Author Archives: impeachableoffenses

Mueller’s cheerleaders: The peculiar certitude of two lawyers for his targets

04 Sunday Feb 2018

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By Frank Bowman

Last week, I had an enjoyable conversation with Politico journalist (and outstanding Mizzou Journalism School alum) Darren Samuelsohn.  Darren was kind enough to quote me in an ensuing article about the likely result of Robert Mueller’s investigation. The piece is well worth a read, but the oddest bits to my mind are the quotes from several lawyers representing “clients swept up in the Russia probe.”

These lawyers are said to believe that Robert Mueller is likely to seek an indictment against Mr. Trump, despite the internal Department of Justice prohibition against doing so (that I’ve discussed at length here and here).  At least one of them bases his view on what he perceives as the growing “level of confidence” of Mueller’s staff.

I had two contrary reactions to the lawyers’ remarks. On the one hand, they may be the candid intuitive assessments of a couple of people who have the advantage of dealing directly with the Mueller team over time.  If so, they’re interesting, though probably not probative of very much.  After all, one can be confident about the course of an investigation without having any intention to conclude it with an attempt to do something DOJ policy now bars. On the other hand, these attorneys could be trying to use the media to inflame the already-sensitive Mr. Trump into firing Rosenstein and then Mueller, thus removing pressure from the lawyers’ clients.  But that’s way too Machiavellian.

Isn’t it?

Hmmm…

P.S. — I used the word “targets” in the title of this post for the sake of brevity. In DOJ parlance, a “target” is someone against whom prosecutors have substantial evidence and are likely to charge; actually, we don’t know whether these clients are “targets,” “subjects” (persons of interest against whom less evidence has been developed) or merely witnesses.

THE MEMO!!!! A tragicomic face-plant by Congressman Nunes

02 Friday Feb 2018

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By Frank Bowman

Well, after much angst, the Republican members of the House Judiciary Committee were able to get THE MEMO released.  Here it is, if you haven’t already seen it.

This document was supposed to reveal a scandal bigger than Watergate!  It was supposed to prove that officials in the Justice Department and the FBI criminally abused surveillance laws to undermine the Trump Administration!  It was supposed to expose a deep, nefarious conspiracy against the rule of law itself!

Instead, what we have is a whimpering anticlimax.  A document so devoid of substance and so transparently doctored for partisan effect that, in any other era, it would be instantly and universally branded as a cynical farce and its authors driven out of public life as embarrassments to the republic.

Stripped of the folderol, this is what the memo says:

It asserts that the Justice Department applied for and obtained a FISA surveillance warrant allowing interception of communications with Russians by Carter Page, a former affiliate of the Trump campaign, and that DOJ based its application for the warrant in some (unspecified) part on information derived from a “dossier” of material compiled by former British intelligence agent Christopher Steele.

The GOP letter does not identify which information derived from the dossier was used in the warrant application. Critically, the letter does not describe the rest of the information in the warrant application or describe how information from the dossier relates to the application as a whole.  The letter does not reveal whether, and if so to what extent, information derived from the dossier and included in the warrant was corroborated by other sources. In fact, the letter does not even claim that the information from the dossier used in the warrant application was inaccurate.  Indeed — and incredibly — the letter does not claim that any information in the dossier was inaccurate.

The sole argument of the letter is that the Justice Department should have revealed to the FISA court which issued and renewed the warrant information suggesting political bias on the part of Mr. Steele.  In particular, the letter argues that the application should have disclosed that Mr. Steele’s research effort was — at one point during his work — funded by attorneys working with the Democratic National Committee. (Of course, the GOP letter rather comically omits the fact that Steele’s firm was first engaged by Trump’s Republican opponents.) Similarly, the letter reports that, by the fall of 2016, Mr. Steele had become “passionate” about Mr. Trump not becoming president and implies that this should have been told to the court.  That’s it.  That’s the whole bowl of bananas.  That’s all Nunes and friends have got.

To be as fair as possible to Mr. Nunes, it’s generally a good idea to include in warrant applications some information about the possible biases of one’s sources.  It helps a reviewing court assess the strength of the evidence in support of the application. In a case where the warrant application turns entirely on the credibility of a single witness, that’s especially crucial.  But in Mr. Steele’s case, it’s essential to note that (so far as I know) he is not himself a witness and indeed is not an actual source for any of the information in the dossier.  He is merely the owner of a firm that collected information from other sources. In such a case, far more important than the possible bias of the collector of information is independent corroboration of the facts he collected.  Of course, in that capacity, he could, in theory, falsify or misreport information.  But the GOP letter never claims that he did.

Critically, the GOP letter conspicuously omits any discussion of the degree to which the FBI independently verified the dossier’s information, either in general or as it related to this warrant application. And Mr. Nunes and his GOP fellow travelers have blocked the release of all the information that would be necessary to determine if their reading of this affair is correct,

The bottom line of the GOP letter is this transparently faulty syllogism:

  • Some information derived from the Steele dossier was used in a FISA surveillance warrant for Trump campaign operative Carter Page.
  • The warrant application didn’t specify that Steele’s firm was paid by Democrats (and Republicans) who did not want Donald Trump to be president, or that, after investigating Trump for some months, Steele concluded that he did not want Trump to be president.
  • Therefore, no information originating in the dossier can be believed, the warrant should not have been issued, no one should remember to ask what the surveillance of Page actually uncovered, and we should all dismiss the entire investigation into Trump-Russia collusion as a political witch hunt by traitorous conspirators in the Deep State.

The whole business is yet another example of  the strange, logically inverted, world into which Mr. Trump and his abettors would lead us. In Trump World, the mere fact that one opposes Mr. Trump (or is simply insufficiently slavish in one’s devotion) is conclusive proof that one cannot be believed. Perhaps the most revealing line in the GOP’s letter is its breathless recitation of the fact that, in September 2016, Mr. Steele confessed his “passionate” opposition to a Trump presidency.  The letter’s authors apparently view this sentiment as proof of irrational bias, which if disclosed to the FISA court would have discredited all Mr. Steele’s work.

They have it exactly backwards.  A far more plausible view is that, by September 2016, Mr. Steele had discovered so much about Trump’s Russia connections that the prospect of his occupancy of the White House evoked nothing but horror.  Certainly that’s the way I would have read the statement had I been on the FISA court.  As such, even though it would have been prudent to identify the funding sources for Mr. Steele’s intelligence efforts, the omission of Steele’s personal views about Trump from the FISA warrant application  was, if anything, a laudable exercise of professional restraint.

The bottom line here is that THE LETTER is, as the British say, a damp squib.  Its only consequence lies in the possibility that Mr. Trump will use it as an excuse to fire Deputy Attorney General Rod Rosenstein and thereafter Robert Mueller.  Were that to happen, we will cross into uncharted and dangerous ground.

