(What’s Left of) Our Economy: What the Mini-Deal Says About Trump’s China Policy

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agriculture, business investment, censorship, China, decoupling, democracy, Democrats, election 2020, Elizabeth Warren, Hong Kong, Hong Kong protests, human rights, impeachment, Populism, Republicans, tariffs, Trade, trade talks, trade war, Trump, Uighurs, Ukraine, Ukraine Scandal, {What's Left of) Our Economy

The “Phase One” min-deal reached by the United States and China tamping down bilateral trade tensions for the moment, speaks volumes about the three major forces that are now driving President Trump’s China policy, and that will keep shaping it through the next U.S. election – though not always in consistent ways. They are:

>the President’s evident belief that his reelection hopes are being threatened mainly by revived impeachment threats but also by an economic slowdown that has unmistakably been influenced by the so-called trade war with China;

>his consequently increased need for political support from the establishment Republicans so numerous in Congress who have never boarded the Trump Tariff Train and who are worried about their own reelection chances next year; and

>Mr. Trump’s consistent (though generally unstated) belief that no matter how the formal trade talks proceed, America’s national security as well as economic interests require the U.S. economy to continue steadily decoupling from China’s.

The strength of the impeachment drive faced by the president is now indisputable. Some polls are even showing growing Republican support for not only impeachment by the House but removal by the Senate. Moreover, this political challenge comes at a time when the President’s strongest suit by far (at least according to polls) – his economic policy record – is looking somewhat weaker.

Few signs point to a recession breaking out by Election Day, much less during the preceding weeks or months. But growth has been slowing to levels that Mr. Trump himself has deemed unacceptable – in no small measure because they were the rates that prevailed for most of the Obama administration.

The tariff-heavy Trump trade policies hardly deserve all the blame. (See, e.g., this recent post.) But the failure of business investment to stay elevated following passage of major tax cuts for business is especially telling. It buttresses claims that both the President’s various sets of tariffs and the inconsistency with which they’ve been both threatened and applied have inhibited companies from approving big new expenditures on new factories and other facilities.

As a result, nothing that can reasonably be expected from Washington (in other words, ruling out a big infrastructure spending bill) is likelier to boost the economy more than a nerve-calming trade truce with China mainly featuring some Chinese market opening or re-opening (especially for agricultural products) in return for some U.S. tariff cuts, promises to refrain from new levies, or some some combination of such moves. At the least, such an agreement would in theory help growth maintain the momentum it has remaining.

A mini-deal along these lines would also please the Senate Republicans who might ultimately judge the President’s fate, and who generally have lagged far behind the GOP base in turning against pre-Trump China and broader trade policies. Moreover, as I’ve written, impeachment politics have greatly magnified their sway over Mr. Trump before. Despite his sky-high popularity with Republican voters, the President was heavily dependent on their political backing until this spring in order to neutralize any impeachment chances while his Russia ties were being investigated. That’s surely why his early policy initiatives were dominated by traditional Republican priorities, like tax cuts and repeal of former President Barack Obama’s healthcare overhaul, rather than by populist priorities like an infrastructure bill and the prompt imposition to tariffs.

Once the Special Counsel and other investigations flopped for various reasons, Mr. Trump had a much freer hand. But because of the emergence of “UkraineGate,” for now, those days are over. Probes growing out of those events are certain to last for months. Therefore, continued, much less higher, tariffs on China that could further drag on the economy and further frustrate the rural constituencies so crucial to the President and many other Republicans seem out of the question.

The President is so hamstrung that he’s been unable to marshal greater public support for staying the tariff course even though China is antagonizing American public opinion with its harsh suppression of the Hong Kong protests and the Muslim Uighur minority, and with its heavy handed efforts to extend its censorship practices to the National Basketball Association and other U.S. businesses. And don’t forget: These developments have placed China in a much weaker position, too.  

One reason that the President hasn’t been able to capitalize could well be his reluctance to declare publicly the functional equivalent of economic war, or his intent to decouple – presumably because any such statements would prompt the Chinese to crack down even further on American companies even doing business in the PRC that have nothing to do with job and production offshoring aimed at serving the U.S. market from super-cheap and highly subsidized Chinese facilities, as opposed to serving Chinese customers. And that reasoning has been entirely understandable.

Much less understandable – the President’s insistence that a trade war with China would be easy to win and inflict no economic harm on Americans, rather than choosing to challenge his compatriots to endure some sacrifices in order to beat back a mortal threat to their national security as well as prosperity. No wonder public support for so-called hard-line policies remotely strong enough to offset the opposition and reservations of the Congressional Republicans and most Democratic politicians is nowhere to be seen.

And don’t doubt that the Chinese fully understand. Whatever problems they initially experienced in figuring Mr. Trump out, they surely have concluded that they’re best advised to play the waiting game on the broader and deeper so-called structural issues dividing the two countries (e.g., intellectual property theft, technology extortion, massive subsidies) until the President is replaced by a Democrat who’s much easier to deal with.

