Tag Archives: Barr

Donald Trump — A Gangster in the White House

I write to give you the gist of Jeffrey Toobin’s excellent True Crimes and Misdemeanors.

If there is anything to be disappointed about, it is that the book was published in early August of 2020 and thus does not address Trump’s (and other Republicans’) incitement of the January 6 attack and his second impeachment. But there is likely little that Toobin could add at this stage to what is known about that, given the stonewalling by most of Trump’s enablers and the apparent indifference of the Department of Justice to the entire matter.

That limitation aside, this book, like the exceptional Where Law Ends by Andrew Weissman, displays throughout the gift of clear exposition. A complex tale told well. And, like Weissman, Toobin pulls none of his punches in judging the behavior of most of the participants in the criminal enterprise that defined the Trump presidency. If there is anything to complain about in that regard, it’s Toobin’s obvious fascination with and adoration of the role, style, and grit of Speaker of the House Nancy Pelosi, perhaps the only major player to come out of the Trump crime spree as a genuine hero in Toobin’s eyes.

The book reads like a true crime novel, and it is all about crimes. Sad to say, it’s also not a novel. It’s true. All of it.

So, where to begin? The book opens with a summary analysis of Trump’s survival despite the findings of the Mueller Report. There is plenty of blame to go around but much of it rests at the feet of Mueller himself:

Mueller’s caution and reticence led him to fail at his two most important tasks.  Thanks to the clever actions (and strategic inaction) of Trump’s legal team, Mueller failed to obtain a meaningful interview with Trump himself. Even worse, Mueller convinced himself – wrongly – that he had to write a final report that was nearly incomprehensible to ordinary citizens in its legal conclusions. [True Crimes at 8]

Toobin ends the opening with the observation that,

everyone – friends as well as enemies – knew what [Trump] had done. It was obvious to any sentient observer that he did what he was accused of in the Mueller Report and in the articles of impeachment. [[True Crimes at 11]

The book then narrates the story of how that happened, beginning with James Comey’s betrayal of the country by his decision to ignore FBI policy about disclosing details of investigations at all, let alone on the literal eve of an election, with the result that Hillary Clinton’s candidacy was undermined at the last minute. The subsequent narrative will be familiar to everyone who was paying attention but the details, including many not previously revealed (to my knowledge) propel the story forward. Toobin concludes, “it appears likely, if not certain, that Comey cost Clinton the presidency.” [[True Crimes at 28] Indeed.

Toobin makes a compelling case that Robert Mueller was hyper-focused on bringing his investigation to a rapid close and thus failed to pursue “the single most important piece of evidence,” namely, the testimony of Donald Trump himself. But,

Mueller didn’t. He backed down. He couldn’t bring himself to launch a direct legal attack against the president of the United States. [True Crimes at 197]

Of all the mistakes made, and in truth every serious investigation of complex events will have some, the failure to force Trump’s testimonial hand stands out as the largest and the least understandable in light of Mueller’s assignment. Everyone – Mueller’s team, Trump’s lawyers – knew Trump would perjure himself if questioned under oath. He would have had extreme difficulty responding to skilled cross-examination of his conduct and motives. This is particularly important because Mueller believed that Trump’s “state of mind” was critical to bringing charges against him. For me, that will always remain a mystery. State of mind is simply never directly knowable, despite what we’ve seen in some phantasmagorical science fiction movies. It is inferable from conduct in context and circumstances, always.

Mueller made other mistakes. He should have squeezed Michael Cohen, Trump’s personal lawyer whom they had dead to rights on campaign finance violations and lying to Congress. Without ever asking whether his jurisdiction might include the Cohen issues, Mueller turned the case over to the Southern District of New York. Because those prosecutors, accomplished though they were, saw their role narrowly – Cohen was the target, not Trump – they never sought Trump’s tax returns or his financial records.

In a precursor to what was to come, William Barr, who had once been Mueller’s boss at DOJ, volunteered in June 2018 a 19-page memo to Deputy Attorney General Rod Rosenstein, who had appointed Mueller as Special Counsel, attacking the legitimacy of the Mueller investigation. Barr argued that the president could, for any reason or no reason (the legal standard for “at will” employment firing), fire the head of the FBI (Comey) and such action could not be attacked as obstruction of justice. Barr also objected on constitutional grounds to any attempt to force Trump to testify. [True Crimes at 234-235]

Thereafter, negotiations over Trump’s possible testimony were postponed while Rudy Giuliani was brought in to lead Trump’s legal defense team. At a “get-acquainted” meeting with Mueller’s team,

Giuliani wanted to nail down Mueller’s commitment that he would follow the [DOJ Office of Legal Counsel] policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236, italics mine]

When I read that, I almost gagged. Zebley was Mueller’s former Chief of Staff at the FBI and his top aide in the Trump investigation. Zebley was the subject of much critical assessment in Andrew Weissmann’s Where Law Ends, discussed in detail here: https://bit.ly/3Jn8ye3

I can think of no plausible reason for Mueller or his team to offer such a concession at that point, or likely at any point, in the investigation without getting something of extraordinary importance in return. But, no, the point was “volunteered” away. Astonishing and inexplicable in my opinion.

Many key players in the prolonged saga of Trump’s presidency come in for harsh criticism in Toobin’s accounting, including Judge T.S. Ellis, the judge in the first trial of Paul Manafort, Trump’s former campaign chair. Toobin notes the judge’s “partisanship and incompetence.” [True Crimes at 238] Strong words, indeed, but justified by the shocking events he narrates.

