Im-Politic: Mueller, Barr, and Beyond

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2016 election, Access Hollywood tape, Adam Schiff, collusion, Constitution, executive privilege, high crimes and misdemeanors, Im-Politic, impeachment, James Comey, Jerrold Nadler, Justice Department, Mueller Report, Nancy Pelosi, obstruction of justice, removal, Robert Mueller, Roger Stone, Russia, Russia-Gate, Special Counsel, Trump, Trump-Russia, William P. Barr

Yesterday, Attorney General William P. Barr released his summary of Special Counsel Robert Mueller’s investigation of the Trump presidential campaign’s “links and/or coordination” with the Russian government, and of related obstruction of justice charges. The big takeaways: In the Mueller report’s own words, the investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities”; and (in the Attorney General’s words), Mueller and his team “ultimately decided not to make a traditional prosecutorial judgment” regarding a number of Presidential actions that “potentially” raised obstruction of justice concerns.

A more resounding defeat for the legions of Democrats, Republican and conservative Never-Trump-ers, and Trump haters in the Mainstream Media can scarcely be imagined for two major reasons. First, according to Barr, not only did the Special Counsel investigation fail to find any Trump campaign conspiracy or coordination with the Russian interference effort. It concluded that such actions never took place “despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

Second, although Mueller and his staff (in their words) made sure to state that “while this report does not conclude that the President committed a crime [i.e., obstruction], it also does not exonerate him,” the failure to recommend such charges is stunning. After all, this hasn’t been a team of investigators that’s been exactly reluctant to hand down such indictments – including for so-called process crimes that are clearly serious in normal circumstances, but that look especially dubious now considering the failure to find any underlying crime.

Constitutionally speaking, where this leaves remaining desires in Congress and throughout the country to impeach the President is way up in the air right now. For as the impeachers – and others – have often rightly reminded us, the Constitution doesn’t define the “high crimes and misdemeanors” that can warrant impeachment (and removal from office) aside from “treason” and “bribery.” Therefore, from a Constitutional standpoint, there’s a strong case to be made that impeachment and removal can take place in the absence of a criminal offense, and that the process is above all else political (a term I’m not using pejoratively in this case).

As a result, any lawmaker deciding to proceed along these lines even after the above Mueller conclusions would be acting completely within his rights and even arguably fulfilling one of his highest duties. House Judiciary Committee Chair Jerrold Nadler (D.-New York) was right when he stated:

“The job of Congress is much broader than the job of the special counsel. The special counsel is looking and can only look for crimes. We have to protect the rule of law, we have to look for abuses of power, we have to look for obstructions of justice, we have to look for corruption in the exercise of power which may not be crimes.”

Indeed, that’s why Congress has been granted broad oversight authority over Executive Branch actions and policies. It’s a central feature of the checks and balances principle at the heart of the country’s Constitutional government.

Similarly, however, because impeachment is an ultimately political process, House Democrats (whose control of the chamber empowers them to initiate such proceedings) will have to make ultimately political decisions whether to go ahead, how far to take these matters, and the extent to which they’re willing to permit impeachment to dominate their agenda and the public perceptions they create. As I see it, those Democrats chomping at the bit to head down this road remain far from the starting gate, especially given House Speaker Nancy Pelosi’s judgment well before this weekend’s events that Mr. Trump “is just not worth” impeaching. The same conclusion applies to the determination of Rep. Adam Schiff (D-California), Chair of the House Intelligence Committee to keep examining whether the President “is somehow compromised by a foreign power.”

Yet for all the comment and analysis flooding out this afternoon, there’s still one question I think needs more attention: When exactly did the Mueller team recognize that neither the collusion nor the obstruction allegations wouldn’t pan out? More specifically, did this situation became clear to the Mueller team before last year’s U.S. midterm elections?

Here’s what I’m driving at: The entire Special Counsel exercise was launched to find answers to some of the biggest and scariest questions ever raised in American history. Like whether a successful candidate for President and/or influential members of his campaign cooperated with an unfriendly foreign power to win the White House – which raises the possibility (as per Schiff above) of a President doing that power’s bidding for fear of blackmail. And don’t forget the allegations that Mr. Trump obstructed justice in order to cover up these actions and relationships, and that Moscow has him over a barrel for a second reason – due to financial transactions that kept the President’s business empire afloat before and during his White House run.