Indeed, the evidence for this conclusion is abundant. China issues have played a small role in the Democratic primary campaign so far – even when it comes to long-time critics of pre-Trump trade policies like Democratic Socialist Vermont Senator Bernie Sanders, and Massachusetts Senator Elizabeth Warren. One likely explanation: In recent years, Democratic voters and leaners have markedly flipped on those pre-Trump approaches, from deep dislike to general approval. This shift in public opinion (matched in part by a trade flip in the other direction among Republicans and leaners) may also warrant some Chinese confidence that even a President Warren might prove a more acceptable interlocutor than Mr. Trump.

Nonetheless, the formal talks are not the only track on which the Trump administration’s China trade policies are running. And the other track – featuring unilateral U.S. moves to restrict Chinese involvement in the American economy, and thereby foster decoupling – is much less controversial than the trade talks and especially the tariffs and tariff threats clearly required to spur any meaningful progress.

Highly revealing on this score (in terms of the importance attached in Washington to decoupling): Even as a high level Chinese delegation was jetting to Washington, the President approved actions against Chinese tech companies and Chinese officials that were justified by human rights concerns, but that in the first case clearly advanced decoupling. Just as revealing (in terms of possible Chinese acceptance of a more skeptical new bipartisan U.S. consensus on China policy): Despite the provocative timing, the Chinese didn’t turn around and head back home once they heard the announcement.

Reinforcing the new American consensus on decoupling has unmistakably been the growing realization by the U.S. corporate sector that its heavy bets on China have dangerously increased its vulnerability not only to the whims of American politics, but to a Chinese regime that’s turned out to be much less hospitable than expected. As a result, “Phase One” is not only a suspiciously convenient-looking term being used by the President to describe his new deal. It also looks suitable for describing where his administration’s overall China policy stands right now.     

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Im-Politic: Why Trump’s Ukraine China Ask Was So (Needlessly) Stupid

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China, collusion, conflict of interest, Democrats, election 2020, Hunter Biden, Im-Politic, impeachment, Ivanka Trump, Joe Biden, Obama, Pelosi, Swamp, Trump, Trump-Russia, Ukraine

It’s lucky for President Trump that being stupid per se isn’t (yet?) grounds for impeachment, because if it was, his recent call for Beijing’s aid to investigate the Biden family’s possibly corrupt activities in China would surely qualify. In fact, it’s hard to think of a presidential action in recent memory that fails on so many substantive and political grounds. And no, I don’t agree with Florida Republican Senator Marco Rubio that the President was simply trying to troll the press.

Even so, it’s still possible that this episode could have a silver lining for Trump-World.

First, let me repeat my previous position that there’s absolutely nothing wrong with Mr. Trump probing Hunter Biden’s business dealings in China, Ukraine, or anywhere else, and whether they’ve improperly or illegally influenced U.S. policy toward those countries while his father was Barack Obama’s Vice President. In fact, since the current challenges and opportunities facing Americans nowadays from both countries have been strongly affected by policy decisions made during the Obama years, every American caring about the nation’s interests should want to know more about the Bidens’ goings on.

Nor should Joe Biden’s presidential bid this year shield him from scrutiny. In fact, as the President has pointed out in remarks on the Bidens and China, the former Vice President’s White House bid makes full disclosure absolutely essential. After all, as Mr. Trump has asked, “How would you like to have, as an example, Joe Biden negotiating the China deal if he took it over from me after the election? He would give them everything. He would give them everything. How would you like to have that?”

Can Americans be certain that a President Biden would sell his country down the river in China trade talks or on other fronts? Of course not. Can they be certain that Biden let China off the hook on various important interests, or urged doing so, since Hunter (successfully) began soliciting Chinese business in 2010? No on that score, too. But the uncertainties created and the undoubted, ongoing possibility of various payoffs are precisely why conflict of interest laws are on the books to begin with.

Moreover, conflicts of interest are especially important to investigate when it comes to countries like China and Ukraine. For there, governments and/or the oligarchs to which they’re closely connected call all the major economic and business shots.

Of course, claims abound that Mr. Trump is vulnerable to comparable (or even worse) charges. But regarding the Russia allegations, they’ve been big news since his 2016 Republican primary campaign began gathering real steam. In addition, after his inauguration, they were thoroughly examined by a Special Counsel probe that lasted nearly two years. And so far he’s still innocent until proven guilty in a legal sense. In addition, and revealingly, the current impeachment probe isn’t attempting to revive any of these charges.

Policy-wise, the Trump Russia record has been mixed, including support for measures (like strengthening the U.S. military presence in Eastern Europe right up against Russia’s borders, and strongly backing the American fossil fuels production revolution), that plainly aren’t pleasing Moscow.

It’s true that Trump daughter Ivanka operated a business that made shoes and apparel in China and imported these wares into the United States. I’d joined the ranks of those who believed those ties should have been severed at least once Mr. Trump became the Republican nominee. But Ivanka Trump has now shut down her China business. And can anyone seriously believe that in return for whatever copyrights she received from Beijing while her father was in office, that the President has taken it easy with China? After tariffs on literally hundreds of billions of dollars worth of Chinese products that have deeply wounded China’s economy? And a Taiwan policy that has poked Beijing in the eye on an issue of deep importance to China’s leaders and many of its people?

