Tag Archives: Toobin

Donald Trump — A Gangster in the White House

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I write to give you the gist of Jeffrey Toobin’s excellent True Crimes and Misdemeanors.

If there is anything to be disappointed about, it is that the book was published in early August of 2020 and thus does not address Trump’s (and other Republicans’) incitement of the January 6 attack and his second impeachment. But there is likely little that Toobin could add at this stage to what is known about that, given the stonewalling by most of Trump’s enablers and the apparent indifference of the Department of Justice to the entire matter.

That limitation aside, this book, like the exceptional Where Law Ends by Andrew Weissman, displays throughout the gift of clear exposition. A complex tale told well. And, like Weissman, Toobin pulls none of his punches in judging the behavior of most of the participants in the criminal enterprise that defined the Trump presidency. If there is anything to complain about in that regard, it’s Toobin’s obvious fascination with and adoration of the role, style, and grit of Speaker of the House Nancy Pelosi, perhaps the only major player to come out of the Trump crime spree as a genuine hero in Toobin’s eyes.

The book reads like a true crime novel, and it is all about crimes. Sad to say, it’s also not a novel. It’s true. All of it.

So, where to begin? The book opens with a summary analysis of Trump’s survival despite the findings of the Mueller Report. There is plenty of blame to go around but much of it rests at the feet of Mueller himself:

Mueller’s caution and reticence led him to fail at his two most important tasks.  Thanks to the clever actions (and strategic inaction) of Trump’s legal team, Mueller failed to obtain a meaningful interview with Trump himself. Even worse, Mueller convinced himself – wrongly – that he had to write a final report that was nearly incomprehensible to ordinary citizens in its legal conclusions. [True Crimes at 8]

Toobin ends the opening with the observation that,

everyone – friends as well as enemies – knew what [Trump] had done. It was obvious to any sentient observer that he did what he was accused of in the Mueller Report and in the articles of impeachment. [[True Crimes at 11]

The book then narrates the story of how that happened, beginning with James Comey’s betrayal of the country by his decision to ignore FBI policy about disclosing details of investigations at all, let alone on the literal eve of an election, with the result that Hillary Clinton’s candidacy was undermined at the last minute. The subsequent narrative will be familiar to everyone who was paying attention but the details, including many not previously revealed (to my knowledge) propel the story forward. Toobin concludes, “it appears likely, if not certain, that Comey cost Clinton the presidency.” [[True Crimes at 28] Indeed.

Toobin makes a compelling case that Robert Mueller was hyper-focused on bringing his investigation to a rapid close and thus failed to pursue “the single most important piece of evidence,” namely, the testimony of Donald Trump himself. But,

Mueller didn’t. He backed down. He couldn’t bring himself to launch a direct legal attack against the president of the United States. [True Crimes at 197]

Of all the mistakes made, and in truth every serious investigation of complex events will have some, the failure to force Trump’s testimonial hand stands out as the largest and the least understandable in light of Mueller’s assignment. Everyone – Mueller’s team, Trump’s lawyers – knew Trump would perjure himself if questioned under oath. He would have had extreme difficulty responding to skilled cross-examination of his conduct and motives. This is particularly important because Mueller believed that Trump’s “state of mind” was critical to bringing charges against him. For me, that will always remain a mystery. State of mind is simply never directly knowable, despite what we’ve seen in some phantasmagorical science fiction movies. It is inferable from conduct in context and circumstances, always.

Mueller made other mistakes. He should have squeezed Michael Cohen, Trump’s personal lawyer whom they had dead to rights on campaign finance violations and lying to Congress. Without ever asking whether his jurisdiction might include the Cohen issues, Mueller turned the case over to the Southern District of New York. Because those prosecutors, accomplished though they were, saw their role narrowly – Cohen was the target, not Trump – they never sought Trump’s tax returns or his financial records.

