Im-Politic: An Impeachment Red Herring from House Judiciary

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Constitution, Democrats, executive privilege, House Judiciary Committee, Im-Politic, impeachment, Jerrold Nadler, Mueller Report, Nancy Pelosi, Robert Mueller, Special Counsel, Trump

You know the Shakespearian expression, “The lady doth protest too much, methinks”? A wonderful way of describing someone who makes an argument that’s so over-the-top that it undercuts credibility?

I couldn’t help but think of it while reading the new report from the House Judiciary Committee’s Democratic staff on “Constitutional Grounds for Presidential Impeachment.”

I’m not talking about the substantive credibility of the case for President Trump’s impeachment (and/or removal from office). Instead, I’m talking about the case’s political credibility. Because this new study makes nothing so clear as the belief of the Committee’s majority Democratic members that they haven’t yet convinced enough of the American people that their efforts to oust the President are justified. And no doubt this conclusion applies to numerous others in the party’s House majority and in the Senate.

No one can have any legitimate issue with the Committee releasing such a report. As Chairman Jerrold Nadler of New York notes, the full committee staffs put out similar studies in connection with the 1974 impeachment proceedings against President Richard Nixon, and those against President Bill Clinton in 1998. (One important difference: Unlike the previous reports, this new study was the product only of one party’s staff.) And scholarship has of course advanced since then.

But in the process of “Addressing Fallacies About Impeachment,” the Democratic staff created some itself – that impeachment proponents are maintaining that impeachment “is not part of democratic constitutional governance”; that because a presidential election is coming up, a chief executive “is entitled to persist in office after committing ‘high Crimes and Misdemeanors’”; and that such a President’s voters consider themselves “entitled to expect that their preferred candidate will do so.”

These arguments are transparently fallacious because none of the President’s backers has questioned the legitimacy of impeachment per se, and none believes that, whatever the political calendar, any office holder deserves to keep on serving after committing impeachable offenses.

To use an obvious but instructive example, just ask yourself: If Mr. Trump had committed a crime in public view – e.g., stood “in the middle of Fifth Avenue and [shot] somebody,” as he once suggested during his campaign, in a (typically) hyperbolic efofrt to describe his popularity with his base – does anyone seriously think that even the staunchest Trump-er would respond (if there were no extenuating circumstances, like self-defense) “Nope, nothing impeachable here. Let’s just let him serve out his term.)

(Interestingly, outside the impeachment context, the President’s lawyers have argued that Mr. Trump, or any President, couldn’t be criminally indicted for such an act while in office, but that’s a separate issue from impeachment.)

What Trump supporters are saying is that, after literally years of investigations – by Congress and by a Special Counsel (Robert Mueller) whose integrity no Trump opponent questioned – no conclusive evidence of impeachable transgressions has emerged. And that given the approach of a new election that would give the public a chance to decide the President’s fitness for office (an opportunity that was not available for second-term Presidents Nixon and Clinton), the best course for the country’s sake is moving on from the current proceedings. In other words, they’re making a political and policy argument, not a Constitutional argument.

For example, the Mueller report specifically concluded that “the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election” and, more controversially, regarding obstruction of justice allegations:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

As numerous impeachment backers have pointed out, in his post-report press conference, Mueller did note, in the course of explaining the substantive and Constitutional obstacles to accusing a sitting President of criminal behavior, that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.” And of course that was a reference to impeachment.

But neither Mueller nor his report has stated that Mr. Trump actually has committed an impeachable defense, or explicitly said that enough evidence exists to warrant an impeachment inquiry. The Special Counsel simply observed that, if Congress has enough further problems with the President’s actions, it has a Constitutionally permitted avenue for pursuing these concerns.

It’s true that Congress has not yet had the chance to question under oath current and former administration officials who might be able to provide first-hand evidence of impeachable Presidential wrongdoing, and that the initial obstacle has been Mr. Trump’s refusal to permit them to testify.

That opposition could well stem from the President’s fear of what these figures might say. But it could also stem from legitimate concerns about executive privilege – a President’s recognized right, originating in the separation of powers created by the Constitution, to keep under wraps, including from Congress, internal deliberations of his or her administration.

