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Marcy Wheeler says Trump is dangling the Scooter Libby Pardon before those caught up in the web that Robert Mueller is investigating

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SHARMINI PERIES: It’s the Real News Network. I’m Sharmini Peries coming to you from Baltimore. This past week, President Trump’s legal problems have been getting increasingly serious. On Monday morning the FBI raided the offices and home of Trump’s longtime personal lawyer Michael Cohen. It seems that the investigation of Special Prosecutor Robert Mueller, who is investigating Russian interference in the U.S. presidential election of 2016, he tipped off the New York State Attorney’s office about undeclared hush money payments to former porn actress and to a former Playboy model with whom Trump had extramarital affairs. These payments should have been declared as campaign expenditures. Trump has expressed outrage about the raids and suggested he might fire Special Prosecutor Robert Mueller.

DONALD TRUMP: Well, I think it’s a disgrace what’s going on. We’ll see what happens. But I think it’s really a sad situation when you look at what happened. Many people have said, you should fire him. Again, they found nothing.

SHARMINI PERIES: The possibility is that Trump might fire Mueller’s supervisor, Deputy Attorney General Rod Rosenstein, in order to gain control over the investigation with a more pliable replacement for Rosenstein. Joining me now to discuss this and related matters is Marcy Wheeler. Marcy is an independent journalist writing about national security and civil liberties. She writes The Empty Wheel, at EmptyWheel . net. Marcy, good to have you.

MARCY WHEELER: Good to be here.

SHARMINI PERIES: All right, Marcy. If Trump actually fires Rosenstein, what does this mean for his legal problems? And of course, what does it mean for Mueller’s investigation?

MARCY WHEELER: It means that the next most senior DOJ official will become Mueller’s boss. And we’ll see what happens once that person, currently it’s the solicitor general. We’ll see what happens when the solicitor general reviews what Mueller’s been doing. If he agrees that Rosenstein has been correct in his, in his direction of Mueller, then nothing happens.

SHARMINI PERIES: Marcy, there are initial reports that Special Prosecutor Robert Mueller will issue his report as early as May. Now, indications are that he will focus on four areas. Tell us about these four areas, and how serious do you think they are? Could they lead to Article of Impeachment?

MARCY WHEELER: Well, what Mueller is doing is releasing the first of two suspected reports. The first one would be an obstruction report on Trump’s own obstruction for things like firing Jim Comey, trying to prevent Jeff Sessions from recusing, helping to write a press statement about a June 9, 2016 meeting with some Russians, and also dangling pardons to people like Paul Manafort. So those four activities, it appears Mueller is going to tell Congress amounted to obstruction of justice, and it will put some pressure on the Republicans to respond. I doubt they’ll respond before the election, which will make it a lot harder for them to hold onto the House and possibly even the Senate. So this sort of sets up the election, sort of sets up the Republicans to have to choose whether they want to take responsibility for Trump’s actions or not, and whether they want to have to pay for that at the polls.

SHARMINI PERIES: All right. Marcy, let’s turn to the raid of Michael Cohen’s office and home. Now, if Cohen acted on his own to keep Trump’s lovers quiet he could be in serious legal trouble. But what if it turns out that Trump knew about these hush payments? Some say Cohen’s record, he records everything, and all of this might now be outed. Do you think he actually may have done the recordings? And what would that mean for Trump? He has, of course, denied knowing about any of this. How do you assess the situation?

MARCY WHEELER: Well, let’s go back. So Michael Cohen, as you said, Trump’s personal lawyer was raided on Monday. The FBI was looking not just for hush payments, and it’s hush payments with regards to two women, and also something having to do with the Access Hollywood video that was, that was released during the campaign. But it also has to do with Cohen’s own business. He owns a bunch of taxi medallions, and there is some question about his business associates on that. So a lot of what he was rated for will not be privileged materials.

Your question gets to whether Trump knew or did not know about these hush payments, gets to whether the specific negotiations with these two women, whether they are privileged or not. If Trump had no party to them they’re not privileged, because Cohen did it on its own. Nevertheless, the sheer amount of money involved and the fact that this was done in the course of action to hide the information during the election counts as a, as an illegal campaign donation. And so that’s what the legal problem, along with some money laundering and bank fraud and so on and so forth. That’s what the legal problem is for Cohen. It doesn’t have to do with whether Trump knew about it or not. Whether Trump knew about it or not has to do with whether it’s privileged.

SHARMINI PERIES: Now, do we speculate that that it would be privileged?

MARCY WHEELER: It doesn’t really matter, because if it’s privileged it’s going to fall under what’s called the crime fraud exception, meaning the privilege was broached, and the FBI can use it to prosecute Cohen for this, for financial crimes, basically.

SHARMINI PERIES: And finally, Marcy, Scooter Libby has been pardoned. So tell us about the significance of this pardon, and who is he, anyway?

MARCY WHEELER: Scooter Libby was Dick Cheney’s chief of staff in 2003. Dick Cheney [inaudible] information to Judy Miller. And as part of that conversation Scooter Libby shared the identity of Valerie Plame, who was a CIA WMD operative who, who was part of a group at CIA that question the case for war in Iraq. So was retaliation to shut up the CIA, and ultimately Libby was charged for, not for leaking Plame’s name, but for obstructing the investigation into whether he leaked her name and whether he did so with the permission of the president or not. He was found guilty. He was, his sentence was commuted, meaning he never did any prison time.

What the pardon means for Libby is very small. It simply means that, because he’s already got his right to vote back and his right to serve as a lawyer back, what it means is Trump has made it very clear to people like Michael Cohen, and like [Paul Manafort], and like a bunch of other people who may or may not cover for his own crimes that he will take care of them down the road. So this is not about Scooter Libby. It’s about Trump and his own crimes. It’s as much of an admission that he is at great risk.

And it’s not going to work. That’s the other important thing, is Trump is not positioned in the same way that George Bush and Dick Cheney were in 2007 when Bush commuted Libby’s sentence. And the reason is because Mueller already has cooperating witnesses. Mueller has a lot more information already. There are, there the crimes in which Trump was involved with are, they’re much more complex. It’s just going to be a lot harder for Trump to do what Cheney and Bush did in 2007, which was to create a firewall, to take care of the firewall, and hide behind that firewall until the legal problems went away. And so this probably, you know, it, maybe it’ll lead Paul Manafort and Michael Cohen to not flip on Trump, to go through trial, but there is no reason to believe that this is going to work for Trump in the way it worked for Dick Cheney.

SHARMINI PERIES: All right, Marcy. I guess we’ll have to let you go for now until further notice on these matters. Thank you so much for joining us. And if you want to know more about what Marcy’s thinking, please tune into her website Empty Wheel at I thank you so much for joining us, Marcy.

MARCY WHEELER: Thanks so much.

SHARMINI PERIES: And thank you for joining us here on the Real News Network.

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Marcy Wheeler is a national security reporter and author. Her website is Empty Wheel.