By contrast, it’s entirely legitimate – and important – to point out that the Obama-Biden record on both China trade and security issues was an eight-year exercise in coddling Beijing.

And both leaders’ records get to much of the reason why the President’s ask to Beijing was so boneheaded. Whether the Bidens are playing dirty or not, how can it help but legitimately expose Mr. Trump to the same kinds of conflict-of-interest charges he’s leveling against Biden? Indeed, House Speaker Nancy Pelosi is now making them. Moreover, it’s not as if China has anything like an impartial, rule-of-law-dominated criminal justice system. And let’s not forget the so-called political optics of his gambit at precisely the time when Beijing is violently repressing democratic protests in Hong Kong. “Appalling” isn’t too strong an adjective.

Just as bad, the President’s ask undercuts one of his most effective campaign themes – that for decades, his predecessors and their cronies had conspired with foreign governments like China’s to shaft everyday Americans on trade issues in particular. Just think back to his Inaugural Address. So now the same Chinese regime that’s conspired with Swamp-ers from both parties is supposed to help a President damage someone he’s labeled (with good reason) as a prime member of that corrupt complex?

The only justification I can think of for the China ask – at least politically – is the following (and don’t think I’ve got a lot of faith in this speculation): Now that Beijing has brushed off the President, he could turn around and contend that the Chinese are helping the Bidens cover up. Substantively – and whether this objective is being sought intentionally or not – the China ask could result in Mr. Trump taking a harder line on the trade talks.

More credibly, and encouraging in my eyes given my doubt that any verifiable China trade deal is possible: Even had Beijing complied, the President could come under enough Pelosi-like pressure to make impossible the kind of cosmetic deal that in principle could have solved some big potential China-related political problems heading into the election (i.e., with farmers angered at losing a big export market, or consumers outraged at tariff-induced higher prices).

The problem is that constructing these kinds of tortuous scenarios should be completely unnecessary, because, as I’ve stated,

>the Bidens’ conduct has been so questionable;

>the China-related case against them looks so compelling:

>Mr. Trump surely can get enough damning foreign government information about their doings from less substantively and politically controversial sources like Australia and, yes, Ukraine (to which the Democrats seem strongly devoted); and

>consumer and farmer complaints aside, the Democrats will have a devil of a time this coming election year making political hay by accusing the President of being too tough on China.

So the China ask looks an awful lot like another damaging and completely unforced Trump error. Nonetheless, the next time such a blunder seals his political fate will be the first. And even though my above scenario is pretty far-fetched, who can still confidently say that the President’s string of good luck has finally run out?

Im-Politic: Why the Impeachment Case Isn’t Even Remotely Serious Yet

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collusion, Deep State, Democrats, foreign aid, House of Representatives, Hunter Biden, Im-Politic, impeachment, Joe Biden, military aid, Mueller investigation, Nancy Pelosi, Trump, Trump-Russia, Ukraine, Viktor Shokin, Volodymyr Zelensky

OK, it’s not a verifiably un-doctored recording (apparently, they’re never available) – even though nearly all the Democratic members of the House of Representatives and many of the party’s presidential candidates view it as more than enough to warrant President Trump’s impeachment. (Removal from office? We’ve heard much less on that related but separate matter.)

All the same, the record of President Trump’s July 25 phone call with his Ukrainian counterpart, Volodymyr Zelensky, sure doesn’t look like a Nixonian smoking gun to me – and yes, in the interests of full disclosure, I strongly support many of Mr. Trump’s policies.

The allegations that led the President to release this document – which was apparently prepared via the same procedures normally used for all such confidential conversations – haven’t always been made with exactly surgical precision. So in this vein, the most useful version may come from an opinion article written for the Washington Post by seven freshman Democratic House Members.

Because of the prior national security experience all of them boast, and their reputations for moderation, the concerns they expressed yesterday reportedly imbued the push for impeachment with enough momentum to spur House Speaker Nancy Pelosi to authorize the launch of an “official impeachment inquiry” – an unusual procedure that seems to have no bearing on the various ways that this body has initiated impeachment proceedings in the past, and that certainly doesn’t guarantee the holding of the kind of full House vote needed to impeach and move to a Senate trial to determine removal.

Here’s what those seven first-term Democrats wrote:

“The president of the United States may have used his position to pressure a foreign country into investigating a political opponent, and he sought to use U.S. taxpayer dollars as leverage to do it. He allegedly sought to use the very security assistance dollars appropriated by Congress to create stability in the world, to help root out corruption and to protect our national security interests, for his own personal gain.”

But the way I read it, nothing in this version of the conversation does much to support either charge. Some of the key passages seem to be the following:

“President Zelenskyy: … I would also like to thank you for your great support in the area of defense. We are ready to continue to cooperate for the next steps specifically we are almost. ready to buy more Javelins [portable anti-tank missiles] from the United· States for defense purposes.

