Tag Archives: Mueller

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.

Impeachment – Who Should Testify?

In keeping with their desperate and ill-conceived defense of the indefensible president, Republicans have submitted a list of proposed witnesses they claim should be called to testify in next week’s public hearings on the impeachment of Donald Trump. Not surprisingly, the list includes the heretofore anonymous whistleblower who first revealed the president’s treachery in trying to leverage Ukraine’s president to publicize an investigation of Joe Biden by withholding Congressionally-approved aid. Republicans also want testimony from Biden’s son and random others.

Of particular interest, however, is the omission of most of the administration personnel with actual knowledge of the president’s demands, including, most notably, Rudy Giuliani, Trump’s personal attorney and appointed “fixer” to replace the disgraced and jailed Michael Cohen.

How should Adam Schiff, who chairs the House investigation, respond to these requests?

The issue in the hearings – the only issue – is whether the president of the United States committed impeachable offenses. The witness list, therefore, should consist only of people who can present factual information about that question. The whistleblower is not such a person because his report of the president’s wrongdoing was obtained from others who almost certainly will testify about their firsthand knowledge of what transpired.

I think of the whistleblower as similar to a person who hears others shouting “fire” and calls 911 for the fire department to report what he heard. He can’t say there was actually a fire or any details because he didn’t see it. He heard from others who saw it and he took action to help. Therefore, in the ensuing investigation of the fire, his testimony would at most establish that someone shouted “fire,” but he could not testify about the details of the fire he didn’t see. His testimony would be essentially useless on the origin of the fire, how it spread, who fought it, etc. If he chose to be identified, he might be hailed as a hero but his information about the fire itself would be useless. An imperfect analogy, I suppose, as most analogies are, but sufficient to make the point.

The Republican demands for exposure of the whistleblower are an essential element of the only “defense” Trump has – distraction from the central and only real question: the president’s conduct in connection with aid to Ukraine and the 2020 election interference he sought from a foreign government. The same is true about the demand for Hunter Biden’s testimony. Republicans want to create a sideshow about alleged corruption in the Biden camp which, even if true (and it has not been shown by evidence from any credible source), is not relevant to the president’s attempt to obtain foreign interference in the election. It is the president’s conduct, and no one else’s, that is at issue in the impeachment process.

I well understand that, when push comes to shove, Trump’s defenders will argue it was a legitimate exercise of presidential foreign policy authority to try to ferret out corruption by a person who was Vice President at the time. However, the evidence is clear, and mounting with every passing witness, that the sole purpose of Trump’s Ukraine maneuver was to help him defeat a domestic political opponent in 2020. Absent Biden’s prominent standing among the top challengers in 2020, Trump would have had no interest whatsoever in Biden’s involvement in Ukraine.

The answer to the question posed, then, is straightforward: individuals with direct knowledge of Trump’s conduct should testify. This is the investigative phase of the impeachment process and the sole issue is the president’s conduct. If Republicans want to produce witnesses to testify about Trump’s character, in mitigation of the possible penalty, that testimony will only be relevant in the Senate trial where the issue is conviction (or not) based on the evidence adduced in the House process. It is laughable, of course, that Republicans would introduce character evidence in the Senate, as that would create the opportunity for full exploration of Trump’s personal conduct in a host of areas, including defrauding charities, cheating the military and many others. Such a development would not deter the Republican majority from finding Trump “not guilty” but it would add to the ammunition available to the Democratic nominee in the 2020 campaign. The Senate trial, managed by #MoscowMitch, will be a brief affair with a foregone conclusion.

An overarching question remains as to how broad the House articles of impeachment should be. There are reported indications that Democrats are planning to limit the articles to the Ukraine situation. I am speculating, but must assume the rationale for that is to anticipate and undermine the argument that the impeachment process is just political revenge and an attempt to undo the election of 2016.

That would be a huge mistake. It would allow Trump to escape the findings of the Mueller investigation that Trump committed at least 10 acts of obstruction of justice. Prior posts in this blog covered the details. If the issue is going to be presented of criminal acts by the president, and there is an entire bag full of evidence of at least 10 such crimes in addition to the Ukraine scenario, limiting the charges will be interpreted by Republicans, and possibly the electorate, as proof that the Mueller Report was wrong and that Trump is innocent. The evidence of Trump’s guilt is overwhelming and he has thus far produced nothing substantive and relevant that could defeat that evidence.

