Tag Archives: Trump administration

Remember Normal Presidents?

January 13, 2020 – 11:25 am

Every previous president since Pearl Harbor would have handled the Soleimani announcement very differently.

It’s now been ten days since the United States assassinated top Iranian General Qasem Soleimani near the Baghdad airport, and we still have no coherent explanation of why it was done, why it was legal, and what strategy the assassination is a piece of. Apparently even Congress hasn’t been able to get these questions answered in a classified briefing.

One of the ways Trump gets normalized is that we often compare his actions to his own previous conduct, as in “This is even worse than the last ridiculous thing he did.” As a result, our expectations of presidential behavior drift continually downward. I mean, sure, the claims of an “imminent” threat to American lives, some deadly Iranian scheme that came apart because we killed Soleimani, are almost certainly false. (Once a plot is under way, i.e., truly “imminent”, you disrupt it by stopping the perpetrators, not blowing up the mastermind. Killing Bin Laden after the hijackers were on their way to the airport would have done nothing to prevent 9/11.) But Trump’s like that — what’s one more lie after the many thousands we’ve already heard from him?

Another way we normalize Trump is to cut his actions into tiny pieces and find horrifying precedents for each one. (As in: “So Trump lied about the imminent threat? W lied about WMDs.”) And so we allow the Trump administration to become a Frankenstein monster, stitched together from all the worst aspects of previous presidencies.

To correct these normalizing tendencies, I want to raise the question: What do we normally expect from an American president when there’s been a major military development?

Talk to us. The very least we expect from a normal president is that he address the American people, to acknowledge what has happened himself, as soon as possible.

This tradition is as old as mass media. The day after the Pearl Harbor attack, President Franklin Roosevelt addressed a joint session of Congress, calling December 7 “a date that will live in infamy” and asking the House and Senate to declare war on Japan. The speech was broadcast live over the radio, and “attracted the largest audience in US radio history, with over 81% of American homes tuning in”.

[The speech] was intended not merely as a personal response by the President, but as a statement on behalf of the entire American people in the face of a great collective trauma. In proclaiming the indelibility of the attack, and expressing outrage at its “dastardly” nature, the speech worked to crystallize and channel the response of the nation into a collective response and resolve.

Every subsequent president has carried on this tradition of using the mass media to reach out to the American people when issues of war and peace arose. This week I examined a number of such examples, including these:

How a normal president sounds. I could have included many other examples, but the list above is a good sampling. Some the actions announced turned out well and some turned out badly. (It’s probably unfair to expect him to have foreseen this, but Nixon’s Cambodia campaign was a step down the road to the killing fields.) Some of the speeches were more honest than others. (The Gulf of Tonkin incident, for example, was not quite how LBJ described it.) But despite the differences in era and philosophy and personality, all these speeches share a number of features that made them “presidential”.

The most obvious thing they share is a tone: They are all calm but serious. The President, whoever he might have been at the time, projects an attitude of thoughtful determination, as if he were saying “I know there will be consequences to this act, but I have thought them out to the best of my ability. I am not acting rashly out of unreasoning fear or blind anger.”

They are also in some manner humble. This might seem like a strange trait for a leader to display when he is invoking the greatest power his office affords him, but American presidents do not hold their power as a personal possession, the way a divine-right king would. Presidential power is held in trust for the American people. No one is worthy of the power to start bombing some other country or to send troops into harm’s way, but our country has to place that power somewhere. So we have placed it in our president, under supervision from the Congress, who is just a human being like the rest of us. Any human who assumes that power is quite right to be awed by it.

The speeches are not self-aggrandizing, which is the opposite of humble. FDR, for example, could have used the opportunity to pat himself on the back: He had shown the foresight to begin a draft a little over a year before. His Lend-Lease program had armed countries that would now be our allies, and had developed a weapons industry we would now be relying on. But he mentioned none of that.

Unity. Every one of the speeches is an attempt to unify Americans behind the action being announced and the policy it represents. Consequently, they all strive to be non-partisan. Again, look at FDR: He could have reminded the country that Republican congressmen voted against Roosevelt’s Lend-Lease Act 24-135, a decision that now looked short-sighted. That might have scored points with the voters and helped Democrats unseat those Republicans. But he made no mention of parties: The nation had been attacked, and he called for the nation — not just his party — to respond.

That model has stood until the present administration. Frequently in the speeches above, the president quotes or refers to some past member of the other party to demonstrate the bipartisan nature of the policy he is carrying out. Ronald Reagan quoted former Democratic Speaker Sam Rayburn. Nixon referenced a bipartisan list of presidents:

In this room, Woodrow Wilson made the great decisions which led to victory in World War I. Franklin Roosevelt made the decisions which led to our victory in World War II. Dwight D. Eisenhower made decisions which ended the war in Korea and avoided war in the Middle East. John F. Kennedy, in his finest hour, made the great decision which removed Soviet nuclear missiles from Cuba and the western hemisphere.

Johnson’s speech is especially noteworthy in this regard, because it took place in August, 1964, just three months before the election. The idea that Barry Goldwater was a hothead not to be trusted with nuclear weapons would soon become a theme of Johnson’s reelection campaign, but nothing in the Gulf of Tonkin speech hints at that. Quite the opposite:

I have today met with the leaders of both parties in the Congress of the United States, and I have informed them that I shall immediately request the Congress to pass a resolution making it clear that our government is united in its determination to take all necessary measures in support of freedom and in defense of peace in Southeast Asia. I have been given encouraging assurance by these leaders of both parties that such a resolution will be promptly introduced, freely and expeditiously debated, and passed with overwhelming support. And just a few minutes ago, I was able to reach Senator Goldwater, and I am glad to say that he has expressed his support of the statement that I am making to you tonight.

In none of the speeches does the president snipe at his predecessors, blame them for the current predicament, or gloat over the way things have turned out. No president ever had a better opportunity to throw shade at the previous president than Barack Obama, who had succeeded at something George W. Bush had failed to do for seven years: kill Bin Laden. But Obama passed up that opportunity to boost himself by tearing down his predecessor. Instead, he acknowledged the “tireless and heroic work of our military and our counterterrorism professionals” over the previous ten years. He closed by asking Americans to

think back to the sense of unity that prevailed on 9/11. I know that it has, at times, frayed. Yet today’s achievement is a testament to the greatness of our country and the determination of the American people. … Let us remember that we can do these things not just because of wealth or power, but because of who we are: one nation, under God, indivisible, with liberty and justice for all.

What is presidential? The presidential speeches seek to evoke three kinds of unity: Unity as Americans facing an external challenge, unity of vision between the president and Congress, and unity of the United States with its allies. The speeches are not always entirely truthful — among his other roles, the president is the country’s chief propagandist — but the untruths are aimed at the enemy, not at other Americans. The president takes a generous, hopeful view of how Congress, our allies, and the nation as a whole will respond. The vision is consistently about what we can do together, not what the president as an individual is doing for us or against our opposition. He seeks to paper over any past differences, in hopes of moving forward as a united nation.

Now look at Trump. The day after the Soleimani assassination, Trump made a public statement, but not a particularly formal one. He addressed reporters at Mar-a-Lago, not the nation from the White House. (The text begins “Hello everybody”, not “My fellow Americans”.) The brief announcement does not mention Congress or our allies, but has an unusual number of first-person references: “at my direction … under my leadership … I am ready and prepared to take whatever action is necessary”, leading up to Trump’s list of accomplishments:

Under my leadership, we have destroyed the ISIS territorial caliphate, and recently, American Special Operations Forces killed the terrorist leader known as al-Baghdadi. The world is a safer place without these monsters.

Trump also took a slap at previous administrations:

What the United States did yesterday should have been done long ago. A lot of lives would have been saved.

The message asks for nothing — not from the public, not from Congress, not from our allies. Trump simply reports what he has done for reasons that are not entirely clear. (It can’t be that we have a right to know.) He does not warn us of hardships to come, or of possible Iranian reprisals. He warns Iran, though of what “I” will do.

The United States has the best military by far, anywhere in the world. We have best intelligence in the world. If Americans anywhere are threatened, we have all of those targets already fully identified, and I am ready and prepared to take whatever action is necessary. And that, in particular, refers to Iran.

After Iran’s response — a missile attack on the Iraqi base from which the Soleimani mission was launched — Trump finally gave a more formal speech from the White House. He begins, not with a salutation to the audience or even with a statement of the policy of the United States, but with a pledge from Trump the Individual:

As long as I am President of the United States, Iran will never be allowed to have a nuclear weapon.

He does not say how he will prevent that from happening, given that he tore up the agreement that had been blocking Iran’s nuclear program. He goes on to ramble fairly incoherently about the evils of Iran. Again he does not mention Congress, and while he does mention both NATO and the partner countries in the Iran nuclear deal, it is not at all clear what he wants them to do, other than “recognize reality”.

Again, he exaggerates his “accompliments”:

Over the last three years, under my leadership, our economy is stronger than ever before and America has achieved energy independence.  These historic accompliments [accomplishments] changed our strategic priorities.  These are accomplishments that nobody thought were possible.  And options in the Middle East became available.  We are now the number-one producer of oil and natural gas anywhere in the world.  We are independent, and we do not need Middle East oil.

The American military has been completely rebuilt under my administration, at a cost of $2.5 trillion. … Three months ago, after destroying 100 percent of ISIS and its territorial caliphate, we killed the savage leader of ISIS, al-Baghdadi. … Tens of thousands of ISIS fighters have been killed or captured during my administration.

But the most unpresidential thing of all in this speech is the way that he goes after his predecessor, in some cases distorting the truth to do so, and in other cases just simply lying. Under Obama’s Iran deal, “they were given $150 billion”. [False. A much smaller sum of Iran’s own money was unfrozen. Iran was “given” nothing.] “The missiles fired last night at us and our allies were paid for with the funds made available by the last administration.” [Theoretically possible, but Trump provides no evidence. He appears to have just made this up.] “The very defective JCPOA expires shortly anyway, and gives Iran a clear and quick path to nuclear breakout.” I’ll let PolitiFact handle that one:

This is False.

The Iran deal put a cap on enriched uranium that would have lasted until 2030, at which point other agreements would have continued to limit Iran’s nuclear development.

Some of the deal’s restrictions would have eased beginning in 2025, but the key elements that prevented Iran from enriching the levels of uranium needed to make a bomb would have remained in effect until 2030.

Other terms would have lasted forever, including the prohibition on manufacturing a nuclear weapon and a provision requiring compliance with oversight from international inspectors.

Think about what these statements do, relative to what we would expect from any previous president. They feed a cult of personality around Trump. He is not the current avatar of the President of the United States, he is himself, accomplishing things that his predecessors at best played no role in, and more often provided obstacles he had to overcome. He wields power as a personal possession, not in trust from the American people or overseen by Congress. America’s allies are not equals, they are vassal states that he need not consult, but can make demands on.

