Tag Archives: Giuliani

Trump Finally Tells the Truth

According to fact-checkers at multiple credible sources, Donald Trump has set a world record for lies, deflections, mis-directions and related phantasmagorical utterances since he started his run for president and during his time in office. Mercifully, his time in office is about to end. Yet, in the midst of overt attempts to undermine the election, Trump has, at long last, told the truth about one thing.

During a roughly hour-long call by Trump, his Chief of Staff Mark Meadows, some of his lawyers, including Cleta Mitchell (a recent appearance) with Brad Raffensperger, the Georgia Secretary of State, and his attorneys, Trump in an endless stream of world-class whoppers, said on at least two occasions: “what a schmuck I was.”

Beyond that small victory for humanity, the rest of the call is almost beyond comprehension. I listened to the entire tape. What follows is my approximate “transcript” of the call, which, like the attack on Pearl Harbor, will live in infamy. It’s a bit herky-jerky but that reflects the nature of the “conversation.”

Throughout the call, Trump insists that “data” such as the size of his rallies in Georgia and the opinions of Republican governors from surrounding states prove beyond doubt that he won the election in Georgia by “hundreds of thousands” of votes, a “half million votes,” and 400,000 votes in his final plea for relief. Trump’s concept of truth is thus, essentially, that everyone knows if you have big rallies, you win the election. Also, if other politicians say, as Trump claims, ”there is no way” he lost Georgia, then, of course and obviously, he didn’t lose Georgia — he won it by huge margins.

On the rare occasions when they could get a word in, the representatives of Georgia contradicted every claim Trump made. The claims were the usual, most of which have been asserted in court cases that were thrown out but Trump claims the courts are against him so that doesn’t count. When Cleta Mitchell tried to chime into the conversation, Trump mostly just talked over her and said that whatever she was saying wasn’t important, because he only needed 11,780 votes to change the result and while he had “hundreds of thousands” more than he needed, he wasn’t really interested in going into all that as long as the GA officials “found” the 11, 780 he needed to be declared the winner (despite the fact that the vote count in Biden’s favor has been certified and confirmed in the Electoral College). Trump made clear he will never give up.

Trump has a very long list of “wrongs” perpetrated by the Georgia vote counters, including (1) video that the GA folks noted had been manipulated to show false results. The grievances also (2) include drop boxes that were mishandled, (3) dead people by the thousands who somehow voted, (4) “fake ballots” that were voted, (5) ballots that were shredded and are being shredded right now, (6) provisional ballots given to voters who were turned away because they allegedly had already voted but then their provisional votes weren’t counted, (7) people who moved out of state but still voted, (8) corrupt voting machines, (9) machines being removed, (10) parts of machines being removed ….

All of that either has been or will be “certified” in the near future by unnamed “experts” in Trump’s employ.

And it’s not just Georgia: “other states will be flipping to us shortly.” Some 200,000 more people voted in Pennsylvania than people voting. [That’s what I heard him say. I am not making this up]. In Michigan a “tremendous number of dead people voted.­­­­­” [These statements imply that Trump has reached out to Republican officials in other states he lost to urge them to somehow recount the votes and award him the victory]

The Georgia folks, trying very hard to maintain their composure and to be respectful to their Republican president asking them to violate the Constitution, federal law and Georgia law, noted that they simply did not agree with Trump’s claim that he won the vote in Georgia and that they had gone over his points one-by-one with the state legislature and Republican congressmen for hours.

Trump was having none of that, insisting that it was simply “not possible” he lost Georgia and that “they dropped a lot of votes in there at night.”

The Georgia people repeated that “the data you have is wrong.” “Only two dead people voted.” Cleta Mitchell, one of Trump’s lawyers, referred to a group of people with the same names as people who died but claimed they didn’t have the records they needed. Trump wasn’t interested in hearing from his lawyer; he interjected that “they stuffed the ballot boxes like nobody has ever seen before.”

The Georgia people noted, as politely as possible, that the video produced by Rudy Giuliani  to show that ballots were counted three times was “spliced and diced “by Giuliani to give a false impression of what actually occurred, that audits had been conducted and there was no evidence of ballots being input three times. When it was noted that during an absence of the vote counters, law enforcement people were present, Trump declared those people were either “incompetent or dishonest.”

Trump launched a personal attack on Stacey Abrams. Then he made the “give away” claim:  “we’ll find hundreds of thousands if you let us do it.”  More ranting followed: claims of many unsigned ballots and many forgeries in Fulton County. They’re “totally corrupt. They’re laughing at you. They cheated like nobody has ever cheated before. They are shredding ballots. The ballots are corrupt.”

Trump then asserted that there were crimes being committed and that the Georgia officials were not reporting it. “That’s a criminal offense. That’s a big risk to you and your lawyers. They’re moving machines and you’re letting them do it.” [It is a good measure of Trump’s desperation that, needing the complicity of the Georgia officials, he chose to accuse and threaten them].

Trump said they have “thousands of people who will testify they were denied right to vote because they were told they had already voted.” Trump’s ranting became louder and more forceful as it become clearer that he was going to get no joy from the Georgia authorities.

