Tag Archives: Mueller

The President Is Not Above the Law

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The Wall Street Journal’s June 1-2 Opinion piece entitled “Congress Can’t Outsource Impeachment” (at A13) is remarkable both for its deliberate distortion of the facts about the Mueller Report and the illogic of its arguments dressed in the sheep’s clothing of constitutional rigor.

One of the authors is David B. Rivkin, Jr., a partner in a big Washington DC law firm, who, according to the Federalist Society, is “lead outside counsel for the 28 States that have challenged the constitutionality of EPA’s Clean Power Plan…. He also has represented the 26 States that have challenged the constitutionality of the Patient Protection and Affordable Care Act [Obamacare].” The other author, Elizabeth Price Foley, is “of counsel” to the same law firm and a professor at Florida International University College of Law.

The Opinion piece consumes two-thirds of an entire page of the WSJ. The essential argument is that, consistently with the constitutional separation of powers, Congress may not “outsource” an investigation of the president’s conduct to any part of the Executive Branch by demanding that the Department of Justice turn over documents obtained in its own, probably unlawful, investigation of the president. Instead, according to Rivkin/Foley, Congress must somehow conduct an independent investigation, not relying on the prior work of the Executive Branch, and then only about “open and notorious” crimes and misdemeanors. Such an independent investigation, with possible impeachment as its sole possible outcome, must “articulate clear evidence” of the alleged crimes at the outset.

The article goes on to conclude that since the president oversees the Executive Branch, investigations of a sitting president by the prosecutors in that government division are also inappropriate and invite a “coup.” Thus, absent some open and obvious violation of a law, the president, in the authors’ view, is immune from accountability except by being voted out of office in the next election. He is, as a practical matter, a King of the United States while he serves. These ideas resemble very closely the thoughts and words of the current sitting president but are at total war with the meaning of the Constitution and a politically driven misrepresentation of the separation-of-powers scheme set out there.

In reaching these astonishing positions, the Opinion piece misstates the conclusions of the Mueller Report, not once, but six times! Let’s take a closer look.

The authors note that the Mueller investigation “found no wrongdoing by President Trump” and after two years of work, the Mueller team “did not find that Mr. Trump had committed crimes.” While it’s certainly true that Mueller, feeling bound by DOJ policy that forbids indicting a sitting president and for reasons of fairness (unfair to accuse but hold no trial) did not state ultimate conclusions that crimes were committed, he did in fact lay out in detail the evidence of multiple explicit attempts by Trump, directly and through subordinates, to quash/deflect/control and actually terminate the Mueller investigation. The Report then applied the law to the facts and … stopped there, for the reasons stated. But in the end,

“… if we had confidence … that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.” [Mueller Report at 394]

There is no ambiguity about that statement, particularly considering the detailed legal analysis that preceded in, an analysis that thoroughly demolishes the argument of Trump’s attorney that when the president fires the FBI Director, he is exercising his constitutional authority and may not be questioned about it no matter what his motives. In those circumstances, the president argued, he is per se immune from challenge. Mueller demolished that argument in the closing sections of his report.

Rightly or wrongly [see Note at end], Mueller believed he could not reach a traditional prosecutorial finding, but that did not stop him from finding the facts and laying them against the legal standards for obstruction of justice. Mueller walked the investigative horse right up to the trough but did not drink — a far cry from finding the president was innocent. The Mueller report makes no finding that Trump did not obstruct justice and any suggestion to the contrary is, to put the best light on it, political gaslighting.

Rivkin/Foley have conflated what Mueller stated about ultimate conclusions with what Mueller reported about the facts and legal elements of obstruction of justice. The authors say that it was then Attorney General Barr’s “duty” to make the findings that Mueller declined to make, but the source of that “duty” is neither clear nor obvious. Trump’s appointed AG himself blatantly misrepresented what Mueller had found by claiming that Trump was in fact “exonerated” when Mueller explicitly said otherwise.

Rivkin/Foley repeat their misstatement of Mueller’s conclusions multiple times: “the nation’s law enforcement officials have concluded Mr. Trump has not committed any crimes;” “he was cleared by the Mueller investigation;” “criminal accusations that prosecutors have rejected;” “second-guessing the prosecutors and recasting Mr. Trump’s conduct as criminal law violations.” Repetition does not make the statements any truer. All are plainly contrary to the facts and of a piece with AG Barr’s false narrative. Indeed, it seems virtually certain that they are based entirely on Barr’s misrepresentations about the Mueller report rather than the report itself.

Distilled to its central ideas, the Rivkin/Foley argument comes down to this:

  • Congress must conduct its own investigation of the facts if it wants to consider impeaching the president – it can’t just collect the documents Mueller found/created because Mueller doesn’t work for Congress; that would be “outsourcing” and outsourcing is bad;
  • The only potentially impeachable conduct is “open and notorious” such as an overt refusal to follow a law directed at the president’s execution of his duties; they cite the example of Andrew Johnson’s firing of War Secretary Edwin Stanton in “open defiance” of the Tenure in Office Act;
  • Impeachment can only begin when Congress is able to “articulate clear evidence” of high crimes and misdemeanors.

The practical effect of this approach is that the president can be neither investigated nor impeached by either the Executive Branch (FBI/DOJ) or Congress.

