Tag Archives: Barr

Trump Goes Full Dictator

The president has been asked multiple times if he will respect the result of the vote and participate in the peaceful transfer of power that has been a hallmark of American democracy since the Founding. His chilling responses are, in essence, “only if I win,” just as he said before the 2016 election. In that election he made much of claims that the election was being “rigged” by Democrats against him. Little was known at that time about the support he was getting from Russia which wanted Trump to defeat Hillary Clinton at all costs. Of course, a significant majority of voters went for Clinton anyway. Trump’s squeak-by win was the product of a few votes in a few states favored by the Electoral College.

This time, Trump has gone all-in with his “election rigging” claims, focusing mainly on the on-going shift toward mail-in voting compelled by the COVID-19 pandemic crisis that the president himself has admitted he deliberately downplayed the danger and misled the public despite his early knowledge of how deadly and easily transmitted the virus was. Details in Bob Woodward’s Rage. Trump claims that mail-in voting, in which ballots are sent to all registered voters rather than the traditional absentee method that send ballots only to voters who ask for them, are inherently infected with fraud.

These assertions have no basis in history. Multiple states, including Republican-led states, have long used mail-in voting without material evidence of voter fraud. Paul Begala’s recent book, You’re Fired, The Perfect Guide to Beating Donald Trump, shares some compelling data on this subject. He reminds us of the Pence-Kobach voter fraud commission, ponderously named by Trump as the Presidential Advisory Commission on Election Integrity. Kobach was the lead horse in the Trump wagon train seeking evidence that voter fraud was rampant in the United States.

During its roughly seven-month life, the Commission came up with … nothing of substance. The pathetic history of this effort at voter suppression, inspired by Trump’s hurt feelings over having lost the popular vote in 2016, are set out at https://en.wikipedia.org/wiki/Presidential_Advisory_Commission_on_Election_Integrity, including the finding by a federal magistrate that Kobach had engaged in “patently misleading representations” in a court dispute over document access.

Begala reports that the Bush administration had also tried to unearth voter fraud. Then Attorney General Ashcroft investigated hundreds of campaigns involving 197 million votes and prosecuted 26 people. In a study of 14 years of elections (1 billion votes), the Washington Post found 31 cases of actual or plausible voter fraud. For the 2016 election, a WAPO investigation revealed 4 published reports of fraud in an election with 135 million votes. Sidebar: one of those cases was someone who voted twice for … Donald Trump.

Begala observes that voter fraud involves a very small gain for the fraud-favored candidate (one incremental vote) whereas the perpetrator faces the prospect of federal prison. If you think that’s fanciful, recall Crystal Mason who cast a provisional ballot, which was never counted, in Texas while on federal supervised release following a prison term for tax fraud. She was sentenced to five years – five years – in prison for an uncounted vote when she had never been told of her disqualification under Texas law. https://bit.ly/3mVm4eI

Never deterred by facts, Trump and his enablers have been stoking the fears of massive voter fraud and other problems for months. As reported by Politico,

This past spring, President Donald Trump began a full-fledged assault on voting by mail, tweeting, retweeting and railing about massive fraud and rigged elections with scant evidence. Then the Republican apparatus got to work backing up the president. In the weeks since, Trump’s campaign and the Republican National Committee have taken to the courts dozens of times as part of a $20 million effort to challenge voting rules, including filing their own lawsuits in several battleground states, including Minnesota, Pennsylvania and Nevada. And around the time Trump started musing about delaying the election last week, aides and outside advisers began scrambling to ponder possible executive actions he could take to curb mail-in voting — everything from directing the postal service to not deliver certain ballots to stopping local officials from counting them after Election Day. https://politi.co/33ZERNl

The more recent developments are pretty well known, including the efforts of Trump’s Postmaster General, a man with zero experience managing the Postal Service, to slow down mail deliveries, removing automated mail-sorting machines, altering delivery schedules to force mail to be undelivered or delayed, and so on. This is classic voter suppression by other means in the face of a national health crisis that has, due in large part to the president’s lying, killed more than 200,000 Americans and left tens of thousands more with permanent, crippling organ damage.

We are now in the final two months run-up to Election Day. Trump is desperate. He is behind in almost every poll, including many  battleground/swing states and his lies/distortions/deflections have not moved the needle in his favor.

Then the question is put: will you respect the vote and participate in a peaceful transfer of power? His answer remains, in effect, NO.

Does he mean it? We would be foolish to think it’s just a ploy on his part, part of Trump’s bag of braggadocio that so excites his political base at rallies. When you ask someone, “what do you do?” and he answers, “I’m a thief,” you should believe him.

Trump’s campaign to undermine the legitimacy of the election is unrelenting, supported by Russia again, and like an elixir for his base. However, many of Trump’s key enablers, like Sen. Lindsey Graham of South Carolina, are falling behind their Democratic opponents and pleading for help from Fox Propaganda News viewers.

Remember Trump’s answer: ‘NO, I will not respect the election result because I know, in advance with the use of my mystical powers to see the future, that it will be unfair to me and I won’t stand for it.’ There are suggestions that he will order the U.S. military and state National Guard units to the polls, for the sole purpose of intimidating voters. His supporters in open-carry states have already appeared at some protests related to the murders of George Floyd and Breonna Taylor armed with AR-15s and other weapons. They call themselves militias, but they are actually armed gangs who will not hesitate to participate in voter suppression in support of Trump’s white supremacy agenda.

Lastly, and most recently, in a now common apparent effort to bolster Trump’s claims of voter fraud working against him, the Justice Department announced it was investigating nine “discarded military ballots” that were cast for Trump in Luzerne County, Pennsylvania. https://cnn.it/2FZzo1a

The announcement is extraordinary in multiple respects: DOJ does not normally announce pending investigations absent compelling circumstances, especially if they may influence an election. That is true notwithstanding the astounding, history-changing decision by James Comey, then Director of the FBI, to announce a reopened email investigation of Hillary Clinton only days before the 2016 election. That decision, in which Comey overrode the advice of virtually everyone else at Justice, is recounted in Jeffrey Toobin’s True Crimes and Misdemeanors.

