Im-Politic: Most of the Flip Vote Stayed with Trump

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Barack Obama, battleground states, election 2016, election 2020, forgotten Americans, Im-Politic, Joe Biden, Populism, racism, Trump, Trump flip voters, xenophobia

Since I haven’t yet come across any reason to suppose that the Election 2020 exit polls are any more accurate than most of the surveys throughout the campaign, and especially during the general election, worthwhile post-mortems are going to be really difficult to produce.

One exception: It’s clear what happened with the hundreds of counties across the country that voted twice for Barack Obama for President, and then flipped for Donald Trump in 2016. I’ve written repeatedly (most recently here) that these mainly lower-income counties are especially important because they clearly contain lots of Trump voters who couldn’t possibly be the racists who are so often viewed as the majority of the President’s base.

Moreover, they not only look like a representative sample of voters who bought Mr. Trump’s promise that he would champion their economic interests. They also look like voters who made a smart bet in this regard, as the majority of these counties saw their annual pay grow faster under Trump pre-CCP Virus than during the most comparable Obama administration time frame.

And how did they vote earlier this month? Recounts and challenges could change some of the numbers we have already, but as of this writing, an overwhelming majority of these so-called “forgotten Americans” stuck with the President a second time around. So did nearly all of those whose economic fortunes – at least by that wage measure – improved faster under Mr. Trump than under his predecessor.

First the overall numbers. In 2016, 194 counties for which the aforementioned wage data are available from the Labor Department supported the Trump candidacy after voting Obama in 2008 and 2012. Three other counties for which no such data have been kept followed this pattern.

Of the 194, 173 (89.17 percent) stuck with the President this time around, along with two of the data-less counties. Just as important, of the 194, 116 (59.79 percent) saw faster pay growth under Mr. Trump than under Obama, and 102 of them (87.93 percent) pulled the lever for the President in 2020. To me, that adds up to a pretty powerful case that a great deal of the President’s appeal stemmed from his economic populist pitch.

These outcomes can’t possibly be either-or. That is, just because a flip county prospered more under Mr. Trump than under Obama doesn’t necessarily mean that this performance was foremost in every voter’s mind. And it can’t be assumed that counties that have supported the President despite worse relative economic performance were filled with racists and xenophobes and other deplorables.

Nonetheless, a strong relationship between greater prosperity for these flip counties and their support for the President held up well through Election 2020.

Of course, the presidential vote this time around was awfully close, especially in the six key battleground states where the talleys seem certain to decide the final outcome: Arizona, Georgia, Michigan, North Carolina, Pennsylvania, and Wisconsin. Yet it doesn’t seem that the Trump flippers relatively few flops back to his Democratic opponent made much of a difference in any of these states.

Of the total 49 Trump flip counties in these states, only five flopped back last week. Moreover, the 49 were highly concentrated – 23 in Wisconsin alone, and 12 in Michigan. Arizona had none and Pennsylvania only three. Interestingly, two of the Wisconsin flippers supported Biden in 2020, as did two of their Pennsylvania counterparts. But even given the closeness of the statewide totals, their populations appear too small to have made a difference.

A stronger argument can be made for the floppers’ importance in three states that were not as close as expected. Iowa, for example, was long thought to be up for grabs despite the handy margin it gave candidate Trump four years ago. It’s arguable that his repeat performance in 2020 stemmed in part from the decision of all 27 Trump flip counties to remain in the Republican column.

Minnesota was considered a Trump possibility this year, since Mr. Trump came within five percentage points of victory in this traditional Democratic stronghold. But President Trump actually lost some ground this month, and the decision of four of the state’s 19 Trump flippers to support Joe Biden clearly didn’t help.

Finally, New Hampshire looked like another possible Trump pickup. But two of its three flip counties (including Coos, for which there’s no economic data), opted for Biden.

All told, the numbers represented by these shifts were pretty small, too. But they could have reflected changes in sentiment elsewhere in these states that accounted for the somewhat surprising outcomes. A similar argument can be made for the six high-profile battlegrounds, but in my view the number of floppers returning to the Democratic camp was so small that it’s much weaker.

Again, some or even many of these results could change in the near future. But if they don’t, then no doubt many of the Americans who agree with President Trump that they’d been forgotten before are hoping that they’re remembered better over the next four years.

Im-Politic: My (Hopefully Wrong) Election Prediction

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battleground states, CCP Virus, coronavirus, COVID 19, election 2016, election 2020, Hillary Clinton, Hunter Biden, Im-Politic, Joe Biden, masks, Nancy Pelosi, political ads, polls, shy Trump vote, suburban women, suburbs, Trump, Wuhan virus

One big reason I’m not a betting person is that I hate a major difference between what I want to happen and what I think will happen. And that’s exactly the case with this year’s presidential election. In other words, although as I explained in a recent post and then amplified in a recent magazine article, I voted for President Trump (and by no means reluctantly), I’m convinced that his time in the White House is just about up.

Not that I’m certain of this outcome. To repeat a conclusion I’ve made to friends, family, and others in various circumstances, I completely accept the idea that the race has tightened substantially in Mr. Trump’s favor in recent months, and especially in toto in the six most discussed swing or battleground states (Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin). But today, as throughout the fall campaign, I’d rather be in Democratic nominee Joe Biden’s shoes.

In fact, I’m sticking with this position even though I’ve become somewhat more impressed with claims of a “shy Trump vote” – i.e., the notion that many Trump voters reached by pollsters don’t reveal their true preferences for various reasons or, similarly, that the same pollsters simply aren’t reaching a significant number of Trump supporters. My main reason? In an era of spreading Cancel Culture at the workplace and elsewhere, it’s entirely plausible that many Trump supporters fear expressing their actual preferences to strangers.

But to me, the most telling poll results stem precisely from those six battlegrounds, however increasingly close the race may be. And that’s because, even though the President carried them all in 2016 (generally by slim margins), and even though he’s the incumbent, they’re now thought to be up for grabs at all. In other words, even though Mr. Trump is now a known quantity (or because he’s a known quantity), and has had nearly a full term of presidential abilities to extend favors to these states, they’re still a heavy lift for him.

