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.

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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

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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.