He makes no appeal for unity, and does not reach out to the opposition party. Instead, he uses the attention provided by the current crisis to claim his predecessor’s accomplishments (we became the top oil producer under Obama), and to spread lies about him. Democrats should feel slapped in the face by this, not invited into an American unity.

In addition to the televised addresses, Trump has access to media FDR never imagined. His Twitter feed has been non-stop partisan, in the most vicious way. Just this morning, for example, he retweeted an image of Chuck Schumer and Nancy Pelosi in Muslim dress, with an Iranian flag behind them. In his own words, he told this lie:

The Democrats and the Fake News are trying to make terrorist Soleimani into a wonderful guy

Nothing he says speaks to Democrats in Congress, or to the 54% of the American people who voted for someone else in 2016, or the 53.4% who voted for Democratic candidates for Congress in 2018. He is leading us down a path that may well end up in war, without seeking approval from Congress or even trying to make a case to anyone other than the minority of the country that supports him.

No previous president would do such a thing.

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Trumpist Evangelicals Respond to Christianity Today

December 30, 2019 – 7:10 am

Nearly 200 Evangelical leaders responded to the Christianity Today editorial calling for Trump’s removal from office, which I discussed at some length last week in “The Evangelical Deal With the Devil“. How they chose to respond says a lot about how Trump appeals to their flocks.

CT’s case had three main points:

  • Trump is guilty as charged: “The president of the United States attempted to use his political power to coerce a foreign leader to harass and discredit one of the president’s political opponents. That is not only a violation of the Constitution; more importantly, it is profoundly immoral.”
  • Beyond the articles of impeachment, Trump has conducted himself in a grossly un-Christian way: “[T]his president has dumbed down the idea of morality in his administration. He has hired and fired a number of people who are now convicted criminals. He himself has admitted to immoral actions in business and his relationship with women, about which he remains proud. His Twitter feed alone—with its habitual string of mischaracterizations, lies, and slanders—is a near perfect example of a human being who is morally lost and confused.”
  • Religious leaders who defend Trump are distorting the Christian message and damaging the credibility the Evangelical movement: “To the many evangelicals who continue to support Mr. Trump in spite of his blackened moral record, we might say this: Remember who you are and whom you serve. Consider how your justification of Mr. Trump influences your witness to your Lord and Savior. Consider what an unbelieving world will say if you continue to brush off Mr. Trump’s immoral words and behavior in the cause of political expediency. If we don’t reverse course now, will anyone take anything we say about justice and righteousness with any seriousness for decades to come?”

Protestant Christianity has a long history of “remonstrances“, where some religious leader attempts to tell his colleagues that they’ve taken a wrong turn. (Arguably, Protestantism began with a remonstrance: Luther’s 95 theses.) So we know exactly how honest and sincere Protestant leaders respond to such challenges: They answer the points in the context of their faith.

In this case, a thoughtful counter-remonstrance would argue that Trump is not guilty, or that his overall behavior is not immoral, or that defending him is an appropriate example of Christian witness, not a distortion of it. You might expect a response full of Biblical texts and comparisons to proud moments from the history of the Evangelical movement.

The letter from the 200 does none of that. Not a single point from the editorial is confronted directly. Neither Trump’s impeachable actions nor his general morality is mentioned. The loss of credibility that comes from identifying Christianity with Trumpism is not addressed. Instead, the 200 responders make two points:

  • They feel insulted. The particular statements that they believe insult them are not actually in the CT editorial, but were made by the author in interviews. As so often is the case when conservative Christians claim offense, they are the ones who decided that the shoe fit them. The CT editor talked about “evangelicals on the far right”, but did not name any.
  • The author of the CT editorial is an elitist who looks down on less educated believers, so the majority of Evangelicals shouldn’t identify with him or pay attention to what he says.

Like so much of Trump’s defense in the larger culture, this argument is entirely tribal, and not at all based on facts or principles: Trump is one of us, and if you oppose him, you’re not one of us.

The one time the letter alludes to the Bible is an up-is-down distortion.

We are proud to be numbered among those in history who, like Jesus, have been pretentiously accused of having too much grace for tax collectors and sinners, and we take deeply our personal responsibility to render unto Caesar what is Caesar’s — our public service.

But Trump does not at all fit the model of a tax collector (like Matthew) or a “sinner” (like Mary Magdalene). He is a head of government, like Herod, who does not repent his immoral actions or seek to change. The Bible contains no example of Jesus (or any prophet) pandering to power in the way these Evangelical leaders have.

Quite the opposite, the prophets repeatedly confronted immoral rulers, as I have observed at length before. The Christianity Today editorial fits well into this prophetic tradition of speaking truth to power. The letter responding to it does not.

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Reset: Investigations Post Mueller

July 29, 2019 – 11:33 am

Bob Mueller testified to two congressional committees Wednesday, the Judiciary Committee in the morning and the Intelligence Committee in the afternoon. [full transcript] For weeks it has felt as if everything related to impeachment and investigation has been on hold, waiting for Mueller’s testimony. Now Mueller is done: He finished his investigation, wrote his report, and testified about it in public. Mueller time is over; those of us who want Trump to be investigated and/or impeached won’t get any more help from him.

So let’s think about where we are and what we know. There are two sides to the investigation: the Russia side and the Trump side.

What Russia did. The Russia side of the picture is becoming fairly clear: The Putin government was trying to get Trump elected, and it succeeded.

Russian operatives hacked the DNC and Clinton campaign chair John Podesta, and then used WikiLeaks to orchestrate the release of the stolen emails at a pace and in a manner designed to keep Clinton constantly on defense. In parallel, Russia ran a sophisticated disinformation operation on social media with two main purposes: suppressing the black vote and preventing Bernie Sanders’ supporters from reconciling with Clinton. (Coincidentally, those were also goals of the Trump campaign.)

This was far more than the “couple of Facebook ads” in Jared Kushner’s disparaging claim. For example, the Russians created the fake “Blacktivist” identity, which had half a million Facebook followers. At one point the fake @TEN_GOP Twitter account had ten times more Twitter followers than the actual Tennessee Republican Party. Altogether there were more than 470 such groups. They helped propagate fake news stories like “WikiLeaks confirms Hillary sold weapons to ISIS” and “FBI Agent Suspected in Hillary Email Leaks Found Dead in Apparent Murder-Suicide”. (The Russians weren’t responsible for the entire fake-news ecosystem, but they helped.) The impact of fake news [1] on the election was huge.

There is still no evidence that they actively reached into voting machines and changed vote totals, but that’s not for lack of trying. Reportedly, Russia tried to penetrate election systems in all 50 states. According to the Senate Intelligence Committee, “Russian cyberactors were in a position to delete or change voter data” in the Illinois voter database. Whether they used that capability or not, the possibility has big implications for the future: If Russia wanted to, say, suppress the Hispanic vote in Florida, why not just delete the registrations of some or all voters with Hispanic names? They wouldn’t have to be inside the voting machines to swing an election.

Did the Russian activities make a difference? Yeah, probably. Without them, it’s likely Trump would not be president.

What Trump’s people did. From the beginning of the Trump/Russia investigation, I’ve had two questions about the Trump campaign and Trump transition team:

  • Why did Trump’s people have so many interactions with Russian officials, Russian oligarchs, and other people connected to Vladimir Putin?
  • When they were asked about those interactions, why did they all lie?

Those two questions have formed my standard of judgment ever since: If I ever felt like I could confidently answer them, I would believe we had gotten to the bottom of things.

I don’t think we have good answers to those questions even now.

I can imagine a relatively innocent answer for the first one: The Russians were trying to infiltrate the campaign, so they repeatedly contacted Trump’s people. But that answer just makes the second question more difficult, because then Trump’s people could have given perfectly innocent answers, like: “I wondered about that at the time. It seemed so weird that these Russians kept wanting to talk to me.” It would have been so easy to say: “Yeah, I talked to the guy, but I never figured out exactly what he wanted. I had a bad feeling about it, though, so I didn’t see him again.” Instead, they either made false denials, manufactured false cover stories, or developed a convenient amnesia around all things Russian.

Why? Innocent people don’t act that way.

Trump and his defenders have not offered an answer of any kind about the lying, and instead have done everything possible to distract us the question. All the wild conspiracy theories about the Steele dossier, the “angry Democrats” in Mueller’s office, Mueller’s supposed “conflicts”, the “witch hunt”, and so forth — it all has nothing to do with the two basic questions: Why meet with so many Russians? Why lie about it?

We still don’t know.

Obstruction of justice. One reason we don’t know more about those questions is that President Trump obstructed the investigation. This is pretty clear if you read the Mueller report: Volume 2 examines ten instances that might be obstruction, and finds all three elements of the definition of obstruction in seven of them. [2]

Two of the seven instances stand out: telling White House Counsel Don McGahn to fire Mueller, and witness-tampering with Paul Manafort. The first stands out because it is the clearest: McGahn refused because he knew at the time he was being asked to obstruct justice. (Trump apparently knew also; why else would he order McGahn to lie about it later?)

The second stands out because it might have had the biggest impact: Manafort was Trump’s campaign chairman, and was also feeding campaign information to a Russian intelligence operative. Honest testimony from Manafort might have told us exactly what Russia wanted to know, and maybe even what it did with that information. At one point, Manafort agreed to cooperate with Mueller’s investigation, but ultimately he lied to investigators and may have spied on Mueller for Trump.

If Manafort did that out of love, that’s one thing. But if he did it expecting that Trump will pardon him before leaving office, that’s witness tampering. Whyever he did it, Manafort closed the door on our best chance to know what really happened. [3]

Mueller’s report and testimony. Attorney General Barr did an amazing job of obfuscating Mueller’s written report: He delayed releasing the redacted version for several weeks, and in the meantime left us with the impression that the investigation had found nothing significant. Trump started summarizing Mueller’s conclusion as “No collusion, no obstruction” — which was false, but not provably false until later. “No collusion” was just a lie, and “no obstruction” was the conclusion Barr had been hired to announce; it was not Mueller’s conclusion.

Mueller’s actual conclusion about obstruction is subtle and easy to exaggerate in either direction. Department of Justice guidelines would not have allowed him to indict Trump while in office. Given that guidance, he concluded that it would be irresponsible to write a report saying that Trump obstructed justice, since there would be no trial in which Trump could dispute that claim. If, on the other hand, the facts allowed him to dismiss the obstruction claims, reporting that would be within his mandate.

Mueller was unable to dismiss the claims of obstruction, but he intentionally avoided making a charging decision. I read him as saying that someone who does have charging ability — either Congress now or a U.S. attorney after Trump leaves office — should look at the evidence he has assembled and make a charging decision. [4]

So it’s possible to quote Mueller and imply either that he is asserting or denying that Trump obstructed justice. Neither is quite true.

Media response. That kind of nuance doesn’t play well on TV, and so Mueller’s testimony this week didn’t produce the pivotal moment Democrats were looking for. He was asked to directly contradict several Trump talking points and did. (He testified that his investigation was not a witch hunt, Russian interference was not a hoax, his report did not exonerate Trump, etc. He also agreed that Trump’s written testimony was “generally” incomplete and untruthful.) But he did not tell the Judiciary Committee to start impeachment proceedings, or explain clearly to the American public why they should.