One beef I have with Toobin relates to the central issue in the Mueller investigation. Mueller concluded that there was no evidence proving that Trump or his campaign “colluded” with Russia. Toobin accepts this finding, with the qualification that Trump and his inner circle certainly wanted to collude. [True Crimes at 269] Given the failure to examine Trump personally under oath or to subpoena his taxes and financial records, Toobin’s total acceptance of Trump’s innocence on the collusion issue is, I think, unjustified. Even more so because Trump’s answers to the written questions ultimately submitted to him by Mueller included 36 instances of “don’t remember” by the man who repeatedly claimed to have a genius level mind and memory. [True Crimes at 273]

Toobin holds nothing back in stating that Rudy Giuliani’s involvement in the Ukraine extortion episode “must rank among the most disastrous pieces of advocacy in the history American lawyering.” [True Crimes at 292] No doubt, but Toobin also holds nothing back regarding the Mueller Report itself. He correctly concludes that the Report established that “Trump committed several acts of criminal obstruction of justice.” [True Crimes at 300] Using his gift of snark to full advantage, Toobin paraphrases the Mueller conclusions on obstruction:

We can investigate the President, but we can’t prosecute the President. If our investigation determined that he was in the clear, we’d say that – but we’re not saying that. Nor are we saying that he’s guilty of anything. So we’re not saying he’s guilty – but we’re not saying he’s innocent either. Basically. [True Crimes at 302]

Toobin characterizes the decision to avoid saying whether prosecution was warranted as a “gift to Trump.” [True Crimes at 302] Right again.

For several reasons, a special mention must be made of then- Attorney General William Barr’s issuance of a second letter, two days after he received the 448-page Mueller Report, interpreting the Report to say things it did not say and drawing conclusions the Report did not draw. Or, as Toobin put it, Barr put “a stake in Mueller.” [True Crimes at 307] And then, one of the highlights of the entire book for me,

Many on Mueller’s team, especially at the lower levels, were incandescent with fury at Barr.” [True Crimes at 308]

I don’t think will ever forget that phrase, “incandescent with fury” that so graphically describes how I and many others felt when Barr’s treachery sank in.

The book goes on to cover Trump’s Ukraine extortion scheme, the outrageous efforts of the White House and outside counsel to defend the indefensible, the refusal of Republican senators to hear the evidence through witnesses and their determination to protect Trump at any and all costs. Toobin is unsparing in his condemnation of these efforts, and all are worth reading.

The main thing that really surprised me in the book was an omission. I may have missed it, though I doubt it. There was no discussion of the fate of the full written report (I will not dignify it with the term “transcript,” since it was in no sense an actual transcript) on the Trump-Zelensky call that was widely reported to have been sequestered in a White House server to which access was extremely limited. I have seen no reports about whether the Biden administration has opened the server to discover its contents or whether the server was removed with by the outgoing administration to, again, protect Trump from further exposure of his crimes.

I also strongly disagree, as I have previously written, with the decision of the House managers (mainly the Speaker) to limit the impeachments to narrowly drawn issues, given the breadth and depth of Trump’s crimes in office. The House was not bound by the self-imposed limitations of the Mueller Report and, knowing, as the House did, that conviction of Trump was completely unlikely, they should have thrown the book at him, exposing for the watching world the range and importance of his crimes in office.

I also must record my fundamental disagreement with Toobin’s judgment about the proper role of the Senate in the impeachments. He says,

The senators were nothing more, and nothing less, than politicians were supposed to decide the president’s fate based just in part on the evidence at trial but also on their overall sense of what was best for the country.

That view is far too narrow and validates the refusal of the Republican Party to come to grips with the realities of Trump’s presidency. There remains, and history will confirm, no doubt that Donald Trump committed multiple crimes in office and that he committed crimes in attempting to stop the peaceful transfer of power to the Biden administration. To say that the Senate’s judgment was rightly based on a self-interested determination of “what was best for the country” makes a sham of the entire constitutional process. I do not believe the Founding Fathers, if they had been able to imagine a president like Trump, would have intended that the Senate could just say “it’s in our best interest to keep the leader of our party in power, so he’s ‘not guilty’ regardless of what he did.” I believe the Founding Fathers, whatever their other flaws, wanted and expected more when the extraordinary remedy of impeachment was brought against a president.

Toobin does not spend much time on Trump’s handling of the pandemic because that was not the primary topic of the book. But, as some of the Republican senators observed, the people would eventually render their judgment of Trump on election day in 2020. And they did. For reasons I still cannot grasp, Trump received more than 74 million votes, despite everything. But, fortunately for the republic and the world, Joe Biden won more than 81 million votes and a sufficient margin in the Electoral College to take the presidency. Then, Trump incited a coup to try to stop the transfer of power to the new president.

This was what Trump cared about the most. Toobin presciently notes,

Trump had no great passions on the issues, no policy agenda that he was determined to enact. For Trump, his presidency was more about him than what he could accomplish. For this reason, the only verdict that has ever mattered to Trump is the one rendered on Election Day.

Thus it was written and thus it was done.

You may recall Michael Cohen’s testimony before Congress in which he likened Trump to a mafia boss. While Cohen’s handling of Trump and his legal affairs was problematic, to say the least, it appears that he correctly identified the central idea of Trump’s personal code of conduct.

The central question facing us now is, I think, whether the current Attorney General, Merrick Garland, is just another Robert Mueller. As an earlier post has discussed, the statute of limitations has already run on one of Trump’s obstruction crimes. Garland has publicly stated he will follow the evidence and the law even if it leads to Trump. More lawyers have apparently been hired to work on Trump matters.