The initial announcement regarding the Pennsylvania ballots was wrong regarding how many votes were for Trump and had to be reissued. As noted by CNN, the disclosure of the candidate’s identity

immediately raised suspicions that the Justice Department was trying to furnish material that Trump could promote for political gain. Indeed, Trump and other White House aides used the information, even before it was made public, to attack mail-in voting. Election officials go to extraordinary lengths to protect ballot secrecy. It’s unclear how investigators figured out who the votes were for, and why they made that information public.

Not surprisingly, the federal inquiry was prompted by a request from the Republican District Attorney in Luzerne County; the DOJ attorney announcing the case is also a Trump-appointed Republican.

As usual with vote fraud cases, the “discarded” ballots are a tiny fraction of the “normal” voter turnout in Pennsylvania (6.1 million votes in 2016). Because the envelopes appeared similar to the ballot application envelopes, the story goes, the local officials decided to open them for fear of missing absentee ballot requests from the military, a problem that had cropped up in the last primary and, apparently, not cured.

This is, I believe, related to an ongoing problem with ballots, the requesting and use of which has become so complicated that many mistakes are made by ordinary voters whose votes are then rejected. This happens even in jurisdictions that have no history of voter suppression.

Another curiosity about this situation is that the investigation apparently had not yet learned who “discarded” the ballots or why. Yet, DOJ was most anxious to make public statements about the investigation and, it turns out, brief Trump in detail before the DOJ’s public announcement of the situation.

Trump spoke to Fox News Radio about it and the White House Press Secretary was informed and advised reporters before DOJ’s announcement.

CNN’s report continues:

Trump and Attorney General William Barr …have promoted debunked conspiracy theories and blatant disinformation to claim that mail-in voting leads to massive fraud. Election officials from both parties have rejected these claims and say there are tried-and-true safeguards prevent and quickly detect fraud.

The unorthodox Justice Department announcement is sure to fuel suspicion that Barr is using the Justice Department as a political weapon to help Trump’s reelection.

In recent months, Barr has aided Trump’s effort to label Democratic-run cities as “anarchist” strongholds, and has targeted Democratic-run states over Covid-19 deaths at nursing homes. Barr has also intervened in criminal cases to help prominent Trump allies.

David Becker, founder of the nonpartisan Center for Election Innovation, and a former DOJ attorney himself, said

the announcement didn’t say anything about the voters’ preferences in the down-ballot races, and that it said nothing about how the ballots were actually discovered.… to release a public statement with so little info, at the beginning of an investigation, is inexplicable, and law enforcement malpractice.

Becker was not alone in his condemnation of the early partial release of what amounts to political campaign material supporting Trump. For example,

It’s wildly improper, and it’s truly unconscionable,” said Justin Levitt, a former Justice Department official who is now a professor at Loyola Law School in Los Angeles. https://wapo.st/334NpDv

But, wouldn’t you know, the reality turns out to be quite different than the hysterical web of deceit and conspiracy that Trump and his sycophantic enablers weave. The discarding of ballots was a mistake by an inexperienced contractor, since fired. Another nothing-burger in the Trump pantheon of wounds and slights in the fantasy word he has concocted around voting fraud. https://cnn.it/2Sen7IV

Trump’s ongoing campaign to undermine confidence in the election, assisted by his Attorney General acting, and using the resources of the Justice Department, as de facto personal attorney for Trump and his re-election campaign. Barr’s involvements on behalf of the president and his enablers is so bad that more than 1,100 former DOJ officials publicly urged Barr to resign last February. https://n.pr/3hXHNPG

Trump’s plan seems clear. He intends to resist with every available tool, legal or otherwise, the outcome of the election. There are reports that his statements and claims have alarmed the generals in the Chiefs of Staff and in the Pentagon that they may be called on by Trump to intervene in the election. https://wapo.st/2Gawcj7 Trump would not hesitate to order the military to intervene if he thought that would save his presidency from electoral defeat.

In that case military leaders will have to choose between Trump and the Constitution – saying they’ll leave it to the courts will not suffice if Trump, as Commander-in-Chief, orders them to intervene on his behalf. And resignation, the other suggested option, will not work either. The decision-making authority would simply devolve down the chain of command until someone –- there’s always someone – says “I’ll give the order.” It will be someone least capable of leading but who is intoxicated by the power or the attention, however brief it may be.

Trump is half-way there. He has been asked repeatedly and continues to hedge: “we’ll see what happens.”

One suggested solution is that the Democratic vote must be so overwhelming that there simply is no basis for a claim of electoral fraud. A gigantic Blue Wave would be helpful, but it is no guarantee against a desperate man who has no allegiance to the Constitution or anything else beyond himself. Everyone should prepare for the worst. And, without fail, VOTE. VOTE like your country’s life and your own depend upon it. Because they do.

 

The Flynn Case — Lying Sanctified by Court

I am not going to go on at length about this. By now, I hope those of you who watch the news about such things, are aware that the United States Court of Appeals for the District of Columbia Circuit has, in a 2-1 panel decision, intervened in a District Court judge’s consideration whether to permit the government to drop its prosecution of Michael Flynn for lying to the government.

Flynn admitted twice, I believe, under oath, that he had lied. The prosecution, under orders from Trump’s personal attorney/U.S. Attorney General William Barr, decided out of the blue that the government should not have been questioning Flynn in the first place and, therefore, his admitted lying was apparently unimportant.

The presiding judge, Emmet Sullivan, apparently thought, with justification, that something funny was going on and decided that, before granting the government’s motion to dismiss the prosecution, he would delve more deeply into what might be up. This, of course, sent the Trump administration into a delirious state and it sought a mandamus (a form of a court order, like an injunction, directed in this case to the District Court) from the Court of Appeals, thereby bypassing the problematic course of trying to get permission for an interlocutory appeal (normally one cannot appeal if the lower court has not entered a final order).

As forcefully noted by the dissenting opinion, the decision of the two judges in the majority effectively means there is zero chance for judicial oversight over dubious or corrupt decisions by prosecutors. In the Flynn case, there is good reason to believe that the decision to drop the prosecution was driven by the Attorney General who these days operates as if her Donald Trump’s personal attorney. Not least is the fact, as reported by Politico, that

Just before Barr’s decision to seek to abandon the case was revealed publicly, the Washington-based lawyer and Mueller office veteran who was the lead prosecutor on the case since its outset, Brandon Van Grack, formally withdrew in an apparent protest against the attorney general’s action. The other career prosecutor on the case, Jocelyn Ballantine, also declined to sign the motion.

https://politi.co/2YzNdtE

By granting the mandamus motion, the Court of Appeals took the extraordinary step of taking over the case and deciding it before the District Court had concluded its consideration and issued an opinion. This had the effect, clearly intended, of foreclosing any inquiry that might have revealed disturbing, to put it mildly, facts about the basis for the decision to end the prosecution.

