Im-Politic: On a Parkland Applicant, Harvard Flunks the Character Test

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adolescents, character, college admissions, colleges, Earl Warren, Florida, forgiveness, gun violence, Harvard University, higher education, Hugo Black, Im-Politic, Japanese internment, Ku Kux Klan, Kyle Kashuv, Parkland, racism, school shootings, Supreme Court, universities, World War II

The more I read and think about Harvard University’s decision to rescind admission to Kyle Kashuv because this survivor of the Parkland, Florida high school mass shooting last year made a variety of racist and other offensive and bigoted remarks in a digital document two years ago, when he was all of sixteen years old, the more outraged I get. And the more convinced I become that Harvard pounced upon an excuse to respond to pressure to punish Kashuv for refusal to jump aboard the gun control bandwagon.

Let’s get one aspect of this incident clear right away. Kashuv’s remarks were genuinely appalling. But for any fair-minded observer, the mitigating factors are overwhelming. He was in mid-adolescence – when even good kids often get tempted to do and say lots of stupid and even cruel things. His remarks were so loopy that they even included anti-semitic slurs – even though Kashuv is Jewish. They were made in private digital communications to a handful of apparently equally stupid friends and other schoolmates – i.e. no one has ever accused him of voicing such sentiments in public, an act that would create actual victims. He has admitted responsibility and apologized profusely. Further, nothing known about him so far – and clearly, folks have been looking, since he was outed by a fellow Marjory Stoneham Douglas student who apparently opposed his views on guns – indicates that these remarks ever reflected his actual views, much less do so now.

In fact, overall, Kashuv’s behavior has been far more honorable than Harvard’s handling of his character issues. To its credit, the university first responded to “media reports discussing offensive statements allegedly authored” by Kashuv by noting the morals clause that’s one of its admissions considerations and asking for “a full accounting” so that the matter could be “considered.” (The best source for these and the following Kashuv and Harvard statements is Kashuv’s Twitter feed:  @KyleKashuv.   

But Harvard’s professed open-mindedness was actually a sham, as is clear from its June 3 letter to Kishuv following his apology and explanation, and rejecting his appeal. The admissions dean William R. Fitzsimmons told Kashuv that he and his colleagues “appreciated [his] candor and…expressions of regret” and “discussed [them] at length.” And they bounced him anyway.

It’s disturbing enough that Harvard refused to accept a lengthy apology for a 16-year old’s misdeeds, an equally lengthy promise to learn and grow, and evidence of actually acting on this promise (in the form of reaching out to the university’s diversity office for guidance and counseling). At least as disturbing is seeing this inflexibility at an educational institution – which presumably is in the business of human improvement and focuses on teenagers, who surely represent many of the most improvable individuals on the planet.

As Kashuv himself has wisely noted, Harvard’s actions also raise broad moral questions about whether “we live in a society in which forgiveness is possible or mistake brand you as irredeemable.” I’d add that the odds of making offensive comments in particular have risen dramatically in recent years, since the amped up coarsening of culture and society is bound to trickle (and even flood) down to the young. Moreover, given how unpopular his guns views tend to be in the left-leaning political cultures on so many college campuses, and especially at so-called elite institutions like Harvard, the school’s treatment of Kashuv reeks of a politicized admissions process.

At the same time, the potential practical consequences of such gun jumping (no pun intended) should be sobering. I’m thinking in particular of Hugo Black. This mid-twentieth century Supreme Court Justice belonged to the Ku Kux Klan as a young adult. He was never especially apologetic, either. But on the High Court, he became one of its staunchest proponents of racial integration and a singular champion of free speech and other individual liberties – for Americans regardless of color.

And don’t forget Earl Warren, Chief Justice of the Court during much of Black’s tenure. As Attorney General and Governor of California during World War II, he was instrumental in carrying out the federal policy of indiscriminately throwing Japanese-Americans into internment camps solely because of their race or ethnicity. Not until his memoirs were published posthumously is there any public record of regret for these actions. Yet as Chief Justice, he became an even more powerful force than Black for racial justice and civil liberties.

The main – and screamingly obvious lessons – it seems to me are:

First, people can evolve even as adults, much less from their childhood and adolescent selves.

Second, the case for affording the benefit of the doubt, especially when the offender is young, and forgiveness is sought, is impressive.

And third, to understand these truths, you sure don’t need a Harvard education.

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Im-Politic: ABC’s Stephanopoulos Peddles Fake News on Mueller and Obstruction

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ABC News, Attorney General, Corey Lewandowski, Deputy Attorney General, Don McGahn, election 2016, George Stephanopoulos, Im-Politic, Jeff Sessions, Justice Department, Mueller Report, obstruction of justice, Robert S. Mueller III, Rod Rosenstein, This Week, Trump, Trump-Russia, White House Counsel, William P. Barr

The trade wars and resulting uproar have of course intensified lately due to President Trump’s threats to tariff Mexican imports to improve Mexico’s performance in helping ease the border crisis, and a New York Times report that his administration was mulling imposing levies on Australia in response to a surge in its aluminum exports to the United States.

But those developments – plus a terrific story in the Japanese press on metals tariffs that I’ll be posting about shortly as well – need to take a back seat today on RealityChek to a flagrant piece of fake news concerning the Mueller report’s conclusions propagated by a major broadcast media anchor that urgently needs to be debunked.

The culprit here is George Stephanopoulos, a top aide to Bill Clinton both during his first presidential campaign and his first term in the White House. The fake news involves his claim, made on yesterday’s This Week program, that in his report on Russian election interference and the responses of President Trump and his aides, the former Special Counsel Robert S. Mueller “laid out four incidents in the obstruction of justice section of the report that met all three criteria for obstruction of justice — an obstructive act, connection to an investigation, corrupt intent.”

His clear intimation was that Attorney General William P. Barr overlooked this major evidence and that his own decision (made in conjunction with his then Deputy, Rod Rosenstein, who decided to authorize a Special Counsel investigation of the above matters in the first place) to decline indicting the President was a transparently political effort to let Mr. Trump off the hook.

In fact, however, not only did the Mueller fail to identify four such incidents. The single set of incidents that could possibly qualify as an obstruction charge slam dunk – the President’s alleged efforts to remove Mueller himself as Special Counsel – was awfully weak beer.  Stephanopoulos might have two other groups of incidents in mind as well, but the case for so describing them is even feebler.

Before we proceed, however, keep in mind that in order to produce an obstruction conviction, a any prosecutor needs to convince a jury, as with all criminal trials, that the defendant is guilty “beyond a a reasonable doubt.” In addition, in order to decide to indict or to recommend an indictment, a government prosecutor must decide that “the admissible evidence will probably be sufficient to obtain and sustain a conviction….”

As I noted in my May 30 post, the Mueller report found “substantial evidence” that Mr. Trump committed obstructive acts in efforts to have Mueller fired (Vol. II, pp. 87 and 88). Ditto for the “connection to an investigation” and “corrupt intent” criteria for obstruction charges. (Vol. II, pp. 88-90).