 

More on Mueller’s Endgame: Unindicted Co-Conspirators & Other Stuff

01 Thursday Feb 2018

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By Frank Bowman

Under current Department of Justice policy, Special Counsel Robert Mueller is not empowered to seek an indictment against a sitting president. Yesterday, I discussed here and on Slate two ways Mueller could nonetheless ensure that Congress would be informed if he concluded that Mr. Trump had committed crimes.

Several colleagues and commenters on the blog have raised questions that may have occurred to others.  I try to answer them below:

Uninidicted co-conspirators: A colleague remembered that President Richard Nixon was named as an unindicted co-conspirator in a case brought by Watergate prosecutor Leon Jaworski He wondered whether that might provide an avenue for disclosing Mr. Mueller’s conclusions and the evidence supporting them. It could. Theoretically. But the reason I didn’t mention this option is that listing unindicted co-conspirators by name in an indictment has been sharply criticized by courts and is strongly discouraged by Department of Justice policy. Formally identifying someone as a criminal without formally charging him imposes a damaging public stigma without a mechanism for removing it. Therefore, the general rule is that, if prosecutors have sufficient evidence to charge someone with a crime, they should do so, which both triggers their obligation to prove the case beyond a reasonable doubt and gives the person named an opportunity to defend himself.

Accordingly, Section 9-11.130 of the U.S. Attorney’s Manual states: “In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments.”

Jaworski evidently felt that naming Nixon was justifiable, presumably for reasons that would appeal to Mr. Mueller, such as a desire to avoid the complications entailed by indicting a sitting president, while at the same time letting Congress and the public know about his legal judgment that Nixon had committed a crime.  Mueller might come to feel the same way. However, while Jaworski seems to have enjoyed a substantial amount of operational freedom due to the firestorm that resulted from the firing of his predecessor Archibald Cox in the infamous Saturday Night Massacre, it’s pretty plain that any decision by Mueller that directly touches on Mr. Trump is going to be carefully scrutinized by his DOJ superior.  That superior (whether it is Deputy Attorney General Rosenstein or someone thrust into that role by Mr. Trump’s evident desire to fire him) could easily justify refusing to allow Mueller to name Mr. Trump as an unindicted co-conspirator on the ground that it violated DOJ policy and was not supported by a “significant justification.”

To be clear, if Mr. Mueller concludes that Mr. Trump conspired with others to commit crimes, he can certainly draft indictments of those others, and structure his case against them, in a way that makes Mr. Trump’s wrongdoing fairly clear without naming him as a co-conspirator.  In the end, that is perhaps the easiest way for Mueller to proceed.  However, that approach necessarily saves Mr. Trump from two legally and politically important events — the formal and public judgment by Mr. Mueller, expressed in his signature on an indictment, that Mr. Trump committed a crime, and the formal and public conclusion by a grand jury of ordinary citizens, expressed by approving the indictment, that Mr. Trump probably committed that crime. Leon Jaworski named Richard Nixon precisely because he appreciated the significance of these solemn pronouncements.

Reader questions: Tye Simpson asks: “How do you square the special counsel’s congressional authority in section [609](c) to prosecute if there’s no authority to indict? In the event of conflict shouldn’t a general departmental policy or practice be subordinated to a specific congressional authority?”

The key is the reader’s characterization of Mueller’s authority to prosecute as “congressional authority.”  It’s not.  The regulation I referred to in yesterday’s post is an internal Department of Justice regulation, not a congressionally authorized statute.  And the regulation, 28 CFR 600.6, merely gives Mueller the same authority granted the U.S. Attorney in a federal judicial district.  Like all U.S. Attorneys, Mueller is subject to DOJ regulations and the DOJ chain of command.  The regulations give Mueller’s superiors the power to bar him from doing things that are contrary to DOJ policy.  Indicting a sitting president is against DOJ policy.  Therefore, Mueller’s superior, now Deputy AG Rod Rosenstein, can prevent Mueller from doing it.

Tye Simpson also asks: “For a non-lawyer: What about: 600.9 (c) “The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions…”? Currently, R. Rosenstein’s call?”

The reader refers to the DOJ regulation governing disclosure to Congress and the public of reports on instances when higher DOJ authority blocks a special counsel from pursuing some action he wants to pursue.  The short answer to the question is “yes.”  That is, if Mueller recommended indicting Mr. Trump and was ordered not to do it, the Justice Department would be obliged to report that event and the reasons for it to Congress.  That’s the provision I’ve suggested Mueller could use to force disclosure to Congress of a conclusion that Mr. Trump committed a crime.  Disclosure to Congress in those circumstances is not optional.

However, the section to which the reader alludes, 28 CFR 609(c), governs disclosure to the public.  And those disclosures are discretionary.  In this case, the discretion would presumably be exercised by Rod Rosenstein.

Mueller’s Endgame: How a Failure to Indict the President Could Lead to Impeachment

31 Wednesday Jan 2018

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By Frank Bowman

Over the past few weeks, the interwebs have been teeming with confident declarations that this or that new tidbit of information amounts to the final proof — or at least another link in the chain of proof — that will allow Special Counsel Robert Mueller to conclude that Mr. Trump has committed the felony of obstruction of justice.  The problem with all this barstool lawyering, a problem sometimes acknowledged but more often ignored or glossed over, is that Mr. Mueller has no independent authority to secure an indictment against a sitting president.

A still more fundamental problem, at least if one hopes for Mr. Trump’s removal from office, is that even a felony conviction would not eject him.  Only impeachment performs that trick.  Therefore, all the fevered speculation about Mr. Mueller’s progress is futile unless there is a way for a prosecutor who cannot indict his most prominent potential target to place the case for that target’s criminality before congress, the only body authorized to determine whether criminality should mean impeachability.

There are at least two ways it could be done, and done in full compliance with both Mr. Mueller’s limited mandate and the internal rules of the Department of Justice.  First, Mueller could prepare a report and recommendation that Mr. Trump be indicted after he leaves office and trust that congress would find means of obtaining the report. Alternatively, Mueller could recommend immediate indictment, fully expecting rejection of that recommendation, and rely on the technicalities of the Justice Department’s own rules to ensure transmission of his recommendation and reasons to congress.

Let’s begin with a quick refresher on the limitations of Mr. Mueller’s office:

  • Mueller is a “special counsel” appointed under Department of Justice regulations, not an “independent counsel” of the Kenneth Starr sort appointed under the now-lapsed post-Watergate Ethics in Government Act of 1978.
  • An “independent counsel” exercised virtually the full powers of the Department of Justice and was not subject to supervisory control by the Attorney General.  Mr. Mueller has only the authority granted any United States Attorney. He remains subject to the chain of command of the Justice Department. In ordinary circumstances, he would answer to the Attorney General. Because Jeff Sessions has recused himself from this matter, Mueller answers to Deputy Attorney General Rod Rosenstein.
  • As special counsel, Mr. Mueller is subject to the “rules, regulations, procedures, practices and policies of the Department of Justice.” And while the regulations accord him an unusual degree of autonomy, his superior, here Mr. Rosenstein, can overrule him if he proposes doing something contrary to DOJ policy.