The first mention of “compromise and settlement” by a Trump attorney occurred at 53 minutes into the call. This was too late even if such an arrangement would have sufficed to cloak the discussion with privilege. [Even if these were in fact settlement talks regarding pending litigation, the solicitation of crimes of election fraud would almost certainly have defeated any claim of privilege. It’s reported Trump has sued someone over the release of the tape, but that is likely to meet the same fate as Trump’s other lawsuits (he’s 1 for 61 by my count).

As the call wound down, Trump pressed for immediate resolution, claiming the Senate run-off election was going to be affected because angry Republicans were being deterred from voting. The Georgia people reiterated that Trump’s data was wrong but indicated a willingness to sit down for talks. Trump became practically hysterical at this point, stating again that the governors in the surrounding states had said “there’s no way you lost GA.”

Meadows urged the lawyers to work out a plan to address some of the data issues, saying he can “promise you” there were more than two dead people who voted.

Trump brings up Abrams again: “I beat her.”  “What a schmuck I was.” “Let the truth come out.” “I won by at least 400,000 votes. That’s the truth.” Uh huh.

To Pardon or Not to Pardon – That Is the Question


Just over a year ago, I posted a piece entitled Going Along to Get Along. https://bit.ly/2UCmkTi The central theme was the criminal conduct of the Trump administration for which, I naively argued, “The time has come for a reckoning.” The impeachment proceeding was imminent. While I acknowledged the likelihood that the Republicans would continue to support Trump no matter what crimes he committed, I predicted that,

Impeachment, rarely used because it is so serious, is about holding to account a lawless regime that threatens to undermine the democratic republic that was created by the Constitution. If the case is properly made, the majority of Americans will support the action.

In that small regard, I supposed I was right. Trump was massively defeated in the 2020 election by more than 5 million votes and by the same number of Electoral College votes that Trump won by in 2016.

Yet, here we are, two weeks after Election Day and Trump continues to claim that “I WON THE ELECTION!” His legal team, “led” by Rudy Giuliani [I am not making this up], has filed and lost multiple lawsuits across the country. But those suits are only in states Trump lost. Apparently, Trump’s legal team has no quarrel with the vote counting in states he won. Many of the law firms involved have withdrawn their representation. All of the lawsuits have either been dismissed outright or rendered meaningless by either the complete absence of supporting evidence or narrowed so that even if validated, the ultimate election outcome will not be affected.

Trump had previously threatened that he would not recognize the election result if he lost and, in this one respect, he has kept his word. This has brought to the forefront the question whether, once Joe Biden is inaugurated, he should pardon Trump’s commission of federal crimes. At the risk of giving away the plot too soon, I think not. No pardon. Not ever. Here’s why.

I will use as my guidepost in this argument a provocative think-piece published on Nov. 17 by Michael Conway, former counsel to the  U.S. House Judiciary Committee, entitled “Why Biden Should Pardon Trump – and We Democrats Should Want Him To.” https://nbcnews.to/3lB4NGN Mr. Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Nixon in 1974. He is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago. His views are seriously presented and worthy of consideration.

The rationale offered by Mr. Conway is simply that a pardon for Trump’s multiple federal crimes is necessary if the nation is to heal from the four years of division, fear-mongering, racism, misogyny, hatred and other despicable qualities exemplified by the Trump administration and its enablers and supporters.

That is a heavy load for a pardon to carry, especially considering that, as Mr. Conway rightly recognizes, a presidential pardon would give Trump no legal protection from state crimes provable on the same facts. Conway’s argument also acknowledges that Trump is undeserving:

Trump would, of course, be one of the least deserving recipients of a federal pardon in history. His pardon could not be justified based on his innocence or his contrition because Trump is not contrite; to the contrary, he is currently endangering our democratic processes by relentlessly undermining the legitimacy of Biden’s election and thwarting a peaceful transition.

That said, the argument for a Biden pardon is based on several distinct ideas:

  • A pardon necessarily indicates an admission of guilt;
  • Exposure for prosecution under state law would continue;
  • State prosecutions would not be “laid at Biden’s doorstep;”
  • Biden can show he’s better than Trump by declining to do what Trump tried to do: use his administration to punish political adversaries [“lock her up!”]
  • American democracy would be undermined if we accept the prosecution of political opponents;
  • Declining to prosecute Trump will assuage some of the anger of Trump’s supporters who, however wrongly, believe he was cheated out of a second term;
  • Pardoning Trump will help “heal the nation” and prevent an “ongoing cycle of retribution” as political control inevitably cycles;
  • Precedent exists in President Ford’s pardon of Nixon;
  • Prosecuting Trump would enhance his martyr status among followers, add to partisanship and could “even lead to civil unrest.”

That is as strong an argument for a pardon as I can imagine. Here’s why I think it’s wrong.