In a precursor to what was to come, William Barr, who had once been Mueller’s boss at DOJ, volunteered in June 2018 a 19-page memo to Deputy Attorney General Rod Rosenstein, who had appointed Mueller as Special Counsel, attacking the legitimacy of the Mueller investigation. Barr argued that the president could, for any reason or no reason (the legal standard for “at will” employment firing), fire the head of the FBI (Comey) and such action could not be attacked as obstruction of justice. Barr also objected on constitutional grounds to any attempt to force Trump to testify. [True Crimes at 234-235]

Thereafter, negotiations over Trump’s possible testimony were postponed while Rudy Giuliani was brought in to lead Trump’s legal defense team. At a “get-acquainted” meeting with Mueller’s team,

Giuliani wanted to nail down Mueller’s commitment that he would follow the [DOJ Office of Legal Counsel] policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236, italics mine]

When I read that, I almost gagged. Zebley was Mueller’s former Chief of Staff at the FBI and his top aide in the Trump investigation. Zebley was the subject of much critical assessment in Andrew Weissmann’s Where Law Ends, discussed in detail here: https://bit.ly/3Jn8ye3

I can think of no plausible reason for Mueller or his team to offer such a concession at that point, or likely at any point, in the investigation without getting something of extraordinary importance in return. But, no, the point was “volunteered” away. Astonishing and inexplicable in my opinion.

Many key players in the prolonged saga of Trump’s presidency come in for harsh criticism in Toobin’s accounting, including Judge T.S. Ellis, the judge in the first trial of Paul Manafort, Trump’s former campaign chair. Toobin notes the judge’s “partisanship and incompetence.” [True Crimes at 238] Strong words, indeed, but justified by the shocking events he narrates.

One beef I have with Toobin relates to the central issue in the Mueller investigation. Mueller concluded that there was no evidence proving that Trump or his campaign “colluded” with Russia. Toobin accepts this finding, with the qualification that Trump and his inner circle certainly wanted to collude. [True Crimes at 269] Given the failure to examine Trump personally under oath or to subpoena his taxes and financial records, Toobin’s total acceptance of Trump’s innocence on the collusion issue is, I think, unjustified. Even more so because Trump’s answers to the written questions ultimately submitted to him by Mueller included 36 instances of “don’t remember” by the man who repeatedly claimed to have a genius level mind and memory. [True Crimes at 273]

Toobin holds nothing back in stating that Rudy Giuliani’s involvement in the Ukraine extortion episode “must rank among the most disastrous pieces of advocacy in the history American lawyering.” [True Crimes at 292] No doubt, but Toobin also holds nothing back regarding the Mueller Report itself. He correctly concludes that the Report established that “Trump committed several acts of criminal obstruction of justice.” [True Crimes at 300] Using his gift of snark to full advantage, Toobin paraphrases the Mueller conclusions on obstruction:

We can investigate the President, but we can’t prosecute the President. If our investigation determined that he was in the clear, we’d say that – but we’re not saying that. Nor are we saying that he’s guilty of anything. So we’re not saying he’s guilty – but we’re not saying he’s innocent either. Basically. [True Crimes at 302]

Toobin characterizes the decision to avoid saying whether prosecution was warranted as a “gift to Trump.” [True Crimes at 302] Right again.

For several reasons, a special mention must be made of then- Attorney General William Barr’s issuance of a second letter, two days after he received the 448-page Mueller Report, interpreting the Report to say things it did not say and drawing conclusions the Report did not draw. Or, as Toobin put it, Barr put “a stake in Mueller.” [True Crimes at 307] And then, one of the highlights of the entire book for me,

Many on Mueller’s team, especially at the lower levels, were incandescent with fury at Barr.” [True Crimes at 308]

I don’t think will ever forget that phrase, “incandescent with fury” that so graphically describes how I and many others felt when Barr’s treachery sank in.

The book goes on to cover Trump’s Ukraine extortion scheme, the outrageous efforts of the White House and outside counsel to defend the indefensible, the refusal of Republican senators to hear the evidence through witnesses and their determination to protect Trump at any and all costs. Toobin is unsparing in his condemnation of these efforts, and all are worth reading.

The main thing that really surprised me in the book was an omission. I may have missed it, though I doubt it. There was no discussion of the fate of the full written report (I will not dignify it with the term “transcript,” since it was in no sense an actual transcript) on the Trump-Zelensky call that was widely reported to have been sequestered in a White House server to which access was extremely limited. I have seen no reports about whether the Biden administration has opened the server to discover its contents or whether the server was removed with by the outgoing administration to, again, protect Trump from further exposure of his crimes.

I also strongly disagree, as I have previously written, with the decision of the House managers (mainly the Speaker) to limit the impeachments to narrowly drawn issues, given the breadth and depth of Trump’s crimes in office. The House was not bound by the self-imposed limitations of the Mueller Report and, knowing, as the House did, that conviction of Trump was completely unlikely, they should have thrown the book at him, exposing for the watching world the range and importance of his crimes in office.