But it’s not over until the last batter is out. Any judge on the Court of Appeals, including Judge Robert Wilkins who wrote the blistering dissent, can ask the full court to hear the case. Judge Sullivan, for reasons not clear, has put all dates on hold. This may signal his intention to seek an en banc consideration or something else. He could be planning to comply with the Circuit Court order but with an “opinion” on the case as he now views it. Time will tell.

Sinking the Ship of State

Watching the Trump administration’s response to the coronavirus pandemic is like watching a panicked group of passengers rushing from side to side of a listing ship, each time reacting late and making the boat rock more severely, eventually leading to its swamping.

While Trump continues to gaslight Americans every day in his so-call press conferences, the undeniable facts are that he was warned early, rejected what he heard, ignored reality in favor of sloganeering and cheerleading for a losing hand and failed across the board to take appropriate action to prepare for and fight the pandemic. This incompetent lunatic continues to tweet about how good the TV ratings are while thousands of Americans are dying. Trump doesn’t understand that people in car accidents get good “ratings” too as passing drivers become rubberneckers who can’t help but slow down and stare at the wreckage.

Trump’s meltdowns and attacks on the press at his press conferences are, for reasons that defy understanding, given continuous national TV coverage by networks and cable services, although of late, some of them have cut away when, as always happens, Trump begins his delusional rants about what a great job he’s done. All of the fact-checking done by responsible journalists conclude that virtually every one of Trump’s press conferences is laced with lies, deflections and distortions. He makes statements that are demonstrably untrue and when questioned, attacks the person who asked the questions.

One conclusion to be drawn from this is that Trump doesn’t see these “press conferences” as means of conveying truthful information, or even inspirational messages, to the press or the American public. He sees them as opportunities to glorify himself, little more than campaign events for his re-election. And, as always, a cast of Republican sycophants in and outside Congress readily defends his failures with still more lies and distortions.

A good example of Republican representatives distorting the record, mostly by omitting inconvenient facts, is the video of Rep. Dan Crenshaw (R-TX) that is circulating on Facebook and Twitter. Crenshaw is good at dissembling, appearing oh so reasonable (“I’m not blaming the Democrats” while in fact blaming the Democrats). His demeanor suggests a thoughtful man just trying to set the record straight, but, as occurred throughout the phony Senate “trial” of Trump’s impeachment, leaving out key information is not making the record better. It is rewriting history to make Trump look better. It’s a hopeless task, but Republicans know that much of their political base is so enamored of them that they can be relied upon to believe almost anything. Take a look at this: https://wapo.st/3cyFf8n, a solid fact-checking of Crenshaw’s false narrative.

Trump himself, possibly aware at some deep level that his actions and inactions have been a disaster for America and Americans, like the crowd on the troubled boat, changes targets for his deflections almost daily. One day it is former President Obama’s fault, the next day it’s the Democratic governors, the next day it’s China or the World Health Organization, then back to Obama. Anybody but Trump and the incompetent corps of White House lackeys who report to him from their knees.

None of this is a surprise. Concerned observations have been worrying over the possibility that during his term, Trump would face an emergency he could not handle. Much of the speculation about this had to do with a possible military confrontation, but it turns out it was something else, perhaps with even greater consequences. In a sense, the entire world is at war with itself and the putative Leader of the Free World has come up short at every turn.

One report says a Republican congressman had argued it was better for people to die than to face severe economic losses even if they are relatively short-lived. This is revelatory of the Republican philosophy that values money over everything else. I have to wonder whether these people would be elected if an express element of their political platform were that their parents and other family members should sacrifice their lives so that the economy could be restored to its former glories sooner. Maybe the electorate that installed them would think that’s just fine. It’s hard to be surprised by any degradation of moral principles in the world of Donald Trump.

Now we see that Republican governors in multiple states have decided to follow their fuhrer into hell by reopening business in their states, withdrawing the social distancing orders and generally saying “let the chips fall as they may.” That might be okay if the “chips” weren’t people. Contrast this with the evaluation of New York Governor Andrew Cuomo who has been asked “why can’t you just open up businesses in counties that have few or no COVID cases?” Cuomo explained the obvious: that the virus, and the people who carry it, don’t know about county boundaries. Open restaurants in County A while keeping them closed in County B will simply result in people from County B descending on the restaurants in County A and end up sharing their infections. The result, when looked at one county at a time, is that the infection rate will simply go up in both counties.

This is not rocket science, but just as Republicans reject climate science among other scientific principles, people who don’t want to be inconvenienced any further will simply disregard principles of responsible behavior. Cuomo has discussed this at length in his daily press briefings, noting that (close paraphrase), “I can’t force people to comply. All I can do is persuasively explain the facts of the situation and urge them to comply. And when I do that well, most New Yorkers do comply, which is why we’re seeing the positive results in hospitalizations and other indicators.”

So, the choice is to follow sensible principles that are working to reduce infections or go ahead and open up massage parlors, hair salons, beaches, restaurants and the rest and “let the chips fall where they may.” It would be one thing if the people screaming about their “rights” and “freedoms” to disregard sensible practices would be turned away from overwhelmed medical facilities and sent to suffer, and in many cases die, on their own away from anyone else they might infect. But that’s not how our systems, such as they are, work and it’s not how viruses behave. It’s almost amusing, but not, that many of the protestors following Trump’s LIBERATE call-to-action to demand their freedom from lockdown orders are wearing masks and other protective gear even as they scream at medical personnel. And many of them, it should also be noted, carried Confederate flags and Nazi swastikas as they demanded “freedom.” Irony is not a strong force among these people.