Of course, in anticipation of the public hearings next week, Trump has announced he “may” issue a “transcript” of another Ukraine call. When? Why, Tuesday, of course, the day before the hearings begin. Classic Trump deflection and distraction. The first release of the “notes” from the call with President Zelensky were a disaster for Trump as those notes established the very crime he had denied. The second release will be more suspect since Trump is now in more serious trouble than he ever imagined and he likely will use the second call notes to try to repair the damage. I have previously written about the problem of calling these reports “transcripts” and the concerns expressed there are even more serious in the promised second release. CNN, among others, continues to misuse the term “transcript” to describe these notes, the original source of which are locked away in an ultra-secure computer somewhere in the White House.

A final point – the refusal of the Trump administration to produce witnesses subpoenaed by the House committees has led to multiple legal proceedings designed to test the extent to which the Executive Branch can claim, as this administration has, “absolute immunity” from Congressional oversight. Those cases are generally being decided against the administration that will certainly want a final ruling from the Supreme Court before complying. Democrats, wisely, I think, have not taken that bait entirely. Schiff has said repeatedly that the House will simply assume that the evidence that would have been adduced from non-appearing witnesses would be adverse to the president.

Schiff’s position is entirely consistent with the way legal presumptions operate. A party who claims “Proposition A” to be true but refuses to produce evidence of the truth of “A” risks a finding that “A” is not true. Withholding evidence is, in effect, an admission. The House has every right to draw adverse conclusions from the refusal of administration witnesses to testify, especially since those who have done so have uniformly supported the conclusion that Trump did indeed try to leverage Ukraine as charged for the purpose of unlawfully securing foreign interference in the 2020 election.

Republican Children of the Corn Violate Law Helping Matt Gaetz Find His Blankie

It seems this was inevitable. Backs against the wall, unable to defend the conduct of their president on the substantive merits, the Republican Party decided, apparently with the president’s foreknowledge and approval, to disrupt the lawful proceedings of House investigative committees looking into the president’s conduct through an “impeachment inquiry.” https://bit.ly/2NaUiKn  In simple English, the House committees are collecting evidence through sworn testimony of witnesses with information about, among other things, Trump’s attempt to extort Ukraine into investigating Trump’s current principal Democratic opponent, Joe Biden.

Roughly two dozen Republican House members forced their way into the hearing, leading to a five-hour delay in testimony that was about to start when they interrupted. They apparently left their lunch boxes and blankies outside but chose to take their cell phones into the room, violating House rules about bringing electronic devices into a SCIF (Sensitive Compartmented Information Facility). The Republicans don’t care, of course, about national security being compromised when it comes to protecting Trump from accountability.

The Republicans would have you believe that they have been excluded from the investigation, but the reality is that Republican members of the six investigative committees have the right and are exercising that right to be in the room during the taking of evidence. The full list of committees is: Financial Services, Judiciary, Intelligence, Foreign Affairs, Oversight and Reform and Ways and Means. The fact of six committees’ involvement likely arises from the breadth of the possible violations of multiple laws by the president and his enablers.

Rep. Swalwell reported that the majority of Republican members of the investigating committees in fact come into the room to complain about the process, then leave before the evidence is taken, all the while complaining that the evidence is not being taken in public. Likely they are afraid that Trump will find out they listened to evidence about his crimes and take away their lunch money.

Given that Republicans have not in fact been excluded from the investigation, what was the purpose of the multitude of law violations by Republican members of Congress, beyond the obvious publicity stunt and suck up to Trump who had just complained they were being too timid? Most likely it is the product of Donald Trump’s desperation that his scams of the American public and multiply treasonous conduct are being exposed and may yet lead to his removal from office and indictment for obstruction of justice, among other things. Maybe they just thought they could somehow stop the whole process by creating the threat of daily interventions. Maybe they didn’t know what the hell they were doing. Someone may have said: “We can’t just sit here and do nothing while Democrats compile an irrefutable case of repeated illegal conduct by our lord and master Trump, so let’s storm the castle! And they all yelled “Yeah, let’s storm the castle!” And, lacking pitchforks and lighted brooms and unable to find a castle, they grabbed their cell phones and stormed into the SCIF.

