Tag Archives: Mueller

Occam’s Razor – Trump Explained

The thinking segment of the American population, myself included, continues to wonder, often involuntarily, what forces could produce a person as unworthy as Donald Trump and then elect him to the most powerful political leadership position on earth. With each passing day, the conundrum grows as his conduct becomes even more horrific and dishonest than the day before than the day before ….

The principle of Occam’s Razor says, in its simplest form, that of two alternative explanations for something, it is usually the simpler one that is correct. More accurately, it is Ockham’s razor, named after a philosopher whose adulthood was spent in the 14th Century. The concept has other names, such as the law of economy.

In any case, if you apply that principle, Donald Trump is easy to understand.

Trump is a rich, over-privileged man who has always had his way by bullying, threatening and lying, using his wealth (handed to him by Daddy & later ill-gotten) to file lawsuits, abuse the bankruptcy laws to thwart paying off creditors and generally demanding and getting whatever he wanted. He is accustomed to being catered to by employees desperate to keep their jobs even at the expense of their dignity and by women seeking the “benefits” of being around a rich guy who lavished them with gifts in return from whatever they were willing to provide, including, most recently, their silence so that his campaign to be president would not face the inconvenience of revealed extramarital affairs.

Now, most people in Trump’s shoes conduct their perfidy in private, because obscurity serves to protect them from exposure for the type of people they really are. The recent spate of disclosures in the #metoo movement show how that has worked in the past. Hopefully, no more. But Trump has never shied away from public display of his crassness, witness his gold apartment in New York, or making excuses for his numerous business failures. He simply lies about them, denies everything and moves on to the next misadventure funded by his money and other people’s money who were foolish enough to ignore the evidence of his incompetence.

Trump is the perfect example, I suggest, of the Occam’s razor principle, which is exemplified perfectly in a quotation attributed to Coco Chanel: “There are people who have money and people who are rich.” Trump is the former.

In the normal course of human events, it is rare to come across someone who is openly a serial liar, racist, homophobe, nativist and the more we see of Trump, the more people wonder: how can this be true, that one person could so publicly display his duplicity, lack of morality, aversion to kindness hostility toward people less fortunate than himself and on and on. People seem to believe there is more to the man; there simply must be. No one can be this shallow and empty a soul and still have friends and still be respected by people who, superficially at least, are themselves respectable.

I suggest again that the search for a complex solution to these questions is hopeless and pointless. Trump is exactly what he appears to be and there is zero chance that he will change. The life forces that produced this person are not likely to suddenly produce a revelation in which Trump will come to understand how horrible a person he is. He will simply deny everything and carry on as before. If imprisoned ultimately for his crimes against the country and against humanity, he will be led away in chains proclaiming that the American system of justice was rigged against him, that he is in fact the greatest victim of all time. Look at me! Look at me!

Much has been made of Trump’s appetite for cheap hamburgers and of his apparent inability to spell or use complete English sentences in his speech. Again, this is finding complexity when a simpler and more obvious explanation exists. Trump’s malapropisms and misspelled/misused words in his tweet tantrums are, I suggest, deliberate acts to draw attention to him and away from both his “policies” and his treasonous guilt. The more Trump gets people guffawing over his style mistakes, the less they will focus on his misconduct and incompetence.

Granted, this strategy is only partially successful. Trump’s substantive failings get plenty of attention in the Twitterverse and in the political media, but that attention is a fraction of what it might be if he were not, metaphorically, dressed in a clown suit, squeezing his nose while making honking sounds and all the other distractions on which he trades.

In the end, it’s not going to work. Robert Mueller’s investigation seems itself to be an example of Occam’s razor at work. Mueller’s team is sifting through mountains of evidence to get at simple truths that state, yes, he is guilty. Stated metaphorically, when there is this much smoke, one of two explanations is true: there is fire or there is not. Bet on “not” at your peril and keep your day job.

Force Trump to Plead the 5th Amendment

Shortly after Brett Kavanaugh, with full support from the Republicans on the Senate Judiciary Committee, stonewalled on all the important questions put to him, and may have lied about others, the news arrived that Trump’s attorneys have advised that Trump will not respond to questions from Special Prosecutor Robert Mueller in any manner, oral or in writing. This latest zigzag in Trump’s position regarding the Russia investigation may be a direct result of Kavanaugh signaling that nothing Trump does could lead Kavanaugh, as a Supreme Court Justice, to decide in favor of presidential accountability while in office.

Given that the Republicans have once again prevented the Senate from fulfilling its constitutional mission of advising and consenting to a presidential appointment to the highest court, it seems to me it is time to call the question on the bigger questions related to presidential accountability. It is time, I suggest, that Mueller should stop fooling around with Giuliani and camp and subpoena Trump to testify under oath about the Russia collusion issues before a grand jury. This would, of course, expose Trump to huge risks that he would perjure himself, further establishing the existence of “high crimes and misdemeanors,” the Constitutional threshold for impeachment. For that reason, among others, Trump would undoubtedly refuse to comply with the subpoena and the issue would then be put to the courts.

