the president was informed of the facts of the election yet continued to lie about them. “Just say the election was corrupt and leave the rest to me and the Republican congressmen,” Trump told top Department of Justice officials in late December 2020, the report says.Just announce an investigation into the Bidens. Just say the 2020 election was rigged. Trump’s most corrupt action is always the corruption of reality.The Jan. 6 report devotes a chapter to explaining how the president purposely mustered a mob to Washington, how his “will be wild!” call-out on social media united rival extremist groups in a common cause, and how he urged his supporters to march on the Capitol and “fight like hell” to obstruct the affirmation of a legitimate vote.Two days before his speech, Trump had already floated the idea to advisers that he would join the protesters at the Capitol, and he even briefly considered deploying 10,000 members of the National Guard “to protect him and his supporters from any supposed threats by left-wing counterprotesters,” the report states.This is among the most remarkable moments in the Jan. 6 chronicle. Rather than worry about violence against lawmakers and the Capitol itself, Trump was focused on protecting his supporters. They interpreted the president’s call to join him in Washington that day as a command to save their country, violently if necessary, and they stood down only when he issued a video instructing them to do so. The Jan. 6 report, in a dramatic but not inaccurate flourish, affirms that, during the assault on the Capitol, Trump “was not only the commander in chief of the U.S. military, but also of the rioters.”On that day, he chose to lead the rioters. Jan. 6 was the closest Trump would get to holding that military parade he so longed to see in Washington. Instead of parading in front of the Capitol, his troops marched against it.AFTER MAKING THE CASE that Trump incited the assault, the Jan. 6 report expresses shock at how little Trump did to stop it, an act of omission it labels a “dereliction of duty.” Yet, by the report’s own logic, why would Trump have stopped the insurrectionists? “President Trump had summoned a mob, including armed extremists and conspiracy theorists, to Washington, D.C. on the day the joint session of Congress was to meet,” the report states. “He then told that same mob to march on the U.S. Capitol and ‘fight.’ They clearly got the message.” (Some variation of the word “fight” appeared only twice in Trump’s prepared speech for his Jan. 6 speech, but the president would utter the word 20 times throughout his remarks, the report notes.) If the rioters were in fact doing his bidding, the president would have no reason to call them off once the mayhem began.That Trump would rile people up and then sit back and watch the outcome on television was the least surprising part of the day. It was how he spent his presidency. In calling out Trump’s failure to act, the Jan. 6 report was imagining that Trump, in that moment, might have become presidential at last, shocked by what his own actions wrought into being something other than himself. In its condemnation of Trump, the report still longed for his transformation. After so many pages, so much testimony, so much analysis, it still struggled to understand him.The challenges of interpreting and describing what another person was thinking, doing or intending at a particular moment — even a person as overanalyzed as Donald J. Trump — comes alive in one passage, or rather, one word, of the Jan. 6 report. The issue is not even the word itself, but the form in which it is rendered.The report cites the testimony of a White House aide, Cassidy Hutchinson, who explained how, on the morning of Jan. 6, the president was incensed that the presence of magnetometers (used to detect weapons) was inhibiting some armed supporters from entering the Ellipse, where the president was to deliver his speech.As always, Trump wanted a bigger crowd. Hutchinson said she heard him say something like, “I don’t F’ing care that they have weapons. They’re not here to hurt me. Take the F’ing mags away. Let my people in.”They’re not here to hurt me. Which word should one emphasize when uttering that sentence aloud? If it is the verb hurt,” the sentiment would be somewhat benign. They are not here to hurt me, the president might have meant, but to praise or cheer or support me. If the emphasis falls on “me,” however, the meaning is more sinister. They’re not here to hurt me, the implication would be, but to hurt someone else. That someone else could be Mike Pence, Nancy Pelosi, an officer of the Capitol Police or any of the lawmakers gathering to fulfill their duty and certify Joe Biden as president.So, which was it? The Jan. 6 report confuses matters by italicizing “me” in the document’s final chapter but leaving it unitalicized in the executive summary. The video of Hutchinson’s testimony shows her reciting the line quickly and neutrally, with perhaps a slight emphasis on “hurt” rather than “me.” (You can watch and listen for yourself.)Of course, the less ambiguous interpretation of Trump’s words is that either inflection — whether “hurt” or “me” — still means the president was unconcerned of anyone’s safety but his own. Perhaps “I don’t F’ing care” is the most relevant phrase.With a document surpassing 