Putative Congressman Steve Scalise then lied to reporters outside the room: “Voting members of Congress are being denied access from being able to see what’s happening behind these closed doors, where they’re trying to impeach the president of the United States with a one-sided set of rules, they call the witnesses.” What he would have said if he uncharacteristically respected the truth was that some voting member of Congress were denied access because they don’t sit on the committees conducted in the investigation. This is not hard to understand, except maybe for Scalise and his brave band of castle stormers.

I am not making this stuff up. The article cited above includes this statement from Rep. Bradley Byrne of Alabama (where else? – sorry Alabama, but you elected these people so you own them):

“When we walked in, they looked dumbfounded and the room just came to a stop. And we lined up along the wall or sat in chairs expecting them to do something. And after several minutes, Adam Schiff got up and just walked out. And while he was walking out I said, ‘Don’t go.’”

Oratory of that caliber will almost certainly make the history books used in Alabama schools, if any, in the future, if any. If you want a model for a forceful entry, absolutely line up along the wall and sit in chairs. Powerful stuff.

The Republicans reportedly believe that the information and transcripts should be made available to all members of Congress, unlike the underlying evidence in the Mueller investigation that they claimed completely exonerated Trump.  Logic is not Republicans’ strong suit. My response is: be patient, folks; remember that patience is a virtue and virtue is its own reward; the evidence you claim you want to see will be coming out in due course. Then, I bet, you’ll be screaming that disclosure was an unjustified assault on the president’s good character.

According to reporting by The Hill,

The move by House Republicans comes a day after another witness, top diplomat William Taylor, testified that Trump withheld military aid to Ukraine to pressure the country to conduct a pair of investigations — one into 2016 election hacking, the other into the family of former Vice President Joe Biden — that might have helped Trump’s reelection campaign next year.

Looks like Mr. Trumpski is in a bit of a bad spot here. The more evidence comes out, the more he squawks, but he has produced no evidence of his own to counter the sworn testimony of many people who became aware of his attempt to leverage Ukraine into finding dirt on Joe Biden and his family. Screaming “I’m innocent” is not going to save him from the political guillotine.

 

Whistling by the Graveyard

On August 25, 2018, the New York Times published a “News Analysis” of Donald Trump’s treatment of the American legal system:  Trump’s War on the Justice System Threatens to Erode Trust in the Law, by Michael D. Shear and Katie Benner. https://nyti.ms/2oINv1V

The piece opens with this:

In his attempt at self-defense amid the swirl of legal cases and investigations involving himself, his aides and his associates, Mr. Trump is directly undermining the people and processes that are the foundation of the nation’s administration of justice.

The result is a president at war with the law.

Further, and presciently,

The president’s public judgments about the country’s top law enforcement agencies revolve largely around how their actions affect him personally – a vision that would recast the traditionally independent justice system as a guardian of the president and an attack dog against his adversaries.

The comment ends with this:

“No matter when this all ends, Trump will have caused long-lasting damage to the ability of the Justice Department and the F.B.I. to execute on its mission…. He is sacrificing our public safety and national security on the altar of his own ego.” [quoting Christopher Hunter, a former FBI agent and prosecutor]

Certainly, the authors could not have precisely foreseen how Trump’s approach to governance would lead to the present circumstances, but their overall impression of the direction of Trump’s presidency was stunningly accurate.

Now, perhaps emboldened by what he convinced himself was “exoneration” by Mueller and thus a free hand going forward, Trump has been caught out trying to use a foreign power to influence the 2020 election. And, the evidence is clear, Trump and his loyal team of lawyers, who were also allowed to skate by Mueller, have clumsily tried to cover up the president’s crimes by secreting the records in a computer system designed to contain only coded high-security information. Indications are that this is not the first time they have done this. As we have come to expect, Trump responded to all this by threatening his “enemies,” attacking the press and deflecting by inventing others’ offenses that he purports to expose.

All of that was simply too much for the Speaker of the House, Nancy Pelosi, who called for an impeachment inquiry and had the votes to do it. Trump responded by declaring that Pelosi was no longer the Speaker of the House. This from a man who publicly swore a solemn oath to protect and defend the Constitution of the United States.

Also, as we have come to expect, Republican enablers in and outside the White House rushed to Trump’s defense with all manner of false and hysterical claims. While the wagons were being circled, more news emerged, including that Secretary of State Pompeo was listening on the Trump-Zelensky call even though he indicated otherwise in television interviews. Trump is demanding to “face my accuser” and has said that the White House is trying to determine the whistleblower’s identity even though the governing law provides for protection of that individual’s identity. Trump supporters have offered a large cash award for anyone who will conclusively identify the whistleblower. Trump has not repudiated them for this action, arguably putting the whistleblower’s life in danger.