I also must record my fundamental disagreement with Toobin’s judgment about the proper role of the Senate in the impeachments. He says,

The senators were nothing more, and nothing less, than politicians were supposed to decide the president’s fate based just in part on the evidence at trial but also on their overall sense of what was best for the country.

That view is far too narrow and validates the refusal of the Republican Party to come to grips with the realities of Trump’s presidency. There remains, and history will confirm, no doubt that Donald Trump committed multiple crimes in office and that he committed crimes in attempting to stop the peaceful transfer of power to the Biden administration. To say that the Senate’s judgment was rightly based on a self-interested determination of “what was best for the country” makes a sham of the entire constitutional process. I do not believe the Founding Fathers, if they had been able to imagine a president like Trump, would have intended that the Senate could just say “it’s in our best interest to keep the leader of our party in power, so he’s ‘not guilty’ regardless of what he did.” I believe the Founding Fathers, whatever their other flaws, wanted and expected more when the extraordinary remedy of impeachment was brought against a president.

Toobin does not spend much time on Trump’s handling of the pandemic because that was not the primary topic of the book. But, as some of the Republican senators observed, the people would eventually render their judgment of Trump on election day in 2020. And they did. For reasons I still cannot grasp, Trump received more than 74 million votes, despite everything. But, fortunately for the republic and the world, Joe Biden won more than 81 million votes and a sufficient margin in the Electoral College to take the presidency. Then, Trump incited a coup to try to stop the transfer of power to the new president.

This was what Trump cared about the most. Toobin presciently notes,

Trump had no great passions on the issues, no policy agenda that he was determined to enact. For Trump, his presidency was more about him than what he could accomplish. For this reason, the only verdict that has ever mattered to Trump is the one rendered on Election Day.

Thus it was written and thus it was done.

You may recall Michael Cohen’s testimony before Congress in which he likened Trump to a mafia boss. While Cohen’s handling of Trump and his legal affairs was problematic, to say the least, it appears that he correctly identified the central idea of Trump’s personal code of conduct.

The central question facing us now is, I think, whether the current Attorney General, Merrick Garland, is just another Robert Mueller. As an earlier post has discussed, the statute of limitations has already run on one of Trump’s obstruction crimes. Garland has publicly stated he will follow the evidence and the law even if it leads to Trump. More lawyers have apparently been hired to work on Trump matters.

Meanwhile, time marches only in one direction. The country waits for action. Trump’s crimes, and those of his enablers in the White House and Congress, stretch well back into his presidency, with the capstone being his incitement of the attack on the Capitol on January 6, 2021, more than 15 months ago. The nation waits ….

Trump Goes Full Dictator

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The president has been asked multiple times if he will respect the result of the vote and participate in the peaceful transfer of power that has been a hallmark of American democracy since the Founding. His chilling responses are, in essence, “only if I win,” just as he said before the 2016 election. In that election he made much of claims that the election was being “rigged” by Democrats against him. Little was known at that time about the support he was getting from Russia which wanted Trump to defeat Hillary Clinton at all costs. Of course, a significant majority of voters went for Clinton anyway. Trump’s squeak-by win was the product of a few votes in a few states favored by the Electoral College.

This time, Trump has gone all-in with his “election rigging” claims, focusing mainly on the on-going shift toward mail-in voting compelled by the COVID-19 pandemic crisis that the president himself has admitted he deliberately downplayed the danger and misled the public despite his early knowledge of how deadly and easily transmitted the virus was. Details in Bob Woodward’s Rage. Trump claims that mail-in voting, in which ballots are sent to all registered voters rather than the traditional absentee method that send ballots only to voters who ask for them, are inherently infected with fraud.

These assertions have no basis in history. Multiple states, including Republican-led states, have long used mail-in voting without material evidence of voter fraud. Paul Begala’s recent book, You’re Fired, The Perfect Guide to Beating Donald Trump, shares some compelling data on this subject. He reminds us of the Pence-Kobach voter fraud commission, ponderously named by Trump as the Presidential Advisory Commission on Election Integrity. Kobach was the lead horse in the Trump wagon train seeking evidence that voter fraud was rampant in the United States.

During its roughly seven-month life, the Commission came up with … nothing of substance. The pathetic history of this effort at voter suppression, inspired by Trump’s hurt feelings over having lost the popular vote in 2016, are set out at https://en.wikipedia.org/wiki/Presidential_Advisory_Commission_on_Election_Integrity, including the finding by a federal magistrate that Kobach had engaged in “patently misleading representations” in a court dispute over document access.