I sense, moreover, as just suggested, that his troubles in these “flyover America” regions stem from a political malady that he’s never been able to overcome – and perhaps has never wanted to overcome or dispel: Trump Fatigue Syndrome. I fully accept his insistence (and that of many supporters) that his tweets and other verbal brickbats have built and maintained a large and intensely loyal base (indeed, big enough to elect him President once). I also agree that his combative instincts have enabled him to survive ruthless opponents who, astoundingly, have even filled his own administration and other levels of the federal bureaucracy since his inauguration.

At the same time, it’s hardly a stretch to suppose that even a significant slice of Trump-world is anxious for a return of some semblance of normality to American politics, and that four more years of the President are sure to mean four more years of (partly needless) tumult. Most revealingly, even the President seems to accept this analysis. Why else would he be pleading (only half-jokingly) for the suburban women supposedly most offended by his style to “like him,” and defensively making that argument that his roughness has been the key to his survival? (I can’t find a link, but heard it when listening to one of his rally speeches yesterday.)

And what’s especially frustrating for a Trump supporter like myself: He could have been just as forceful and cutting a champion of his “forgotten Americans” constituencies, and just as much of a scornful scourge of the elites, with a just a little more subtlety and a little more selectivity in his targets.

Some appreciation of nuance, in fact, would have been particularly helpful in dealing with the CCP Virus. In between the kind of fear-mongering and consequent shutdown enthusiasm dominating press coverage and the rhetoric of Never Trumpers across the political spectrum, and the pollyannish optimism and mockery of modest mitigation measures like even limited mask wearing that was too often expressed by the President, could always be found a vast store of effective and actually constructive messaging strategies.

Collectively, they have represented a test of the kind of leadership deserving of political support, and have amounted to acknowledging squarely the difficulties of formulating effective pandemic policies and vigorously supporting targeted counter-measures while staving off the panic that Mr. Trump has (rightly) stated he wanted to prevent. Just as important: The President could have conveyed to the public the admittedly inconvenient but bedrock truth that forces of nature like highly contagious viruses can long resist the powers even of today’s technologically advanced societies. But this was a test that Mr. Trump flunked.

Speaking of forces of nature, the weather across the country today isn’t likely to help reelect the President, either. It looks to be bright and sunny nearly everywhere, with moderate temperatures. Those conditions figure to translate, all else equal, into high turnout, which tends to favor Democrats (even given the astronomical levels of early in-person and mail-in and ballot box voting).

Mr. Trump also faces an opponent who hasn’t been nearly as easy a mark for him as was Hillary Clinton in 2016. Biden’s lack of hard edges unmistakably helps here. But so, too, has his performance in the two presidential debates. As I’ve argued, they’ve belied Trumpist charges of mental and physical frailty. Even better for the former Vice President – he’s also held up more than well enough on the campaign trail. Sure, he’s given himself plenty of rest. But Biden’s increased pace of activity in the last two weeks or so should be enough to fend off a critical mass of doubts among undecided voters about his capacity to serve.

In addition, the Democratic nominee has clearly benefited from the Mainstream Media’s decision to suppress news about the possibly whopping corruption of the entire Biden family. However outrageous I or anyone else considers this cover-up, it’s had the undeniable effect of keeping from huge swathes of the electorate weeks worth of just about the worst news any political candidate could fear.

The Trump campaign might have partly filled this gap, and offset other vulnerabilities, with better advertising. But throughout this election year, most of the Trump ads I’ve seen have been as professional and reassuring as those cable spots for Chia Pets or Sham-Wow – complete with hucksterish voice-overs. Moreover, where on earth are high impact graphics like clips of Democratic House Speaker Nancy Pelosi childishly ripping up copies of the President’s last State of the Union address? The videos recently aired at Trump rallies highlighting Biden’s dangerously clueless statements and policy record on China have been very effective. But boy, are they coming late in the day.

Also possibly revealing on the ad front – I see a lot of anti-Trump and pro-Biden ads on conservative-friendly and even transparently pro-Trump shows on Fox News. That’s clearly a sign of playing offense. According to this report, however, the Trump campaign hasn’t taken the fight to hostile territory like CNN and MSNBC to nearly this extent.

I’m not by any means arguing that “It’s over” for President Trump – much less than it has been for weeks. I’m convinced that he’ll be helped by an enthusiasm gap. I take seriously the reports of strong new voter registrations by Republicans, particularly in the key states, along with the evidence that minorities aren’t turning out for Democrats in places like south Florida. Nor, as mentioned earlier, is my faith in the polls remotely complete. But toting up the President’s relative strengths and weaknesses still places him in my underdog category. And unless Election 2016 repeats itself almost exactly, that ‘s no place for a winning political candidate to be.

Im-Politic: The Debate and the Current Danger

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Blob, Democrats, election 2016, election 2020, globalism, Im-Politic, Joe Biden, Mainstream Media, Never Trumper, Populism, presidential debate, progressives, Trump

As difficult as it might be to believe that the verbal knife fight of a presidential debate held Tuesday night changed absolutely nothing about the election campaign, it’s increasingly clear to me that it changed absolutely nothing about the election campaign.

Politically speaking, that’s bad news for President Trump. After all, however flawed the national and, more important, the state polls might be, they’re virtually all saying that Democratic challenger Joe Biden is in the lead. Yes, there may be a significant hidden Trump vote out there, comprised of folks who either are too embarrassed to tell canvassers their real preferences, or too mistrustful of strangers, period. Yes, an enthusiasm gap does seem to favor the President. Yes, both nationally and in some key swing states, the results are tightening. But the hidden vote hypothesis remains a mere hypothesis. Anti-Trump sentiment could well overcome the lukewarm feelings about Biden. And the narrowing hasn’t been major or uniform as best as I can tell.