“The President [Trump]: I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike… I guess you have one of your wealthy people… The server, they say Ukraine has it. There-are a lot. of things that went on, the whole situation . I think you’re surrounding yourself with some of the same people. I .would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, ·it’s very important that you do it if that’s possible.”

Despite the non-coercive language, President Trump clearly established a quid pro quo involving U.S. military aid and Ukrainian cooperation on an investigation having to do with American politics. For me, the key is his use of the word “though” in his first sentence. (Not that Mr. Trump will win any articulateness awards.)

But where is the evidence that the quid pro quo involves a simple “political opponent,” as the seven House Democrats insist? (Obviously, it’s former Vice President and current Democratic presidential hopeful Joe Biden.) Everything in this passage, from his mention of “Crowdstrike” to the “nonsense” that “ended with a very poor performance” by Robert Mueller has to do with:

>the accusations (which that former Special Counsel’s investigation’s findings determined were untrue) that Mr. Trump’s 2016 presidential campaign colluded with the Russian government to ensure his election at the expense of Democratic rival Hillary Clinton; and

>the counter-accusation that those Russia collusion charges were manufactured by Mr. Trump’s opponents in the FBI, the intelligence community, elsewhere in the so-called Deep State, and the Obama administration. (This possibility is currently being investigated by the Trump Justice Department.)

That counter-accusation is especially important here. If anything like it is true, it’s imperative for the health of American democracy that it be discovered. And in turn, if a foreign government like Ukraine’s can shed light on the facts, why wouldn’t anyone except the guilty and their allies want Washington to use foreign policy leverage to achieve that result – which would unmistakably serve important U.S. national interests.

Of course, Biden’s name did appear in the five-page document – about a page after the above passages – in this statement from Mr. Trump:

“The other thing, There’s a lot talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it… It sounds horrible to me.”

These sentences have to do with a Ukrainian probe of the ties between Biden’s son Hunter and a Ukrainian energy company – and Biden’s public boast in 2018 that, as Vice President, in 2016, he secured the firing of a Ukrainian prosecutor who had vowed to investigate the company in question by threatening to withhold a billion-dollar American loan package if that official, Viktor Shokin, stayed in office.

His supporters contend that the quid pro quo Biden offered differed fundamentally from the Biden quid pro quo that Mr. Trump seems to have presented in his July phone call because Biden was carrying out firmly established U.S. government policy in order to serve the country’s national interests while President Trump’s interests were purely selfish and political.

All of which could be true. Except the 2016 date of the Biden episode should warn against imputing purely or even mainly non-political motives to his actions. In this vein, revelations during a presidential election year that Biden’s son was involved in shady or even criminal foreign doings certainly wouldn’t help the fortunes of the incumbent administration’s political party – so the former Vice President’s motivations might have been exclusively political.

Some considerations on this score do work in Biden’s favor, though – mainly evidence that Western European governments and the International Monetary Fund, all of which were complaining that Ukrainian corruption was undercutting their own aid programs, also sought Shokin’s firing. But illicit activity in Ukraine has been so pervasive that these non-American actors might have their own embarrassments to hide.

Just as important: If the Vice President of a previous administration, or any of his colleagues, was manipulating American foreign policy to cover up the activities of the Veep’s son, isn’t something that urgently requires examination from a national interest standpoint? Wouldn’t this be the case whether that former Vice President was currently running for office or not? In fact, wouldn’t that especially be the case if that former Vice President was running for office?

To be sure, the seven freshman Democrats also appear to be accusing President Trump of pressuring Ukraine to help dig up dirt on the Bidens (again, for solely political reasons) by freezing the disbursement of a previously approved military assistance package shortly before his phone call with Zelensky. 

Mr. Trump has admitted doing so, and as has been pointed out, he’s offered different explanations for this decision (which was overturned earlier this month). I agree that sounds fishy. But the reasons themselves (that other U.S. allies were shirking their obligations to help Ukraine, and that continuing Ukrainian corruption could prevent many of the funds from being spent effectively) are anything but ludicrous.

Also interesting:  More than three weeks before the aid freeze was first revealed by the Washington Post – and connected with the Zelensky phone call – ABC News reported that the administration was sitting on the Ukraine military assistance but not as part of any campaign to undermine Biden. Instead, the delay stemmed from a broad debate between Trump administration supporters of foreign aid generally and colleagues who were highly critical. The main reported complaints from Democrats had nothing to do with Biden, either. They centered on the President’s supposedly excessive coziness with Russian leader Vladimir Putin.

And most interesting of all:  Mr. Trump never brought up the frozen aid in his phone conversation with Zelensky. If the seven freshman Democrats are right and the President had blocked spending the funds “for his own personal gain,” why didn’t he even signal this blackmail attempt to its target?        