If, as is almost certain, Brett Kavanaugh is confirmed and the issue reaches the high court, which it will, Kavanaugh will be faced with the non-hypothetical question whether he will recuse himself from a decision regarding the power of the presidency to stand above the laws that apply to every other person in the country. Having just vanquished a king to gain the freedom of a new country through the Declaration of Independence and the Constitution, it is quite unimaginable that the Founding Fathers intended such immunity. Nevertheless, the issue has not been decided by the Supreme Court. It is also hard to imagine a better case to present the issue than one in which the nation’s chief executive declares that he is not accountable to even testify about his possible corrupt obstruction of justice and interference in the election that placed him in office. This is likely the best case that will ever exist for getting a ruling that the president is not above the law.

Of course, the president would have the ability to avail himself of the protection against self-incrimination afforded other citizens under the 5th Amendment. To avoid incriminating himself,

Trump would almost certainly be advised by his attorneys to plead the 5th Amendment in response to all questions put to him by Mueller’s investigators.

Imagine for a moment that Trump is asked direct questions about his knowledge of contacts with Russians, cooperation with Russians and more regarding the suborning of the election that we know to have occurred in 2016. He has four choices.

One, tell the truth. That’s probably not a good choice for him since the publicly available information strongly suggests his active complicity in the Russian election activities. We don’t know what Mueller knows but neither does Trump. In any case, truth-speaking is not his style, especially when it will make him look bad, so telling the truth is likely off the table.

Option Two, lie. This is the course he would be most tempted to take since he, and this is thoroughly and incontestably documented, lies multiple times a day about all manner of things, great and small. Telling lies about his conduct in this situation would expose him to a perjury charge, however, not a place he would want to be. Recall that he does not know what Mueller knows and can prove. Trump’s attorneys would be, indeed have said they are, so concerned about Trump’s propensity to fabricate that they would likely insist that he take Option Three.

Option Three, plead the 5th Amendment. Refuse to answer “on the grounds that answering may incriminate me.” Under American law, pleading the 5th does not constitute an admission of guilt and pleading may not by itself be the basis for a finding of guilt. In the minds of many members of the public, however, a president pleading the 5th Amendment on matters of this seriousness would be tantamount to a confession.

Option Four, refuse to appear for questioning. This might be seen as the “nuclear option,” whereby the president says, in effect, “I refuse to be held accountable and will not cooperate in the process that is trying to destroy me.” This question, I believe, was decided by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), a unanimous decision by the eight Justices participating (Justice Rehnquist did not participate). The opinion upheld a subpoena directing the president to produce to a grand jury certain tape recordings and documents relating to his conversations with aides and advisers. The grand jury’s prior indictment of seven people had named the president as an “unindicted coconspirator” in defrauding the United States and obstructing justice.

Trump’s attorneys would certainly argue that the Nixon decision was “distinguishable” from the Trump case. That is one of an attorney’s jobs and there is no doubt Trump’s lawyers would present the question to the courts, which would then make the final decision regarding the scope of the president’s immunity from the legal processes that apply to everyone else. To simply refuse to cooperate would, I think, not only create a “constitutional crisis,” but it would go a long way to weakening Trump’s political support in Congress.

I do not suggest, of course, that all Trumpers would turn on him in these circumstances. For reasons not fully understood, there apparently are millions of people who are so entranced by the Trump persona that nothing he does or says, or fails to do or say, will change their view of him. But they are already a minority of the voting population and, I suggest, the president taking the 5th Amendment on questions related to subverting the American electoral process or, worse, simply refusing to cooperate, would move many voters across the line. Unmoved though they may be by the reality that Trump supports policies directly injurious to their economic, social and physical well-being, many of those at the margin of acceptance would finally say “enough.” We don’t need them all to achieve a massive reversal in the polity in favor of reason and the rule of law. If, on the other hand, I am wrong about this, we are probably no worse off than before but we will have a better understanding of where the law stands on these issues and can take whatever actions are then necessary and appropriate.

Therefore, I submit, it is time to call the question on Trump. Time to force him to choose between telling the truth, lying, pleading the 5th Amendment or simply declaring “I am above the law.”

Republicans Berserk Over Anonymous NYT Op-Ed

This morning I awoke to find that Scott Jennings, “a CNN contributor, former special assistant to President George W. Bush, former campaign adviser to Sen. Mitch McConnell and currently a partner in a PR firm he co-founded in Kentucky, had published through CNN an attack on the decision of an anonymous Trump administration official to publish through the New York Times a statement about the chaos and malfunction in the Office of the President of the United States.

