Blog on the Run: Reloaded

Saturday, November 2, 2019 6:33 pm

So much for “no collusion”

Thanks to a lawsuit filed by Buzzfeed News, CNN and other outlets, some of the FBI interview forms (Form 302s) and emails that formed the basis for the report by special counsel Robert Mueller have been made public. Reporters for those outlets have been digging through them all afternoon, tweeting one nugget after another. (More will be released each month for what could take years.)

But here’s the big picture: There is documentary evidence of presidential candidate Donald Trump telling his staff in 2016, “Get the emails,” referring to the emails hacked from the Democratic National Committee’s server. The records show that those emails were known to be the work product of Russian-allied entities, e.g., Wikileaks.

So what does that mean?

Telling your staff, “Get the emails” is the same thing as telling your staff, “Go collude.” Which is one HELL of a long way away from “no collusion.” It’s almost as much a long way from “no conspiracy.”

So why was this fact — excuse me, this SMOKING GUN — omitted or redacted from the Mueller report? And was the omission Mueller’s work, or FBI Deputy Director Rob Rosenstein’s, or then-Attorney General Jeff Sessions’s, or someone else’s? Because it looks like Trump’s guilty of conspiracy and whoever covered that fact up is guilty of obstruction of justice. And those documents still have been public for only a few hours.

Wednesday, May 29, 2019 7:29 pm

Mueller to U.S. House: Saddle the hell up

Robert Mueller all but begs Congress to impeach Donald Trump and implicitly tears a deserving news media a big new orifice in the process.

Outgoing special counsel Robert Mueller made several critical points today in his roughly eight-minute statement at the Department of Justice.

First (and I’m not necessarily going in chronological order here), he emphasized at both the beginning and the end of his statement that the evidence is crystal clear that Russian military intelligence sought to interfere with the 2016 presidential election for the benefit of Donald Trump and that they are continuing to try to interfere with U.S. elections even today.

Second, he emphasized that the Mueller report speaks for itself, which was a polite way of saying that if the people whose jobs it was to tell us what was in the report had done their jobs and read the damned report, we wouldn’t be nearly so confused about the way forward and we wouldn’t have wasted the past two months. Instead, he implicitly pointed out, journalists covered what people (i.e., Attorney General William Barr) SAID about the report, rather than what the report itself said, to the detriment of the American public. As The Atlantic’s Adam Serwer put it, “Mueller’s statement is an indictment of a press that focused more on what people had to say about the report than what the report said, because the former was easier to cover. No one has learned anything.” (The first three rules of investigative reporting are “Follow the money,” “follow the money,” and “follow the money,” but Rule 4 is, “Always read the documents” and Rule 5 is “Always do the math.”)

Third, he said that he did not seek charges against Trump because Justice Department policy, while authorizing investigations of a sitting president “while memories are fresh and documents are available,” forbade charging a sitting president. (For what it’s worth, George Washington University law professor Jonathan Turley went on CBS immediately after the statement to say that, constitutionally speaking, Mueller was “dead wrong,” that Trump indeed could have been indicted.) Mueller clearly implied that had Trump been anyone but the sitting president, he would have been indicted.

Fourth, he fleshed out that point by observing that, contrary to what Donald Trump and Barr have said, the report is not an exoneration. Indeed, he said, “As set forth in our report, after that investigation, if we had confidence that the president clearly did not commit a crime, we would have said that.”

Fifth, he emphasized that that obstruction definitely had hampered his campaign: “When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.” The implication, though it is only that, might explain why he failed to find enough evidence to indict people on the conspiracy charge. Because while Vol. 1 of the report said Mueller’s team found insufficient evidence to indict Trump on a conspiracy charge, notwithstanding Trump’s lies, you can’t swing a dead cat in it without running across multiple instances of collusion, a concept that has real-world meanings but no legal significance.

Fifth, he re-emphasized that in his view and given Justice Department policy, it was not for Justice to accuse a sitting president of wrongdoing; rather, that responsibility fell to Congress. Combined with the documentation in Vol. 2 of the Mueller report of up to 10 instances of obstruction of justice on Trump’s part, he seemed to be practically begging the House to begin impeachment hearings.