Therefore, for the debate to have helped the President, he needed to throw the former Vice President considerably off his game, or Biden needed to stumble into major trouble on his own. Neither happened. And since Mr. Trump and many of his backers set the expectations bar for Biden so low with their constant “Sleepy Joe” refrain and insistence that the 77-year old Democrat was losing his marbles along with too much of his physical energy and stamina, Biden’s at-least-perfectly fine coherence and energy level earned him a solid passing grade, and for now surely reeassured many voters worried about his capacities.

Interestingly, in this vein, the Trump performance displayed almost no interest in overtures of the President’s own aimed at enhancing his appeal beyond his base. One possible exception: For the first 20 minutes or so, the President was actually even-toned and on-message. But for whatever reason (some successful early baiting by Biden, frustration with moderator Chris Wallace, surprise at Biden’s performance, an inability to maintain self-control, or some combination of these), Mr. Trump eventually reverted to quasi-rally mode.

So it’s evident that, unless he decides to become more “presidential” (for lack of a better word) – a tactic that may well be way too late to convince any late deciders in any case – the President will continue to bank mainly on achieving two goals: first, amping up the (considerable) base to ensure astronomical turnout; and second, convincing some in key Democratic voting blocs that Biden can’t be trusted – as with his Tuesday night dig that Biden’s rejection of the Green New Deal proper means that hes “lost the Left,” and his Kamala Harris-like attacks on the former Vice President’s record on racial issues. Not that the first claim in particular can possibly be reconciled with other Trump allegations that his opponent will let “Socialism” run wild. But in American politics, consistency doesn’t necessarily equal effectiveness. At the same time, if the aforementioned polls are generally accurate, this Trump tack hasn’t paid off sufficiently yet.

But pure politics and the debate’s impact on the election aside, it’s also important to deal with fears that the event’s rancor once more revealed an American political system that can no longer produce leaders with both the competence and the personal qualities needed by any society to remain reasonably united – and therefore adequately successful by any measure. Of course, Mr. Trump and his supporters seem to have generated the greatest concerns along these lines, but there’s no shortage of worries that Biden is simply (as per the Trump statements above) a pawn of equally angry and reckless groups on the Left.

What, however, is new to say on these scores? The country was deeply and angrily divided before Mr. Trump was elected. It’s been deeply and angrily divided now and obviously will remain so after November 3. America’s most successful Presidents – the ones to whom the nation is most indebted – have been unifiers and motivators across the political spectrum. Mr. Trump has failed abjectly here – and revealingly, he’s failed despite a solid pre-CCP Virus record on that supposedly supremely important political issue, the economy.

Whether you believe he’s fanned these flames or not (and his regular use of violent words and phrases to describe what he’d like to do, or see happen, to some opponents clearly qualifies in my view), his interest in mollifying any critic’s legitimate concerns is nowhere to be found. He appears to have no clue how many women and for how long (a) have been victims of sexual assault and harmful, derogatory physical and verbal treatment of all kinds and (b) how they and others are genuinely pained and outraged by the (unpunished) behavior revealed on the “Access Hollywood” tape and alleged in several other cases, and by appearance-based insults of women (whose vulnerability to such verbal abuse has mattered so much more than that aimed at men simply because society and culture have been so thoroughly sexist for so long).

Moreover, although it may technically be true that the United States has cured itself of most truly systemic racism, he’s equally insensitive to the impact of cursory denials of these claims, and of how African Americans could validly point out that, contrary to the Trump MAGA campaign slogan, the nation wasn’t remotely “Great” for them for most of its pre-Trump (or pre-Obama) history. (I’m aware that former President Bill Clinton invoked the same idea, but Trump hard-liners need to do better here than such “What About-ism.”)

Nevertheless, lots of What About-ism is justified when it comes to the reactions – and previous records – of so many Trump critics. Unless they should be absolved of all blame for the nation’s current hot mess? As I’ve urged so many Never Trumpers since the President began his first run for the White House in 2015, it’s not enough to decry his various offenses. The best way to defeat him and insure against any Trumpist revivals (whether led by Mr. Trump or not) is to address seriously the genuine grievances that created so much of his base in the first place. To this day, however, the Never Trumpers have not only failed miserably or shown no signs of learning curves whatever. They’ve bent over backwards and turned cartwheels – often in some of the most deluded and/or dangerously unethical ways imaginable – to justify remaining in deep denial.

How do I count the examples? They include:

>the glaringly obvious effort to politicize intelligence and law enforcement agencies to sabotage his presidency with Russia collusion charges that turned out to be not only phony but look to have been planted or spread by the camps of both his 2016 Democratic rival Hillary Clinton and of the late globalist neoconservative Republican Senator John McCain of Arizona — among others;

>the literally hysterical drive to impeach Trump based on an almost completely routine instance of diplomacy and foreign policymaking;

>the utterly shameless leaking and fabrications – by career bureaucrats and establishment Republicans with whom Trump needed to staff much of his administration for lack of a large enough cadre of talented and experienced populists and America Firsters – that helped foster and sustain these anti-Trump campaigns;

>the eagerness of the Mainstream Media to swallow the leakers’ claims on these and other subjects, and propagate them without any meaningful, on-the-record corroboration;

>the adamant refusal of McCain and other card-carrying members of the globalist bipartisan foreign policy Blob to admit to the disasters their strategies produced (the Iraq nation-building effort, their gushing and often bought-and-paid-for support of the rise of China), and to acknowledge the possibility of viable alternatives;

>the mind-bogglingly hypocritical attacks on the Trump China and other tariffs by Congressional Democrats and labor leaders who spent literally decades calling for the exact same policies in order to improve working- and middle-class economic fortunes;

>the transformation of support for more lenient but still sane immigration policies into thinly-disguised support for an Open Borders approach (epitomized by the backing of every Democratic candidate at this primary debate for providing free government healthcare to illegal aliens);

>the full-throated endorsement by growing numbers of progressives and other Democrats of dangerously divisive identity politics, education as outright propaganda, and authoritarian curbs on free expression;

>and perhaps most tragically ironic of all, the now common calls for anti-Trump and other forms of violence by Democrats – including Biden.  

