Adam Liptak, the distinguished Supreme Court reporter for the New York Times, has an article out today discussing whether, as a matter of historical precedent, obstruction of legal processes can be an impeachable offense. He is kind enough to quote Professor Bowman extensively. The link is here.
In addition to syndicating Professor Bowman’s article from this blog on the Mueller report (link here), the good folks at Slate were kind enough to invite him to participate in an online discussion/debate about whether impeachment is now likely or desirable in the wake of Mueller’s work. The link to the debate is here.
By Frank Bowman
This is how it’s done. In the endless, degrading cacophony of the Trump era, in which the “tweet storm,” the “flame war,” the sneering insult, and the facile certainty of cable punditry have become the customary form of legal and political discourse, I had almost forgotten what the language of the law sounds like. But there it is in the 448 pages of the Mueller report
— logical, cautious, painstaking, measured, dry, yet inexorably compelling. One may quibble about details, but taken as a whole, Mueller’s product is an exemplar of the prosecutor’s craft and a powerful reminder of why a Justice Department imbued with norms of independence and professionalism is an essential counterweight to both presidential overreach and partisan hysteria.
The legal craftsmanship of the report is also an unanswerable refutation of the endlessly repeated canard that the Mueller investigation was a baseless partisan “witch hunt” by a hostile “deep state.”
In one sense, of course, the report is the work of the “deep state,” if by that foolish term one means the career professionals of American law and government. If some of those professionals are hostile to Trump and Trumpism, it is only because their lives are based on values — the dogged pursuit of truth, a commitment to fairness and due process, respect for the law, support of constitutional government — that Trump openly flouts.
Nonetheless, Trump should thank his lucky stars that Mueller’s team was composed of such old-fashioned folks. Had they indeed been the “thirteen angry Democrats” of Trump’s splenetic imagination, persons of the disposition and caliber of, say, Devin Nunes or Lindsey Graham, but of the opposite political valence, the resultant report would surely have been very different. As it is, the professional values and institutional norms by which good prosecutors live produced a report exonerating Trump of actual crime in relation to Russian election interference and withholding judgment on the legal question of obstruction.
Trump and his enablers are, of course, claiming vindication. But the caution and restraint of Mueller’s style cannot obscure the facts he meticulously reports. And those amount to a devastating portrait of a man by conduct, character, and temperament unfit for the office of president.
The section of the report on Russian election interference does clear Trump and his campaign of conspiring with the Russian government to interfere in the 2016 election. It nonetheless unequivocally affirms that the Russians did interfere. And it depicts Trump campaign operatives, including members of the Trump family, who were aware of the possibility that Russia was trying to intervene to help Trump by hacking and leaking material damaging Clinton, but saw no problem with such Russian meddling and would happily have conspired in it given the chance.
The reality of Russian intervention and the dangerous, if perhaps not quite provably illegal, proximity of Trump intimates to it frames the question of Trump’s obstruction quite differently than his defenders would like. Despite Trump’s endless denials, the Russians did meddle. As a matter of national security, that required investigation. Likewise, Trump associates and family did have troubling contacts with Russian emissaries. That, too, required investigation. Given the facts, both those long publicly known and others now laid out in Mueller’s report, investigation of neither point could, except in the mind of a willfully blind partisan, amount to a “witch hunt.”
Moreover, a truly independent inquiry into Russian electoral interference represented a political threat, or at least grave embarrassment, to Trump, because it raised the possibility that his victory was tainted by the assistance of a hostile foreign power. In addition, by no later than early 2017, Trump knew that his family and associates had, at the very least, come dangerously close to illegal entanglements with Russian representatives. Thus, Trump had powerful motives to quash the Russia investigation.
The crime of obstruction of justice depends on proof of two basic points — first, actions that obstruct or impede an investigation, and second, corrupt motive. Although a president may lawfully limit or even halt investigations for reasons genuinely related to the national interest, doing so to advance one’s partisan political prospects or to protect oneself or one’s family or friends from criminal exposure or personal embarrassment is to act corruptly.
The second volume of Mueller’s report lays out eleven different incidents or sequences of events that might amount to obstruction — from Trump’s efforts to convince FBI Director James Comey to lay off the investigation of Gen. Michael Flynn, to his repeated attempts to stop or limit the Mueller investigation, to his public and private efforts to induce witnesses Flynn, Manafort, and Cohen not to testify or to hew to Trump’s preferred view of reality.