Meanwhile, time marches only in one direction. The country waits for action. Trump’s crimes, and those of his enablers in the White House and Congress, stretch well back into his presidency, with the capstone being his incitement of the attack on the Capitol on January 6, 2021, more than 15 months ago. The nation waits ….

The Fourth Reich — It’s Them or Us

Disclosure: Much of this post depends on information from the Bob Woodward- Robert Costa book, Peril. Woodward and I were friends in college and have had sporadic contact since then. I still consider him a friend, though we do not communicate regularly. Back in the day, a national magazine (not to be named) briefly suspected I might be Deep Throat. As everyone now knows, I was not Deep Throat. I never was.

This post is also inspired both by the column in the Washington Post by Margaret Sullivan [https://wapo.st/3v4LeMv] that asks the question why the “news” has largely ignored or downplayed the revelation that John Eastman, a Trump lawyer (and thus, legally, Trump himself), produced an outline for the steps to overturn the 2020 election and replace the real winner, Joe Biden, with Donald Trump.

The third inspiration is a line in Steven Pinker’s new book, Rationality:

Many facts, of course, are hurtful: the racial history of the United States, global warming, a cancer diagnosis, Donald Trump. Yet they are facts for all that, and we must know them, the better to deal with them.

So we must.

Since I began thinking deeply about this, we have also learned that Trump’s Department of Justice deliberately sat on its hands and did not brief Congress or others in the administration about what it apparently understood could be a day of violence against the government. https://bit.ly/3npJLON

We have also become aware that,

Republican leaders loyal to Trump are vying to control election administrations in key states in ways that could drastically distort the outcome of the presidential race in 2024. With the former president hinting strongly that he may stand again, his followers are busily manoeuvring themselves into critical positions of control across the US – from which they could launch a far more sophisticated attempt at an electoral coup than Trump’s effort to hang on to power in 2020.

… in recent months Trump has emerged as an unashamed champion of the insurrectionists, calling them “great people” and a “loving crowd”, and lamenting that they are now being “persecuted so unfairly”.

A poll released this week by the Public Religion Research Institute found that two-thirds of Republicans still believe the myth that Trump won. More chilling still, almost a third of Republicans agree with the contention that American patriots may have to resort to violence “in order to save our country”. [https://bit.ly/3ckbwlq]

As Donald Trump Jr has asserted, the Republican Party is now the Party of Trump. He owns it. His army of sycophants are as loyal to him as ever. Despite all the evidence to the contrary, his people believe the 2020 election was stolen, just as Trump continues to claim.

This is so despite Trump’s admitted bungling of the response to COVID that added significantly to the death toll, his incessant grifting and lying and treasonous acts of disloyalty to the United States, and, of course, his many “ordinary” crimes, such as giving secrets to Russia, extorting the president of Ukraine and a multitude of documented obstructions of justice, among many others. Evidence of cultish blindness to Trumpism is everywhere – mainstream media, Fox Propaganda, Twitter, Facebook, even LinkedIn and more.

Even with all that, the Eastman memo, unearthed in Woodward and Costa’s book, is shocking. As explained by Sullivan,

Written by Trump legal adviser John Eastman — a serious Establishment Type with Federalist Society cred and a law school deanship under his belt — it offered Mike Pence, then in his final days as vice president, a detailed plan to declare the 2020 election invalid and give the presidency to Trump.

In other words, how to run a coup to overturn the election in six easy steps.

Yet, Sullivan reports, the mainstream media largely ignored it at first. She rightly asks why this was not the multi-alarm firestorm – a presidential advisor casually informing him of the steps needed to undermine the outcome of a national election and claim the presidency that he had clearly lost.

The answer, it turns out, is as disturbing as the memo itself.

As reported by Sullivan, network executives thought the story unworthy because it was “crazy” and unsurprising. In effect, Trump has so normalized the idea of overthrowing the election that evidence of actual work to do so is not important enough to report. Another didn’t address it because “There’s no indication that Pence considered it seriously.” Others responded that there was much other news that seemed more important. What would be more important than an attempt to overthrow the government?

The normalization of the Trump-Republican attempt to subvert the Constitution and reinstall Trump as president, and de facto dictator, is being enabled by publications as venerable as the Wall Street Journal. The Journal published a letter from Trump on October 27. It did so without comment or any attempt to address the truth or falsity of his claims. The grotesque problems with the letter and the Journal’s decision to publish it are addressed in detail by Philip Bump in the Washington Post. https://wapo.st/3GTiYCg

The obvious and logical, and profoundly disturbing, conclusion is that WSJ supports Trump’s claims of election fraud and his belief that he was denied re-election by widespread vote fraud. Thus, the Wall Street Journal joins the campaign to undermine American democracy and replace it with a Republican autocracy led by Trump and his family.

At the same time, Trump is desperately fighting to prevent the release to the House committee investigating the January 6 insurrection/coup attempt of a large trove of documents that would reveal his role, and that of his key enablers, in the attack on the Capitol. https://nyti.ms/3wgXYAc His claims of executive privilege have been rejected by President Biden, but Trump maintains he can assert the privilege even though no longer in office. Trump’s claim of privilege fails on multiple grounds, not least of which is that most of the documents sought have nothing to do with this execution of the job of president – they are related to his personal political objective to remain in office despite the electoral outcome.

Thus, Trump continues to maintain his thoroughly debunked claims of election fraud while resisting efforts to uncover facts that might expose his role in trying to overthrow the federal government.

What else does the Woodward/Costa book contribute to our understanding of all this? A lot.

