As we all ponder the significance to our country of the many protests and responses to the horrific murder of Mr. George Floyd at the hands of Minneapolis police officers, some local issues with national importance may be overlooked. In the end, all politics is local as former House Speaker Tip O’Neill once opined. In each locality and municipality we can work to improve our local community relationships and to ferret out the institutional racism that most citizens must now recognize.
Most striking to me in the video chronicling Mr. Floyd’s murder is the unabashed, even nonchalant way in which the officer pressed his knee into Mr. Floyd’s neck and held it there for 8 minutes and 46 seconds. It took my breath away to realize that the officers were equally unabashed at knowing numerous people were recording their actions even as those civilians pleaded with the officers to let him breathe. The officers just did not care. Clearly, they thought that there would be no retribution for their actions. There was no shame. While I firmly believe that by far the vast majority of law enforcement personnel are good people that do the right thing, in this case there must have been a climate in the Minneapolis police force that gave these officers a sense that there were no personal consequences to their actions.
In that vein, the climate in Washington D.C. is like a powder keg waiting for a spark to set it off. As in most cities, demonstrations have been quite peaceful, interrupted by periodic looting and destruction to buildings perpetrated by petty criminals and a small group of wing nut anarchists from both ends of the ideological spectrum. Yet, this is also a city problem that may have national repercussions.
You would not know that nearly all of the protests in the district, and indeed around the country, were peaceful if you only listened to the impeached Worst President Ever and all around vile human being Donald J. Trump or his side kick Attorney General William Barr. To me, the unprovoked attack on peaceful demonstrators assembled in Lafayette Square last Monday in the District, using rubber bullets, flash bang explosives and chemical weapons was a dangerous turning point. The only objective was to provide a photo-op for the president to strut around and hold up a Bible in front of historic St. John’s Church in a manner that seemed to convey that it was some symbolic object with which he was unfamiliar.
“When fascism comes to America, it will be wrapped in the flag and carrying a cross.” — of unknown origin.
Many of you have been to Washington D.C., either as tourists or because you live or work there. Still, it is worth reviewing the local political relationships to totally understand the danger inherent in the current situation. Washington is used to demonstrations. They happen all of the time. Many of them occur in Lafayette Square directly across (a closed) Pennsylvania Avenue from the White House. The Washington Police Department (officially the Metropolitan Police Department) is well trained and used to dealing with demonstrators. Here is the problem. The MPD does not have jurisdiction over the federal portions of the district. A plethora of federal law enforcement agencies have that jurisdiction depending on the situation. Additionally, Washington D.C. has a mayor and city council, but under the Home Rule Act passed by Congress in December 1973, any laws, regulations, actions by the city government and just about anything else that the Congress or federal government does not like can be over-ruled or thrown out. Indeed the federal government moved to federalize the MPD this week before vigorous political push back put that on temporary hold.
So here is the set up as I write. It is a very fluid situation that could change for the better or worse on short notice. The mayor and MPD in the district essentially have been shut out of dealing with their own citizens and controlling their own streets. The federal government, under the direct personal control of Mr. Trump’s very own Luca Brasi, Attorney General Barr, has taken over the city. As documented by the Washington Post, Washington is now an occupied city. There are at least sixteen federal law enforcement and military agencies with thousands of people on the ground. These agencies range from the obvious such as the FBI to the less obvious where agencies have been deputized and given unique authorities outside their charters to patrol the streets and make arrests including the Bureau of Prisons, the DEA, the ATF, ICE, Customs and Border Protection, to name a few. None of these organizations normally operate in the district to police the streets and many do not have training to manage peaceful demonstrations. More ominously, many have been recorded as being in riot gear without name badges, insignia or organizational badges. Never a good sign.
Additionally, 3300 National Guard troops from ten states are operating in the district. This is in addition to the 1200 National Guard troops from the district that are under federal control, rather than local. In the fifty states governors control the National Guard unless they are federalized in extreme conditions. The mayor of Washington has no control over the Guard coming from her own city.
Wait! There’s more!
1,600 regular Army troops from Ft. Bragg North Carolina and Ft. Drum New York are deployed in military bases within a 15 minute drive of downtown Washington. Secretary of Defense Mark Esper declared that he would not allow U.S. military forces to be used against Americans on the streets of the nation’s capital and ordered them back to their home bases. Within hours the president overrode that order and they remain in the D.C. area.
For what purpose, you may ask, does the city of Washington need 4500 Guard troops, 1600 regular Army troops and several thousand federal law enforcement agents? Good question, as the demonstrations in Washington have been generally peaceful and while large, not as big as in many other cities across the land.