Space precludes a blow-by-blow analysis of each of these categories, but Mueller’s conclusions — though guardedly, even opaquely, phrased — are evident and damning. He concludes that on multiple occasions Trump engaged in behavior that either did, or was intended to, obstruct or impede criminal investigations. As to some of the enumerated categories, Mueller concludes that, even if obstructive conduct occurred, there was insufficient evidence of “corrupt” motive. But as to at least five sequences of events, Mueller unmistakably believes that there is persuasive evidence of both obstructive conduct and corrupt motive. These included repeated efforts to remove special counsel Mueller; an attempt through Cory Lewandowski to induce Attorney General Sessions to limit the scope of the Mueller probe to future Russian interference in elections; a brazen attempt to convince White House Counsel Don McGahn to lie about the fact that Trump had ordered him to arrange the firing of Mueller; Trump’s efforts to influence the cooperation and testimony of Michael Flynn and Paul Manafort; and Trump’s efforts to induce Michael Cohen not to cooperate or to shade his testimony in Trump’s favor.
Mueller’s conclusions are unmistakable despite his careful refusal to go the last step and say plainly that Trump obstructed justice. If there were any doubt on the point, it is removed by the report’s inclusion of a devastatingly thorough legal rebuttal of Attorney General Barr’s apparent view that a President cannot commit obstruction by stopping or limiting a criminal investigation. The only reason to include such an argument is if Mueller concluded that, on the facts, the president violated the law. Otherwise, the legal question is moot and a legal craftsman like Mueller would never have included such surplusage.
In the end, of course, whether a president can or cannot technically commit the crime of obstruction is itself a moot point. As I have argued many times, Bob Mueller was never going to defy DOJ policy and seek indictment of a sitting president. As to the president, therefore, Mueller’s job from the beginning was to determine the facts and present them to Congress and the public in order that a political judgment about the president’s fitness for office could be made — whether through the impeachment process or at the polls.
The picture of the current president painstakingly etched in the Mueller report is of a man with three dominant characteristics.
First, his narcissism overwhelms all other considerations. Even a more balanced and self-aware person would have found the Russia inquiry politically and personally troublesome. But one cannot escape the feeling (to which Mueller obliquely alludes) that a primary factor in Trump’s desperate efforts to squash the investigation was the fragility of his ego — a manic determination that the epic achievement of his election not be tarnished by even a hint that forces other than Trump played a role.
Second, Trump believes that, having been elected, the powers of government are to be wielded for his personal and political benefit and the law exists only as a tool to serve his ends. No institution, no law, no set of traditional norms, no professional standard, certainly no moral consideration deserves any deference if it stands in the way of his immediate wishes.
Third, the thread running through the entire report is Trump’s essential falsity. Mueller confirms that Trump not only lies constantly as part of his public act, but does so privately among his advisers and intimates and he expects others to lie for him on command. Among the most revealing vignettes is Trump’s effort to convince Don McGahn to lie about the fact that Trump ordered him to secure Mueller’s firing. McGahn, to his credit refused and showed Trump his notes documenting the order. Trump exploded in astonishment that, “Lawyers don’t take notes…. I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.” That a subordinate might have personal integrity and be unprepared to sacrifice it on Trump’s command had seemingly never occurred to him.
One other curious theme recurs throughout the report as a kind of counterpoint to Trump’s lawlessness. Even though Trump repeatedly ordered people to crush or divert or hobble the Russia investigation, over and over they refused to comply, either to his face or simply by failing to carry out his directives. Revealingly, those who resisted told Mueller that they did so because they didn’t want to be responsible for another “Saturday Night Massacre,” or they didn’t want to be another Robert Bork.
This is heartening in a sense. The example of Watergate seems to have restrained at least some Trump subordinates and helped buttress, at least for awhile, the tottering citadel of the rule of law. But the Mueller report is about yesterday’s White House. Those with historical memory, and perhaps more imbued with personal integrity and professional values, are largely gone. Quit in disillusionment. Or purged because they refused to bend to Trump’s lawless whims. In considering what to do about Donald Trump, Congress should ponder that they now confront a Trump unchanged in his essence but increasingly surrounded by aides who may prove unwilling to provide even the modest restraint on his worst impulses documented in Mueller’s report.
