Being recorded....

White House paranoid: 'Everyone thinks they’re being recorded'

Michael Flynn's agreement to cooperate with investigators only adds to the worries after a former campaign aide's secret deal was kept quiet for months.

By DARREN SAMUELSOHN

Paranoia is enveloping the White House and President Donald Trump’s network of former aides and associates as Robert Mueller’s Russia probe heats up.

Former national security adviser Michael Flynn agreed to cooperate with investigators as part of the plea deal he reached last week, adding to the worry already inside Trump’s circle surrounding the secret deal struck earlier this summer by former campaign aide George Papadopoulos, whose cooperation was kept quiet for months before being unsealed in late October.

Both cases raise the possibility that other current or former colleagues have also flipped sides — and they're prompting anxiety that those people could be wearing wires to secretly tape record conversations.

“Everyone is paranoid,” said a person close to Trump’s White House. “Everyone thinks they’re being recorded.”

Mueller is doing little to abate those suspicions. Tucked inside last week’s 10-page plea deal Flynn struck with government prosecutors is an agreement that the former White House national security adviser could avoid a potential lengthy jail term in part by “participating in covert law enforcement activities.”

Wiring up cooperating witnesses is a routine law enforcement tactic used hundreds — if not thousands — of times a year in criminal cases and on occasion for more complex white-collar investigations. It’s done to obtain a record of other conspirators and witnesses talking about their conduct, which can be used as confirmation when pressing for indictments and as first-hand evidence to be introduced during trial. Mueller, a former FBI director, and the team of veteran Justice Department prosecutors he’s surrounded himself with are schooled in the benefits of the wiring technique.

“I think they’d be derelict of duty if they didn’t use it,” said Solomon Wisenberg, a former deputy on Kenneth Starr’s independent counsel investigation into President Bill Clinton.

White House attorneys and private counsel representing both current and former Trump aides told POLITICO they immediately checked in with their clients once they learned about Mueller’s plea agreements with Papadopoulos and Flynn, asking whether they’d had any communications with their former colleagues which could have been secretly recorded while also reminding them to be diligent in avoiding conversations with anyone except their lawyer related to the Russia investigation.

“They’re probably shitting bricks,” said an attorney who represents a senior Trump aide caught up in the Russia investigation. “How can you not?”

But recording conversations without consent from all the parties involved carries serious risks for Mueller, who is being closely watched by experienced defense lawyers and an army of Trump allies eager for any opportunity to show the special counsel is acting unethically or even illegally while investigating Russian interference in the 2016 presidential election.

The biggest red line is that the special counsel is not supposed to wire up a witness to talk with a person who he knows already has a lawyer representing them on the subject matter that is being discussed on the tape. That includes conversations covering details of a joint legal defense strategy.

Ty Cobb, a White House lawyer, said in an interview that he didn’t expect Mueller to use Papadopoulos or Flynn as witnesses to help his case, particularly to tape record anyone who is represented by a lawyer.

“Mueller is too good a professional and too good a prosecutor to tape represented individuals and he doesn’t want his office or his important mission to be tainted,” Cobb said, noting the legal and ethical constraints.

Cobb said he’s counseled the White House that it had little to fear about people wearing wires, saying the tactic would not help answer the questions central to Mueller’s Russia investigation. “I don’t know anyone who feels that paranoia,” Cobb said. “To the uninformed and inexperienced this may be enjoyable. But in reality, it is unhinged speculation with no foundation.”

Mueller’s team is already walking a tight rope with its probe even without a fight over using witnesses wearing wires. Trump and his allies have called into question some of Mueller’s prosecutors’ past campaign donations to Democrats, and conservative blogger Charles Johnson has been combing the social media posts of the special counsel staffers’ family members to highlight any anti-Trump messages. Trump himself seized Sunday on reports that an FBI investigator was kicked off the special counsel team earlier this summer because of text messages exchanged with another FBI lawyer that were critical of the then-Republican presidential candidate.

While there is no official confirmation Mueller has actually used anyone wearing a wire, the president’s allies have already jumped on the topic. Newt Gingrich, the former Republican House speaker and one-time finalist to serve as Trump’s vice president, told the Washington Post shortly after the Papadopoulos plea deal came out that Congress should “look seriously at whether Mueller put a wire on this guy and sent him around to entrap people.”