But as I also noted, “even the substantial evidence [on the allegedly obstructive act count] simply ‘supports a conclusion.’ And there may be less to that conclusion than meets the eye. For couldn’t the presidential order to [then White House Counsel Don] McGahn to call Rosenstein have reflected…concerns about Special Counsel team conflicts of interest?”

Regarding the critical matter of intent, Mueller wrote (Vol. II, p. 89) that “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.”

That verb “indicates,” though, is pretty wishy-washy, especially considering the (properly) tough standards long established by U.S. criminal law and Justice Department policy for bringing an obstruction charge. Why didn’t Mueller write that this substantial evidence “shows” or “demonstrates” that these Mueller-removing actions were linked to his ongoing investigation, which threatened the Trump presidency?

The first of the two other possible slam-dunk groups of incidents entails the President’s efforts to curtail the Mueller investigation (as opposed to simply firing the Special Counsel). This episode centers around Mr. Trump’s decision to send former campaign aide and frequent (unofficial) confidant Corey Lewandowski on a mission to tell then Attorney General Jeff Sessions to end the existing investigation into election 2016 and specific Trump-related matters, and concentrate his efforts on whatever foreign meddling might be threatening upcoming elections.

The second such group of events consist of other attempts made by Mr. Trump to direct Sessions to take over the Special Counsel investigation.

The report’s wording convince me, anyway, that Mueller believed that the Lewandowski-related incidents met the obstructive act and link to an ongoing investigation standards. Plenty of evidence is presented regarding intent as well.

But at this juncture, it’s necessary to point to other intent-related considerations that we know were influencing Mueller’s evaluation of these events. Specifically, as Mr. Trump has continually observed, the Special Counsel (Vol, I, p. 9) found no underlying crime (that candidate Trump or any member of his campaign either acted “as an unregistered agent of the Russian government or other Russian principal” or “conspired with representatives of the Russian government to interfere in the 2016 election”). Nor, even though this activity would not constitute a crime, did the investigation “establish that members of the Trump Campaign” even “coordinated with the Russian government in its election interference activities.” (Vol, 1, p. 2).

Although, as Barr noted in his March 24 letter to Congress announcing his decision not to indict Mr. Trump, the absence of an underlying crime does not preclude charging a defendant with obstruction, this absence “bears upon the President’s intent with respect to obstruction.” In other words, as I wrote on May 30, and as Barr made clear in a May 17 interview, Mr. Trump’s actions reflected his belief – which was both sincere and factually grounded – that he was being framed.

And guess what? Mueller agrees! On Vol. I, p. 7, his report states:

“[U]nlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.”

As for the Trump efforts to ensure that his then Attorney General take over the Mueller investigation, the report doesn’t even come to any identifiable conclusion about whether any obstructive acts were committed. (Vol. II, p. 112)

The only other group of incidents that might legitimately qualify for the “slam dunk” category centered on Trump’s order to McGahn to deny that he had asked him to firer Mueller.

At the same time, Mueller’s conclusion as to whether any obstructive act was committed here is anything but clear, either. As the report notes (Vol II, p. 118):

“The President’s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.”

There is some evidence that at the time the New York Times and Washington Post stories [reporting that such developments took place] were published in late January 2018, the President believed the stories were wrong and that he had never told McGahn to have Rosenstein remove the Special Counsel.”

In other words, the report is acknowledging these could have represented another group of Trump actions motivated by the sincere belief that he was being framed.

At the same time, the report states that “Other evidence cuts against that understanding of the President’s conduct.”

In sum, it’s obvious that contending that Mueller concluded that Mr. Trump was robustly indictable for even one of these sets of incidents rests on the shakiest of ground. Contending that the report found four such sets is nothing less than fiction. And the insinuation of a Barr cover-up is completely beyond the pale. Indeed, taken together, and given the various legal hurdles he needed to overcome to make a legitimate indictment recommendation, it’s obvious why – aside from the Justice Department policy barring the indictment of a sitting President – Mueller didn’t report to Barr that solid grounds existed even for a single obstruction charge.

In fact, as I also noted on May 30, the following was the most obstruction-friendly conclusion contained in the Mueller report – and it covers the above events related to the attempted Mueller firing:

“[T]here [is] a sufficient factual and legal basis to further investigate potential obstruction-of -justice issues involving the President.” (Vol. I, p. 12)

I.e., after a 2-year probe conducted by as many as 19 lawyers with the assistance of “approximately 40 FBI agents, intelligence analysts, forensic accountants, a paralegal, and professional staff ” that “issued more than 2,800 subpoenas under the auspices of a grand jury sitting in the District of Columbia; executed nearly 500 search-and-seizure warrants; obtained more than 230 orders for communications records under 18 U.S.C. § 2703(d); obtained almost 50 orders authorizing use of pen registers; made 13 requests to foreign governments pursuant to Mutual Legal Assistance Treaties; and interviewed approximately 500 witnesses, including almost 80 before a grand jury,” Mueller simply determined that reasons existed for continuing to investigate. (Vol. I, p. 13) And P.S.: He didn’t call them “substantial.”

If Stephanopoulos simply made a mistake by claiming that Mueller found four full-blown instances of Trump obstruction of justice, that’s fine – as long as he admits the error. Until he does, however, he’ll be as guilty of trafficking in fake news as he seems to believe Mr. Trump is guilty of obstruction.

Im-Politic: Mueller’s Sin of Omission on Obstruction

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Attorney General, collusion, Don McGahn, election 2016, FBI, Im-Politic, impeachment, indictment, James Comey, Jeff Sessions, Justice Department, Michael Flynn, Mueller Report, obstruction of justice, Robert S. Mueller III, Rod Rosenstein, Russia, Special Counsel, Trump, Trump-Russia, William P. Barr

There’s no longer any legitimate doubt: Nearly six weeks after its release, almost no one with any influence on American public policy or public opinion has actually read the publicly available version of the Mueller report on Russian election interference and possible presidential obstruction of justice. And most of those who have read it either didn’t understand it, or are trafficking in misleading descriptions. P.S. Based on his brief farewell remarks yesterday, that list includes Special Counsel Robert S. Mueller III himself.

Those are the only logical conclusions that can be drawn from the continuing insistence that, to quote Mueller, President Trump would have been charged in the report with the crime of obstructing justice but for “long-standing Department policy, [that] a President cannot be charged with a federal crime while he is in office. That is unconstitutional….The Special Counsel’s Office is part of the Department of Justice and, by regulation, it was bound by that Department policy. Charging the President with a crime was therefore not an option we could consider.”

Was Department policy a major determinant of Mueller’s non-indictment decision? Of course. And Mueller made that clear both in his reports and in his brief public statement. But was it the only determinant? And, by implication, given Mueller’s declaration that his report’s findings did not “exonerate” the President on this score, did Attorney General William P. Barr behave improperly by issuing his own determination that, even leaving aside Justice’s presidential indictment policy, Mueller’s investigation did not produce evidence “sufficient to establish” presidential obstruction?