And so it goes. Meanwhile, the Editorial Board of the New York Times and the editors of the St. Louis Post-Dispatch have both called for Trump to resign. Likely, other major newspapers will join the list. What goes around ….

The Times if, of course, still trying for “journalistic balance,” by giving print space to defenders of Trump to make their case. The same Sunday that the Times printed “The Allegations Are Grave. An Election Is at Risk. The Founders Were Clear,” a half-page op-ed appeared, entitled “Impeachment Is an Act of Desperation,” by Christopher Buskirk, publisher and editor of the very conservative website American Greatness. Buskirk’s argument is the reason for the title of this post.

Buskirk posits that by proceeding with an impeachment inquiry into Trump’s conduct, the Democrats are playing into the Republicans’ hands and assuring Trump of victory in 2020. Why? Because (1) “we’ve all been down this road before” and nothing Trump has done or said so far has affected his support that “has bounced around in more or less the same range since he took office,” (2) what about Hunter Biden in Ukraine? (3) impeachment “success requires broad public support,” and (4) Democrats can only beat Trump by focusing on the issues.

The corollary to the first point is that “there will be no resignation, there will be no conviction in the Senate.” That is probably true, but it misses the point that Trump’s conduct is so egregious across a broad range of areas and issues that a well-presented impeachment case in the House will serve the Democratic agenda in 2020 as well or better than any candidate on her/his own. It also ignores the Democratic sweep of House seats, and return to a majority there, in 2018. Finally, to claim that Trump’s popularity has not been affected by his prior egregious acts in office ignores the reality that his “popularity” is very low. These are not the likely elements of a winning position.

Buskirk’s second point is the classic Republican trope transplanted from Barack Obama (the usual target of Trump ego-angst) to Joe and Hunter Biden. But, no matter what the Bidens may have done in Ukraine, and so far there is no evidence of wrongdoing, a point made repeatedly by past and present Ukrainian officials with reason to know, it would not justify Trump’s attempt to arm-twist a foreign government into investigating a domestic political opponent. Except for self-defense against physical threats, American law does not support a defense that “someone else broke the law so I can too.” This is essentially the “Hillary’s emails” defense and it’s worthless. As Yogi Berra famously said, it’s déjà vu all over again.

Buskirk’s third point – impeachment success requires broad public support – is, I believe, simply wrong. Impeachment requires only a smartly executed process of compiling and presenting for public viewing the evidence of corruption in the multiple scenarios in which Trump has acted as if he were above the law. But even if Buskirk’s claim is right, we are in early days and it’s premature to conclude that the public won’t get on board as the evidence of Trump’s venality and illegality is presented. Again, this assumes the presentation is properly done. I have argued repeatedly that this must not turn into another political show with politicians sitting on the House committees trying to act like practicing prosecutors. Develop a list of “points to be proved” and leave the questioning to experts that know how to do it.

Finally, the fourth point that defeating Trump requires beating him on the “issues,” is an attempt to divert attention from what is at the root of the current mess. Trump has willfully violated a serious federal law designed to protect American elections from foreign interference and then tried to cover it up. Moving the records to a secret computer for coded security information is functionally equivalent to Richard Nixon’s deletion of 18.5 minutes of tapes involving a crucial meeting between the President and his Chief of Staff H.R. Haldeman, the revelation of which ultimately destroyed Nixon’s support in the Senate and forced his resignation prior to being impeached and removed. Trump’s crimes are extremely serious and they follow a thoroughly documented showing of at least 10 prior instances of criminal obstruction of justice in the Mueller Report. He was only saved from indictment by Mueller because the Department of Justice, dubiously, has opined that a sitting president may not be indicted.

Buskirk argues that impeachment of Trump now is just “political theater” and “more Washington psychodrama.” He claims the voters are simply uninterested in the crimes Trump may have committed and that they “just want to know what Washington is going to do for them.”

Methinks Buskirk has it backwards. Trump’s most ardent supporters seem only interested in political theater. The proof is evident in the endless tapes of Trump’s rallies that have little or nothing to do with “issues” and everything to do with performance. Trump is a star in that crowd because … he’s a star. He gives voice to their anger and fear and they see no irony in the fact that he is rich and unlike them in almost every way. He does not really share their fear and anger; he puts on the show they came to see and they love him for it even though the hard evidence is that he has done virtually nothing to make their lives better.