In addition to Mueller’s lawyerly reticence to exceed his role or speculate beyond what he could prove, he also appeared to have aged since the last time he had testified to Congress. He seemed tired and at times confused. He chose not to fight with Republican congressmen who put forward a variety of conspiracy theories that no one outside the Fox News bubble has heard of.

In short, he is not the man to rally the nation against its corrupt ruler.

For the most part, pundits judged Mueller’s testimony like a reality TV show. Jennifer Rubin critiqued the response:

I worry that we — the media, voters, Congress — are dangerously unserious when it comes to preservation of our democracy. To spend hours of airtime and write hundreds of print and online reports pontificating about the “optics” of Mueller’s performance — when he confirmed that President Trump accepted help from a hostile foreign power and lied about it, that he lied when he claimed exoneration, that he was not completely truthful in written answers, that he could be prosecuted after leaving office and that he misled Americans by calling the investigation a hoax — tells me that we have become untrustworthy guardians of democracy.

The “failure” is not of a prosecutor who found the facts but might be ill equipped to make the political case, but instead, of a country that won’t read his report and a media obsessed with scoring contests rather than focusing on the damning facts at issue.

What now? The burden now rests in two places: on House Democrats and on the general public.

The Judiciary Committee is continuing to seek information, and the Trump administration is continuing to stonewall it. In a court filing Friday, the Committee asked to receive evidence collected by Mueller’s grand jury. The filing implies that the Committee is already conducting a preliminary impeachment investigation.

the House must have access to all the relevant facts [regarding the president’s conduct] and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity—approvals of articles of impeachment.

Unfortunately, the mills are grinding very slowly. The Committee still has not filed suit to enforce its subpoena of Dan McGahn, for example. That case might take months to wind its way up to the Supreme Court, and then we’ll see just how partisan this Court is: In numerous cases (like the Muslim ban) it has refused to look into possible illicit hidden motives of the executive branch. The case to block this subpoena is based on claims about the illicit hidden motives of the legislative branch. Will the Supremes rule that they are empowered to second-guess a Democratic Congress in ways that they can’t second-guess Republican president? That would be a striking message that the rule of law is essentially dead.

The other way this progresses is if the people rise up and demand impeachment, the way that people have risen up in Puerto Rico or Hong Kong. But will we?

[1] This is “fake news” in the original sense: posts designed to resemble news sites, but based on pure flights of fantasy. Trump later stole the term and now uses it to refer to any report he doesn’t like. But it once had an important meaning.

One striking feature of the Mueller report is how often a story that Trump labeled “fake news” was actually true.

[2] In addition, Trump refused to testify in person, and his lawyers threatened a subpoena fight that would have delayed the investigation for months or maybe years. Mueller eventually submitted a small number of tightly constrained questions, which Trump (or his lawyers) answered in writing. Nearly all his answers were some version of “I don’t remember.” Trump’s testimony, then, was neither incriminating nor exculpatory, because there was no real information in it.

[3] This is the difference between Trump’s “no collusion” mantra, and what Mueller really reported: that he could not assemble sufficient evidence to charge anyone in the Trump campaign with criminal conspiracy. Rather than “No collusion, no obstruction”, the real story might be “insufficient evidence of conspiracy, because obstruction succeeded”.

[4] About 700 former federal prosecutors have read Mueller’s report and said that they would charge Trump with obstruction, based on the evidence Mueller cites.

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A New ICE Policy Endangers Everybody

July 29, 2019 – 8:56 am

If you’re mistaken for somebody without the right to a hearing, who do you complain to?

Tuesday, the Trump administration expanded the concept of “expedited removal” to apply to “immigrants who can’t provide documentation that they’re in the United States legally and that they’ve been physically present here for at least two years”.

Expedited removal was created in 1996, and since 2004 it has mostly been used to quickly deport people apprehended while crossing the border illegally or within two weeks of entering the country. For years it allowed immigration officials to remove immigrants without a hearing or a review of their case if they were apprehended within 100 miles of the border.

What’s “expedited” about the process is that there’s no hearing before an impartial judge. Instead, you only get to talk to people who answer to Trump.

It will allow the Department of Homeland Security to deport people without having to place them in detention facilities for weeks or months while their cases are sorted out.

It’s not that cases will “get sorted out” faster, but that the system just won’t bother to sort them out at all. If you look suspicious (i.e., Hispanic) and don’t have believable documents on you, you could be gone just like that. (An exercise to try at home: If you were plucked off the street unexpectedly, how would you prove to DHS that you have been in the United States for the last two years?)

This raises a problem I often called attention to during the Bush administration: Whenever you eliminate due process for ANYBODY, you create a hole in the system that the rest of us could fall through. Back in the Bush war-on-terror days, the hole was to be declared an “enemy combatant”. Nobody outside the executive branch needed to be involved in that declaration, and once it was made, you had virtually no rights, not even the right to present evidence that the government had made a mistake. [Details here.]

The same principle applies to expedited removal. Our immigration officials have made a lot of mistakes, and now we’re eliminating one of the major ways mistakes get caught and corrected.

Consider, for example, 18-year-old native-born Hispanic-American Francisco Erwin Galicia. He spent more than three weeks in ICE detention because he couldn’t get ICE to believe his documents were genuine. If the new policy had been in place when he was picked up, he could have been whisked out of the country without ever seeing a judge.

Forget the specifics of immigration for a moment and just imagine any group of people who have no rights. (That’s exactly what Francisco says he was told when he insisted he had a right to a phone call to notify his mother. “You don’t have rights to anything.” He also didn’t have the right to a shower or decent food. He lost 26 pounds in 23 days.) If you get mistaken as one of those people, what can you do? The person they think you are doesn’t have to the right to tell a judge that you aren’t that person.

Even if you do get to see a judge, you might not correct the mistake if you don’t have an attorney to argue your case. Davino Watson was 23 when he was released from prison on a cocaine charge. ICE picked up him immediately and started deportation proceedings. Despite lacking a high school education, Watson correctly argued that he became a citizen at 17 when his Jamaican father was naturalized. He showed ICE officials his father’s naturalization papers.

ICE investigated his claim by not calling the number Watson gave them and instead contacting the wrong man (Hopeton Livingston Watson of Connecticut rather than Hopeton Ulando Watson of New York). The Hopeton Watson they talked to was not a citizen and did not have a son, so deportation procedures continued. Watson was held for 3 1/2 years before he was released. The $82,500 in damages that a court awarded him was reversed by an appeals court, because the two-year statute of limitations ran out while he was being held without access to a lawyer who would know stuff like that.

And in March, the Border Patrol held a 9-year-old American citizen for 32 hours because she gave “inconsistent information”, as 9-year-olds are prone to do once you’ve scared the crap out of them.

See the pattern? There are more such stories.

And those, I presume, are just honest mistakes made by over-zealous agents. What if someday an administration starts making such decisions in bad faith, and in massive numbers, without any judicial oversight? You might get deported simply because the current government finds your presence inconvenient.

It’s a simple principle: Denying anybody’s rights endangers everybody’s rights.

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The Lawless Administration

June 17, 2019 – 11:13 am

According to the Constitution, the duties of the President include “he shall take Care that the Laws be faithfully executed”.  But from the beginning of his administration, Donald Trump has taken the same attitude towards the law as president that he did when he was a New York real estate tycoon: Not “What does the law say I have to do?”, but “Who’s going to make me do it?”

No previous president or administration has had such a disregard for the law, and he seems to be getting more brazen about it. This week included so much lawlessness I need to list it before I go into detail on any of it.

  • Trump announced that there is nothing wrong with doing what he was accused of doing in 2016: accepting help from a foreign government during an election campaign. The law may say otherwise, but so what?
  • An official watchdog group (whose head Trump himself appointed) reported that Kellyanne Conway has repeatedly and brazenly violated the Hatch Act, which bans federal employees from partisan political activity while performing their official duties. The report recommended that she be fired. The White House Counsel rejected the report, and Conway will continue in her job. She has neither apologized nor promised to obey the law in the future.
  • Scandals continued to pile up around Transportation Secretary Elaine Chao, whose stock in a major road-paving company was long ago identified as a conflict of interest, who attempted to use her position to benefit her family’s company, and who maintains a special pipeline for transportation projects in the home state of her husband, Majority Leader Mitch McConnell.

Friday night, MSNBC’s Ali Veshi (subbing for Rachel Maddow), examined Trump’s long history of telling people to break the law. He mentioned these incidents:

(Veshi might also have mentioned incidents during the campaign, when Trump urged his audiences to beat up protesters. Or his instructions that his administration should defy “all the subpoenas“, regardless of their lawful authority.) In each case, intermediate officials felt obligated to tell the same people to obey the law rather than do what the President just told them to do.

In an interview with ABC’s George Stephanopoulos Wednesday, Trump said that he would “listen” to any foreign government that offered his campaign dirt on his opponent, and that “maybe” he would call the FBI. But then he elaborated in ways that made the call to the FBI seem unlikely:

I’ll tell you what, I’ve seen a lot of things over my life. I don’t think in my whole life I’ve ever called the FBI. In my whole life. You don’t call the FBI. You throw somebody out of your office, you do whatever you do. Oh, give me a break – life doesn’t work that way.

Both Attorney General Barr and FBI Director Wray have said that a campaign receiving offers of help from foreign governments should call the FBI, but Trump explicitly rejected that opinion. “The FBI director is wrong,” he said.

In essence, Trump has announced to foreign governments that he is open for business. If they have anything on his rivals, he wants to hear it. Will he ask questions about whether they broke any laws to get it, as Russia did when it hacked DNC computers? He didn’t say.

Democrats in the Senate offered a bill to require campaigns to report offers of foreign assistance, but Republicans blocked it, as they have blocked every attempt to stop a repeat of Russia’s 2016 interference. It’s hard to come up with an explanation other than the harsh one: Republicans are counting on Russia to help them again in 2020.

When Elaine Chao took office as Transportation Secretary, she pledged to the Office of Government Ethics that she would sell her stock in Vulcan Materials, which the company’s web page describes like this:

Vulcan Materials Company is the nation’s largest producer of construction aggregates—primarily crushed stone, sand and gravel—and a major producer of aggregates-based construction materials, including asphalt and ready-mixed concrete.

Given that the Transportation Department oversees the interstate highway system, the conflict of interest is obvious. She in fact didn’t sell the shares until two weeks ago, after the Wall Street Journal pointed out that she was still holding the shares — whose value had increased by $40,000 in the meantime.

Another obvious conflict is her family’s company, Foremost Group, which the NYT describes as “an American shipping company with deep ties to the economic and political elite in China, where most of the company’s business is centered”. The Times recently revealed that when Chao planned her first trip to China as a member of Trump’s cabinet, she asked for family members to be included in meetings with government officials.