The answer to both questions is clearly “No.” And it’s not even necessary to rely on Barr’s denial, in his March 24 letter announcing the decision reached by he and then Deputy Attorney General Rod Rosenstein, that the determination “was made without regard to, and was not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”

It’s not even necessary to believe Barr’s May 1 testimony to the Senate Judiciary Committee that, at a March 5 meeting with Mueller, “in response to our questioning, [Mueller stated] that he emphatically was not saying that but for the [Justice Department policy] he would have found obstruction. He said that in the future the facts of the case against the president might be such that a special counsel would recommend abandoning the OLC opinion, but this is not such a case.”

These Barr statements can be ignored because Mueller’s April 18 report itself not only gathered abundant evidence bearing on the obstruction charge. It declared that it was inconclusive. To quote from the report (Volume II, p. 8. All subsequent page references are to this Volume unless otherwise noted.) “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.” And the report’s detailed discussions of ten Trump-era potential obstruction of justice episodes makes clear that the difficulties arose precisely because his team found significant evidence on both sides of the issue.

As a result, the most obstruction-friendly conclusion that Mueller and his aides reached was

that “there was a sufficient factual and legal basis to further investigate potential obstruction-of -justice issues involving the President.” (p. 12). In other words, an indictment decision was anything but a slam dunk. And after a protracted probe involving the questioning of literally hundreds of witnesses, all that the Special Counsel could state with high confidence was that a case can be made.

Moreover, the report spent so much time weighing the kind of evidence that would be used in a normal obstruction case that an entire section was devoted to summarizing “the law interpreting the elements of potentially relevant obstruction statutes in an ordinary case. This discussion does not address the unique constitutional issues that arise in an inquiry into official acts by the President.” (p. 9)

The obstacles to indicting Mr. Trump for obstructing justice came through loud and clear in the Mueller report’s analysis of what’s often portrayed as the leading candidate for such a charge – the President’s alleged order to his then White House Counsel Don McGahn to fire Mueller. According to the Mueller Report (on p. 87):

“A threshold question is whether the President in fact directed McGahn to have the Special Counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had simply wanted McGahn to bring conflicts of interest to the Department of Justice’s attention….Some of the President’s specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.”

It’s perfectly valid to note that the “substantial evidence” cited here surely outweighed in Mueller’s mind the evidence about presidential language recalled by McGahn – evidence that wasn’t even given an adjective. Yet readers are told that even the substantial evidence simply “supports a conclusion.” And there may be less to that conclusion than meets the eye. For couldn’t the presidential order to McGahn to call Rosenstein have reflected the same concerns about Special Counsel team conflicts of interest?

On the question of intent, which matters greatly in obstruction cases, Mueller wrote (p. 89) that “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.

I’m not a lawyer, but could someone please explain to me why that “substantial evidence” is so all-fired incriminating? And as for this claim (p. 90) – “There also is evidence that the President knew that he should not have made those calls to McGahn” – that doesn’t exactly strike me as “Lock him up” material.

Muddying the waters even further are the aspects of possible obstruction-related episodes for which the Mueller Report presents no judgment on the evidence in terms of adjectives or other descriptions.

For example, regarding the President’s conduct with respect to the investigation of his (quickly fired) national security adviser Michael Flynn during the transition period, the report simply states (pp. 46-47):

“As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with [Russian Ambassador to the United States Sergey] Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge….

“Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017. The evidence also does not establish that Flynn otherwise possessed information damaging to the President that would give the President a personal incentive to end the FBI’s inquiry into Flynn’s conduct.

“Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end “the whole Russia thing.”

No bottom line is presented.

Similarly (p. 154), the report’s discussion of the “nexus” issues raised by presidential conduct toward his former lawyer and all-around fixer Michael Cohen (focusing on the obstruction-relevant possibility that an individual being investigated knew that certain actions could bear on certain official proceedings ranging from judicial or grand jury actions to Congressional probes) simply observed:

“The President’s relevant conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.”

One powerful overall conclusion, though, can easily be reached after reading the entire Mueller Report, and it bears on the crucial obstruction-related consideration of whether an individual acted with corrupt intent. As Barr observed in a May 17 interview with Fox News, Mr. Trump’s actions sprang from the genuine – legally non-corrupt – conviction that Mueller’s investigation of his record, along with the Obama administration’s surveillance of his campaign and the presidential transition, was a “witch hunt and a hoax.”

Continued Barr:

“[A]t the time, he was saying he was innocent and that he was being falsely accused. And if you’re falsely accused, you would think [it] was a witch hunt. … He has been hammered for allegedly conspiring with the Russians. And we now know that was simply false…. I think if I had been falsely accused, I’d be comfortable saying it was a witch hunt.”

At least as important, the Mueller Report itself supports this interpretation in many instances. For example:

“[U]nlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.” (p. 7)

“Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election.” (p. 47)

“[Then Attorney General Jeff] Sessions said he had the impression that the President feared that the investigation could spin out of control and disrupt his ability to govern, which Sessions could have helped avert if he were still overseeing it. (p. 51)

“On Saturday, March 25, 2017…the President called [Director of Intelligence Daniel] Coats and again complained about the Russia investigations, saying words to the effect of, “I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS, they’re all over me with this.” (p. 56)

“In addition to the specific comments made to Coats, [the CIA Director Mike] Pompeo, and [then National Security Agency Director Admiral Michael] Rogers, the President spoke on other occasions in the presence of intelligence community officials about the Russia investigation and stated that it interfered with his ability to conduct foreign relations.” (p. 57)

“The evidence shows that the President was focused on the Russia investigation’s implications for his presidency- and, specifically, on dispelling any suggestion that he was under investigation or had links to Russia.” (p. 61)

“Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on [then FBI Director James] Comey’s representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished.” (p. 61)

President Trump “told Comey that ‘he was trying to run the country and the cloud of this Russia business was making that difficult.'” (p. 61)

“The President…told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders.” (p. 62)

“According to [then White House adviser Stephen K.] Bannon, the President said the same thing each time: ‘He [Comey] told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.'”

“We also considered why it was important to the President that Corney announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia.” (p. 76)

“The President wanted Sessions to disregard his recusal from the investigation, which had followed from a formal DOJ ethics review, and have Sessions declare that he knew ‘for a fact’ that “there were no Russians involved with the campaign” because he ‘was there.’ The President further directed that Sessions should explain that the President should not be subject to an investigation ‘because he hasn’t done anything wrong.'” (p. 97)

“[T]he President knew that the Russia investigation was focused in part on his campaign, and he perceived allegations of Russian interference to cast doubt on the legitimacy of his election.” (p. 97)

“[T]he evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election….” (p. 157)

As I wrote in an April 21 post, I believe that, because he had no reason to believe that a nearly complete version of his report (whose only required audience was the Attorney General) would be made public, Mueller acted perfectly appropriately in including a judgment that his investigation did not exonerate Mr. Trump on the obstruction question. For he was trying to impart information to Barr.