  • The chair of the Joint Chiefs, Mark Milley, after plenty of chances to observe Trump’s thinking and behavior as president, agreed with Speaker Pelosi’s observation that Trump was “crazy” and had been “crazy for a long time.” Peril at xxii. Colin Powell, former Chair of the Joint Chiefs described Trump as a “f*cking maniac.” Peril at 106.
  • Pelosi characterized the Oval Office under Trump as an “insane snake pit.”Peril at xxiii.
  • Referring to the white supremacists who marched in Charlottesville, and under pressure from then-Speaker Paul Ryan, Trump refused to criticize the marchers because “These people love me. These are my people. I can’t backstab the people who support me.” Peril at 8.
  • Trump was often unaware of his own actions. He did not know that the money for the border wall in the early 2018 spending bill was an amount he had approved. He finally agreed to sign the bill to prevent a government shutdown. Marc Short, Trump’s legislative advisor told Ryan this chaos was typical of “every day around here.” Peril at 9. Bill Barr, who was committed to run the Justice Department in Trump’s best interest to promote his re-election thought Trump’s big problem was his “pigheadedness and his blindness.” Peril at 71.
  • Trump failed to grasp the nature of the threat posed by COVID-19 and refused to accept information that conflicted with his view. Peril at 82.
  • Trump rejected advice of Gen. Milley and other senior advisors to rename military bases from Confederate traitors to Medal of Honor winners. Peril at 108-109.
  • Even as the U.S. pandemic continued to escalate (approaching 4.9 million cases and more than 160,000 deaths), Trump insisted that it was “disappearing. It’s going to disappear.” Peril at 113.
  • Trump tweeted that the “deep state” was interfering with the development of vaccines. When his own appointed head of the FDA tried to explain the process, Trump changed the subject. “the president had no idea how the FDA operated and had made no effort to find out.” Peril at 113-115.
  • Aware of his failing election campaign, Trump primed his followers for the possibility of defeat by repeatedly claiming that the only way he could lose was a rigged election. Peril at 131.
  • As soon as Trump’s defeat was reported, he announced from the White House that the election was a “fraud on the American public.” Peril at 133.
  • Even Michael Pompeo, one of Trump’s most loyal sycophants, told Gen. Milley that “The crazies are taking over,” referring to Giuliani, Sidney Powell, Michael Flynn and Mike Lindell, the key players on Trump’s legal defense team. Peril at 150.
  • On November 10, following Trump’s firing of the Secretary of Defense, Gina Haspel, the CIA Director, presciently predicted, “We are on the way to a right-wing coup.” Peril at 152.
  • Mark Meadows made repeated efforts to install a Trump super-loyalist into a leadership position at the FBI and, stymied by Barr, later at the CIA, stymied by Haspel. Peril at 154-156.
  • Trump acknowledged that Giuliani was “crazy” but claimed that “sane lawyers” would not represent him in attacking the election. Peril at 164. Trump’s AG Barr referred to Trump’s legal team as a “bunch of clowns.” Peril at 170. See also Peril at 180.
  • Trump’s team of incompetents had no plan to efficiently distribute COVID vaccines. Peril at 187.
  • Steve Bannon advised Trump to focus on January 6, the day the Electoral College votes would be certified by Congress, the last step to elect Joe Biden as President:

We’re going to bury Biden on January 6 …. If Republicans could cast enough of a shadow on Biden’s victory on January 6 … it would be hard for Biden to govern. Millions of Americans would consider him illegitimate. They would ignore him. They would dismiss him and wait for Trump to run again. “We are going to kill it in the crib. Kill the Biden presidency in the crib… [Peril at 207-208]

  • Trump directly threatened VP Pence if he refused to reject the Biden Electoral votes and hand the election to Trump. Peril at 229-230.

The above references are just a small taste of the astonishing revelations in Peril. Most of the rational people in the White House at the time of the election and its aftermath appeared to believe that Trump was mentally unstable, incapable of and uninterested in the complexities of governing and focused only on retaining power. There was palpable fear, even among some Republican leaders, that Trump was so unhinged and desperate that he might start a war or try to use the military to retain power. His distraction likely played a role in the continued spread of COVID and  his administration’s failure to respond appropriately.

These concerns, which continue in the wake of the January 6 insurrection that Trump inspired and encouraged, raise the gravest questions about the capacity of the American democratic republic, and the Constitution on which it is based, to survive the presidency of an incompetent psychopath like Trump.

Thus far, the only action against the insurrectionists has been to arrest just over 700 of the perpetrators out of what appeared to be several thousand involved in the assault. No charges have been leveled against anyone in Congress or the Trump administration in relation to the attempted coup. Trump continues to claim in every available forum, without any factual basis and in the face of more than 60 defeats in legal proceedings, that the election was stolen. His supporters in Congress continue to obstruct President Biden’s efforts to end the pandemic and restore the economic health of the country.

Republicans around the country continue to alter election rules, gerrymander districts and prepare to overturn the results of any election defeats they may experience in 2022 and 2024. The Doomsday Clock on American democracy is ticking down and, as far as can be told, more than a year after Joe Biden’s election, no meaningful actions to hold the real leaders of the January 6 coup attempt accountable has been made.

Watch this video, produced by Don Winslow Films, listing 19 critical questions central to the January 6 insurrection, that remain unaddressed as far as anyone can tell.  https://www.youtube.com/watch?v=z2cG1PIhLIA

We are told we must be patient, that building a solid criminal case against a former president requires time. To a lesser extent the same “principle” is offered regarding the members of Congress who actively promoted the insurrection and have worked very hard to sustain a ludicrous phantasmagorical version of what occurred on January 6.