  • The admission of guilt would be “by operation of law,” but Trump would continue to argue that he was unjustly punished in various ways, especially in light of (2) under which he would continue to be exposed to state prosecutions, especially in New York;
  • Avoiding the “onus” of prosecution for Biden is of low value in the scheme of things, considering the scale and gravity of Trump’s crimes; protecting the incoming president from responsibility for enforcing the law is not a good reason to pardon;
  • We already know to a certainty that “Biden is better than Trump” as a moral force and as an empathetic leader;
  • Avoiding further blows to democratic institutions is a serious point, but democracy has already been severely undermined by Trump’s conduct, as well as that of the Republicans who enabled him;
  • Protecting Trump from federal prosecution is unlikely to assuage the anger of his most ardent followers who, we have learned to our everlasting sorrow, are totally disconnected from normal emotional responses to truth/facts/reality; assuaging their “feelings” is a fool’s errand – it just won’t work;
  • True that there is precedent but for many the Nixon pardon remains, after all these years, a very sore spot indeed; there is little juice behind the precedent argument;
  • In sacrificing the “healing” opportunity, we likely do increase the risk of more partisanship and the possibility of “civil unrest,” but those risks will exist even in the face of a federal pardon if, for example, New York prosecutes Trump for state crimes;

Moreover, pardoning Trump does not achieve the intended goal of peace with the Trump family writ large. There is likely evidence, known or to be uncovered after January 20, that members of the immediate family are guilty of multiple crimes as well, including conspiracy, obstruction of justice, destruction of federal property/records, money laundering and others perhaps even worse. Trump and his followers are not going to take well to facing such charges even if the capo is pardoned.

Finally, pardoning Trump would send the signal that the more crimes you commit and the more outrageously you behave, the better your chance of a pardon. American democracy has been shaken to the core by the four years of Trump’s mal-administration. This outcome of a pardon would tell the next unprincipled demagogue that “anything goes,” because the worse you are, the greater the likelihood you’ll walk free and clear with the loot you have acquired.

I readily confess that some of my thinking about this is driven by the belief, reluctantly reached, that Trump’s acolytes among the general population (he received more than 73 million votes at last count) are not going to be satisfied regarding Trump’s treatment, regardless of the generosity accorded him, They may be forced “underground” again, where, we have learned, they subsisted and persisted all the time many of us thought we had entered the post-racial world heralded by the election (twice) of Barack Obama. But they won’t be “gone;” they won’t likely experience some profound awakening of empathy and generosity toward others; Whatever the “solution” for those people is, I am constrained to believe that a pardon of Donald Trump is simply not relevant to the factors that motivate them.

In the end, perhaps, it can be concluded that I am more a “law and order” person than Trump’s most ardent fans. I believe in the principle that a properly functioning society needs a “just system of justice” that includes the goal of deterring the highest forms of white color crime, the types of crimes committed most egregiously, and often in the open, by Trump and his family and friends. Accountability is essential to prevent demagogues from becoming the norm of our political life. One important lesson from the Trump ascendancy in American politics is that our frequently sneering disrespect for “banana republics” could very readily become an apt description of the United States if we do not insist on full accountability from our leaders.

The harshest lesson, I think, is that we are not really who we thought we were. American aspirations and reality do not mesh as we had believed. That does not mean, however, that we should reject our aspirations. On the contrary, and as Joe Biden’s election has reminded us, we can and must continue to aspire to a higher calling for our country. We have the choice to make: despair that we have fallen short or renew our commitment to making a better and more just society for all who live here. Pardoning Donald Trump will not help us do better.

This position does not mean that every last drop of retribution must be exacted. The pandemic must be the top priority. Restoration of relations with allies is also critical to our national security. And, obviously, I think, action to aggressively address climate change is essential to our survival as a functioning species. Trump and his family can stew in the uncertainty of their ultimate fate until it is appropriate to take up their crimes, a day that will come all the sooner if Trump continues his insistence that he will hold office against the will of the people, as expressed in the 2020 election. If he wants to be drug physically from the White House, that can be arranged, in which case the day of reckoning will come even sooner. That choice is, to a degree, his to make. His family should recognize that truth, at least, and urge him to stand down. Either way, he must go.

 

Trump Can’t Walk Back His Racism

No one paying attention will likely ever forget Trump’s response to the neo-Nazis marching with torches in Charlottesville: “very fine people [pause] on both sides.” There are many older examples but the one getting the most attention today is Trump’s refusal to reject white supremacy during the first presidential debate on September 29. Pressed by the moderator and by Joe Biden, Trump first tried to deflect by asking who specifically he was being asked to condemn. Biden promptly replied, “the Proud Boys.”

Like the attack on Pearl Harbor, Trump’s response will live in infamy: “stand back and stand by.” Like many other astounding statements from Trump, it’s on video and can’t be denied. But that never stops the Republicans from finding some path to altered reality other than the obvious need to admit that their candidate is a racist and is ready to call for violence in order to stay in power. Trump’s debasement of the presidency and destruction of American democracy are now fully out in the open.

The GOP autocracy/theocracy is bending itself into pretzels trying to cope with the exposed reality that their candidate is a racist monster who represents everything antithetical to the American values Republicans are constantly harping about. Politico.com reports the story. https://politi.co/34eExdZ

Senate Republicans spent much of Wednesday pressing President Donald Trump to denounce white supremacy, with few in the GOP willing to explicitly defend his refusal to do so during Tuesday’s presidential debate.

Trump’s unsubtle dog whistle was understood by the Proud Boys and other right-wing neo-Nazi groups exactly as it was intended. Many of them tweeted, in essence, “we await your orders to attack.”

Several pathetic deflections ensued. One suggestion was that Trump didn’t understand the question, or that he “misspoke,” which is preposterous to anyone who saw the event or the video of it. Then, Trump tried to say he didn’t know who the Proud Boys are, which is a lie. He was quite clear at the time. If he wanted to escape unscathed, he could have said, “I don’t know them, but I am opposed to white supremacy in all forms at all times.” But, he didn’t.