All of which leaves much of the country with a dispiritingly Hobson’s Choice. I continue making it as I have since it became apparent that Mr. Trump was in the 2016 race to stay: If I could have chosen anyone in the U.S. population to stand for a critical mass of the public policies I’ve long supported, Mr. Trump wouldn’t have been in the first 95 percent of my choices – for all the inexperience and personality-related reasons that were on everyone’s mind.

But against virtually all expectations (including my own) he prevailed against a large, experienced Republican field. And for the reasons described above, his Democratic opponent struck me as being both unacceptable on most issues and dwnright scary on the intangibles.

Four years later, I see the same situation – though my fears about Trump’s opponents now go way beyond Biden himself. So I’ll make the same choice. I’m also left with these observations and (unanswered) questions, which first appeared in a 2018 article in connection with U.S. foreign policy, but which apply to all other major issues as well:

“….American elections have brought to power any number of mainstream politicians, and through them any number of policy operatives, skilled, experienced, and knowledgeable enough to maintain the status quo competently and even effect important reforms. And as shown by Trump’s election, the White House can be won by an outsider with avowedly disruptive ambitions who is largely unfamiliar with Washington’s formal and informal levers of power (and lacking an advisory corps large and savvy enough to at least partly tame the federal bureaucracy).

“But what is still unknown is whether a leader unconventional enough to develop or support truly innovative foreign policy ideas can rise to the top through the current political system and all of its stay-the-course influences and incentives. Equally uncertain—can the world outside mainstream political and policy circles produce a leader both willing to think and act outside establishment boxes, yet versed enough in its ways to achieve transformational goals? And perhaps most important of all: can the nation produce such a leader before war or depression make overhaul unavoidable.”

Im-Politic: Flynn-Flamm

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Barack Obama, collusion, election 2016, FBI, Federal Bureau of Investigation, Im-Politic, James Comey, Justice Department, Logan Act, Michael T. Flynn, Mueller investigation, Russia, Sally B. Yates, Sergey Kislyak, Susan E. Rice, Trump, William P. Barr

So let’s wade right into the (latest) Michael T. Flynn uproar.

Unless you’ve been living under the proverbial rock for the past few weeks, you know that Flynn is the former Army Lieutenant General and head of the Pentagon’s intelligence chief (during the Obama administration) who served briefly as President Trump’s national security adviser. He resigned in February, 2017 after stating that he misled Vice President Mike Pence about the content of conversations he held during the transition period with Russia’s ambassador to the United States. That December, he was indicted by the Special Counsel Robert Mueller’s Trump Russia collusion investigators for lying to the FBI during interviews in January with Bureau agents in the course of their investigation into his activities, and also pled guilty to the charges.

More recently, after Flynn sought to withdraw this plea, Attorney General William P. Barr appointed a career federal prosecutor to review the case, and in light of newly released FBI documents indicating serious irregularities in the Bureau’s handling of the case, Barr agreed to the prosecutor’s recommendation that the case be dismissed altogether. A federal judge will make the final decision.

This summary, though, scarcely begins to do justice to all the ins and outs and other complexities of the Flynn case. Dealing with them would require a  post even longer than this one will be! But one dimension of the case with unusual importance concerns former President Obama’s actions, specifically because of the recent declassification of an email written by his own former national security adviser, Susan E. Rice, about a meeting held among Obama, former Vice President and presumptive Democratic Party presidential nominee Joe Biden, and the former heads of the FBI and Justice Department.

The Obama angle has of course generated claims that his administration’s handling of Flynn and other aspects of its investigation of the Trump campaign’s interactions with Russia amount to a major scandal – which Mr. Trump himself calls “Obamagate” and which others portray as nothing less than an effort to overthrow his presidency. To me, these charges should be looked into, but remain to be proved. (In fact, the Justice Department is probing the entire investigation into Russian election interference and the Trump campaign that took place during the Obama years, and the long-awaited report seems likely to be released before Election Day.)

In the absence of this report, what interests me right now is the question of why Obama didn’t quash the FBI investigation of Flynn during that January 5 meeting – which took place just over two weeks before his presidency officially ended. And the Rice email makes clear just how fishy his decision was.

According to this communication, which Rice sent to herself on Inauguration Day, the January 5 White House meeting was “a brief follow-on conversation” that took place right after Obama, Biden, Acting Attorney General Sally B. Yates, FBI Director James Comey, and Rice were briefed by the leaders of the intelligence community “on Russian hacking during the 2016 Presidential election.” And Flynn was a major subject of the conversation.

Flynn was highlighted due to the former President’s professed determination to (in Rice’s words) “be sure that as we engage with the incoming [Trump] team [during the transition], we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.”

Comey responded (in Rice’s words again), “that he does have some concerns that incoming NSA [national security adviser] Flynn is speaking frequently with Russian Ambassador [Sergey] Kislyak. Comey said that could be an issue as it relates to sharing sensitive information.”

Now comes something really important. Rice continued:

“President Obama asked if Comey was saying that the NSC [National Security Council] should not pass sensitive information related to Russia to Flynn. Comey replied ‘potentially.’ He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that ‘the level of communication is unusual.’

“The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.”

This Obama response is what raises so many questions. First, back in late January, 2017, the Washington Post reported that the FBI “in late December reviewed intercepts of communications between the Russian ambassador to the United States and retired Lt. Gen. Michael T. Flynn — national security adviser to then-President-elect Trump….”

This report was confirmed in the exhibits accompanying the Justice Department’s May 7, 2020 motion to dismiss the charges against Flynn. So apparently, Comey was privy to the Flynn-Kislyak conversations more than two weeks before the January 5 meeting with Obama. During that time, the Rice email states, he reported finding no evidence, or even any “indication,” that Flynn had passed sensitive information to Russia. All he said he uncovered information that he interpreted “potentially” meant that Flynn was untrustworthy.

At least as important, there’s compelling evidence that Obama himself knew the content of the Flynn-Kislyak conversations.  It comes in the form of testimony given by Yates to the Mueller investigators in September, 2017 and described in a September 7 FBI description contained in Exhibit 4 (page 2) of the Justice Department’s motion to dismiss.  She stated that during the January 5 meeting, Obama revealed he had “learned of the information about Flynn,” including not only about the fact that the conversations took place, but about their key subject.