Given these astronomical stakes, of course all Americans of good will would want to leave no stone unturned. But there inevitably comes a point at which the stones start looking like pebbles, inherently incapable of hiding much. In that vein, Mueller has indicted plenty of Russians and some Americans, but as even the Trump-loathing Vox.com notes, none of these found that “Trump advisers criminally conspired with Russian officials to impact the election.” Indeed, the last such Trump-er brought up for charges was Roger Stone (in January) – and the Stone actions that caught Mueller’s attention (between July and October, 2016) came a year after Stone officially left the Trump campaign.

In other words, it looks as if sometime in the second half of 2018, Mueller’s investigation was reaching a point of diminishing returns. Did Mueller and his staff continue their business as usual (including keeping their findings closely held) because they had strong reasons to believe that major revelations were just around the corner? That would be highly unusual, for at least according to Barr, none of them panned out.

But if the investigation was producing such modest results after so many witnesses interviewed and search warrants executed (approximately 500 each, according to Barr), subpoenas issued (more than 2,800), and communications records obtained (more than 230), shouldn’t Mueller have let the public know that sooner rather than later? Especially considering that a major vote was coming up in November? These questions deserve to be asked even if Mueller was pursuing a typical prosecutorial strategy of targeting little fish first in the hope that they’d flip and disclose misdeed by progressively bigger fish.

Granted, several policy statements can be cited making clear that the determination of the Justice Department (the final authority over Special Counsel investigations) to avoid even creating the appearance of interfering with elections in any way. As this shown in this analysis, “interference” includes issuing reports shortly before elections (a standard previous Special Counsels, and former FBI Director James Comey in 2016, failed to meet). But the informal “60-Day Rule” cited here still would have enabled Mueller to issue some kind of statement (perhaps an interim report?) by Labor Day. I’d sure appreciate him explaining why this option wasn’t chosen, and if it was even considered.

Of course, it’s true that the President faces legal jeopardy on a variety of other matters, ranging in seriousness from hush money payoffs to floozies (which supposedly violated campaign finance laws) New York-area examinations of his inaugural committee’s fund-raising and of his family’s charitable foundation and of the possibility of insurance fraud to a groping accusation dating from 2007. But do these collectively, much less individually, endanger the Trump presidency? Given the President’s victory shortly after the release of remarks on the Access Hollywood tape suggesting sexual assault, that’s doubtful, especially with the Russia collusion and obstruction charges out of the way legally speaking.

Focusing on doubts concerning Barr’s decision to drop criminal obstruction charges against Trump seems no more promising. After all, authorizing Congress to seek impeachment for actions that are not crimes is essential because, as per the Nadler statement above, offenses like abusing power and creating conflicts of interest can endanger democracy and the public interest even if they violate no specific statutes. But obstruction of justice is a defined crime. Therefore, the failures of not only Barr but Mueller to indict on this score would require an obstruction-centric impeachment drive to insist that a political definition of guilt outweighs its clearcut legal counterpart. Good luck coming up with a politically riskier, more divisive course of action.

What about next steps? I strongly favor release as soon as possible of as much the actual Mueller report as consistent with the need to protect intelligence sources and methods. Watergate-era precedents seem to refute the idea that any materials violating executive privilege must be excluded. As Nadler rightly reminds, the Supreme Court’s Nixon tape case ruling specified that this Constitutional principle can’t be justified to hide wrongdoing. Nor do I have strong objections to publishing information either in the report’s body or in supporting documents that might invade the privacy or impugn the reputations of unindicted individuals (including the President). I would imagine that Barr and Congressional Democrats have enough common sense and decency to agree on which disclosures would harm the truly innocent. But the public should definitely have the right to know whether or not the President has surrounded himself with fools and knaves – and/or has acted this way himself.

Ultimately, however, I feel confident that Mr. Trump will survive these disclosures as handily as the non-aforementioned Mueller investigations. After all, a critical mass of the American people was ready to entrust Mr. Trump with the powers of the highest office in the land knowing full well he was no angel personally or in business. I strongly suspect he’ll fare equally well in 2020 now that it’s as clear as possible that, whatever his flaws, he was never the Manchurian Candidate or a Nixonian-style crook.

