Are Congressional Republicans Patriotic or Not?

Trump obstructs justice, and his fellow Republicans still stand behind him. At what point, if ever, will Paul Ryan or Mitch McConnell begin defending the Republic?

We’ve already been through a number of explanations for why Jim Comey was fired on Tuesday, beginning with the improbable story that Deputy Attorney General Rod Rosenstein was so incensed by Comey’s unfair treatment of Hillary Clinton (“we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation”) that he wrote a memo that led to Comey’s firing; Trump and Attorney General Sessions took no initiative, they simply rubberstamped Rosenstein’s recommendation.

But by Thursday that narrative had crumbled, and Trump was telling NBC’s Lester Holt he had intended to fire Comey “regardless of recommendation” (making liars out of all his own spokespeople, including Vice President Pence). He went on to describe a very odd and disturbing scene: A week after the inauguration, he had dinner with Comey; Trump saw this as Comey asking to stay on as FBI director. (That in itself would be odd; FBI directors have 10-year terms and only one has ever been fired — an exception that was truly exceptional. In general, FBI directors just stay on after administrations change; they do not need to ask.) During that dinner, Trump asked if he was under investigation and Comey assured him he was “in the clear”.

This came along with other unforced admissions that Lawfare’s Bob Bauer analyzes like this:

The picture that Mr. Trump has managed to create so far consists of the following:

  • The admission that he sought repeated assurances about his legal exposure in an ongoing criminal investigation

  • The pursuit of those reassurances at a time when he was quite actively holding open the possibility that Mr. Comey might not hold onto his job. (Apparently one of these conversations took place over dinner—as it was being served, was the President making it clear that Mr. Comey might have “to sing for his supper”?)

  • The admission that in firing Mr. Comey, he was moved decisively by his frustration over the FBI’s handling of the Russia probe investigation.

  • The President’s repeated very public statements, heard by all, including those charged with investigating the matter, that he views the Russia probe as having no merit.  Responsible for the faithful execution of the laws and the integrity of the system of justice, Mr. Trump has chosen to actively dispute the basis for an ongoing FBI investigation that affects his interests.

  • The repeated adjustments to the story the White House originally told about the circumstances surrounding the decision to dismiss Mr. Comey. As noted in the earlier posting, it is not advantageous to somebody under suspicion to be altering his story—or, in this case, changing it in every material detail.

So that’s not what his enemies accuse him of, that’s what he himself has admitted to. Law professor Laurence Tribe comments:

To say that this does not in itself rise to the level of “obstruction of justice” is to empty that concept of all meaning.

Bauer’s only argument that this behavior might not constitute obstruction is based on Trump’s ignorance of and disrespect for the ordinary limits of a president’s authority:

The President may have landed himself in these difficulties simply because of his insensitivity to the requirements for safeguarding the integrity of the legal process. That is to say, he may not have intended to commit anything like obstruction, or any other crime, but has instead blundered into this position because he does not recognize or respect norms and does not appreciate legal process or institutional boundaries.

Helen Klein Murillo reviews the legal standards for obstruction and concludes not that Trump is innocent, but that he would be hard to prosecute.

Even if [Trump or Attorney General Sessions] had other reasons or goals—including perfectly lawful ones, such as concerns about the public’s perception of the FBI and the Director—if obstructing or impeding the Russia investigation was a goal, that would constitute obstruction of justice. Therefore, inquiries as to whether Trump’s conduct amount to obstruction will center on his motives.

However, the statutory bar is exceedingly high.

Murillo concludes that there is really only one body that can handle this case: Congress, as an impeachment hearing. Tribe agrees.

Some are arguing that we’re not at the point of impeachment yet, because the damage done by Comey’s firing will be minimal if Trump just appoints a replacement with unassailable integrity. Senator Jeff Flake, a Republican who sometimes seems open to questioning Trump, says: “Let’s see who he nominates to replace Comey.”

