Im-Politic: Where Blame is Due

Tags

civil rights, Derek Chauvin, George Floyd, Hennepin County, homicide, Im-Politic, Jr., Justice Department, manslaughter, Martin Luther King, Mike Freeman, Minneapolis, Minneapolis protests, Minneapolis riots, Minnesota, murder, police killings, prosecutors, race relations, vandalism

Two sets of thoughts today about the killing of an unarmed, subdued black male crime suspect by a white Minneapolis police officer, and specifically who s to blame – for starters – for its too often violent aftermath.

>First, muddled thinking is abounding about the different categories of groups and individuals involved in this past week’s upheaval. And the problem centers on those who have acted violently.

It should be, but clearly isn’t, obvious that the arsonists and window-smashers and brick-throwers etc mustn’t simply be divided between locals and outside agitators, or between those whose anger is longstanding and genuine and those who have simply gotten caught up in mass hysteria. For if the typology used even for the violent participants isn’t valid, it’s unlikely that the country’s collective response will be constructive.

In my view, none of the violence is acceptable in the slightest – in the sense that its outbreak or continuation can be safely tolerated by any governmental authority. So I’m not completely with the late Rev. Dr. Martin Luther King Jr’s position that “a riot is the language of the unheard.” I say “completely” because it’s crucial to look at the targets of the violence.

Specifically, rioters who attack police stations and vehicles, or government buildings, or even properties with clearly symbolic importance (e.g., a stock exchange) undoubtedly are assailing a system they consider oppressive, and that they believe prevents the peaceful attainment of their objectives (which could in principle even include bringing on anarchy).

I don’t agree with this view because I don’t accept the underlying analysis. But it’s logical. It’s coherent. And it’s principled. At the same time, it can’t be accepted, because a widespread breakdown of order would threaten essential levels of personal safety and well-being for the vast majority of Americans. Which means that these rioters (and their sympathizers) need to recognize that the authorities are justified in using any legal means needed to stop and/or prevent this violence. In other words, attack this system if you will, but don’t complain when it exercises its right to self-defense.

Rioters who attack other targets – like businesses or other sites without symbolic importance – may be motivated by genuine anger against an oppressive system. But ethically speaking, their actions are even less defensible. The best that can be said of them is that they’ve acted without the simple judgment and self-control that’s also needed for society to function satisfactorily. So that society has a legitimate interest in using any legal means necessary to stop and/or prevent their violence. And their sincerity consequently doesn’t warrant lenient treatment, either.

As for the looters – they’ve clearly lost the moral right to carry a social or racial justice warrior ID card. They’re nothing better than common thieves who deserve common thief treatment from the criminal justice system, and no sympathy whatever from their fellow citizens.

>Second, however strong my conviction that none of this week’s violence is acceptable, I can’t shake the feeling that the Minnesota state authorities made the crucial mistake by failing to indict the police officer in question, Derek Chauvin, much faster.

After all, much of violence was sparked by a belief that, despite the unmistakably incriminating video evidence, the authorities were taking much longer in arresting Chauvin than they would have taken in dealing with non-white suspects (even in more ambiguous circumstances).

And in this instance, they were absolutely right. The lion’s share of the blame here goes to Hennepin County (Minnesota) Attorney Mike Freeman, whose first instinct was to announce that “We are going to investigate it as expeditiously, as thoroughly and completely as justice demands. Sometimes that takes a little time. And we ask people to be patient.”

He continued:

“That that video [of the killing] is graphic and horrific and terrible and no person should do that. But my job in the end is to prove that he violated criminal statute. And there is other evidence that does not support a criminal charge. We need to wade through all of that evidence to come to a meaningful determination and we are doing that to the best of our ability.”

But however reasonable and responsible and even necessarily fair these comments may have sounded, they were conspicuously timid to anyone with any familiarity with the criminal justice system. For there was no intrinsic need – and certainly no need in this case – for Minnesota authorities to conduct the kind of relatively protracted pre-arrest investigation of this killing that Hennepin County Attorney Mike Freeman described in a press conference yesterday.

After all, the video (whose authenticity no one has challenged) shows the action in question and Chauvin’s involvement undeniably. Would Freeman call for a detailed investigation if he saw a security camera recording of an unmasked thief robbing a liquor store?