Yates added that Obama at that point specified that he didn’t want “any additional information on the matter” (the FBI’s phrasing) but wanted enough provided (presumably to his aides) to guide the outgoing administration as to whether Flynn could be trusted. In other words, not only does Yates’ testimony add a crucial detail. It also supports the essentials of Rice’s account.

Of course, if the former President was aware of what Flynn and Kislyak discussed, he also must have known that no classified information had been passed to the Russian. Nor according to Rice did he express any other concerns. 

And this episode doesn’t mark the first time that Obama was surely made aware that an FBI investigation of Flynn had turned up nothing legitimately troubling.  For on August 16, 2016, as documented in Exhibit 2 of the motion to disniss, the Bureau began probing whether Flynn, who it identified as a foreign policy adviser to the Trump campaign,

“is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act [which requires any Americans working for foreign government, political parties, individuals, or other principals – though not U.S. affiliates of foreign-owned companies – to register with the Justice Department and report the nature of the relationship].”

Sounds pretty serious, right? Except in a January 4, 2017 memo – presented as Exhibit 1 of the motion to dismiss – the Bureau’s Washington field office reported its decision to close this investigation because the probe could identify “no derogatory information.”  Is it remotely conceivable that no one told the former President?

The story of this particular investigation, however, doesn’t stop there.  The memo not only wasn’t approved.  As the motion to dismiss recounts (page 4), ostensibly because the FBI’s top leaders (including Comey) had learned of the Flynn-Kislyak conversations, they kept the Flynn probe alive – even though, presumably, they knew they contained no incriminating or otherwise disturbing material, or certainly never reported such to Obama, including up to and including the January 5 meeting.    

The transcripts, though, suggested another possibility for nailing Flynn – a possible violation of the the Logan Act.  But this course of action was pretty problematic, too.  This law, dating from 1798 aimed at preventing private American citizens or other legal residents from interfering with the conduct of U.S. diplomacy.

That’s an entirely legitimate purpose. But throughout the entirety of American history, only two individals have even been indicted for violating the act (most recently, in 1853) and neither was convicted.

The FBI’s interest in such possible Flynn transgressions seems to have originated in purported Obama administration worries that before Inauguration Day, Flynn was engaged in such interference on two different fronts – an upcoming United Nations vote to condemn Israel, and a December 29 Obama decision to sanction Russia on the grounds of election interference.

Yet Flynn ultimately wasn’t indicted (and convicted) for anything having to do with the Logan Act, or anything having to do with his Russia conversations or with the UN business. His only alleged crime (to which he pled guilty) was making materially false statements and omissions” to the FBI about these subjects.

At this point, an obvious choice must have confronted Obama – who must have known that the transcripts absolved Flynn of the most serious offense he was suspected of committing – handing major official secrets to the Russians. He could have told Comey that further investigation of Flynn was pointless and to drop the matter – either because more than two recent weeks of surveillance had turned up nothing alarming; or because Flynn would begin serving in the new Trump administration only two weeks down the road, and would then have been entitled to view all the U.S government’s classified information; or because Obama realized that the Logan Act concerns were excuses for further surveillance of Flynn. Or he could have told Comey to continue (because he didn’t care why Flynn was pursued as long as the effort succeeded), along with directing Rice and all other U.S. officials to suspend sharing intelligence concerning Russia (or any other subject) with the Trump team (more out of some motive other than because of any genuine security concerns).

Instead, he told Comey to “inform him if anything changes in the next few weeks” – but also permitted Rice to continue intelligence sharing as normal. We know this because a May 19 statement by Rice’s lawyer on her behalf said that the former Obama aide “did not alter the way she briefed Michael Flynn on Russia as a result of Director Comey’s response.” This outcome, it must be noted, also supports the claim that Obama had no important security concerns about Flynn. All the same, Comey’s pursuit of Flynn remained ongoing.  

Unless Rice defied the President’s instructions despite her lawyer’s claim?  If not, and they were followed, then why didn’t Obama at any point between January 5 and the end of his administration halt the Comey investigation? Unless he did and Comey continued anyway? Possibly because the FBI chief wished to follow the former President’s instructions even after Obama had left office?  Whatever Comey’s motives, his pursuit of Flynn didn’t stop, and led to the January 24 FBI interview with the new national security adviser.      

Interestingly, that session also undercuts the idea that the Obama administration’s beef against Flynn had anything to do with national security.  For a partly declassified version of the FBI’s report on the January 24 meeting shows that neither of the agents who spoke with Flynn even brought up the matter of illegally passing classified or any sensitive information to Kislyak. Their exclusive concerns were Logan Act-related issues.

A final (for now) weird item: In its indictment, the Justice Department contended that “FLYNN’s false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals associated with the Campaign and Russia’s efforts to interfere with the 2016 presidential election.”

But of course, Flynn’s conversations with Kislyak took place after the election, not during the campaign. The only way they could have been related to the Trump campaign collusion allegations would be if they were the result of some secret deals concerning Russia policy made by Flynn or anyone else in the campaign with Moscow. Yet the exhaustive Mueller investigation of these matters found insufficient evidence to charge anyone in the Trump campaign with the crime of conspiring “with representatives of the Russian government to interfere in the 20q6 election.” And Flynn’s activities were included.

As mentioned above, the above analysis by no means exhausts all the questions raised by the Flynn uproar – including about Flynn’s dealings with foreign clients; about whether the FBI agents who interviewed Flynn concluded he was lying, or simply believed that his memory was faulty at time (and whether Comey himself was certain of Flynn’s dishonesty, as per the motion to dismiss, Exhibit 13, pages 3 and 4, and Exhibit 5, page 10, respectively); and about why, if the Obama administration viewed Flynn as a major threat to national security, no one ever told President-elect Trump promptly of their concerns, and instead chose a prosecution route that permitted Flynn to occupy an extremely crucial position for three weeks – and that risked his continuing in that post had he performed more skillfully during his session with the FBI.