And that is the ultimate point. Even if Buskirk’s assessment regarding the “issues” is correct, it fails to reckon with Trump’s massive and ongoing failure to deliver on most of his electoral promises. If indeed it is only “issues” that will motivate the voters, and Trump’s illegal and immoral conduct of the Office of President and multiple violations of his oath of office are not “issues” of interest or force in the election, Trump’s performance still fails. Most of his governance actions are for “show” to impress his political base but it is not a stretch to show how he has failed to deliver.

So, is impeachment a mistake? I don’t think so. Democrats have been handed a weapon by Trump that needs to be used with surgical precision. We have a criminal in the White House, a person who does not respect the office he holds or guiding principles of the government he swore to serve. It should not be hard for the Democrats to show this to the electorate in a compelling way, to motivate their own base to go the polls in 2020 and, if Donald Trump still sits in the White House, to send him packing.

Going Along to Get Along

Since the news of Donald Trump’s latest criminality is racing ahead faster than I can keep up, I’m just going to engage in a little homespun philosophizing for a moment. The subject is “inevitability.” By that I mean the inevitability that some things that start badly will end badly.

Trump, we now know (Mueller) was elected with the substantial help of Russia. To that extent, at least, he is an illegitimate president. The majority of the American electorate, by a margin of about 3 million votes, wanted someone else to be president. Someone who, while far from ideal and with some troubling history, had shown for many years a high degree of intelligence, commitment to important human values and a willingness to serve her country, if not perfectly, at least with a serious commitment to protect its interests.

The person who was elected was not demonstrably qualified to be president. He was qualified, if at all, to be what he was: a real estate tycoon, staked by cash from his father, who had managed to bankrupt casinos, an airline, and a multitude of other businesses bearing his name. He had a reputation for dishonesty, for refusing to pay his bills, for using the legal system to bully and intimidate others and a reputation as a misogynist who was buddies with the likes of Jeffrey Epstein. His life was so exposed to public view that there was no doubt about his character and values, made all the clearer by the revelations in the Billy Bush Access Hollywood tape. Many Republican stalwarts of the day, such as the US Senator from South Carolina, Lindsey Graham, spoke of him in the most derogatory terms imaginable: “a race-baiting xenophobic religious bigot” who is “putting our soldiers and diplomats at risk” and “empowering our enemies.” https://cnn.it/2DjJHdC Another Republican leader of presumed integrity, Mitt Romney, described this person as “so not smart.”

Nevertheless, with help from Russia, Donald Trump rose to the top of the manure pile that was the Republican nominee class. Further aided by the Electoral College, a vestige of another time and country we thought had passed into history, Trump vanquished all the Republican contenders and won the general election. His most ardent supporters didn’t care whether he was qualified. They were against his opponent and liked that he “told it like it is” even though independent fact-checkers found that Trump lied multiple times a day. It took only a few days for his prior critics, Graham and Romney among them, to undergo a complete transformation. Romney went begging for a Cabinet job (rejected) and Graham became one of Trump’s most enthusiastic cheerleaders. When Robert Mueller produced conclusive evidence that Trump had committed at least 10 significant acts of criminal obstruction of justice, Graham said he didn’t care about that “obstruction of justice stuff.” https://bit.ly/2mAPxAt

In office, Trump’s conduct has matched his résumé. His speech is full of bigoted and often incomprehensible hate rhetoric. His policies have been rejected by the courts in a multitude of cases. His cabinet appointees proved to include a large number of grifters in it for the perks and unqualified incompetents with no idea how to manage a large federal department. Many have resigned in disgrace. There have been more indictments and jail terms handed out in Trump’s administration that in any modern presidency except Nixon (who resigned when impeachment was imminent) and he’s only in his third year.

The evidence is now in, and Trump has admitted most of the essential actions involved, showing that Trump tried to get the help of a foreign power to undermine his (currently) main 2020 challenger, Joe Biden. The evidence of Trump’s illegal conduct was apparently recognized by multiple staff and thus the records of the call were moved to a coded computer intended for other purposes on the “direction of White House lawyers” or other “White House officials,” which may be the same thing in this case (to be determined).

