The Weekly Sift

Voting Trump out of office stopped the bleeding, but the Republic isn’t out of danger yet.

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The Boston Globe ran an important series this week: “Future-proofing the Presidency“. Over four years, the Trump administration shredded the laws, institutional norms, and political norms that we had previously trusted to protect the Republic from a corrupt or power-hungry president.

The fact that the voters managed to throw Trump out after four years should only comfort us up to a point. Because of the Trump precedents and the roadmap his administration provides, the next unscrupulous president — who could be Trump himself in 2025 — will begin his assault on democracy with a head start.

The Globe series proposes reforms to turn norms into laws and give teeth to the laws Trump ignored. The specific problems it diagnoses are: financial conflicts of interest, nepotism, immunity from prosecution, ability to shield co-conspirators, and power to obstruct congressional investigations. And the reforms it recommends are

• require presidents to divest from all businesses and investments that could pose a conflict of interest
• require presidents to publish their tax returns
• require an explicit congressional waiver before a president can appoint a relative to office — even if that relative foregoes a salary
• strengthen protections for government whistle-blowers, and extend those protections to political appointees
• root congressional subpoena power in legislation, so that subpoenas served to the executive branch can be enforced more easily and quickly
• allow a president to be indicted while in office, but delay the trial until the presidency ends
• pass a constitutional amendment voiding a president’s power to pardon personal associates

The series concludes with “The Case for Prosecuting Donald Trump“. Congress’ impeachment power is broken, and can no longer be trusted to hold presidents accountable.

If Congress had played the role the Founders envisioned, by removing Trump from the presidency after his criminality became clear in the Ukraine affair, that might have been enough of a deterrent to scare future presidents straight. But lawmakers didn’t.

So now there is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. The Justice Department must abandon two centuries of tradition by indicting and prosecuting Donald Trump for his conduct in office. …

The reluctance to prosecute presidents is deep-rooted, and extreme caution does make sense. (The last thing that the country needs is for Trump to be charged, tried, and then acquitted.) But it cannot be the case that there is no line — no hypothetical act of presidential criminality that would not rise to the level of seriousness that merits setting aside our qualms. And if one accepts that there is a line, it’s hard to imagine Donald Trump didn’t cross it.

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Two other of this weeks’ news stories underlined the importance of The Globe’s proposed reforms: We found out that the Trump administration subpoenaed the phone metadata of two Democratic members of the House Intelligence Committee, and the transcript of Don McGahn’s testimony to Congress was released.

The two lawmakers in question — Adam Schiff and Eric Swalwell — were outspoken administration critics that Trump frequently attacked on Twitter. (“Shifty Schiff” was one of his playground insult names.) Swalwell became a Democratic presidential candidate. At the time, the Intelligence Committee was engaged in an investigation of Trump’s collusion with Russia.

Not only were they targeted, but so were their family members, including their children. What’s more, a gag order has kept Apple from revealing its cooperation until recently, so the congressmen did not know they were under this kind of scrutiny, and neither did House Speaker Nancy Pelosi.

“President Trump repeatedly and flagrantly demanded that the Department of Justice carry out his political will and tried to use the Department as a cudgel against his political opponents and members of the media,” Rep. Schiff told Recode in a statement. “It is increasingly apparent that those demands did not fall on deaf ears.”

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The transcript of Dan McGahn’s testimony to the House Judiciary Committee on June 4 was released Wednesday, in accordance with the agreement that led to that testimony (after two years of legal wrangling that saw the courts refuse to back up congressional subpoenas). The transcript is 241 pages, and the main thing you can learn by reading large chunks of it is that McGahn was indeed a hostile witness. Releasing only a transcript (rather than video) means that his evasiveness will not be appreciated by the general public.

The pre-interview agreement limited questions to

one, information attributed to Mr. McGahn in the publicly available portions of the Mueller report and events that the publicly available portions of the Mueller report indicate involve Mr. McGahn; and, two, whether the Mueller report accurately reflected Mr. McGahn’s statements to the Special Counsel’s Office and whether those statements were truthful

In the early questioning, McGahn frequently claimed not to remember the events in question until his questioner noted a passage in the Mueller Report. McGahn would then respond with something like “what you’ve read in the report is accurate”. He tried hard not to introduce any new information. I also have to wonder if he used the interview’s ground rules to hide relevant conversations with Trump without perjuring himself. For example:

Q: Did you advise the President as to whether he personally could call Mr. Rosenstein about the investigation?
A: I may have at some point in time. Do you have anything in particular? I mean, I was on the job quite a while so —
Q: Understood. I’ll direct you to page 81, bottom of the paragraph.

Like Trump himself, and so many other people in his administration, McGahn seems not to recall a number of events that most other people would think of as memorable.

Q: On June 14, 2017 … The Washington Post reported for the first time that the special counsel was investigating President Trump personally for obstruction of justice. Do you recall your reaction to that reporting?
A: I don’t recall my reaction to it, no. No.
Q: You don’t recall your reaction, as a White House counsel, to learning that the press had reported that the President of the United States was under personal investigation by the special counsel?
A: I don’t recall my subjective impression on the evening of June 14th about a news report. No, I don’t.
Q: Do you recall speaking to the President that evening?
A: I do recall speaking to him, yes.
Q: Can you describe that conversation?
A: I don’t have a crisp recollection of it.

Again and again, McGahn claimed that his memory had been fresher when Mueller questioned him, so he yielded to whatever description was in the Mueller report. That raises an obvious question: Instead of questioning McGahn about Mueller’s summary of McGahn’s testimony, why doesn’t the Judiciary Committee just look at the transcripts of those interviews? And the answer is that they can’t, at least not yet. Like the McGahn subpoena itself, this was the subject of a long legal wrangle, which the Supreme Court put off deciding until after the election. So at the moment, Congress doesn’t even have access to the still-redacted portions of the Mueller report.

After Trump lost the election, the grounds for releasing grand jury records to Congress changed completely, so Congress suspended its pursuit to coordinate with the new Biden administration. In part, McGahn’s appearance was supposed to be a substitute for the grand jury material.

So that’s where the House investigation into Trump’s obstruction of justice has led: McGahn finally appeared, but under rules that allowed him to do little more than point to quotes in the Mueller report and verify that he actually said that.

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Meanwhile, Rachel Maddow has been waging an almost nightly campaign for Attorney General Merrick Garland to expose and reverse Trump administration abuses in the DoJ.

About the Schiff/Swalwell subpoenas, she commented:

Given that those officials that knew about this are still in the Department right now, why did it take a New York Time article about this abominable behavior to spark an inspector general investigation today? I mean, this scandal wasn’t known to any of us in the public, but it was known to multiple officials inside the Justice Department. None of them thought to peep about it? …

It is clear that the Justice Department under President Biden does not want the job of investigating and rooting around what went rotten inside their own department under the previous president. But even if they don’t want that job, that is the job they have now. … Wake up, you guys! You’re going to work in an active crime scene, and there’s no other cops to call.

You have to fix this. You’re the only ones who can.

Trump and Bill Barr have provided the next would-be despot with a detailed plan for turning the Justice Department into a sword to attack enemies and a shield to protect corrupt friends. If there are no consequences for what they did, either to them or to the lower-level officials who went along, the danger has not passed.