Tag Archives: Pence

Mueller Report Part II – Trump Guilty of Obstruction of Justice-B, C

B. Governing Legal Standards

Little value can be gained by repeating Mueller’s recitation of the legal standards for judging whether criminal obstruction of justice has occurred. Of the three tests (obstructive acts, nexus to a pending or contemplated official proceeding and corrupt intent), the Report conclusively shows (1) multiple, repeated obstructive acts by Trump personally, in some of which he was aided and abetted by members of the White House staff and (2) clear nexus to multiple investigations, including some of the obstructive acts themselves.

Given the rhetorical and other linguistic hoops that Trump and his attorneys/advisors have been willing to jump through to defend him, it is worth nothing that Mueller made plain that “an improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority.” II MR-9. Equally, if not more, important, is Mueller’s determination that criminal obstruction can exist even if the attempt is unsuccessful. II MR-12. It also includes “witness tampering” and attempts to influence others not to cooperate with law enforcement. II MR-10, 11, 12.

C. Trump’s Refusal to Cooperate

Mueller’s treatment of the president is noteworthy and inexplicable in several ways, given the gravity of what was being investigated.

Mueller allowed Trump to dither away a year following the SCO’s request for a voluntary interview. II MR-13 Trump ultimately agreed to answer some written questions about “Russia-related topics” but refused to answer any questions regarding obstruction of justice or events occurring during the transition. Despite concluding that the SCO had both the authority and the legal justification for a grand jury subpoena of Trump, the SCO decided not to force the issue. The SCO reasoning behind this extraordinary decision was that a such a late stage in the investigation, a subpoena, and the inevitable legal dispute to follow, could result in a “substantial delay.” The SCO also believed it had separately found evidence sufficient to “understand relevant events and to make certain assessments” even without Trump’s personal testimony. II MR-13.

This decision is quite remarkable. The investigation was in a “late stage” because Mueller had allowed Trump to fend off a decision and play an obvious delaying game for an entire year. Moreover, the statement that the investigation was at a late stage was not explained in the Report. Was there an internally-imposed deadline on when the investigation had to conclude? If so, who imposed that deadline and when? If not, then the “late stage” rationalization is pure vapor and another example of kid-glove treatment for a person as to whom substantial evidence existed of multiple acts of obstruction of justice. The decision left the SCO to infer conclusions based on circumstantial evidence in some cases and, while this is normal and often unavoidable (II MR-13), there was no compelling reason for the SCO to allow itself to be maneuvered into this position. Moreover, the credibility factors that apply in assessing testimony, enumerated by Mueller in details (II MR-14) all would work against Trump.

The ultimate outcome of Mueller’s reticence was that the door was opened for Attorney General Barr to declare falsely that the case was not even close and that Trump was innocent of all the charges. This opportunity to undermine the credibility of the Mueller investigation traces directly back to the strategic mistake of allowing Trump to avoid testifying.

The bulk of Volume II of the Mueller Report is devoted to a lawyerly application of the three obstruction elements to the various discrete situations in which Trump or his enablers in the White House or elsewhere attempted, one way or another, to derail the Russia investigation and any evaluation of his acts of obstruction. Several major points stand out.

First, Trump lied about numerous events. For anyone following the arc of his presidency with a reasonably open mind, this comes as no surprise. One obvious lie, for example, was Trump’s claim that he had no business dealings in Russia. II MR-15. An interesting thing to note is that as regards WikiLeaks release of Clinton’s emails, there was evidence Trump was plugged into the information pipeline about what WikiLeaks was planning to do. II MR-18. That portion of the Report is heavily redacted, indicating on-going investigation into the WikiLeaks connections. Mueller’s refusal to discuss the Report publicly leaves us to wonder what this on-going matter is about, a subject that should be pursued in his upcoming public testimony before Congress.

Mueller also notes that the Campaign tried to distance itself from people who were publicly identified as connected to Russians. Vice President Pence joined in the denials of Russia connections. II MR 20-21. All these moves are equally, if not more, plausible as efforts to conceal the Russia connection by outwardly disassociating from campaign people whose connections became known and publicized. Mueller also cites the opinion of unnamed Trump advisors for the point that Trump genuinely believed the stories about Russia connections undermined the legitimacy of his electoral victory. II MR-23. No doubt the stories did have that effect because the Russian support for Trump plainly does de-legitimize his standing as a “duly elected” president.

The inclusion and apparent full crediting of these statements from Trump campaign insiders, without Trump himself being questioned, seems designed to buttress the idea that Trump genuinely believed the Russian interference was a false story designed to undermine his legitimacy. But even if true, these claims about what he was thinking are entirely self-serving and based on interested 3rd party statements not supported by his own testimony under examination.

Just a Little Information for Our Files …. Coo Coo Ca Choo

You may recall the similar line from the song, Mrs. Robinson, made famous by Simon & Garfunkel oh so many years ago. In what only a few years ago would have sent Republicans into paroxysms of anti-big-government hysteria, Not-My-President Trump has created a “Presidential Advisory Commission on Election Integrity” to try to prove that his oft-repeated claim that massive voter fraud deprived him of a majority vote in the last election.

There is no even preliminary evidence that the claim is true and it has been rejected by electoral officials of both parties in multiple states and locales. But, in keeping with Trump’s personal code of conduct that no lie is too big to tell or act on, especially with taxpayer money, Trump ordered his Vice President, usually standing in the background saluting his Great Leader, to command a formal commission of the federal government to “investigate” voter fraud throughout the country. The silence of the Republican Party about this action speaks volumes about its lack of integrity and moral vacuity. Do bear in mind that this Commission has nothing to do with the Russian interference in the 2016 election to which virtually the entire U.S. intelligence community has attested and which Trump continues to deny.