He said a few other noteworthy things, such as that even if he were to appear before Congress to testify, he would not go beyond what’s already in the report. Legally and constitutionally, that’s a dubious claim, particularly if the House opens impeachment hearings. If the House subpoenas him and asks him questions and he refuses to answer, he can be held in contempt and spend up to a year in jail. Moreover, as Esquire’s Charles Pierce observed:

He has no excuse left. He is a private citizen now. And if he only repeats what’s in the report, on television, in front of the country, it will contribute mightily to the political momentum behind the demands that Congress do its damn job or shirk its duty entirely. He still needs to testify. He still needs to take questions. He’s only a citizen like the rest of us now, and he has a duty to do the right thing. We all do.

And Mueller said that our ongoing election-security weaknesses “deserve the attention of every American.” That assertion must be weighed against Republicans’ outright hostility, and particularly that of Mitch McConnell, to taking the slightest action to make elections more secure, such as, oh, I don’t know, even holding a vote on H.R. 1.

But his main points make clear what I and many others, from Laurence Tribe of Harvard Law School to Rep. Justin Amash, Republican of Michigan, already have been saying: It is past time for the House to begin formal impeachment hearings. House Speaker Nancy Pelosi and her second-in-command, Steny Hoyer, publicly have been reluctant to acknowledge that the need exists. But House Judiciary Chairman Jerry Nadler, whose committee would be the one to hold such hearings, said today:

Although Department of Justice policy prevented the Special Counsel from bringing criminal charges against the President, the Special Counsel has clearly demonstrated that the President is lying about the Special Counsel’s findings, lying about the testimony of key witnesses in the Special Counsel’s report, and is lying in saying that the Special Counsel found no obstruction and no collusion. Given that Special Counsel Mueller was unable to pursue criminal charges against the president, it falls to Congress to respond to the crimes, lies, and other wrongdoing of President Trump — and we will do so. No one, not even the President of the United States, is above the law.

Democrats have talked tough before only to fold, and there’s no guarantee they won’t fold again. But I believe at this point that whether or not Democrats actually pull the trigger on impeachment hearings, they at least have heard and understood that that is what the outgoing special counsel is asking, if not begging, them to do. I won’t reiterate the many reasons why I think it’s important to do so, except to say this: Thanks in large part to our mealy-mouthed news media, Trump has been able to spend the past two months lying with impunity about the findings of the Mueller investigation. Anyone who saw and heard Mueller speak today now knows that Trump has been gaslighting the American public — and that televised impeachment hearings aren’t just a constitutional necessity but also a necessary news and public relations corrective to Trump’s gaslighting. I hope and trust that Nadler and other House committee chairs, currently on Memorial Day recess, will make this happen soon.

Wednesday, May 8, 2019 7:36 pm

NPR: Your so-called liberal media at work

When NPR lets a war criminal like John Yoo defend the Trump administration’s defiance of subpoenas and contempt of Congress, it is neither liberal nor news media.

Today was long and full of aggravations, from morning to evening. And to end it this afternoon, like a rancid cherry atop a shit sundae, we got a 5 p.m. report from NPR on the White House’s claim of executive privilege in withholding the full Mueller report, with underlying evidence, from the U.S. House, which has subpoenaed it.

Now, let’s be very clear here. The U.S. House, as a co-equal branch of government, has an almost absolute right to subpoena any document or person in either of the other two branches for the purpose of conducting oversight. There are a few limited exceptions, but no one has offered any that such constitutional experts as Laurence Tribe of Harvard take seriously.

But NPR calls today’s vote by the House Judiciary Committee to hold Attorney General William Barr in contempt “a major escalation of a battle between President Donald Trump and the House Democrats investigating his administration.” That framing almost makes it look as if the House is at fault. At the least, that’s misspelling “a perfectly justified and long overdue attempt by the House to bring this lawless administration to heel” so badly you can’t even hardly recognize it.

Yeah, House Judiciary Chair Jerry Nadler is quoted as saying, “If allowed to go unchecked, this obstruction means the end of congressional oversight.” But the segment treats this conflict as a normal and unremarkable contest between White House and Congress in which both sides are more or less equally at fault and nothing particularly significant is at stake. In fact, the framers of the Constitution viewed legislative oversight, including impeachment when appropriate, as essential to preventing a runaway executive. Having lately fought a war to rid themselves of one runaway executive, they wanted to make damn good and sure there would never be another.