First, I want to acknowledge that Mr. Jennings is a very smart and accomplished person. His brief bio on CNN.com does not reveal that he is a Resident Fellow to the Harvard Institute of Politics. He had roles in both of President Bush’s campaigns in 2000 and 2004, before becoming Special Assistant to the President and Deputy White House Political Director in 2005. Among other things, his office advised the president on many issues. Jennings has helped elect U.S. Senator Mitch McConnell (’02, ’08, ’14), among others.

He also knows how to spend money in politics. In 2014, Jennings served as senior advisor to a Super PAC that spent millions supporting the re-election of McConnell. He also served in a similar role for the Kentucky Opportunity Coalition, a 501(c)4 non-profit that has spent millions of dollars on “issue advertising” in Kentucky since 2013. This biography makes clear that Jennings is a hard-core Republican operative with a likely interest in backing an imperial view of the president’s position.

The anonymous New York Times op-ed is by turns shocking/disturbing/terrifying (take your pick or all of them) in its acknowledgement of the disfunction in the White House led by an erratic and untrustworthy person but also reassuring to a limited degree in its contention that there are “adults in the room” taking care of the nation’s business when the president goes off the rails.

Note also a point largely overlooked in the breathless analysis of the event: “many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office.” If true, the op-ed author is not alone in resisting the president. Also note that the author says the root of the problem is the “the president’s amorality,” and that he is “not moored to any discernible first principles that guide his decision making.” These comments support the view, often stated in press interviews, that Trump makes up everything as he goes along, based on some internal belief that he is a “stable genius” and knows more than all the experts that surround him in Washington.

The Republican establishment is going berserk over the idea that a high administration official would speak anonymously about the situation in the White House. Remarkably, many Republican voices are a chorus on the point that “we all knew Trump was bonkers” so there’s no news here. Their big objection is that someone close to the president has anonymously admitted to actively resisting Trump to prevent him from damaging the national security of the United States. Their view is that this person should instead resign his/her position and then shut up so the president can go about his business in any way he likes.

That appears to be the core of Jennings’ objections to the op-ed: “These statements are alarming, of course, because of the “senior” level status of the government official purported to have written them.” In other words, if the op-ed had been produced by a low level employee, who cares?

“But they are also alarming.” Jennings continued,

“because an anonymous, unelected government appointee is substituting his or her judgment for that of the duly elected leader of a constitutional republic. Nowhere in the op-ed does the appointee allege criminal or treasonous behavior on the part of the President. Rather, this person says the President is not faithful to “ideals long espoused by conservatives,” and conducts meetings that “veer off topic and off the rails. While I agree that unfaithfulness to conservative principles and bad meeting habits are annoying, are they grounds for the unelected to put themselves above the will of the people?”

Really? Just “annoying?” “Will of the people?” Jennings assumes away one of the most critical questions implicated by the op-ed, namely, that the Trump administration, having received massive support from a foreign power (Russia), is therefore illegitimate and that Trump is an unhinged person incapable of exercising the vast responsibilities of the office he holds. One must be careful about “will of the people” arguments in the context of the Trump administration where there is an outstanding investigation of possible collusion, with the president’s knowledge and approval, with a foreign power to steal the election.

When Jennings states “Voters knew exactly what they were getting with Trump,” he is implicitly admitting that the claims about the unhinged and dangerous behavior of the president are legitimate and certainly not surprising. Yet he, and the other Republicans howling about the op-ed, continue to argue that the use of anonymity and the acts of resisting the president are more important than assuring that the president does not undertake dangerous actions harmful to the country. I can’t say this is surprising when the record of the Republican-controlled Congress is considered. Those politicians clearly care more about retaining their party in power than they do about the risks to the country and the world from having a leader who resembles Kim Jong-Un in more ways than one.

Jennings also argues that the op-ed author has a “duty to resign” and then should reportwhatever egregious behavior he or she has personally seen to Congress and the Special Counsel Robert Mueller.” There are two problems with that position.

One, if all the insiders resisting the president’s unhinged behavior were to resign, there would remain no internal resistance to his “egregious,” or much worse, behavior. The sudden interest of Republicans in “honor” is a pathetic joke in like of the failure of Congress to exercise its checks-and-balances responsibilities.

Second, Mueller’s investigation is not about “egregious behavior” and Mueller’s taking such information would just lead to more Republican screeching about Mueller illegally expanding his investigation beyond its proper boundaries. It is beyond cynical to now suggest that Mueller look into the president’s “amorality.”

It should also be noted that if the op-ed author were to reveal his/her identity, he/she would immediately be fired, perhaps even arrested. That’s asking a lot of someone who was apparently trying to mitigate the worst aspects of a dangerous autocrat’s tenure in the nation’s highest office.