Politico again,

In a series of interviews and public statements Wednesday, Senate Republicans pushed Trump to clarify his comments, with party leaders and the rank-and-file eager to put distance between themselves and the president’s stance.

Senate Majority Leader Mitch McConnell (R-Ky.) said that he shared the same views as Sen. Tim Scott (R-S.C.), the only black GOP senator, who urged the president to correct his comments.

The suggestion that Trump’s remark can simply be “corrected” betrays the Republican perfidy in this entire subject. To them it’s just a question of what they can get away with and if exposed, “correcting” the comments fixes everything. But it doesn’t.

There are certainly gaffes and mistakes that everyone makes. This was not one of those. Given Trump’s history, it was virtually certain to arise in the debates one way or another and it is unimaginable that Rudy Giuliani and Chris Christie, Trump’s two primary debate preparers, did not address this with him. He knew it was coming, obviously didn’t like it but, visibly squirming, he said what he meant. Rick Santorum, the ever-reliable Trump toady who remains, for no apparent reason, a CNN commentator, objected that the question was unfair because the moderator knew how much Trump hates having to criticize his political base. If Santorum understands that Trump’s base has huge racist elements, you know all you need to know.

The Trump toady-in-chief, Senate Majority Leader Mitch McConnell, certainly understood it:

…McConnell said Trump’s performance in the debate wouldn’t hurt his efforts to keep the Senate: “I don’t know of any of my colleagues who will have problems as a result of that.”

Other GOP lawmakers, such as House Minority Leader Kevin McCarthy (R-Calif.) and Sen Kelly Loeffler (R-Ga.), lately of insider trading fame, tried to deflect the criticism, arguing that Trump had said he would designate the KKK as a terrorist group. He hasn’t, of course, and we know why.

Former New Jersey Gov. Chris Christie, lately of Bridgegate fame, downplayed the alarm many had to the president’s remarks, saying on ABC’s “Good Morning America” that he “heard it differently.” Uh huh. Pressed, Christie performed the pretzel twist with the claim that he  “didn’t read it that way, but if you want to read it that way that’s your prerogative,” insisting there was “confusion on the matter.”

Apparently, the White House believe-anything-he-tells-you-even-when-it’s-obviously-false” team didn’t get the Christie memo. Per Politico,

Alyssa Farah, the White House communications director, meanwhile told Fox News that “I don’t think that there is anything to clarify” from Trump’s comments the night before.” He’s told them to stand back,” she said, pointing to the president’s efforts to tamp down violence in cities across the country.

Farah conveniently ignored the “and stand by” half of Trump’s response.

Meanwhile, over at “Fox & Friends,” co-host Brian Kilmeade, always there for Trump, was quoted saying, “Why the president didn’t just knock that out of the park, I’m not sure.”  But, of course, he is sure. Trump is a racist and ignoramus. Trump believes that ‘antifa’ is some kind of organization bent on destroying America, a view even Trump’s own Justice Department, led by Trump’s personal consigliere the Attorney General William Barr, does not accept.

House Speaker Nancy Pelosi (D-Calif.) hit the nail on the head: “I think one thing he did present was the authenticity of who he is.”

We all know, I think, that public speaking is stressful, all the more so if much is at stake. If you have looked out over a large audience with expectant, perhaps even hostile, faces, you can understand how extemporaneous responses to questions can lead to regretful misstatements.

On the other hand, when you’re a public figure who has been  prepped and practiced and are aware of past issues and challenges with statements you’ve made, it is not too high a standard to expect certain things. First and foremost is ‘truth.’ We can accept and forgive dumb remarks, factual mistakes, failed memories over details and statistics. Those things happen in extemporaneous public speaking all the time.

The “stand back and stand by” comment by the president of the United States, almost four years into his presidency, is not in that class. Trump has history on this question. As Yogi Berra famously said, “it’s déjà vu all over again.”  Trump sent a message to the worst elements of his political base that he may call upon them to violently attack either the government or elements of the electorate he considers his enemies. They got the message loud and clear.

There is no walking this back, as the politicians like to say. Some things simply can’t be unsaid. Even if, under pressure from his Republican enablers in Congress, Trump were to categorically assert that he didn’t mean what he said, it’s too little too late. Everyone now has the clearest statement of Trump’s loyalties and they are not to the Constitution he swore to uphold. His loyalties are to himself ahead of everything and everyone else. The most remarkable aspect of this is that those same enablers do not accept Trump’s own version of himself. Or, maybe they really do and just don’t care.

Either way, the election draws closer by the day. Trump’s debasement of the highest office in the land will continue unless and until he is removed, one way or the other. You know what to do.

Impeachment – Why and What?

I recently heard that a friend of mine was confused about the impeachment process now underway in the House of Representatives. I will try here to clarify, in simple English and without legalisms, what is going on and why.

The president is currently subject to an “impeachment inquiry” started by a resolution of the House of Representatives. The “inquiry” is a fancy term for an investigation. That investigation is about the question whether the president in his dealings with Ukraine committed “treason, bribery or other high crimes or misdemeanors,” that are the criteria for impeachment in the U.S. Constitution. If impeached (by the House adopting articles of impeachment) and convicted (by the Senate finding that the asserted crimes in the articles are true), he may be removed from office. Since he is still president during this process, he cannot be indicted (according to the Department of Justice). Once removed, however, he can be indicted, tried, convicted and sent to prison for crimes committed while in office.