And that’s the just the intro. Reporter Kelsey Snell’s report is in the worst tradition of mainstream reporting, offering a very careful one-side-says-this, the-other-side-says that take that manages to be almost 100% journalism-free, particularly the failure to note that some of the limitations Justice attempted to place on access to the unredacted report had no basis in law whatever.

“It’s partially political, partially symbolic, but it’s also pretty high-stakes,” Snell said, not even bothering to mention that one and only one side in this dispute is, you know, breaking the law.

That was bad enough. But made me actually pull my car over to the side of Walker Avenue, stop dead, and shriek like a banshee at the radio was that NPR’s next segment devoted a huge 7.5 minutes to the legal stylings of alleged law professor John Yoo and his resurrection of the corpse of the “unitary executive.”

Who is John Yoo and what is the “unitary executive,” you ask? Yoo, now at Berkeley, was deputy assistant attorney general in the Justice Department’s Office of Legal Counsel under President George W. Bush. He wrote the so-called “torture memos” justifying torture as an instrument of national policy under Bush. For that alone, he should have been hanged at The Hague, particularly inasmuch as he wrote in 2002, by which time the U.S. already was engaged in torture, meaning he wrote it to try to provide justification in hindsight for a crime against both U.S. and international law.

To put it plainly, Yoo’s support for torture was so unhinged that even some of his most powerful co-workers in the Bush administration thought it was nuts. Secretary of State Colin Powell flatly insisted that Yoo’s position violated the Geneva Conventions, while Navy General Counsel Alberto Mora called Yoo’s position “catastrophically poor legal reasoning.”

As for the “unitary executive theory,” well, to hear Yoo tell it in today’s segment, it is a theory of executive power, running from Lincoln down through FDR and so on until today, that claims that unlike enumerating individual powers, which is what most conservatives profess to claim Article II of the Constitution does for the executive branch, that article actually creates a “pool,” in Yoo’s word, of unspecified executive powers.

In fact, “unitary executive theory” is bullshit. Yoo decided that his boss, Bush, during the so-called Global War on (some) Terror, ought to be able to do anything he wanted, including interpreting treaties like the Geneva Conventions as he pleased, with Congress’s only control being the power of the purse. So he cobbled together this sorry excuse for legal theory and cherry-picked from history to try to make it look as if this legal Frankenstein’s monster had a long and honorable legal tradition.

Those of you keeping score at home also will note that this assertion flies in the face of everything that conservatives have traditionally said about executive power and the “original intent” of the framers of the Constitution, but Yoo and the Republicans have never let that hypocrisy stop them except when a Democrat occupied the Oval Office.

Anyway, NPR, whose mission is supposed to be journalism, actually devoted pretty much 11 full minutes of prime afternoon drive time to Trumpian propaganda at the expense of educating and informing its audience, and coming at the end of a day such as today, it was just more than this listener could take.

And as Trump and the Republicans try to dismantle our democracy, this is one of the biggest problems we face: Not only are Trump and the Republicans and Fox News and Breitbart trying to gaslight the American public, a ton of mainstream journalists are doing the same. Yes, they’re trying — I believe we have long since passed the point at which we can as ascribe performances like NPR’s this afternoon just to incompetence. (Also, and not for nothing, competence is an ethical issue.)

So this is just one of the many reasons why we need immediate, televised impeachment hearings: to counteract the fire hose of unmitigated bullshit emanating not only from the criminals in this case but also from their co-conspirators in the so-called liberal media. (I have heard some people say that’s actually what the House is doing right now, they’re just not calling them “impeachment” hearings. To which I respond: You HAVE to call them impeachment hearings to get the news media to broadcast them live and the American public to pay the appropriate amount of attention.) Accordingly, House Speaker Nancy Pelosi needs to lead or get the hell out of the way.

Sunday, May 5, 2019 2:35 pm

With all due respect to House Speaker Nancy Pelosi, time has run out. We must begin impeachment hearings now.

If House Democrats do not begin immediate, televised impeachment hearings and begin jailing immediately any administration figure who refuses to comply with a duly issued subpoena, we could be mere weeks from one-party GOP rule.