This is not, of course, out of the ordinary. The Mueller Report, about which I published a series of too-long analyses in this blog, documented multiple undisputed cases in which White House staff were directed by Trump to engage in acts constituting criminal obstruction of justice. While Mueller was unduly impressed with the failure of some of those staff, including attorneys, to carry out all of Trump’s obstruction directives, I showed there were cases in which they clearly did what Trump demanded. Mueller’s failure to indict those people remains unexplained and inexplicable.

This, then, is the central theme of the Trump administration. An entire collection of Republican elected officials, comprising a majority of the Senate, and a number of White House staff, including attorneys, have actively participated in the crimes and the coverup of those crimes.

Why do they risk everything for this?

It’s hard to fathom. For some, no doubt, it’s just the money. Or it’s just keeping the job. For some, it’s possibly the innate resistance we all have to uncertainty and major changes in our lives. For some, I’m sure, there is a misguided attachment to some ideology that they convinced themselves is being promoted by this president.  In all cases, it’s easier, much easier, to go along to get along than to do the right thing. It’s hard to give the advice no one wants to hear. If, as in Trump’s case, the boss has a short fuse, is easily angered and has made clear that personal loyalty to him is more important than virtually anything else, it’s hard to get yelled at, called out and humiliated in front of colleagues for not being a “team player,” “putting everyone at risk” and being called a rat. It’s very hard to be the odd-man-out when a big challenge is on the table and everyone else is either deferring to someone else or simply agreeing to avoid being called out. Going along to get along is the easy path. Standing on principles is very difficult.

Thus, going along rules the day. With each affirmation, each failure to object, the pressure to stay that course mounts until, in all likelihood, the possibility of taking a stand for principle, for the right thing, doesn’t even arise any more.

These outcomes, which are commonplace in society and entrenched in Trump’s history and his performance as president, are, I think, the inevitable consequence of electing someone who is fundamentally not competent to do what is probably one of the most difficult jobs in the world. And that inevitability is all the more assured when the mitigating influences are stilled.

It’s not just the Mitt Romneys and Lindsey Grahams and Mitch McConnells who are responsible, though they certainly bear huge responsibility. It’s also the voters who stayed home; it’s the voters who said “if it’s not Bernie, I won’t vote or I’ll just vote for Trump;” it’s the voters who didn’t think about the question of qualifications at all and just thought it was cool that Trump called his opponents by insulting nicknames and threatened to ban Muslims and immigrants from the United States. It’s the voters who still think a woman’s place is … nowhere. It’s the voters who are racists and religious bigots. It’s the inevitable result of all those actions, inactions and indifference.

There was, I believe, no chance that Donald Trump’s presidency could have been successful by any reasonable standard. It was clear early on that the Republican Party establishment would go along to get along; that the types of people Trump admired and appointed to cabinet and high government posts were often unqualified ideologues, in it for themselves and no one else. It was clear that nothing of substance was going to change. Inevitability was driven by the root problem of Trump’s incompetence, dishonesty, immorality and insecurity, all of which was there to be seen.

We now have arrived at the denouement of this sad, pathetic saga. Trump has admitted to seeking the aid of a foreign power to help him win the 2020 election. He participated in a coverup, adding to the multiple violations of fundamental American law of which he is guilty. He was aided in this by multiple White House staff who were going along to get along.  The time has come for a reckoning.

As I have written elsewhere, the proceedings in the House of Representatives should move forward with deliberateness. The relevant committees should hold multiple hearings to set out the evidence not only about the Ukraine episode and coverup but also the evidence of criminal obstruction of justice from the Mueller Report. The evidence should be presented by experts, and hostile witnesses should be cross-examined by retained expert trial counsel.

Above all, take the time to do this right. The American public needs to understand all of what happened, presented in a way that ordinary people can understand. DO NOT allow another Lewandowski style hearing to occur. If the committees are going to do their jobs, insist that testimony be presented under oath and if questions are refused without claims of 5th Amendment privilege, arrest the witnesses and hold them in contempt of Congress. This is the job the American people expect and deserve from their elected leaders. The time has come for a reckoning.

There is much talk in the press about whether a majority of Americans support impeachment. That, I suggest, is the wrong question. This is not a political popularity contest whose outcome should depend on ever-shifting polls. 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. The Republicans in the Senate will undoubtedly act as they have always acted, supporting the regime no matter what it does. So be it. Make the case for the voters to see. Do it professionally and soberly in keeping with the gravity of the task.

