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

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

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

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

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

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

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

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

As a result, the most obstruction-friendly conclusion that Mueller and his aides reached was

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

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

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

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

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

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

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

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

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

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

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

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

No bottom line is presented.

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

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

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

Continued Barr:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Im-Politic: The Mueller Letter Coverage Shows the Need for a Journalism Hall of Shame

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Attorney General, Im-Politic, journalism, Mainstream Media, media bias, obstruction of justice, Pulitzer Prize, Robert S. Mueller III, Special Counsel, The New York Times, Trump, Trump-Russia, Washington Post, William P. Barr

Here are two suggestions for the folks at Columbia University’s journalism school who each year award the Pulitzer Prizes for that so-called profession: First, in addition to citing reporters and editors whose work supposedly embodies journalistic excellence, they should identify news people whose performance is a complete disgrace. Second, they could easily kick off this practice next year by shaming the Washington Post and New York Times articles this morning revealing that Special Counsel Robert S. Mueller III has complained to Attorney General William P. Barr about Barr’s descriptions of his report on Russia’s interference with the 2016 presidential election and President Trump’s reactions to the Mueller probe.

Both pieces – and the reporters and editors responsible – completely mis-characterized the Mueller concerns that they eventually went on to portray accurately. And they committed the unforgivable journalistic (and broader ethical) sin of accentuating the negative when the case for focusing on the positive was at least equally strong.

Specifically, the thrust of the two pieces was that Mueller in a letter to Barr expressed objections to Barr’s March 24 letter to Congressional judiciary committee leaders summarizing the “principal conclusions reached by the Special Counsel and the results of his investigation,” and informing them of the status of Barr’s “initial review” of the report.

But any reader who finished the articles would discover that, contrary to the headlines and the opening paragraphs, Mueller was most irked not by any of Barr’s actions or writings, but by the press coverage. According to the Post reporters (who claim to have seen the Mueller letter), the Special Counsel did write to the Attorney General (his Justice Department superior) that the March 24 Barr communique to Congress

“did not fully capture the context, nature, and substance of this office’s work and conclusions. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”

(The letter has since been released.)

But farther into the story, readers are told that the following day, when the two spoke by phone, “Mueller said he was concerned that media coverage of the obstruction investigation was misguided and creating public misunderstandings about the office’s work, according to Justice Department officials.”

Moreover – and this is crucial – “When Barr pressed Mueller on whether he thought Barr’s memo to Congress was inaccurate, Mueller said he did not but felt that the media coverage of it was misinterpreting the investigation, officials said.”

So the question needs to be asked: Why wasn’t the emphasis in the Post story Mueller’s statement that Barr had accurately summarized his report, and that he thought the press coverage was awful? And by extension, why wasn’t the headline something on the order of “Mueller praises Barr summary as accurate; slams media interpretations”?

The Times story followed the same pattern and therefore embodied the same fatal flaws. In particular, it wasn’t until the seventh paragraph that readers learn that

“‘The special counsel emphasized that nothing in the attorney general’s March 24 letter was inaccurate or misleading,’ a Justice Department spokeswoman, Kerri Kupec, said in response to a request for comment made on Tuesday afternoon. A spokesman for the special counsel’s office declined to comment.”

As a result, it, too, could have been – and indeed should have been – structured along lines favorable to Barr, not critical of him. Indeed, here the argument for such an approach is even stronger than for the Post piece, since the evidence of Barr’s accuracy comes from a named official spokesperson, not from anonymous sources.

Last week, a major national poll found that American voters’ distrust of “political news” had hit an all-time high of 54 percent. The Post and Times coverage of Mueller’s words all but guarantees that new records on this score will soon be set – and is sending a message to the Pulitzer folks that something like a Hall of Shame is needed to start getting journalism off its current irresponsible track.

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?

Tags

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.

Im-Politic: Where’s the Collusion?

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2016 election, collusion, Donald Trump Jr., Hillary Clinton, Im-Politic, Jeff Sessions, Michael Flynn, Robert S. Mueller III, Russia, Russia-Gate, Special Counsel, Trump

Although you wouldn’t know it from the Mainstream Media coverage (see the especially egregious front page or home page of yesterday’s Washington Post), the biggest story told by the Justice Department indictments of Russians said to have meddled in American politics and the 2016 presidential election was not the additional evidence of this campaign’s existence, and how it undermines President Trump’s numerous statements denying or belittling Moscow’s efforts.