A lot of y’all fail to understand two things: how close we are to effective one-party GOP rule and how electoral politics works.
Look, I supported Nancy Pelosi for speaker for three reasons:
  1. Her superior record, relative to the other candidates, of being able to wrangle the notoriously fractious House Dem caucus, move legislation, and raise money.
  2. The fact that her most viable opponents were WAY too cozy with a Republican Party that long ago demonstrated that it doesn’t give a damn about the Constitution.
  3. The likelihood that, when Trump’s obfuscation over the Mueller report and his and his administration’s inevitable contempt of Congress against the inevitable House subpoenas finally manifested, she would have a logical and effective plan for responding.

I supported her despite serious misgivings about her spine. She unilaterally took impeachment of George W. Bush off the table despite the fact that Bush and his inner circle had ordered torture in violation of both U.S. and international law. My father, an Army infantry officer in the Korean War who won a Bronze Star and who had been a lifelong Republican voter, cast the last ballot of his life in 2004 against Bush specifically because of the torture. As an amateur student of the Holocaust for decades, I thought then that Bush had crossed the one line besides first-strike nuclear war that could never be crossed. And I was horrified to watch how Democrats under Pelosi threw away their opportunity to bring about justice. Still, you vote for one of the candidates you’ve got, and she was head and shoulders above the rest.

Problem is, I turned out to be badly wrong on item No. 3 above. She had and has no plan to deal with a president intent on becoming a dictator and a major party that is all in with him on this effort. Indeed, in this New York Times article, she makes clear in her own words that she is drawing exactly the wrong conclusions given the facts before us:

In recent weeks Ms. Pelosi has told associates that she does not automatically trust the president to respect the results of any election short of an overwhelming defeat. That view, fed by Mr. Trump’s repeated and unsubstantiated claims of Democratic voter fraud, is one of the reasons she says it is imperative to put roadblocks in the way of Mr. Trump’s efforts, with the full support of the Republican party, to become a dictator.
See, that makes sense. Unfortunately, that’s not what she actually said. What the article actually reports her as saying is:
In recent weeks Ms. Pelosi has told associates that she does not automatically trust the president to respect the results of any election short of an overwhelming defeat. That view, fed by Mr. Trump’s repeated and unsubstantiated claims of Democratic voter fraud, is one of the reasons she says it is imperative not to play into the president’s hands, especially on impeachment.
Opposing a would-be dictator’s efforts to become dictator is “playing into the president’s hands, especially on impeachment”? With all due respect, Madam Speaker — and in my case, that’s a lot of respect — that’s 180 degrees wrong.
Pelosi insists we have plenty of time. And a lot of people, noting that she is an expert in American politics, agree with her. But here’s the thing: We’re not faced with a conventional political opponent. We’re faced with a would-be dictator, and Pelosi is IN NO WAY an expert on dealing with that because America has never had one before. And the people who ARE experts in authoritarianism and dictators — historians, diplomats, war-crimes investigators, some members of the intelligence community, even Holocaust survivors? Almost all of them are waving red flags. A number are saying that if Dems don’t respond forcefully to the GOP’s concerted effort to ignore the subpoenas of a co-equal branch of government, then we will effectively become a one-party GOP government within weeks.

Now, what if they’re wrong? No harm, no foul, and we may yet see the impeachments we want with strong public backing and a clean and fair 2020 election. And I sincerely hope they, and I, are wrong.

But what if they’re right? No, serious question. I want you to stop and think for a minute about what that would mean — and not just for the country as a whole, although a stolen election is just about guaranteed, and not just for comfortable, privileged WASPS, but also for Jews, for poor people, for women (particularly women’s health care), for children, for racial and ethnic and religious minorities, for LGBTQIA people.

The safest bet — which also has the advantage of being the House’s constitutional duty — is for House Dems to: 1) Stop asking and start subpoenaing. Asking just leads to needing to subpoena anyway with this administration, and time is of the essence. 2) Begin jailing for contempt immediately any member of the administration who refuses to testify and/or produce records pursuant to a subpoena. 3) Begin holding televised impeachment hearings immediately. The hearings can begin with the multiple instances of Trump’s obstruction of justice documented in Vol. 2 of the Mueller report and expand from there, or they can begin with other high crimes and misdemeanors already in public view such as Trump’s serial violations of the Constitution’s Emoluments Clause, and expand from there. The important thing to remember is that we already have evidence in the public record that Trump has obstructed justice, abused his office, and behaved in legal contempt of Congress. Those were the three articles of impeachment against Richard Nixon that led him to resign, and Trump’s violations have been even more egregious.