The “policy” of the Department of Justice, expressed in several legal opinions issued by the Office of Legal Counsel, is that federal prosecutors may not indict a sitting president. An OLC opinion is not “law” in the sense of binding anyone outside of the DOJ itself. But it does bind DOJ employees.  Therefore, if Mr. Mueller were to propose indicting Mr. Trump, that proposal would be contrary to Department policy. Deputy Attorney General Rosenstein could, and almost certainly would, order Mueller not to present the indictment to a grand jury.  Mueller would have to follow that order. Failure to do so would be an entirely proper ground for removing him.

Given this internal restriction on Special Counsel Mueller’s authority, one might ask whether Mueller has the power even to investigate whether Mr. Trump has committed any crime. The answer is plainly yes.  The letter commissioning Mueller charges him with investigating coordination between Russia and the Trump campaign and any crimes, such as obstruction, committed in an attempt to interfere with that investigation. It does not bar him from investigating the activities of persons who may be legally or practically immune from criminal prosecution. In this regard, Mr. Trump is no more immune from Mueller’s inquiries than Russians who might assert diplomatic immunity.

Mueller’s appointment letter also empowers him to prosecute any crimes discovered in the course of his investigation. The only question is whether DOJ rules restrict this authority in the case of a president.

Internal DOJ policy precludes prosecuting a president while he is in office. It does not claim that presidents cannot be prosecuted.  Indeed, any such claim would be untenable inasmuch as Article 1, Section 3, of the Constitution specifically provides that persons impeached “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.” At a minimum, this means that a president may be indicted after he leaves office (subject to any problems created by statutes of limitation, a tricky legal problem for another day).

Mueller’s appointment letter granting him prosecution authority does not require that he prosecute the crimes he discovers immediately. Accordingly, if the Mueller investigation yielded evidence that Mr. Trump committed a crime, Mueller would be entirely within his mandate to prepare a report setting out his findings and recommending that Mr. Trump be indicted as soon as he left office.

The difficulty with this option from the perspective of those hoping to base an impeachment inquiry on Mueller’s work is that he has no independent authority to release such a report to Congress or the public.  And it seems quite likely that a Justice Department under increasing pressure from the White House would make every effort to keep the report secret.  On the other hand, there is nothing in the special counsel regulations or any applicable law that requires secrecy in such a case. If it were to become known that such a report existed, someone in congress would request it.  And if Democrats gained control of either house of Congress in 2018 — a precondition for impeachment in any case — they would also gain the power to subpoena the report.

Suppose, however, that Mr. Mueller were to decide that Mr. Trump has committed crimes and that Congress should know of that conclusion promptly. Suppose further that Mueller were not disposed to rely on the vagaries of midterm elections, and still less to wait for the expiration of the Trump presidency. In that case, there is another path.

DOJ’s special counsel regulations provide that, if a special counsel proposes an action that the Attorney General (here Deputy Attorney General) rejects because it would be “inappropriate or unwarranted under established Departmental practices,” then the Attorney General must notify both the chairs and ranking minority members of both the House and Senate Judiciary Committees of the special counsel’s proposed action and an “explanation” of the reason for rejecting that action.

Hence, Mr. Mueller would be operating entirely according to protocol if, while not actually presenting an indictment to a grand jury, he recommended to Mr. Rosenstein that Mr. Trump be indicted. He would, of course, realize that doing so would contravene an existing OLC opinion. However, there would be nothing untoward if he concluded, with the concurrence of the superb appellate lawyers on his staff, that the OLC opinion should be reconsidered.  OLC conclusions are subject to internal re-evaluation all the time.

Of course, we can fairly predict that Mueller’s arguments, however learned, for changing DOJ policy on this point would be rejected.  But rejection of Mr. Mueller’s recommendation for indictment on the ground that it contravened “established Departmental practices” would trigger the mandatory report to congress required by 28 C.F.R. 600.9. Et voila!  Member of Congress from both parties, and in due course, the public would know that Mueller believed Mr. Trump committed a crime.

As clean as this second approach seems, there are two potentially significant flies in the ointment. First, the mandatory reporting requirement of 28 C.F.R. 600.9 is triggered only “upon conclusion of the Special Counsel’s investigation.”  One reading of this language is that it applies only after the Special Counsel completely wraps up all his responsibilities.  Deploying that interpretation, a Trump-influenced Justice Department could justify withholding congressional notification until Mueller finished not only investigating, but trying, all pending cases. Given that at least Manafort and Gates remain untried, trials could delay things a long while. Alternatively, the reporting requirement could be read as arising once the purely investigative phase of Mueller’s work ends, without regard to the resultant litigation. But that interpretation would carry the day inside the Department only if the person making the call were principled, courageous, and more committed to institutional integrity and the rule of law than to protecting the president.

Regardless of how the reporting requirement were read, if Mr. Mueller thought it central to his mission that his conclusions about Mr. Trump be reported to Congress expeditiously, he could abandon or fast-track pursuit of smaller fry, close up shop, and insist that the Department’s own rules be followed.

The second potential obstacle to this gambit is one not of law, but personal psychology. Mr. Mueller, by reputation a man who operates strictly by the book, might not be willing to formally propose indicting Mr. Trump knowing that the proposal would be summarily rejected as violating existing DOJ policy.  On the other hand, as a lawyer of no mean talent, he might find considerable satisfaction in deftly employing the letter of the law in the service of the Republic.

I like to think that, as a both an undoubted patriot and a career public servant not unaccustomed to harnessing formalism to larger ends, Mr. Mueller would not be averse to engaging in a bit of bureaucratic Kabuki theater in the interests of revealing Mr. Trump’s conduct to congress while there is yet time to do something about it.

We shall see.

 

 

FBI Deputy Director McCabe’s Resignation

30 Tuesday Jan 2018

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By Frank Bowman

It was reported this morning that FBI Deputy Director Andrew McCabe, long a target of Mr. Trump’s ire, has resigned.

McCabe has been under attack from the White House and its allies because his wife received campaign donations during her unsuccessful 2015 bid for a Virginia legislative seat from a political action committee associated with Virginia governor Terry McAuliffe, who in turn was a prominent supporter of Hillary Clinton. The implication has been that McCabe was biased against Trump and in favor of Secretary Clinton during the FBI investigation of the Clinton e-mail scandal and somehow influenced the outcome.

Of course, as carefully reported here by Politifact, the facts don’t support the allegation.  As Politifact summarizes the matter:

At the time of the contribution, the candidate’s husband was not directly involved in the FBI probe of Clinton’s email server, according to the FBI. The bureau says that by the time he had some oversight role in the Clinton investigation, the election involving his wife had been over for three months. Meanwhile, the decision not to charge Clinton was a recommendation made by the director of the FBI [not by McCabe].