Former Obama Acting Attorney General Yates has testified to Congress that she did tell then Trump White House Counsel Donald McGahn that Flynn’s false statements were known by the Russians, and therefore made him vulnerable to blackmail. But this warning wasn’t given until January 26 – six days after Mr. Trump assumed office, and Flynn became national security adviser. 

And then there’s perhaps the biggest Flynn-related mystery of all: whether the next few weeks will see more questions, or more answers.

Glad I Didn’t Say That! Politico Shoots Itself in the Foot on Foreign Meddling

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Democrats, election 2016, election interference, Glad I Didn't Say That!, Mainstream Media, MSM, Politico, Trump, Ukraine

“…acting White House chief of staff Mick Mulvaney told reporters the U.S. aid was withheld at least in part because of a request to have Ukraine investigate unfounded allegations that foreign countries assisted Democrats in the 2016 election.”

–Politico, October 17, 2019

“Ukrainian government officials tried to help Hillary Clinton and undermine Trump by publicly questioning his fitness for office. They also disseminated documents implicating a top Trump aide in corruption and suggested they were investigating the matter, only to back away after the election. And they helped Clinton’s allies research damaging information on Trump and his advisers, a Politico investigation found.”

– Politico, January 11, 2017

 

(Sources: “Mulvaney acknowledges Ukraine aid was withheld to boost political probe,” by Quint Forgey, Politico, October 17, 2019, https://www.politico.com/news/2019/10/17/mulvaney-confirms-ukraine-aid-2016-probe-050156 and “Ukrainian efforts to sabotage Trump backfire,” by Kenneth P. Vogel and David Stern, Ibid., https://www.politico.com/story/2017/01/ukraine-sabotage-trump-backfire-233446)

Im-Politic: New Article Shreds Trump-as-Fake-Populist Claims

Tags

election 2016, Im-Politic, middle class, Populism, The American Conservative, Trump, working class

I’m pleased to announce the publication of my newest freelance article.  Posted last night by The American Conservative, it uses recent, and usually overlooked, U.S. government data to debunk the claim that President Trump’s working- and middle-class voters were duped by the promises of a fake populist who proceeded to shaft them once he entered the Oval Office.  Here’s the link.

And keep checking in with RealityChek for news of upcoming media appearances and other developments.

Im-Politic: Biden’s Fake History on Fighting Russia’s Political Interference in Europe

Tags

Alliance for Securing Democracy, Biden, Bill Kristol, Eastern Europe, election 2016, election interference, Europe, German Marshall Fund, Im-Politic, John Podesta, NATO, North Atlantic treaty Organization, Obama, Putin, Russia, Trump, vital interests, Western Europe

Maybe Joe Biden’s main problem isn’t simply that he’s “gaffe-prone” – at least not nowadays, as he again seeks the Democratic nomination for President. Maybe the former Vice President’s main problem is that he’s suffering major memory loss – and I mean major memory loss. Either that, or his recollection of how the Obama administration in which he served responded to Russian political subversion in Europe reveals a truth-telling problem comparable to the one widely believed displayed by President Trump.

How else can the following recent Biden statement be explained, in a CNN interview in which he charged that Mr. Trump’s reelection would wind up destroying the North Atlantic Treaty Organization (NATO) – America’s most important post-World War II security alliance:

“Why did we set up NATO…? So no one nation could abuse the power in the region in Europe, would suck us in the way they did in World War I and World War II. It’s being crushed.

“Look at what’s happened with [Russian President Vladimir] Putin. While he — while Putin is trying to undo our elections, he is undoing elections in — in Europe. Look what’s happened in Hungary. Look what’s happened in Poland. Look what’s happened in — look what’s happening. You think that would have happened on my watch or Barack [Obama]’s watch? You can’t answer that, but I promise you it wouldn’t have, and it didn’t.”

Leave aside for now the massively inconvenient truth that the Obama-Biden watch was exactly when Putin most recently tried to “undo” (bizarro phrasing, I know) a U.S. election. Leave aside also the incoherence of the claim that “You can’t answer that, but I promise you it wouldn’t have, and it didn’t.”

Because even if Biden is only referring to Russian interference with politics in Europe, his statement ignores literally dozens of such instances and campaigns during his White House years. Abundant evidence comes from the Alliance for Securing Democracy – a research organization housed in the German Marshall Fund – a quintessentially globalist, Washington, D.C.-based think tank. For good measure, the Alliance’s “Advisory Council” contains not only the usual crew of bipartisan Washington foreign policy Blob hangers-on from previous globalist administrations, but virulent Trump-haters like long-time neoconservative stalwart Bill Kristol, as well as John Podesta, who chaired Democratic nominee Hillary Clinton’s unsuccessful presidential run in 2016. So clearly, this source has no interest in putting out anything that will make Mr. Trump look good relative to political rivals.

The Alliance maintains a handy-dandy interactive search engine called the “Authoritarian Interference Tracker,” which makes it easy to identify political subversion efforts by a wide range of countries in a wide range of countries. And here’s just a small sample of what comes up when the controls are set for the Obama years:

>2008 – present: “In 2008, the Institute of Democracy and Cooperation, a pro-Russia think tank headed by former Duma deputy Natlaya Norchnitskaya, opened in Paris. According to Radio Free Europe/Radio Liberty, ‘the organization toes a blatantly pro-Kremlin line.’ The Institute’s Director of Studies…told Radio Free Europe/Radio Liberty that its financing comes from ‘the Foundation for Historical Outlook in Moscow, which in turn is financed by unspecified private Russian companies.’”

>2008-2017: “According to the [British newspaper] The Guardian, between 2008 and 2017, Rossotrudnichnestvo, a Russian government-organized non-governmental organization (GONGO) worked with state-sponsored media outlet TASS and Russian intelligence agencies as part of a nearly decade-long influence effort that sought to distance Macedonia from the EU [European Union] and N NATO and to prevent the success of the Macedonian name change referendum.”

>2009-2011: “According to the Czech Security Information Service’s (BIS) annual reports for 2009 and 2010, Russian intelligence services were actively involved in programs to build closer relations with the Russian expatriate community in the Czech Republic as a way to expand influence in the country. These programs specifically targeted academic and intellectual elites as well as students, according to BIS.”