There is one purpose and one purpose only. They are being used as political campaign talking points by Mr. Donald J. Trump so that he can say that he is “tough” and that the only way to deal with “domestic terrorists” (as of yesterday the FBI stated that they have no evidence of any terrorists among the protesters) is to “dominate” them. This while he sits in his basement and fortifies the White House — the People’s House — with extra defenses well beyond the grounds, and speaks of “vicious dogs” waiting to get at the demonstrators like some third world despot.
It is political theater.
But political theater with a cost. Not only does it trample the First Amendment rights of citizens to assemble peacefully to protest against policies — and yes, politicians — of which they disapprove, it significantly increases the mistrust on all sides and with so many elements at play it could easily blow up into a major tragedy where numerous civilians are injured or killed in the ensuing melee. It also puts law enforcement and troops in difficult situations that may cause retaliation and injury.
I put the heaviest blame on Congressional Republicans. Most cannot be found anywhere that will speak up against Mr. Trump’s boast to use American troops against American citizens. There is video available of reporters trying to get a comment from a large array of “name” Congressional Republicans. They should be embarrassed and hope that the tape gets lost. Most shuffled off while mumbling that they did not know anything about it. Some proclaimed they could not comment because they were late for lunch. Others just tried to pretend they did not hear the question. Yesterday, only Republican Senators Murkowski (Alaska) and Romney (Utah) finally spoke publicly against the use of troops in our cities. Shameful.
God help us if American Guardsmen or Army troops open fire on American citizens. I fear that we are not out of danger of that happening. In recent days former Secretary of Defense James Mattis, several former Chairmen of the Joint Chiefs of Staff and numerous Admirals and Generals have raised serious objections to the president’s boasts that he will send “thousands and thousands of heavily armed military personnel” to stop the “rioting.” All military personnel that I knew throughout my 28 year career in the naval service would join me in saying that we signed up to to defend the Constitution and to protect the American people, not to fight our neighbors in our cities’ streets.
There is no organized demonstration scheduled for tomorrow, Saturday 6 June. That is to say no one organization is planning for people to take to the streets like with the Women’s March. However, local media and social media are buzzing with news that people are going to come to Washington tomorrow in what could be one of the largest demonstrations so far. The MPD Chief is on record with his concern that it could be one of the largest the city has ever seen. More important than whether it is big, bigger or biggest is how the demonstrators and federal law enforcement forces face off against each other. Pray that it is peaceful but it has all the ingredients of a disaster.
As many of you know, I have worried for three years as to what lengths Mr. Trump will go to consolidate his power. His autocratic tendencies are well documented. He feels invincible after no one has stopped his relentless assault on our national norms and values. As an expert opportunist, it will not take much for him to make good on his promise to send troops into our streets to show that he is “very strong.” It helps him to successfully deflect from his total screw up in fighting the Covid-19 pandemic. Once the Army is deployed in Washington, what happens next? Where does he stop? How does it end? What if he loses the election and claims it was due to fraud? These are dangerous times.
I have faith in my fellow citizens. I have faith in our collective values. We will survive the struggle. In the short run, let’s hope that cooler heads prevail.
Two significant events took place yesterday. In one, the Attorney General went before the good people of the United States, and to put it kindly, embarrassed himself when he uttered misleading and deceptive statements regarding the Mueller Report. The other event was the release of the 448 page redacted report itself. In reading the Report it became clear that Attorney General William Barr is a shill for the President of the United States and will act in a manner consistent with many in the Trump Administration as outlined in the Mueller Report. Lying and abuse of power are the norm as is so evidently clear in the Report. (I have not yet read all of it — a compelling read, by the way. You can find it here. It reads a lot like a mob crime novel.) There is so much detail in the Report that it is easy to get distracted or to just stop and shake one’s head at the immoral and unethical activity detailed in it. For now, let’s take a big picture view of what did and did not come out of the Report.
Not to put too fine of a point on it, but the Report most certainly does not exonerate the president. It does not recommend prosecution of the president, but Special Counsel Robert Mueller clearly lays out a road map for Congress to act if it so chooses. More on that below.
The Report comes in two volumes, one on Russian-Trump Campaign coordination and one on obstruction of justice efforts. It is significant to note that the Report does not contain any counter-intelligence information. In other words, it doesn’t answer the question if one or more of those involved in the Trump Campaign and Administration were involved with a foreign power (or powers) to act in a way that furthered the interests of those countries at the expense of our own. A very major hole in the entire Report. It is also pertinent to remember, that Mr. Mueller took a very narrow view of his charter and stuck mainly to investigating Russian interference and the president’s subsequent reaction to that investigation. There are numerous “spin-off” investigations taking place in New York, Virginia, Washington D.C. and elsewhere. Those are not impacted by this Report.
