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

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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: After Mueller/Barr, Can Trump Be Trump?

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America First, Attorney General, Betsy de, budgets, conservatism, conservatives, establishment Republicans, foreign policy, globalism, healthcare, Im-Politic, Immigration, impeachment, Kevin McCarthy, Obamacare, Populism, Republicans, Robert Mueller, Ross Douthat, seasonal workers, Special Counsel, Special Olympics, tax cuts, The New York Times, Trade, Trump, Trump-Russia, visas, William P. Barr

A week ago, I posted on the likely political impact of the end of Special Counsel Robert Mueller’s investigation of what have become known as the Trump-Russia scandals and of the release of Attorney General William P. Barr’s summary of its principal conclusions – which appear to put these charges and the threat of presidential impeachment they created behind Mr. Trump.

Now it’s time to think about a related and at least equally important subject: the policy effects. They could be profound enough to redefine the Trump presidency and the chief executive’s chances for reelection – even though the early indications seem to be saying exactly the opposite in ways that are sure to disappoint much of Mr. Trump’s political base. Here’s what I mean.

Ever since his administration’s opening months, I’ve believed that Mr. Trump’s policy choices have been strongly influenced by impeachment fears. Specifically, (and I have zero first-hand knowledge here) because President Trump feared that the Democrats and many mainstream Republicans were after his scalp, he concluded that he needed to appease his remaining allies in the latter’s ranks with policy initiatives they’ve long supported even though they broke with his own much less conventional and more populist campaign promises. 

In other words, it was the Russia and related scandal charges that were preventing “Trump from being Trump.”  

Moreover, this reasoning makes sense even if the President was certain that he faced no legal jeopardy. For impeachment ultimately is a political process, and although establishing criminal guilt is clearly helpful, it’s not essential.

The main evidence for my proposition has been the early Trump decision to prioritize Obamacare repeal over trade policy overhaul and infrastructure building; his almost libertarian-like initial budget proposal (at least when it comes to non-defense discretionary federal pending); his business-heavy tax cut; and numerous foreign policy moves that more closely resembled the globalist approaches he decried while running for the White House than the America First strategy his promised.

But although President Trump now seems certain to finish out his first term in office, he still seems to be currying favor with the Republican establishment. Just look at his latest budget proposal, and decision to go after Obamacare again – the healthcare move reportedly made despite the pleas of establishment Republicans like House GOP Leader Kevin McCarthy to move on from an issue now stamped as a major loser politically and threat to the party’s 2020 election prospects across the board.

It’s true that many of Mr. Trump’s trade and immigration policies still clash with the donor-driven agenda of the Republican establishment, and especially the party’s Congressional leaders. But even on these signature issues, the President arguably could be breaking even more sharply with the longstanding Republican and conservative traditions.

For example, Mr. Trump continues to keep suspended his threat of higher tariffs on many imports from China in apparent hopes of reaching a successful trade deal even though Beijing still seems determined to avoid significant concessions on “structural issues” (like intellectual property theft and technology extortion) and on enforcement.

On immigration, the President has just raised the 2019 cap on visas for unskilled largely seasonal foreign guest workers to levels never reached even during the Obama years. His administration also has permitted visas for farm workers to hit record levels and done little to stem the growth of work permits for foreign graduates of U.S. college and universities that critics charge suppress wages for high skill native-born workers.

One intriguing explanation for this continuing policy schizophrenia comes from New York Times columnist Ross Douthat. In a piece this past weekend, Douthat made the case that, although President Trump’s actual record has been largely heretical in mainstream conservative terms, when it comes to staffing (and especially key staff positions)

“there are effectively two Trump presidencies. One offers something like what the president promised on the campaign trail — a break with Paul Ryan’s green-eyeshade approach to entitlement reform, a more moderate tack on health care, an indifference to Obama-era conservative orthodoxies on fiscal and monetary policy.

“The other offers a continuation of the Tea Party’s insistence on spending cuts and Obamacare repeal, and appropriately its present leader is a former Tea Party congressman — Mick Mulvaney, the Zelig of the administration, whose zeal is apparently the main reason that the Obamacare lawsuit now has administration support.”