I understand the need for careful preparation, but in a little over a month we will have reached the one-year anniversary of the attack on Congress. I ask what evidence of conspiracy, perjury, sedition and obstruction of justice, to mention just a few of Trump and team’s major crimes, is missing? Has a grand jury been impaneled?

As Don Winslow’s video compellingly asks, why have so many key witnesses not been subpoenaed by the House Select Committee and placed under oath? What kind of investigation is this? Are we going to get another version of the Mueller Report that says we can’t find enough evidence to indict but neither do we exonerate? How could such a conclusion be reached without a full investigation? Mueller failed to fully investigate, as revealed in Andrew Weissmann’s book, discussed at length in an earlier post in this blog, “Lawless White House” – the Mueller Report – “Oh! What A Tangled Web We Weave …” https://bit.ly/32GUDA1

Trump is infamous for using legal processes to stall and delay investigations and actions against his multi-various criminal activities and civil offenses. If the government takes much longer, there will be no chance for meaningful action while Republicans scheme to undermine the democratic process whose survival is central to a full accounting from Trump and his enablers. I am encouraged, not much but more than zero, by the fact that the Biden administration has not announced that it is closing any investigations but that is not sufficient.

Winter for American democracy is theatening and once it is here, there may be no chance for a renewal.

 

 

 

“Lawless White House” – the Mueller Report – “Oh! What A Tangled Web We Weave …”

The rest of line, you likely know, is “when first we practice to deceive.” Originally published in 1808 but completely relevant to the politics of today. The quote of a “lawless White House” is in the extraordinary book I’m about to describe.

We’ll never know the whole truth about Russian interference in the 2016 election or, most likely, many of the other crimes committed by Donald Trump and his White House/Congressional enablers. Most of the relevant documents have likely been destroyed or hidden away from the prying eyes of investigators armed with subpoenas and, one may wish, indictments. Trump and his enablers have shown they have no regard for law and will do anything to avoid being held accountable.

A bitter pill to swallow. There is, however, still much we don’t know that can be discovered despite the fact that the relevant rules favor the criminals and traitors – see, e.g., the accused is innocent until proven guilty, proceedings of the grand jury are secret, non-disclosure agreements are enforceable, attorney-client privilege and executive privilege, to name just a few.

In 2019 I read every word of and wrote extensively about the Mueller Report, with emphasis on what seemed to me the glaring shortcomings of the investigation and the conclusions reached. The links to those posts are set out at the end of this post for those who care to look back. Little did I know what was really going on. I had only the report itself and various news reports as sources.

But now we have Andrew Weissmann’s remarkable book, Where Law Ends—Inside the Mueller Investigation, published in Sept. 2020, but which I have just discovered and read compulsively. It is a barn burner in the truest sense and should be read by everyone who is genuinely interested in saving our democracy. When you are done, you will understand much better the frailties of our constitutional system and the means by which a putative dictator can undermine the separation of powers and subvert the rights we have taken for granted.

You know you’re in for a wild ride in the Introduction, where Weissmann describes AG William Barr’s 4-page letter purporting to explain and elaborate on the Mueller Report as “so many deceptions,” “deliberately worded obfuscations,” and “unbridled lies.” Weissman, after a long career in the FBI under Mueller, was put in charge of the “M Team” for the Special Counsel Investigation. The M Team was the group of lawyers, FBI agents and others who would determine what crimes had been committed, if any (obligatory qualification there) by Paul Manafort, who for a time was Donald Trump’s campaign manager, among many other roles. The other teams were the “R” (to investigate Russian interference in the 2016 election and possible collusion by the Trump campaign with Russian bad actors) and the “600” team (to determine whether Trump had obstructed justice in violation of federal law).

Weissmann thus was in the center of the investigation, privy to most of the challenges and involved in most of the discussion of strategy and tactics as Trump’s determination to undermine the investigation at all costs became apparent.

I am only going to touch on some highlights, that I hope will induce everyone reading this to acquire and digest Weissmann’s book. A full summary would far exceed the bounds of a reasonable blog post and give away too much of the astonishing revelations.

With books like this one, there are often questions about the content and timing of publication. The Twitterverse and other commenters reacted as expected, with some questioning “why wait so long?” “why not reveal everything, including the secret grand jury evidence?” and so on. My response to those critics is (1) pre-publication review was essential to the book’s publication at any time, (2) the book is meticulously fact-oriented and replete with legal analysis (presented mainly in laymen’s’ terms) – something of this nature could not be rushed, and (3) Weissmann gained nothing personally or professionally from delay – he was and is committed to the preservation of law and would have been foolish to violate the confidentiality of grand jury proceedings.

It is also telling that, atypically of exposé books, Weissmann does not make himself the unsung hero of the tale. Quite the contrary, he admits to more than one serious error of judgment in dealing with Mueller and Mueller’s uptight top deputy (Aaron Zebley, Mueller’s former Chief of Staff at the FBI) who was brought in from Mueller’s law firm even before Weissmann was hired. Weissmann takes great pains to explain the competing considerations and why he made particular decisions, while also, appropriately in my view, assigning serious errors to people who deserved the rebukes in light of everything known at the time. Anyone who has been involved in any kind of serious investigation (I have) can surely appreciate the difficult choices confronting the leadership of the investigative teams. Nevertheless, rigid thinking and timidity in the face of threats from the subjects of the investigation led to catastrophic errors.

More important, this is a true inside account of the investigation. Weissmann, while in thrall of Mueller before, during and after the investigation/report, is unrelenting in exposing the investigation’s problems and mistakes, laying out the consequences in stark terms. Examples abound throughout the 346 pages. It reads like a good murder mystery, but you know from page one that it is real, not fiction, and all the more chilling for that.