The Executive Order creating the Commission provides for no more than 15 additional members some of whom must be “individuals with knowledge and experience in elections, election management, election fraud detection, and voter integrity efforts” supplemented by, well, anyone Trump chooses for any purpose whatever, regardless of actual qualifications related to the subject matter of the Commission’s work. So far as I can tell, the known appointments to date are former or current secretaries of state from Ohio, Indiana, New Hampshire and Maine. Christy McCormick, a former Justice Department attorney and a member of the U.S. Election Assistance Commission, will also be on the panel, along with Kansas Secretary of State Kris Kobach serving as Vice Chair under Pence. Reports indicate also that Hans von Spakovsky, a conservative “voting rights expert” will also participate with an as-yet unspecified role.

One must wonder if Ohio, Indiana, New Hampshire and Maine were selected because they have vast experience with voter fraud (presumptively absurd) or because they have very little suspected fraud, in which case, why would you choose them?

No need to tarry over that question because the really interesting part is that the Vice Chair of the Commission, without waiting for the Commission to meet and without the benefit of any public input, has already sent a letter to the secretaries of state for all 50 states asking for “publicly available voter roll data … including, if publicly available under the laws of your state” the following information:

  • full first and last names of all registrants,
  • middle names or initials if available,
  • addresses,
  • dates of birth,
  • political party (if recorded in your state),
  • last four digits of social security number if available,
  • voter history (elections voted in) from 2006 onward,
  • active/inactive status,
  • cancelled status,
  • information regarding any felony convictions,
  • information regarding voter registration in another state,
  • information regarding military status, and
  • overseas citizen information.

Further, “be aware that any documents that are submitted to the full Commission will also be made available to the public.”

I confess that I did not realize that such data was available for the asking by members of the general public or not-general public (Super-Pacs are people now too, you know; so are corporations who employ millions of voters, but more about that in a minute).

What we have here is the first attempt ever, of which I am aware, to create a nationally scoped federally controlled database of voting behavior tied to the identity of individual voters. And it covers eleven years of voting. Let that sink in a minute.

Call me paranoid if you like, but this raises memories of the line in the old WW II movies in which an imperious Nazi always demands “your papers please,” the “please” being a euphemism for “or I will kill you.”

Nothing in the Executive Order creating the Commission authorizes the collection of this type or massive amount of data about voting behavior. The Commission’s job is to study “registration and voting processes used in Federal elections.” The EO is clear that the Commission is advisory only and thus has no independent power to act on whatever findings it makes.

The Commission’s report to the president is to discuss

 (a)  those laws, rules, policies, activities, strategies, and practices that enhance the American people’s confidence in the integrity of the voting processes used in Federal elections;

(b)  those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of the voting processes used in Federal elections; and

(c)  those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting. [emphasis added]

I cannot see any logical basis to infer from such a study description a basis or need for the individualized voting information demanded by the Commission’s letter. The language of the EO speaks of laws, rules, etc. and does not mention collecting data on individual voting histories associated with named voters absent reasons to believe actual fraud in voting occurred.

I don’t know whether law students are still taught about ultra vires, a Latin phrase meaning “beyond authority,” but the concept clearly applies here. The demand for massive volumes of individualized voting behavior data is ultra vires of the Executive Order.

I understand all too well that our so-called president thinks he can do anything he wants to do, without regard to legal process. The repetition of that mistake continues to frustrate him, as it most recently did when the U.S. Court of Appeals for the District of Columbia Circuit overturned an EPA decision, made without process or opportunity for public input, to delay an Obama-era rule restricting methane emissions from certain oil/gas wells which rule had in fact been subject to such processes for input.   Such mistakes, combined with the sloppy drafting of Executive Orders and the president’s uncontrollable mouth and Twitter habit, have defeated many of his major initiatives. [Parenthetically, hats off to the Sierra Club for filing this suit, with others.]

In the case of this Commission on Election Integrity, the primary pushback is currently coming from the states, a majority of which have apparently told the Commission to get lost. Fortunately for me, the Governor of Virginia, Terry McAuliffe, is one of those, so I won’t have to sue the United States to prevent it from collecting information that I believe violates my right of privacy in my voting practices. It is curious, though not surprising, that a president who seems to treasure the phrase “witch hunt,” does not recognize that this Commission is charged with precisely that type of search. Things may have worked this way in the private TrumpWorld that the president formerly ran [and may still be running despite blatant conflicts of interest] but that don’t work that way in the government world where the rule of law applies to everything.

Earlier I mentioned that corporations are “people” in the eyes of the law now. Since the data the Commission intends to collect will be available to the public without apparent limitation, we can infer that the Super-Pacs and large corporations with active political interests will be interested in this information. Do you want your employer to know whether you voted and, possibly, by inference for whom you voted? Where is the Republican Party, that great defender of individual freedom from overweening government interference in the personal lives of citizens?

The Executive Order authorizing this Commission is another example of the incompetence and bad intentions of the Trump administration. Its only substantive purpose is to support the so-called president’s political agenda which includes his insistence that he would have won the popular vote but for massive illegal voting. Intelligent conservatives surely see what is going on here but cleave to the president with the argument that in a democracy there is no more important matter than the sanctity of the vote. They are partially right, but chasing after faked issues is not going to improve the integrity of voting protections. The truth is that the real goal of Trump’s agenda is suppression of anti-Trump votes. Republicans know that, and are complicit in the scam that this Commission on Election Integrity represents.

In the end then, we are again reminded of the phrase from Mrs. Robinson,

Going to the candidates’ debate

Laugh about it, shout about it

When you’ve got to choose

Every way you look at it you lose.