And the main reason for this confusing mix? The President has relied “on personnel who are associated with 2010-era G.O.P. orthodoxy, rather than elevating the kind of conservatives who have actively theorized for a more populist right.”

It’s so hard to argue with Douthat’s facts that I won’t. But they still leave the main puzzle unexplained – why so many of the President’s personnel picks have been so un-Trumpian. And much of the answer points to a problem that was clear to me ever since Mr. Trump’s presidential candidacy achieved critical mass and momentum, and that doesn’t seem solvable for the foreseeable future.

Specifically, as I’ve previously noted, conservative populists (I’m never been thrilled with this description of “Trumpism,” but for the time being it’s convenient) have never created the institutions and therefore cohorts of first-rate policy specialists remotely capable of staffing a conservative populist administration. Even if you want to identify immigration as an exception – where organizations like the Center for Immigration Studies put out top-flight studies – it’s clear that nothing of the kind has ever existed on the trade and foreign policy fronts.

And even worse, because of the long lead-times needed to achieve these goals, Mr. Trump appears doomed to dealing with shortages of competent true-believers as far as the eye can see. In fact, he’ll face a special challenge in the next few months, as the second halves of first presidential terms tend to see the departures of many early, often burned out appointees. And of course, the Trump presidency has already experienced much more than its share of turnover.

So I’m expecting an indefinite continuation of the eye-popping sequence of events of the previous week – in which Trump Education Secretary Betsy deVos announced an end to federal funding of the popular Special Olympics program, a public outcry ensued, and the President abruptly reversed her decision.

It’s hard to imagine that this kind of zigging and zagging can win President Trump reelection. But it’s also conceivable that the post-impeachment situation will “Let Trump be Trump” just enough – especially if the Democrats err in picking an overall strategy for opposing him.  After all, nothing has been more common in recent American political history than completely off-base predictions of Mr. Trump’s demise.

Im-Politic: Why Sally Yates is a Grandstander, Not an Elliot Richardson

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Archibald Cox, Attorney General, Constitution, Elliot L. Richardson, EO, executive order, Im-Politic, Immigration, Jack Goldsmith, Justice Department, refugees, Richard M. Nixon, Sally Yates, Saturday Night Massacre, Special Prosecutor, Trump, Watergate, William D. Ruckelshaus

Former Acting Attorney General Sally Yates’ memo ordering Justice Department staff not to enforce President Trump’s Executive Order (EO) on immigration set off my baloney-detection meter well before I was halfway into it. The same alarm sounded due to claims that her subsequent firing bore any resemblance whatever to the infamous “Saturday Night Massacre” during Watergate days. And here’s why your deep skepticism about these developments should have been activated, too.

First, let’s reveal right off the bat my professional legal qualifications to comment on these matters: None. I don’t even play a lawyer on TV. But I’ve been around politics and policy long enough, and know enough history, to recognize when a public official is acting constructively and out of principle, or simply grandstanding.

One of the biggest tests is the decision to work through proper channels within the system or to go public quickly. Yates clearly flunked it. That is, there’s no evidence that in her role as one of the U.S. government’s chief sources of legal advice, she made any effort to inform the president of her opinion about the EO’s conformity with American law. Instead, she simply directed Justice Department personnel not to “present arguments in defense of the order.”

Also fishy about Yates’ memo. Although supposedly addressed to an audience of practicing lawyers, it contained no specific legal argumentation. It made no references to any statutes or court decisions. It didn’t even mention the Constitution. Yates simply asserted that she is “not convinced that the Executive Order is lawful.” Indeed, she weirdly qualified her position with the phrase “At present.” Was she inviting challenges? Heaven only knows. Was she revealing that she was going to throw a big monkey wrench into an already tumultuous situation even though she hadn’t definitively made up her mind? So it seems. Did she describe any process she might use to evaluate the measure further? Did she mention any deadline she had created for a final decision – something essential for her Executive Branch colleagues charged with administering the EO? Not at all.

Yates’ inclusion in her memo of numerous arguments outside the legal sphere also indicates she wasn’t terribly confident in its purely legal basis. Indeed, she seemed to confirm that her agency’s Office of Legal Counsel affirmed that the EO is “lawful on its face and properly drafted.” But rather than simply offer her own legal counter-arguments, she proceeded to cite as evidence on her behalf:

>”statements made by an administration or its surrogates [i.e., individuals outside the administration with no official status] close in time to the issuance of an Executive Order that may bear on the order’s purpose”;

>”whether any policy choice embodied in an Executive Order is wise or just”; and 

>the Justice Department’s “solemn obligation to always seek justice and to stand for what is right.”