I am of two minds about McCabe’s departure.  On the one hand, in the short term, it may be just as well to have him out of the picture.  Regardless of the facts of the matter, it is not helpful to the Bureau in the present moment to have a Deputy Director with family links, however attenuated, to Secretary Clinton’s political allies. McCabe’s resignation means one less distraction from the substance of the investigations swirling around Mr. Trump.

On the other hand, McCabe’s departure is profoundly disturbing for at least two reasons. The first is that an honorable public servant should not have his career cut short by unsubstantiated slurs from the President of the United States.

The second, and deeper, concern is that the attack on McCabe is yet another Trumpian assault on essential norms that have long governed relations between the White House and the career civil service generally and federal law enforcement agencies in particular. Central to a functioning modern state is confidence that the government’s ordinary employees perform their tasks free of partisan political bias. To help ensure that civil servants will do so, the Hatch Act of 1939 requires that career federal employees surrender some of the rights of political participation enjoyed by everyone else.  Conflict of interest regulations go still further to prevent, so far as possible, even the appearance of favoritism or bias. Equally importantly, the civil service has for many decades cultivated an ethos of political neutrality, offering professional diligence in the service of the law and the agency’s mission, rather than the party of the moment.

This ethos is particularly strong in the Justice Department and federal criminal justice investigative agencies.  Anyone who has served in these bodies through several changes of administration recognizes that new presidents bring policy changes at the margins, but the focus of the career people remains on finding facts and enforcing the law. The internal norm is that personal political affiliations don’t matter and are usually unknown to one’s co-workers. No one worries that career prosecutors or agents will go harder on targets who are of the opposite party or easier on targets who share their political affiliation.

To be fair, these norms of professional even-handedness are sometimes strained in the highest profile cases. But to an impressive degree federal law enforcement agencies have lived up to the expectation of neutral professionalism.  Which is why both congress and the public have traditionally accorded the results of DOJ investigations a degree of respect they would never offer to the work of state or local governments.

It is precisely in order to protect the tradition of independent judgment so essential to its institutional mission that the Justice Department (of which the FBI is a component) has long jealously resisted White House efforts to meddle in investigations or prosecutions.

Trump’s now-successful attack on McCabe is an assault on the federal civil service in general, and the independence of the Justice Department more particularly.  In effect, Mr. Trump’s argument against McCabe is that a career FBI agent cannot be trusted if his wife ran for state elective office on the ticket of the party opposing the president. And that, in turn, is fast translating into the demand from Trump adherents and their media cheerleaders that no Democrat, or indeed any Republican not slavishly attached to Mr. Trump, can participate in investigations that might reflect adversely on the present administration.  And, of course, Mr. Trump has already embraced the view that he is entitled to “loyalty” — and protection — from “his” Attorney General and “his” FBI Director.

I have written before about the continuing Trumpist subversion of the Justice Department and the grave consequences that will flow if it succeeds.  McCabe’s resignation takes us a tiny step closer to the point of no return.

Much ado about titillating tidbits in the Mueller investigation

26 Friday Jan 2018

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By Frank Bowman

In the last week,  several items surfaced in relation to the Mueller investigation that set the media atwitter, in both the traditional and social media senses.

First, as my invaluable RA and blog co-author Sam Crosby noted, the New York Times reports that last June Mr. Trump ordered the firing of special counsel Robert Mueller, but backed down after White House Counsel Donald McGahn threatened to resign if he followed through with the order.  Since the story broke, commentators have tended to fall into three camps.  Mr. Trump himself called the report “fake news.” (Notably, neither Mr. McGahn nor anyone else from the White House has so far denied its veracity.)  Those who accept the report as true but are disposed to defend Mr. Trump have argued that he was just blowing off steam, which is no offense.  Those who view Mr. Trump less favorably have suggested either that this event is evidence of Mr. Trump’s state of mind in relation to obstruction of justice (i.e., it tends to prove that actions like firing James Comey were undertaken for the purpose of obstructing the Russia investigation), or that the rescinded order was itself an attempt to obstruct justice.

On this one, I’m more sympathetic than usual to the pro-Trump camp. Standing alone, Trump’s reported order is of no consequence.  NEWS FLASH: President decides to do something politically stupid and possibly illegal, but is talked out of it!  That’s not a crime. It’s not an impeachable offense. At most it demonstrates, as if more demonstration were needed, the extraordinary variability of our wayward chief executive’s brain.

As for the multiple commentators straining to make Mr. Trump’s almost-firing of Mueller part of the mosaic of evidence in a case of obstruction of justice, well, yeah, I guess it adds a teensy bit to the argument that Mr. Trump had a corrupt purpose in firing Mr. Comey.  But, let’s face it, not much.  Bob Mueller’s job, after all, is to be a highly public thorn in the president’s side.  The temptation to sack him would be intense, even for a president who was both entirely innocent and far more temperate than Mr. Trump.  Nearly yielding to that temptation, but pulling up short of actually doing it, just doesn’t prove much.

The week’s other big Trump-Mueller story was Mr. Trump’s apparently off-the-cuff declarations that he’d be happy to talk on the record, under oath, to Mueller’s investigators.  This was treated as earth-shaking news, perhaps signaling confidence by White House counsel and Mr. Trump’s private lawyers that the Mueller investigation would be winding up soon with nothing untoward to report about Mr. Trump.  This interpretation survived for a few hours — roughly the period it took for Mr. Trump’s lawyers to pick themselves up off the floor, swear colorfully at their client’s incorrigible refusal to listen to their advice, knock back a neat whiskey or two, and then get on the phones to start walking the story back.

Personally, I put Mr. Trump’s assertion that he looks forward to talking with the Mueller team, under oath or otherwise, in the same bin with his statements  during the campaign that he would release his tax returns once they were no longer under audit.  Mr. Trump’s whole life is a saga of promises blithely made and even more blithely broken.  His egotism may persuade him that he could dance nimbly through the minefield of an encounter with really good prosecutors.  But my bet is that his lawyers will dissuade him from a voluntary interview by Mr. Mueller, and that they will resist any effort to compel an appearance before a grand jury.

In short, nothing much of consequence happened this week on the Mueller front. Stay tuned.

Impeachment in the states: Missouri governor edition, Part 2

20 Saturday Jan 2018

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By Frank Bowman

In yesterday’s post, I discussed the basics of the impeachment provisions of the Missouri state constitution and how they compare with federal practice.  Today I turn to how Missouri’s rules intersect with the publicly reported facts of Governor Eric Greitens’ sex scandal.

The Basics

To recap, under the Missouri constitution the procedure for impeaching state judges and all elective officials is as follows:

The official must first be impeached by the state House of Representatives. Curiously, the state constitution does not specify a minimum vote threshold for approving articles of impeachment, but presumably, as with federal impeachment, approval requires a majority vote.