Speaking of Nazis, William Barr, the part-time Attorney General of the U.S. and full-time consigliere for Trump, has declared that the Department of Justice will join private lawsuits on the plaintiff’s side if he concludes that the governors are imposing restrictions that, under well-thought-out standards such as “going too far,” violate the Constitution. https://bloom.bg/2ywzOIo In a statement that plainly makes DOJ an arm of the White House political agenda, Barr said,

“We have to give businesses more freedom to operate in a way that’s reasonably safe,” Barr said. “To the extent that governors don’t and impinge on either civil rights or on the national commerce — our common market that we have here — then we’ll have to address that.”

Asking the courts to address issues of this nature reminds me of that wonderful song, “In the Year 2525.” If you don’t remember it, go here: https://www.youtube.com/watch?v=izQB2-Kmiic

Barr, who lacks a medical degree, went further,

“You can’t just keep on feeding the patient chemotherapy and say well, we’re killing the cancer, because we were getting to the point where we’re killing the patient,” Barr said. “And now is the time that we have to start looking ahead and adjusting to more targeted therapies.”

Barr appears as unaware as Trump that we are not “killing the cancer.” Barr apparently lost his thinking capacity when he signed on as Trump’s consigliere and now believes that he knows everything about everything.

How will DOJ determine what state business operations are “reasonably safe” is undetermined. Trump’s own articulation of the standards states should follow for “reopening” has been as unstable as everything else the Trump administration does.  His standards didn’t last 24 hours, as pointed out by Washington Governor Jay Inslee who said Trump had gone “off the rails.”

Trump has managed to destabilize one of the strongest economies in the world while bringing death and misery to millions. Their blood is on his hands and it can’t be brushed or washed off with more self-adulatory platitudes. Much of this could have been avoided, but the president doesn’t read and he doesn’t listen. He thinks he already knows everything he needs to know. We are aware of this because it has told us so, repeatedly, and his behavior shows his corrupt incompetence every day. So, as Trump veers one way and then the other way, his followers do the same and the Ship of State rocks back and forth, teetering ever closer to the brink of complete disaster. All the gains against the virus, made at such huge human and economic costs, may disappear literally in a few days if the states follow the medical advice of the fool-in-chief and his ignoramus Attorney General.

We will know who is responsible even as Trump tries to blame someone or some many others. He is out of excuses. Not even Putin can cover up the catastrophe Trump has brought about. Start the countdown.

 

Mueller Report Part II – Trump Guilty of Obstruction of Justice – D

D. Why Weren’t Trump’s Enablers Indicted?

One of the great lingering mysteries about Mueller’s treatment of the obstruction issues is why he did not secure indictments of Trump’s enablers when the evidence clearly indicated their involvement in promoting the obstruction that Trump was executing. One prominent example of this is K.T. McFarland, who seemed to act as a go-between for Trump to direct Michael Flynn. It is implausible, I suggest, to believe that McFarland would not have revealed discussions with Flynn and Russian Ambassador Kislyak in meeting with Trump one hour after talking to Flynn about those discussions. II MR-25. As referenced earlier in these posts, Flynn had multiple memory failure about the information he may have discussed with other administration officials and Trump himself. The Russian response to the US sanctions was apparently a matter of considerable importance to Trump and his administration. Given Flynn’s admission of lying about his contacts with Kislyak, it is very hard to conclude that these memory failures were legitimate and that neither Trump nor his principal enablers were kept in the dark.

Beyond all that, McFarland followed Flynn’s directions to tell the Washington Post that no discussion of sanctions had occurred with Kislyak. Mueller specifically says, “McFarland made the call as Flynn had requested although she knew she was providing false information….” II MR-29. No charges were brought against McFarland for her role in this ruse. Why not?

Putting aside the further implausibility of Trump, after a lifetime of litigation and political commentary, denying that he understood the law, one thing is clear: as of January 26, 2017, Don McGahn, White House counsel, explained both 18 USC 1001 (crime to lie to federal government) and the Logan Act (crime for citizen of U.S. to communicate with a foreign government with intent to influence the foreign government in relation to disputes with the U.S. or to defeat the measures of the U.S.). II MR-31.

Rather than extending this already-long narrative about the multiple situations in which credible evidence shows Trump committed obstruction of justice and possibly other crimes, I want to raise some questions about the obstruction investigation that cry out for answers but are not explained in the Mueller Report.

One of the big ones relates to the visits by Acting Attorney General Sally Yates to the White House to explain that the Justice Department had evidence indicating Gen. Flynn had been compromised by his lies about interactions with Russian Ambassador Kislyak. When Yates returned to the White House on January 27, 2017, at the request of White House counsel Don McGahn, he asked to see the information DOJ had on Flynn’s contacts with Kislyak. This information was provided! II MR-33, n. 166. It was reviewed by John Eisenberg, legal advisor to the National Security Council. Why did the Acting AG think it was a good idea to provide the evidence to the White House in light of Trump’s history of denying Russian influence in the election and lying about events related to it? Why would Yates think that the White House would act against Flynn?

As it turned out, that was the same day that Trump invited FBI Director Comey to a private dinner at the White House, disregarding not for the first nor last time, the advice of White House counsel to avoid the appearance of political interference with law enforcement. II MR-33. That, of course, was the dinner at which Trump demanded “loyalty” from Comey. II MR-34. Both Press Secretary Sanders and counsel McGahn adopted Trump’s denials of the “loyalty” demand, thereby making themselves collaborators in what Mueller concluded, based on all the evidence, was a series of Trump lies about what transpired. II MR-35, 36 and 35, n. 183. Yet, neither Sanders nor McGahn was indicted. Why not?

In the end, Trump reluctantly fired Flynn while assuring him that he would be taken care of. II MR-38. The very next day Trump cleared a meeting room of witnesses and asked Comey to let Flynn go. II MR-40. Astoundingly, Jared Kushner, one of those dismissed, claimed he could not remember that Trump asked Comey to remain behind for a private meeting.  II MR-40, n. 233. Trump continued to assure Flynn of his kind regard for him into late March or early April. II MR-44.

Trump continued to lie about the Flynn situation, going so far as to claim he did not recall the “loyalty” meeting at all. II MR-44. Trump insiders Priebus & McGahn minced words regarding Trump’s attempts to call off Comey from the Flynn investigation. II MR-44, n. 270.