Sure, there was the question of specifying the charges against Chauvin. Given the above categories of murder and manslaughter (and in some states, but not Minnesota, “negligent homicide”), that’s not a no-brainer. (On Friday, Freeman announced them to be third-degree murder and second-degree manslaughter.)

But not even these decisions are always or even typically based on meticulous examinations of available evidence. Prosecutors enjoy considerable discretion, and it’s common to file a more serious charge in order to create the worst-case certainty of a lesser conviction. In any event, an experienced District Attorney shouldn’t need three days to make up his or her mind. Which means that Freeman’s dithering surely, and needlessly, fed volatile, racially-tinged suspicions of the criminal justice system.

Where more careful investigation may be justified is in the second, and separate, related probe of the Floyd killing that will be conducted by the federal government. Under the U.S. Constitution, most crimes (except for those designated as federal offenses) are dealt with by the states. These include unlawful homicides like the one Chauvin allegedly committed. (Legally speaking a homicide refers to any taking of one person’s life by another person, legally permitted or not.)

The federal government’s Justice Department, however, is responsible for enforcing federal civil rights law, and on Friday, Attorney General William P. Barr ordered an investigation into whether Floyd’s killing warrants prosecution according to those statutes.

In some instances, apparently, these prosecutions can be more difficult to conduct successfully than standard criminal homicide trials. So it wasn’t completely crazy for U.S. Attorney Erica MacDonald to talk about the the need to “methodically continue to gather facts” and compiling “all available information and thoroughly evaluate evidence and information obtained from witnesses.”   

At the same time, the Justice Department’s own guidelines seem to show that meeting this standard shouldn’t be especially challenging.for an indictment and even conviction in Floyd/Chauvin case given the video evidence, and in particular given the lengthy period during which Floyd clearly was in major distress at Chauvin’s hands:

“…the government must prove each of the following elements beyond a reasonable doubt: (1) that the defendant deprived a victim of a right protected by the Constitution or laws of the United States, (2) that the defendant acted willfully, and (3) that the defendant was acting under color of law. A violation …is a felony if one of the following conditions is met: the defendant used, attempted to use, or threatened to use a dangerous weapon, explosive or fire; the victim suffered bodily injury; the defendant’s actions included attempted murder, kidnapping or attempted kidnapping, aggravated sexual abuse or attempted aggravated sexual abuse, or the crime resulted in death. Otherwise, the violation is a misdemeanor.

“Establishing the intent behind a Constitutional violation requires proof beyond a reasonable doubt that the law enforcement officer knew what he/she was doing was wrong and against the law and decided to do it anyway. Therefore, even if the government can prove beyond a reasonable doubt that an individual’s Constitutional right was violated,[the statute] requires that the government prove that the law enforcement officer intended to engage in the unlawful conduct and that he/she did so knowing that it was wrong or unlawful. See Screws v. United States, 325 U.S. 91, 101-107 (1945). Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.”

So an argument can be made that the Feds were being too scrupulous by half, too.

Law enforcement should never be influenced by politics – much less by fear that unpopular indictments or verdicts will spark civil unrest. That’s a great recipe for mob rule. And as argued above, many of the rioters weren’t going to be appeased even by the swiftest Minneapolis indictments.

But the Justice Department has officially acknowledged the “sensitive nature of the constitutional and statutory issues involved [in dealing with civil rights crimes] and the desirability of uniform application of federal law in this field….” Which means that prosecutors need to demonstrate a little situational awareness. And that there’s a strong case that this was a test that both Minnesota and federal attorneys flunked in the Floyd/Chauvin case.

Im-Politic: Flynn-Flamm

Tags

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

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

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

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

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

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

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

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

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

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

Now comes something really important. Rice continued:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags

ABC News, Attorney General, Corey Lewandowski, Deputy Attorney General, Don McGahn, election 2016, George Stephanopoulos, Im-Politic, Jeff Sessions, Justice Department, Mueller Report, obstruction of justice, Robert S. Mueller III, Rod Rosenstein, This Week, Trump, Trump-Russia, White House Counsel, William P. Barr

The trade wars and resulting uproar have of course intensified lately due to President Trump’s threats to tariff Mexican imports to improve Mexico’s performance in helping ease the border crisis, and a New York Times report that his administration was mulling imposing levies on Australia in response to a surge in its aluminum exports to the United States.