Once articles of impeachment are approved by the House, the trial of the allegations is held, not in the state senate, but by judges.  For all officials except members of the supreme court and the governor, impeachments are tried before the supreme court.  Impeachment of the governor or a member of the supreme court is tried to “a special commission of seven eminent jurists to be elected by the senate.”

Article VII, Section 1 of the Missouri constitution lists as impeachable conduct “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”  As I discussed in detail in my last post, this apparently very broad standard has been interpreted by the Missouri Supreme Court in Matter of Impeachment of Judith K. Moriarty, 902 S.W.2d 273 (1994), to include only conduct that is a violation of some other law, i.e., some law other than Article VII, Section 1.

The legal violation need not be criminal. Nor does there seem to be a requirement like that in the federal constitution that the impeachable behavior be a “high” or great offense.  Even, as was the case in Moriarty, a minor civil regulatory infraction could apparently suffice. Moreover, it does not appear that the impeached official must have been previously found guilty or adjudged liable by any tribunal other than the impeachment court.

[NOTE: After this article was first posted, an astute reader who worked in the statehouse at the time of the Moriarty impeachment e-mailed me to point out that, prior to her impeachment, Ms. Moriarty was indicted and convicted in Cole County for a misdemeanor election law violation in connection with the same transactions that led to her impeachment. Curiously, however, in its opinion convicting Ms. Moriarty of the articles of impeachment, the Supreme Court never mentions the prior conviction or any criminal infraction.  It merely finds that she knowingly violated the civil election statutes, as alleged by the House.]

Finally, the Missouri Supreme Court held in Moriarty that judges sitting as a court of impeachment should not make political judgments about whether the charged conduct is serious enough to merit removal.  The practical effect of this limitation is that, while judges should not convict in an impeachment case unless the charged conduct violates state law, any proven violation of any state law, however minor, should result in conviction and removal so long as the Missouri House of Representatives deemed the conduct worthy of inclusion in an article of impeachment in the first place.

Is Governor Greitens impeachable?

These ground rules have significant implications for any effort to impeach Governor Greitens.

First, because the governor cannot be impeached unless he somehow violated the law, we must begin by determining whether any of his reported conduct did so.  Here’s a rundown of the major possibilities:

  • Adultery: A surprising number of states still make adultery illegal.  But Missouri is not among them.
  • Sexual offenses or false imprisonment:  Media accounts of the sexual contact between Mr. Greitens and his former hairdresser suggest that it was consensual.  In an interview today, Mr. Greitens resolutely insisted that this was the case. However, the woman’s account of the relationship includes at least one sexual encounter in which she was bound, a point Mr. Greitens has not so far denied. So long as the woman consented to the binding and all sexual contact occurring while she was bound, there would be no crime.  That said, if either the binding or any of the particular kinds of sexual contact that occurred while the woman was bound was non-consensual, the non-consensual behavior could be criminal.  Sexual contact without consent can constitute a series of crimes, ranging in seriousness from the misdemeanor of Sexual Abuse, RSMo 566.101, to felony Second Degree Rape, RSMo 566.031.  Either binding the woman without consent or declining to release her after she withdrew consent could in theory amount to false imprisonment (now known as third degree kidnapping), RSMo 565.130.  It must be emphasized that at this point there is no evidence of anything other than a consensual sexual encounter with somewhat unusual, shall we say, rules of engagement.  And that’s not a crime.
  • Blackmail or extortion: During a conversation with her husband in which she confessed to the affair with Mr. Greitens, the woman asserted that while she was bound, unclothed, and blindfolded, she saw a flash, which she interpreted as Mr. Greitens photographing her. She also said that Greitens threatened to release the photo to the public if she revealed the affair.  Mr. Greitens has denied that he took a picture or threatened to release it. There has been widespread media speculation that this conduct, if proven, might amount to “blackmail.”  The legal difficulty with this speculation is that there is no Missouri crime of blackmail.  If a person threatens public release of embarrassing material unless the victim turns over money or something else of economic value, that constitutes “stealing” by “coercion” – which includes a threat “to expose any person to hatred, contempt or ridicule.”  But there is no allegation here that Mr. Greitens sought money or anything else of economic value. Similarly, Missouri has no extortion statute.
  • “Revenge porn”: Some jurisdictions make it an offense to release publicly indecent images of another person without consent.  But Missouri has no such statute. And Mr. Greitens released nothing.
  • Invasion of privacy (the alleged picture):  Regardless of whether Mr. Greitens committed any crime akin to blackmail, if he simply took a picture, without the woman’s consent and while she was fully or partially unclothed, that would be a plain violation of Missouri’s invasion of privacy statute, RSMo 565.252.
  • Tampering with physical evidence: If the alleged photograph was ever taken, it has not surfaced, and the woman in the case says that Mr. Greitens told her he erased / destroyed the picture. However, if there was a picture and Mr. Greitens erased it for the purpose of preventing its disclosure in any “official proceeding or investigation,” that would be the crime of tampering with physical evidence, RSMo 575.100. Of course, if such a picture once existed, but Mr. Greitens destroyed it either out of remorse for his bad behavior or to prevent its discovery by, say, his wife, that would be no crime.

The bottom line here is that, if the woman is telling the truth, Mr. Greitens committed at least one crime under Missouri law – invasion of privacy for taking a non-consensual nude photograph.  The offense is only a misdemeanor, but as noted above, Missouri’s impeachment provisions set no minimum level of severity for impeachable offenses.

The most obvious impediment to proving conclusively that Mr. Greitens violated the invasion of privacy statute is the absence of the alleged photograph.  That said, even in ordinary criminal cases, physical evidence is not necessary to establish contested facts.  In criminal court, Mr. Greitens could be charged with and convicted of invasion of privacy purely on the testimony of the woman in the case.  As a practical matter, this would require her cooperation (trying to prove the case with only her taped statement to her husband would probably run afoul of the rules of evidence). But if she testified consistently with her taped statement, nothing would prevent a judge or jury from convicting Mr. Greitens because they believed her story and not his denials.

The same is true of an impeachment proceeding.  The Missouri House of Representatives could frame an article of impeachment based on violation of the invasion of privacy statute and the panel of judges appointed to hear the matter could convict the governor because they found her more credible than him. That said, without some corroboration that a photo ever existed, it seems somewhat improbable that either a prosecutor or the House of Representatives would proceed.

The most interesting legal question an impeachment case for invasion of privacy would present is whether a state official can be impeached for conduct that occurred before he took office.  The Missouri constitution doesn’t address this issue.  And the final intriguing twist on the matter is that we cannot be sure that the issue is what lawyers call “justiciable.”  In other words, the Missouri constitution delegates the task of trying impeachment of a governor to a special commission of judges appointed by the state senate.  In the federal system, the decision of the U.S. Senate on whether or not to convict an impeached officer is generally understood not to be reviewable by the courts. The Missouri constitution certainly implies that the decision of the special commission is final, but inasmuch as no such commission has ever been convened, we cannot know whether its decision would be deemed final by the regular courts.