But Mueller has done the country a grave disservice by stressing the Constitutional barriers to indicting the President on this score. His report plainly demonstrates that he and his staff spent enormous amounts of time probing the traditional legal bases for an obstruction charge, and found considerable evidence to support decisions both to indict and not indict had Justice Department policy permitted such a step to be considered. And his farewell remarks yesterday were an inexcusable missed opportunity to clarify these matters.

As for Barr’s decision to file no obstruction charges, he and Rosenstein just as plainly saw the amount of evidence supporting such a conclusion, and quite reasonably judged that the obstruction allegations could not be proved “beyond a reasonable doubt” had Justice’s reading of the Constitution permitted a case to be brought. Moreover, as Barr’s May 17 press interview demonstrates, he believed that the President’s relevant words and deeds stemmed from his conviction that he was being framed – a conviction borne out by Mueller’s findings not only that the evidence was “not sufficient to support criminal charges” on any grounds against any Trump campaign officials who had contacts with the Russian government, but that no members of the campaign had “coordinated with the Russian government in its election interference activities.” (Vol I, pp. 9,2)

Now that Mueller’s investigation is finally, officially, totally over, Congress, of course, has every Constitutional right to launch impeachment proceedings. For impeachment charges can properly include deeds that are not strictly speaking crimes. But it’s crucial to note that, from a legal standpoint, Mr. Trump is now in the clear. And although technical objections like Mueller’s can be raised to the President’s “no collusion, no obstruction claims,” his own report shows that they’re more than accurate enough.

Im-Politic: Why the Crucial Abortion Debates are (Long) Over

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abortion, abortion rights, Constitution, Gallup, heartbeat bills, Im-Politic, Kaiser Family Foundation, National Opinion Research Center, Pew Research Center, Planned Parenthood of Southeastern Pennsylvania v. Casey, Quinnipiac College poll, Robert G. McCloskey, Roe vs. Wade, Supreme Court

If only most of the major challenges facing Americans were as easy to meet as arriving at a satisfactory compromise over abortion. In fact, in the key respects, the challenge has already been met, as a general consensus is staring the nation in its collective face, has been in place literally for decades, and looks guaranteed to remain solidly in place for the foreseeable future.

Sounds crazy, doesn’t it, given the political and policy brawl that has erupted in recent weeks over a handful of states’ approval of laws dramatically reducing the circumstances in which abortion will remain legal?  But this contention is backed up strongly by the national legal regime regulating abortion right now, by all the polling, and by everything known about how the Supreme Court – which it’s thought on both sides of the issue could well transform the status quo it’s created since its 1973 Roe v. Wade decision – historically has handled such explosive questions. Moreover, abortion is one of those matters in which the politics, the law, and the history powerfully reinforce each other.

Let’s start with the law. The major Supreme Court decisions are of course the Roe case – which established a Constitutional right to abortion but also authorized states to infringe on it in various ways during a pregnancy’s second and third trimesters – but also a ruling in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey case. In it, a 5-4 majority of the Court created a standard to govern such state restrictions on abortion, holding that such measures could not impose an “undue burden” on women seeking abortions that “created a substantial obstacle” to undergoing the procedure “before the fetus attains viability.”

Revealingly, that guideline nicely describes the current U.S. consensus on abortion rights: Women deserve a fundamental right to abortion, but (like most other rights), it’s not absolute. More specifically, the most widely agreed on exceptions involve what are clearly exceptional (and exceptionally tragic) – mainly rape, incest, serious threats to the pregnant woman’s health, and a high likelihood that the new baby would suffer from serious defects. (See this recent Gallup summary for some representative data.)

Still more revealingly: These public attitudes have been remarkably stable over time. At least three separate polls – shown in the aforementioned Gallup summary, by Pew, and by the National Opinion Research Center (NORC) – make this point emphatically.

And at least as important – NORC’s findings show that a sizable gap has existed between public support for the “tragic” exceptions to the right to abortion on the one hand (which have demonstrated at least 70 percent backing for the four decades examined), and other proposed exceptions (whose support generally has remained between 30 percent and 50 percent).

In turn, these legal and political considerations both create towering obstacles even to a Court now featuring a conservative majority overturning either the Roe or the Casey regimes. And least plausible of all is the wish-dream of abortion rights opponents and the nightmare of abortion rights supporters – that the Court bases such a reversal on cases brought deliberately in order to uphold the highly restrictive new state laws. For outlawing abortion even in the aftermath of rape and incest, for example, would seem the epitome of creating a Casey-violating undue burden on the fundamental right to abortion. The various “heartbeat” bills for their part can’t be squared with the Court’s determination in Roe and other decisions since that a fetus isn’t viable until long after the six weeks at which this function can first be detected.

Indeed, such laws repeatedly have been struck down in various courts, and the Supreme Court has refused to consider the two that reached it on appeal. And don’t think it’s a coincidence that the high court’s recent record tracks well with public opinion (including on the heartbeat bills, according to Kaiser Family Foundation and Quinnipiac University survey results presented in this sweeping summary of decades of abortion poll findings).

But couldn’t the Supreme Court’s new conservative majority decide the time is ripe to get rid of Roe and follow-on decisions? Not if it bears any resemblance to its predecessors since the New Deal era. For one of the seminal findings about the Court came back in 1960, in Harvard political scientist Robert G. McCloskey’s classic study, The American Supreme Court. As McCloskey argued compellingly, the Court is most successful when it pays attention to public opinion, and runs into its greatest troubles when it gets too far ahead of or too far behind these attitudes. If you’re skeptical, just think of the tumult that followed the pre-Civil War Dred Scott case and its invalidation of crucial pieces of New Deal legislation during the Great Depression.

None of this is to say that lots of thorny abortion-related decisions will continue to face Americans – like federal funding for Planned Parenthood and other organizations that provide a wide range of women’s health care services, including abortion services; and about what kinds of reproductive health services like birth control religious organizations should be required to provide for female employees in their health insurance plans. And few of them have generated enough polling evidence to identify consensus with any justifiable confidence.

But the broadest, most important abortion-related questions have been decided – especially in the court of public opinion. The procedure will remain a strongly protected Constitutional right early in pregnancy, and a more weakly protected right in later phases. Throughout pregnancies, this right will receive virtually absolute protection in genuinely traumatic circumstances, and be subjected by states to curbs on its availability that don’t “substantially” nullify it in practical terms — and that therefore should not be reflexively condemned as stepping stones to wide-ranging bans.

So abortion rights supporters need to give up on extending strong protections deep into pregnancy. And abortion rights opponents should forget about overturning Roe and Casey. It’s true that medical advances that keep pushing fetal survivability (if not viability without pervasive support) back closer to conception will one day resume adding fuel to the abortion debate fire. And public opinion is by no means set in stone. But for more than forty years since Roe, Americans collectively have been saying that the general abortion debate is over, and the courts have plainly agreed. It’s high time that politicians and activists across the spectrum got the message.