Ongoing and broadening investigations of all these controversies by Congressional committees and by the Justice Department could well provide definitive answers to all the above questions, and even produce more and/or worse bombshells. Indeed, maybe the phone call document itself has been doctored. But when it comes to impeachment, or even besmirching the Trump record, that’s exactly what should be the main point now. There haven’t been such answers or bombshells yet. And until some start appearing, talking up impeachment will continue looking  like a thoroughly reckless course of action – and one with plenty of boomerang potential.

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: 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: Mueller, Barr, and Beyond

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Im-Politic: What Democracy Supporters Should Think About the Virginia Scandals

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Brett Kavanaugh, Im-Politic, impeachment, Justin Fairfax, Mark Herring, racism, Ralph Northam, recall, sexual assault, Virginia

Although the Virginia political scandals are such a fast-moving, and changing, train, it’s still possible to think about conclusions that validly can be drawn. It’s also necessary, since in this age of the internet and social media, along with a non-stop news cycle, evidence of past misdeeds and misstatements by public figures  inevitably will keep surfacing.

For now, of course, the spotlight is on Virginia Governor Ralph Northam, the state’s Lieutenant Governor Justin Fairfax, and its Attorney General Mark Herring. But it’s clear that it shouldn’t shine equally on each one, and that the responses most consistent with democracy and the rule of law shouldn’t be uniform, either.

The main reason: As repugnant as their adventures in blackface were, neither Northam nor Herring has committed a crime. Consequently, despite the many calls for their resignations by Virginians and non-Virginians alike, I don’t believe they should accede – unless they genuinely conclude their consciences or the public good demand it. This is especially true for Northam, who to date clearly wants to keep his job.

Both his fate and that of Herring should be up in the air – that’s sure. But the decision to keep them in office ultimately should be made by Virginia voters through one of two established procedures. Either they can act on their own, and start gathering the signatures needed to make possible a court-approved recall, or they can urge their elected representatives in the state’s House of Delegates or Senate to approve impeachment and removal.

It’s entirely understandable for Virginians to fear that their state’s government will grind to a standstill as long as Northam remains in the governor’s mansion in particular. (This problem of course exists separately from the complications that would arise from his replacement by the legally troubled Fairfax, or by Herring – though they are major complications indeed.) But if the state’s residents are sufficiently worried about this prospect, they can make their concerns clear and move to assuage them in lawful manners.

None of this argument is intended to belittle other, more ethically, grounded points made to support Northam’s resignation. It indeed is reasonable to contend that he has lost the moral authority Virginians (and other voters) are entitled to expect from their elected leaders. It’s also reasonable to insist that Northam was elected fraudulently – since he never owned up to the blackface incident during the gubernatorial campaign. (And incidentally, I personally find much more troubling the presence of a Ku Kux Klan-hooded figure in the photo in question. For this group is nothing less than a violent domestic terrorist organization with a long record of racist and other bigoted violence.) Ditto for the position that Northam’s apology has turned out to be clumsy at best – and raised new questions about his racial attitudes and sincerity.

From the opposite perspective, I find some merit in the view that Northam’s record in public life on race has been admirable, and that either for that reason, or out of a broader general principle, or some combination of the two, neither he nor his career should be defined solely by a single, non-criminal episode, however odious.

But when a democracy confronts issues like this, neither my individual, nor yours (unless you live in Virginia), is especially important. What needs to count first and foremost are the collective reactions of Northam’s constituents in the state, who entrusted him with specific, major responsibilities, and who first and foremost will be impacted by the various outcomes. Denying a Virginia majority the ultimate say would in effect allot this decision to the loudest (not most numerous) voices in the state – and the nation. And therefore, it would represent a triumph not only of many with no real skin in this game, but of mob rule (albeit a non-violent form).

By contrast, Fairfax has been accused (so far) of two major crimes. Initially, let’s leave aside the comparisons naturally drawn between these sexual assault charges and those leveled at new Supreme Court Justice Brett Kavanaugh during his confirmation hearings. Like Northam, Fairfax is an elected official. Unlike them, however, his alleged offenses could be criminal – which means they raise sets of questions both that are similar to those surrounding Northam (and Herring) and  that are different.

The similar questions entail who should determine Fairfax’s political fate. And the answers resemble those for Northam and Herring: Virginia voters, acting on their own, or through their elected representatives. It’s true that major political and policy problems in the state could result from Northam’s replacement as governor by a second-in-line official whose tenure could be among the briefest on record. But Virginians should have the right to wrestle with these matters and figure out the pros and cons of all the likely scenarios themselves.

Fairfax’ status as an elected official also distinguishes him in an important respect from Kavanaugh – who held a judgeship during his Supreme Court nomination hearings, but was seeking a higher post. What Virginians must decide is whether he should continue in his current office, not whether he deserves a new one. (Interestingly, despite some talk of removing Kavanaugh from the federal bench because of his own sexual assault problems, and even other issues such as character flaws allegedly revealed because he supposedly lied about his experiences with alcohol, no removal procedures were ever initiated. Nor has anything yet come from efforts to impeach and remove Kavanaugh from the Supreme Court.)