Whether Donald Trump violated a particular federal obstruction statute is in the end a peripheral matter. The fundamental lesson of the Mueller report is simply that he is fundamentally unfit for office and presents a persistent danger to the integrity of the American constitutional order. That is the question that Congress and the country must now address.
By Frank Bowman
The villagers are despondent. Helpless against the ogre in the white castle looming over their town, they hired Sir Robert, peerless paladin of republican virtue, and sent him forth against the monster. After a two-year quest, every hint and rumor of which was followed breathlessly by the quaking townspeople, Sir Robert has returned. But he comes not with the ogre’s severed head hanging from his saddle bow, but with a long parchment that says, “The creature in the white palace is indeed a bad fellow, certainly not better and indeed somewhat worse than you knew him to be when you selected him to live there. What you do about that is now up to you.”
Upon reading this, the scales fell from the villagers’ eyes, and Sir Robert stood before them revealed, not as a knight in glittering plate armor with pennon flying from his lance, but as what he had been all along, a grave, punctilious, honest lawyer who had done what he was tasked to do, neither more nor less. And then, in their disillusionment, those villagers most wroth against the ogre wailed and rent their garments and covered their heads with ashes.
Robert Mueller was never going to save us from Donald Trump. He was certainly never going to indict a sitting President of the United States. Indeed, given the narrow scope of Mueller’s charge — to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and any “matters that arose or may arise from the investigation” — it was always extraordinarily unlikely that he would find that Trump or high-ranking members of his presidential campaign “colluded” — or to use the better and more precise legal term, “conspired” — with the Russian government to fix the 2016 election.
The improbability of success on “collusion” narrowly construed had nothing to do with the inherent morality of Trump and his handlers. After all, Trump chose as his campaign manager Paul Manafort, a man so sleazy that, even before his recent convictions, he had been cast out of American politics to practice his black arts on behalf of the third world thugs and aspiring autocrats on the fringes of the former Soviet empire. And apart from thoroughly corrupt newcomers like Manafort and lightweight wanna-be grifters like Rick Gates, Trump’s campaign was a family affair. Which meant that a chip off the old block like Donald Jr. was empowered to gleefully accept meetings with obviously dodgy Russian intermediaries offering obviously stolen dirt on candidate Hillary Clinton.
But however much the Trump menage might have been willing to conspire with the Russians, it has always seemed improbable in the last degree that, during the campaign, the Russians ever got close enough to Trump that the interaction could be fairly categorized as a criminal conspiracy. A prosecutable conspiracy requires proof that two or more persons agree to carry out a criminal objective.
The first problem with proving that Trump conspired in the legal sense with the Russians is identifying the criminal objective of the conspiracy. The second and equally daunting obstacle is proving an agreement to commit the object crime.
What we know of Russian activities in 2016 establishes that they did two basic things to help Trump and hurt Clinton — they certainly conducted a social media disinformation campaign that favored Trump and they quite probably hacked Clinton campaign emails and fed them to the media through Wikileaks.
As to the first, one might construe the millions of rubles expended on the Russian social media effort as an illegal foreign campaign contribution, but I am aware of no evidence suggesting that the Trump campaign had any more advance knowledge of the Russian efforts on this score than anyone else. Indeed, there is no reason to think the Russians would have said anything to Trump’s people about their work in this realm. They didn’t need Trump’s help to do what they were doing and telling Trump — that famously indiscreet man — would have risked disclosure which would have nullified the whole point of the exercise.
As for the Clinton email leak, the original hack (whoever performed it) would have been illegal, but it is altogether unclear whether anything that happened thereafter was criminal. Anti-Trump legal experts have poured out barrels of internet ink arguing that for a foreign government or entity to give and an American candidate to accept negative information about an electoral opponent is a campaign finance violation. I’ve always found this contention improbable, both as a matter of law and as a matter of simple common sense.
Suppose, as was surely the case, that the British favored Hillary Clinton in the last election, and that, as was apparently not the case, they had evidence Donald Trump had long been a Russian intelligence asset. Can anyone seriously contend that it would be a crime under American law for the Clinton campaign to ask the British about their knowledge of Trump’s allegiances or indeed for the British to respond to the query? Even if one accepts the somewhat strained argument that information is a thing of value regulated by campaign finance law, no plausible reading of the First Amendment would permit criminalization of the disclosure of information so vital to the operation of the democratic process.