More pertinent to the (dispositive) issue of legality (however broad or narrow) was Yates’ concern about Justice determining that its position is “informed by our best view of what the law is after consideration of all the facts.” It’s true that an exclusively textual analysis often does not suffice in the legal world, and that terms in statutes are frequently surrounded by or generate “umbrellas” that can be far-reaching. But this was the place for Yates to serve up some specifics behind her doubts. Her only apparent effort along these lines was her observation that the EO “has been challenged in a number of jurisdictions.”

This threadbare legal reasoning, combined with the strong emphasis given to factors that concern philosophy and policy, not law, inevitably create the impression that the former Acting Attorney General was protesting too much.  In fact, it looks like little more than the use of that common rhetorical tack of throwing as much mud against the wall in hopes that some of it sticks – and thus playing to a crowd far beyond her professional subordinates.

Finally, on this score, although I lack a legal education, someone who does – in spades – has just called Yates’ reasoning “extraordinarily weak.” Author Jack Goldsmith – a Harvard Law School professor who has also served as an Assistant Attorney General – does agree that Yates was within her authority in determining “which presidential orders the Department will defend in court.” He also endorses her view of the “narrowly” technical purview of her Department’s Office of Legal Counsel.

But he calls Yates’ justification for her decision a “sharp” departure “from the usual criteria that an Attorney General would apply in deciding whether to defend an EO in court. As such, the letter seems like an act of insubordination that invites the President to fire her.”

Of course, Goldsmith’s views aren’t dispositive, either. But in combination with the the rhetorical stunts I’ve described and the paucity of legal reasoning and evidence Yates offered, it places a heavy burden of proof on those who insist that her behavior was responsible.

In fact, as Goldsmith contends, the proper course of action for Yates was resigning, and here we arrive at one of the two crucial differences between this episode and that Watergate-era “Saturday Night Massacre.”

During that October, 1973 episode, President Richard M. Nixon, under investigation by Congress and his own Justice Department for abuses of power, fired Archibald Cox, a Harvard Law School professor who had been appointed as the Department’s Watergate Special Prosecutor. After refusing Mr. Nixon’s order to dismiss Cox themselves, Attorney General Elliot L. Richardson (who chose Cox) and then his Deputy, William D. Ruckelshaus, resigned from their positions. Crucially, they did not insist upon their right or duty to remain on the job in defiance of a presidential directive.  

Another important difference, although its relative importance is debatable: Richardson (and possibly by extension, Ruckelshaus) arguably had a stronger basis for staying on. For Richardson’s confirmation as Attorney General by the Senate depended largely on a commitment he made (and cited in his resignation letter) to “assure the independence of the Special Prosecutor.” The position’s creation – which was agreed to by the former president – was considered necessary by the Senate (and much of he rest of the country) to prevent a flagrant conflict of interest. The aim was making sure that Justice officials beholden bureaucratically and politically to a sitting president would not be in charge of major Executive Branch legal probes and actions against him.

Interestingly, however, Richardson did not claim in his resignation letter that the Nixon decision violated legally binding commitments made to the Senate, much less any presidential Constitutional obligations to the Senate given that body’s Constitutional role in confirming Executive Branch appointees.

Instead, Richardson wrote to the president, “While I fully respect the reasons that have led you to conclude that the special prosecutor must be discharged, I trust that you understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done.” That is to say, Richardson portrayed his decision as a matter of personal honor.

Yates and others are fully entitled to dissent from President Trump’s Executive Orders and to challenge them through the court system on legal and/or Constitutional grounds. What Yates was not entitled to do was to portray her stated rationale not to defend the orders while serving as Attorney General as consistent with that office’s authority, rather than the product of her own particular personal views. For these are utterly irrelevant from a legal and Constitutional standpoint. And anyone who sees her as another Elliot Richardson and her firing as another Saturday Night Massacre doesn’t know much about either.