But those developments – plus a terrific story in the Japanese press on metals tariffs that I’ll be posting about shortly as well – need to take a back seat today on RealityChek to a flagrant piece of fake news concerning the Mueller report’s conclusions propagated by a major broadcast media anchor that urgently needs to be debunked.

The culprit here is George Stephanopoulos, a top aide to Bill Clinton both during his first presidential campaign and his first term in the White House. The fake news involves his claim, made on yesterday’s This Week program, that in his report on Russian election interference and the responses of President Trump and his aides, the former Special Counsel Robert S. Mueller “laid out four incidents in the obstruction of justice section of the report that met all three criteria for obstruction of justice — an obstructive act, connection to an investigation, corrupt intent.”

His clear intimation was that Attorney General William P. Barr overlooked this major evidence and that his own decision (made in conjunction with his then Deputy, Rod Rosenstein, who decided to authorize a Special Counsel investigation of the above matters in the first place) to decline indicting the President was a transparently political effort to let Mr. Trump off the hook.

In fact, however, not only did the Mueller fail to identify four such incidents. The single set of incidents that could possibly qualify as an obstruction charge slam dunk – the President’s alleged efforts to remove Mueller himself as Special Counsel – was awfully weak beer.  Stephanopoulos might have two other groups of incidents in mind as well, but the case for so describing them is even feebler.

Before we proceed, however, keep in mind that in order to produce an obstruction conviction, a prosecutor needs to convince a jury, as with all criminal trials, that the defendant is guilty “beyond a reasonable doubt.” In addition, in order to decide to indict or to recommend an indictment, a government prosecutor must decide that “the admissible evidence will probably be sufficient to obtain and sustain a conviction….”

As I noted in my May 30 post, the Mueller report found “substantial evidence” that Mr. Trump committed obstructive acts in efforts to have Mueller fired (Vol. II, pp. 87 and 88). Ditto for the “connection to an investigation” and “corrupt intent” criteria for obstruction charges. (Vol. II, pp. 88-90).

But as I also noted, “even the substantial evidence [on the allegedly obstructive act count] simply ‘supports a conclusion.’ And there may be less to that conclusion than meets the eye. For couldn’t the presidential order to [then White House Counsel Don] McGahn to call Rosenstein have reflected “…concerns about Special Counsel team conflicts of interest?”

Regarding the critical matter of intent, Mueller wrote (Vol. II, p. 89) that “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct – and, most immediately, to reports that the President was being investigated for potential obstruction of justice.”

That verb “indicates,” though, is pretty wishy-washy, especially considering the (properly) tough standards long established by U.S. criminal law and Justice Department policy for bringing an obstruction charge. Why didn’t Mueller write that this substantial evidence “shows” or “demonstrates” that these Mueller-removing actions were linked to his ongoing investigation, which threatened the Trump presidency?

The first of the two other possible slam-dunk groups of incidents entails the President’s efforts to curtail the Mueller investigation (as opposed simply to firing the Special Counsel). This episode centers around Mr. Trump’s decision to send former campaign aide and frequent (unofficial) confidant Corey Lewandowski on a mission to tell then Attorney General Jeff Sessions to end the existing investigation into election 2016 and specific Trump-related matters, and concentrate his efforts on whatever foreign meddling might be threatening upcoming elections.

The second such group of events consist of other attempts made by Mr. Trump to direct Sessions to take over the Special Counsel investigation.

The report’s wording convince me, anyway, that Mueller believed that the Lewandowski-related incidents met the obstructive act and link to an ongoing investigation standards. Plenty of evidence is presented regarding intent as well.

But at this juncture, it’s necessary to point to other intent-related considerations that we know were influencing Mueller’s evaluation of these events. Specifically, as Mr. Trump has continually observed, the Special Counsel (Vol, I, p. 9) found no underlying crime (that candidate Trump or any member of his campaign either acted “as an unregistered agent of the Russian government or other Russian principal” or “conspired with representatives of the Russian government to interfere in the 2016 election”). Nor, even though this activity would not constitute a crime, did the investigation “establish that members of the Trump Campaign” even “coordinated with the Russian government in its election interference activities.” (Vol, 1, p. 2).