When reading Volume I, remember that “collusion” is not a legal term. (Which makes it even more embarrassing that A.G. Barr said at least five times in his press conference that there was “no collusion.” Of course there wasn’t. It’s not a legal term. He was clearly pandering to an audience of one. But I digress.) Mr. Mueller does not use the term collusion anywhere in the report. The correct terms are conspiracy and coordination. Mr. Mueller said that the Trump Campaign activities did not rise to the level of a crime provable beyond the shadow of a doubt, but that there were numerous contacts between the campaign and the Russians. More specifically he wrote in the Introduction to Volume I that:
As set forth in detail in this report, the Special Counsel’s investigation established that Russia interfered in the 2016 presidential election principally through two operations. First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
Russia interfered in the election. Russia actively worked to help Mr. Trump and damage Secretary Clinton. The Trump Campaign knew about it and expected to benefit from it.
In Volume II the Special Counsel lays out the reasoning behind not charging Mr. Trump with the crime of obstruction of justice. This section is, to me, quite interesting and exceedingly relevant. To the contrary of A.G. Barr’s assertion that Mr. Mueller could not make a determination, the Report clearly states why they did not recommend prosecution of the president for his actions. Mr. Mueller followed the existing policy of the Department of Justice (DOJ) that a sitting president cannot be indicted. However, he says, a president can be prosecuted after he leaves office. Therefore, the Report states in the introduction to Volume II, that in order to safeguard “the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” A big hint that criminal prosecution may be advisable in the future or that the Congress can use the information in the near term.
Additionally the Report goes on to say that it would not be fair to accuse the president of a crime, even though he is not indicted, because without an indictment no trial could be held and if there was no trial, then the accused could not defend himself. In other words, under the rules we can’t indict a president, so we can’t bring him to trial, therefore we won’t say he broke the law, but we won’t say he did not either. A considerable difference from the way A.G. Barr depicted the situation. In fact, Mr. Mueller lays down a pretty compelling case that Mr. Trump probably did obstruct justice beyond a reasonable doubt.
Here is the kicker. In the introduction the Report says that:
If 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.
In other words, we can’t say he committed a crime because then we would have to act, but we cannot act while he is in office, but (hint, hint) we do not exonerate him. In fact, the only reason that Mr. Trump did not further obstruct justice was because some of his staff would not lie or act illegally on his behalf. As the Report puts it, “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”
Who can take action? The Congress. The Report also takes note of that fact. In a long discussion of the legal precedents and other factors governing presidential powers and Congressional powers as delineated in the Constitution, it states in part that,
Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers. The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those of courts and grand juries, from corrupt, obstructive acts regardless of their source.
The Report goes on to conclude that,
Finally, we concluded that in the rare case in which a criminal investigation of the President’s conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties. The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.
In the context of the full report, it seems that Mr. Mueller is trying to lay out a road map for the Congress to take action.
The real question is whether or not the Congress will act on this extremely damaging delineation of the rampant corruption and flouting of the norms that used to govern our presidents. Mr. Trump clearly has no interest in upholding his oath to defend the Constitution. Will Congress?
Many political arguments are underway as to the pros and cons of initiating impeachment hearings. One could argue that there should be no political considerations to be had. Either the Congress has the duty to begin such proceedings given what we know (which is only the tip of the iceberg) or it doesn’t.
It most definitely is not time to “just move along.” We must hold our elected officials to account. As the true magnitude of this Report sinks in we as a nation must make considered decisions as to how to deal with it. We either have a country of laws where no one is above the law or we do not. So far, it appears we do not. Even as I write this the president is in his lair at Mar-a-Lago using his Twitter feed to send out expletive filled expressions of rage to denigrate the Report, those that did the investigation, and those that had the courage to stand up to the president and refuse to do his bidding and told the truth about what happened.
Worse yet is that regardless of how one feels about Mr. Trump and what action should or should not be taken to hold him accountable, the evidence that the Russian Federation interfered in our 2016 election is irrefutable. And yet, the president, who took an oath “to preserve, protect and defend the Constitution of the United States” still refuses to acknowledge the attack on the United States.
That alone should be an impeachable offense.
My biggest concern is that once again the president will take away the lesson that he can get away with anything and not be held to account. Given his past performance, I think we can expect him to further ignore the law and to act outrageously. There is no one to stop him and he now has an Attorney General that acts as his personal attorney ready to protect him.
Let us hope that the House of Representatives continues to exercise their Constitutional duty to provide over sight of the Executive Branch of government. Otherwise, it’s “Katie bar the door.” Hang on for a wild ride.