Several events last week disturbed me to my core as I realized the depths that Mr. Donald J. Trump and his administration will go to protect him from the rule of law and any sort of accountability. One of the prominent warning signals came in the form of Attorney General William Barr’s testimony before the Senate Judiciary Committee. In case you missed the live broadcast of his appearance, I will point out that it was not just what he said in response to questions but also how he said it. He was clearly annoyed that any Senator would question his decisions or his power as the head of law enforcement in the United States. Perhaps more chilling was his unadulterated and unabashed pro-Trump posture. He is no longer the Attorney General of the United States, or even the attorney charged with protecting the presidency as an institution. He clearly and forcefully defended Mr. Trump, the man, and not the president, the office.
Among many startling elements of A.G. Barr’s comments regarding the Mueller Report are what I see as the three most egregious points:
- The most troubling and news worthy defense of Mr. Trump by A.G. Barr was his insistence that the president is above the law. You read that correctly. In response to a question on obstruction of justice — and the fact that if Mr. Trump was successful in carrying out the obstruction, then that could be the reason that no conspiracy to work with the Russians was proved — Mr. Barr stated that under the Constitution the president has the authority to oversee investigations (including those involving the president) and therefore has the authority to shut them down. Thus, there can be no obstruction even if the president stops an investigation into himself because it is within his power. He further argued that this is especially true if the president thought the investigation “was not well founded” or “groundless.” The president has the ability to declare it so. “The president does not have to sit there, constitutionally, and allow it to run its course.” And there you have it. All the president has to do is say that there is no reason to investigate him and then no one can investigate him. (I assume a “hoax” is “not well founded.”) The Attorney General believes the president is above the law. (For info, Article I for the proposed impeachment of Richard Nixon was obstruction of justice.)
- The second most troubling aspect of A.G. Barr’s testimony is that he waffled mightily in response to a question as to whether the president or any one else at the White House asked him to investigate others. The context was a section of the Mueller Report that indicated Mr. Trump pressured the Department of Justice (DOJ) to re-open an investigation of Secretary Hillary Clinton and others of Mr. Trump’s political opponents after the election. He finally answered “I don’t know.” Right. (As Senator Kamala Harris (D-CA) pointed out, that’s not something one might forget.) It used to be a bipartisan agreement that a president using his office to investigate a political opponent on purely political grounds was an abuse of power (Article II of those brought against Mr. Nixon).
- The third most troubling comment was the confirmation by A.G. Barr that Special Counsel Mueller objected to the characterization of his report put forward by Mr. Barr on 24 March. In his statement summarizing the results of the Report he claimed that Mr. Mueller found no criminal evidence of conspiracy or obstruction. When the report was finally released, we found that was not true. Mr. Mueller wrote to Mr. Barr three days after his March summary to object to the characterization of his work. “The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature and substance of this Office’s work and conclusions.” Some Senators think that Mr. Barr lied in his previous testimony when he said that he had not heard any objections from Mr. Mueller when in fact he had already received and read the letter.
There were more, but then you can read it for yourself.
Let’s put a few more developments from recent days out there to paint a picture. Consider the following:
- In an on-air discussion with Sean Hannity of Fox News Mr. Trump said of the Mueller Investigation, “This was a coup. This was an attempted overthrow of the United States government.” Incredibly — although I don’t know why I continue to be surprised — Representative Kevin McCarthy (R-CA), the House Minority Leader, used the same word in response to a reporter’s question.
- The Trump Administration asserted that it will fight or ignore any House subpoena. They are also going to court to stop subpoenas of other entities where Congress is seeking information about the president and possible financial ties to other governments or foreign entities. “We’re fighting all the subpoenas.” (Contempt of Congress — refusing subpoenas — was Article III of those against Mr. Nixon.)
- Mr. Trump still does not acknowledge Russian interference in the 2016 election. According to the Mueller Report there were 251 contacts between Trump campaign officials and Russian-connected operatives including 37 meetings in person or via Skype. At least thirty-three campaign officials and advisers held the meetings or were aware of such meetings. Recall that the Mueller Report concluded that “the Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.”