As a final note, I have not discussed here the fact that the FBI is also apparently taking a preliminary look at this case.  I may return in a later post to consider whether any federal statute could possibly have been violated and whether a violation of federal law would be grounds for impeachment under the Missouri constitution.

Frank Bowman

 

Impeachment in the states: Missouri governor edition, Part I

19 Friday Jan 2018

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By Frank Bowman

Here in the Show-Me State, we have been granted a temporary reprieve from the feverish national focus on all things Trump by news of the sexual peccadillos of our recently-elected governor, Eric Greitens. As has now been reported across the nation, on Wednesday, January 10, shortly after his State of the State address, Governor Greitens released a statement admitting to a extramarital sexual affair with his former hairdresser back in 2015.

The admission came in anticipation of impending media reports alleging not only that there were one or more sexual encounters between the hairdresser and Mr. Greitens, but that on one occasion Mr. Greitens took a picture of the woman while she was bound and in a state of full or partial undress and then threatened to release the picture publicly if she were ever to speak about the affair. The reports were made all the juicier by the fact that the woman’s former husband secretly recorded her tearful confession to the affair and released the recording to the media.

In his statement, Mr. Greitens admitted the sex, but denied that he had either taken a picture of the woman en déshabillé or threatened to release such a picture to maintain her silence.

Political reaction to these revelations has been swift and somewhat surprisingly severe given that Mr. Greitens is a first-term Republican governor often touted as a rising political star in a state where Republicans hold all but one state-wide office and supermajorities in both houses of the legislature. Democrats immediately called for Mr. Greitens’ resignation, as have multiple Republican legislators. Even Republicans who haven’t gone that far seem, at best, to be withholding judgment pending the outcome of a criminal investigation by the St. Louis Circuit Attorney (and possibly one by the FBI).  One Republican state senator, Gary Romine, said that if investigations into Mr. Greitens’ behavior do not exonerate him, he should “resign or face impeachment.”

Naturally, as soon as I read the word “impeachment,” I perked up like a foxhound when the Master of the Hunt yells “Talley Ho!”  What follows is a two-part look at the law governing impeachment of Missouri state officials, a comparison of Missouri law to federal practice, and a preview of the particular issues an effort to impeach Mr. Greitens would present given the current state of the evidence.

Impeachment in Missouri

Article VII, Sections 1 and 2 of the Missouri constitution state:

Section 1. All elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts shall be liable to impeachment for crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.

Section 2. The house of representatives shall have the sole power of impeachment. All impeachments shall be tried before the supreme court, except that the governor or a member of the supreme court shall be tried by a special commission of seven eminent jurists to be elected by the senate. The supreme court or special commission shall take an oath to try impartially the person impeached, and no person shall be convicted without the concurrence of five-sevenths of the court or special commission.

The most obvious difference between federal and state impeachment procedure is that, while in both systems the house of representatives impeaches the officer, i.e., specifies the charges against the accused, in Missouri the state supreme court, rather than the senate, tries the case. That is, the Missouri Supreme Court, not the Missouri senate, decides whether the allegations in the bill of impeachment are proven and thus whether the officer ought to be removed.  The way the Missouri Supreme Court has interpreted its function materially alters the Missouri impeachment process.

In the federal system, the president may be impeached for serious crimes (although there is disagreement about which ones) and for very serious non-criminal misconduct either in relation to the office or of a personal sort that undermines the president’s legitimacy. Most scholars would agree that, under the federal constitution, the president ought not be impeached for minor crimes (and perhaps not even for serious crimes like perjury if unrelated to his official duties) or for laziness, ineptitude, or pursuing political objectives contrary to those of the legislative majority.

Critically, all informed observers of the federal impeachment process agree that both the decision by the House about which behavior is impeachable and the subsequent decision by Senate about whether to convict and remove the accused are to a significant degree “political.”  As Alexander Hamilton famously said in Federalist #65, impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

The concededly political character of the federal impeachment process shapes the essential nature of the decision-making process.  Both the House and Senate are called upon not merely to decide the truth of factual allegations against the president, but to judge whether the conduct is of a nature that merits removal of the nation’s chief executive officer.  The second choice is a political judgment which the Framers consciously placed in the hands of two political bodies.

The Missouri constitution originally consigned the trial of impeachments to the state senate.  But in the 1940’s (perhaps in response to a case where the senate refused to convict a former senator whose factual guilt was patent), the constitution was amended to institute the present arrangement assigning impeachment trials to the state supreme court. The apparent purpose of the change was to eliminate politics from the last stage of the impeachment process, but as is so often true, this benevolent-sounding objective created a new complication.

In theory, courts are not supposed to be political bodies.  In theory, they are limited to deciding what the law is, whether facts are proven, and whether proven facts fall within the ambit of the law. Of course, any serious student of courts realizes that politics in the broad sense affects judicial decisions at every level. Judges unavoidably bring their own philosophical predilections to deciding both law and facts, and perhaps more importantly, common law judging has always had a public policy component.  Nonetheless, judges traditionally shun explicitly political judgments – such as whether removal of a particular executive branch official would or would not be beneficial to the commonweal.

This judicial discomfort manifested itself in the only Missouri impeachment case to arise after the constitution was amended to give the responsibility of trying impeachments to the supreme court. The case, Matter of Impeachment of Judith K. Moriarty, 902 S.W.2d 273 (1994), arose from the impeachment of the Missouri Secretary of State for “knowingly allow[ing] the signature of her son as candidate or of her administrative aide or both to be placed on an unsigned declaration of candidacy [for public office] so that declaration falsely declared that the son had appeared in presence of aide to declare for office within the time provided for by statute.”

The Missouri Supreme Court found that Ms. Moriarty did what the articles of impeachment charged, thus removing her from office. The interesting part is the court’s explanation of its role in the impeachment process. The court began by contrasting the traditional impeachment system in which the house impeaches and the senate tries the accused with the Missouri system of trial by supreme court:

An impeachment is thus a judgment by the House of Representatives—one of the popularly-elected, representative bodies of the people’s General Assembly—that an officer of the state has committed acts such that, were an election held, the people would not permit the impeached officeholder to remain in office. When a Senate determines whether to convict under articles of impeachment, the vote affirms or rejects the judgment of the House. Under this system, the possibility exists that the House may impeach and the Senate may convict an official for purely political reasons, though they clothe their charges with constitutional language like “misconduct.”

Missouri’s constitutional provision is a clear acknowledgment that the trial of impeachment charges is essentially judicial in character and is not a political function. This Court can convict only where there is actual misconduct as the law defines it. “Misconduct” means doing an unlawful act, doing a lawful act in an unlawful manner, or failing to perform an act required by law. It does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.

This passage is remarkable in several respects.