>2010-2014: “According to Reuters, between 2010 and 2014, the Russian government offered Ukrainian oligarch Dmytro Firtash lucrative business deals in exchange for Firtash’s political support in Ukraine. Firtash and his companies received large loans and lucrative gas contracts from Russian state-owned energy giant Gazprom at significantly discounted prices. Firtash’s companies would then sell gas to the Ukrainian government at a high price and pocket the difference. Firtash used his domestic political influence in Ukraine to support Russian government-backed presidential candidate Viktor Yanukovych’s successful 2010 campaign for the presidency. According to Reuters, the Russian government instructed Firtash to ensure Ukraine’s position in Russia’s sphere of influence.”

Here are some abbreviated descriptions of other such incidents:

>2010-2011: “Funds from Russian money-laundering scheme funneled to Latvian political party.”

>2010: “Russian government-connected oligarch Vladimir Yakunin finances pro-Russian Estonian political party.”

>2010-2014: “Emails expose Greek political party Syriza’s ties to Russian-connected actors.”

>2013: “Russian money-laundering ring cycles money through Polish, pro-Russia think tank.”

>2013: Bulgaria’s “Pro-Russian Ataka party reportedly receives funding from the Russian embassy.”

>2013: “Russian government-connected oligarch Vladimir Yakunin launches foundation in Geneva [Switzerland]. The foundation allegedly “is part of a network of organizations promoting an authoritarian and Eurasianist model of thought to counter the current liberal-democratic world order.”

>2014: A “new Russian Orthodox Church in Skopje [Macedonia] raised concerns among Macedonian officials that ‘Russia may be trying to use the Orthodox Church to its Russian interests in Macedonia,’ according to” Radio Free Europe/Radio Liberty.

>2014-present: “Emails reveal Russian government-connected oligarch funded network of pro-Russia fringe political groups in Eastern Europe.”

>2014: “French far-right party National Rally, formerly Front National…receives loan from bank ‘with links to the Kremlin.’”

>2015: “Russian government activist founds pro-Russia political party” in Poland.

>2016-17: “Czech intelligence service reports on Russian covert political influence campaign in annual report.”

My point here certainly isn’t to sound the alarm about all this Russian political activity, especially in Eastern Europe – which, as I’ve written repeatedly (see, e.g., here), has long been part of Russia’s sphere of influence, has never been defined as a vital U.S. interest, and where America’s options for responding effectively are limited at best. Nor is my point to vouch for the accuracy of every single one of the above claims, or others like it in the database. And I certainly don’t believe that the above information represents any evidence that Russian interference put Mr. Trump over the top in 2016.

Instead, the point is to show that, despite Biden’s boasts, the kind of Russian activities about which he’s alarmed plainly took place during the Obama years in spades (and have been reported by many Mainstream Media sources, as the database makes clear), they occurred in both Eastern and in (more important to the United States) Western Europe, and that Washington’s responses evidently did little to stop or even curb them.

Indeed, the record shows that, at least when it comes to Biden’s record of fighting the Russian subversion in Europe that he considers a mortal threat to America, by his own standards, he deserves the Trump-ian label of “Sleepy Joe.” As in asleep at the switch.

(What’s Left of) Our Economy? Did Trump Trade National Security for Soybeans with China?

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agriculture, China, election 2016, election 2020, export controls, extradition, farmers, G20, G20 Summit, Huawei, Meng Wangzhou, national security, Osaka G20 Summit, rural areas, soybeans, tariffs, technology, telecommunications, Trade, trade war, Trump, Xi JInPing, {What's Left of) Our Economy

Did President Trump sell U.S. national security down the river at his meeting with Chinese dictator Xi Jinping in order to make American farmers happy and, he hopes, ensure his reelection? Could be – even though there’s still much that’s not known about the U.S.-China deal reached between the two leaders on the sideline of a big international economic summit meeting in Osaka. In fact, I haven’t even seen any official U.S. government documents describing the agreement in detail. (A further complication: Whatever official Chinese documents come out describing the deal could differ significantly from the American portrayal.)

At the same time, I’ll venture that the major, and from the U.S. standpoint, urgently, needed course change in China policy begun by Mr. Trump hasn’t yet been altered fundamentally. And I still don’t consider that outcome likely, even though events of the last few days reveal that some important loopholes in America’s approach need to be closed, pronto. 

From what I can glean from the just-released official White House transcript of the President’s Osaka press conference is that (as I predicted), Mr. Trump and Xi agreed to resume formally negotiations that fell apart in early May, apparently because China began reneging on commitments it had already made. The quid pro quo that seems to have revived the talks evidently comes down to this:

The President agreed to refrain from imposing threatened tariffs on U.S. imports from China that don’t already face duties or new duties (a little more than half of Chinese goods entering the American market fall into this category), and to make it easier for American tech companies to sell, seemingly on an ongoing basis, parts and components vitally needed by Chinese telecommunications giant Huawei.

In return, China agreed to boost greatly purchases of agricultural products that it had all but shut out of its own large market to retaliate for Trump tariffs, thereby denying U.S. farmers major rivers (not just streams) of revenue. Since rural America went so notably for Mr. Trump in 2016, the political appeal of that approach is easy to see.

The chief uncertainty remaining: What exactly will Huawei be able to buy from U.S. firms? The issue is crucially important to China because, notwithstanding its commanding position in many global markets for advanced telecommunications systems, these Huawei products still depend vitally on information technology hardware and software from American-owned tech companies that have no adequate (if any) substitutes from other suppliers. And if, as was likely, Huawei suffered major damage because these U.S.-origin goods and services weren’t available, a major blow would be dealt to China’s ambitions to gain preeminence in a wide range of advanced technologies – and turn itself into a military superpower in the process.

Factors contributing to the uncertainty? To start, the so-called U.S. ban on selling to Huawei wasn’t technically a ban. It was an announcement that any proposed U.S. sales to Huawei needed to be approved by the American government because Huawei had been placed on a list of “entities” deemed dangerous to U.S. national security. So in principle, some American firms’ products and services could still be sold to Huawei (and several dozen affiliated entities also added to the list). But presumably, the truly valuable inputs would be denied.