It’s also more than a little hypocritical to be arguing that there are superior “remedies created for us by the founding fathers.” Technically, that is true, but since the Republican majorities in the House and Senate have shown only blind obeisance to Trump regardless of his outrageous behavior bordering on if not actually treason, it is clear that the regular constitutional mechanisms for controlling an out-of-control president are not effective.

Jennings has a somewhat fair point in saying, “Is it right for unelected people to make decisions for him? Is this a signal we want to send the rest of the world, that constitutional order has fallen apart in the world’s most durable democracy? Because that’s precisely the destabilizing effect this op-ed will have on America’s standing in the eyes of our friends … and our enemies.”

Maybe, but if one was awake during the period since Trump’s inauguration, it should be clear that the constitutional order has already fallen apart and that our relations with friends around the world have been undermined and destabilized by the conduct of the president. It’s a bit late and completely cynical for anyone on the Republican side to be citing the “constitutional order” as a basis for objecting to the op-ed.

Jennings also argues “Those who stole papers from the Oval Office must be subpoenaed by Congress to explain themselves, because we deserve to know whether they have a good reason beyond just policy differences with their boss.” The basis for the Congress to investigate the conduct of Executive Branch appointees is not apparent to me. Think about what that process would look like. Such “investigations” could not be held in public so we would have members of the White House senior staff and possibly Cabinet officers testifying in secret Star Chamber-like proceedings that would inevitably resemble the days of Joe McCarthy. The fruits of the Trump presidency.

Jennings goes on to address the formal ways the Constitution provides for addressing problems with the president:

The founding fathers provided three tools to stop a runaway presidency — elections, impeachment, and invoking the 25th amendment. The Times op-ed writer admits that no one in the Trump administration “wanted to precipitate a constitutional crisis” by invoking the 25th Amendment, which allows for the removal of a president. This tells me that the writer’s concerns aren’t widely held enough to actually rally a constitutionally allowable coup against the President.

That leaves impeachment, which I suspect House Democrats will pursue come January if they take over the House of Representatives via elections in November. Strangely, Democratic leaders must not believe impeachment to be a winning message, as they continuously try to tamp down talk of it on the campaign trail, despite the desire of their base to toss Trump in the Potomac River. [emphasis added]

This is all well and good but fails on several grounds. First, the decision of staff, or whomever was involved, not to seek 25th Amendment relief does not logically support the assertion that the writer’s concerns weren’t widely held. That argument is similar to the position often espoused by KellyAnne Conway that since Trump won the election, no one cares that he lied about disclosing his tax returns. Second, citing the checks and balances is fine but it’s grossly hypocritical, and worse, to suggest at this stage that the Republican-controlled Congress is going to lift a finger to corral the president.

Jennings closes with a clearly political message.

The writer would do well to view the situation through the prism of an average, middle-American voter who selected Trump less than two years ago. That person is likely to believe that the economy is humming, that optimism is rising, that the President is appointing good judges, and that even the Congress is operating efficiently in what is supposedly a chaotic environment.

There are better ways to handle this beyond signaling that elections and our constitution have lost their usefulness as the means to enact change. Perhaps allowing an election to pass, so that actual voters can consider the facts and render a judgment, is more prudent than circumventing the established constitutional order that has served our republic well.

I suggest that the op-ed author viewed the situation from a greater awareness than worrying about what Trump’s political base may think, especially considering the evidence that many of them don’t think at all. It is far better to think about this issue apart from politics. The “established constitutional order” is hardly “served our republic well” by any reasonable standard. When the substance of the op-ed is combined with other known evidence, not least the revelations in Bob Woodward’s forthcoming book, Fear, it may yet be true that the anonymous author of the op-ed will indeed be regarded as a hero. The election that Jennings prefers as the arbiter of Trump’s performance is drawing close and it will tell us much on that question.

Footnote: I just heard another pundit on CNN saying Trump was “duly elected” and therefore the op-ed author is on shaky ground criticizing him. I repeat: media people should stop saying “Trump was duly elected.” There are outstanding legitimate concerns about the “duly” part of that story that are under active federal investigation. The press has no business just writing such issues off in their discussion of issues affecting the administration.

Treason – Why Do They Do It?

The events of the past few days do not need recounting. By now, anyone who is awake is aware that the President of the United States adhered to and gave aid and comfort to an enemy of the United States. I define “enemy” here as a country that interferes in the internal politics of our democracy to prejudice the outcome of an election. My view is that because the Constitution sets out three separate forms of treason, only one of which involves “war” as such, it is possible to commit treason with a country as to which the United States is not technically “at war.” And I believe Trump clearly did that in Helsinki. No amount of later backpedaling and doubletalk can cancel what he did, especially recognizing that he insisted on a no-witnesses meeting with Putin that lasted for several hours.

The Constitutional definition of “treason” is stated as follows in Article III, Paragraph 3:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open court.”