David Rank, who had been deputy chief of mission for the State Department in Beijing, described the request as “alarmingly inappropriate”. The trip was cancelled after State Department officials raised ethical issues. Vanity Fair writes:

Though Chao has not worked for the company since the 1970s, it is the (ongoing) source of her wealth and the political wealth of her husband [Majority Leader Mitch McConnell]. In 2008 her father gave the couple a gift of as much as $25 million, while 13 members of the Chao family, including Foremost CEO Angela Chao, have given more than $1 million to McConnell’s campaigns and to PACs tied to him.

Angela Chao responded to the NYT article with a letter to the editor defending her sister, which in my opinion missed the point and denied charges that were never made.

Finally, there are the conflicts created by her marriage to Senator McConnell of Kentucky. Politico reports:

The Transportation Department under Secretary Elaine Chao designated a special liaison to help with grant applications and other priorities from her husband Mitch McConnell’s state of Kentucky, paving the way for grants totaling at least $78 million for favored projects as McConnell prepared to campaign for reelection.

Draining the swamp indeed.

The Office of the Special Counsel (not to be confused with Bob Mueller’s office; this one is run by Trump appointee Henry Kerner, formerly a Republican congressional staffer) issued a report recommending that Kellyanne Conway be fired for repeated violations of the Hatch Act. The NYT explains:

The Hatch Act prohibits federal employees from engaging in political activities while they are on the job. Named for former Senator Carl A. Hatch, Democrat of New Mexico, the law has been on the books for 80 years. The act dates to Depression-era reforms intended to prevent machine politics in which patronage jobs were handed out to people who then used their positions to help keep their patrons in power.

The OSC report lists several occasions in which Conway was speaking in her official capacity (for example, giving a press interview at the White House or tweeting on a Twitter account that she also uses for official purposes) and also attacking Democrats like Beto O’Rourke, Cory Booker, or Elizabeth Warren.

Conway has dismissed the whole issue, and all attempts by ethics officials to work through the White House Counsel’s office have by stymied. The report concludes:

Ms. Conway’s persistent, notorious, and deliberate Hatch Act violations have created an unprecedented challenge to this office’s ability to enforce the Act, as we are statutorily charged. She has willfully and openly disregarded the law in full public view. As recently as May 29, 2019, Ms. Conway defiantly rejected the Hatch Act’s application to her activities, dismissed OSC’s 2018 findings, and flippantly stated, “Let me know when the jail sentence starts.” And she made it clear that she has no plans to cease abusing her official position to influence voters. Ms. Conway’s conduct undermines public confidence in the Executive branch and compromises the civil service system that the Hatch Act was intended to protect. Her knowing and blatant disregard for the law aggravates the severity of her numerous violations.

After the report came out, a Deadline reporter asked Conway for a reaction. She replied: “I have no reaction. Why would I give you a reaction?”

Trump has made it clear that Conway will not be fired or otherwise disciplined. The White House Counsel’s office issued a statement defending her actions, which a University of Texas Law School professor described as “fooling no one“.

In this White House, faithfully executing the laws is not seen as a priority, or even a duty. The law is something to be gotten around, not something to obey.

By weeklysift | Posted in Articles | Also tagged | Comments (7)

What makes Donald Trump so smart?

June 3, 2019 – 9:26 am

Trump wants to believe, and wants us to believe, that he’s very intelligent.
But what kind of intelligence is he talking about?

When Donald Trump first described himself as an “very stable genius” — and was roundly ridiculed for doing so — I figured it was just one of those unfortunate phrases that sometimes slip out in the back-and-forth of social media. (I hate to think what a close inspection of my Facebook activity log would turn up.) But when he chose to repeat it just a week or so ago, it became clear that he really means it. Apparently “extremely stable genius” is part of the self-description that bounces around inside his head.

He also puts a lot of stock in the intelligence of others, or at least in its lack: Many of his insults directed at others target their intellect. Recently he tweeted that North Korean dictator Kim Jong Un had called Joe Biden a “low-IQ individual”, a comment that made him smile. (Kim’s assessment of Trump himself as a “dotard” is apparently long forgiven.) Politico notes:

In recent years, Trump has accused Rep. Maxine Waters (D-Calif.), actor Robert De Niro, Washington Post staffers, former President George W. Bush, comedian Jon Stewart, Republican strategist Rick Wilson, MSNBC host Mika Brzezinski, and Rick Perry, now his energy secretary, of having low IQs.

Back in 2013 he tweeted:

Sorry losers and haters, but my I.Q. is one of the highest -and you all know it! Please don’t feel so stupid or insecure, it’s not your fault.

Apparently, though, not everyone does know it. (According to CNN’s Anderson Cooper, Trump claiming that everyone agrees with him is a tell that he’s lying.) Rex Tillerson called him a “fucking moron” and Jim Mattis said he had the understanding of “a fifth or sixth-grader”. Numerous other high-ranking Trump appointees (John Kelly, Steve Mnuchin, Reince Preibus, H. R. McMaster) have referred to him as an “idiot”, with former economic advisor Gary Cohn adding that he is “dumb as shit”.

You might imagine that insults like this naturally fly back and forth in a high-pressure environment like the White House. But I haven’t come up with a comparable example from the previous administration, where someone who worked closely with President Obama claimed he had below-average intelligence. Maybe I’ve just forgotten.

How to prove you’re smart. Trump could of course settle all this by releasing an IQ test, the way that he has often demanded that others (Barack Obama and Elizabeth Warren come to mind) release personal information to prove their claims. He could also support his “stable genius” claim by releasing stellar grades, or pointing to some singular academic honor (like Bill Clinton and Pete Buttigieg can point to their Rhodes scholarships, or Barack Obama his presidency of the Harvard Law Review).

Or he could demonstrate his intelligence to us directly, by speaking to the American people about difficult subjects and impressing us with the clarity of his thought. Barack Obama used to do that. I’ve often come away from an Obama speech feeling like I had learned something, and understood some topic in a way I never had before.

He could show an ability to think on his feet. He could submit to unscripted questions from voters or journalists. And rather than go off into a word salad of free association, he could answer those questions with facts (that are actually true) and insights the questioners hadn’t anticipated. I have attended a bunch of New Hampshire townhall meetings in the last few presidential cycles and watched politicians do this, some more skillfully than others. John McCain was brilliant at fielding whatever question anyone wanted to throw at him, even after he had been on his feet for hours. So was Chris Christie. I didn’t have to agree with their conclusions to appreciate their intelligence.

Obama could even face an audience of enemies and answer whatever questions they raised. He once went to  retreat of the House Republican caucus and owned the room. They couldn’t touch him. The best evidence that they knew they were beaten is that they never invited him back.

A different kind of smart. But maybe I look for that kind of evidence because I don’t define smart the same way Trump does. Maybe my notion of intelligence is self-serving: I was good at tests and classes, so that’s what I look for. I’m good with words and explaining things, so that’s how I want intelligence to be judged.

But maybe when Trump looks in the mirror, he sees a different kind of smart.


The best evidence that he does comes from a 2016 debate with Hillary Clinton. Clinton suggested that Trump doesn’t release his tax returns because

maybe he doesn’t want the American people, all of you watching tonight, to know that he’s paid nothing in federal taxes, because the only years that anybody’s ever seen were a couple of years when he had to turn them over to state authorities when he was trying to get a casino license, and they showed he didn’t pay any federal income tax.

Trump didn’t dispute Clinton’s claims, but spun them in a positive direction: “That makes me smart.”

To me, that suggests a whole different vision of human intelligence and its uses. Maybe life is a game where we’re all trying to gain advantages over each other. And anybody can claim an advantage they deserve. Millions of Americans, for example, avoid paying taxes by being poor; that’s not very smart. But claiming an advantage you don’t deserve, like not paying taxes when you’re rich — you have to be pretty smart to do that.

As soon as I understood that simple notion, I began to appreciate Trump’s genius. Once you know what kind of intelligence you’re looking for, you can see it all through his life.

Avoiding military service is smart. Risking your life is not smart at all, especially if there are other people who can serve in your place.

Trump avoided the draft during the Vietnam War by getting a medical deferment based on having bone spurs on his feet. But are those bone spurs real? The daughters of the (now dead) podiatrist who signed off on the bone-spur claim believe their father made the diagnosis as a favor to Trump’s father. “Elysa Braunstein said the implication from her father was that Mr. Trump did not have a disqualifying foot ailment.”

Democratic candidates Pete Buttigieg and Seth Moulton are simpletons by comparison. They could have avoided risking their lives in Afghanistan and Iraq without faking anything; all they had to do was not volunteer. But like many people less smart than Trump, they try to make the issue about him rather than them. Buttigieg said:

If you’re a conscientious objector, I’d admire that. But this is somebody who, I think it’s fairly obvious to most of us, took advantage of the fact that he was the child of a multimillionaire in order to pretend to be disabled so that somebody could go to war in his place.

And Moulton put it like this:

I don’t think that lying to get out of serving your country is patriotic. It’s not like there was just some empty seat in Vietnam. Someone had to go in his place. I’d like to meet the American hero who went in Donald Trump’s place to Vietnam. I hope he’s still alive.

As with so many controversies, Trump could easily clear this up: He could release x-rays of his feet.

Stiffing your contractors is smart. In 2016, USA Today documented hundreds of examples of Trump refusing to pay for work he had hired individuals or contracted small businesses to do. (YouTube lets you watch several of his contractors tell how they were short-changed.)

Michael Cohen’s testimony backed up USA Today’s reporting:

Some of the things that I did was reach out to individuals, whether it’s law firms or small businesses, and renegotiate contracts after the job was already done, or basically tell them that we just weren’t paying at all, or make them offers of, say, 20 cents on the dollar.

Vox summarizes the tactic:

The basic Trump method, established as far back as his Atlantic City casino days, goes like this:

  • First, Trump contracts with someone to do some work for him.
  • Second, the work gets done.
  • Third, Trump does not pay for the work.
  • Fourth, the people Trump owes money threaten to sue him.
  • Fifth, Trump offers to pay a small fraction of the sum they originally agreed on.

The person Trump owes money to is now faced with an unattractive choice. He can accept 20 or 30 percent of what he is owed right now. Alternatively, he can hire a lawyer and fight out a lawsuit that might take months or years. Since Trump is rich and has lawyers on his staff, it’s nothing to [him] to fight an extended legal battle. And since Trump is the one not paying the bill, delay is inherently in his favor.

If you’ve ever had work done for you, you probably paid the money you agreed to. That’s because you’re not as smart as Donald Trump.

Choosing the right parents is smart. The reason Donald became rich isn’t that he’s a great businessman, it’s that his father Fred was a great businessman — and a brilliant tax evader. (That apple didn’t fall far from the tree.)

Last October, the New York Times published its research on how much Donald got from Fred: at least $413 million, “much of it through tax dodges in the 1990s”.