The more interesting Fairfax questions are those concerning his own exposure to criminal prosecution. Reportedly, his first accuser, Vanessa Tyson, has decided not to press charges. His second accuser, Meredith Watson, seems to have chosen a similar course of action. 

But Fairfax is hardly out of the legal woods, because the statute of limitations for such crimes in neither of the states in which they allegedly occurred (Massachusetts for Tyson, North Carolina for Watson) has yet run out. And state officials can decide to move ahead on either case themselves. Conviction would definitely warrant impeachment and removal. Moreover, such steps could be defensible even if Fairfax was acquitted – but only if Virginians decided they were repelled enough by information that came out in court, of if they decided that the verdict was unjust.     

Similarly, during such a Fairfax trial, I know that if I lived in Virginia, I wouldn’t want my state government (if Fairfax succeeded Northam), or my lieutenant governor to face the possibility of defending himself against criminal charges – surely a full-time job in and of itself. And as with the Northam and Herring messes, all non-Virginians should feel perfectly free to voice their opinions – and even urge resignations (or hanging on). In fact, as with all free-wheeling debate, non-Virginians may well come up with some insights and ideas that haven’t occurred to Virginians. But I don’t live in Virginia, and for all of us out-of-staters,  our personal stakes in the course of this drama are nil.

One contingency that might change all of these calculations, especially for Virginians: If non-Virginians become so outraged by the prospect of some combination of Northam, Fairfax, or Herring staying in office that they try to organize tourism and other boycotts of the state. I’m generally against such campaigns, although there do seem to be reasons to believe that they’re constitutionally protected when waged by individuals. But what strikes me as dispositive is that, as with the possible consequences discussed above, these are possible costs that Virginians should decided to risk.

So again, Fairfax’ future, like that of Northam and Herring should be for Virginians to decide as they see fit. If we really have faith in democracy, the rest of us will be confident they’ll make the right decision – and recognize that we have no legitimate choice but to leave it in their hands.

Im-Politic: Deconstructing Obstruction of Justice

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Constitution, Dianne Feinstein, FBI, high crimes and misdemeanors, Hillary Clinton, Im-Politic, impeachment, James Comey, James Lankford, James Risch, Marco Rubio, Michael J. Flynn, obstruction of justice, removal, Russiagate, Senate Select Committee on Intelligence, Trump

There have been so many important economic and foreign policy stories to write about these days, and certainly RealityChek will be covering lots of them. But this of course is #ComeyDay, as they’ve said on Twitter, and I thought the most useful item I could post today would focus on one of the central questions raised by the Russiagate controversy: Has President Trump committed an impeachable offense?

Before beginning, though, it’s vital to recognize that although the Constitution provides for impeachment (and removal – they’re two separate matters) of government officials, including the president, on the grounds of “high crimes and misdemeanors,” the Framers never defined this term. Not surprisingly, legal specialists have made any number of convincing arguments for infusing these words with some specific content. But at least based on this Congressional Research Service survey, the consensus seems to be that “high crimes etc” mean anything that a majority of the House of Representatives (which impeaches) and two-thirds of the Senate (which conducts the trial, and whose guilty verdict on any specific charges, or “articles” results in removal from office) believe it means.

So legally and Constitutionally speaking, the debate on whether the president is guilty of the specific crime of obstruction of justice is beside the point. Politically speaking, though, finding this kind of actual violation of criminal law would make impeachment and removal votes much easier to justify for lawmakers when they face the electorate.

The main evidence so far in favor of an obstruction charge consists of two claims made by Comey under oath in his opening statement today to the Senate Select Committee on Intelligence. First, according to the former FBI Director, in a one-on-one February 14 Oval Office meeting, Mr. Trump made the following comments about the bureau’s probe of former White House national security adviser Michael J. Flynn:

“‘He is a good guy and has been through a lot.’” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, ‘I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.’”

Second, in phone calls with the president on March 30 and April 11, Comey said Mr. Trump referred to a “cloud” that was undermining presidency’s agenda that he wanted Comey’s help in lifting. In the first phone call, according to Comey,

“the President called me at the FBI. He described the Russia investigation as ‘a cloud’ that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to ‘lift the cloud.’ I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.”

Comey added that President Trump “finished by stressing “the cloud” that was interfering with his ability to make deals for the country and said he hoped I could find a way to get out that he wasn’t being investigated.”

In the April 11 call, Comey stated that Mr. Trump

“asked what I had done about his request that I ‘get out’ that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that ‘the cloud’ was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel.”

It seems clear, therefore, that the “cloud” references concerned the president’s belief that Comey should have informed the public that he personally was not being investigated by the FBI for anything. That is, it had nothing to do with the Russiagate investigation or the separate Flynn investigation. And responding to separate questions from California Democrat Dianne Feinstein and Florida Republican Marco Rubio, Comey explicitly agreed.

The question still remains, however, of whether Mr. Trump’s Flynn comments constitute obstruction. At this point, definitive answers aren’t possible. For one, the president’s personal attorney has denied Comey’s claim that any such Flynn-related statements were made at all. For another, as all the legal community seems to agree, obstruction of justice is a complicated act consisting of numerous criteria that need to be met. But what’s certainly noteworthy for the time being is what Comey himself has said about the matter – and what he hasn’t said.