Although, as Barr noted in his March 24 letter to Congress announcing his decision not to indict Mr. Trump, the absence of an underlying crime does not preclude charging a defendant with obstruction, this absence “bears upon the President’s intent with respect to obstruction.” In other words, as I wrote on May 30, and as Barr made clear in a May 17 interview, Mr. Trump’s actions reflected his belief – which was both sincere and factually grounded – that he was being framed.

And guess what? Mueller agrees! On Vol. I, p. 7, his report states:

“[U]nlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.”

As for the Trump efforts to ensure that his then Attorney General take over the Mueller investigation, the report doesn’t even come to any identifiable conclusion about whether any obstructive acts were committed. (Vol. II, p. 112)

The only other group of incidents that might legitimately qualify for the “slam dunk” category centered on Trump’s order to McGahn to deny that he had asked him to firer Mueller.

At the same time, Mueller’s conclusion as to whether any obstructive act was committed here is anything but clear, either. As the report notes (Vol II, p. 118):

“The President’s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.”

There is some evidence that at the time the New York Times and Washington Post stories [reporting that such developments took place] were published in late January 2018, the President believed the stories were wrong and that he had never told McGahn to have Rosenstein remove the Special Counsel.”

In other words, the report is acknowledging these could have represented another group of Trump actions motivated by the sincere belief that he was being framed.

At the same time, the report states that “Other evidence cuts against that understanding of the President’s conduct.”

In sum, it’s obvious that contending that Mueller concluded that Mr. Trump was robustly indictable for even one of these sets of incidents rests on the shakiest of ground. Contending that the report found four such sets is nothing less than fiction. And the insinuation of a Barr cover-up is completely beyond the pale. Indeed, taken together, and given the various legal hurdles he needed to overcome to make a legitimate indictment recommendation, it’s obvious why – aside from the Justice Department policy barring the indictment of a sitting President – Mueller didn’t report to Barr that solid grounds existed even for a single obstruction charge.

In fact, as I also noted on May 30, the following was the most obstruction-friendly conclusion contained in the Mueller report – and it covers the above events related to the attempted Mueller firing:

“[T]here [is] a sufficient factual and legal basis to further investigate potential obstruction-of -justice issues involving the President.” (Vol. I, p. 12)

I.e., after a 2-year probe conducted by as many as 19 lawyers with the assistance of “approximately 40 FBI agents, intelligence analysts, forensic accountants, a paralegal, and professional staff ” that “issued more than 2,800 subpoenas under the auspices of a grand jury sitting in the District of Columbia; executed nearly 500 search-and-seizure warrants; obtained more than 230 orders for communications records under 18 U.S.C. § 2703(d); obtained almost 50 orders authorizing use of pen registers; made 13 requests to foreign governments pursuant to Mutual Legal Assistance Treaties; and interviewed approximately 500 witnesses, including almost 80 before a grand jury,” Mueller simply determined that reasons existed for continuing to investigate. (Vol. I, p. 13) And P.S.: He didn’t call them “substantial.”

If Stephanopoulos simply made a mistake by claiming that Mueller found four full-blown instances of Trump obstruction of justice, that’s fine – as long as he admits the error. Until he does, however, he’ll be as guilty of trafficking in fake news as he seems to believe Mr. Trump is guilty of obstruction.

Im-Politic: Mueller’s Sin of Omission on Obstruction

Tags

Attorney General, collusion, Don McGahn, election 2016, FBI, Im-Politic, impeachment, indictment, James Comey, Jeff Sessions, Justice Department, Michael Flynn, Mueller Report, obstruction of justice, Robert S. Mueller III, Rod Rosenstein, Russia, Special Counsel, Trump, Trump-Russia, William P. Barr

There’s no longer any legitimate doubt: Nearly six weeks after its release, almost no one with any influence on American public policy or public opinion has actually read the publicly available version of the Mueller report on Russian election interference and possible presidential obstruction of justice. And most of those who have read it either didn’t understand it, or are trafficking in misleading descriptions. P.S. Based on his brief farewell remarks yesterday, that list includes Special Counsel Robert S. Mueller III himself.