800 pages, it may seem too much to linger on the typeface of a single two-letter pronoun. But for accounts that can serve as both historical records and briefs for the prosecution, every word and every quote — every framing and every implication — is a choice that deserves scrutiny.The studious restraint of the Mueller report came in for much criticism once the special counsel failed to deliver a dagger to the heart of the Trump presidency and once the document was so easily miscast by interested parties. Even its copious redactions, justified by the opaque phrase “Harm to Ongoing Matter” appearing over a sea of blotted out text, seemed designed to frustrate. Yet, for all its diffidence, there is power in the document’s understated prose, in its methodical collection of evidence, in its unwillingness to overstep its bounds while investigating a president who knew few bounds himself.The Ukraine and Jan. 6 reports came at a time when Trump’s misconduct was better understood, when Mueller-like restraint was less in fashion, and when those attempting to hold the chief executive accountable grasped every tool at hand. For all their passion and bluntness, they encountered their own constraints, limits that are likely inherent to the form, to the challenge of recording on paper and by committee the impulses not just of a man but of an era with which he became synonymous.Expectations are heaped upon these reports, not only for what they might reveal, but for what those revelations might unleash, or what they might help repair. Such demands are excessive and probably counterproductive. It is hard enough to determine the true meaning of a lone word, to reconstruct a fleeting moment in history. It is harder still to reconstruct a nation’s political life, that other ongoing matter to which so much harm has been done.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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    The Durham Fiasco Is a Warning of What’s to Come

    Thank goodness Speaker Kevin McCarthy has created a House subcommittee on the weaponization of the federal government!Last week, The New York Times reported on an outrageous example of such weaponization, the flagrant use of federal law enforcement powers to target an administration’s political enemies. I’m talking, of course, about the John Durham special counsel investigation, which was meant to root out the ostensibly corrupt origins of Robert Mueller’s Russia investigation, and quickly came to embody the sins that Donald Trump and his allies projected onto the F.B.I.Trump’s circle insisted, falsely, that the Mueller inquiry was a hit job that employed Russian disinformation — via the Steele dossier — to frame Trump, all part of a plot cooked up by the Hillary Clinton campaign. Durham seems to have bought into this Trumpist conspiracy theory, and to help prove it, he tried to employ what appears to be Russian disinformation to go after the Clinton camp. More specifically, he used dubious Russian intelligence memos, which analysts believed were seeded with falsehoods, to try to convince a court to give him access to the emails of a former aide to George Soros, which he believed would show Clinton-related wrongdoing.Astonishingly, The Times found that while Trump’s attorney general Bill Barr and Durham were in Europe looking for evidence to discredit the Russia investigation, Italian officials gave them a “potentially explosive tip” linking Trump to “certain suspected financial crimes.” Rather than assign a new prosecutor to look into those suspected crimes, Barr folded the matter into Durham’s inquiry, giving Durham criminal prosecution powers for the first time.Then the attorney general sat back while the media inferred that the criminal investigation must mean Durham had found evidence of malfeasance connected to Russiagate. Barr, usually shameless in his public spinning of the news, quietly let an investigation into Trump be used to cast aspersions on Trump’s perceived enemies. (The fate of that inquiry remains a mystery.)This squalid episode is a note-perfect example of how Republican scandal-mongering operates. The right ascribes to its adversaries, whether in the Democratic Party or the putative deep state, monstrous corruption and elaborate conspiracies. Then, in the name of fighting back, it mimics the tactics it has accused its foes of using.Look, for example, at the behavior that gave rise to Trump’s first impeachment. Trump falsely claimed that Joe Biden, as vice president, used the threat of withholding American loan guarantees to blackmail the Ukrainian government into doing his personal bidding. Hoping to get Ukraine’s president, Volodymyr Zelensky, to substantiate his lies, Trump tried to use the threat of withholding American aid to … blackmail the Ukrainian government into doing his personal bidding. The symmetry between accusations and counter-accusations, in turn, fosters a widespread cynicism about ever finding the truth.It’s important to keep this in mind because we’re about to see a lot more of it. Now that they control the House, Republicans have prioritized investigating their political opponents. McCarthy has stacked the Oversight Committee, central to the House’s investigative apparatus, with flame-throwing fantasists, including Marjorie Taylor Greene, Paul Gosar and