But Matt Yglesias believes that no replacement can undo the damage already done:

For Senate Republicans, the idea of the Good Comey Replacement serves a critical psychological and political role. It allows them to acknowledge that there was something alarming and suspicious about Comey’s dismissal without committing them to a fight with the Trump administration. They simply need to convince the White House to nominate someone well-qualified and then move on to cutting taxes.

But the Comey firing bell can’t be unrung. The independence of the FBI is now inherently compromised. And faced with a White House that’s willing to violate the norms governing presidential involvement in the investigative process, either there will be the forceful pushback from the legislative branch that most Republicans want to avoid or else oversight of the Trump administration will be woefully lacking. There’s no middle path.

If Congress just OKs a new director — whoever it may be — and moves on, then we are in a new reality: A president can fire anyone who investigates him without any real consequence. That’s never been true in America before, and it would be a big step towards turning us into a Potemkin Republic, like Putin’s Russia, where we maintain all the facades of democracy and the rule of law, but in reality the leader simply does whatever he wants. This goes along with other new realities we’ve seen Congress accept since January 20, like this one: A president no longer bears any responsibility to prove to the public that he is not corrupt, but can openly profit off his presidency — perhaps even taking money directly from foreign governments — while keeping the full extent of that profit secret.

Encroachments like this will continue until Congress draws a line. At root, Trump is a bully, and that is how bullies behave: They stop when someone stops them, not before.

Recall that during the campaign Trump said: “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.” At the time, that sounded like hyperbole — a joke. A year from now it might not. Because that’s also how bullies behave: They joke about things — and then they do them.

Unfortunately, Congress is controlled by Republicans, who have shown no interest in standing up to Trump no matter what he does. Occasionally a few will shake their heads, or express “concern”. (Senate Intelligence Committee Chair Richard Burr describes himself as “troubled” by the Comey firing. Senator Ben Sasse is “disappointed” by the timing of it.) But they will not demand Trump’s tax returns, or question the legal basis of his attack on Syria, or call for an independent special prosecutor, or do anything else that has the potential to call Trump to account.

We all imagine that there is a line somewhere, a boundary between what will be tolerated and what won’t. But then Trump crosses what we thought was a line, nothing happens, and we start imagining a new line. Nicholas Kristoff writes:

For months, as I’ve reported on the multiple investigations into Trump-Russia connections, I’ve heard that the F.B.I. investigation is by far the most important one, incomparably ahead of the congressional inquiries. I then usually asked: So will Trump fire Comey? And the response would be: Hard to imagine. The uproar would be staggering. Even Republicans would never stand for that.

Alas, my contacts underestimated the myopic partisanship of too many Republicans. Senator Charles Grassley, an Iowa Republican, spoke for many of his colleagues when he scoffed at the furor by saying, “Suck it up and move on.”

Will it be different if Trump defies court orders? If he starts a war against North Korea without consulting Congress? If Jared and Ivanka lead a takeover some major defense contractor? If critical journalists like David Fahrenthold start disappearing or mysteriously dropping dead? If Trump cancels future elections and declares himself President for Life?

You’d like to think there’s a line, a point at which elected Republicans will start to defend the Republic. But is there? Another former Justice Department official who appears to have been fired while investigating the Trump administration, Preet Bharara, writes in today’s Washington Post:

History will judge this moment. It’s not too late to get it right, and justice demands it.

But it’s not at all clear that justice’s demands will be satisfied. By now, I think we have to start questioning the patriotism of people like Mitch McConnell and Paul Ryan. Max Boot, who says he recently left the Republican Party “after a lifetime as a loyal member”, sums it up like this:

Like other conservatives, I care about tax cuts and military spending increases. But I care even more about the rule of law — the only thing that prevents our country from going the way of Venezuela, Russia or Zimbabwe. … While the president has the authority to fire the F.B.I. director, to do so under these circumstances and for these reasons is a gross violation of the trust citizens place in the president to ensure that the laws “be faithfully executed.” If this is not a prima facie case of obstruction of justice — an impeachable offense — it’s hard to know what is. Republicans would understand this and say so if these actions were taken by President Hillary Clinton. But when it comes to President Trump, they have checked their principles at the Oval Office door.