I am aware that there is a lot of debate among legal scholars and historians about the exact meaning of Article III’s definitions and I don’t propose to recount or resolve them here. Instead, I am interested in the underlying question: why does anyone commit treason? In simpler terms, what would motivate an officer of the United States, and in particular the highest officer, to side with a foreign country engaged in hostile acts against his country when such alignment is resisted by most or all of his most senior and experienced advisors?

That question has now risen in importance as a result of the travesty of Donald Trump bowing and scraping before Vladimir Putin at the Finland joint press conference. Even members of Trump’s own party are asking the question because they conceive of no explanation that makes sense. His later “I meant ‘wouldn’t’ instead of ‘would’” warrants no more comment or analysis than just “look at the video and you will see he meant what he said: ‘would.’

The possible reasons for committing what I, and many knowledgeable commenters, believe was an act of treason include at least the following:

  • Ideological alignment on issues of overriding importance to the actor
  • Mental illness such as to fundamentally impair his ability to make decisions
  • Stupidity
  • Money/Avarice
  • Power
  • Blackmail

There may be some I haven’t thought of but for now this is the list. Let’s consider them one by one.

Ideological alignment on issues of overriding importance to the actor: I dismiss this one out of hand because Trump appears not to have a consistent ideology of any kind. He adopted the mantle of Conservative Republican when it suited his political ambitions but historically he has been all over the place on matters of ideology. There is no reason I have seen (confessing I might have missed it) that he would be attracted to communism or socialism. Ultra-right fascism is definitely a possibility, given his pre- and post-election tendency to morally equate the actions of white supremacist/Nazi/alt-Right extremists with those of the progressive Left. He clearly is attracted to authoritarian leaders – aside from Putin, Duterte of the Philippines comes to mind. Trump’s business history is that of a bully who pushes around and cheats people who are not in a position to fight back on an equal footing. 

Mental Illness:  Many experts and non-experts alike have addressed the question whether Trump has a “mental illness,” a “personality disorder,” or dementia of some kind. I don’t know the answer, of course, but am reluctant to argue that the fact of Trump’s seeing everything differently than I do is evidence of any of those things. Certainly, his behavior evinces a monstrously large ego, massive insecurity and need for approval and similar considerations, but whether those obvious characteristics would lead a person to commit treason seems weak. The same for his propensity to bully everyone to show that he is the bigger man, the most important person in the room/world.

Stupidity: To be clear, I believe Trump acts like an ignorant fool most all the time. He knows little or no history, reads little or nothing, declines to be briefed and appears to believe his massive intelligence overshadows all experts in all fields so that no one has anything useful to tell him. Still, can we conclude that he is just plain dumb? On the surface, at least, he is (was) an educated person. And he has had the resources to continue to be educated, though he seems to have affirmatively avoided taking in new information for decades. Trump is willfully uninformed about the important elements of his job, but does that mean his is too stupid, too ignorant to understand that aligning with a historical enemy of his country, run by a dictator (spare me the baloney about how Putin was “elected” in a democratic process in Russia)?

Money/Avarice:  Considering Trump’s refusal to release his tax returns, the mounting evidence of secret business deals with Russians, his numerous lies about whether or not he has business relationships in Russia, and his and his family’s continuing to profit from incomes fed to his business empire by foreign interests, a plausible argument can be made that Trump would sell out his country simply to secure his business interests. It is possible that much of his past business activities have been funded by Russian interests. On the other hand, Trump is a very rich man and getting richer every day, often at the expense of the American taxpayer. So, would he commit treason for still more money? Possibly, because, for people like Trump, there is never enough money. The more they get, the more they want more. Always more.

Power: The president of the United States is reputedly the most powerful person in the world. What additional power would he expect to get by supporting a hostile foreign power against his own country? His party controls both houses of Congress already. He knows that cozying up to Vladimir Putin is worrisome or worse to even many Republican members of Congress who are otherwise slavering all over him to prove their loyalty (that he appears to value above all else, including competence). Yet, to borrow a contemporary meme, he persists. The power explanation rings true somewhat, especially when combined with the Money/Avarice option. It may be that my list oversimplifies a multi-element explanation. The answer may be a combination of personality disorder/willful ignorance/grasping for more personal and family wealth and power. Could be. But there is at least one other choice.

Blackmail: Since the disclosure of the Steele dossier (see https://bit.ly/2nFuZn4), rumors and stories have continued to surface about Trump being a Russian asset or at least subject to blackmail related either to personal misconduct in Russia or corrupt business dealings there. These views have gained new momentum in the wake of Trump’s bending the knee to Putin in Helsinki. There is no known way at the moment to verify this, although one hopes that the Mueller investigation is looking very deeply into the web of Trump-Russia connections and Trump’s inexplicable fondness for a historically hostile power. The extraordinary detail in the indictment of the 12 Russian hackers is an indication of the sophistication and thoroughness of U.S. counterintelligence expertise when aggressively applied in the hunt for traitors and their enablers.