Those are the only logical conclusions that can be drawn from the continuing insistence that, to quote Mueller, President Trump would have been charged in the report with the crime of obstructing justice but for “long-standing Department policy, [that] a President cannot be charged with a federal crime while he is in office. That is unconstitutional….The Special Counsel’s Office is part of the Department of Justice and, by regulation, it was bound by that Department policy. Charging the President with a crime was therefore not an option we could consider.”

Was Department policy a major determinant of Mueller’s non-indictment decision? Of course. And Mueller made that clear both in his reports and in his brief public statement. But was it the only determinant? And, by implication, given Mueller’s declaration that his report’s findings did not “exonerate” the President on this score, did Attorney General William P. Barr behave improperly by issuing his own determination that, even leaving aside Justice’s presidential indictment policy, Mueller’s investigation did not produce evidence “sufficient to establish” presidential obstruction?

The answer to both questions is clearly “No.” And it’s not even necessary to rely on Barr’s denial, in his March 24 letter announcing the decision reached by he and then Deputy Attorney General Rod Rosenstein, that the determination “was made without regard to, and was not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”

It’s not even necessary to believe Barr’s May 1 testimony to the Senate Judiciary Committee that, at a March 5 meeting with Mueller, “in response to our questioning, [Mueller stated] that he emphatically was not saying that but for the [Justice Department policy] he would have found obstruction. He said that in the future the facts of the case against the president might be such that a special counsel would recommend abandoning the OLC opinion, but this is not such a case.”

These Barr statements can be ignored because Mueller’s April 18 report itself not only gathered abundant evidence bearing on the obstruction charge. It declared that it was inconclusive. To quote from the report (Volume II, p. 8. All subsequent page references are to this Volume unless otherwise noted.) “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.” And the report’s detailed discussions of ten Trump-era potential obstruction of justice episodes makes clear that the difficulties arose precisely because his team found significant evidence on both sides of the issue.

As a result, the most obstruction-friendly conclusion that Mueller and his aides reached was that “there was a sufficient factual and legal basis to further investigate potential obstruction-of -justice issues involving the President.” (p. 12). In other words, an indictment decision was anything but a slam dunk. And after a protracted probe involving the questioning of literally hundreds of witnesses, all that the Special Counsel could state with high confidence was that a case can be made.

Moreover, the report spent so much time weighing the kind of evidence that would be used in a normal obstruction case that an entire section was devoted to summarizing “the law interpreting the elements of potentially relevant obstruction statutes in an ordinary case. This discussion does not address the unique constitutional issues that arise in an inquiry into official acts by the President.” (p. 9)

The obstacles to indicting Mr. Trump for obstructing justice came through loud and clear in the Mueller report’s analysis of what’s often portrayed as the leading candidate for such a charge – the President’s alleged order to his then White House Counsel Don McGahn to fire Mueller. According to the Mueller Report (on p. 87):

“A threshold question is whether the President in fact directed McGahn to have the Special Counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had simply wanted McGahn to bring conflicts of interest to the Department of Justice’s attention….Some of the President’s specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.”

It’s perfectly valid to note that the “substantial evidence” cited here surely outweighed in Mueller’s mind the evidence about presidential language recalled by McGahn – evidence that wasn’t even given an adjective. Yet readers are told that even the substantial evidence simply “supports a conclusion.” And there may be less to that conclusion than meets the eye. For couldn’t the presidential order to McGahn to call Rosenstein have reflected the same concerns about Special Counsel team conflicts of interest?

On the question of intent, which matters greatly in obstruction cases, Mueller wrote (p. 89) that “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.

I’m not a lawyer, but could someone please explain to me why that “substantial evidence” is so all-fired incriminating? And as for this claim (p. 90) – “There also is evidence that the President knew that he should not have made those calls to McGahn” – that doesn’t exactly strike me as “Lock him up” material.

Muddying the waters even further are the aspects of possible obstruction-related episodes for which the Mueller Report presents no judgment on the evidence in terms of adjectives or other descriptions.