The investigation is being conducted through two main processes.

The first process is the gathering of evidence through testimony-under-oath by various witnesses who have been subpoenaed (ordered to appear) or have volunteered to testify. Initially, those depositions (taking testimony under oath recorded verbatim) were conducted in private sessions open to members of the three investigating committees from both parties. Despite the opportunity to be present and ask questions, Republicans have complained bitterly about what they hysterically and falsely called “secret” sessions, even to the point of storming into one of the sessions in a group, violating the security requirements that apply to the site of the depositions.

The second process is the public hearing phase, now being broadcast on many TV stations, in which the same witnesses are called to be examined in public, again by both Democrats and Republicans. Now the Republicans, including the president himself, are bitterly claiming that the hearings should not be public. In the end of their rhetoric, what the Republicans want is to shut down the impeachment process entirely. That is not going to happen.

Why, then, is this impeachment inquiry happening? The essence of it is that Donald Trump tried to use Congressionally approved funding to help Ukraine defend  against further military incursions by Russia and also the prospect of a meeting with Trump for the newly elected Ukraine president (Zelensky) to leverage Ukraine’s new leadership to announce investigations into the then-leading challenger to Trump’s re-election, Joe Biden. The immediate target of the investigation would be Biden’s son, Hunter, who was, for a period, being paid $50,000 a month to sit on the board of Burisma, a Ukrainian energy company. Republicans claim that this arrangement was part of the historic and endemic corruption that has afflicted Ukrainian political leadership for a very long time, but thus far no evidence has turned up to indicate that either Joe or Hunter Biden broke any laws.

All this is complicated by a number of details that are not central to the issue of what the president did, but they certainly illuminate his motives and explain his conduct. For one, Trump used his personal attorney, Rudy Giuliani to engage with the Ukrainians and to promote false conspiracy theories about the Biden’s and to lead a smear campaign against the sitting U.S. ambassador to Ukraine, Marie Yovanovitch. Trump eventually fired her without notice or explanation.

There are many other characters in this drama, some with long titles and long histories as diplomats in the U.S.-Ukraine relationship. Republicans have attacked many of these people because they obtained some or all of their information about Trump’s campaign against Biden through other sources. Indeed, the initial report that started all of this came from an anonymous whistleblower. The Inspector General of the Intelligence Community within the Office of the Director of National Intelligence reviewed the whistleblower’s report and found it credible and disturbing. The impeachment inquiry followed.

It is important not to be distracted by the efforts of Republicans to focus the fight on side issues, such as the identity of the whistleblower or the “hearsay” nature of some of the evidence against Trump. The most damaging evidence was direct and produced by Trump himself, in the form of a memo (not a transcript) of his call with Ukraine President Zelensky in which Trump called on Zelensky to start the investigation. There is much additional testimony from Trump appointees, like Gordon Sondland, U.S. Ambassador to the European Union, who personally participated in the leveraging of Ukraine.

The impeachment may be broadened before it’s over. One example comes from the Mueller investigation. Mueller’s final report found 10 instances of obstruction of justice by Trump and/or members of his staff and administration. These may, and in my opinion definitely should, be included in the forthcoming articles of impeachment. A second major example is playing out in the courts now – Democrats in the House are seeking  access to many of the redacted materials in the Mueller Report that may show that Trump lied to Mueller and is thus guilty of the high crime of perjury.

So, the impeachment is pretty straightforward when the Republican smoke is cleared away. Trump tried to induce Zelensky to publicly announce a Ukrainian investigation of the Biden’s to damage Joe Biden’s challenge to Trump’s re-election. The evidence on this is clear. He did it. The evidence of obstruction of justice in the Mueller Report is also clear. The House of Representatives is collecting the evidence and presenting it through public hearings. Eventually, when the hearings are completed, the House will have the opportunity to vote on “articles of impeachment.” These are like a criminal indictment. They will state the specific charges of “treason, bribery or other high crimes and misdemeanors” that the House leadership believes are the basis for impeaching the president.

If the articles are approved by a majority vote in the House prior to the 2020 election, the impeachment moves to the Republican-controlled Senate for “trial” to determine if the president is guilty of the charged offenses and, if so, what the penalty should be. This process will be controlled entirely by Republicans and, absent a massive change in positioning, Republicans will refuse to convict the president regardless of the charges and regardless of the evidence.

The question of judging Trump’s conduct in office will then move to final determination in the election of 2020.

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

F. The Inexplicable Treatment of Trump’s Personal Attorneys & Other Enablers

Another unexplained aspect of the Report relates to Trump’s use of his personal attorneys (never identified) to communicate with Flynn and his attorneys. Trump’s personal counsel appear a number of times in the report. II MR 121-122. A fair interpretation of this evidence is that Trump used his personal attorney to try to influence Flynn’s cooperation with the SCO, first with cajoling about how Trump cared about him, then with implied threats about Trump’s presumed anger. A further fair argument can be made that Trump’s personal counsel was a knowing participant in an obstruction effort. Why is this not at least mentioned in the Report?