The most overt fraud was All County Building Supply & Maintenance, a company formed by the Trump family in 1992. All County’s ostensible purpose was to be the purchasing agent for Fred Trump’s buildings, buying everything from boilers to cleaning supplies. It did no such thing, records and interviews show. Instead All County siphoned millions of dollars from Fred Trump’s empire by simply marking up purchases already made by his employees. Those millions, effectively untaxed gifts, then flowed to All County’s owners — Donald Trump, his siblings and a cousin. Fred Trump then used the padded All County receipts to justify bigger rent increases for thousands of tenants.

Dealing with Russian oligarchs is smart. According to Foreign Policy,

By the early 1990s [Trump] had burned through his portion of his father Fred’s fortune with a series of reckless business decisions. Two of his businesses had declared bankruptcy, the Trump Taj Mahal Casino in Atlantic City and the Plaza Hotel in New York, and the money pit that was the Trump Shuttle went out of business in 1992. Trump companies would ultimately declare Chapter 11 bankruptcy two more times. When would-be borrowers repeatedly file for protection from their creditors, they become poison to most major lenders and, according to financial experts interviewed for this story, such was Trump’s reputation in the U.S. financial industry at that juncture.

The money for the Trump Organization’s comeback came mostly from overseas, and particularly from Russia, where the fall of the Soviet Union had created new billionaires who didn’t trust the Russian legal system and so wanted to get their money out of the country. The Center for American Progress investigated the many business ties between the Trump Organization and Russian oligarchs.

After the fall of the Soviet Union, it was vital to get the money out of Russia without a trace, stashing it away from the prying eyes of tax agencies or law enforcement. Clandestine transfer was particularly critical if that money represented proceeds of a crime. Foreign real estate soon emerged as a preferred safe harbor.78 And because the Trump Organization reportedly had a reputation for not asking too many questions, Russian money flowed into Trump’s properties. … In September 2008, Donald Trump Jr. famously boasted of the Russian money “pouring in” and then observed that, “Russians make up a pretty disproportionate cross-section of a lot of our assets.”84

CAP’s Moscow Project goes into more detail:

Some of the individual deals have attracted attention, most notably the Russian fertilizer magnate Dmitry Rybolovlev’s 2008 purchase of one of Trump’s mansions in Palm Beach. He paid a reported $95 million for it—$53 million more than Trump paid for it four years earlier. The transaction has received scrutiny from investigators, particularly because, though Trump justified the price increase by claiming he had “gutted the house” and spent $25 million on renovations, there were few apparent alterations. Such rapid and unexplained increases in price are frequently cited as red flags for money laundering through real estate.

It’s worth noting that the overall Florida real estate market had crashed between 2004 and 2008. Not many Florida property owners were smart enough to double their money during that period.

Trading in your wives is smart. Trump’s brilliance is not restricted to the business world. That whole “forsaking all others” and “till death do you part” thing is just another example of a contract that smart people can wriggle out of. Only suckers grow old with their first spouses, watching their bodies sag and wrinkle with age.

Ivana may have been a 28-year-old model when Trump married her in 1977, but by 1992 she was over 40 and had given birth to three Trump children. Her body was a depreciated asset by that point, so Trump moved on to Marla Maples, who he had met in 1989 when she was 25, and began a relationship with well before his divorce from Ivana. Trump and Maples then divorced in 1999, possibly because he had started dating 28-year-old Melania in 1998.

This short account leaves out his various affairs unrelated to marriage, like Stormy Daniels and Karen McDougal, as well as the women he has bragged about “grabbing by the pussy“.

At 72, is he done trading for newer models? Melania will turn 50 in 2020, a milestone no previous Trump wife has ever reached.

Employing undocumented immigrants is smart. American workers and green-card holders may have a lot of virtues, but they’re expensive and have a tendency to insist on their rights, all of which is very inconvenient for a business trying to make a profit.

Naturally, then, Trump’s clubs and golf courses have a long history of employing undocumented immigrants. It’s a win-win thing.

Angulo learned to drive backhoes and bulldozers, carving water hazards and tee boxes out of former horse pastures in Bedminster, N.J., where a famous New Yorker was building a world-class course. Angulo earned $8 an hour, a fraction of what a state-licensed heavy equipment operator would make, with no benefits or overtime pay. But he stayed seven years on the grounds crew, saving enough for a small piece of land and some cattle back home.

Now the 34-year-old lives with his wife and daughters in a sturdy house built by “Trump money,” as he put it, with a porch to watch the sun go down.

It’s a common story in this small town [in Costa Rica].

Other former employees of President Trump’s company live nearby: men who once raked the sand traps and pushed mowers through thick heat on Trump’s prized golf property — the “Summer White House,” as aides have called it — where his daughter Ivanka got married and where he wants to build a family cemetery.

“Many of us helped him get what he has today,” Angulo said. “This golf course was built by illegals.”

Cheating people who trust you is smart. The image Trump has consistently presented, particularly in The Art of the Deal, is of a brilliant businessman who received relatively little help from his father or Russian oligarchs, but made billions through his own remarkable abilities.

Who wouldn’t want to learn the secret tactics and techniques of such a successful money-maker? That was the premise of Trump University, a series of workshops and courses available to anybody who believed in the story Trump told about himself. The ads said:

He’s the most celebrated entrepreneur on earth. . . . And now he’s ready to share—with Americans like you—the Trump process for investing in today’s once-in-a-lifetime real estate market.

It was a con, one aimed not at bankers or other real-estate moguls or the government, but at “Americans like you”.

Jason Nicholas, a sales executive at Trump University, recalled a deceptive pitch used to lure students — that Mr. Trump would be “actively involved” in their education. “This was not true,” Mr. Nicholas testified, saying Mr. Trump was hardly involved at all. Trump University, Mr. Nicholas concluded, was “a facade, a total lie.”

Retirees and other folks who couldn’t afford to lose the money were encouraged to max out their credit cards to pay Trump U’s fees. After all, one of Trump’s get-rich secrets was to use other people’s money.

If he hadn’t been elected president, Trump might have stalled the lawsuits from his marks students long enough to get them to settle for far less than the $5 million profit he’s estimated to have made off them. But after the election he decided he needed to make this potential scandal go away, so he settled for $25 million.

Sometimes it’s smart to let the smaller con go so you can pursue the bigger con.

Profiting from public office is smart. Previous presidents have either put their investments in a blind trust or moved them into non-conflicting vehicles like treasury bonds. No law forced them to do this, it was just a political norm that they assumed voters cared about.

It took someone as ingenious as Trump to realize that voters actually don’t care, or that they’ll get used to conflicts of interest that occur on a massive scale.

This effect is similar to the Big Lie technique developed in Germany before World War II: Ordinary people tell little lies, so they’re well practiced at spotting them. But a big lie requires the kind of audacity that ordinary people lack. Since they can’t conceive of telling such a lie, they assume there must be some truth behind it. As one German leader put it: “It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously.”

Same thing here: Ordinary people understand small-scale cheating, so they’ll get upset if a politician hires an illegal immigrant as a nanny, for example. But if a president spends over $100 million of public funds on golfing at his own properties — more or less just transferring money from the Treasury into his own pocket — it goes right past them. They’ll care if contributions to a Clinton charity might get you an appointment with the Secretary of State, but if $200,000 paid directly to the President gets you membership in a club he visits almost every weekend, and might result in an ambassadorship, or even put you in a position to run a major government agency, it is so bold that people assume it must be OK.

Ditto for the people who contribute to Trump’s campaign: A big chunk of their contribution goes straight into his pocket, because the campaign is run through Trump properties. Since he became the 2016 nominee, Republican Party events have also largely been moved to Trump properties, generating a considerable profit. It’s right out there in the open, so it can’t be corrupt, can it?

He also profits from foreign governments and US companies who want to get in good with him: They are major patrons of the Trump International Hotel and Trump World Tower. The favors they want come from Trump the President, but the payments go to Trump the businessman.

A related issue is corruption throughout the administration. If one cabinet secretary is corrupt, he or she will stand out and be a scandal. But if nearly all of them are, the story is too big for the public to comprehend.

Changing your beliefs is smart. When Trump was breaking into New York society as the son of a new-money upstart, it was a good idea to profess New York ideas. In 1999, for example, he told Meet the Press:

Well, I’m very pro-choice. I hate the concept of abortion. I hate it. I hate everything it stands for. I cringe when I listen to people debate the subject. But, you still, I just believe in choice.

In the past, he also has supported gay rights and even trans rights. Over time, though, all that has vanished as he has harmonized his views with the Evangelical Christians who form a large part of his base.

Picture it: If you had been a pro-choice, pro-gay-rights, Bible-ignorant, twice-divorced libertine so comfortable in your debauched image that you can joke in public about incest with your daughter, would it have occurred to you that you could become the darling of the religious right? Could you have pulled that transition off?

That takes a kind of genius most of us can’t even imagine.

What about you? If you are a Trump supporter and look too closely at Trump’s ex-wives, Trump U students, or the pro-choice and LGBTQ people who trusted him, you might have a disturbing thought: At some point in the future, he might be able to gain some advantage from double-crossing you too.

Would he do that? Well, ask yourself this: Wouldn’t that be the smart thing to do?

By weeklysift | Posted in Articles | Also tagged | Comments (16)

Impeachment: On second thought …

April 29, 2019 – 11:20 am

Just as I was turning against impeachment, Trump changed my mind.

Last week I re-examined my prior standards and determined that removing Trump from office was a job for the voters, not for the impeachment process. That judgment went against my inclinations, but my purpose in writing down general standards last summer (long before I knew what the Mueller investigation would find) had been precisely that: to keep me from warping my standards to match the facts available.

The logic behind my conclusion was that impeachment needs to be a forward-looking process, not a backward-looking one. (I hadn’t put it that concisely until just now, but that really is the gist of it.) When presidents have done bad things, most of the time the right solution is to wait for the term to expire and elect somebody else, then prosecute the ex-president for any crimes. Impeachment shouldn’t be a form of punishment, but rather a break-glass-in-case-of-emergency option. You impeach not because a president is guilty, but because leaving him or her in office is dangerous.

That’s why treason and bribery are the crimes explicitly mentioned in the Constitution: If the president is under the control of some foreign power or wealthy paymaster, that’s dangerous. The country can’t wait for the next election, not because of what the president has done, but because of what the president might do between now and then.

As you might imagine, my model didn’t look kindly on the Clinton impeachment. I understand why some people would be outraged or embarrassed by the sexual revelations in the Starr Report, and might have wanted to punish Clinton in some way. But by no stretch of the imagination was it dangerous to leave him in office, and in fact the country did just fine after the Senate failed to remove him.

From that point of view, Mueller’s failure to find evidence of Trump conspiring with Putin was the key point. Leaving in power a president who was beholden to a foreign dictator would be precisely the kind of situation that impeachment is meant for. Mueller did find considerable evidence of Trump obstructing justice, and I hope both that the voters will take that seriously and that he’ll be prosecuted for it after he leaves office. But it’s not the same kind of emergency.