Following Up: Emerging Possibilities on Hacking Retaliation and a Cyber Balance of Terror

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Adam Schiff, asymmetrical war, balance of terror, China, Chris Wallace, Cold War, Congress, cyber-security, cyber-war, deterrence, Following Up, Fox News Sunday, hacking, infrastructure, Martin Dempsey, nuclear weapons, Obama, Office of Personnel Management, Peter King, Russia, terrorism

Here’s a suggestion for Fox News Sunday anchor Chris Wallace – start watching some recent episodes of your own show before conducting interviews. You might be able to move the public debate on vital issues forward, rather than trodding over well-worn ground.

Wallace led off this morning’s show with a look at this past week’s news that the federal government’s personnel agency has been hacked twice in the last year, and that China is widely suspected as the attack’s source. And that’s entirely understandable. The examination of whether the Obama administration is dealing adequately with cyber threats, moreover, is vitally important. What was completely weird was how Wallace – not to mention his two Congressional guests, who both have key national security posts on the intelligence committee – handled the issue of retaliation.

It began with Representative Adam Schiff of California, ranking Democrat on the House Intelligence Committee, stating that “one of the big things that we really have to do in addition to our defense is figure out when we’re going to go on offense and how we’re going to provide a deterrent to future attacks.”

Wallace then asked Republican Congressman Peter King of New York, a member of the House Homeland Security Committee, “Do we need to retaliate against the people that we believe are conducting cyber warfare against us?” King answered, “I believe we do. I don’t think we should announce what we’re doing. I think the president and his administration have the capacity to respond once they find out, you know, sort of malware signature, who they believe this is. Then, I think, yes, there has to be a price to pay for this.”

Sounds perfectly reasonable, right? Except that only this January, no less than the nation’s top uniformed military officer told Wallace that the United States currently lacks superiority in cyber-war capabilities. According to Chairman of the Joint Chiefs of Staff Martin Dempsey, “In every domain…we generally enjoy a significant military advantage. We have peer competitors in cyber….We don’t have an advantage. It’s a level playing field, and that makes this Chairman very uncomfortable.”

Now Dempsey might have been mistaken (though that’s unlikely) or engaged in a head fake against America’s adversaries (though I can’t imagine the rationale for this one). But why didn’t Wallace remember that this is the most plausible reason for the nation’s failure to strike – fear that attackers can cause still further damage? Moreover, hadn’t Schiff or King been aware of Dempsey’s statement? If they were, do they have their own reasons for considering Dempsey mistaken?

In any event, the more I think about the issue, the more I wonder if the United States would retaliate even with clear-cut superiority. Think of it this way. Relatively few Americans nowadays – particularly in the big cities, which would be most vulnerable to a truly debilitating cyber attack – have any recent experience with the kind of privation and disruption that such a hack could create. Even most prosperous Russians and Chinese do – and then some. So even though these two countries are increasingly networked and enjoying the advantages thereof, it seems clear that they’re much better positioned to cope with cyber-generated confusion than Americans.

Another important point recently was brought to my attention. For all the damage done by foreign hackers to date, they haven’t yet (apparently) launched the kinds of attacks that could bring such massive disruptions – e.g., by bringing down the banking system, or the communications and energy infrastructure. It’s possible that these systems are adequately protected. But it’s also possible that China’s hackers in particular understand that their country would be victimized as well, since it’s so heavily dependent on exporting to the United States for continued growth and economic progress.

So although it’s certain that cyber attacks will continue, it’s also distinctly possible that many will stay relatively restrained. This could mean that America has more scope to retaliate than seems currently to be the case, but also that it has less need – and that we’ll need to (keep) getting used to greater levels of cyber risk if we want to keep reaping the benefits we perceive from more networked lives. In other words, we may be seeing the emergence of a cyber balance of terror similar to the nuclear balance of terror that helped avert great-power conflict during the Cold War. 

But there would still remain the risk of attacks from sources that don’t feel any stake in America’s continued viability, and could have even more broadly destructive aims. Dealing with these hackers – who could belong to major terrorist groups – will be complicated by the asymmetry problem: Relatively modest capabilities seem able to inflict tremendous damage on America’s economy and society.  Moreover, the perpetrators could be exceedingly difficult to track down and hack in return, and these enemies would have relatively little to lose in terms of physical assets and large-scale social systems. These observations lead me to the conclusion that the key to defeating these hackers lies not in the cyber realm but in the domain of broader counter-terrorism policies.