This privilege is by no means absolute, and such Executive-Legislative branch disputes can be refereed by the courts. But Congress’ Democrats have declined to go this route either to compel such testimony, or free up impeachment-relevant records. In this regard, therefore, they so far have no one to blame for the absence of a “smoking gun” but themselves.

So why are the Judiciary Democrats serving up this red herring? I’m not a mind-reader, but Congress’ Democratic leaders acknowledge that they’re following the polls, and they show plain as day that, since late October, public support for impeachment and removal has fallen steadily – to the point where it’s clearly under 50 percent and still shrinking. And some evidence shows that the numbers are worse for the Democrats on this issue in key presidential election battleground states and Congressional districts crucial to their continued control of the House.

I’m not questioning whether House Judiciary Democrats, or any other Trump opponents, sincerely believe that the President has committed impeachable offenses, or whether they view the evidence as clearcut and even overwhelming. But the new Judiciary report’s baseless charge Trump supporters would oppose impeachment under any circumstances is strong evidence that, in this ultimately political debate, they’re far from making the political case.

Im-Politic: After Mueller/Barr, Can Trump Be Trump?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Im-Politic: Mueller, Barr, and Beyond

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(What’s Left of) Our Economy: Is the Offshoring Lobby Shaping U.S. China Policy Once More?

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Bob Davis, China, Logan Act, offshoring lobby, Robert Mueller, Special Counsel, The Wall Street Journal, Trade, Trump, U.S. Chamber of Commerce, {What's Left of) Our Economy

Quite the nugget that came near the end of The Wall Street Journal‘s April 29 report on the run-up to the upcoming U.S. trade talks with China scheduled to begin in Beijing this week:

“During the past few weeks, China’s ambassador to the U.S., Cui Tiankai, and the U.S. Chamber of Commerce’s executive director, Myron Brilliant, operating as a backchannel between the two governments, called on their extensive contacts in Washington to try to get talks going again.”

It’s bizarre on so many levels. Most notably, but far from certainly, is the possibility that President Trump (whose campaign for the White House emphasized remaking America’s China trade and broader economic policies specifically to promote U.S. growth and employment) is being significantly influenced by the Chamber of Commerce (which has long championed a China policy that helps America-based businesses supply the lucrative U.S. market from super low-cost and largely unregulated China)?

That would be some kick in the pants to Trump supporters expecting the President to keep his China trade campaign promises.

Alternatively, the President might simply have been using the Chamber as a means of communication. But this decision would be puzzling, too, since the United States maintains a big embassy in Beijing, complete with a full-fledged ambassador, as well as numerous other official ways to talk with the Chinese. What could the Chamber add?

It’s even more interesting, and potentially important, to consider the chances that the Chamber took the initiative. If so, could the Logan Act have been violated? You may remember that this is a U.S. law requiring criminal penalties for

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States….”

You might also remember that in the wake of former Trump national security adviser Michael Flynn’s admission of lying to the FBI in connection with the the Bureau’s Trump Russia collusion investigation, calls proliferated to prosecute him – and other Trump-ers – for violations of this (little used) eighteenth century statute. No one outside his office knows whether Special Counsel Robert Mueller is looking into this possibility in its own probe, but this former Chairman of the organization Common Cause believes he should. If the Chamber was acting as a free agent, might it be in legal jeopardy, too?

I asked Bob Davis, a co-author of the Journal piece, about how this backchannel began, and he responded that he couldn’t go beyond his description of the actions he was told about. Which is of course fair enough for any reporter.

What should be clear, however, is that, if the Journal report is accurate, neither of the above explanations should comfort anyone, whatever their views on U.S.-China trade issues. The former could signal the imminent shattering of a campaign promise – which could only fuel further corrosive public cynicism about American politics. The latter could indicate that special interests unaccountable to the American people keep wielding ever greater influence over the nation’s policies – including those extending “beyond the water’s edge.”

So let’s all hope that Davis and his Journal colleague will keep digging, and/or that other reporters start.