The Report relegates to II MR-122, n. 839 the extraordinary decision not to try to interview Trump’s personal attorneys “because of attorney-client privilege issues.” Given the active role those lawyers played in some of Trump’s obstructive acts, it is hard to understand a decision not to try to learn something from them. Attorney-client privilege does not protect an attorney who is participating in a criminal enterprise. This is known as the crime-fraud exception to the general privilege rule. If Trump’s personal counsel were actively and knowingly participating in an attempt to obstruct justice by, for example, influencing Gen. Flynn’s testimony or by attempting to unlawfully procure the firing of the Special Counsel, the privilege likely does not apply. It is, moreover, inconceivable that Trump’s attorneys acted on their own without consulting their client. We are left to speculate as to why Mueller did not pursue this seemingly fruitful source of information.

We can’t be sure, of course, whether to credit Rick Gates assertion that Paul Manafort had talked with Trump’s personal counsel and been assured that they would be “taken care of” if they did not talk to the SCO. Mueller, however, clearly believed Gates’ account of these conversations with Manafort. II MR-123 & n. 848, 850. This is a subject that could have been pursued directly with Trump’s counsel if Mueller had been more aggressive in seeking the full body of evidence rather than simply assuming that the privilege would be upheld.

One of Trump’s personal attorneys during this period was Rudy Giuliani who gave multiple interviews in which he suggested Trump might pardon Manafort, then, following the classic Trump playbook, claimed he was misunderstood and not signaling anyone. II MR-124. This was fertile ground to discover whether Trump and Giuliani had mapped out this strategy to obtain Manafort’s silence or other forms of cooperation. A good argument could be made that Trump-Giuliani had waived the attorney-client privilege when Giuliani told the Washington Post that Trump had consulted his attorneys about granting pardons to Manafort. II MR-127. Manafort had some kind of joint defense agreement with Trump and was coordinating his Mueller interviews with Trump’s attorneys. II MR-127. That fact alone warranted taking Giuliani’s testimony under oath. It is all the more compelling because Trump publicly contradicting Giuliani’s statements. II MR-128. Instead, Mueller concludes that the evidence on Trump’s personal participation in all this was inconclusive (II MR-132), an amazing conclusion in light of his decision not to press for an interview of Giuliani and/or Trump.

Mueller digs deep to find alternative explanations for Trump’s comments about the treatment of Manafort. II MR-133. In the totality of circumstances regarding Trump’s repeated litany of claims that he and others were being treated unfairly, this is astonishing, especially considering that at times Trump claimed he knew very little about what these people did for him and the campaign. Normally you can’t have it both ways but Mueller lets Trump get away with it.

Note that there are substantial redactions in this part of the Report for Harm to an Ongoing Matter, suggesting that additional investigations have been farmed out to the US Attorneys’ offices. II MR 128-130.

Trump’s personal attorneys played a further role in Cohen’s false testimony to Congress. II MR-139. A joint defense agreement existed between Cohen and Trump plus other unnamed individuals involved in the Russia investigation. II MR-139. The identity of all the other individuals is not revealed in the Report. Why is this not addressed? The president’s personal attorney played an active role in assuring Cohen that his loyalty to Trump would be rewarded. II MR-140.

Despite the fact that drafts of Cohen’s false testimony to Congress were discussed with members of the Joint Defense Agreement and that false testimony to Congress under oath is a crime, Mueller did not see the drafts because of concerns about the common interest privilege. But it is not clear who raised those concerns. This is another example of Mueller seeming to act as counsel for the defense.

Perhaps because Cohen was in almost daily contact with Trump’s personal attorney about Cohen’s Congressional testimony, Mueller, in this one case, indicates an attempt was made to interview counsel. But the counsel declined, citing “potential privilege concerns.” II MR-143. What precisely those concerns were is not explained. Nor is there any indication that the SCO aggressively pursued this obviously important testimony about an agreement to suppress truthful information being sought by Congress. Who exactly is the “President’s personal counsel” that is referred here? Is it the same person throughout? Trump hired and replaced many attorneys during this time. Why does the SCO not identify these people by name?

This is not the normal or effective way to handle privilege disputes. The privilege-claiming party should be presented with the questions and compelled to explain with specificity why each question cannot be answered even in part because of privilege. Mueller may have gone through this exercise but there is no evidence of that anywhere in the Report.

Further puzzling issues arise from Mueller’s failure to pursue Robert Costello who, in the period following the raid on Cohen’s home and office, was used as a go-between connecting Giuliani and Cohen and assuring Cohen of Trump’s continued favor. II MR-146. Costello’s offering to support secret communications between the White House and Cohen appears to have been of no concern at the SCO. One question is which personal counsel to the President was assuring Cohen that if he continued lying, Trump would protect him? Why does Mueller protect the identity of President’s personal attorney engaged in a cover-up and overt acts of witness tampering/obstruction of justice?

 Beyond that, Mueller accepts that Trump’s personal counsel was working with Cohen on false testimony to Congress but does not attribute that conduct to Trump and never goes after the counsel for aiding & abetting false testimony or giving message to Cohen that he would be protected if he stuck to the party line. Why was Mueller so reticent about these compelling facts that do not appear to be disputed? Faced with an apparent conspiracy to submit false testimony to Congress, resistance by Trump & by his personal attorney (who refused to provide his version of his conversations with Cohen who was not his client and thus not covered by any plausible claim of privilege), Mueller simply assumed he couldn’t get evidence about Trump’s discussions with his personal counsel and didn’t even try to pursue this line. II MR-154. No presumption of privilege should attach to conspiracy to commit a crime. Mueller’s unwillingness to tangle with Trump’s personal attorneys is inexplicable and unconscionable malpractice. Why was Trump’s personal attorney not charged with suborning perjury in connection with Cohen’s false testimony that Trump’s personal attorney helped facilitate?