In any case, I strongly suspect that when the details of Mueller’s investigation finally emerge, they will reveal no evidence of prior communication between Trump’s people and the Russians about the Clinton email hack or the feed of the material to Wikileaks. An expression of interest in the emails by Donald Jr. at the Trump Tower meeting, yes. Loud public encouragement of the release from Trump, yes. Some advance word given to Roger Stone by Julian Assange (not the Russians) of the impending release of the material by Wikileaks, perhaps. But no Trump-Russian cooperation in either obtaining or disseminating the material.
All of which makes perfect sense. The Russians perennially want to undermine their great geopolitical rival, the United States. They disliked Hillary Clinton for her past posture on matters Russian, and perceived her as the more obviously competent — and thus undesirable — candidate in the 2016 election. Therefore, they were happy to attack her to weaken her support among the American public and to cause general disruption of American civic life. But, and this is a huge but, while it is now sometimes hard to remember, before November 8, 2016, no sensible person — not the Russians and probably not even Trump himself — thought the American public would freely choose to elect such a transparently incompetent blowhard.
It was therefore always vanishingly improbable that the Russians would connect themselves directly and provably to the campaign of a weak, imprudent, huckster, thus exposing Russia to the wrath of what the Russians surely assumed to be the incoming Clinton administration. Without such connections, there can have been no criminal conspiracy.
The situation with respect to obstruction of justice is different. It appears from Attorney General Barr’s letter that Mueller did find evidence from which one might conclude that Trump obstructed justice, but elected not to opine on whether that crime was committed. We don’t yet know whether he did so because the evidence on both sides of the question was in rough equipoise, or because he concluded that the law is ambiguous, or because he decided that, since he could not under DOJ policy indict a president, he should not offer an affirmative opinion that the president committed a felony.
My best guess is that he intended that congress and the public should weigh the evidence arrive at its own conclusions. The Barr letter is a fairly transparent effort to frustrate that expectation by offering a preemptive and exonerating legal judgment carrying the imprimatur of the Attorney General. It is also a peculiar animal because it effectively concedes that Trump did obstruct the Mueller investigation in fact, but nonetheless concludes that Trump did not commit the crime of obstruction primarily because Mueller did not find that Trump “was involved in an underlying crime related to Russian election interference.”
For what it’s worth, I think, Mr. Barr is wrong on the law. His heavy reliance on the absence of proof that Trump himself committed a crime connected with Russia is certainly misplaced. One can undoubtedly obstruct justice by interfering with an investigation of the crimes of someone else. Moreover, the law is clear that one can obstruct an investigation that ultimately does not yield proof of criminal wrongdoing by anyone. Barr’s contrary conclusion is only explainable as intellectually dishonest special pleading, or as the product of an intellectually honest, but constitutionally suspect, embrace of the so-called unitary executive view of the presidency pursuant to which the president as the personal embodiment of the executive branch cannot obstruct justice by stopping investigation of anyone else.
But none of the foregoing is at all surprising. The chances of a smoking gun tying Trump to a provable electoral conspiracy with the Russians were always tiny. And any obstruction case was almost certainly going to turn on debatable views of presidential power. This does not mean that the Mueller report itself, once revealed, will be of no consequence. One suspects it will reveal a wealth of discreditable detail about Trump and his clan. Still, whatever is in it will likely serve only to confirm his opponents in their disdain, even as his fans continue to hail it as exoneration.
For me, the most important question about the Mueller report is the issues it will leave unaddressed. For example, I have long thought that the Trump campaign’s contacts with Russia during the election were a mere secondary issue. The real question about Russia is why Trump has become a reliable, even obsequious, apologist for Vladimir Putin and has, so far as he has been able against the resistance of Congress and the intelligence and defense establishments, regularly aligned himself with Russian interests. That requires explanation, and I strongly suspect Mueller did not read his charge as extending to an inquiry that would demand a deep historical analysis of Trump’s personal and business history running many years into the past. If the mystery of Trump’s open affinity for Putin is to be solved, congressional Democrats will have to solve it.
Which brings me to the three main lessons of the Mueller investigation.