Weissmann flatly accuses the Trump administration of unlawfully interfering with the DOJ Criminal Division in Foreign Corrupt Practices Act cases. Trump had always railed against the FCPA because it interfered with his ability to bribe foreign officials to get development rights he was after overseas.

James Comey comes in for particularly harsh assessment regarding his decision, shortly before the 2016 election, to disclose the discovery of additional emails on the computer of Anthony Weiner who was (inexplicably, to me) the husband of Huma Abedin, a senior aide to Hillary Clinton. Weissmann sets out the multiple options Comey had in addition to the two he claimed were the only ones open to him. Weissmann at 54.

Weissmann also endorses the critique of Comey by Deputy AG Rosenstein while noting that Rosenstein was effectively covering for Trump’s desire to remove Comey because Comey refused to drop the investigation of General Michael Flynn. Weissmann notes that Trump’s statement on the Comey firing was drafted by Trump with Stephen Miller before Rosenstein became aware of Trump’s plan to fire Comey. Thus, “The White House’s effort to pass off the Comey firing as Rosenstein’s idea was a fabrication.” Weissmann at 60. Only one of many, it would turn out.

The White House also withheld from the Special Counsel an important document pertinent to the Russian interference in 2016. Trump’s lack of concern or interest about it made for Obstruction of Justice No. 11 in the pantheon of obstruction uncovered by Mueller, or would have been uncovered. If Mueller had insisted that Trump testify under oath.  Weissmann at 61. In any case, the firing of Comey is explained and shown to be a clear case of obstruction of justice by Trump. Weissman at 64.

An entire chapter of the book is devoted to the infamous Trump Tower meeting, that was the subject of withheld information (Jared Kushner) and lies (Papadopoulos). Weismann at 86. Among the conclusions: “it was clear that the highest levels of the Russian government were trying to help Trump and damage his opponent” and “the Trump campaign was extremely receptive to this help.” Weissmann at 88.

In a second chapter entitled “The Trump Tower Cover-Up,” Weissmann notes that neither Donald Trump nor Don Jr. ever agreed to meet with the investigators voluntarily and neither was brought before the grand jury. And the parties coordinated their versions of events to, among other things, support Don Jr’s claim that he had never meet any Russian officials. Weissmann at 103. Weissmann concluded that Trump himself lied about the Trump Tower meeting, that lying was in effect a basic Trump strategy for solving problems and that he seemed to believe there were never any consequences to his doing so. Weissmann at 107. History, so far, shows that Trump’s belief in his invulnerability is justified.

That episode reveals one of the serious points of disagreement within the investigative team. Team 600 concluded that it had found no evidence, through a witness or documents, that proved the president’s motive in lying was to deceive Congress and thus he could not be found to have engaged in criminal obstruction of justice. Weissmann calls this conclusion “timorous,” which in retrospect seems an understatement at best. Weismann at 108. At 110, Weissman concludes, more precisely, that the Trump Tower meeting was “damning.”

This episode, however, was prescient for the future of the investigation as Mueller and Zebley adopted a narrow and rigid view of the mission of the Special Counsel, what the evidence showed and what was risked by being too aggressive in the investigation. See, e.g., Weissmann at 128-129. Eventually, for a time at least, Mueller realized how impactful Russian interference could be and authorized a more full-throated investigation into all aspects of Russian interference, Weissmann at 132, but the ongoing reality was that Mueller was influenced far too much by Trump’s shenanigans throughout the investigation and creation of the final report.

That observation brings me to the most important points about this book. I may have more to say about the details in a future post, but it is vital to understand the overall process and how Mueller’s and Zebley’s conservatism led to a flawed process and failed report.

The harsh and ugly truth is that the presidency, in the wrong hands, gave the subject of the investigation an unequaled power to influence the behavior of witnesses, principally in this case Paul Manafort, but others as well. One such influence is the pardon power that Trump unsubtly dangled to assure witnesses that if they remained loyal to him, even to the extent of repeatedly lying to the investigators, they would be spared any consequences. And we know that this was a situation where loyalty to Trump was indeed rewarded with pardons or commuted sentences– for Manafort, for Flynn, for Stone, for Bannon, for Papadopoulos and others. https://bit.ly/3hfx7O3

The other major influence was Trump’s ability to fire the Special Counsel and thus end the investigation. If Mueller’s fears about this were based on the idea that the Republican Party (his party) would not hold Trump to account, he would have been right to be concerned. Nevertheless, Weissmann argues, persuasively, that the impact of this concern unduly colored many of the most important judgments made in the ultimate report.

Whether or not our skepticism is warranted, the book makes very clear that these two elements: Trump’s ability to pardon wrongdoers and his power to fire the Special Counsel, when used to serve Trump’s personal interest, are matters of the most profound concern for the future of our governance.

One of the most remarkable effects of this, when combined with the relentless attacks from the right-wing “media,” was that while Ivanka Trump, for example, almost certainly had relevant information about, for example, the Trump Tower meeting, the decision was that Ivanka was not to be interviewed. Weissmann at 117-118. Don Jr similarly could have been subpoenaed after refusing to be interviewed, but this was not done either. Weissman at 118. Astonishing. Fear of being fired also impacted decisions regarding how broadly to look into Trump’s finances in search of indirect Russian contributions (the Deutsche Bank subpoenas, for example, still not fully fleshed out). Weissmann at 147-148.