Im-Politic: No Learning Curve for America’s Left on Immigration

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American Muslims, Angela Merkel, assimilation, Attorney General, Cory Booker, Democrats, Elizabeth Warren, Germany, Hillary Clinton, Im-Politic, Immigration, Jeff Sessions, Jeremy Corbyn, Labour Party, liberals, Marketwatch.com, Muslims, national security, Obama, Open Borders, progressive, Social Democratic Party, terrorism, Trump, United Kingdom

I keep waiting for America’s self-styled progressives to start recognizing that they’re going absolutely nowhere in national politics until they abandon their devotion to Open Borders policies, and start responding to their fellow citizens’ legitimate economic and especially security concerns about mass immigration.

Sadly, nothing could be clearer from recent developments than that the wait will continue indefinitely. Even worse, the U.S. Left seems to be even more clueless on the subject than its counterparts in Europe.

Certainly President Obama remains unrepentant about his own record. In his Farewell Address, he touted his record in fighting Islamic terrorism overseas (not that he used the term), and warned against the dangers of domestic radicalization. But his boast that “no foreign terrorist organization has successfully planned and executed an attack on our homeland these past eight years” once again made painfully clear his neglect of the dangerous impact of already having admitting so many newcomers whose original religion or culture creates huge obstacles to successful assimilation into American society. Why else would he have glossed over the deadly attacks by Muslim immigrants in Boston, San Bernardino, and Orlando?

In fact, according to Mr. Obama, the only Americans who need to learn about current and emerging immigration realities are those in the native-born population – because their fear that some immigrants today could “destroy the fundamental character” of the country is not only obsolete, but bigoted.

Other progressives also seem to be doubling down on efforts to address valid immigration concerns with smears. Can anyone reasonably doubt, for example, that Alabama Republican Senator Jeff Sessions’ appointment as President-elect Trump’s Attorney General would be sailing through the Senate if had not so forthrightly championed immigration realism – and enforcing the nation’s existing laws?

Yes, many Senate Democrats have accused Sessions of harboring racist views and neglecting the rights of a wide variety of discrimination victims. At the same time, none of these alleged transgressions prevented New Jersey Democratic Senator Cory Booker – Sessions’ leading Congressional opponent – from feeling “blessed and honored” just last year “to have partnered with Sen. Sessions in being the Senate sponsors” of a Congressional Gold Medal for the voting rights activists of the 1960s. No one else in the Senate protested, either.

Maybe Booker’s Massachusetts Senate colleague, Elizabeth Warren, is moving in the opposite direction? Not if her declaration that she’s running for reelection is any indication. Warren marked the occasion by vowing to “fight back against attacks on Latinos, African-Americans, Muslims, immigrants, women, and LGBT Americans. Our diversity is what makes our country strong – and on this, there will be NO compromise.” As if all these groups can be lumped in the exact same victimization category.

In fact, the only sign of progress I can detect is that no progressives are urging Mr. Obama or Mr. Trump to quintuple the number of U.S. refugee admissions from war-wracked Middle Eastern countries – as failed Democratic presidential contender Hillary Clinton proposed.

The contrast with European progressive leaders is stunning. As reported in an insightful column on Marketwatch.com, the head of Germany’s Social Democratic Party – and the country’s vice chancellor in the current coalition government – is calling for “ncreased video surveillance…a ban on fundamentalist mosques as breeding grounds for terrorism, and…an end to freeloading on Germany’s generous child-support subsidies by other European Union citizens.”

Another German progressive leader has slammed Chancellor Angela Merkel for “uncontrolled border opening [and]a police force that has been downsized to the point of inefficiency, that neither has the personnel nor the technical resources that would enable it to cope with the current threat situation,”

Meanwhile, Jeremy Corbyn, who heads the United Kingdom’s struggling Labour Party, is unmistakably rethinking his former opposition to Britain’s decision to leave the European Union in large part because of the grouping’s lax immigration policies. Corbyn had previously opposed “Brexit,” which British voters passed in a referendum in June.

Germany, of course, has experienced Muslim terrorist attacks much bloodier than America’s. The Labour Party seems headed for its worst showing in Parliament since the 1930s. Will it take these kinds of security and political disasters to bring U.S. progressives to their senses on immigration?