Bottom Line: Spoiler alert: anticlimax coming.

I suspect that the awful reality is that, as suggested above, the explanation for Trump’s conduct toward Russia and Putin has multiple sources. Treason, especially by a president, is so serious that we must not yield to the temptation to believe in the simplest “explanation,” an “obvious” single cause.

Avoiding impatience is also important. Having conducted a corruption investigation early in my career, involving confidential “inside” sources, a conspiracy among multiple parties, some with “stellar reputations,” and serious efforts by numerous parties to hide the truth, I can attest to the importance of letting the painstaking, often tedious, investigative work proceed to whatever conclusion it will reach. The demands of Trump’s Republican enablers in Congress and elsewhere to “end the investigation” because it “has produced no evidence of collusion” are simply partisan and delusional wishful thinking. They have no idea what information is building inside the Mueller investigation and will not know, as we will not, until Mueller decides to conclude his work and report his findings.

Mueller’s Indictment of Russia Hackers — Updated

In the original post, I reported that paragraph 43(a) of the Mueller Russian hacking indictment stated that a “candidate for the U.S. Congress” asked for, and received, stolen emails from the Russia hackers posing as Gucifer 2.0. The information related to the candidate’s opponent.

There is related news. The Palmer Report has stated that the Congressman in question is likely to be Rep. Matt Gaetz (R-FL). https://bit.ly/2NPvWVX The basis for the report is that Rod Rosenstein had advised Trump in advance that the Mueller Russian hacking indictments were imminent and had identified to Trump the Congressman referred to in paragraph 43(a). Apparently concerned about the fate of the Congressman, given his involvement in using the stolen materials from the Russia hack, Trump issued a tweet out of the blue while on his overseas trip:

“Congressman Matt Gaetz of Florida is one of the finest and most talented people in Congress. Strong on Crime, the Border, Illegal Immigration, the 2nd Amendment, our great Military & Vets, Matt worked tirelessly on helping to get our Massive Tax Cuts. He has my Full Endorsement!”

Why Gaetz? Palmer Report suggests it’s because Gaetz is close to Roger Stone who has admitted that he, Stone, is the unnamed Trump associate mentioned in the indictment. Prior to the disclosure of the indictments, Gaetz was all over the news for months, complaining that the Mueller investigation was biased. No wonder Trump likes him.

Back on June 14 Politico reported that Rep. Matt Gaetz (R-FL) was among the chorus of Republicans wetting themselves (I said that, not Politico) over the Justice Department’s inspector general report about FBI agent Strozk, saying:

“It is smoking-gun evidence that the Mueller probe is built on a rotten foundation,” said Rep. Matt Gaetz (R-Fla.), a freshman lawmaker on the House Judiciary Committee who has also earned Trump’s praise for his criticism of the Russia inquiry.”

https://politi.co/2uwkohy

Curiously, though, I can find no indication that Gaetz has had anything to say since the indictments were released and Trump effectively outed him. There is nothing on his official congressional website.

There is some element of speculation in all this but it is mighty curious that Trump would suddenly rush to Gaetz’s defense when no one else but Mueller/Rosenstein knew Gaetz was the Congressman mentioned in the indictment.

So, the plot thickens. And the Republican enablers of Trump’s treasonous conduct continue to berate the investigators.  None of those Republicans can answer the question: if Trump is guilty, what difference does it make that some of the investigators that collected the evidence were opposed to his presidency? Their logic is that it is only important that he’s guilty if he’s exposed by evidence collected by people who have no opinion on whether he is, or even might be, guilty. The thing is that people with no functioning minds are not very good at collecting evidence.

 

 

 

 

 

Mueller’s Indictment of Russia Hackers

I have plowed through the entirety of the indictment, which is full of details about the Russian hacking of the Democratic National Campaign Committee and related bodies. I only have a few observations to offer.

First, the indictment makes clear beyond a doubt both the sophistication of the U.S. intelligence apparatus in discovering these remarkable details about the hacking operation. It also explains in part why the Mueller investigation is taking so long. An extraordinary amount of work must lie behind the allegations in the indictment.

Second, the indictment has no direct bearing on the issue that Trump and his enablers are so obsessed about – to wit, the issue of collusion. As a result, the assertions of the Republican National Committee and other Trump sycophants that it is now “clear” that there was no collusion by the Trump campaign is preposterous on its face. These repeated claims of innocence are candy for his base, but Trump shows every sign of someone deeply guilty of serious crimes.

Third, the indictment contains a remarkable statement in paragraph 43(a). I must have missed the reporting on it. It states that a “candidate for the U.S. Congress” asked for, and received, stolen emails from the Russia hackers posing as Gucifer 2.0. The information related to the candidate’s opponent. The indictment gives no hints whether this was a candidate for the House or the Senate, nor any other potentially identifying details. But, whoever it was, that person must be sweating bullets tonight. And deservedly so.