Second, President Trump told the Osaka press conference that Huawei would only be permitted to buy from American-owned business “equipment where there’s not a great national-emergency problem with it.” That’s somewhat comforting, but only somewhat. The reasons? First, there’s reason to believe that, even before the Trump-Xi agreement, Huawei could have bought even equipment that did raise national security concerns as long as those computer chips or whatever else consisted mainly of foreign content (which is often the case because production of these goods has become so globalized, and because – irony alert! – some of the non-U.S. content now comes from China itself).

That qualification was shaping up as a huge problem because, if it’s present, then Huawei would still retain access to many of the high tech products it needs; and because the result could be even stronger incentives for American high tech companies to manufacture and develop even more of their most sophisticated offering offshore, including in China.

Third, as Mr. Trump specified, Huawei has not been taken off the “bad entities” list. Nor has there been any change in the U.S. extradition request to Canada for Meng Wangzhou, the CFO of Huawei (and daughter of its founder) to enable her trial for violating America’s export control laws. Why, then, do anything to make life easier for this entity?

Fourth, the Huawei-centric nature of this policy could signal that the President is falling into a China policy trap: Assuming that measures focused on specific entities (remember: nothing in China that’s routinely called a “business” or “company” deserves that label, in terms of how they’re used in most of the rest of the world, because China’s economy is so thoroughly controlled by the state) are adequate to cope with the intertwined China tech and national security challenge.

In fact, such episodic approaches seem doomed to fail because the China challenge is a systemic challenge. The exact names of specific instruments comprising this China challenge don’t matter in the slightest. For instance – let’s say that a truly total Huawei ban did sink this organization. In time, what’s to stop Beijing from simply slapping another name on the same units, facilities, and employees? Would Americans really want their government to have to wait to impose an embargo on this new entity until it began endangering their national security? Wouldn’t it be much better to understand that every Chinese entity big enough to be permitted by the Chinese government to play in global markets is by definition an agent of Beijing’s and of its (distinctly dangerous) ambitions? And to treat the Chinese high tech sector – for starters – accordingly?

As for the Chinese promises of greater imports of U.S. farm products, they’re problematic, too, even if Beijing does keep its promises. Hopefully, American farmers will be smart enough to respond in a measured way, not by simply assuming that they’ve won a free pass back into China forever, and recklessly supercharging and distorting their planting patterns to satisfy this new demand (as was the case especially for soybeans). Instead, hopefully, they’ve learned that Beijing can close the doors whenever it wants to – and that President Trump is kind of mercurial itself.

The President also could well be selling his agricultural record short. For although farmers clearly don’t like the Chinese tariffs on their exports prompted by the Trump levies, they also no doubt recognize how they’ve benefited from his tax and regulatory policies. And those that are culturally and socially conservative probably like what they hear from the President on those subjects – and/or don’t like many Democrats’ statements. Finally, the passage of the Trump administration’s revamp of the North American Free Trade Agreement (NAFTA) – the U.S.-Mexico-Canada (USMCA) deal could ease many farmers’ trade worries. 

In fact, the volatile Trump temperament – and his reelection hopes – look like the best guarantors that this shortsighted high-tech-for-soybeans trade-off won’t last long. Because the main obstacle to the kind of overarching trade deal the President still talks about still remains – the impossibility of verifying China’s compliance adequately. So the longer the Chinese hold out, and deny the President the chance he so clearly covets to claim a big victory, the more irritated with them he’s likely to become, and the greater the odds that some hammer comes down again.

Moreover, if the overall American economy and especially its manufacturing sector wind up slowing down, as some key indicators already suggest they are, increases in tariffs on Chinese manufactures could be the difference between Trump victories in the manufacturing-heavy Midwest states that (narrowly) helped key his 2016 triumph, and defeats.

In addition, it’s critically important to note that the Chinese products still facing tariffs are much more important to China’s economic future than the products that remain entirely or largely duty-free. That’s because the first group overwhelmingly consists of parts and components of industrial products that in turn are pretty advanced goods themselves. They’re the kinds of products that matter crucially to America’s industrial future as well.

So, as observed by this perceptive New York Times article, the China-links to the global supply chains that face such mortal threats from these tariffs still remain endangered, and the more-than-decent odds that these levies will remain in place, and even get raised further, will surely keep prompting multinational companies the world over to move at least partly out of China. And any developments that weaken China economically are by definition good for the United States.

Moreover, despite widespread predictions that Trump tariffs on these so-called intermediate goods would wind up raising consumer prices because their corporate buyers would need to pass along the tariffs’ cost to their final customers, little of such inflation has emerged, for numerous reasons I’ve written on previously.

By contrast, the still un-tariffed goods are consumer goods – like shoes and toys and apparel and consumer electronics products. For various reasons I’ve written about, their prices weren’t likely to budge much even with new Trump tariffs. But for now, the President has foreclosed any such possibility completely. The only drawback for the United States to leaving these goods largely duty-free – because they’re generally very labor-intensive products, they employ unusually large numbers of Chinese workers – is that any movement of production from China to anywhere else (even even it’s Chinese companies themselves doing the moving) would result in greatly increased Chinese unemployment. The regime has long viewed high joblessness as a mortal threat to its survival. So China’s labor-intensive industries, and by extension China’s dictators, have been let off the hook, too.

In all, then, so far it seems fair to conclude that President Trump handed the Chinese some genuinely important concessions in exchange for precious little from Beijing. But it’s also distinctly possible that this trade-off makes so little sense economically, national security-wise, and politically, that it will badly flunk the test of time. And at least as important, nothing in its seems capable of stopping or even greatly slowing the U.S.-China economic disengagement that, as I’ve written, is bound to serve America’s long-term interests, and that’s already underway.

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

Tags

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 prosecutor needs to convince a jury, as with all criminal trials, that the defendant is guilty “beyond 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 simply to 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

Tags

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.