On Friday, Mr. Trump and Russian Federation President Vladimir Putin held a nearly ninety minute phone call. Mr. Trump did not confront Mr. Putin about the attacks. President Obama may have been asleep at the switch and not done all that he could as his administration learned the breadth and depth of Russian intrusion, but he did talk directly to Mr. Putin to warn him against further meddling. He also imposed sanctions against Russia (which are the ones that presidential adviser Michael Flynn got into trouble over for calling the Russian Ambassador and saying that Mr. Trump would lift them). President Obama also expelled 35 Russian diplomats from the US and shut down two of their facilities in the US. Yet in his ninety minute conversation with Mr. Putin, Mr. Trump did not even bring up the Russian actions except to say that he and Mr. Putin did not collude and Mr. Putin should know because he was the one who was supposed to have done it. They then agreed that it was a hoax. You can’t make this stuff up.
So what does all of this mean?
When taken in their totality it means that we have a president with no boundaries, no oversight, and no sense of what is right. Mr. Trump still has not been held accountable for any of his outrageous actions and must surely think that the preponderance of evidence indicates that he never will be. Most certainly not by the Republicans in the Senate and not by the Attorney General. In fact, should someone, somehow initiate proceedings against the president, we already know that his A.G. says he can shut it down because, well, just because he can if he wants to.
It is also clear that Mr. Trump will not take Executive Action to stop Russian interference in the 2020 election. Although various agencies are working to shore up our defenses, there is no national level coordination and planning under way to prevent further meddling. Indeed, Mr. Trump and others in his administration implied that he would take their help again in 2020.(Russia if you’re listening…)
I think that the evidence above also indicates the Mr. Trump believes that the purpose of the federal government is to do his bidding and therefore he will not hesitate to use the full power and strength of the U.S. government to take down his political opponents. Apparently he will do so with the willing acquiescence of the A.G. and Republicans in the House and Senate.
Talk of coups really scares me. Do the president and the leader of the Republican Party in the House really think that the Mueller Investigation was an attempted coup? Stop and think about that for a moment. Anyone that threatens this president’s sense of well-being is a direct threat to him. Really? A coup? If they actually believe that then there is nothing he will stop at to prevent losing his power. And who will stop him? The House is being ignored (A.G. Barr won’t even show up to testify about the Mueller Report and his role in its release). No oversight there. The Senate trembles in its boots that one of their Republican colleagues will be the subject of a nasty Tweet. No oversight there. The Attorney General is now the personal defense attorney for Mr. Trump. No oversight there. The fix is in.
How far will he go? Declare martial law for some other self-created crisis? Nullify a close election he loses? Suspend the election because he Tweets out that the Democrats are attempting a coup? I am not sure what he is capable of doing.
Do I sound like a wing nut conspiracy dealer with too much time on his hands? I hope so.
And yet, the things I’ve mentioned above happened in only a matter of days. In other administrations, Republican or Democrat, there would be a major reaction to such a clear threat to our norms and national well-being. Sadly, most people just dismiss it as business as usual.
One theory floating around is that Mr. Trump and his advisers and supporters in Congress are pushing the Democrats in the House as hard as they can so that they are left with little recourse except for impeachment. Improbably, the Republicans think that an impeachment proceeding against Mr. Trump will help his approval ratings and “guarantee” his re-election in 2020. To them there is no down side as they know that the Senate would never convict him of the Articles of Impeachment. If that is the plan, how much further will the administration overflow the banks of good government to create a flood of institutional indignities to force the issue?
I worry that we are in the midst of the creeping destruction of our Republic. It is taking place in slow motion and in public so that most people who are rightly concerned with the day-to-day effort of just going to work, to school and of trying to keep food on the table don’t see it. Like everything associated with this president, it is hiding in plain sight.
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.