So, on this Friday the 13th, the scary stuff is over for now. But not for long. I suspect this is just one small part of the muck that Mueller’s people are exploring.

Law Professors’ Letter Thrashes Trump Claim to Powers of a King

I was in the middle of drafting a long and detailed dismemberment of the two letters recently published by the New York Times, letters written by Donald Trump’s attorneys to Special Prosecutor Mueller. https://nyti.ms/2Lg6kiQ  The letters escalate the conflict to a new and perhaps ultimate level by asserting that the president, under the U.S. Constitution is empowered to use his discretion to stop any investigation into any crimes he may have committed, including treason, and to pardon himself, along with any involved parties, including his family members, for any crimes alleged, whether or not formally charged or convicted. I was going to title it “Trump’s Attorneys Declare War on the U.S. Constitution.”

But there is no need for that because of the intervening publication in https://protectdemocracy.org/law-professor-article-ii/, widely reported, of a letter from a list of distinguished law professors that totally demolishes the Trump attorneys’ claims. If you do nothing else today, you should read the letter. To help you, I have reproduced it below, without the signatories and footnotes (in the interest of space) but you can see all of it at the link cited just above. Here is the letter:

“June 4, 2018

Donald McGahn II
White House Counsel
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Emmet Flood
Special Counsel to the President
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Dear Mr. McGahn & Mr. Flood:

We, legal scholars who study and teach constitutional and criminal law, write in connection with the President’s apparent belief that he is empowered by the Constitution to halt the Special Counsel’s investigation into alleged Russian interference in the 2016 election for any reason whatsoever, and his apparent view that he is not constrained by Congress’s duly enacted laws prohibiting the obstruction of justice. As reported in the New York Times, attorneys for the President wrote a letter to Special Counsel Robert S. Mueller asserting that the Constitution empowers him to “to terminate the inquiry, or even exercise his power to pardon,” and that he cannot illegally obstruct any aspect of the investigation because of these powers.[1]These views are incorrect.

First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting “corruptly” to interfere with federal criminal investigations.[2] Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.

(1) Article II and Faithful Execution

While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed” (emphasis added). Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power.

When the Founders thus defined the Presidency as an office bound and restricted by overarching duties of care and faithfulness (fidelity) to the Constitution and laws of the United States, they were invoking the well-known concept of treating a public officer as a fiduciary.[3] In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions.

The President’s duties of care and faithfulness are the fiduciary duties most explicitly required by the Constitution, a document that refers to many offices as “Offices of Trust,” invoking the legal concept of trusteeship (a fiduciary relationship). Mirroring the Constitution’s text, the Federalist Papersrepeatedly use the language of care, faith, and trust to describe the offices and duties of all three branches of the federal government and the way their powers should be exercised on behalf of the American people. George Washington, in the opening lines of his first inaugural address, spoke of the presidency as a “trust” committed to him by the American people.[4] The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty bound to act with faithfulness to the law and the people, not to his own selfish interests. A similar view of the office underlies the conclusion of the Department of Justice’s Office of Legal Counsel that a president may not pardon himself.[5]

It is not strange that the Founders chose to create a chief executive who would be bound to act for public-spirited reasons, rather than pursuing self-interest, self-dealing, or self-protection. Monarchy and all of its attendant ills were rejected by the Founders. The President would not be a king by another name.[6] By banning titles of nobility,[7] and providing that the President would be elected to a term of years,[8] not chosen on hereditary principles, and not ruling for life, the Constitution addressed the fear that a chief executive’s primary interest would be perpetuation of his dynastic successors and retainers rather than the good of the country. Many English kings had been foreign born, and still held lands and titles abroad, giving them personal interests that might differ from those of the citizenry. In response, the Constitution requires that the President be a citizen.[9] The President was to be given a salary while in office, and prohibited from imposing taxes or otherwise raising funds on his own authority, and also positively barred from accepting bribes, gifts, or other emoluments of office from foreign governments or state governments.[10] Typically monarchical kinds of financial self-dealing by the chief magistrate were therefore substantially checked. And importantly, the Constitution was conceived at a time when the English Bill of Rights constrained even the monarch from exercising the so-called “dispensing” power to dispense with or suspend Acts of Parliament.  Our Constitution similarly limits the President, and certainly cannot be read to grant him a power the British monarch lacked.[11]

These structural checks against abuses typical of monarchy further elucidate the Founders’ vision—seen in the Oath and Take Care Clause—of a chief executive bound to act with care and fidelity for the benefit of the country, not himself personally. Other structural provisions in the Constitution which evidence a norm against self-dealing support this reading.[12]

The President’s executive powers therefore would not permit him to terminate the Russia investigation by firing the Special Counsel or his Department of Justice supervisors; to order the destruction of evidence developed in the Special Counsel’s investigation; to pardon himself or other subjects of the Special Counsel’s investigation;[13] or to attempt to quash a subpoena, if the President takes any of these actions motivated predominantly by self-interest. Indeed, the Constitution, properly understood, would prohibit all of those actions under those conditions.