Lauren Boebert. Further, as Politico reported in a “field guide” to the coming Republican inquiries, McCarthy has urged Republicans to treat every committee like the Oversight Committee, meaning all investigations, all the time.There are going to be investigations into Hunter Biden, and investigations into the origins of the pandemic. There will likely be scrutiny of the F.B.I.’s search of Mar-a-Lago and Biden’s handling of classified documents. And, as my colleague David Firestone on the editorial board put it over the weekend, “Republicans in the House are launching a new snipe hunt” for proof that the F.B.I. and other intelligence agencies were “weaponized” against conservatives.These all promise to be congressional equivalents of the Durham inquiry. Certainly, most if not all congressional investigations are politically motivated, but there is nevertheless a difference between inquiries predicated on something real, and those, like the many investigations in the Benghazi attack, meant to troll for dirt and reify Fox News phantasms. House Democrats examined Trump’s interference with the C.D.C. during the acute stage of the pandemic. House Republicans plan to look into what the Republican congressman Jim Banks termed the military’s “dangerous” Covid vaccine mandates. There might be an equivalence in the form of these two undertakings, but not in their empirical basis.It remains to be seen whether our political media is up for the task of making these distinctions. The coverage of Trump and Biden’s respective retention of classified documents offers little cause for optimism. Again and again, journalists and pundits have noted that, while the two cases are very different, there are seeming similarities, and those similarities are good for Trump. This is something of a self-fulfilling prophecy, since by speculating about political narratives, you help create them.“John Durham has already won,” said the headline of a Politico article from last year, noting his success in perpetuating the right’s fevered counter-history of Russiagate. Of course he didn’t win; he would go on to lose both cases arising from his investigation as well as the honorable reputation he had before he started it. What he did manage to do, however, was spread a lot of confusion and waste a lot of time. Now the Republican House picks up where he left off.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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    Bill Barr’s Image Rehab Is Kaput

    Former Attorney General William Barr has spent the last year in a desperate salvage operation for what’s left of his legal and ethical reputation. During his 22 months in office, he allowed his Justice Department to become a personal protection racket for his boss, Donald Trump, and left prosecutors, the F.B.I. and other law enforcement officials subject to the worst impulses of the president. But then, in his 2022 memoir, Mr. Barr did an about-face, bashing Mr. Trump for lacking a presidential temperament and singling out his “self-indulgence and lack of self-control.”In the book, he urged Republicans not to renominate Mr. Trump in 2024, accusing the former president of going “off the rails” with his stolen-election claims by preferring the counsel of “sycophants” and “whack jobs” to that of his real advisers. Clearly concerned that history was paying attention, he was even stronger in his videotaped testimony to the Jan. 6 committee, loosing a variety of barnyard epithets and bitter insults to describe Mr. Trump’s legal strategy. He said the president had become “detached from reality” and was doing a disservice to the nation.The hollow and self-serving nature of this turnabout was always apparent. Mr. Barr never made these concerns public at a time when his dissent would have made a difference. Instead, he left office in 2020 showering compliments on his boss, praising Mr. Trump’s “unprecedented achievements” and promising that Justice would continue to pursue claims of voter fraud that he must have known were baseless.But if Mr. Barr harbored any fantasy that he might yet be credited with a wisp of personal integrity for standing up for democracy, that hope was thoroughly demolished on Thursday when The Times published the details of what really happened when Mr. Barr launched a counter-investigation into the origins of Robert Mueller’s report on the 2016 Trump campaign’s ties to Russia. The reporting demonstrated a staggering abuse of the special counsel system and the attorney general’s office, all in a failed attempt by Mr. Barr to rewrite the sour truths of Mr. Trump’s history.It was bad enough when, in March 2019, Mr. Barr tried to mislead the public into thinking the forthcoming Mueller report exonerated Mr. Trump, when in fact the report later showed just how strong the links were between the campaign and the Russian government, which worked to help defeat Hillary Clinton. A few months later Mr. Barr assigned John Durham, a federal prosecutor in Connecticut, as a special counsel to investigate Mr. Mueller’s investigation, hoping to prove Mr. Trump’s wild public allegations that the federal intelligence officials had helped instigate the claims of Russian interference to damage him.Attorneys general are not supposed to interfere in a special counsel’s investigation. The whole point of