Mueller’s approach is particularly disturbing because Trump refused to answer the written questions posed to him about the Trump Tower meeting. II MR-149. What Trump did say was that he couldn’t remember his conversations with Cohen. After Cohen pled guilty to lying to Congress about the Trump Tower meeting, Trump refused to provide any more information about his role and turned sharply against Cohen. II MR-151. Thereafter, Giuliani made public statements that conflicted with what Trump was now saying, then “walked those back.” II MR-152. Mueller seems completely bamboozled by all this, unable to make the obvious conclusions.

Trump refused to clarify what Mueller calls the “seeming discrepancy” between his statements about the Trump Tower project in Russia made before and after Cohen’s guilty plea. Mueller engages repeatedly in speculation about what Trump might have meant rather than concluding that, having declined the opportunity to set the record straight, Trump should be estopped to deny the discrepancy and to deny what Cohen said was the truth eventually.

I have asked repeatedly in these evaluations of the Mueller Report why Trump’s enablers were not indicted. Mueller addresses very briefly at II MR-158 where he leaps a giant chasm of evidence to conclude that because a few of Trump’s aides refused to carry out his blatantly obstructive orders, virtually all of them were allowed to walk away unscathed, including Trump’s personal attorneys and others who, according to undisputed evidence, did carry out Trump’s orders to try to intimidate witnesses, terminate the SCO investigation and other forms of interference detailed throughout the Report. Mueller calls the “pattern” one in which Trump’s enablers resisted his obstruction directives, but the evidence adduced shows that in most cases the White House staff did exactly what Trump wanted them to do. The “pattern” is the exact opposite of Mueller’s conclusion.

The Mueller Report ends with a lengthy, lawyerly analysis of the statutory and constitutional defenses asserted by Trump’s attorneys. The analysis is unobjectionable and supports not only the conclusions Mueller did reach but re-emphasizes the lingering questions about the conclusions he declined to reach. In particular, we are left to wonder why so few of the obvious enablers of Trump’s overt obstructive acts were not held accountable. Mueller’s treatment of “presumption of privilege” issues is inexplicable, given that much of the enabling activity was in support of federal crimes. We can only hope, though likely in vain, that Congressional hearings will flesh out the hanging questions.

The Silence of the Wolves – Profiles in Cowardice

As reported in the Washington Post, Republicans in Congress, who swore an oath requiring, among other things, that they execute their constitutional duties as a check and balance against the Executive Branch, have once again shown their lack of integrity, responsibility and courage by refusing to even talk about Trump’s attacks on Omarosa Manigault Newman whom the president of the United States called a “dog,” among other things because she wrote a “tell all” book about her time in the White House.

Sen. John Cornyn (R-Tex.), second ranked Republican Senator, reportedly said,

“I’ve got more important things on my mind, so I really don’t have a comment on that.”

When asked whether any of Trump’s statements on race made Cornyn uncomfortable, the good senator said,

 “I think the most important thing is to pay attention to what the president does, which I think has been good for the country.”

What those great deeds are is left to our imagination. Cornyn’s deflection of the question translates to “I don’t mind if the president is a racist as long as he does other good things,” presumably referring to the tax cut, one of the few clear legislative acts Trump has led into law. He refused to talk about what his constituents think about Trump’s remarks, calling the question “an endless little wild goose chase and I’m not going there.” Yessir, the question whether the president of the United States and the leader of your party is a racist is of no importance compared to a deficit-exploding tax cut for the rich. Well played.

The Post says it “reached out to all 51 Republican senators and six House Republican leaders asking them to participate in a brief interview about Trump and race. Only three senators agreed to participate: Jeff Flake of Arizona, David Perdue of Georgia and Tim Scott of South Carolina, the only black Republican in the Senate.”

Flake had negative observations about Trump’s long history of racist remarks (“it’s been one thing after another”), but, of course, Flake is “retiring” at the end of his term so it’s pretty easy for him to “stand up” to Trump, particularly when he is not being asked to actually vote on anything.

Sen. Bob Corker of Tennessee, another Trump sometime objector (he almost always voted as Trump wanted) who is leaving Congress in January, was also critical of the “divisive” approach on racial issues: “I think that’s their kind of governing. I think that’s how they think they stay in power, is to divide.”

The most remarkable thing about all this is that “Several other lawmakers said they did not like some of Trump’s language, especially on race, but did not consider Trump to be racist.” Hmmh. You can talk like a racist all day but still not be one?

This insight makes one wonder how a Republican identifies a racist. If it’s not their words, what are the hallmarks of a real racist? White robe with eye holes? They burn a cross in your yard? They lynch you?

The Post reports that,

 “Sen. John Thune (R-S.D.), the No. 3 Republican in the Senate, said Trump’s description of former black adviser Omarosa Manigault Newman as a “dog” was “not appropriate, ever.” But he stopped short of pointing to a time when he felt the president had crossed a racial boundary.”

“I just think that’s the way he reacts and the way he interacts with people who attack him.” ….“I don’t condone it. But I think it’s probably part built into his — it’s just going to be in his DNA.”