And why are the televised hearings so important? As with Watergate, given what we already know about this administration, they are likely to reveal the kind of information to the public that will build public support for impeachment. Moreover, they are essential to counteracting the gaslighting of the American public now being carried on by this administration, particularly Attorney General William Barr, and its henchmen at Fox News, Breitbart, and some of the darker media neighborhoods such as 8chan and VDare. Believe it or not, a large number of Americans still aren’t paying very close attention to this, so Dems need to give them a reason to. And even the mainstream media have largely treated this issue as a conventional Democrats-vs.-Republicans partisan political issue rather than the constitutional crisis that it is. The Times article linked above contained information that should have been the lede headline for every mainstream news outlet in the country: House Speaker Doubts President Will Leave Office If Defeated. And yet it was not.

Now some of you have expressed concerns about how robust opposition to, and even attacks on, Trump’s people and policies might affect the 2020 elections. A couple of thoughts on that:

  • In constitutional terms, impeachment’s effect on the 2020 election shouldn’t even be a consideration. A president is carrying out high crimes and misdemeanors in full public view; as the Framers’ contemporaneous writings make clear, impeachment in such circumstances is not just option but duty.
  • But let’s say it is a consideration. A lot of people with elementary math skills but no political understanding have pointed out that the GOP-controlled Senate won’t convict. I cannot say this too many times or strongly enough: So what? Dems must make Republicans run in 2020 on defending this criminal (as well as on such other issues as trying to kill people’s health insurance and supporting environmental despoliation). Dems made Republicans run in 2018 on their desire to destroy insurance protections for people with pre-existing conditions, and Dems generated the biggest blue wave since Watergate. The biggest political risk attached to the 2020 election is not that more Trump supporters will turn out if Dems impeach — Republicans already are going to turn out. No, the biggest political risk is that if Dems do NOT impeach, a big chunk of the Democratic base is likely to stay home in 2020, as it did in 2010 and 2014 when Dem caution also prevailed over the need for action. And without that base, not only will Trump win re-election, the Republicans also will regain the House.
  • For the folks, including Pelosi, who have expressed concern that Trump might not leave office if he doesn’t win in 2020, I’ve got news: That’s Trump’s plan no matter how large or narrow the Dems’ margin of victory. Guaranteed. And it is far from sure that the Secret Service would do its duty at noon on Jan. 20, 2021: arrest him for trespassing and drag him from the White House. I mean, I think they will? But given Trump, assuming the worst generally is the most accurate method of forecasting.

Folks, we’re in very dire straits here; the attempted coup against FDR in the 1930s is the only thing that comes close and this is way worse than that. House Dems need to act now, and not only is there no good reason to wait, there are some chilling reasons why we cannot afford to. Whether we do or not act will determine whether this country is still a democratic republic come sunset on Jan. 20, 2021. So if your rep is a Democrat, call him/her and demand: 1) That House Dems stop asking nicely and start issuing subpoenas from the git-go. 2) That administration officials who refuse to immediately comply with subpoenas be jailed for contempt the FIRST time. (That legal mechanism hasn’t been used for decades, but it’s still on the books.) 3) That the House immediately begin televised impeachment hearings on Trump and AG Barr, who lied to Congress about the contents of the Mueller report and Mueller’s dissatisfaction with Barr’s summary of it. Those hearings MUST include the subject of election security and the Russians’ election-theft efforts in 2016 and 2020, and should hear from former President Obama and some of his officials as well as current administration officials if need be to get the full picture.

The next year and a half are going to be ugly politically no matter what choices Dems make. And the ugliness might extend beyond the halls of Congress and the White House and into the streets. But rest assured that 1) the most vulnerable will suffer the most, and 2) Republicans couldn’t give less of a damn about the most vulnerable.