Begala reports that the Bush administration had also tried to unearth voter fraud. Then Attorney General Ashcroft investigated hundreds of campaigns involving 197 million votes and prosecuted 26 people. In a study of 14 years of elections (1 billion votes), the Washington Post found 31 cases of actual or plausible voter fraud. For the 2016 election, a WAPO investigation revealed 4 published reports of fraud in an election with 135 million votes. Sidebar: one of those cases was someone who voted twice for … Donald Trump.

Begala observes that voter fraud involves a very small gain for the fraud-favored candidate (one incremental vote) whereas the perpetrator faces the prospect of federal prison. If you think that’s fanciful, recall Crystal Mason who cast a provisional ballot, which was never counted, in Texas while on federal supervised release following a prison term for tax fraud. She was sentenced to five years – five years – in prison for an uncounted vote when she had never been told of her disqualification under Texas law. https://bit.ly/3mVm4eI

Never deterred by facts, Trump and his enablers have been stoking the fears of massive voter fraud and other problems for months. As reported by Politico,

This past spring, President Donald Trump began a full-fledged assault on voting by mail, tweeting, retweeting and railing about massive fraud and rigged elections with scant evidence. Then the Republican apparatus got to work backing up the president. In the weeks since, Trump’s campaign and the Republican National Committee have taken to the courts dozens of times as part of a $20 million effort to challenge voting rules, including filing their own lawsuits in several battleground states, including Minnesota, Pennsylvania and Nevada. And around the time Trump started musing about delaying the election last week, aides and outside advisers began scrambling to ponder possible executive actions he could take to curb mail-in voting — everything from directing the postal service to not deliver certain ballots to stopping local officials from counting them after Election Day. https://politi.co/33ZERNl

The more recent developments are pretty well known, including the efforts of Trump’s Postmaster General, a man with zero experience managing the Postal Service, to slow down mail deliveries, removing automated mail-sorting machines, altering delivery schedules to force mail to be undelivered or delayed, and so on. This is classic voter suppression by other means in the face of a national health crisis that has, due in large part to the president’s lying, killed more than 200,000 Americans and left tens of thousands more with permanent, crippling organ damage.

We are now in the final two months run-up to Election Day. Trump is desperate. He is behind in almost every poll, including many  battleground/swing states and his lies/distortions/deflections have not moved the needle in his favor.

Then the question is put: will you respect the vote and participate in a peaceful transfer of power? His answer remains, in effect, NO.

Does he mean it? We would be foolish to think it’s just a ploy on his part, part of Trump’s bag of braggadocio that so excites his political base at rallies. When you ask someone, “what do you do?” and he answers, “I’m a thief,” you should believe him.

Trump’s campaign to undermine the legitimacy of the election is unrelenting, supported by Russia again, and like an elixir for his base. However, many of Trump’s key enablers, like Sen. Lindsey Graham of South Carolina, are falling behind their Democratic opponents and pleading for help from Fox Propaganda News viewers.

Remember Trump’s answer: ‘NO, I will not respect the election result because I know, in advance with the use of my mystical powers to see the future, that it will be unfair to me and I won’t stand for it.’ There are suggestions that he will order the U.S. military and state National Guard units to the polls, for the sole purpose of intimidating voters. His supporters in open-carry states have already appeared at some protests related to the murders of George Floyd and Breonna Taylor armed with AR-15s and other weapons. They call themselves militias, but they are actually armed gangs who will not hesitate to participate in voter suppression in support of Trump’s white supremacy agenda.

Lastly, and most recently, in a now common apparent effort to bolster Trump’s claims of voter fraud working against him, the Justice Department announced it was investigating nine “discarded military ballots” that were cast for Trump in Luzerne County, Pennsylvania. https://cnn.it/2FZzo1a

The announcement is extraordinary in multiple respects: DOJ does not normally announce pending investigations absent compelling circumstances, especially if they may influence an election. That is true notwithstanding the astounding, history-changing decision by James Comey, then Director of the FBI, to announce a reopened email investigation of Hillary Clinton only days before the 2016 election. That decision, in which Comey overrode the advice of virtually everyone else at Justice, is recounted in Jeffrey Toobin’s True Crimes and Misdemeanors.

The initial announcement regarding the Pennsylvania ballots was wrong regarding how many votes were for Trump and had to be reissued. As noted by CNN, the disclosure of the candidate’s identity

immediately raised suspicions that the Justice Department was trying to furnish material that Trump could promote for political gain. Indeed, Trump and other White House aides used the information, even before it was made public, to attack mail-in voting. Election officials go to extraordinary lengths to protect ballot secrecy. It’s unclear how investigators figured out who the votes were for, and why they made that information public.