That said, I don’t think the Mueller Report is the final word on Trump’s culpability. I think we still need to know whether he is being financially influenced by Moscow, Saudi Arabia, China, or private interests in the US. And with regard to the other scandals of the administration, from Stormy Daniels to the widespread corruption in the cabinet to Jared’s clearance, Congress should be acting to collect information for the 2020 voters, who, if they are doing their duty by our founding principles, will resounding kick Trump out of office. (If they don’t, we’ve got bigger problems that just a bad president.)

So it’s very disturbing that Trump is once again upping the stakes: The Washington Post’s Steve Vladeck summarizes:

Trump, characteristically, seems to be taking the sort of fight most of his predecessors have had with the legislative branch and making the stakes far greater — and the possible damage far worse — than ever before.

The administration’s emerging position appears to be that Congress does not really have the power to investigate the president, at least not when one chamber is controlled by his political adversaries, even if whatever information it seeks might eventually be used in an impeachment proceeding. That’s a deeply disturbing argument, and one that, if successful, would tilt the separation of powers, perhaps irrevocably, toward the executive branch.

And the NYT’s Charlie Savage went into detail:

On Wednesday, the Justice Department said a civil rights division official, John Gore, would defy a subpoena to testify on Thursday about its addition of a citizenship question to the census. This week, White House lawyers indicated that they would tell the former White House counsel Donald F. McGahn II and other former officials not to comply with subpoenas for their testimony, a person familiar with the legal strategy said.

Mr. Trump has also sued to block a congressional subpoena of his accounting firm, Treasury Secretary Steven Mnuchin missed a deadline to turn over Mr. Trump’s tax returns to lawmakers and the former head of White House personnel security, Carl Kline, ignored a subpoena ordering him to appear for a deposition about overriding recommendations to deny security clearances.

Together, the events of the week made clear that Mr. Trump has adopted a strategy of unabashed resistance to oversight efforts by the House — reveling in abandoning even the pretense of trying to negotiate accommodations and compromise with the institution controlled by his political opponents.

“The president is attempting to repeal a congressional power of oversight that goes back to the administration of George Washington,” said Charles Tiefer, a former longtime House lawyer who is now a University of Baltimore law professor. He said “the comprehensiveness and intensity of this presidential stonewalling” exceeded anything he had seen in his 40-year career.

In other words, he wants to stop Congress from collecting information that would help the voters make their judgment about him and his administration, or that could reveal additional avenues for impeachment. And that changes the game: If the president interferes in this way, he’s preventing not just Congress from doing its job, but the voters as well. If that’s allowed, then the idea that removing Trump is the voters’ job falls apart — and once again, impeachment becomes necessary.

That thought sent me back to look at “What is impeachment for?” again. My fourth legitimate reason for impeachment is:

Congress has no other way to protect itself or the judiciary from presidential encroachment. This is not explicitly stated anywhere in the Constitution, but constitutional government doesn’t work otherwise. Congress necessarily relies on the executive branch to carry out the laws it passes. Presidents famously find loopholes that allow them to do things they want and avoid doing things they don’t want. But if a president ignores clear laws or disobeys direct court orders, Congress has to have some way to preserve the powers of the legislative and judicial branches of government. Waiting for the next election isn’t good enough, because (once the pattern is established) the next president might usurp power in the same way. Impeachment is the ultimate arrow in Congress’ quiver.

That’s the situation we seem to be in at this moment. If Trump won’t submit to the same level of congressional oversight that all previous administrations have allowed, that’s reason to impeach.

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Is Impeachment the Right Answer?

April 22, 2019 – 12:15 pm

The downside of doing something to keep yourself honest is that it might force you to stay honest.

Last June, I anticipated that the Mueller Report would eventually come out, and that we might then have to decide whether to support an impeachment. I also anticipated that partisan pressures would be intense at that point, and that people on both sides would face a strong temptation to shape their ideas about impeachment around the particulars of the evidence Mueller had found: If you were pro-Trump, no amount of wrong-doing would justify impeachment, but if you were anti-Trump, whatever Mueller found would be enough.

Certainly, we have seen enormous flip-flops among politicians who have been around since the Clinton impeachment. (Lindsey Graham is the most egregious example.) But the partisan winds affect all of us, and so I decided I wanted to get my ideas about impeachment written down before I knew precisely what Mueller would find. So I thought things through in the more-or-less abstract and posted “What is impeachment for?” I was trying to come up with an answer that I could stand by whether the target of impeachment would be a Republican or a Democrat. It should be consistent with the Founders’ intentions as expressed in the Constitution, as well as with my intuition about the impeachments in my lifetime. (I thought the Nixon impeachment was justified but the Clinton impeachment wasn’t.)

My standards for impeachment. Here’s what I came up with:

The Founders believed that any legitimate sovereignty had to come from the People, but they understood that the People would make mistakes. It was inevitable that sooner or later the United States would elect a bad president — a demagogue who was unwise, uninformed, and temperamentally unfit for the job.

It’s clear what they saw as the primary remedy for a bad president: Wait for his term to end and elect somebody else. (In the meantime, the other branches of government should use their checks and balances to minimize the harm he could do.) … Impeachment is in the Constitution for those rare cases where the country just can’t wait. … A legitimate impeachment case needs to argue that the Republic is in danger. There must be some reason why waiting for the next election either won’t work or isn’t good enough.

That led me to four situations that merit impeachment:

  1. The president is not loyal to the People of the United States.
  2. The president’s actions threaten the integrity of the election process.
  3. The president’s actions prevent investigations of (1) or (2).
  4. Congress has no other way to protect itself or the judiciary from presidential encroachment.

So if Mueller had found that Trump was conspiring with Putin, that would be a slam-dunk example of (1). But that’s not what he found. Instead, he assembled evidence of obstruction of justice, which I find convincing. So I believe that the President of the United States is a criminal.

However, back in June I anticipated this situation too:

The offense Mueller is most likely to find is obstruction of justice. The question I would have at that point is whether the obstruction succeeded. (Firing Comey, for example, may have been intended to derail the Russia investigation, but it obviously didn’t.) If Mueller’s conclusion is that Trump’s obstruction prevents us from knowing whether he was part of a treasonous conspiracy, then I would want to impeach him for that. But if Mueller did in fact get to the bottom of the Russia affair, then the impeachment decision should be based on the answer to that question.

The only loophole I can picture in that is if you hold Trump responsible for Paul Manafort’s non-cooperation, and believe that a cooperating Manafort would have revealed a treasonous conspiracy. That’s not impossible, but it seems like a stretch at this point.

Is the Republic in danger, and if so, from what? I won’t pretend that I wasn’t frightened by what I read in Mueller’s report. In one example after another, Trump displayed an attitude of lawlessness; he wanted what he wanted, and if someone told him it was illegal, he’d ask someone else to do it. (We’re getting similar reports about his immigration policy. He is already ignoring our laws defining the asylum process, and his rhetoric is preparing his cult of followers for worse abuses — for example, when he refers to laws he doesn’t like as “Democrat laws“, as if that invalidates them.) I don’t think we’ve ever had a president with such a cavalier disregard of his prime constitutional duty: to see that the laws are faithfully executed.

The president’s refusal to be interviewed by Mueller, and the answers he did give to written questions (Appendix C of the report), also show a frightening level of disrespect. If Trump really has so little memory of what he has done and who he has talked to, then the Vice President should invoke the 25th Amendment on the grounds of senile dementia.  More likely, though, he just sees “I don’t remember” as a lie no one can catch you in.

In 2016, the 46% of the voters who voted for Trump, and so allowed the Electoral College to install him in office, clearly made precisely the kind of mistake that the Founders foresaw. Elections have consequences, and so our Republic is suffering for that lack of wisdom. We have already lost many of the norms that protect us from authoritarianism; for example: the independence of the Justice Department, the expectation that a president would be shamed if caught in a lie, and the expectation that a president would not profit from dealing from foreign countries (and would show us his finances so that we can check).

If the House doesn’t impeach Trump and the Senate remove him from office, what is the remedy?

In part, we’ve been living it for two years now: checks and balances need to limit the damage Trump does until the voters can repudiate him. Other government officials have repeatedly refused to carry out some of Trump’s illegal orders, and judges have stood in the way of others. Congress has refused to let him pay Putin back by relaxing sanctions. The voters elected a Democratic House that can block many of his worst ideas, and can expose wrongdoing to the public.

In some ways, though, the checks and balances are failing. It is within Congress’ power to enforce the Emoluments Clause of the Constitution more rigorously, but it hasn’t done so. Congress could have defended its own power by overriding Trump’s veto of the resolution rescinding his state of emergency, but it didn’t. But these are failures of the same people who would have to remove Trump from office in impeachment. If you can get two-thirds of the Senate to see the problem and take action, then arguably you don’t need to remove Trump from office.

But that points to the real problem: Congress doesn’t have a supermajority willing to defend the Republic against a bad president. And behind that is another problem: While polls consistently show that Trump is unpopular, the public has not decisively rejected him in the way that, say, they rejected Richard Nixon once the details of the Watergate scandal became clear.

That’s the real source of danger: About 40% of the public doesn’t believe in the American system of government any more. They are fine with a lawless, dishonest president, as long as they believe he’s on their side.

A thought experiment. How would you feel about impeachment if Trump were already a pariah, if Congress routinely overrode his vetoes, and if candidates were lining up to challenge him not just on the Democratic side, but on the Republican side also? If you were confident that he faced a landslide loss in 2020, and that Republicans might anticipate that and not renominate him — would you feel better about waiting for his term to end?

I would. In large part, my urge to impeach is driven by my fear that the electorate can’t be trusted to repudiate Trump.

But of course, as long as that’s true, the Senate will never remove him from office. If the voters won’t defend the Republic, nobody else will either.

Hazards of not impeaching. In large part, Democrats are facing now the kind of problem that Republicans faced during the Clinton/Lewinsky scandal: What can we do with our moral outrage? Republicans read the Starr Report in 1998 (unlike Mueller, Starr timed his report for maximum political effect), were outraged at the thought of extra-marital oral sex in the Oval Office, and felt: “This can’t stand. We have to do something.” [1]

The danger of doing nothing is that it creates the impression that Trump did nothing wrong. “If this were serious,” his supporters will say, “you’d be trying to impeach him.” It also immunizes him against further revelations that may come out of the investigations that Mueller spun off. It encourages him to take even more lawless actions, and may convince his subordinates that it would be no big deal to go along with him.

The politics. Some leading Democrats are taking the position that impeachment should be off the table because it’s not the best political move: Making Trump the center of the 2020 campaign plays into his hand. Instead, 2020 should be about health care, climate change, income inequality, and voting rights.

That’s true up to a point. Many of the voters we need to turn out aren’t concerned about “process issues” like whether the president respects the law. They want to know what each party plans to do for them, and what the Democrats plan has far more appeal than what Trump plans. (Most of those voters don’t really care about stopping migrant caravans either.)