Recalling the three Republican leaders who went to the White House to tell President Nixon it was over, Boot wonders:

Are there even three principled Republicans left who will put their devotion to the Republic above their fealty to the Republican Party?

I fear the answer to that question.

Nicholas Kristof sounds a similar note:

[T]his is the moment of truth for G.O.P. moderates like Senators Susan Collins, Jeff Flake and Bob Corker, who may hold decisive power. Will they align with George Washington’s vision of presidents as servants of the people or with Trump’s specter of His Sacred Majesty, the Big Man of America? Will they stand for justice, or for obstruction of it?

I suspect they will make noises about justice, but in the end not stand up for it, at least not this time. And then, after Trump does something even worse in a month or two, there will be another moment of truth, and then one after that.

At some point will the damage to the Republic be too much for Congressional Republicans to rationalize and ignore? We can only hope they reach that point before Trump starts shooting people on 5th Avenue, and before he gets bold enough to simply ignore Congress altogether.

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  • Joe Mac Donald  On May 15, 2017 at 9:08 am

    Is there a way to entice Collins, Flake and Corker to stand up? How many more Republicans would have to switch their allegiance back to the republic to rein his highness in?

    • weeklysift  On May 15, 2017 at 11:04 am

      Three senators plus all the Democrats gets you to 51. That would be enough for anything the Senate can do by itself, which in terms of investigations is quite a bit. Plus, any kind of bipartisan Senate resolution might give cover to House Republicans who’d like to defect.

  • Dennis Maher  On May 15, 2017 at 9:23 am

    Bribing the woman who ran GSA so that she would rule in favor of Trump’s renting of the old Post Office is another article of impeachments. Somewhere lawyers are accumulating such things. My congresswoman, with a degree from Harvard, is not worried yet.

    • weeklysift  On May 15, 2017 at 11:01 am

      I was mystified by the GSA ruling, but I haven’t seen anything charging bribery.

  • Shane Harris  On May 15, 2017 at 9:52 am

    When do we accept that they have no interest in defending the Republic? Democracy was an unfortunate real obstacle to gaining power that they had to overcome before getting to this. This is what they have wanted for a very very long time.

    • Anonymous Poster  On May 15, 2017 at 3:39 pm

      They do not want a leader; they want a ruler.

      They do not want democracy; they want power.

      They do not want to help those with whom they disagree; they want to make their opponents suffer at all costs.

      The Republicans in power today want only to be a ruling class—and each of them will do and allow anything and everything, up to and possibly including a public execution carried out by Donald Trump himself, for the sole purpose of keeping themselves in that position for the rest of their lives.

  • Jill Drury  On May 15, 2017 at 10:09 am

    Thanks for this article, Doug. I have been wondering the same things myself. I’d love to see an article from you that explores the reasons behind why a sizable percentage of people in the US feel it is acceptable to hold a Republican president to a different standard than a Democratic one. You are correct that President Hillary Clinton couldn’t have taken even one of the small-r republic-abusing actions that Trump has taken without deafening demands for impeachment. Why is it OK for Republicans to tolerate this kind of behavior, and for the rest of us to be ineffective at expressing our outrage?

    • Glr  On May 18, 2017 at 3:10 pm

      It’s a team mentality. You don’t complain when the referee makes a bad call that helps your team win. You only complain when the ref’s call helps the opposing team. It really is just “blue against red” to them and having a double standard is just a part of being a good loyal team fan.

  • busterggi  On May 15, 2017 at 10:31 am

    The Repubes sold out years ago starting with the Southern Strategy, continuing with bringing in the Religious Reich and solidifying thier unconcern for the country by capitulating to the Donald.

  • Nancy  On May 15, 2017 at 11:09 am

    The Republican Mission is no longer governance, it’s power. Their constituents are no longer the electorate, it’s the donors. The GOP is unfit to govern, and they haven’t been for a long time. I think Newt Gingrich’s Contract on America was a key tuning point. It’s been nothing but smoke and mirrors since then.