First, it offers a distorted interpretation of the standard for defining an impeachable offense in federal and state systems in which legislators both formulate and try the articles of impeachment. The court opines that in such systems legislators are supposed to engage in a sort of mass mind-reading exercise assessing the probable electoral reaction of the public to the charged conduct. I confess to thinking this assessment misguided. In the federal system, at least, it is quite clear that senators are intended to exercise independent judgment, and that they should not decline to convict an office holder merely because they think the public might re-elect him despite constitutionally obnoxious conduct.  Were that the case, no demagogue could ever be impeached so long as he retained the probable support of the mob.

Moreover, when the Missouri court disparages senate impeachment trials on the ground that an officeholder may be convicted “for purely political reasons,” it betrays a crabbed and historically inaccurate view of what Founders like Hamilton meant by “political.”  For Hamilton and others of his generation, the term “political” ran far beyond narrowly partisan considerations to broad considerations of constitutional balance and societal good.  For them, impeachment was “political” because it demanded the exercise of sound judgment about whether removing a particular officer for particular conduct protected or disserved republican government.

More important from Governor Greitens’ standpoint is the court’s holding that, because judges and not legislators try Missouri impeachments, there can be a conviction only:

… where there is actual misconduct as the law defines it. ‘Misconduct’ means doing an unlawful act, doing a lawful act in an unlawful manner, or failing to perform an act required by law. It does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.

This is huge because it markedly narrows the definition of impeachable conduct.  Indeed, the result is to judicially amend the Missouri constitution.  Recall that Article VII, Section 1 of the Missouri constitution says that officials may be impeached for “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”

Some of the items on this list obviously do refer to illegal conduct, notably “crimes … corruption in office, [and] any offense involving moral turpitude or oppression in office.” On the other hand, the constitutional text pretty plainly contemplates impeachment for lots of behavior that violates no other law. For example, neither “habitual drunkenness” nor “incompetency” is illegal.  Nor is either “willful neglect of duty” or “misconduct” necessarily a legal infraction.

To maintain its preferred self-conception of non-political arbiter of facts, the Missouri Supreme Court imposed a limiting construction on the constitutional term “misconduct” that requires the impeached official to have violated some other law.  (For you law geeks in the audience, it does so by the extremely dubious expedient of adopting its definition of “misconduct” from a Tennessee case construing the common law crime of “official misconduct,” an offense which exists nowhere in Missouri law.” Mid–South Indoor Horse Racing, Inc. v. Tennessee State Racing Commission,798 S.W.2d 531, 538 (Tenn.App.1990).)

Notably, the laws the Court found Ms. Moriarty to have violated were simply statutory rules for proper filing of candidacy for office.  Failing to perform the duties prescribed in these sections was apparently chargeable as a misdemeanor (perhaps under RSMo 115.641).  Moreover, it appears that, prior to the impeachment proceeding, Ms. Moriarty was charged in Cole County and convicted of such a misdemeanor for her conduct.  But curiously, the Missouri Supreme Court made no reference in its opinion either to the Cole County proceeding or to any violation of criminal law.  The bottom line of Moriarty seems to be that, on the one hand, the Supreme Court will not convict in an impeachment case unless the charged conduct violates state law, but on the other hand, violation of any state law, however minor, will result in conviction and removal so long as the Missouri House of Representatives deems it impeachable.

One sympathizes with Court’s reluctance to stray from its traditional judicial role, but the result is a markedly strained reading of the Missouri constitution — and one that could have considerable impact on any effort to impeach Governor Greitens.

I will address the specifics of the Greitens case in my next post.

Frank Bowman

 

 

 

 

 

In 24 hours, Mr. Trump demonstrates the whole spectrum of his unfitness

12 Friday Jan 2018

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By Frank Bowman

The media are understandably abuzz with reports about Mr. Trump’s use during yesterday’s White House meeting on immigration of a vulgarity to refer to Haiti, El Salvador, and some African nations.  But the horrified focus on the phrase “s***-hole countries” has served to obscure the multiple ways in which, during a single day, Mr. Trump displayed his unfitness for the presidency.

The “s***-hole countries” comment does perhaps deserve pride of place because it illustrates at least two disqualifying character traits.

First, although I am deeply reluctant to get into the business of assessing anyone else’s racial attitudes (none of us being pristine in this regard), it is darn near impossible to hear Mr. Trump’s vulgar denigration of countries populated by brown people as anything other than a manifestation of personal prejudice, particularly in light of his reported enthusiasm in the same meeting for immigration from places like Norway.  And even if, as Mr. Trump’s defenders are valiantly seeking to do, one could explain away this particular remark, it was not an isolated incident.  His consistent use of overt or barely coded racial appeals compels the conclusion that he is either personally bigoted or is at the least prepared to play on the prejudices of  a segment of the public to advance his political ends.  Either characteristic should be disqualifying in a president because it places him in opposition to the founding ideals of the country (“all men are created equal”) and core legal principles written into the constitution and statutory law.

Second, the use of a racially-charged vulgarity in the setting of a delicate negotiation with congressional leaders is a demonstration of personal indiscipline and professional incompetence. Among a president’s primary jobs are the practical one of helping to guide the legislative process toward enactments consistent with the administration program and the aspirational one of acting as a behavioral exemplar to the country.  It goes without saying that public displays of vulgarity and racial insensitivity hardly uplift the nation. But anyone who does not understand that behavior of this sort is almost sure to mortally offend those with whom one is negotiating and thus to derail the negotiation has no business in any executive position, much less the Oval Office.

That said, the “s***-hole countries” incident actually pales in comparison to several remarks Mr. Trump made during a Thursday interview with the Wall Street Journal.  I’ll mention only two here.

During a discussion of the recently released tell-all book, Fire & Fury, Mr. Trump repeated his previously expressed view that libel laws should be strengthened, and went on to complain that this would not happen because “congress doesn’t have the ‘guts’ for that debate.”  This is profoundly troubling for two reasons.

First, it is of a piece with Mr. Trump’s continued disparagement of the press.  All presidents are at times resentful of the media.  And there’s nothing inherently wrong with presidential criticism of either particular coverage or the general approach of the 4th Estate.  But a president should not, consistent with his obligation to support and defend the constitution, actively seek to undermine the free press guaranteed by the First Amendment.  Mr. Trump’s behavior has consistently run very close to that impermissible line, if indeed it has not already crossed it. Indeed, Trump’s virulent disparagement of all media not overtly adulatory of him is distressingly consistent with the approach taken by anti-democratic authoritarian leaders of the past century.

Second, Mr. Trump’s criticism of Congress for failing to change libel laws illustrates — once again — his yawning ignorance of American law and government.  There is no federal libel statute.  Libel law is a matter of state jurisdiction.  This is not to rule out absolutely the possibility that, in theory, congress could pass a national libel statute. But it would seem quite difficult to find a constitutional warrant for doing so even in an expansive reading of the commerce clause.  And more to the point, by immemorial American practice, libel is a state matter.