Democrats shouldn’t get so caught up in opposing Trump that they lose sight of all other values. But in addition to pocketbook issues, Democrats need to be the party of honesty and good government. The very idea that Trump is a threat to American democracy, but that we’ll ignore it because that issue isn’t polling well for us right now — it undermines everything else. Some things are too important to calculate over, and this is one of them. The world where principles are just for show, and really everybody does whatever works to their advantage — that’s Trump’s world. If we move there, we lose.

Keeping the pressure on. The trick will be to find a middle way: to continue calling Trump’s lawlessness to public attention, while arguing that political repudiation is the voters’ job, and that indictment after he leaves office is a sufficient legal response. The issues raised by the Mueller report need to stay in the spotlight. For now, congressional hearings should be able to serve that purpose: Mueller and Barr need to testify in public, certainly, and probably a number of the administration officials who were told to break the law, like Don McGahn.  Lawlessness in other areas, like border enforcement, needs to be pulled into the theme.

But there’s no reason why these sorts of hearings have to eclipse all other issues. The House has already passed a comprehensive voting-rights bill. It can pass bills to define the rest of a positive agenda.

[1] Our outrage, I think, is far more justified, for two reasons: The obstruction case against Trump is far stronger than the one against Clinton, and it involves misuse of his presidential powers rather than just personal vices.

When I listened to the Senate hearing of the Clinton impeachment, I was amazed by how weak the obstruction case was: Republican prosecutors told a plausible story of obstruction — Clinton induced Monica Lewinsky to lie in a civil deposition by convincing Vernon Jordan to get her a good job at Revlon — but beyond showing that all the people who needed to conspire had opportunity to communicate with each other, they had no evidence.  The conspiracy was denied by everyone supposedly involved, including people who had nothing to gain by lying, like Lewinsky (who had immunity) and the folks at Revlon.

By weeklysift | Posted in Articles | Comments (9)

Yes, Obstruction

April 22, 2019 – 8:19 am

Mueller gave his reasons for not reaching a conclusion on obstruction. Those reasons don’t apply to the rest of us.

I draw three main conclusions from the Mueller Report:

  • Russia interfered in the 2016 presidential campaign for the purpose of electing Donald Trump.
  • While Trump and his campaign welcomed and at times even encouraged Russian help, the evidence the investigation collected doesn’t support a charge of criminal conspiracy, and the evidence isn’t sufficient to charge any individual connected to the Trump campaign (officially or unofficially) with acting as a Russian agent.
  • In view of the Justice Department guideline that a sitting president can’t be indicted, Mueller assembled evidence about the instances where Trump may have obstructed justice, but left the ultimate judgment to people in a position to take action: Congress or post-Trump-administration prosecutors (and not Bill Barr).

Since these are not at all the conclusions Attorney General Barr put forward in his four-page summary or his introductory press conference, I am led to a fourth conclusion: Barr has been acting as a personal attorney for Trump, and not as the attorney general of the United States. [1]

No judgment about obstruction. The third conclusion is the one most distorted by Barr, so it needs the most explanation. Here’s what the report says in the introduction to Volume II, which discusses Trump’s possible obstructions of justice:

[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes. … Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

On the other hand, if the evidence clearly showed that no crime was committed — that would be the “total exoneration” Trump keeps announcing — Mueller had been prepared to say that. Unfortunately, he couldn’t.

[I]f 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 addition to the facts investigation has assembled, convicting Trump of obstruction of justice would depend on judgments about his intent as well as legal judgments about when the official actions of a president can be considered obstruction. Mueller has opinions about those subjects and expresses them in the report, but is not comfortable drawing all of that into a conclusion that could not be tested in court for the rest of the Trump administration.

Nothing in the report suggests that he is kicking the decision upstairs to the attorney general, as Barr put forward.

Actions that might be considered obstruction. The report examines ten incidents as possible obstruction-of-justice counts. [2] In each case, Mueller analyzes the three factors that would need to be established:

  • an obstructive action (which need not necessarily succeed),
  • some connection (“nexus”) to an official proceeding
  • corrupt intent

Some of the ten, Mueller dismisses as not chargeable. For example, Trump’s effort to keep the content of the Trump Tower meeting from becoming public, including his dictation of a false statement that the meeting concerned Russian adoptions rather than a Russian offer of “dirt” on Hillary Clinton: It’s not obstruction because Trump was hiding the truth from the press and the public, not from an official investigation.

Each of these efforts by the President involved his communications team and was directed at the press. They would amount to obstructive acts only if the President, by taking these actions, sought to withhold information from or mislead congressional investigators or the Special Counsel.

Trump asking Comey to let Flynn go. Mueller’s analysis seems to confirm that each of the three factors is present here, but the case hangs on believing James Comey’s version of his conversations with Trump rather than Trump’s version. However, it’s not a pure he-said/she-said: “substantial evidence corroborates Comey’s account”.

Trump’s reaction to the continuing Russia investigation. This includes pressuring Jeff Sessions not to recuse himself, and pressuring the DNI, CIA director, and NSA director, as well as Comey, to make public statements clearing him of involvement with Russia.

While these actions are “relevant to understanding what motivated the President’s other actions towards the investigation”, they don’t seem chargeable in themselves because “the evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation”.

Firing James Comey. While Trump’s “stated rationales for why he fired Comey are not similarly supported by the evidence”, this action also was arguably motivated by Comey’s refusal to tell the public that Trump wasn’t under investigation, rather than by a desire to shut down the investigation. [3]

In fact, Comey’s firing didn’t shut down the investigation, and could not have been expected to. (Steve Bannon had told Trump that he could fire Comey, but he couldn’t fire the FBI.) It would also be obstruction if Trump intended Comey’s firing to intimidate the next FBI director, but that also has not been proved.

Attempts to remove the Special Counsel. Trump denies that he ordered Don McGahn to instruct Rod Rosenstein to fire Robert Mueller (and McGahn ignored him anyway). [4] But “substantial evidence” supports the conclusion that he did.

the attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.

That sounds like a yes to me. At this point Trump knew he was under investigation for obstruction of justice, at the very least. So the second box is checked as well, and checked for all subsequent incidents.

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

So this count is a good candidate for an obstruction of justice charge. The fact that McGahn didn’t do what the president told him to do saves McGahn from being guilty of obstruction, but not Trump.

Attempts to curtail the scope of the investigation. Two days after telling McGahn to get Mueller fired, Trump was telling Corey Lewandowski to instruct Jeff Sessions to unrecuse himself and instruct Mueller to limit his investigation to “election meddling for future elections”. (Lewandowski likewise didn’t deliver Trump’s message. Instead he passed it on Rick Dearborn, who didn’t deliver it either.)

The three factors are all present here. This is another good candidate.

Further attempts to get Sessions to unrecuse and take control of the investigation. This count hangs on whether Trump believed Sessions would impede or restrict the investigation if he were back in charge of it.

A reasonable inference from those statements and the President ‘s actions is that the President believed that an unrecused Attorney General would play a protective role and could shield the President from the ongoing Russia investigation .

The charging decision would revolve around whether a “reasonable inference” is strong enough.

Ordering McGahn to deny that Trump told him to fire Mueller. When the New York Times broke the story about McGahn being ordered to get Mueller fired, Trump wanted McGahn to deny it, and to write a letter “for our records” denying it.

The President’s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.

… Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated , the President acted for the purpose of influencing McGahn ‘s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.

The fact that Trump wanted a letter for the files indicates that this wasn’t just a press strategy.

Another good candidate.

Attempting to affect the cooperation or testimony of Michael Flynn, Paul Manafort, and somebody else whose name is redacted. This has to do with the repeated hints that Trump might pardon people who stand by him. His public comments also might have been intended to sway the jury in Paul Manafort’s trial. In Flynn’s case, the broadest hints came primarily through Trump’s lawyers, so it’s not possible to know whether that message came from Trump himself.

Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government.

That would be witness tampering, which is a type of obstruction.

Attempts to influence Michael Cohen. This is similar to the Flynn/Manafort stuff in the last section, but moreso.

We gathered evidence of the President ‘s conduct related to Cohen on two issues: (i) whether the President or others aided or participated in Cohen’s false statements to Congress, and (ii) whether the President took actions that would have the natural tendency to prevent Cohen from providing truthful information to the government.

On (i), Mueller says that the evidence does not establish that Trump “directed or aided” Cohen’s false testimony. On (ii), the logic is similar to Flynn/Manafort, but also included Trump accusing Cohen’s wife and father-in-law of committing crimes.

The evidence concerning this sequence of events could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating. … the President’s suggestion that Cohen ‘s family members committed crimes happened more than once , including just before Cohen was sentenced (at the same time as the President stated that Cohen “should, in my opinion, serve a full and complete sentence”) and again just before Cohen was scheduled to testify before Congress. The timing of the statements supports an inference that they were intended at least in part to discourage Cohen from further cooperation.

In other words, witness tampering.

Summary of obstruction incidents. By my count, six of the ten incidents look like obstruction of justice. The other four may not contain all the elements of obstruction, but they lend themselves to an overall pattern of obstruction.

Although the events we investigated involved discrete acts- e.g., the President’s statement to Comey about the Flynn investigation , his termination of Comey, and his efforts to remove the Special Counsel – it is important to view the President ‘s pattern of conduct as a whole. That pattern sheds light on the nature of the President ‘s acts and the inferences that can be drawn about his intent.

And the pattern is the point. In some of the six obstructions, you might decide that the “substantial evidence” Mueller cites is not beyond reasonable doubt. But when you see the whole list, reasonable doubt vanishes. The President obstructed justice. [5]

[1] ] As Joyce Vance put it: “the President’s lawyer, not the People’s lawyer”. The notes of sadness, disappointment, and puzzlement in her voice are worth listening to. She “looked up to and admired attorneys general” during her 25 years in the Justice Department, which included Barr’s term as AG under the first President Bush. “To hear an attorney general lie from the podium at the Justice Department about the contents of a report that had been done on a serious criminal case is so stupefying.”

Barr raises the same question as John Kelly, Kirstjen Nielsen, and countless other administration officials: You had a respectable career and a solid reputation; why are you lighting it on fire for this unworthy leader?

[2] If you want a more detailed description of each incident, look here, or in the report itself. I’ve chosen to focus on Mueller’s obstruction reasoning.

[3] This was an extraordinarily petty reason for a president to tear down the norms of FBI independence that previous administrations had built up, but norms are not laws.

[4] This is a pattern in many of the incidents Mueller examined: Trump ordered a subordinate to do something illegal, but the subordinate didn’t do 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. Comey did not end the investigation of Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. Lewandowski and Dearborn did not deliver the President ‘s message to Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to recede from his recollections about events surrounding the President’s direction to have the Special Counsel removed, despite the President’s multiple demands that he do so. Consistent with that pattern, the evidence we obtained would not support potential obstruction charges against the President’s aides and associates beyond those already filed.

This is also a pattern we can see elsewhere in the administration: in immigration policy, for example. Trump wants people who will break the law for him. You have to figure that eventually he’ll find some, if he hasn’t already.