Mueller Report Part II – Trump Guilty of Obstruction of Justice-B, C

B. Governing Legal Standards

Little value can be gained by repeating Mueller’s recitation of the legal standards for judging whether criminal obstruction of justice has occurred. Of the three tests (obstructive acts, nexus to a pending or contemplated official proceeding and corrupt intent), the Report conclusively shows (1) multiple, repeated obstructive acts by Trump personally, in some of which he was aided and abetted by members of the White House staff and (2) clear nexus to multiple investigations, including some of the obstructive acts themselves.

Given the rhetorical and other linguistic hoops that Trump and his attorneys/advisors have been willing to jump through to defend him, it is worth nothing that Mueller made plain that “an improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority.” II MR-9. Equally, if not more, important, is Mueller’s determination that criminal obstruction can exist even if the attempt is unsuccessful. II MR-12. It also includes “witness tampering” and attempts to influence others not to cooperate with law enforcement. II MR-10, 11, 12.

C. Trump’s Refusal to Cooperate

Mueller’s treatment of the president is noteworthy and inexplicable in several ways, given the gravity of what was being investigated.

Mueller allowed Trump to dither away a year following the SCO’s request for a voluntary interview. II MR-13 Trump ultimately agreed to answer some written questions about “Russia-related topics” but refused to answer any questions regarding obstruction of justice or events occurring during the transition. Despite concluding that the SCO had both the authority and the legal justification for a grand jury subpoena of Trump, the SCO decided not to force the issue. The SCO reasoning behind this extraordinary decision was that a such a late stage in the investigation, a subpoena, and the inevitable legal dispute to follow, could result in a “substantial delay.” The SCO also believed it had separately found evidence sufficient to “understand relevant events and to make certain assessments” even without Trump’s personal testimony. II MR-13.

This decision is quite remarkable. The investigation was in a “late stage” because Mueller had allowed Trump to fend off a decision and play an obvious delaying game for an entire year. Moreover, the statement that the investigation was at a late stage was not explained in the Report. Was there an internally-imposed deadline on when the investigation had to conclude? If so, who imposed that deadline and when? If not, then the “late stage” rationalization is pure vapor and another example of kid-glove treatment for a person as to whom substantial evidence existed of multiple acts of obstruction of justice. The decision left the SCO to infer conclusions based on circumstantial evidence in some cases and, while this is normal and often unavoidable (II MR-13), there was no compelling reason for the SCO to allow itself to be maneuvered into this position. Moreover, the credibility factors that apply in assessing testimony, enumerated by Mueller in details (II MR-14) all would work against Trump.

The ultimate outcome of Mueller’s reticence was that the door was opened for Attorney General Barr to declare falsely that the case was not even close and that Trump was innocent of all the charges. This opportunity to undermine the credibility of the Mueller investigation traces directly back to the strategic mistake of allowing Trump to avoid testifying.

The bulk of Volume II of the Mueller Report is devoted to a lawyerly application of the three obstruction elements to the various discrete situations in which Trump or his enablers in the White House or elsewhere attempted, one way or another, to derail the Russia investigation and any evaluation of his acts of obstruction. Several major points stand out.

First, Trump lied about numerous events. For anyone following the arc of his presidency with a reasonably open mind, this comes as no surprise. One obvious lie, for example, was Trump’s claim that he had no business dealings in Russia. II MR-15. An interesting thing to note is that as regards WikiLeaks release of Clinton’s emails, there was evidence Trump was plugged into the information pipeline about what WikiLeaks was planning to do. II MR-18. That portion of the Report is heavily redacted, indicating on-going investigation into the WikiLeaks connections. Mueller’s refusal to discuss the Report publicly leaves us to wonder what this on-going matter is about, a subject that should be pursued in his upcoming public testimony before Congress.

Mueller also notes that the Campaign tried to distance itself from people who were publicly identified as connected to Russians. Vice President Pence joined in the denials of Russia connections. II MR 20-21. All these moves are equally, if not more, plausible as efforts to conceal the Russia connection by outwardly disassociating from campaign people whose connections became known and publicized. Mueller also cites the opinion of unnamed Trump advisors for the point that Trump genuinely believed the stories about Russia connections undermined the legitimacy of his electoral victory. II MR-23. No doubt the stories did have that effect because the Russian support for Trump plainly does de-legitimize his standing as a “duly elected” president.

The inclusion and apparent full crediting of these statements from Trump campaign insiders, without Trump himself being questioned, seems designed to buttress the idea that Trump genuinely believed the Russian interference was a false story designed to undermine his legitimacy. But even if true, these claims about what he was thinking are entirely self-serving and based on interested 3rd party statements not supported by his own testimony under examination.

Mueller Report Part II – Trump Guilty of Obstruction of Justice-A

In many ways, the obstruction of justice issue is the easiest to understand. But, among other factors, because the Attorney General, a Trump appointee, took it upon himself to assert publicly conclusions that the Mueller Report plainly did not reach, the question has been clouded in the public mind. Republican lackies for the president, and the President himself, continue to repeat the AG’s lies about the Report.

The following analysis will endeavor to tell the truth about the Mueller Report and to ask fair questions that remain in the Report’s wake and as a result of Mueller’s refusal to speak about the substance of the Report.

A. Declining to Decide – Why Was This Not Disclosed at the Outset?

The Report opens with a summary statement of five major-impact concepts that shaped the investigation and the Report as its outcome (the Report says there are only four, but a careful reading indicates five).

  1. The Office of Special Counsel (OSC) accepted the 2000 Justice Department legal conclusion that a sitting president could not be indicted – the Report refers to this as a limitation on “prosecutorial jurisdiction;” II MR 1.
  2. The OSC believed, independent of the Justice Department’s opinion about constitutional constraints, indictment of the sitting president would “place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” II MR 1.
  3. Investigation is nonetheless permitted during the presidential term, immunity does not follow the person after presidential service is over and, very importantly: “if individuals other than the President committed an obstruction offense, they may be prosecuted at this time.” II MR 1.
  4. The OSC decided not to apply an “approach that could potentially result in a judgment that the President committed crimes” because it would be unfair to make such findings when the opportunity for a speedy trial on the charges would not be possible. II MR 2
  5. Notwithstanding (4) above, if the OSC concluded that the president did not commit crimes, it would have so stated, but it could not so state based on the evidence developed; therefore, the Report neither accuses nor exonerates the president. II MR 2

These introductory words in the Report raise many questions, among them:

  1. If the SCO knew at the outset that it would not issue indictments, why was this not disclosed at the beginning?
  2. I will go into this in much more detail later, but given the overwhelming evidence that Trump engaged in multiple acts of obstruction, why was not a single person indicted from his staff, his cabinet and in the Republican Party that supported his every falsehood and deflection?
  3. How was the investigative approach altered to assure that a “judgment that the President committed crimes” was not the result?
  4. Why was the Special Counsel prepared, if the evidence supported it, to publish a conclusion that the president was innocent of obstruction while being unwilling/unable to publish a conclusion that crimes were committed even if the evidence overwhelmingly supported that judgment? In light of this, the worst that the president could have faced was a finding that the evidence did not exonerate him. Considering that the alternative, an indictment, was never a possibility, Trump easily could see the outcome as a victory. And he did. And it appears that, at least in that sense, this was inevitable. The deck was stacked in Trump’s favor from the beginning.
  5. Was Mueller’s “no finding of innocence” a kind of double wink, saying, in effect, “my hands were tied, but here’s the evidence for Congress to make the obvious conclusion of guilt and impeach? Maybe, but that seems pretty naïve considering that, until the 2018 mid-term elections, Republicans controlled both houses of Congress and still control the Senate.

I’m not going to go into the details here, but I studied the entire 2000 Justice Department opinion finding that indictment of a sitting president is unconstitutional and it is remarkable in its presumption of undemonstrated facts. It employs extreme language when discussing the presumed burden on the president of having to defend an indictment while in office and seems to be written more to justify a pre-determined result than to analyze the situation neutrally. Like the Mueller investigation itself, the 2000 OLC opinion, like the 1973 opinion that it confirms, seems to have a pre-ordained outcome. Considering that the current occupant of the White House spends little time actually doing presidential work, the overblown language of the OLC opinions rings hollow, turning, as it does, entirely on the presumed interference with presidential responsibilities of the obligation to defend criminal charges.

Turning to the matter at hand, the Mueller Report begins with a summary of the “issues and events” that were examined for obstruction evidence. It includes:

(1) Trump’s lies about his business interests in Russia;

(2) Michael Flynn’s lies about his contacts with Russian Ambassador Kislyak;

(3) Trump’s attempt to extract loyalty commitments and a pledge to leave Flynn alone from then FBI Director Comey;

(4) Trump’s attempt to direct his Deputy National Security Advisor (K.T. McFarland) to produce a letter falsely stating the president had not directed Flynn to discuss U.S. sanctions with Kislyak (why would Trump try to manufacture evidence that he was innocent of soliciting help from Russia if he were innocent?);

(5) Trump’s attempt to prevent Attorney General Jeff Sessions from recusing himself regarding the Russia investigation;

(6) Trump’s attempt to use U.S. intelligence officials and again the FBI Director to make public statements exonerating him from involvement in Russian election interference;

(7) Trump’s firing of FBI Director Comey for the expressed purpose of relieving himself of the Russia investigation;

(8) Trump’s manipulation of the Comey firing letter to make it appear the firing was based on DOJ recommendations when in fact Trump had decided to fire Comey before hearing from DO;

(9) Trump’s attempt to have White House counsel tell the Acting Attorney General that the Special Counsel had conflicts of interest and must be fired;

(10) Trump’s attempt to limit Special Counsel to investigating future election meddling;

(11) Trump’s false narrative about the origins of the Trump Tower meeting, including repeated false denials by his personal attorney that Trump had any role in Trump Jr’s statement about the meeting;

(12) Trump’s attempts to pressure Sessions into un-recusing regarding the Russia investigation;

(13) Trump’s attempts to have White House counsel McGahn falsely state that Trump had not ordered him to have the Special Counsel removed; and

(14) Trump’s attempt to influence testimony from Flynn, Manafort and Cohen, including involvement by Trump’s personal attorney.

The Report then went through a most curious “on the one hand, on the other hand,” regarding Trump’s possible motives for interfering in the SCO investigation, defined by the point at which Trump became aware that he was personally under investigation. Mueller referred to these as “overarching factual issues.” II MR-7. Mueller expressed concern that some of Trump’s actions were within his Article II authority and that his motives should be judged in light of the fact that the investigation found no underlying crime in the Russia investigation, even though such a finding was unnecessary and despite the fact that Trump acted, throughout the entire period, as if he were guilty. II MR-7. Here, Mueller seems to have forgotten his own admonition that the absence of discovered evidence of participation in Russian interference was not proof that no such participation occurred. Finally, Mueller cites the fact that some of Trump’s allegedly obstructive conduct took place in public, although, again, the harm done would be the same for public as for secretive obstructive acts. II MR-7.

My sense of this odd insertion into the Report is that Mueller is revealing a disinclination to hold the president to account when he can’t indict. He is, in effect, gilding the lily in favor of Trump. However, in next analyzing various defenses asserted by Trump’s attorneys, Mueller concludes, correctly I think, that the corrupt use of Article II powers is not immune conduct. Mueller notes that the requirement of corrupt intent is a high standard and “requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.” II MR-8.

In the end, Mueller reaffirms the “principle that no person is above the law.” II MR-8. The Report then also concludes that based on the evidence adduced, the SCO could not find that the president committed no obstruction of justice crime. Therefore, although forbidden by policy from stating the prosecutorial conclusion that crimes were committed, the Report “does not exonerate him.” II MR-8.

Despite the clarity of that conclusion, the sitting Attorney General and then Trump himself concluded that the Report did exonerate him. Those statements by the AG and the President were false. The AG also said that he had independently evaluated all the evidence underlying Mueller’s Report and that he, the AG, had concluded that there was no evidence to support a finding of criminal conduct by the president. All that need to said about that is it is extremely unlikely that the AG personally was able to review the entirety of the evidence gathered by Mueller’s team in the time the AG had with the draft report. In making these claims, the AG stepped out of his role as Attorney General of the United States and acted as if he were Trump’s personal attorney defending him against Mueller. Barr’s conclusions should be discounted completely since they conflict with the evidence disclosed in the Report that clearly and strongly demonstrates that Trump did commit obstruction of justice on multiple occasions.

