Trump Watch: A Rudy Round Up + Ted Olson Dishes on Trump
Trump lawyer Rudy Giuliani has had a rough week, while Ted Olson discusses his decision to stay at Gibson Dunn instead of joining the White House.
May 18, 2018 at 06:24 PM
7 minute read
Hello, is this thing on? Welcome (back) to Trump Watch! I'm Ellis Kim, a new litigation reporter here at the National Law Journal, which means I have the pleasure of taking over hosting duties for this newsletter.
I'm joining you all from PBS NewsHour, where I produced much of the program's political and legal coverage. If there's one thing I learned the past couple of years living and working here in the Swamp, it's this town often feels full of made-for-cable lawyers. I'm hoping to go beyond the chatter and bring you deeper analysis.
So readers, I'm excited to join you during these interesting times to help piece together the news, explore the curiosities of the Constitution, and tease out some of the novel legal questions of this presidency.
Have tips, questions, concerns? Thoughts on what you would like to see from Trump Watch? Please email me or say hello at: [email protected]. You can also follow and message me on Twitter.
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Rudy Giuliani's Rough Week
Yes, remarks by the president's lawyer have once again stirred the social media world and cable green rooms.
First, he told Fox News on Wednesday, hours after the Senate Judiciary dumped docs about the June 2016 Trump Tower meeting, that “If there was collusion with the Russians, they (the Trump campaign) would have used it.”
He also told CNN that Mueller's team informed him it would abide by DOJ policy, presumably the 1973 and 2000 Office of Legal Counsel memos, that a sitting president cannot be indicted: “All they get to do is write a report … They can't indict. At least they acknowledged that to us after some battling…”
A word to the wise: Take all with a grain of salt.
As former OLC head Walter Dellinger points out, the continued debate over whether Mueller can indict Trump boils down to whether a sitting president can be indicted while in office. And reminder, the POTUS is never insulated from political accountability, like impeachment.
→ Neal Katyal designed the DOJ's special counsel regulations, and he offered his take on Twitter. He says that if Mueller “has the goods,” he could ask Deputy Attorney General Rod Rosenstein to depart from DOJ policy.
→ I'd avoid speculation, but for what it's worth: John Carlin, former DOJ National Security Division chief and Mueller's former chief of staff at the FBI, wrote last year that Mueller “seems unlikely to confront the office's conclusion head-on.” That could raise questions about whether an alleged crime involving the president was left unprosecuted.
Back to Rudy. He also said on Thursday that he is “pretty comfortable, in the circumstances of this case that (Mueller's team) wouldn't be able to subpoena (the president) personally.”
→ A very solid roundup of commentary by Reuters' Alison Frankel here, including another gem from George Conway, a longtime Wachtell partner and husband to Kellyanne in the White House: “Drivel,” he says, of Giuliani's legal assessment on subpoenas.
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Gibson Dunn's Olson Opens Up
By the way, I chatted with former Bush lawyer Ted Olson this week about his SCOTUS win in Murphy v. N.C.A.A., which sanctioned state legalization of sports betting. You can check that profile out on Litigation Daily.
The Gibson Dunn partner also spoke with me about past reporting of the Trump legal team's attempts to bring him onboard, and he confirmed on recordthose overtures. Some highlights of our conversation:
→“We were contacted. I had been contacted a year ago. Our law firm has various different conflicts with the administration over various different things, and it was just not going to work for that reason. So I had said so then, and when it was brought up here again a month ago, it was the same answer. We still had various issues for various clients… those conflicts of interest just made it not possible.”
And it seems Olson, who worked for President Ronald Reagan during the Iran-Contra investigation, would not have decamped from his firm, as Emmet Flooddid with Williams & Connolly or Ty Cobb with Hogan Lovells:
→ “I don't think about doing things on my own, I think about doing things as a part of this firm. And it was just not going to be something that we could even consider (because of firm conflicts), so that's the end of it,” Olson said.
Remember Olson's White House “chaos” comment on MSNBC? And the theorizing afterwards that the “turmoil” was why he declined to rep Mr. Trump?
→ “I said what I said, and people conflated that with our earlier—the decision a week or so earlier, or severals days earlier—about the fact that I couldn't get involved because of conflicts of interest. People were thinking I was referring to that when I said what I said, which was pretty obvious. It was a somewhat chaotic week for the administration… It was a sort of inaccurate juxtaposition of two different things.”
I also asked him about his thoughts on Giuliani, with whom he worked closely in the past: “Well you can't really see from the outside what's going on, or what they're doing. I have great respect and affection for Rudy Giuliani, a great associate attorney general… and he's a great guy to play golf with. I just wish him the best.”
Ugh! Our first send of this email misspelled the name of Gibson, Dunn & Crutcher partner Ted Olson. I am so sorry for the error.
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Happy Anniversary, Mr. Mueller
Thursday marked one year since Rosenstein named Bob Mueller as special counsel in the Russia investigation.
What's gone down this year? Federal prosecutors have indicted 19 individuals (and three companies) so far. Five of those individuals have already pleaded guilty.
→ Also this week, District Judge Amy Berman Jackson of the District of Columbia denied former Trump campaign chairman Paul Manafort's motion to dismiss the criminal case against him. We're keeping our eyes peeled for a ruling from District Judge T.S. Ellis III in the Eastern District of Virginia on a similar Manafort push.
→ Reports say Mueller's team has handed Judge Ellis the Rosenstein memo detailing the scope of the Mueller probe.
Another flurry of judicial confirmations…
In the last two weeks, the Senate voted to confirm six nominees to the U.S. Circuit Courts, including former Skadden partner Michael Scudder to the U.S. Court of Appeals for the Seventh Circuit. Trump now has 39 picks confirmed, 21 of whom are on appeals courts. That's right, 21! For a comparison, President Barack Obama only had three confirmed circuit court judges in his first year.
→ As you might have heard, Senate Majority Leader Mitch McConnell previewed the spurt of confirmations during an interview with conservative radio host Hugh Hewitt earlier this month. The goal? “Confirm all the circuit and district court judges that come out of committee this calendar year,” he said. “All of them.”
→ Meanwhile, call it the 5-and-1 rule. Senate Judiciary Chairman Chuck Grassley also told Hewitt that he plans to “process” five district judges and at least one circuit judge “every other Wednesday between now and Christmas.”
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