It’s important to observe that Comey at one point did indeed tell the Senate panel, that although he found the Flynn remarks “very disturbing, very concerning,” he also said

“I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct….that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there, and whether that’s an offense. “

Considering Comey’s willingness to expound at great length last July on Democratic presidential candidate Hillary Clinton’s innocence of the charge of criminally mishandling classified information on her personal server, that sounds coy at very best.

In addition, Comey was given repeated chances to characterize the Flynn statements as obstruction. For instance, Idaho Republican James Risch asked him whether the president “directed” or “ordered” him to “let it go.” Comey responded, respectively, “Not in his words, no” and “those words were not an order.”

Comey then added that “I took it as a direction” because “this is a president of the United States with me alone saying I hope this. I took it as, this is what he wants me to do. I didn’t obey that, but that’s the way I took it.”

Also pertinent: In response to a question from Rubio, Comey said that President Trump never asked him to “let go” the Flynn investigation after the February 14 meeting. Moreover, Comey told Republican James Lankford of Oklahoma that neither any White House nor Justice Department staffers, nor the heads of any of the intelligence agencies ever mentioned to him dropping the Flynn probe.

As Lankford concluded: “The key aspect here is if this seems to be something the president is trying to get you to drop it, it seems like a light touch to drop it, to bring it up at that point, the day after he had just fired Flynn, to come back here and say, I hope we can let this go, then it never reappears again.”

Keeping in mind that other shoes could always drop, that’s an observation I hope will remain front and center as the Russiagate probes – and press coverage – drag on.

Im-Politic: Initial Thoughts on the Trump Wars

Tags

2016 election, Andrew McCabe, Director of National Intelligence, FBI, hacking, Hillary Clinton, Im-Politic, impeachment, intelligence community, James Clapper, James Comey, John McCain, Justice Department, Lindsey Graham, Loretta Lynch, Michael T. Flynn, Richard M. Nixon, Russia, Russiagate, Sally Yates, The New York Times, The Washington Post, Trump, Wategate

Since I’m not a Trump or intelligence community insider, I’ve refrained from posting any items on the last crisis that began surrounding the administration starting with the president’s firing of James Comey as FBI Director. (I have commented on some aspects briefly on Twitter.) But since I’m a strong supporter of many positions championed by Mr. Trump both during the campaign and – to a lesser extent – in the White House, I thought that RealityChek readers would be interested in some observations about aspects of the uproar that deserve more consideration.

First and most important: Both current and former officials in the federal bureaucracy and even the intelligence community clearly hope to end the Trump presidency, and have decided to leak to the equally anti-Trump Mainstream Media even the most highly classified material if it’s judged to be potentially harmful to the president. Yet no leaks have revealed any evidence supporting the central allegation against the president: the charge that he or close aides colluded in any way with Russian efforts to fix the presidential election in his favor.

Given that the president’s foes long viewed the prospect of his victory with alarm, and given that they have sought to de-legitimize this victory since it unfolded the evening of last November 8, the absence of such a smoking gun after so many months is absolutely startling. If this evidence exists, what are President Trump’s adversaries waiting for?

P.S. – this argument pertains to retired General Michael T. Flynn, who advised candidate Trump and briefly became his White House national security adviser. Flynn has certainly acted in several instances like he’s had something (or things) to hide. But he’s been tracked for months by intelligence officials who – again – have been anything but reluctant to make troubling findings public. And nothing has emerged pointing to working with Russia to undermine the campaign of Democratic nominee Hillary Clinton.

One possible explanation? Many anti-Trump-ers are waiting for the 2018 mid-term elections to get closer and closer, in order to boost the chances of a Democratic landslide before the administration had a chance to rebut the charges conclusively – and before Congressional Republicans have a chance to dissociate themselves from Mr. Trump. And maybe they’re being joined by some establishment Republicans, who hope to recapture their party from the Trump-ist forces. And maybe both factions are motivated mainly by the belief that Mr. Trump is such an unprecedented danger to the republic that any means are warranted to remove him from the Oval Office.

If so, however, some big legal issues pop up.  For instance:  Are individuals privy to information about crimes – and in fact major crimes – withholding them from law enforcement authorities? 

Second: Not only has no evidence of collusion been leaked. The former head of the entire intelligence community has just made clear that, during his own prolonged probe of Russia’s efforts to interfere with the election (a related but clearly separate issue, for which strong evidence exists), he saw none.

In March, James Clapper, who resigned as Director of National Intelligence soon after the election, had tantalizingly hinted at the existence of such material by telling a reporter that the intelligence community “did not include any evidence” in its January report on the Russian campaign “that had anything, that had any reflection of collusion between members of the Trump campaign and the Russians. There was no evidence of that included in our report.”