It is clear that Trump’s willingness to, directly and indirectly, threaten the Special Counsel with termination had major effects on the scope and aggression of the investigation. That reality explains many of the obvious and serious defects in Mueller’s final report discussed in detail in my earlier blog posts and exposed by Weissmann’s inside knowledge.

Weissmann demonstrates a clear-eyed understanding of the extent of Donald Trump’s corruption: “One cannot plausibly deny that Trump was seeking foreign assistance from Russia and was open to accepting it if offered.” Weissmann at 126, 135, 140. He labels Trump a continuing “counterintelligence threat.” As long as he remains free and unindicted for his multiple crimes in office, Trump remains such a threat despite his lazy indifference to national security briefings that have been a daily staple in the lives of presidents for a very long time. He knows a lot that would be valuable to our adversaries. Continuing through to the end of his presidency, Trump never acted against the Russian interference that was proven to continue into the 2020 campaigns. Weissmann at 218-219, 222. The book lays out a stark and disturbing list of failures to confront the Russian interference threat. Weissmann at 224.

Similarly, Weissmann describes how Rick Gates was aggressively pressured by Paul Manafort and unnamed others to refuse cooperation to the investigation. Weissmann at 206-208. The prospect of a pardon from Trump was part of the “package” of sweeteners to keep Gates quiet. Ultimately, the pressure failed to silence Gates, but just barely.

One particularly interesting story involved Manafort ginning up attacks from Fox’s Sean Hannity against the Special Counsel investigation in violation of the trial judge’s bail orders that had permitted Manafort to remain free pending trial. The investigators correlated Manafort’s texts to Hannity with on-air smears of Mueller and staff. Aaron Zebley, however, prevented the submission of the texts to the court, saying, “they are too explosive.” Weissmann at 209.

Much of the story of the Mueller investigation reads like the script of a television drama series. Typically, parts of such plots are so over the top, so corrupt and malign that they strain credulity. Trump, however, must have studied those shows because his conduct with people like White House counsel McGahn showed a willingness to flout the law at will. Trump never believed, and likely still does not believe, that he can be held accountable. He genuinely believes he is above the law and able, as he said, “to do whatever I want.”

Skipping much material that I may cover in a future post, Weissmann’s narrative ends full circle, reviewing then-Attorney General Barr’s letter purporting to summarize the Mueller Report, but which in fact was a green light to unleash Trump’s corruption in full and unrestrained flower. It led directly to the Ukraine extortion attempt that led to Trump’s first impeachment. Weissmann at 331. And to Giuliani, Nunes, and the political forgiveness of Roger Stone and Michael Flynn, that Weissmann refers to as the “gaggle of presidential defenders and conspirators.” At 332.

Weissmann surgically dissects Barr’s falsities, noting, for example, that Barr’s claim that the president had “full cooperated” with the investigation “”is not just untrue, it’s astonishingly far from the truth.” Weissmann at 333. The same for Barr’s claim that Trump had not asserted presidential privilege to withhold information.  And the same for Barr’s assertion that Trump had formed a “sincere belief” that his presidency was being undermined by the investigation, a claim whose provenance was never explained and in any case was irrelevant to the question whether Trump had obstructed justice.  Weissmann rips Barr’s claim that the Russian active measures were directed at “social discord” rather than helping Trump defeat Hillary Clinton. Lie after lie after lie.

Weissman concludes with some recommendations for ways to strengthen the Special Counsel regulations but, more importantly, disputes compellingly the DOJ policy, adhered to strictly by Mueller, that if the president could not be indicted, it was improper to accuse him of wrongdoing. Weissman at 342. A sitting president can indeed defend himself if he chooses to do so. The policy makes no sense. I addressed the no-indictment policy in a prior post on this blog.

Finally, and perhaps most important of all, Weissman notes that the presidential pardon power in the Constitution should not be used to protect the president personally by, in effect, covering up the crimes of others who would, absent the pardon power, have incriminating information on the sitting president. He argues that it should be unconstitutional for a president to use the pardon power to protect himself, independent of whether that power could be used to directly pardon himself. Weissmann at 344. That seems exactly right to me, although I have some doubts that the “conservative” majority now on the Supreme Court wouldn’t just take the simple-minded approach that the words conferring the pardon authority contain no limitations and therefore are absolute. That is a view that would further cement the anti-Constitutional idea of the imperial presidency that Trump tried to impose on the country. We can see in the events of January 6, among many other examples, where that leads.

*********

Links to Posts re Mueller Investigation:

Mueller’s Indictment of Russia Hackers   https://bit.ly/3gQe7Xb    July 13, 2018

Mueller’s Indictment of Russia Hackers – Updated  https:://bit.ly/3h33lvl July 14, 2018

The Mueller Report – Where From Here? https://bit.ly/3gZQElm   March 24, 2019

Semi-Final Thoughts on Mueller Report https://bit.ly/3j8gVRh  March 25, 2019

Issues raised by Mueller/Barr/Rosenstein https://bit.ly/3wSPjni March 27, 2019

Redactions of Mueller Report Must Be Coded  https://bit.ly/3j8nX8q April 6, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA https://bit.ly/3jeBNGr  July 9, 2019

MUELLER REPORT PART I — TRUMP CANOODLING WITH RUSSIA – A https://bit.ly/3dagOkk  July 10, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – B https://bit.ly/3zNATqe  July 10, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – C  https://bit.ly/3xTRsPI  July 11, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – D  https://bit.ly/3vUR1D9  July 11, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – E https://bit.ly/2U46bIX  July 11, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-A   https://bit.ly/3gQAXOu   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-B, C  https://bit.ly/3A5gf5l   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice – D    https://bit.ly/3wVcw8l   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-E   https://bit.ly/3gRyKlW  July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice – F   https://bit.ly/3gRHR61  July 23, 2019