Im-Politic: Claims that Trump Has Betrayed His Voters Economically Look Weaker than Ever

Tags

Commerce Department, election 2016, Hillary Clinton, Im-Politics, Populism, real personal income, Trump

President Trump has betrayed all the (tens of millions) of working class and/or rural voters who supported him in 2016 – that’s been one of the most popular claims by his opponents politics and journalism alike. (See, e.g., this post.)  Even so, the evidence to the contrary being either ignored or unknown continues to impress.

At the end of last month, I presented some data showing that lower- and middle-income Americans have seen their economic lots improve faster relative to those of upper-income Americans under the first two years of Mr. Trump’s presidency than under the last two years of Barack Obama’s.  The gap hasn’t been enormous, but it sure seems to belie the idea that Trump voters were duped by a phony populist. 

This morning, the Commerce Department supplied some more in the form of its annual report on how inflation-adjusted personal income rose or shrank in each of the 50 states and the District of Columbia over the latest data year (in this case, 2016-2017).

A casual reading of the report doesn’t provide much encouragement for Trump supporters. For example, of the ten states that saw real personal income rise the fastest, six gave their electoral votes to Democratic presidential candidate Hillary Clinton in 2016, and only four to Mr. Trump. Moreover, of the ten states that performed the worst when it comes to personal income improvement, seven were in the Trump column and only three in Clinton’s.

Further, on average, the Clinton states enjoyed price-adjusted personal income advances of 2.60 percent in 2017. The comparable Trump state figure was only 2.05 percent.

So why do I argue that the Trump betrayal contentions get the story largely wrong? Because I’ve compared these 2016-2017 results with those of the year before – which was of course the last year of the Obama presidency. And what it shows is what surely matters to voters more the single year results – whether their personal incomes fared better or worse in 2017 than in 2016. And when these numbers are presented, the economic case for Trump votes looks awfully strong.

To be fair, after-inflation personal income nation-wide was much faster in Mr. Trump’s first year in office than in Mr. Obama’s last – and by a whopping 2.6 percent to 1.1 percent! Even so, the Trump states saw the best rates of improvement. Indeed, of the thirty states whose electoral votes were won by the President (and adding in Maine, which split its electoral votes), price-adjusted personal income grew faster in 2017 in fully 25 (or 80.65 percent). Income growth slowed year-on-year in only four 12.90 percent), and the rate stayed the same in two.

For most of the 21 Clinton states (including Maine), real personal incomes grew faster in 2017 than in 2016, too. But the percentage was lower (71.43 percent). In five of those 21 states (23.81 percent), inflation-adjusted personal income increases slowed, and Maine remained flat.

All together, inflation-adjusted personal income growth accelerated from 0.63 percent between 2015-2016 to 2.05 percent in 2016-17 for the Trump states – a much faster rate than the 1.58 percent to 2.60 percent speed-up for the Clinton states.

Especially interesting – between the two time periods, no fewer than seven Trump states saw their personal incomes grow in real terms in 2017 after shrinking in 2016. Only one Trump state (South Dakota) experienced the reverse. By contrast, none of the Clinton states suffered after-inflation personal income drops in 2016 – but none has experienced such dramatic improvement, either.

These state-wide numbers aren’t perfect measures of personal incomes developments, and they’re even more problematic as clues to political behavior. After all, most states are big enough to be highly diverse economically, and wide gaps between rich and poor can be found inside many. It’s also important to note that the Trump states generally keep lagging the Clinton states when real personal income growth is looked at in absolute terms.

But trends almost always deserve to count more than snapshots. And although the new real personal income numbers hardly show that the Trump states have entered economic nirvana, they make the betrayal claims look flimsier than ever.

Im-Politic: The Mueller Letter Coverage Shows the Need for a Journalism Hall of Shame

Tags

Attorney General, Im-Politic, journalism, Mainstream Media, media bias, obstruction of justice, Pulitzer Prize, Robert S. Mueller III, Special Counsel, The New York Times, Trump, Trump-Russia, Washington Post, William P. Barr

Here are two suggestions for the folks at Columbia University’s journalism school who each year award the Pulitzer Prizes for that so-called profession: First, in addition to citing reporters and editors whose work supposedly embodies journalistic excellence, they should identify news people whose performance is a complete disgrace. Second, they could easily kick off this practice next year by shaming the Washington Post and New York Times articles this morning revealing that Special Counsel Robert S. Mueller III has complained to Attorney General William P. Barr about Barr’s descriptions of his report on Russia’s interference with the 2016 presidential election and President Trump’s reactions to the Mueller probe.

Both pieces – and the reporters and editors responsible – completely mis-characterized the Mueller concerns that they eventually went on to portray accurately. And they committed the unforgivable journalistic (and broader ethical) sin of accentuating the negative when the case for focusing on the positive was at least equally strong.

Specifically, the thrust of the two pieces was that Mueller in a letter to Barr expressed objections to Barr’s March 24 letter to Congressional judiciary committee leaders summarizing the “principal conclusions reached by the Special Counsel and the results of his investigation,” and informing them of the status of Barr’s “initial review” of the report.

But any reader who finished the articles would discover that, contrary to the headlines and the opening paragraphs, Mueller was most irked not by any of Barr’s actions or writings, but by the press coverage. According to the Post reporters (who claim to have seen the Mueller letter), the Special Counsel did write to the Attorney General (his Justice Department superior) that the March 24 Barr communique to Congress

“did not fully capture the context, nature, and substance of this office’s work and conclusions. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”

(The letter has since been released.)

But farther into the story, readers are told that the following day, when the two spoke by phone, “Mueller said he was concerned that media coverage of the obstruction investigation was misguided and creating public misunderstandings about the office’s work, according to Justice Department officials.”

Moreover – and this is crucial – “When Barr pressed Mueller on whether he thought Barr’s memo to Congress was inaccurate, Mueller said he did not but felt that the media coverage of it was misinterpreting the investigation, officials said.”

So the question needs to be asked: Why wasn’t the emphasis in the Post story Mueller’s statement that Barr had accurately summarized his report, and that he thought the press coverage was awful? And by extension, why wasn’t the headline something on the order of “Mueller praises Barr summary as accurate; slams media interpretations”?

The Times story followed the same pattern and therefore embodied the same fatal flaws. In particular, it wasn’t until the seventh paragraph that readers learn that

“‘The special counsel emphasized that nothing in the attorney general’s March 24 letter was inaccurate or misleading,’ a Justice Department spokeswoman, Kerri Kupec, said in response to a request for comment made on Tuesday afternoon. A spokesman for the special counsel’s office declined to comment.”

As a result, it, too, could have been – and indeed should have been – structured along lines favorable to Barr, not critical of him. Indeed, here the argument for such an approach is even stronger than for the Post piece, since the evidence of Barr’s accuracy comes from a named official spokesperson, not from anonymous sources.