It will be hard for politicians, especially those running for president, to give up some of the limelight but it is essential that they do so in the interest of bringing an end to the massive and unrelenting corruption that has infested the Trump presidency from its inception. The time has come for a reckoning.

 

Omertà – The Vow of Silence

Once again, it is reported that putative president Trump has “ordered” certain citizens to either limit or completely refuse to respond to questions from a duly authorized congressional investigating committee looking into, among other things, Trump’s conduct of the office of president and probable instances of illegality as documented in the recent report of the Office of the Special Prosecutor (the Mueller Report). This is not the first time, not is it likely to be the last, as Trump desperately employs every tactic possible to prevent a true accounting of his crimes.

Rep. Jerry Nadler, the chair of the House Judiciary Committee, reportedly has said that Trump’s position is a “shocking and dangerous assertion” and that

 “The President would have us believe that he can willfully engage in criminal activity and prevent witnesses from testifying before Congress – even if they did not actually work for him or his administration.”

Yes, that is exactly what Trump is doing. Trump appears to believe he’s still running a reality TV show.

On the face of it, Trump’s demands for omertà, the mob vow of silence regarding talking to law enforcement, are just another example of multiple instances of his criminal obstruction of justice. It appears that his lawyers have advised him that this strategy can be based on the principle of “executive privilege” that was analyzed and interpreted narrowly in the seminal case of United States v. Nixon, 418 U.S. 683 (1974), in which President Nixon tried to defeat a congressional subpoena for the Watergate tapes. Trump’s position has more kinship with the Mafia version of omertà than to any legally sound claim of executive immunity from congressional oversight.

For one thing, in the current situation, Corey Lewandowski, the target of one subpoena, never worked in the White House. At a minimum, that reality makes the extension of executive privilege to Lewandowski’s actions and knowledge a bridge too far. As for testimony by former White House aides Rob Porter and Rick Dearborn, Trump has asserted “absolute immunity” to their responding to any and all questions about their time in the White House.

This seems on its face to be a losing position. United States v. Nixon pretty well disposed of the idea that executive privilege was “absolute” and that a president could prevent the production of evidence by blanket assertions of privilege. At best Trump may buy some time with this stalling tactic but is almost certain to lose in the courts, assuming, of course, that the House Judiciary Committee does not simply accept this rejection of American constitutional principle.

Trump has not thus far asserted any other basis for preventing the testimony of former aides. He has not, for example, claimed that they signed non-disclosure agreements. Even if they had done so, I suggest any such agreements would be void on their face as against public policy. Trump may not have figured it out yet, but he is neither a king nor a CEO of the United States. As putative president, he is subject to the constraints implied by the separation of powers that was created by the Constitution. He cannot, therefore, expect to shield the public’s business from scrutiny by demanding that public servants who happen to have worked in the White House refuse to testify in response to oversight by congressional committees.

Other than executive privilege or private agreements, no other basis appears possible to permit the president to order private citizens to refuse subpoenas properly issued by congressional committees. What then should happen if, as expected, Lewandowski, Porter and Dearborn elect to tow the Trump line?

I suggest that the next steps should be to hold the three witnesses in contempt of Congress. If, as I believe to be true, their arrest is provided for in the criminal code, they should be arrested. I understand they are in a difficult place, caught between two warring forces in a contest for the preservation of democracy in America. They are, however, making a choice in following Trump’s demands. They could choose to do otherwise and act as good citizens providing the knowledge they have in response to questions from the investigating committees. If, as appears to be the case, they elect omertà, they should face the consequences of their choice.

A contempt of Congress citation should also be issued against the president. Likely he cannot be arrested while holding office, but his improper use of executive privilege to shield his administration and himself personally from congressional oversight should be met with every indicia of formal legal force that the circumstances will support and let the courts sort it out.

We have reached the point of no return regarding Trump’s abuse of his office. The congressional staff memo about which I posted yesterday clearly supports impeachment for the obstructive conduct of this president. No reason appears for treating him with the proverbial kid gloves. He is itching for a fight and the House investigative committees should give it to him. Nothing is to be gained by timidity in the face of Trump’s continued rejection of democratic and legal norms and constraints on his behavior. His legal position is untenable. The time to act aggressively against his administration has arrived.

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.