Not surprisingly, the federal inquiry was prompted by a request from the Republican District Attorney in Luzerne County; the DOJ attorney announcing the case is also a Trump-appointed Republican.

As usual with vote fraud cases, the “discarded” ballots are a tiny fraction of the “normal” voter turnout in Pennsylvania (6.1 million votes in 2016). Because the envelopes appeared similar to the ballot application envelopes, the story goes, the local officials decided to open them for fear of missing absentee ballot requests from the military, a problem that had cropped up in the last primary and, apparently, not cured.

This is, I believe, related to an ongoing problem with ballots, the requesting and use of which has become so complicated that many mistakes are made by ordinary voters whose votes are then rejected. This happens even in jurisdictions that have no history of voter suppression.

Another curiosity about this situation is that the investigation apparently had not yet learned who “discarded” the ballots or why. Yet, DOJ was most anxious to make public statements about the investigation and, it turns out, brief Trump in detail before the DOJ’s public announcement of the situation.

Trump spoke to Fox News Radio about it and the White House Press Secretary was informed and advised reporters before DOJ’s announcement.

CNN’s report continues:

Trump and Attorney General William Barr …have promoted debunked conspiracy theories and blatant disinformation to claim that mail-in voting leads to massive fraud. Election officials from both parties have rejected these claims and say there are tried-and-true safeguards prevent and quickly detect fraud.

The unorthodox Justice Department announcement is sure to fuel suspicion that Barr is using the Justice Department as a political weapon to help Trump’s reelection.

In recent months, Barr has aided Trump’s effort to label Democratic-run cities as “anarchist” strongholds, and has targeted Democratic-run states over Covid-19 deaths at nursing homes. Barr has also intervened in criminal cases to help prominent Trump allies.

David Becker, founder of the nonpartisan Center for Election Innovation, and a former DOJ attorney himself, said

the announcement didn’t say anything about the voters’ preferences in the down-ballot races, and that it said nothing about how the ballots were actually discovered.… to release a public statement with so little info, at the beginning of an investigation, is inexplicable, and law enforcement malpractice.

Becker was not alone in his condemnation of the early partial release of what amounts to political campaign material supporting Trump. For example,

It’s wildly improper, and it’s truly unconscionable,” said Justin Levitt, a former Justice Department official who is now a professor at Loyola Law School in Los Angeles. https://wapo.st/334NpDv

But, wouldn’t you know, the reality turns out to be quite different than the hysterical web of deceit and conspiracy that Trump and his sycophantic enablers weave. The discarding of ballots was a mistake by an inexperienced contractor, since fired. Another nothing-burger in the Trump pantheon of wounds and slights in the fantasy word he has concocted around voting fraud. https://cnn.it/2Sen7IV

Trump’s ongoing campaign to undermine confidence in the election, assisted by his Attorney General acting, and using the resources of the Justice Department, as de facto personal attorney for Trump and his re-election campaign. Barr’s involvements on behalf of the president and his enablers is so bad that more than 1,100 former DOJ officials publicly urged Barr to resign last February. https://n.pr/3hXHNPG

Trump’s plan seems clear. He intends to resist with every available tool, legal or otherwise, the outcome of the election. There are reports that his statements and claims have alarmed the generals in the Chiefs of Staff and in the Pentagon that they may be called on by Trump to intervene in the election. https://wapo.st/2Gawcj7 Trump would not hesitate to order the military to intervene if he thought that would save his presidency from electoral defeat.

In that case military leaders will have to choose between Trump and the Constitution – saying they’ll leave it to the courts will not suffice if Trump, as Commander-in-Chief, orders them to intervene on his behalf. And resignation, the other suggested option, will not work either. The decision-making authority would simply devolve down the chain of command until someone –- there’s always someone – says “I’ll give the order.” It will be someone least capable of leading but who is intoxicated by the power or the attention, however brief it may be.

Trump is half-way there. He has been asked repeatedly and continues to hedge: “we’ll see what happens.”

One suggested solution is that the Democratic vote must be so overwhelming that there simply is no basis for a claim of electoral fraud. A gigantic Blue Wave would be helpful, but it is no guarantee against a desperate man who has no allegiance to the Constitution or anything else beyond himself. Everyone should prepare for the worst. And, without fail, VOTE. VOTE like your country’s life and your own depend upon it. Because they do.