Because the President does have vast powers as head of the executive branch, and because the difference between public-interested (constitutional) and corrupt (unauthorized and hence unconstitutional) presidential actions may often turn on the reasons for which actions are taken, the lawyers for a President have an especially important obligation of their own to the Constitution and people of the United States. The President’s lawyers must counsel their client so that he understands that acting for the right reasons is the key to lawfully exercising the great powers he wields.

(2) Congress’s Obstruction Statutes and the Separation of Powers

In addition to internal constraints imposed on the President by the text of Article II and constitutional structure, the President is also externally constrained to avoid obstruction of justice.

The mistaken claim that Article II provides a complete defense to obstruction by the President rests in part on the incorrect premise that the Constitution grants him the exclusive right to exercise the executive powers. A President’s Article II powers must be read in conjunction with the restrictions the Constitution places on the federal government, Congress’s Article I powers, and the courts’ Article III powers, as well as laws duly enacted by Congress. The administration of justice involves all three branches of government.

The limitation on the President’s exercise of Article II powers is perhaps easiest to understand in the context of the Bill of Rights. For instance, it would violate the First and Fifth Amendments for the President to fire federal employees based on their race or religion. To give another example, the Due Process Clause requires that persons wielding prosecutorial power be “disinterested.”[14] The Constitution must be read as a whole; none of its provisions, including Article II, is an island.

Most importantly for our purposes, Congress can also exercise its constitutional authority to place limits on the executive.

When Congress legislates within its constitutional authority in a manner that restricts the President, the President is presumptively bound to comply with that law.[15] After all, Congress is expressly given power to enact laws “necessary and proper” for implementing the powers of the President.[16]

Congressional limitations upheld by the Supreme Court on the President’s exercise of his war powers, in a case such as Hamdan, are especially instructive. There, the Court held that Congress could specify procedures for the President to follow for trying military detainees at Guantanamo.[17] If Congress can constrain the President’s vast powers as Commander in Chief in times of war, then it can surely place limits on his conduct in his everyday role as the head of our domestic law enforcement agencies.

And, indeed, that is exactly what Congress and the courts have done.  Even though the executive branch is generally empowered with law enforcement responsibility, Congress has enacted civil service laws and created independent agencies limiting the executive branch’s power to hire and fire federal employees who enforce the law. In upholding the statute that provided for an independent counsel, rather than the Department of Justice, to investigate wrongdoing in the upper reaches of the executive branch, the Supreme Court “concluded [that] ‘we simply do not see how’ it is ‘so central to the functioning of the Executive Branch as to require as a matter of constitutional law that’ the President be understood to have unlimited control over the investigation and prosecution of potential crimes involving himself or his top aides.”[18] As Richard Pildes wrote recently, “Given the established constitutional principle that Congress can protect a federal prosecutor from the President’s domination in these type of cases, Congress can certainly constrain the President’s power in more limited ways . . . including by making it a crime for the President to act with a corrupt intent to stymie or shut down investigations of the President himself and his top aides.”[19]

It is only in rare cases that the President has constitutional power that is “both ‘exclusive’ and ‘conclusive’” on a particular issue,[20] thereby disabling Congress from legislating. And it would likewise be in only a very rare case that generally applicable federal criminal statutes would not apply to the President because of inconsistency with Article II. The Constitution, after all, directly contemplates that the President (and other officers) could be subject to criminal liability for their official actions.[21]

While the President might, for example, intervene directly in an on-going criminal investigation to advance a public-interested goal concerning national security or some other consideration, it is implausible to contend that Article II overrides Congress’s obstruction of justice statutes in circumstances where the President is acting to advance “narrowly personal, pecuniary, or partisan interests.”[22]

The federal obstruction laws, with their bar on corruptly-motivated actions, apply whether the president obstructs an investigation through firing officials leading it, shutting down the investigation, ordering the destruction of documents, or dangling or issuing pardons to induce witnesses to impede the investigation. Just as the President could not use otherwise lawful firing powers in exchange for a bribe without running afoul of federal bribery laws, he is not free to exempt himself from the application of the obstruction of justice laws.

* * *

The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the “injuries and usurpations” that justified independence. Our Founders would not have created—and did not create—a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.

In sum, both Article II and the criminal laws of this country forbid the president from engaging in corrupt and self-dealing conduct, even when exercising Article II powers to execute the laws

We have no doubt that you take your professional roles very seriously—and we hope our legal analysis above provides some illumination as you continue to advise your client to faithfully execute our laws and to take care that those laws are faithfully executed throughout the Executive Branch.”

[Signed by 26 law professors]