Last week, a major national poll found that American voters’ distrust of “political news” had hit an all-time high of 54 percent. The Post and Times coverage of Mueller’s words all but guarantees that new records on this score will soon be set – and is sending a message to the Pulitzer folks that something like a Hall of Shame is needed to start getting journalism off its current irresponsible track.

Im-Politic: The Price of Unforced Trump Immigration Policy Errors

Tags

Africa, AP, Associated Press, border security, border wall, Center for Immigration Studies, Im-Politic, Immigration, Kirstjen Nielsen, Mark Stevenson, Middle East, migrants, terrorism, Trump

While piloting the fledgling New York Mets to an historically awful season in 1962, their colorful manager Casey Stengel at one point exasperatedly asked “Can’t anybody here play this game?” Or something like it.

An Associated Press (AP) report yesterday makes clear that the same question needs to keep being asked about the Trump administration’s intertwined immigration and border security policies. The article provided the latest batch of evidence supporting an administration claim about the threat of terrorists entering the United States across the southern border that the President and his aides have repeatedly undercut by incompetently presenting the facts.

The most recent controversy about the terrorism-immigration connection erupted in early January, when, according to press reports, former (and later fired) Homeland Security Secretary Kirstjen Nielsen met with Congressional leaders to lobby for Mr. Trump’s border wall proposal. Her pitch, according to the reports, used the claim that, during the past year, 3,000 terrorists were among those apprehended by border officials as they tried to cross into the nation from Mexico.

The claim was so easily debunked that even supporters of much more restrictive U.S. immigration policies were left shaking their heads. But as explained in this post from the Center for Immigration Studies (CIS), a related terrorism-immigration threat does warrant major concern – including wall-building – even though the Trump administration rarely mentions it and even on those occasions often botches the matter. It’s the demonstrable presence in groups of would-be border crossers of migrants from countries and regions where terrorism is all too common, including the Middle East and North Africa and their large numbers of jihadists; and/or of migrants on federal terrorist watch lists.

The numbers of actual terrorists even in these often overlapping groups apparently aren’t large in absolute terms. But as observed by CIS’ Todd Bensman, a former Texas State counter-terrorism official, “in this threat realm, small numbers portend major consequences. Just ask German Chancellor Angela Merkel, as she heads for the exit over just a relative few migrants who committed terror attacks in her country after entering among the million migrants she admitted.”

And this is where the new AP story comes in. According to correspondent Mark Stevenson,

“Thousands fleeing conflict or poverty in Nigeria, Cameroon, Bangladesh, Haiti and Cuba have traveled across oceans, through the jungles and mountains of South America, up through Central America, on a route that — so far — ends here: the steamy, crumbling Mexican city of Tapachula, near the Guatemala border.”

Why did they try to enter the United States this way? Stevenson quotes a migrant rights supporter as explaining that stating that their presence owes to the fact that

“word quickly spread through international smuggling networks that Mexico had become more permissive for migrants. Attention drawn to the large caravans meandering north to the U.S. last year, combined with Mexico’s fast-track for thousands of humanitarian visas in January, appeared like welcome mats on the global stage. At the same time, it became more difficult for migrants in Asia or Africa to reach Europe.”

The non-Western Hemisphere migrants interviewed by Stevenson all claimed to be fleeing poverty, violence, and persecution in their home countries, and no doubt many and even most are telling the truth. But how on earth can this be reliably determined? Assuming these individuals have national documentation, do Nigeria, Cameroon, and Bangladesh, for example, really have governments remotely capable of identifying their populations with any precision? Can a reporter verify their stories? Also disturbing: Stevenson’s interviewees were all single men.

On the one hand, the length of the journeys they say they have taken surely complicates the task of bringing along family members, and especially children. At the same time, it’s single men who commit the lion’s share of the terrorist acts and crimes against women that have generated such a backlash in Europe and – to a much lesser extent so far – in the United States.

As noted by Bensman, the former Texas counter-terrorism official, the Trump administration could easily clear up the confusion it has helped create by securing the release of the correct numbers as kept by the FBI and Homeland Security’s National Counterterrorism Center, and by reporting them accurately. But weirdly, the administration has not only declined to take these obvious steps. It’s resisting CIS efforts to force the release of these data through the Freedom of Information Act. In fact, ten days ago, CIS sued the U.S. Customs and Border Protection agency to make the data public.

Let’s all hope this legal action succeeds, or that the Trump administration stops the obstruction. Keeping the nation safe from terrorism is too important an objective to tolerate big unforced official errors continuing.

Im-Politic: Signs of Hopeless Division or Potential Unity?

Tags

Affordable Care Act, Democrats, election 2020, Gallup, healthcare, Im-Politic, Immigration, independents, Obamacare, Republicans, Trump

Polls like today’s Gallup survey that try to assess what national issues and problems are foremost in American’s minds are terrifically valuable, especially as big elections like the 2020 presidential race approach. Trouble is, Democrats and Republicans and independents of all kinds will struggle to find clear trends marked out in this morning’s survey, much less derive strong comfort from it.

The difficulties start with Gallup’s overall findings about how high various major issues rank on the public’s priority scale. Competing fiercely for the top spot, and mentioned more than twice as often as the next concerns, are “The government/poor leadership” (cited by 23 percent of respondents – in this case, “US adults”) and “Immigration” (cited by 21 percent). And to be more specific, the government/leadership option offered by Gallup included “Congress” and “politicians,” not simply the President. “Immigration” wasn’t further elaborated on.

In principle, some more light might be shed on who could benefit most from this poor government finding by examining the trends over time. But as the chart below shows, although the importance of the overall government issue began rising notably right after the last presidential election (indicating that President Trump is causing most of the anxiety), the ranking became unusually volatile in the middle of last year, and has stayed that way – including through 2019. This year, of course, has seen an unpopular partial federal government shutdown most often blamed on Mr. Trump, rising levels of partisan rancor, and the climax (for now) of the Russia scandals investigation. On the whole, though, it seems reasonable to conclude that this issue is cutting somewhat against the President.

Some evidence to the contrary, however, comes from the current separate figures for Democrats, Republicans, and independents. Democrats express the most concern about the quality of government and leadership, with 32 percent pegging it as the country’s top problem. But although only 21 percent of Republicans chose this option, that result was much closer to that of independents (19 percent) than the Democrats figure. Both independents and especially Republicans are much likelier than the Democrats to blame government failings on the Democrats who now control the House of Representatives, and therefore wield much more power in Washington than during Mr. Trump’s first two years in office.

Using these criteria, the Gallup immigration findings look even more promising for Mr. Trump. It’s true that using that single noun to describe the issue masks the distinction between respondents who consider current U.S. policy too restrictive or not restrictive enough.

But assuming – not too controversially – that Republicans favor more immigration curbs, Democrats fewer, and independents as a group coming down somewhere in the middle, it seems apparent that immigration-motivated Americans are likelier to be Republican and Trump voters. Indeed, only five percent of Democrats view immigration as the country’s biggest problem today, versus 18 percent of independents and 41 percent of Republicans.