Redactions of Mueller Report Must Be Coded

Anyone with experience in redacted documents knows that every document tells a story, or at least part of one. A skilled redactor working, for example, to assert attorney-client privilege can render the story told by a document meaningless and destroy its role in piecing together the larger story.

As the day for release of the redacted version of Mueller’s report draws nearer, the relevant Congressional committees should make clear that merely blacking out sections of the report will not be accepted. If there are legitimate reasons for redactions, they should be coded with a legend that makes clear the basis for each and every redaction. The known candidates appear to be: (1) grand jury material required by law to remain undisclosed, (2) material that might reveal counter-intelligence content or methods that would damage national security, and (3) executive privilege asserted by the president.

Deciphering a document involving so many possible redaction rights will be next to impossible unless each is specifically supported by one of those three considerations. And each redaction must be limited strictly to what is absolutely required by the relevant privilege. If, for example, a statement is sourced to an intelligence branch but the statement itself is not sensitive, then the statement should not be redacted; only the source of the statement may be redacted.

The need for this approach is particularly acute in the case of the Mueller report because we know that the Attorney General is disposed to protect Trump at virtually any cost. We also have reason for suspicion because of reports that members of the Mueller investigative team have expressed concerns that the AG’s “summary” of the report did not properly convey the content of evidence related to, among other things, collusion with Russia. The White House has, typically, flip flopped like a fish on the dock as to whether it accepted that the Mueller report should be publicly disclosed. Trump would be more than happy with disclosure if he were as sure as he claims that the report exonerates him. Finally, the matter at hand involves the some of the most serious of possible misconduct by the nation’s chief executive, including possible grounds for impeachment.

For all those reasons at least, the coding of all redactions is essential to preserving the public’s right to know as much as possible about whether the president of the United States colluded with Russia to win the 2016 election and the evidence indicating that he obstructed justice in multiple public and still undisclosed actions.

Media Incompetence Rampant

I well understand how difficult traditional news reporting is in the current times. I have just starting reading Breaking News: The Remaking of Journalism & Why It Matters Now to get the perspective of Alan Rusbridger, former editor of The Guardian during the most tumultuous period of digital disruption beginning in the late 1990s.

One consequence of the shift to electronic news distribution seems to have been a marked decline in the quality of the writing, reflecting in many cases a decline in the underlying thinking involved in learning, writing about and disseminating the “news.” It may be that the real cause of this change is the speed with which digital news output must be delivered in order to compete and be relevant in a landscape where there are literally dozens of outlets immediately available with versions, true or otherwise, of any given story. Another factor likely is that some stories are reported before they are “ripe,” in the sense that there has not been time enough to verify everything and the media entities figure they’ll just update the story when more information becomes available. Sometimes, the update never happens because everyone involved has moved on to other “breaking” stories. Everything is always “breaking” in this environment. “Breaking News” has become one of the most used and least meaningful headlines ever conceived. When every story is “breaking,” nothing is “breaking.”

Often the errors are subtle but still very important, particularly if they lend credence to versions of truth that are, in reality, questionable or outright false. A case in point, that inspired this post and is but one of many instances I’ve seen, is a recent article in Newsweek, https://bit.ly/2OP3KTY, entitled “Poll: More Than Half of Americans Say They Definitely Won’t Vote for Donald Trump in 2020 Despite Mueller Findings,” authored by Alexandra Hutzler on 3/28/19. I want to emphasize here that I am not picking on her; she is not alone in making the terrible mistake I am about to describe. Her article caught my attention because it seemed to contain some good news in the midst of what looked like, for a while, the Mueller debacle.

The thrust of the piece is that “fifty-three percent of voters say they will “definitely will not” cast their ballot for Trump in the 2020 election if he is the Republican Party’s nominee, according to a new poll by Quinnipiac University.” Fine; that’s great news from where I sit, though one would hope that by now the percentage of people who see through the criminal façade of the Trump administration would be must higher.

In any case, the article includes these lines:

“Despite special counsel Robert Mueller’s finding that there was no collusion between Donald Trump’s 2016 campaign and Russia, more than half of Americans say they definitely won’t be voting for the president in 2020 …. While the dark cloud of the Mueller investigation has been lifted from Trump’s presidency, the Quinnipiac survey showed that his Democratic rivals are gaining popularity in the 2020 race.” [emphasis added]

It is a fact that there is no evidence that Mueller made a finding of “no collusion” other than the “summary” declaration by the recently appointed Trump appointee Attorney General Barr who auditioned for the job through a gratuitous memo asserting, in essence, the total immunity of the president from accountability while in office and perhaps thereafter as well. No one other than Mueller and his team and various people in the Justice Department have seen the actual Mueller report. [I am assuming here that copies have not been surreptitiously provided to the White House, a proposition in which I have only limited confidence.]

Furthermore, we now have reports from inside the Mueller team expressing deep concern about the extent to which AG Barr has gamed the situation with overly generous (to Trump) interpretations of what the Mueller report actually says. There is simply no basis in reality for the media to take Barr’s version of the Mueller report as definitive or even reliable to any degree. To have done otherwise is at best sloppy journalism and at worst a form of pandering that raises serious questions about the trustworthiness of a news “institution” like Newsweek.

Perhaps Ms. Hutzler can be forgiven for a “rookie mistake,” as she graduated from college and was hired by Newsweek only last year. I’m happy to assume that with respect to her, but not with respect to the editors at Newsweek. This is one of the reasons for having editors, to ferret out implicit bias in stories. This mistake was not particularly subtle and, in the context of the immediate controversy surrounding the Barr gambit, it should have been caught and fixed before publication.

I emphasize again that this incident is just one of many that I have observed in reading the “news” about the Mueller report and the Barr flim-flam. Trump is, of course, delighted to see stories like this that support the “complete exoneration” theme he has been so desperate to reach for the past two years. But there is no exoneration, just more questions. All the more so as the Mueller investigators are now talking about the Barr maneuver. The least the mainstream media can do is avoid supporting a grossly false narrative until the evidence is in. This issue will be crucially important in the run-up to the 2020 reckoning when, it seems certain, there are going to be issues of further foreign interference, voter suppression and false claims of a “rigged election if I lose” by Trump.