For example, regarding the President’s conduct with respect to the investigation of his (quickly fired) national security adviser Michael Flynn during the transition period, the report simply states (pp. 46-47):

“As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with [Russian Ambassador to the United States Sergey] Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge….

“Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017. The evidence also does not establish that Flynn otherwise possessed information damaging to the President that would give the President a personal incentive to end the FBI’s inquiry into Flynn’s conduct.

“Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end “the whole Russia thing.”

No bottom line is presented.

Similarly (p. 154), the report’s discussion of the “nexus” issues raised by presidential conduct toward his former lawyer and all-around fixer Michael Cohen (focusing on the obstruction-relevant possibility that an individual being investigated knew that certain actions could bear on certain official proceedings ranging from judicial or grand jury actions to Congressional probes) simply observed:

“The President’s relevant conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.”

One powerful overall conclusion, though, can easily be reached after reading the entire Mueller Report, and it bears on the crucial obstruction-related consideration of whether an individual acted with corrupt intent. As Barr observed in a May 17 interview with Fox News, Mr. Trump’s actions sprang from the genuine – legally non-corrupt – conviction that Mueller’s investigation of his record, along with the Obama administration’s surveillance of his campaign and the presidential transition, was a “witch hunt and a hoax.”

Continued Barr:

“[A]t the time, he was saying he was innocent and that he was being falsely accused. And if you’re falsely accused, you would think [it] was a witch hunt. … He has been hammered for allegedly conspiring with the Russians. And we now know that was simply false…. I think if I had been falsely accused, I’d be comfortable saying it was a witch hunt.”

At least as important, the Mueller Report itself supports this interpretation in many instances. For example:

“[U]nlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.” (p. 7)

“Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election.” (p. 47)

“[Then Attorney General Jeff] Sessions said he had the impression that the President feared that the investigation could spin out of control and disrupt his ability to govern, which Sessions could have helped avert if he were still overseeing it. (p. 51)

“On Saturday, March 25, 2017…the President called [Director of Intelligence Daniel] Coats and again complained about the Russia investigations, saying words to the effect of, “I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS, they’re all over me with this.” (p. 56)

“In addition to the specific comments made to Coats, [the CIA Director Mike] Pompeo, and [then National Security Agency Director Admiral Michael] Rogers, the President spoke on other occasions in the presence of intelligence community officials about the Russia investigation and stated that it interfered with his ability to conduct foreign relations.” (p. 57)

“The evidence shows that the President was focused on the Russia investigation’s implications for his presidency- and, specifically, on dispelling any suggestion that he was under investigation or had links to Russia.” (p. 61)

“Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on [then FBI Director James] Comey’s representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished.” (p. 61)

President Trump “told Comey that ‘he was trying to run the country and the cloud of this Russia business was making that difficult.'” (p. 61)

“The President…told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders.” (p. 62)

“According to [then White House adviser Stephen K.] Bannon, the President said the same thing each time: ‘He [Comey] told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.'”

“We also considered why it was important to the President that Corney announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia.” (p. 76)

“The President wanted Sessions to disregard his recusal from the investigation, which had followed from a formal DOJ ethics review, and have Sessions declare that he knew ‘for a fact’ that “there were no Russians involved with the campaign” because he ‘was there.’ The President further directed that Sessions should explain that the President should not be subject to an investigation ‘because he hasn’t done anything wrong.'” (p. 97)

“[T]he President knew that the Russia investigation was focused in part on his campaign, and he perceived allegations of Russian interference to cast doubt on the legitimacy of his election.” (p. 97)

“[T]he evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election….” (p. 157)

As I wrote in an April 21 post, I believe that, because he had no reason to believe that a nearly complete version of his report (whose only required audience was the Attorney General) would be made public, Mueller acted perfectly appropriately in including a judgment that his investigation did not exonerate Mr. Trump on the obstruction question. For he was trying to impart information to Barr.