Citizenship is not a spectator sport. History has pointed down the bench at us, swatted us on the asses and ordered us into the game. We need to play hard and play to win, because the cost of defeat would be too great for any of us to bear.

UPDATE, 5/5: For some excellent historical perspective on the rise of authoritarianism in America, read Teri Kanefield’s piece here. She’s an author and lawyer.

Wednesday, May 1, 2019 5:34 pm

In which Attorney General William P. Barr crumples his career and sets it on actual fire

In testimony today before the Republican-controlled Senate Judiciary Committee, the attorney general firmly established himself as the worst AG since John Mitchell and equally deserving of prison time.

Dumpster fire

The 85th attorney general of the United States walked into the ostensibly friendly confines of a Republican-controlled Senate Judiciary Committee hearing today, and when his questioning was over, he had left no bed unshat and no pooch unscrewed. The Republicans might have come to dissemble and distract, but the Democrats came to prosecute and for once showed no mercy.

Not only did he present himself as clearly guilty of multiple counts of perjury, he also made a credible case that he himself should be prosecuted for obstruction of justice as well. It is crystal clear now that he must be impeached and removed from office and prosecuted and sent to prison. And he did his “client,” Donald Trump, no favors either, implicitly implicating Trump in abuse of office under questioning from committee member Kamala Harris, D-Calif.

The only real question remaining about what Barr did is why he did it. Why did he tell lies to Congress about special counsel Robert Mueller’s report that any sentient human being who read the report would realize were lies?

Why would he decide the report cleared Trump when he and Deputy Attorney General Rod Rosenstein hadn’t read the underlying evidence — and why would he admit that to the committee? As committee member Harris, California’s former attorney general and a current candidate for president in 2020, pointed out, no sane prosecutor would make such a decision one way or another without reviewing all the evidence. (Maybe that’s just a Republican thing. The committee chair, Lindsay Graham of South Carolina, admitted that he hadn’t fully read the Mueller report. The guy. Who chairs the committee. And who called the hearing. Hadn’t. Read. The report. And as for what else Graham said, let’s just say it’s a darned good thing for him that he was not under oath.)

Why would Barr lie in his April 9 testimony to the House and say that he was unaware of Mueller’s concerns about his characterization of the report when, at that point, Barr had had Mueller’s letter to that effect, which was made public today, in his possession for more than a week?

And why couldn’t Barr answer Harris’s big yes-or-no question:

Gaping kitten illustrates the bomb Kamala Harris dropped during her questioning

Has the president or anyone else at the White House asked you to open a criminal investigation on anyone? Doing so likely would not be a crime, but as Richard Nixon’s case showed, it certainly would be an impeachable offense. That Barr either couldn’t or wouldn’t flatly deny that it had happened was damning of both Trump and Barr.

And under questioning from Sen. Richard Blumenthal, D-Conn., Barr insisted that he had never discussed Trump-related matters with anyone at the White House. That was so plainly perjury that he immediately tried to walk it back, saying he didn’t remember any such “substantive” conversations.

Barr also committed at least one huge unforced error: He insisted that there were no underlying crimes documented in the Mueller report and that, based on that, an innocent president had the right to interfere in or kill an investigation of his activities. You following that? An innocent president has the right to kill an investigation — that’s going to prove his innocence.

Not only is that absurd on its face as legal theory, it also presumes facts not in evidence: The Mueller report did indeed surface underlying crimes. Indeed, Trump was named an unindicted co-conspirator in an indictment for one of them along with his former attorney/fixer, Michael Cohen.

The Republican senators were little better, if news reports are to be believed. Hell, Jon Cornyn of Texas really did bring up Hillary’s emails. None showed any interest in getting at the truth; instead, they tried to change the subject to (undocumented) claims of wrongdoing by the intelligence community under President Barack Obama — anything but deal with the dumpster sitting right there before them.