If Mueller did wire up the Trump campaign staffer, Gingrich said lawmakers “better see the full transcripts, not just the FBI’s edited version.”

Mueller’s office, which declined comment for this story, must follow the same guidelines that U.S. attorneys and others at the Justice Department use when considering whether to wire up a cooperating witness.

The rules require written approval from a senior Justice Department official before sending a witness with a wire for any meetings with high-ranking government individuals like members of Congress, federal judges and many senior White House staffers.

If Mueller did cross any lines, he’d be certain to hear objections from defense counsel during any negotiations over plea agreements, in pre-trial motions and throughout trial. His prosecutors are also subject to ethical complaints with the Justice Department and any state bar associations in the location where the wiring took place.

Former Watergate prosecutor Nick Akerman said Mueller is on solid ground with ample court precedent to use witnesses wearing wires with anyone who isn’t known to have a lawyer. And he said the special counsel also has plenty of room to use the technique with people who do have lawyers. “Otherwise, the government would never be able to use body wires against career criminals like members of the mafia who always have lawyers,” he said. Defense attorneys rarely succeed in getting tape-recorded conversations thrown out in court, he added, because the cooperator can still testify about what the person told them.

“The tape recording ensures that what the jury hears of the conversation is actually what happened, as opposed to someone’s testimony as to what happened,” he said. Asked about Cobb’s advice to the White House that it shouldn’t fret about colleagues wearing wires, Akerman replied, “That’s good. Let them think that.”

Because Mueller’s team is under such intense public scrutiny surrounding their work, they’ll “be very circumspect on how and where and of course why they would wire a particular person and prepared to defend their judgment at every step of the process,” said Ronald Hosko, the former assistant director of the FBI’s Criminal Investigation Division.

While White House staffers have privately expressed concerns over colleagues wearing wires — perhaps even while working inside the White House — Hosko said he didn’t think Mueller would go there.

“They’d be very guarded in taking those steps,” he said. “That’s not to say no under any circumstances. But the notion of going after [senior Trump White House aide Jared] Kushner, flipping him and asking him to wear a wire in the White House on Donald Trump? I don’t think we’re at that point yet.”

Stephen Binhak, a Miami-based white-collar attorney who served as an associate counsel during the Starr investigation, said Mueller is likely being excessively cautious about when and where he’d put witnesses into situations where they were wearing a wire.

“What you don’t want to do is screw up your case up by injecting a problem,” Binhak said. “The risks of jumping the guard rails are pretty significant, including the inability to use the tape as evidence or even dismissal of an indictment in the most egregious circumstances.”

There’s another reason to avoid wiring up witnesses: There’s no guarantee they’ll bring back worthwhile evidence.

“There’s this feeling out there that all witnesses are like super agents,” Binhak said. “It rarely works like Mission Impossible. Murphy’s Law is always a threat. Sometimes, the stronger your case the less you really need the wire.”

Binhak, who was involved with the wiring of Linda Tripp, a Clinton impeachment witness who secretly taped White House intern Monica Lewinsky discussing her sexual affair with Clinton, said Mueller would need to be careful that when wiring up a witness to ensure they didn’t bring back “bad evidence”

“Even if you have the opportunity to speak to a major target, you have to look at the other considerations beyond ‘Can I wire that guy up to go talk to him?’” he said. “In any significant case, you are likely dealing with very smart people. If they sense they are being taped, they can make exculpatory statements that can actually set you back.”

Several attorneys agreed with Cobb that they didn’t think Mueller would wire up witnesses like Papadopoulos or Flynn. By the time Papadopoulos was arrested in July, Mueller had already been appointed and many of the people who have been named as potential targets had already hired lawyers who would have flagged the concern about meeting with former colleagues wearing wires.

Flynn, meantime, was likely already seeing any calls go straight to voice mail. He’d been under scrutiny dating back at least to January, when he was forced out of the White House amid claims he had misled Vice President Mike Pence about his contacts with the Russian ambassador to the United States. Flynn’s attorney in March had also asked for his client to testify before Congress in exchange for immunity.

“It’s tough waters to navigate from a prosecutor-investigator point of view to put a spy in the camp at this juncture when everyone is represented by counsel. It’s doable. It’s just very tricky and probably not very productive,” said a former federal prosecutor closely tracking the Russia case. “I think everyone is treating everyone else as if they’re radioactive.”