Im-Politic: Initial Thoughts on the Trump Wars

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.