If we learned anything today, it’s the following:

  • Barr is guilty of perjury and obstruction of justice; he has violated the terms of his oath of office to become the personal defender of a corrupt president. He must be impeached, removed from office, and prosecuted, and unlike with the president, indictment could come before impeachment.
  • Trump almost certainly has been abusing his office to criminally investigate political enemies, just as Richard Nixon did. It became an article of impeachment for Nixon; it should for Trump as well.
  • The next president is going to have to be a Herakles to cleanse the Aegean stables of this administration. Or else will have to burn it with fire. That’s how bad things are in this, the 243rd year of our country, and there is no guarantee whatsoever that things will get better anytime soon. Indeed, there is a nontrivial likelihood that they’ll get worse: Barr is scheduled to testify Thursday before the House Judiciary Committee — but his reluctance to be questioned by committee staff means he might well be in contempt of Congress before lunchtime.

UPDATE, 5:52 p.m.: Barr is now refusing to testify Thursday. The Dems really need to just stop asking and start subpoenaing from the git-go, because asking clearly is never going to do them a damn bit of good with this administration. And if anyone tries to jerk them around, they need to hold them in criminal contempt and send them to jail for a year. That’s the only language the mob family in the White House understands.

 

 

Thursday, November 8, 2018 1:19 pm

In which Trump moves on Sessions like a bitch

The day after the midterms, Dolt 45 fired Attorney General Jeff Sessions and replaced him with acting Attorney General Matt Whitaker. Now, granted, no one is going to miss Sessions; a Twitter wag described the firing as the first time that Trump had taken down a Confederate monument. But Trump had been expressing frustration for a long time that Sessions had recused himself from special counsel Robert Mueller’s investigation into possible money laundering, obstruction of justice and conspiracy of the Trump campaign with Russia to interfere with the 2016 election. This move offers Trump an opportunity to take more direct control over the probe because Whitaker has not recused himself.

This isn’t quite the equivalent of Nixon’s Saturday Night Massacre, but it’s not good. Sessions had been so close with the Trump 2016 campaign that he had had to recuse himself from Mueller’s investigation, leaving it the hands of Deputy Attorney General Rod Rosenstein, who appears to have given Mueller both adequate leeway and adequate funding to do his job correctly. (In fact, given the financial forfeitures of some of those Mueller has convicted, the taxpayers are more than $10 million ahead of the game on this investigation to date, and there’s probably more profit where that came from. That money doesn’t go directly back into the investigation, of course.)

But Trump has made clear that oversight responsibility for the investigation now will rest with Whitaker instead of Rosenstein. It’s worth noting that when a Cabinet secretary leaves office, his/her deputy — Rosenstein, in this case — normally would be appointed acting agency head. That didn’t happen here. And that’s not good at all. Consider:

  • Whitaker in 2017 said he didn’t see anything wrong with Donald Trump Jr.’s meeting with Russians in Trump Tower:
  • Whitaker was associated with a D.C. nonprofit called Foundation for Accountability and Civic Trust whose main goal in life seems to be ginning up bullshit criminal cases against prominent Democrats:
  • Whitaker said in 2017 that the Mueller probe was “going too far”:

A number of Democrats already have called for Whitaker to recuse himself. Worse for Trump, Rep. Elijah Cummings, the incoming Democratic chairman of the House Oversight Committee, already has said his committee will be looking into Sessions’s firing. One possible result could be a criminal referral to the Justice Department for obstruction of justice.

(Also, the Mueller investigation aside, Whitaker appears to be just the kind of bigoted jackass that progressive and moderate voters indicated on Tuesday they’ve had enough of.)

Now, a lot of people are presuming that Whitaker’s appointment means that Trump intends to fire Mueller. And, legally, Trump could. The question that that would raise would be whether such a firing would constitute obstruction of justice, as Cummings is hinting. I am not a lawyer, and I don’t know that there’s a solid legal consensus on this issue, but I’ve seen social media posts from three or four lawyers unrelated to one another who have said that the firing would be evidence of the “consciousness of guilt.” (Remember, the whole reason there’s an obstruction-of-justice investigation in the first place is that Trump fired FBI Director James Comey in 2017 and said that he had done so because of the FBI’s Russia investigation. The uproar over THAT firing led to the appointment of Mueller as special counsel.)

However, if Trump wants to slow or halt the probe, he has other options.