An attempt to obstruct an investigation need not succeed in order to be illegal. And if it does succeed, and the underlying crime is covered up, you run into the opposite argument, which Trump’s people are also making: How can it be obstruction if you don’t know of any crime for the investigation to find? Between the horns of that dilemma, the crime of obstruction disappears completely.

An example of the opposite horn: We’ll never know what crimes Paul Manafort might have revealed if he had actually cooperated.

[5] The next question is: What should be done about it? I’ll take that up in my next post, which should be out in a few hours.

By weeklysift | Posted in Articles | Comments (18)

Mueller by Gaslight

April 1, 2019 – 8:52 am

Last Monday, Special Counsel Robert Mueller’s report had only been finished for a few days, and Attorney General Bill Barr’s first letter to Congress had only come out the day before. All through this process, I’ve been urging patience over speculation, so my initial impulse was to give Barr the benefit of the doubt, at least for a little while. After all, he was promising to do the right thing:

[M]y goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.

His second letter, written Friday, fleshed that out a little.

I anticipate we will be in a position to release the report by mid-April, if not sooner.

In between, though, Trump and his supporters have gone on a scorched-earth victory lap. First he claimed a vindication that so far is not supported by the available facts,

No Collusion, No Obstruction, Complete and Total EXONERATION. KEEP AMERICA GREAT!

He went on to demand revenge against the enemies who supported investigating the President’s dubious relationship with Russia in the first place.

Congressman Adam Schiff, who spent two years knowingly and unlawfully lying and leaking, should be forced to resign from Congress!

Trumpists in Congress — who said nothing when Schiff’s predecessor Devin Nunes ran the House Intelligence Committee in a thoroughly partisan manner — joined in:

Republicans in Congress and the White House are calling for Rep. Adam Schiff to resign his position as the Chair of the House Intelligence Committee. The president and his supporters say Schiff perpetuated a false narrative about Trump and his potential illegal activities.

At a rally in Grand Rapids Trump listed his enemies — Schiff, Jerry Nadler, the media — and led a chant of “Lock them up!“. Lindsay Graham, who chairs the Senate Judiciary Committee wants to investigate the people who investigated Trump:

We need a special counsel to look at the potential crimes by the Department of Justice — the FBI — regarding the Clinton e-mail investigation and the Russian investigation against Trump early on.

Trump also wants revenge against the media.

So funny that The New York Times & The Washington Post got a Pulitzer Prize for their coverage (100% NEGATIVE and FAKE!) of Collusion with Russia – And there was No Collusion! So, they were either duped or corrupt? In any event, their prizes should be taken away by the Committee!

(MSNBC’s David Guru examined how the NYT and WaPo reporting holds up: pretty well, it turns out.)

The Trump campaign sent out a memo asking networks to blacklist critics of the administration:

“Moving forward, we ask that you employ basic journalistic standards when booking such guests to appear anywhere in your universe of productions,” the memo read. “You should begin by asking the basic question: ‘Does this guest warrant further appearances in our programming, given the outrageous and unsupported claims made in the past?‘”

The memo, written by communications director Tim Murtaugh, lists Sen. Richard Blumenthal (D-Conn.), Rep. Adam Schiff (D-Calif.), Rep. Jerrold Nadler (D-N.Y.), Rep. Eric Swalwell (D-Calif.), Democratic National Committee Chairman Tom Perez and former CIA Director John Brennan.

And all this is based on what exactly? A four-page letter written by an attorney general that Trump hand-picked for this purpose. And that letter itself may not say as much as it seems to.

Barr’s summary. In general, as facts trickled out of the Special Counsel’s office during the last two years, I have tried to avoid tea-leaf reading. I figured that there would eventually be an actual report that said things clearly. I stuck to that policy last week, and did not do a word-by-word analysis of Barr’s letter. But if Trump and his supporters are going to get this far ahead of the facts, and to try to bully various players in our political system into actions based on their extreme interpretation of Barr’s letter, then I think it would be irresponsible to let those interpretations own the field until Barr sees fit to release some version of Mueller’s actual report.

So what exactly did Barr say?

The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 presidential election. As the report states: “[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

I think it’s rational to assume that Barr is being a good servant to his master here: Assuming that what this passage says is true at all (always a major concession when dealing with the most dishonest administration in my lifetime), it reads Mueller’s report in the way most favorable to Trump’s interests. And it does not say “no collusion”. It says that Mueller could not prove that the Trump campaign and the Russian government were directly conspiring. But was Roger Stone part of the Trump campaign? Was Russian oligarch (and Paul Manafort’s former employer) Oleg Deripaska part of the Russian government? What if WikiLeaks was a middleman, conspiring on the one hand with Russia and on the other with the Trump campaign?

In other words, the quote could mean what Trump wants it to mean: that Mueller found the accusations of collusion entirely baseless. Or it could mean that Mueller found a lot of suggestive and suspicious evidence, perhaps better than 50/50 evidence, but no smoking gun — at least not one that would stand up in a criminal trial — that could be tied all the way back to Trump in one direction and Putin in the other. We won’t know which is closer to the truth until we can read the full report.

The second part of Trump’s claim — “no obstruction” — has nothing to do with Mueller. Barr writes:

The Special Counsel did not draw a conclusion — one way or the other — as to whether the examined conduct [of the President] constituted obstruction. … The Special Counsel states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.” … Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

Again, not a clean bill of health, just a statement that the evidence is insufficient to prove a crime in court, at least in Barr’s mind, though not necessarily in Mueller’s. (If Rod Rosenstein really does agree with Barr’s conclusion, I’d like to hear him say so himself, rather than let Barr put words in his mouth.) And if that’s the most favorable-to-Trump interpretation possible, then I have to agree with George Conway (Kellyanne’s husband):

Americans should expect far more from a president than merely that he not be provably a criminal.

To conclude this section: Nothing in the information currently available would justify making Schiff resign, rescinding the Pulitzers of the Times and Post, investigating the investigators, letting the Trump campaign write a media blacklist, or locking up any Trump critic. If Trump thinks the full Mueller report contains such information, well, release it and then we’ll all see.

Why the delay? Which brings up the question of why no one can see the report yet. (Alex Cole pointed out how typical this is: “Donald Trump is: 1) ‘a billionaire’ but you can’t see his taxes 2) ‘a genius’ but you can’t see his grades 3) ‘exonerated’ but you can’t see the report.)

In his first letter, Barr listed two things he needed to redact before making the report public. His second letter expanded it to four things:

  • proceedings of a grand jury
  • whatever might compromise intelligence sources and methods
  • material that could affect “other ongoing matters”, which I take to mean open investigations
  • “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties”.

House Judiciary Chair Jerry Nadler has pointed out that these may be considerations that limit what can be released to the public, but they shouldn’t (and usually don’t) apply to Congress.

[R]ather than expend valuable time and resources trying to keep certain portions of this report from Congress, [Attorney General Barr] should work with us to request a court order to release any and all grand jury information to the House Judiciary Committee — as has occurred in every similar investigation in the past.

Similarly, the House Intelligence Committee routinely deals with intelligence sources and methods; there’s no reason to keep any part of the report secret from them on that account. Having seen how Mueller writes his indictments, I would be greatly surprised if information that could affect “other ongoing matters” hasn’t already been identified and segregated.

And then we come to the “reputational interests of peripheral third parties”. This looks like a black hole that could suck down anything Barr doesn’t want the public to know. Because who exactly are peripheral third parties? Trump family members? Anybody not specifically indicted? And I’m not aware of any widely accepted definition of “reputational interests”.

Since there really is no good reason that the report has been held so closely, I have to assume that the motive is political: to intimidate Trump’s critics, and so create a period during which Trump’s defenders would own the field. If during this period they succeed in bullying Democrats into silence, then perhaps they won’t have to release the report at all.

Don’t think nobody has thought of that. A recent poll showed that 40% of Republicans think that Barr’s letter is enough; nobody needs to see the rest of Mueller’s report. If Democrats got sufficiently intimidated, not releasing the report could be spun as a magnanimous gesture: There’s no need to embarrass Democrats further; let’s just move on.

And what about Barr’s promises? Well, these things have a way of evaporating if nobody insists on them. Remember when Trump was going to have a news conference to present the evidence that Melania came to America legally? Never happened. And who can count the number of times Trump said he was going to release his taxes?

The gaslighting hasn’t worked. For a few days, Barr’s first letter and Trump’s response to it threw Democrats for a loop: What if Mueller’s report really does totally vindicate Trump? What if it all does turn out to be a big nothingburger and we have to eat all the words we’ve said in the last two years? Do we really want to say more words, knowing that they might come back to us along with all the others?

But by mid-week I think a lot of people independently came to the same conclusion: If this report really did exonerate Trump, it would already be public. And the rush to judgment among Trump supporters has been a little too extreme. You don’t do that when you know that the slowly grinding mills are going to get you what you want.

Thursday, Republicans on the House Intelligence Committee read a letter asking Chairman Adam Schiff to resign, and Schiff was ready for them. He listed all shady stuff we know about Trump and Russia in a litany of “You may think it’s OK if …”. It went viral.

Since then, I think a lot of us have been in a mood to call Trump’s bluff: You think you’ve got the goods? Let’s see them.

It will all come out eventually. I suspect we will at some point see nearly all of the Mueller Report. It will come out, because the benefit of keeping it secret is fading: If it exonerates you, let’s see it. If we can’t see it, it probably doesn’t exonerate you.

Some parts of the public report may be redacted, and a few names of more-or-less innocent people may be replaced by the kind of placeholders that labelled Trump as “Individual 1” in the Michael Cohen indictment. But we will see it, and Congress will see it in its original form.

This is a testing period, where Trump’s people have been gaslighting us with their interpretation of the report we can’t see, and are floating the idea of keeping the report secret just to see if they can get away with it. In the end, I suspect, the public and the Democrats in Congress will stand firm, and Barr will magnanimously fulfill his promise. “See,” we’ll be told, “you’ve been getting all upset about nothing again. We said we’d release it, and here it is.”

However, the test is real. If they could get away with burying the report, they would. The first version Barr releases will probably be inadequate in one way or another, and the deadline for releasing it might slip further, just to see if anyone cares. But people care.

And when it does come out, the Adam Schiff approach is exactly right. “Does this evidence establish a crime beyond a reasonable doubt?” shouldn’t be the only question. We also need to ask: “Is this kind of behavior OK? Are we willing to accept that American democracy will look like this from now on?”

Inside the Trump bubble it will make no difference. Fox News has trumpeted that the Mueller Report clears Trump, and that conclusion will be allowed to stand after the report comes out, whether it is accurate or not. Anyone who dares to raise the issue will be treated as a traitor and drummed out of the community.

But for the rest of the country, I think the answer will be No. We don’t want our presidents getting elected this way. And once they’re in office, we don’t want them to behave in a way that makes us wonder if they’re loyal to a foreign adversary. That may or may not be a crime. But it’s not OK.

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