Court Eviscerates Barr Attempt to Whitewash Mueller Report

Federal District Court Judge Amy Berman Jackson yesterday issued a 35-page opinion (exclusive of attachments) rejecting the claims of the Department of Justice that it can withhold  a memorandum behind then-Attorney General Barr’s attempt to whitewash the Mueller Report.  Citizens For Responsibility and Ethics in Washington v. U.S. Department Of Justice,  Civil Action No. 19-1552 (DC DC May3, 2021). [Note: bolding of text is mine]

You may recall that, as brilliantly reported by Judge Jackson, and at the risk of giving away the conclusion,

 On Friday, March 22, 2019, Special Counsel Robert S. Mueller, III delivered his Report of the Investigation into Russian Interference in the 2016 Presidential Election to the then-Attorney General of the United States, William P. Barr.

But the Attorney General did not share it with anyone else.

Instead, before the weekend was over, he sent a letter to congressional leaders purporting to “summarize the principal conclusions” set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume I – which discusses the Russian government’s interference in the election and any links or coordination with the Trump campaign – and the almost 200 equally detailed pages of Volume II – which concerns acts taken by then- President Trump in connection with the investigation – into less than four pages. The letter asserted that the Special Counsel “did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction,” and it went on to announce the Attorney General’s own opinion that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

The President then declared himself to have been fully exonerated.

The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball.

When, almost a month later, Barr presented the Mueller Report to Congress, “He asserted that he and the Deputy Attorney General reached the conclusion he had announced in the March 24 letter “in consultation with the Office of Legal Counsel and other Department lawyers.” CREW immediately filed Freedom of Information Act requests for any documents related to those consultations. Predictably, DOJ resisted, citing exemptions from disclosure based on “deliberative process” and “attorney-client privilege.”

At issue then before the Court were two memoranda to the Attorney General. The DOJ justification for withholding the first one, the Judge noted, was poor, but the Judge conducted an in camera [private, in chambers] review of the document and gave DOJ a helping hand:

there was a particular, immediate decision under review to which the document pertained, that it also addressed another specific issue that was likely to arise as a consequence of the determination made with respect to the first, and that the entire memorandum was deliberative with respect to those decisions.

Judge Berman therefore held that document need not be disclosed to CREW.

The other document, however, was another cup of joe entirely. It was dated just two days after Mueller gave Barr the report and “specifically addresses the subject matter of the letter transmitted to Congress.” Most of the document is redacted in the Judge’s opinion but she also conducted, over DOJ’s strenuous objections, an in camerareview of that document.

Noting first CREW’s objections to the timeline represented by DOJ attorneys:

DOJ’s . . . arguments rest on the demonstrably false proposition that the memo was submitted to the Attorney General to assist him in making a legitimate decision on whether to initiate or decline prosecution of the President for obstructing justice . . . . [H]owever, the Special Counsel already had made final prosecutorial judgments and the time for the Attorney General to challenge those judgments had passed. Whatever the contents of the March 24, 2019 OLC memo, it was not part of a deliberation about whether or not to prosecute the President….

The absence of a pending decision for the Attorney General to make necessarily means the memo did not make a recommendation or express an opinion on a legitimate legal or policy matter. Instead, it was part of a larger campaign initiated by Attorney General Barr to undermine the Special Counsel’s report and rehabilitate the President . . . .”

The Judge concluded:

the redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all. In other words, the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.

In a footnote, most of which is redacted, the Judge noted, “DOJ made a strategic decision to pretend as if the first portion of the memorandum was not there.” Ooof.

Similarly, Judge Jackson later observed,

the in camera review of the document, which DOJ strongly resisted …. raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment

and,

summary judgment may be granted on the basis of agency affidavits in FOIA cases, when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” But here, we have both.

Noting a previous court opinion (the EPIC case) that found,

The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report – a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.

Judge Jackson found,

the [DOJ] affidavits are so inconsistent with evidence in the record, they are not worthy of credence.

and,

the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.

and,

A close review of the communications reveals that the March 24 letter to Congress describing the Special Counsel’s report, which assesses the strength of an obstruction-of-justice case, and the “predecisional” March 24 memorandum advising the Attorney General that [redacted text] the evidence does not support a prosecution, are being written by the very same people at the very same time.

As to the claim of attorney-client privilege, Judge Jackson was equally incisive and for similar reasons:

… since the memorandum was being written at the same time and by the same people who were drafting the Attorney General’s letter to Congress setting forth his views on the basis for a prosecution, and the record reflects that the priority was to get the letter completed first one simply cannot credit the declarant’s statement that the Attorney General made the “decision” he announced based on the advice the memo contains.

Finally,

The Court emphasizes that its decision turns upon the application of well-settled legal principles to a unique set of circumstances that include the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel’s report and the Attorney General’s summary.

These devastating (for the DOJ attorneys) findings confirm the suspicions that I and many other expressed at the time that the fix was in at the Barr Justice Department and that Barr was acting more as personal counsel to Trump than doing his job as Attorney General of the United States.

Judge Jackson gave DOJ until May 17 to move for a stay pending appeal, but it is unlikely that AG Merrick Garland is going to do anything to resist the force of Judge Jackson’s definitive analysis. Stay tuned. The release of an unredacted version of the Judge’s opinion will be an explosive eye-opener about the extent of corruption in the Trump-Barr Justice Department.

 

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.