So, another insight into Republican “thought processes.” You can have racist attitudes in your DNA but that doesn’t mean you’re a racist. No wonder Republicans are anti-science and think climate change is a hoax.

We have to recognize and call out racism when it is found and regardless of how it is manifested. The Post reported that “In a January Washington Post-ABC News poll conducted immediately after Trump called African nations “s—hole” countries, 52 percent of Americans said Trump is biased against black people. But among Republicans, 16 percent said Trump is biased against blacks while 79 percent said he was not.”  [emphasis added]

To make matters worse, the Post says, “The president’s defenders say that he is not racist nor is he exploiting the country’s existing racial divisions. Rudolph W. Giuliani, the president’s lead lawyer for special counsel Robert S. Mueller III’s ongoing Russia probe, noted several prominent African Americans with whom the president gets along.

“If the presidents likes you, he likes you — white, black, whatever,” Giuliani said. “He’s not a fan of Omarosa, but he’s become a fan of Kanye West. He likes Tiger Woods, but he doesn’t like LeBron James.”

So, yet another insight. The president is not a racist because “some of his best friends are black.” Uh huh.

And here’s another insight. Ari Fleischer, former press secretary under George W. Bush, reportedly believes that while Trump is wasting opportunities to woo minority voters, there exists a “line between being a boor and being a racist.”

So, making racist comments is just being boorish. Like spitting out an olive pit at a Republican cocktail party. Totally uncouth. Fleischer went on to blame Democrats for claiming all Republican candidates are racists. They lack credibility on the race issue, he said.

Talk about deflection: “yes, my boss, the president, makes constant racist-like remarks but since you are always upset about racist-like remarks, the fault lies with you and not with him.” Remarkable.

So, I hope this little trip through Republican land has illuminated your thinking about what shows that one is a racist. Republicans seem more than a little confused on the question, but not the rest of humanity. If you’re near any Republicans and you happen to be African-American, Latino, an immigrant, almost anything but a white male, watch your back.

Laugh Until You Cry

An article in Newsweek by Emily Zogbi at https://bit.ly/2MppR5G, entitled Trump And Money: The Court Case That Could Blow His Finances Open,” reports that the Justice Department is resisting discovery requests by the plaintiffs (the State of Maryland and the District of Columbia) in a case claiming that Donald Trump’s continued business connection to the Trump International Hotel in Washington is resulting in violations of the Emoluments Clause of the Constitution.

The Emoluments Clause says, in pertinent part:

“…no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

An “emolument” has been broadly defined by the judge in the case as “any profit, gain or advantage of more than de minimis value, received directly or indirectly.” https://bit.ly/2BoIJwi

This approach, consistent with the historical roots of the Emoluments Clause, raises the issue whether Trump is benefiting financially from foreign firms and officials who choose now to stay in his hotel when visiting Washington.

The dispute over discovery relates to Donald Trump’s financial records and, since discovery is normally broadly permitted if it is likely to produce or lead to the production of admissible evidence regarding the matters at issue, there is likely panic in the Trump legal team and the White House. What Trump and his lawyers are most afraid of is that the document discovery will compel the release of his tax returns that he promised repeatedly he would disclose, then recanted, along with most other transparency commitments.

Now, here’s the laugher: the cited article notes that “the Justice Department objects to any “discovery” on a sitting president.” because “any discovery would necessarily be a distraction to the President’s performance of his constitutional duties.”

This “distraction” argument might have some force in some case (it didn’t concern the Republicans during the Clinton impeachment proceedings), but it’s a pathetic joke when applied to Donald Trump. It is undisputed that the president spends hours a day watching Fox News and similar right-wing propaganda sources, not to mention his Twitter habit, whereby he tweets constantly when events don’t go as he likes. That is virtually every day – in the past 24 hours, it appears he has issued at least 17 tweets, attacking people and newspapers, proclaiming his innocence of crimes and more. And, of course, there is his golf habit. As of March 2018, Trump spent almost 25 percent of his time at one of his golf courses. https://cnn.it/2FPWwL4 He reportedly refuses to read briefing books, or any books actually.

The argument that divulging his financial records, which Trump himself almost certainly never personally touches, is preposterous in light of Trump’s daily habits. The small amount of time required for Trump to participate in the document discovery process can be deducted from his daily TV, ranting and golf time without interfering one bit with the performance of his real responsibilities as chief executive of the United States.

By the way, this situation does not fit into the phony narrative spewed by Rudy Giuliani today on a TV interview in which he said, “truth isn’t truth.” His cited proof was a conflict of statements between Trump and James Comey. Giuliani’s argument is ludicrous for multiple reasons. Two of them are: (1) the President is lying and Comey is not; therefore, there is truth in what Comey said, regardless of Trump’s denials; (2) if there is no truth, then Trump’s declarations of innocence are all false and he is guilty of, among other things, obstruction of justice, collusion with a foreign power to interfere with a national election, violations of federal election laws and treason.

Manifestly, a conflict about whether an event happened or a statement was made does not mean there is no truth. It means there is a conflict that must be resolved and one of the ways we do that in litigation is through discovery. The gang of autocrats and enablers in the White House can’t have it both ways just because a lawyer says “yes is no” and “up is down.” That may have worked in the Humpty Dumpty tale, but not in real life. If Giuliani’s position that all statements about facts are equally true, even if in direct and irreconcilable conflict, he has walked his client into yet another legal dead-end.