But when pressed by “Meet the Press” anchor Chuck Todd to confirm whether such evidence existed, Clapper responded, “Not to my knowledge.” And when asked under oath in Senate testimony on three months later whether that statement was still accurate, Clapper stated, “It is.” In other words, Clapper’s probe, which reflected the work of 16 intelligence agencies including his own Director’s office uncovered no collusion evidence.

The issue was briefly muddied during that same hearing by former Deputy Attorney General Sally Yates. Like Clapper, an Obama administration appointee to her latest position, Yates initially answered the question about collusion by demurring. She explained that her “answer to that question would require me to reveal classified information. And so, I — I can’t answer that.”

As noted by questioner Senator Lindsey Graham – no admirer of President Trump – the FBI that Yates helped supervise as the second-in-command at the Justice Department was part of Clapper’s Russia investigation. After Yates indicated that the FBI was conducting its own separate counter-intelligence inquiry into Russia’s activities, Graham asked Clapper if the evidence found by the Bureau at that time “was not mature enough” to justify including in the broader intelligence community report.

Responded Clapper: “[T]he evidence, if there was any, didn’t reach the evidentiary bar in terms of the level of confidence that we were striving for in that intelligence community assessment.”

So again, a protracted look into Russia’s Election 2016 hacking produced no evidence of collusion that the intelligence community as a whole believed was solid enough to justify even hinting at in its publicly stated conclusions.

Third: One highly damaging allegation that’s been made over the last week was the Washington Post‘s claim that Comey requested more resources from the Justice Department for his investigation just before he was fired. The clear implication: The president became convinced that Comey was ramping up his investigation – which began in July – and decided to fire him in order to deny him the funds needed to do the job adequately. Such an action, of course, would at least strongly resemble obstruction of justice.

This article, however, too, looks fishy. Post reporter Ashley Parker did include an on-the-record flat Justice Department denial, but needless to say, government spokespersons lie or dissemble all the time. Much more difficult to dismiss: Acting FBI Director Andrew McCabe – who had been Comey’s former top deputy – stated in his own sworn testimony to Congress that he was unaware of any such request.

Yes, it’s true that Comey might have made the request without telling McCabe. But how much sense does that make? Nor can anyone accuse McCabe of being a Trump toady. His wife, Jill, had run for office in 2015 as a Democrat and had accepted $500,000 in campaign contributions from the political organization of a long-time Clinton family ally, Virginia Governor Terry McAuliffe.

Finally (for now!), comes the subject, as reported in The New York Times, of Comey’s alleged memo claiming that President Trump asked him to drop his Russia investigation in a February meeting. The former FBI Director will surely have the chance to confirm, deny, or otherwise elaborate on this story and the conversation in his own testimony under oath to Congress.

As suggested by prominent Trump critic Republican Senator John McCain of Arizona, if this request was made, we’re talking about a genuinely Nixonian case of obstruction of justice. (The “smoking gun” tape that played such a decisive role in Richard Nixon’s impeachment and removal in 1974 centered precisely on a decision by the former President to order the FBI to stop its Watergate investigation.)

As Mr. Trump’s critics like to say, however, the Times article “raises questions” – indeed, big ones. First, it’s crucial to note that, as Nixon himself admitted, his actions were intended to cover up criminal activity. As noted above, there’s no evidence yet of a Russia-related crime committed by the Trump administration.

More immediately, Comey has not exactly been shy about loudly expressing, acting on, and widely sharing his concerns about obstacles to official inquests and other behavior he considered improper. In 2004, he threatened to resign as Deputy Attorney General over post-September 11 domestic surveillance programs he viewed as illegal. Last July, he famously held a press conference in which he took the extraordinary step of moving beyond his position’s investigative role to explain extensively his decision to recommend against indicting Hillary Clinton for using a personal email system as Secretary of State. And earlier this month, Comey said – again, under oath – that he took this step because he unilaterally decided that his superior, Attorney General Loretta Lynch had lost credibility as a Clinton investigator because of her meeting with the candidate’s husband, former President Bill Clinton, in June.

It’s certainly possible that Comey has decided to keep firsthand evidence of clear Trump criminality under wraps for going on three months now. But it sure looks out of character.

All of the above notwithstanding, there’s no question that the President’s undisciplined and often contradictory statements understandably have created major suspicions – which are by no means confined to his enemies’ ranks. The consequently confused efforts by his surrogates to clean up these messes have only compounded the problem. And even if the administration had its communications act together, one indisputable lesson of Washington and other scandals is that shoes keep dropping. Moreover, numerous continuing global business ties and burgeoning official responsibilities of the President’s children, his son-in-law Jared Kushner, and his family keep failing valid smell tests.

At the same time, the clearly organized Dump Trump effort by numerous persons with detailed knowledge of seemingly the full range of the federal government’s most sensitive activities suggests that “RussiaGate,” at least, could be different. Not in the sense that damaging claims won’t continue to be made, but in the sense that the anti-Trump-ers might have already leaked their worst.

The only certainty at this point appears to be that the various Trump Wars will rage on for months at a minimum – which means that the valid policy grievances of the president’s supporters and so many other Americans will continue to be neglected by their government.