Instead, it was the evidence that, after eight months of investigation, Special Counsel Robert S. Mueller III has presented no reason to believe that anyone connected with the Donald Trump’s presidential campaign colluded with Russia to help him win the White House; that what his probe has found is a Russian meddling campaign with multiple, overlapping objectives that aimed to help several 2016 presidential hopefuls and roil American politics in many ways even (and especially?) after Election Day; and that this apparent Russian effort began long before anyone other than (possibly) Mr. Trump thought he would seek the presidency.

Interestingly, finding number two dovetailed with my post from a week ago, which spotlighted a New York Times story which made the point about Russia’s post-election aims going far beyond propping up President Trump.

Despite the media focus on the indictment’s description of the Russian campaign and its contrast with the president’s alleged indifference to it, it’s crucial to remember that this document is an indictment, not a legal conviction. The defendants still deserve the presumption of innocence when their day in court comes (assuming any will ever stand trial).

And despite the media focus on the Trump denial angle, it’s even more important to recognize how devastatingly the indictment undermines the collusion charge that’s constituted the main fear about Russia’s interference.

First, the indictment makes only one mention of any contacts of any kind between anyone involved in the Trump campaign and these alleged Russian operatives. It comes in paragraph 45:

“Defendants and their co-conspirators also used false U.S. personas to communicate with unwitting members, volunteers, and supporters of the Trump Campaign involved in local community outreach, as well as grassroots groups that supported then-candidate Trump. These individuals and entities at times distributed the [interference] ORGANIZATION’s materials through their own accounts via retweets, reposts, and other means. Defendants and their co-conspirators then monitored the propagation of content through such participants.”

Of course, the word “unwitting” is decisively important. It means that, the view of Special Counsel Mueller, the Trump-ers who were communicating with the Russians had no idea that they were dealing with agents of a foreign government. So by definition, they couldn’t have been colluding with Moscow.

Just as important, even though by now of course Mueller and his team know about controversial contacts between obvious agents of the Russian government and various Trump-ers that previously have ignited major controversy, the indictment never mentions them. These include the Russian U.S. ambassador’s two encounters with then-Senator Jeff Sessions, which ultimately led to Session’s recusal as Attorney General from the “Russia-Gate” investigation and Mueller’s appointment in the first place; and his conversations with former Trump administration national security adviser-designate Michael Flynn during the transition.

Nor does it mention the meeting in Trump Tower in New York City between one of Mr. Trump’s sons, his son-in-law and now senior White House aide Jared Kushner, and then-Trump campaign manager Paul Manafort, with a lawyer Donald Trump, Jr. was told was “a Russian government attorney.” Trump, Jr. was also told that this attorney (who, for what it’s worth, has denied any connections with the Kremlin) was offering what was described by the Trump, Jr. friend who instigated the eventual meeting as

“some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump…..”

Reportedly, the Special Counsel is investigating the meeting. But also, reportedly, his focus is not on the event itself but on statements that the President himself and top aides made on the subject that appear to be misleading, and that therefore could represent obstruction of justice. Obstruction of course is a serious offense, but the Trump Tower meeting itself clearly is more germane to the all-important collusion charges.

Moreover, the Special Counsel has had full access to the contents of all the wiretapped conversations between the other aforementioned prominent Trump supporters or advisers and the Russians with whom they met. (According to the CNN post linked above, the Trump Tower meeting was not wiretapped.) And apparently – again after months of investigation – nothing said at these meetings has convinced Mueller and his staff that collusion, or any indictable offense related to the Russia-Gate narrative, took place.

The second way in which the indictment undermines the collusion charge is by specifying that Mr. Trump was not the only political candidate that the Russians supposedly sought to bolster in the 2016 campaign, and that they actually began working against him immediately after the election.

According to paragraph 2, the Russian defendants:

“conspired with each other (and with persons known and unknown to the Grand Jury) to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016.”