Mr. Trump’s defenders would no doubt respond that this is a picky, technical legal point that only an academic pointy-head would care about.  But that’s precisely wrong. A president should know this sort of thing.  It’s part of the background knowledge of American public life that should be a minimal qualification for the presidential office. But even more critically, a president who is actively proposing congressional action in a particular area has an obligation to find out the status of current law and to identify the appropriate body to make changes before he shoots off his mouth.

No president can know everything.  All presidents, even deeply experienced ones, come to office with big gaps in their knowledge.  But a minimal expectation of any president is that he or she become informed before advocating important changes in federal law.

During the Wall Street Journal interview, Mr. Trump also contended that text messages sent by an FBI agent during the campaign criticizing Trump and expressing dismay at the possibility of his election amounted to “treason.”  This comment, too, illustrates multiple disqualifying Trumpian traits.

First, just as with the libel remark, Mr. Trump demonstrates a sad ignorance of the law.  Treason is the one offense named and defined in the constitution itself, which provides that treason “shall consist only in levying war against [the United States], or in adhering to their enemies, giving them aid and comfort.”  Whatever the FBI agent’s texts may be, they are not treason.

Again, Mr. Trump’s defenders may say that this is picayune legal nicety.  But it’s not.  A president is supposed to know what the constitution says.  And even if he doesn’t remember the place of “treason” in the constitution, a president should never publicly accuse someone of a capital crime – which treason is – without at a minimum fully and carefully considering whether the accusation has any merit. Indeed, the best practice is for presidents to studiously avoid publicly accusing people of crimes at all, since doing so both damages the reputation of the accused in a forum where he has no opportunity to respond and preempts the role of the Justice Department in determining through formal legal processes whether charges should be preferred against anyone.

Second, and more distressingly, the accusation of treason here is yet another in the steady stream of examples of Mr. Trump characterizing his opponents as criminals and criticism of him as something to be suppressed by either civil law (libel) or criminal prosecution (treason). It becomes plainer by the day that Mr. Trump increasingly conceives of himself as indivisible from the country, that, incredibly in an American president, he subscribes to Louis XIV’s view that “L’etat c’est moi.”  Only for a man who sees the world this way is this accusation of treason comprehensible.

Our national crisis deepens.

Frank Bowman

 

A Mad Week: As Trump’s Unfitness Becomes Ever Plainer, Republicans Maneuver to Protect Him

06 Saturday Jan 2018

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By Frank Bowman

During the past week, two discordant trends gathered strength in the parallel universes inhabited by the increasingly Trumpist Republican Party and pretty much everyone else.

One the one hand, evidence of Mr. Trump’s unfitness for office continued to mount.  Michael Wolff’s book about the Trump campaign and his early days in office, Fire & Fury, was breathlessly previewed, and then released early in the face of a threat by Trump to sue to stop it.  Whether or not all the details of the book are accurate, the thrust of its portrayal of Trump — an unprepared, barely literate, narcissist who ran for president as a brand-building stunt, never expected to win, and lacks the minimum levels of intelligence, rectitude, maturity, discipline, and psychological stability necessary for the job — is entirely consistent with the existing public record.

Mr. Trump is reportedly furious about the book, and his handlers have furiously disparaged both book and author.  But, typically, Trump’s own uncontrollable compulsion to return fire merely confirmed the truth of the book’s portrait of a man both pathologically insecure and cripplingly wanting in self-awareness.  This morning, in response to Wolff’s disparagement of his intelligence and stability, Mr. Trump tweeted that he is “a very stable genius.”

Meanwhile, at the other end of Pennsylvania Avenue, congressional Republicans seem to be unaffected by the ceaseless accretion of proof that Mr. Trump is dangerously unsuited to be president.  Indeed, as Trump’s troubles increase, an increasing number of Republican legislators evince a readiness to undermine long-standing governing norms to protect him.

Trump and his defenders obviously view the Mueller investigation as a major threat to the administration.  It is increasingly plain that an important faction of Republican legislators also see Mueller as a threat, although it is unclear whether they are most concerned about the danger Mueller poses to Mr. Trump, or the danger that adverse conclusions by Mueller would pose to Republican electoral prospects in coming down-ballot elections.  Regardless, a two-pronged Republican strategy seems to be emerging.

Prong one involves attacking Mueller directly, with insinuations that he and his team are servants of an anti-conservative “deep state” embedded in the Justice Department and FBI, and calls for the resignation of AG Jeff Sessions so that he can be replaced by someone who could control Mueller’s supposed “witch hunt.”

Prong two is a transparent, but deeply dangerous, effort to divert attention from Mueller’s work by pressing for federal criminal investigations of Hillary Clinton, the Clinton Foundation, former members of the Obama Administration, and others who are either already recognized boogiemen to consumers of far-right media or, like James Comey, are persons whose reputation for probity threatens Trump.

I have previously deplored the willingness of the Republican members of the House Judiciary Committee to call for legally baseless investigations of Hillary Clinton and her campaign.  Such requests are corrosive of the rule of law inasmuch as they seek to politicize the criminal investigative apparatus of the federal government.  Worse, they undermine democracy itself by transforming elections into struggles to the death in which all tactics, however reprehensible, are justified by the imperative to avoid losing in an arena where losing could mean prison, or at least the crippling cost of endless investigations.

The latter consequence has now materialized for Secretary Clinton, as it was this week reported that the Justice Department has opened, or re-opened, investigations into the Clinton Foundation and perhaps the e-mail matter. In short, Jeff Sessions’ Department of Justice has folded under political pressure and in the process severely damaged its own institutional credibility.

Until this week, I was somewhat comforted by the relative restraint of Republican senators, some of whom had signaled opposition to any effort to fire Mueller or distort the ordinary professional judgments of the Department of Justice.  However, my tentative confidence in the relative rectitude of Republican senators was shaken this week when Senators Charles Grassley (R-Iowa) and Lindsey Graham (R-S.C.) made a formal referral to the Justice Department suggesting that criminal charges be brought against Christopher Steele, the former British intelligence agent whose consulting company assembled the famous dossier about Trump’s connections with Russia.

It is, to be frank, doubtful that the Justice Department will take serious action on this request.  But the mere making of it is plainly part of a larger strategy to diffuse the impact of the Mueller investigation, and to discredit Trump critics and sources of information about his Russian contacts. In short, at least some Republican senators are now joining in the deeply dangerous, profoundly corrosive tactic of using the Department of Justice as a pawn in the game of protecting Donald Trump.

Again, the dissonance between the mounting evidence of Mr. Trump’s unsuitability for the presidency and the increasing willingness of elected and appointed Republicans to undermine governmental institutions and democratic norms to protect him, and by extension the Republican Party, is stark.

A collision is coming.  I am not confident that the result will be a happy one.

Frank Bowman