the system is to isolate the prosecution of sensitive cases from the appearance of political meddling. But the new Times reporting shows that Mr. Barr did the opposite, regularly meeting with Mr. Durham to discuss his progress and advocating on his behalf with intelligence officials when they were unable to come up with the nonexistent proof Mr. Barr wanted to see. (Aides told Times reporters that Mr. Barr was certain from the beginning that U.S. spy agencies were behind the allegations of collusion.)When the Justice Department’s own inspector general prepared to issue a report saying that, while the F.B.I. made some ethical mistakes, the investigation was legitimate and not politically motivated, Mr. Durham lobbied him to drop the finding. When that effort was unsuccessful, Mr. Barr reverted to his usual pattern of trying to spin the report before it was issued, disagreeing with its finding before it was even out. Mr. Durham then followed up with a similar statement, shattering the clear department principle of staying silent about a current investigation.The two men even traveled to Britain and Italy together, pressuring government agencies there to disclose what they told U.S. spy agencies about the Trump-Russia connections. That infuriated officials of those governments, who said they had done nothing of the kind, and no evidence was ever found that they had. But on one of those trips, The Times reported, Italian officials gave the men a tip which, people familiar with the matter said, linked Mr. Trump to possible serious financial crimes. (It is not clear what those crimes were, and more reporting will be necessary to reveal the details.) Did Mr. Barr follow protocol and turn the tip over to regular prosecutors in his department for investigation? No. Instead, he gave it to his traveling companion, Mr. Durham, who opened a criminal investigation but never made it public and never filed charges, and when word began to trickle out that a suspected crime had been discovered, he falsely let the world think it had something to do with his original goal.The Durham investigation, of course, has never presented any evidence that the F.B.I. or intelligence agencies committed any misconduct in the course of the Russia investigation, bitterly disappointing Mr. Barr and especially his patron, Mr. Trump, who had assured his supporters for months that it would produce something big. Desperate for some kind of success, Mr. Durham indicted Michael Sussmann, a lawyer who had worked for Democrats in their dealings with the F.B.I., over the objections of two prosecutors on the special counsel team who said the case was far too thin and who later left the staff.Mr. Sussmann was acquitted last May of lying to the bureau, and the jury forewoman told reporters that bringing the case had been unwise. Mr. Barr later tried to justify the trial by saying it served another purpose in exposing the Clinton campaign’s starting the Russia narrative as a “dirty trick.” The trial did nothing of the kind, but it did expose Mr. Barr’s willingness to abuse the gratuitous prosecution of an individual to score political points against one of Mr. Trump’s most prominent enemies.One of the other casualties of this deceitful crusade was the deliberate damage it did to the reputations of the F.B.I., the intelligence agencies and officials in Mr. Barr’s own department. All of these agencies have had many problematic episodes in their pasts, but there is no evidence in this case that they willfully tried to smear Mr. Trump and his campaign with false allegations of collusion. They were trying to do their jobs, on which the nation’s security depends, but because they got in Mr. Trump’s way, Mr. Barr aided in degrading their image through a deep-state conspiracy theory before an entire generation of Trump supporters. Republicans in the House are launching a new snipe hunt for proof that these same government offices were “weaponized” against conservatives, an expedition that is likely to be no more effective than Mr. Durham’s and Mr. Barr’s.But weakening the country’s institutions and safeguards for political benefit is how Mr. Barr did business in the nearly two years he served as the nation’s top law enforcement official under Mr. Trump. He has a long history of making the Justice Department an instrument of his ideology and politics; when he was attorney general in 1992 during the Bush administration, the Times columnist William Safire accused him of leading a “Criminal Cover-up Division” in refusing to appoint an independent counsel to investigate whether the Bush administration had knowingly provided aid to Saddam Hussein that was used to finance the military before Iraq invaded Kuwait. Under Mr. Trump, Mr. Barr did the opposite, demanding that an unnecessary special counsel do the bidding of the White House and trying to steer the investigation to Mr. Trump’s advantage. His efforts came to naught, and so will his campaign to be remembered as a defender of the Constitution.David Firestone is a member of the editorial board. Mr. Firestone was a reporter and editor at The Times from 1993 to 2014, including serving as a congressional correspondent and New York City Hall bureau chief, and was executive editor for digital at NBC News until 2022.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More