How then is Congress to “articulate clear evidence” when it has to, in effect, recreate the entire Mueller investigation from scratch? If the standard is that the “high crimes and misdemeanors,” in order to be impeachable, must be conducted openly and obviously in public by refusing to follow an explicit statutory command, how does the country deal with a president who, like Donald Trump, operated behind the public screen, using intermediaries to direct much of his dirty work of suppressing investigation, urging/threatening witnesses to secure false testimony and all the rest that is set out in nauseating detail in Mueller’s report?

Rivkin/Foley want this both ways, with the end result that the president cannot be investigated or held to account for obstruction of justice at all. And, in truth, they concede this at about the two-thirds mark in their exegesis when they dispute Mueller’s argument that the president may be guilty of obstruction of justice, even when purportedly carrying out his Executive Branch authority, by firing the FBI Director when he has corrupt motives to protect himself personally rather than to execute some policy within his constitutional authority. In the authors’ view, the president is simply and totally immune from accountability in such cases. Neither the Executive Branch nor Congress can investigate him and, since the courts are not equipped to conduct such activities at all, there is no one left but King Donald.

With all due respect, there are no kings in America. That’s one of the main reasons the Revolutionary War was fought. So much blood was not shed to put in place a system in which an elected executive becomes a ruler above the reach of law. Mueller’s report, at 181, states it well:

… the protection of the criminal justice system from corrupt acts by any person – including the President – accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law. [case cites omitted; italics added]”

Note to Readers: I have finished reading the entire Mueller Report, all 448 pages. While I appear to be defending the Report in the above post, I rely on it mainly to prevent the distortion of its meaning, however constrained, as Trump’s supporters continue trying to rewrite history in his favor. I am convinced that Mueller made catastrophically poor decisions in the course of the investigation that led to outcomes far short of what was justified by the facts uncovered, among other shortcomings. I will shortly be posting a series of articles analyzing the Report in detail, so stay tuned.

Redactions of Mueller Report Must Be Coded

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

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

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

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

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

Media Incompetence Rampant

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

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

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

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

In any case, the article includes these lines:

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

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

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

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

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

Issues raised by Mueller/Barr/Rosenstein

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

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

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

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

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

Read the following as you will.

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

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

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

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

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

 

Semi-Final Thoughts on Mueller Report

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

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

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

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

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

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

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

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

The Mueller Report – Where From Here?

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It is more than curious that Attorney General Barr and Deputy AG Rosenstein were able, in a matter of hours, to conclude that the massive evidence accumulated in the Mueller investigation in fact established that Trump did not obstruct justice when the Mueller report itself, according to quotations provided by Barr/Rosenstein, found that the evidence was inconclusive and did not exonerate the president on the obstruction issue. Not only is the Barr/Rosenstein conclusion not supported by the material they did disclose, there was no explanation of why Barr/Rosenstein felt it was appropriate for them to make their exoneration statement when the issue of how much of the Mueller report will be disclosed is still unresolved. Put that on top of the statement from an unnamed but high-ranking DOJ official on Saturday that the Mueller report contained no further indictments. Why, and who, was in such a hurry to begin pumping up the “not guilty” narrative for Trump?

The foregoing suggests to me that, in addition to other high crimes and misdemeanors, Trump has succeeded in undermining the core integrity of the Department of Justice. At the same time, the media seem to have lost their minds entirely and are reporting the story as if it were written by Barr/Rosenstein on their behalf.

Unless and until, the Mueller report, and the evidence on which it was based, is disclosed, the case against Trump will remain open. The only excuses for redaction of the report and withholding the evidence involve clear national security, executive privilege and grand jury limitations. The public is entitled to know how Mueller arrived at the conclusion that events such as the Trump Tower meeting and the multitude of lies told by Trump personally and by his family and other enablers did not support a finding of collusion. The public is also entitled to a deep understanding of the basis for Mueller’s conclusion that the evidence on obstruction was inconclusive when Trump admitted to, for example, firing James Comey for a corrupt reason.

I expect that after Trump does his victory dance, claiming exoneration when the Mueller report itself found no conclusion on that issue was possible, he will take the same position on disclosure that he took with his tax returns. He first said he would release them, then refused. He said just the other day that the Mueller report should be publicly disclosed but now, on the strength solely of the Barr/Rosenstein summary, he will almost certainly reverse his position again.

The battleground will now shift entirely to Congress and perhaps the courts as the various open cases against Trump and the Trump organizations proceed. There is no reason to give up, as some people, in shock no doubt, have suggested. Making a case against a sitting president, aided by a political party that is 100 percent invested in protecting him, was always going to be hard and take a long time. Trump’s victory claim is itself based on a false representation about the Barr/Rosenstein summary of the Mueller recommendations. No surprise that he would lie about that since he has lied about so many other things.

Hopefully, this development will awaken the Democratic Party to the difficult road ahead. Already, before the issues are even remotely resolved and while the actual Mueller report is still a mystery, pundits are predicting an easy win for Trump in 2020. Were that to happen, democracy as it has been known in America for my lifetime and beyond would likely be destroyed, possibly for decades. We would then be faced again with the duty outlined in the opening words of the Declaration of Independence: “when in the Course of human events it becomes necessary for one people to dissolve the political bands ….”

So let’s keep our wits about us and get about the business of planning and executing the political force that is necessary to fulfill not the ambitions of the plutocracy that now governs this country but the wishes and needs of the majority that voted against Trump in 2016 and can, with the right leadership and the right understanding, prevail.

Occam’s Razor – Trump Explained

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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

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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

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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?

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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.