He can have Whitaker eliminate the wide latitude Mueller currently enjoys under Rosenstein, restricting the probe to certain isolated subjects and people to ensure that Trump and those closest to him face no federal criminal exposure. (Possible state crimes are a whole ‘nother issue, of course, and Trump has no control over those investigations.) Or he could just direct Whitaker to, in effect, defund the investigation. A number of folks on Twitter jokingly suggested a GoFundMe for the Mueller probe if that happens. I’d support that, although that money, like the forfeitures already received, under the law could not go into the probe without having been appropriated by Congress, which the GOP-controlled Senate ain’t gonna do. (UPDATE: The appropriations bill for FY19 having already been signed into law, Mueller’s office is fully funded — at about $10 million — through next Sept. 30.)

But Trump has fewer options than he thinks.

According to the experts at the Lawfare blog, Whitaker might have to recuse himself whether Trump likes it or not:

The relevant Justice Department guideline is Section 45.2 of Title 28 of the Code of Federal Regulations, which states that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with” either “any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or “any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

Although the regulations do not indicate that Whitaker’s public statements alone necessarily require recusal, Whitaker has other connections to people whose conduct is at issue in the matter. For instance, the regulations define a political relationship as “a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof.” Rebecca Ballhaus of the Wall Street Journal reports that Whitaker chaired the 2014 Iowa state treasurer campaign of Sam Clovis, who went on to serve in the Trump campaign and administration and who, Ballhaus notes, is now a grand jury witness in the Mueller investigation. The Des Moines Register reported Whitaker’s chairmanship of Clovis’s campaign during the campaign itself. What’s more, in a text message to Ballhaus after Whitaker’s appointment, Clovis wrote that he was “proud of my friend,” referring to Whitaker, raising the question of whether there is a personal relationship as well.

There is an important process point here: Under the same Justice Department regulation mentioned above, Whitaker is obligated to seek guidance from career ethics attorneys regarding whether he should recuse. This is the process Jeff Sessions used in determining that the rules required that he recuse, and Deputy Attorney General Rod Rosenstein also sought guidance regarding his obligations, though Justice officials determined that his recusal was not required. If Whitaker either does not obtain an ethics opinion from career officials or if he departs from that guidance, that would be a serious red flag.

Also, Trump already knows that come Jan. 3, the House Oversight Committee will be looking into Sessions’s firing. And if Mueller gets fired, I would think that any of several House committees would be happy to subpoena him as an expert witness on Trump’s finances. Who knows where that could lead? (UPDATE: I’ve also seen it suggested that if Mueller gets fired, a House committee could hire him as an investigator.)

There even are a few current and incoming Senate Republicans willing to join hands with Senate Democrats long enough to protect the Mueller investigation, as Lawfare points out:

Mitt Romney, now the senator-elect from Utah, stopped short of calling for Whitaker to recuse himself, but said it is “imperative that the important work of the Justice Department continues” and the Mueller probe “proceeds to its conclusion unimpeded.”

The Maine Republican Susan Collins also stated that “it is imperative that the administration not impede the Mueller investigation,” adding that she is concerned that “Rod Rosenstein will no longer be overseeing the probe,” and that “Special Counsel Mueller must be allowed to complete his work without interference—regardless of who is AG.”

And GOP Senator Lamar Alexander said the Mueller investigation will continue.

I’ll admit I’m not optimistic. For one thing, even if all three stand their ground, the likeliest outcome of Tuesday’s election seems to indicate that Republicans would still hold a Senate majority, perhaps with the help of Vice President Mike Pence. For another, after the Kavanaugh confirmation, we now know what Susan Collins’s word is worth.

And, of course, there’s is the huge factor that Donald Trump consistently, almost predictably, acts against the best advice he gets and his own interests. Journalist Josh Marshall and novelist John Scalzi coined the term “Trump’s razor” for this phenomenon: Every option being otherwise equal, Trump will always make the stupidest possible choice. If I were a betting man, I wouldn’t often have lost had I consistently bet accordingly.

So I think Trump will fire Mueller and dare somebody to do anything about it. That puts Republican officeholders — at all levels — in a serious predicament, for, as Conor Friedersdorf observes in the Atlantic article linked above:

After Wednesday, elected officials in the Republican Party should have no doubt that Donald Trump will force them to choose in coming days, weeks, and months between loyalty to him and loyalty to the rule of law, between the public’s right to the truth and Trump’s efforts to hide it.

They’ve sworn an oath of loyalty to the rule of law. Let’s see how many of them meant it.

 

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