As for the rest of the issues mentioned in the Gallup survey, the responses seem to offer hope for both parties. Relatively little concern is expressed about matters such as the economy in general, unemployment and jobs, poverty, and inequality – which looks like good news for Republicans and for the President, since these results clearly signal satisfaction with the so-called pocketbook issues. Ditto for the measly three percent figure recorded for climate change and other environmental issues combined, and the failure of gun violence even to make it into the rankings.

At the same time, Democrats should feel pretty pleased that “Ethics/Moral/Religious/Family decline” alarmed only three percent of respondents, and “Crime/Violence” topped the list for only two percent.

The most puzzling message sent by the Gallup results concerns healthcare – which, it’s widely agreed, helped the Democrats greatly during last year’s midterm elections, and could be a winner for them again in 2020, especially if Mr. Trump continues his war on Obamacare.

The seven percent of the public naming healthcare as the country’s biggest problem resulted in the third highest such score (behind “The government/Poor leadership” and immigration). But especially given its enormous importance for so many families’ finances no matter how the Obamacare fight turns out – and potentially into the future if the White House and both houses of Congress are won by Democrats seeking to expand coverage dramatically – seven percent is hardly astronomical.

But how should this number be interpreted? If it signals overwhelming satisfaction with the status quo, however uncertain its durability is Republicans could benefit – but probably only if they make clear that they won’t go for major change, either. Since Obamacare (officially known as the Affordable Care Act) has shaped the status quo, Democrats in principle could take heart – particularly if their most ambitious ideas on this front fall by the wayside.

And here’s the partisan split (which I don’t think undermines the above analysis): Healthcare is seen as America’s leading problem by three percent of Republicans, seven percent of independents, and 14 percent of Democrats.

This Gallup poll’s findings that so many different and even clashing concerns are troubling Americans these days – and in so many possibly different ways – could understandably be seen as evidence that Americans are hopelessly far from agreeing on national priorities. I prefer a more optimistic take: There’s a new winning consensus and lasting political realignment in the making if only the nation’s political leaders could break out of their ideological straitjackets and build it.

Im-Politic: Exonerating Mueller on Not Exonerating Trump

So many legal and Constitutional issues are raised in Special Counsel Robert Mueller’s report on Russian interference in the 2016 presidential election and on the possibility that President Trump or any of his aides and associates obstructed justice either before or during the Mueller investigation that they can’t possibly be covered adequately in a single post.

There is, however, one set of controversies that can be disposed of fairly easily – at least as this non-lawyer sees it – so that seems as good a place as any to start. That’s whether, having decided not to charge the President specifically with obstruction, Mueller had any business presenting detailed descriptions of Trump actions that could conceivably meet the obstruction standard, much less declaring that 

“if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent present difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him from such an allegation.”

My verdict: He did.

The trouble critics (including me, in this post written before the redacted version of Mueller’s report was released and his rationale had become public) have had with Mueller’s course of action stems from its contrast with a prosecutor’s standard role in the American legal system. Attorney General William P. Barr himself summarized this role well at the press conference last Thursday he held just before releasing a redacted version of the Mueller report:

“The very prosecutorial function and all our powers as prosecutors, including the power to convene grand juries and compulsory process that’s involved there is for one purpose and one purpose only. It’s to determine, yes or no, was alleged conduct criminal or not criminal….”

The main reason, as former federal prosecutor Andrew McCarthy writes, is that it would represent

“an outrageous shifting of the burden of proof: The constitutional right of every American to force the government to prove a crime has been committed, rather than to have to prove his or her own innocence.

“This is exactly why prosecutors should never speak publicly about the evidence uncovered in an investigation of someone who isn’t charged. The obligation of the prosecutor is to render a judgment about whether there is enough proof to charge a crime. If there is, the prosecutor indicts; if there is not, the prosecutor remains silent.”

Therefore, according to the case against that Mueller exoneration passage, if the Special Counsel

”believed there was an obstruction offense, he should have had the courage of his convictions and recommended charging the president. Since he wasn’t convinced there was enough evidence to charge, he should have said he wasn’t recommending charges. Period.

“Anything else was — and is — a smear. Worse than that, it flouts the Constitution.”

McCarthy could well be right on Constitutional grounds. But he’s not right on federal law grounds – at least, to date. For the statute creating the office clearly states that “At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”

In other words, the Special Counsel is required to explain both decisions to indict objects of his investigation whose conduct was deemed criminal and to pass on object whose conduct was not deemed criminal.

In principle, this explanation requirement doesn’t mandate that the Special Counsel make an exoneration-type request. In fact, in principle, the assumption of innocence doctrine might preclude such aspersion casting.

But arguments like McCarthy’s overlook one big and in fact paramount consideration. A Special Counsel report isn’t always necessarily subject to the  standard procedures for federal prosecutors dealing with potential felony cases like obstruction. The instructions Mueller received upon his appointment by then Acting Attorney General Rod J. Rosenstein authorized him to prosecute federal crimes revealed by his investigation. But they also ordered him to fulfill the other responsibilities of the Special Counsel law, which include delivering the confidential report to the Attorney General.

And the word “confidential” is crucial here. Because, as Barr has correctly stated, as Attorney General, he’s under no obligation to release the any version of the Special Counsel report to anyone, even Members of Congress or Chairs of key Congressional committees. And all Congress specifically is entitled to once the report is completed and submitted is a notification accompanied by “an explanation” whose required contents in turn are minimal at best. No one else is entitled to anything.

It’s true that the Attorney General may release the report to the public “with applicable legal restrictions” (e.g., the redaction standards used by Barr). But he or she is under no requirement to do so.

Since the report was written expressly for the Attorney General’s eyes, it’s easy to understand why Mueller added the “exoneration point.” Even if he took the (reasonable, in this case) liberty of assuming that some substantial version of the report would be made public promptly, his overriding obligations were to present the Attorney General with the results of his investigation, and supply adequate explanations of his decisions both to prosecute and not to prosecute. Choosing his words in anticipation of a Barr decision to go public, however reasonable, would have been completely improper, and possibly illegal.

It’s still arguable that Mueller’s final point about his not considering Mr. Trump exonerated was a gratuitous swipe at the President. But given Mueller’s official audience (not the public, or even the Congress, but the Attorney General), it’s far more legitimate to interpret it as an effort to explain his reasoning – as per the provisions of the Special Counsel law – and to do so in the most complete manner and so as to leave as few questions unanswered as possible.

In this vein, it’s just as legitimate to view the final exoneration point as a message to Barr on the order of, “I didn’t believe I had the goods, but there exist grounds for you to consider the issue still open.”

Strengthening this interpretation: Mueller clearly states that one of his most fundamental operating legal and Constitutional assumptions was accepting, as an employee of the Justice Department, the validity of Justice’s official position that Presidents can’t be indicted while serving their White House terms. The Department’s declared reason: Such an action would unacceptably undermine a President’s ability to carry out his or her Constitutionally defined duties. 

