Jerome Corsi is a living testament to the truth that having a Ph.D., even from Harvard, doesn’t necessarily mean that all your lug nuts are screwed down tight. For roughly the last 15 years, he has been a regular on right-wing media outlets promoting various conspiracy theories and baseless smears against both Democratic and Republican politicians. He helped “Swift Boat” John Kerry, wrote an Obama birther book, claimed that President George W. Bush was a secret globalist pursuing a “North American Union,” and maintains that Hitler survived World War II and oil does not come from organic matter.
Unsurprisingly, he was slithering around the inner circle of the 2016 Trump presidential campaign as an associate of Roger Stone and has been drawn into the Mueller investigation. Mueller’s interest in Corsi arises from the fact that in the summer of 2016, Stone appears to have asked Corsi to help contact WikiLeaks’ Julian Assange about stolen emails relating to Hillary Clinton that Assange had allegedly obtained from GRU, the Russian intelligence service.
Mueller’s team interviewed Corsi on multiple occasions but became convinced that he had lied to them. In particular, Corsi claimed that he declined to help Stone contact Assange and denied that he provided Stone with any information about what WikiLeaks might have or what it might do with that information. Mueller’s people have evidence in the form of emails from Corsi to Stone that these statements were false.
Confronted with this evidence, Corsi entered into negotiations with Mueller about pleading guilty to making false statements. Several days ago, Corsi announced that he was rejecting Mueller’s plea offer. He did not deny he told investigators things that were untrue, but claimed he was simply forgetful. Then a copy of a draft statement of facts prepared by Mueller in support of the proposed plea leaked. These documents appeared all over the press, but CNN reported that it had received the document directly from Corsi.
There is no formal legal penalty for making this kind of release. Nothing in the draft appears to be classified or within the category of “grand jury material” required by the federal rules to be kept confidential.
Ordinarily, it would be extremely foolish of a defendant to leak a document like this for the simple reason that it angers the prosecutors. Angry prosecutors are even less likely to make a favorable plea agreement. Even if Corsi has given up on the idea of a plea, angry prosecutors are likely to file more charges and seek a substantial prison sentence upon conviction in response to this sort of action.
This being so, one wonders why Corsi’s lawyer would allow him to do something so potentially self-destructive. Few, if any, experienced federal defense lawyers would leak a draft plea memo. A criminal defense attorney cannot function effectively if the prosecution does not trust him to maintain the confidentiality of plea discussions. Once it becomes known that a defense lawyer can’t be trusted, prosecutors either won’t deal with the lawyer’s clients or will make negotiations far more difficult. But Corsi’s lawyer, David Gray, has no apparent federal criminal law experience. He runs a three-lawyer general practice firm in a New Jersey town near where Corsi lives. Hence, he doesn’t have the repeat-player disincentive for allowing his client to leak that a real federal defense lawyer would have. Still, I suspect this disclosure can’t be laid at Gray’s feet. More likely, Gray has a client he does not control.
What I think we are seeing with Corsi is another example of a recurring problem for Mueller’s team—the interaction of three factors no previous investigator of presidential misbehavior has had to face.
First, a striking number of the potential witnesses (or low-level defendants) are not simply overzealous or slightly bent government officials who made questionable choices in service of a cause or a candidate. They are not John Dean (Nixon), or Oliver North (Reagan), or Scooter Libby (Bush). Instead, they tend to be lifelong con men like Paul Manafort, aspiring grifters like Rick Gates, professional dirty tricksters like Stone, or fabulist members of the right-wing lunatic fringe like Corsi. In sum, earlier presidential investigators were dealing with a better class of criminal: folks who entered the president’s orbit because of a prior career of some distinction who had a great deal to lose if convicted, or even charged, with a federal felony. Such people tended to respond to the formal rules and informal incentive structures of the criminal law in predictable ways.
The inhabitants of Trump world don’t necessarily do that because they have no “good name” or professional standing to lose. Indeed, guys like Corsi, Stone, and Manafort have prospered precisely by being—and being known to be—unbound by conventional norms of ethics or factual accuracy. For Corsi, leaking a draft plea document may just be part of a continuing effort to keep himself in the news.
Second, all the inhabitants of Trump world swim in a supportive right-wing media sea in which even being indicted and convicted by Bob Mueller would, if anything, make them even more attractive as commentators and authors in the dark niche they occupy. A guy like Corsi in particular can reasonably calculate that conviction of a federal false statements charge would, at worst, put him in prison for a few months—during which he could compose an insta-book about the injustice of his plight, and after which he’d be in even higher demand.
Third, in Donald Trump we have, for the first time in history, a president who publicly trashes the justice system and is openly and unashamedly contemplating pardons for potential witnesses against him. Everything Corsi, Manafort, and the rest do is surely being done with one eye on the not-unreasonable hope that Trump will sweep in and save their bacon either by squashing the Mueller investigation or issuing a round of pardons. Indeed, it appears that Corsi, Manafort, and others have so-called joint-defense agreements with Trump permitting sharing of information at least arguably under the shield of attorney-client privilege.
I say arguably because of the peculiar position of Trump as president possessed of the pardon power. Attorney-client privilege does not cover communications in aid of the commission of a crime. Any discussion between Trump or his lawyers and persons like Corsi, or their lawyers, that took the form of, “This is what my client might say that inculpates the president and thus the president should issue a pardon” would tread closely on both criminal obstruction of justice for anyone involved in such a conversation and an impeachable offense for the president. (On the latter point, as I’ve written repeatedly, abuse of the pardon power is an impeachable offense. This is doubly so in any instance in which the pardon power is used to protect the president or those close to him from legal liability.)
We know at the very least that Trump was fed the Corsi information before it was publicly released on Tuesday. Trump’s lawyers say they were sent a copy of the draft statement—which specifically mentions that a figure assumed to be Stone had been in contact with Trump around the time of the events in question—before Thanksgiving, supposedly in an anonymously delivered package.
All this makes Mueller’s job more difficult because ordinary expectations of target behavior may not apply. At the same time, it makes Mueller’s no-nonsense, buttoned-up, by-the-book approach even more important. With luck, he, the federal judges who will ultimately sentence the twisted denizens of Trump world, and if necessary Congress will show these characters that the law equally applies to them.
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