But Mueller has done the country a grave disservice by stressing the Constitutional barriers to indicting the President on this score. His report plainly demonstrates that he and his staff spent enormous amounts of time probing the traditional legal bases for an obstruction charge, and found considerable evidence to support decisions both to indict and not indict had Justice Department policy permitted such a step to be considered. And his farewell remarks yesterday were an inexcusable missed opportunity to clarify these matters.

As for Barr’s decision to file no obstruction charges, he and Rosenstein just as plainly saw the amount of evidence supporting such a conclusion, and quite reasonably judged that the obstruction allegations could not be proved “beyond a reasonable doubt” had Justice’s reading of the Constitution permitted a case to be brought. Moreover, as Barr’s May 17 press interview demonstrates, he believed that the President’s relevant words and deeds stemmed from his conviction that he was being framed – a conviction borne out by Mueller’s findings not only that the evidence was “not sufficient to support criminal charges” on any grounds against any Trump campaign officials who had contacts with the Russian government, but that no members of the campaign had “coordinated with the Russian government in its election interference activities.” (Vol I, pp. 9,2)

Now that Mueller’s investigation is finally, officially, totally over, Congress, of course, has every Constitutional right to launch impeachment proceedings. For impeachment charges can properly include deeds that are not strictly speaking crimes. But it’s crucial to note that, from a legal standpoint, Mr. Trump is now in the clear. And although technical objections like Mueller’s can be raised to the President’s “no collusion, no obstruction claims,” his own report shows that they’re more than accurate enough.

Im-Politic: Mueller, Barr, and Beyond

Tags

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: 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.

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

Tags

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Im-Politic: An Overlooked Clinton Email Scandal

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2016 elections, Bill Clinton, CIA, classification, David Petraeus, emails, FBI, Hillary Clinton, Im-Politic, intelligence, John Deutch, Justice Department, national security, server, State Department

I’m not a national security lawyer and lack any on-the-job military or intelligence experience. But I can’t help thinking that one of the biggest reasons to be outraged about the scandal stemming from Hillary Clinton’s handling of official emails as Secretary of State is being missed.

There’s no doubt that Clinton’s campaign is on the line here. If the emails already found on her private server or thumb drive, or yet to be found or recovered, have contained classified material, she likely faces legal liabilities and would almost certainly need to bow out of the White House race. Two related, emerging Clinton defenses – that these materials actually weren’t sensitive in real-world terms, and that the government classifies too indiscriminately – should be moot points. Making and acting on such judgments isn’t an individual’s call. Ask retired top U.S. General and former CIA chief David Petraeus, and former Director of Central Intelligence John Deutch.

The former was convicted of sharing classified information with his lover, received a suspended sentence and a hefty fine, and avoided jail time thanks only to a plea bargain. The latter was found to have used inadequately protected computers in his home and while on travel to work with classified materials. An appointee of President Bill Clinton, Deutch avoided criminal prosecution due to a Justice Department decision considered so controversial that the former spy chief was still in legal jeopardy until January, 2001 – when he was spared by a president pardon.

Hillary Clinton, of course, set up an entire private computer system for handling official emails – an offense that’s arguably much more serious legally, and more threatening to national security, than those committed by Petraeus and Deutch.

Politically speaking, however, neither Petraeus nor Deutch was running for office – though Petraeus was often mentioned as a potential political star. Hillary Clinton’s quest for the presidency means that her likely computer problems aren’t only legal. Her judgment has already been called into question, and is sure to be slammed further the more she and her defenders insist that sensitive material wasn’t classified when she received it. Even if true, Clinton’s failure to understand that such memos and emails needed special protection mocks her claim to possess the experience needed to lead effectively.

But as badly as all of these charges reflect on Clinton, the under-appreciated scandal, as I see it, is that her cavalier attitude toward official information and procedures is now diverting valuable government manpower and resources that are urgently needed to handle much more dangerous threats to national security.

With the nation confronted with ISIS and other terrorist groups striking targets overseas and inspiring attacks in the United States, nuclear challenges from Iran and North Korea, and belligerence from China and Russia, it’s appalling that anyone in the intelligence community or the FBI or the State Department is spending any time or money on figuring out whether and to what extent Hillary Clinton broke the rules. And the longer these issues remain unresolved, the longer this unconscionable and dangerous waste of U.S. defense and intelligence wherewithal will continue.