Issues raised by Mueller/Barr/Rosenstein

The Republican Party’s simulacrum of the Keystone Kops has reached a new low point. You would have thought that with two years to plan for it, the “machine” that supports Donald Trump would have figured out a coherent way to issue the Mueller report without stirring up yet another firestorm of suspicion and uncertainty. But, no, they did it again.

We know now that about three weeks ago Mueller’s team met with Attorney General Barr and Deputy AG Rosenstein to, apparently, reveal the gist of the forthcoming report. And maybe more. Since the meeting was not revealed until after Mueller’s report was transmitted, we don’t know but, as with all meetings associated with Trump (Trump Tower, Putin, Kim Jong Un, etc.) the shroud of secrecy simply raises suspicions. It seems likely more was discussed than just a simple heads-up to what was coming because it took less than 48 hours for two more curious events to unfold: (1) a “high level official” at DOJ disclosed that Mueller’s report did not recommend or plan more indictments – Mueller was done; (2) Barr/Rosenstein produced a four-page letter in which they, after allegedly a 48-hour review of the report and supporting evidence, decided that Trump did not obstruct justice, despite Mueller’s own finding that the evidence on that issue did not exonerate the president.

Alarm bells began to ring immediately. It was no surprise that Barr, handpicked by Trump after Barr volunteered a long memo basically undermining the legitimacy of the Mueller investigation, would want to clear the president as fast as possible. Many people are saying that Barr’s mission from Day One on the AG job was to declare the president “not guilty,” one way or the other. Rosenstein had, we understand, already resigned but planned to hang around until Mueller reported, further raising suspicion that the fix was in. For his part, and in keeping with virtually everything he has done, Trump immediately declared himself completely exonerated by Mueller despite the plain words of Mueller’s report, quoted by Barr/Rosenstein, that the evidence did not exonerate him on obstruction of justice.

If you’ve been following the story, you’re familiar with most of the foregoing. Trump supporters and much of the media are, of course, declaring total victory and telling the rest of us to “move on.” To this I say “no so fast.” I list below four sources of thoughtful and professional analysis of why there are so many questions about the Mueller report and the Barr/Rosenstein scheme to rewrite it for public consumption. If you read them, you will see that these are not just partisan screeds but serious, sometimes legalistic, explorations of the situation which, in fairness to my side, deals with some of the most consequential issues in modern American history: did the president of the United States or people working with and for him conspire with a foreign power known to have interfered with the national election?

Given the overarching importance of these questions, it is not too much to ask that, given the more-than-odd way Mueller’s report has been rolled out, we pause for a bit to think deeply about what is going on here. Just as Republicans didn’t want a “rush to judgment,” despite constant demands to bring the investigation to a close, we don’t want and will not accept a rush to judgment now based on a partisan “summary” of what must be a profoundly complex and crucially important document.

Read the following as you will.

https://www.lawfareblog.com/four-principles-reading-mueller-report  

NOTE: the above link is to an article presciently written before the Mueller report was transmitted.

https://www.nytimes.com/2019/03/24/opinion/barr-mueller-report.html

http://nymag.com/intelligencer/2019/03/if-trump-obstructed-justice-he-cant-be-exonerated.html?utm_source=fb

https://www.lawfareblog.com/what-make-bill-barrs-letter

 

Semi-Final Thoughts on Mueller Report

Donald Trump and his enablers are jumping around like a bucking bronco that has just thrown its rider. This is to be expected. Supporters of the president are calling for revenge against those who questioned the president’s patriotism. Also to be expected from that crowd.The Trump gang does not, of course, care a whit about propriety as long as they win. Whether they have won remains to be seen, however.

I say that for several reasons, not least of which is the stunning revelation that Mueller’s team met with the Attorney General three weeks ago and disclosed that Mueller would make no finding on the obstruction of justice issue. Small wonder, then, that Barr/Rosenstein were able to absorb the entire Mueller report and provide their own crucial conclusion on obstruction (i.e., no obstruction) that Mueller had, on the evidence, declined to make.

Speaking of wonder, one must wonder now what else transpired during that meeting. Did Mueller’s people provide the AG with some or all of the evidence accumulated during the investigation? Apparently they did, because it would otherwise be impossible for Barr/Rosenstein to arrive at the conclusion of “no obstruction” as quickly as they did after Mueller’s report was “officially delivered” on Friday. This would also explain how an as yet unnamed “high official” at DOJ knew immediately after the report was delivered that there were no further indictments forthcoming.

If this is true, why was it done? I had originally thought it most likely that the Mueller report itself was just a summary, making the Barr/Rosenstein letter to Congress a summary of a summary, in which case Barr/Rosenstein wouldn’t have cared what the evidence was. Likely they don’t care anyway, but it is difficult to understand why Mueller would have provided a briefing to Barr/Rosenstein three weeks before releasing the report. Are we to believe as well that Barr/Rosenstein did not communicate the revelation to Trump before the DOJ letter was sent to Congress? It’s possible but if it were communicated in advance, we would have a hint as to why Trump was so suddenly down with the idea of pubic disclosure of the report.

All this is somewhat speculative, of course, but Mueller did the country no favors with these maneuvers. New questions arise at every turn. I confess that I decided early on not to watch the media circus of speculation and instant analysis that the Barr/Rosenstein letter inevitably created.

The ultimate question here – what role did Trump and his associates (family as well as hired hands) play in the documented Russian attempts to influence the 2016 election – will only be settled if and when the evidence on which Mueller relied is laid out for the public to digest. How much credence did Mueller give to Trump’s own statements and conduct in light of his refusal to be interviewed? It seems that Mueller discounted Trump’s own statements (Holt interview) about why he fired James Comey. If so, why did Mueller discount that evidence on both the collusion issue and the obstruction issue? Very importantly, how did Mueller square the Trump Tower meeting and Trump’s role in lying about its purpose with the conclusion that there was no collusion?

Was the no-collusion finding based on a lack of hard evidence such that Mueller, applying a strict beyond-a-reasonable doubt standard as a jury would do, felt no crime could be charged? To what extent did Mueller use the standard of probable cause in evaluating the evidence against Trump on collusion?

I could go on with this but it is pointless unless and until the full Mueller report and the evidence on which it was based are disclosed. Given the revelation of an undisclosed meeting between Mueller and DOJ leadership weeks ago at which Mueller’s findings were disclosed, such disclosure is essential if this sordid chapter of American history is to be put to rest.