In other words, Mueller appears at least to be telling Barr that, “If our Department permitted indicting a sitting President, I very well may have.” Moreover, the same imperative to present Barr with a detailed description of Mr. Trump’s obstruction-relevant actions also, at least as Mueller explains it, was the primary reason for his decision not to arrive at any indictment conclusion at all – even simply proceeding with this objective in mind could have placed the Special Counsel in the position of assessing that someone had committed a federal offense even though no official charges could be brought, and therefore denying the informally accused at defendant of the right to respond in such a way potentially to clear his or her name through a “speedy and public trial.” 

Moreover, Mueller in my view rightly argued that even the confidential nature of his report to the Attorney General would offer a sitting President precious little protection against the above stigma, given the extreme unlikelihood that the indictment judgment would remain secret.     

All of which leaves two big remaining questions (at least concerning this cluster of issues). First, why wasn’t Mueller more specific and detailed in explaining why he included the “no exoneration” points? Second, why wasn’t Barr (along with Rosenstein, who is now his Deputy) content to base his decision on Justice’s view on indicting a sitting President regardless of the merits?

And flowing from that second question are others: Why did Barr believe that Mueller’s failure to reach any obstruction conclusion “left it” to him to decide “whether conduct in the report constitutes a crime” on the merits of the case, and irrespective of the Constitutional questions? Did he believe that the public interest wouldn’t be served with a cloud hanging over Mr. Trump’s head because he was acquitted simply for procedural reasons? If so, it’s difficult to see why making such a plainly political judgment was his call. But if that was a concern, why did he publicize Mueller’s “no exoneration” conclusion in his initial March 24 letter to the Chairs and Ranking Members of Congress’ Judiciary Committees summarizing the report’s contents – much less include it in the version of the report he released?

But like I said at the beginning, these aren’t my last words on the Mueller Report controversies. Only the first.

Im-Politic: “Mayor Pete’s” Fuzzy Turnaround Record

Tags

Census Bureau, Democrats, election 2020, Im-Politic, Indiana, Mayor Pete, Mike Pence, Mishawaka, Notre Dame, Pete Buttigieg, South Bend

“Mayor Pete” Buttigieg’s now officially running for the Democratic nomination for President, and before long we’ll see if he can make the transformation from precocious (37-year old) “flavor of the moment” and all-purpose vessel for so many anti-Trump hopes to durable candidate. I’m hesitant to say, because I was among the vast majority of skeptics that Mr. Trump’s own 2016 run had a prayer of success.

What I do feel confident in saying is that anyone will find their work cut out for them if they try (as they should) to assess his record as Mayor of South Bend, Indiana, and especially his claim to have been a “turnaround” expert whose experience qualifies him to steer the American economy effectively.

The first problem they’ll encounter is finding South Bend-specific data during Buttigieg’s tenure (2012-2017). Not that statistics on U.S. cities’ economic performance are the slightest bit scarce. The Census Bureau collects and post oceans of it. But when it comes to South Bend, these figures tend to be lumped in with those for neighboring Mishawaka – which is wealthier. (See here and here for the evidence supporting that assertion and much of the following city-specific numbers.). Indeed, its median household income and property values are significantly higher, and its poverty rate much lower. So it’s tough to find many of these numbers and identify where whatever progress is shown during the whole of the Buttigieg years (and progress is definitely shown on indicators like economic and employment growth, and improvement in income per head) has taken place in which city.

Those that are available, however, aren’t especially flattering to South Bend. For example, between 2013 and 2016, South Bend’s median income advanced by 3.64 percent. Mishawaka’s (higher) median income rose by 4.35 percent. During that time, South Bend’s poverty rate fell by 3.92 percent (to 26.73 percent). But Mishawaka’s plummeted by 19.66 percent (to 17.41 percent).

It’s important to note that these data say nothing about the situation beforehand – so there’s no way to tell whether Buttigieg’s South Bend performed worse still before 2013, and therefore to know about at least some of the context of the 2013-2016 figures. But such numbers can be found for overall population – which matters because Buttigieg has emphasized that South Bend finally arrested a long population decline while he was in charge.

He’s right. From 2012 to 2017, the number of city inhabitants rose by 1.25 percent after decreasing by 3.21 percent during the previous five years. Mishawaka’s population (which is only about half of South Bend’s) loss between 2007 and 2012 was comparable – 3.12 percent. Yet during the 2012-2017 period was a more impressive 2.29 percent.  (See here and here for the data.)

Even accepting as useful the combined South Bend-Mishawaka statistics raises problems, though. Chiefly, it’s tough to find meaningful comparisons that can shed light on the area’s performance versus similar regions throughout the rest of the country. It’s pointless to compare South Bend-Mishawaka’s economic or employment growth with that of U.S. urban areas as a whole (which U.S. Commerce Department figures permit) because the latter is such a diverse group. After all, no one can reasonably hope to learn much meaningful by examining South Bend-Mishawaka side-by-side with New York or Los Angeles.

But the obstacles to finding metropolitan areas similar to South Bend-Mishawaka are formidable because of one of its major features – large and wealthy Notre Dame University. The school is a major contributor to the region’s economy, but the resulting situation is unique in Indiana because it’s a private, not state institution. In fact, it’s hard to come up with any South Bend-sized American cities hosting a single major private university. The only one that’s occurred to me is way out in Washington State, where Spokane (with a population roughly twice as big as South Bend proper) is home to Gonzaga University (whose enrollment is somewhat smaller than Notre Dame’s).

In fact, not only has Notre Dame given Buttigieg a major advantage not enjoyed by many, if any, of his genuine mayor peers. As early as the 1990s, it began to change its practice of standing aside from the city economically and using its resources to promote the economic and specifically technology-oriented business development that’s been a big Buttigieg rhetorical theme. Moreover, the city’s centerpiece economic revitalization project – the $200 million Eddy Street Commons – mainly resulted from a partnership between the university and a realty group.

Further, as is the case with state and local level leaders generally, their control over their jurisdictions’ economies is usually far from absolute – and the more local they are, typically the less control. In this vein, it’s especially interesting that South Bend economic development efforts under Buttigieg were major were major beneficiaries of a municipal grant program put into effect by Vice President Mike Pence when he was Indiana governor. This year, the openly gay Buttigieg has spent considerable time attacking Pence for his allegedly bigoted views about homosexuality.

Perhaps even more important, Buttigieg had the good fortune to enter office in South Bend just as ecovery from the worst national economic slump since the Great Depression was finally gaining some momentum.

Not that Buttigieg doesn’t deserve credit for helping to attract considerable investment to South Bend. Revealingly, among those who make this case most convincingly are Indiana journalists. And at least as revealingly, South Bend voters have emphatically agreed on his effectiveness. Fully 80 percent of them voted to reelect Buttigieg in 2015 – even more than the 74 percent who supported him in his first mayoral run. (See this link for the numbers.) Will voters outside his hometown give this record rave reviews, too? The answer is likely to go far toward determining whether Buttigieg has a prayer of becoming “Nominee Pete,” much less “President Pete.”