In paragraph 6, the indictment states that “Defendants posted derogatory information about a number of candidates, and by early to mid-2016, Defendants’ operations include supporting the presidential campaign of then-candidate Donald J. Trump…and disparaging Hillary Clinton.” This charge restates the preceding point that supporting Mr. Trump was not the interference operation’s only goal. So does paragraph 10 (e), which refers to the Russians’ “stated goal of ‘spread[ing] distrust towards the candidates and the political system in general.”

Paragraph 33 accuses Moscow of writing “about topics germane to the United States such as U.S. foreign policy and U.S. economic issues. Specialists were also instructed to create ‘political intensity through supporting radical groups, [social media] users dissatisfied with [the] social and economic situation and oppositional social movements.”

Paragraph 43 refers to “operations primarily intended to communicate derogatory information about [Democratic nominee] Hillary Clinton, to denigrate other candidates such as Ted Cruz and Marco Rubio, and to support Bernie Sanders and then-candidate Donald Trump.” (Green Party candidate Jill Stein was also identified, in paragraph 46, as a politician backed by the operation.)

It’s clear that one of the Russians’ top priority was defeating Clinton. And the possibility still remains that Moscow believed it had so compromised Mr. Trump – e.g., through the salacious, though unverified, information in the Steele Dossier (compiled by a former British intelligence agent whose work of course was funded by the Clinton campaign) – that its ultimate aim was a Trump victory and an American president it could blackmail and manipulate on an ongoing basis.

Yet there’s another more obvious explanation for the anti-Clinton focus: She was widely viewed not only as the overwhelming favorite to win the Democratic nomination, but as the overwhelming favorite to win the fall election. Indeed, the latter belief lasted till election night itself. In other words, had one of the other Republican candidates defeated Trump, and become fully competitive with Clinton, it stands to reason that they would have become a major Russian target, too.

Further, the narrative emphasizing that the Russians viewed Mr. Trump as an ideal Manchurian Candidate completely falls apart upon considering two other indictment findings. First, the Russian interference campaign was conceived considerably before Mr. Trump declared his presidential candidacy – which on that day in 2015 was, to put it mildly, viewed as a long shot.

As stated in paragraph 3, “Beginning as early as 2014, Defendant ORGANIZATION began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election.” More specific references to a gearing up period in 2014 can be found in paragraphs 9, 10 (d) and (e), 29, 42, 58 (a), and in numerous descriptions of indicted individuals joining the operation and of their specific activities.

Moreover, as common sense would indicate, for an operation (especially one this substantial) to be running in 2014, planning, and the original formulation of the plan, would have needed to start even earlier. That’s why in paragraph 10, the indictment tells of the umbrella organization registering as a “Russian corporate entity” with the Russian government “in or around July, 2013.” If you had any inkling then that a Trump candidacy in 2016 was remotely conceivable, patriotism should impel you to join a U.S. intelligence agency immediately.

The second finding undercutting the idea of placing a manipulable traitor in the White House is the evidence presented that, almost immediately after Election Day, the Russians began stoking and coordinating both pro- and anti-Trump activities. You can read about them in paragraph 57. And then ask yourself how “protesting the results” of the election and fostering the idea that “Trump is NOT my President” were supposed to enable the victor to aid and abet a pro-Moscow agenda, as opposed to reducing his effectiveness?

For all I know, a new collusion bombshell charge, or an actual smoking gun, could be produced tomorrow in the media. New Mueller announcements or the various Congressional probes may seal the collusion case as well – perhaps with new evidence about the activities of Sessions or Flynn, or other individuals implicated in these events in various ways. (Although again, why haven’t the contents of the wiretapped conversation sufficed?)

But as long as they don’t, especially given the intense hostility of the President’s opponents – including those inside the government – the collusion case is going to look increasingly flimsy, and increasingly political. For if there really might be a traitor in the Oval Office, there’s simply no time to lose.

In the meantime, the “Russia-Gate” theory that looks best is the one I described last week – a chaos-focused operation aimed at whipping up as much American political division and sheer anger as possible, through whoever could advance this goal at any given moment, and whoever prevailed in 2016. Perhaps it’s too cynical (and partisan) to venture that the longer the scandal charges remain in the air, the more the Democrats and Trump’s establishment Republican foes benefit. But there’s no doubt that, the longer the Russia-Gate fight drags on, the better for Moscow and all of America’s foreign adversaries.