  • Nick  On May 15, 2017 at 11:55 am

    With all of the ways this presidency has demonstrated how the two party system compromises the way the founders intended the government to work, I wonder about the structural changes (i.e. Constitutional amendments) that we can hope for after 2020. Are 4 year terms too long for a president when they’re as powerful as they are today and the country as a whole immediately regrets their decision? Do we need to enable a minority of Congress to instigate a special prosecutor? Can we require the release of tax returns and an impartial physical and mental health assessment before administering the oath of office?

  • James Donald Bishop  On May 15, 2017 at 12:46 pm

    I sent my Republican senator (Corey Gardner, CO) an email and a phone call, telling him to decide whether his loyalty is to Trump or to the Constitution.

    • JJ  On May 18, 2017 at 8:10 am

      Thank you. Thank you. Thank you.

  • coastcontact  On May 15, 2017 at 1:15 pm

    We are on the way to an impeachment. The Republicans just aren’t there today. Look at the Nixon impeachment charges as an example of what charges against Trump might look like.

    My list:

    Obstruction of Justice.
    1. Fired James Comey, FBI head, conducting an investigation into Trump campaign and possibly administration connection with Russia.
    2. Making or causing to be made false or misleading statements to lawfully authorized investigative officers and employees of the United States.
    3. Withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States.
    4. Approving, condoning, acquiescing in, and counseling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings.
    5. Interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation.
    6. Approving, condoning, and acquiescing in, the surreptitious payments of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals who participated in such unlawful entry and other illegal activities.

    Abuse of Power.
    Threatening blackmail of James Comey and firing other people who disagree with him.

    Traitorist acts.
    Dealings with Russia and encouraging Wikileaks and other organizations that steal American secrets.

  • MAHA  On May 15, 2017 at 5:34 pm

    When I read that Comey had been dismissed, I was stunned, shaken to the core. I understood exactly what it meant, the only thing it could mean, and I felt the gravity of it, for America. I am Canadian, retirement age, and never in my life have I been afraid of living next door to the USA. I am afraid, now. There has to be something the American people can do. Isn’t the 2nd Amendment there to help you fight a roque government when all else fails?

    Deborah McP

    • weeklysift  On May 16, 2017 at 8:02 am

      That’s a common belief about the 2nd Amendment, but I think it’s historically wrong. The thinking of the Founders on this point is largely obsolete now, which nobody wants to admit.

      The Jefferson/Madison vision was that the national military would only be needed for wars against great powers like England or France, and that those wars would be rare. The people would be armed and the states and towns would have militias to handle things like pirates, slave revolts, Indian raids, large criminal gangs, and so forth. So a large standing national army would be unnecessary, removing a president’s temptation to stage a coup. That’s how the militia is “necessary to the security of a free state”.

      Of course, that’s all by the boards now. We have a large standing army anyway.

  • nrkatalyst  On May 16, 2017 at 5:27 am

    I would like to suggest using the word and comparison to a bully less often when talking about Trump. A bully is a good simplistic comparison but it has connotations of childhood problems and matters that aren’t too serious. Whereas in reality he is a kleptocrat with strongman ambitions.

    • Kenneth  On May 16, 2017 at 8:17 am

      Bullying is definitely not just a childhood problem, and it can be very serious. I agree that he’s a kleptocrat with strongman ambitions, but he’s also a bully. And people aren’t, in general, very good at standing up to bullies.

  • SamuraiArtGuy  On May 16, 2017 at 10:28 pm

    “I suspect they will make noises about justice, but in the end not stand up for it, at least not this time. And then, after Trump does something even worse in a month or two, there will be another moment of truth, and then one after that.”

    And surprise, surprise. The President has been a reckless braggart with sensitive intelligence, and again, the GOP murmurs, shakes a little, and tries to blow it off. And to make it all more special, no US Media was permitted within, so there is no record, no accountability, and all accounts are effectively hearsay. Many knowledgeable folk expect people to DIE over this, and our intelligence network to be badly damaged, and strategic intelligence partnerships badly strained.

    • JJ  On May 17, 2017 at 9:03 pm

      Russian media was allowed, though, right? And we’re supposed to think this is normal?


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