The first is that Trump’s opponents have always invested far too much hope in Robert Mueller. He was asked to investigate one quite narrow segment of Trump’s affairs. He seems to have done so, vigorously, professionally, and dispassionately. But he was never going to be Trump’s Ken Starr, peering into every cranny of Trump’s life before and after the election for the silver bullet that would bring down a president. Mueller lacked the powers the old independent counsel statute gave Starr, and happily I think, he lacks the zealotry that propelled Starr to the sordid fizzle of the Clinton impeachment. He has provided a salutary example of what the law, and the prosecutors who serve it, are supposed to do.
Second, the very narrowness of the Mueller inquiry should remind us that the problem with Donald Trump has never been one misdeed or misjudgment, or even one extended disgraceful episode. Nor is it the things we do not know about him (unless he really is compromised by Russia). The already-obvious challenge he presents to American democracy is his endless, staggering, mind-numbing array of completely public assaults on communal decency, competent governance, and bedrock constitutional norms. We don’t need Bob Mueller to tell us what the problem is. And almost nothing Mueller was ever likely to discover would have added very much to our understanding of that problem.
Bob Mueller’s legal investigation was never going to solve our national political crisis. And by not trying to solve it, by simply doing the job the constitution and the laws asked him to do, he has paid the American system of government and his fellow citizens the great compliment of trusting us to solve it for ourselves. The truth is that both Democrats and Republicans have been hiding behind Bob Mueller for a long time. The shallow, vicious, children of Trump’s media and congressional base have transformed him and the rest of the honorable men and women of federal law enforcement into an imaginary traitorous “Deep State.” Among Democrats, “Wait for Mueller” has been the mantra of those either too cautious or too calculating to move boldly against a generational threat.
Now we are going to find out what 21st century American democracy is made of. Will congressional Democrats have the fortitude to investigate those things that remain to be investigated — and do it both thoroughly and fairly? Will Republicans honor the example of their predecessors during Watergate and cooperate in seeking the truth? While waiting for its investigations to conclude, will Congress as a body defend its prerogatives and the constitutional balance against a president who plainly respects neither? And will it have the courage, once all investigations are complete, to act both on what they find and what is already staring them in the face? And even if our elected representatives fail us, will we employ the Founders’ primary remedy against an overreaching or incompetent executive and vote to turn him out of the White House?
Bob Mueller is an old-fashioned man who has placed an old-fashioned faith in the regular processes of law and in our national commitment to intelligent self-government. I hope we are worthy of it.
By Frank Bowman
Yesterday, former Trump campaign manager Paul Manafort was sentenced to 47 months in prison by Judge T.S. Ellis III of the U.S. District Court in Alexandria, Virginia, for tax and bank fraud. A fair number of folks were surprised (and some disappointed) by the fact that the sentence was so far below the range of 235-293 months (roughly 19 – 24 years) recommended by the advisory Federal Sentencing Guidelines.
As someone who had a hand in shaping earlier versions of the white collar sentencing guidelines, and who has both prosecuted and defended federal white collar offenders, I have four observations about the Manafort sentence.
First, no one should be surprised that Manafort didn’t receive a sentence in the guideline range. From the advent of the Guidelines in 1987 through roughly 2003, the provisions governing high-end white collar crime underwent a steady mutation toward unyielding severity. In the beginning, they were a notable improvement over the often shockingly lenient sentences generally imposed in the previously unguided discretion of federal judges. The most common white collar sentence before the Guidelines, even for quite serious crimes, was probation. The original guidelines insisted that those who committed serious economic crimes should go to prison, albeit for relatively short periods — a few years perhaps.
However, in the years that followed, the U.S. Sentencing Commission, sometimes at the behest of Congress, sometimes responding to judges, and sometimes on its own initiative, steadily and inexorably increased the severity of white collar guideline sentences. This process climaxed from 2001 – 2003 when the Commission performed a major overhaul of the economic crime guidelines, which was followed by congressional directives issued in the wake of the Enron-era scandals that white collar sentences should be raised even higher.
The result was a set of white collar guidelines that recommends multi-decade sentences for virtually all defendants convicted of frauds involving large dollar amounts. The guideline sentencing levels for the most serious such cases are now so astronomically high that no one (including the Sentencing Commission itself) seriously contends that that they represent rational guidance for sentencing judges.
Once the Supreme Court transformed the Guidelines from a mandatory to an advisory system in the 2005 Booker case, most judges, who were already resistant to the guideline recommendations in high-loss cases, began to ignore them except in extraordinary instances. Accordingly, few knowledgeable observers expected Judge Ellis to give Manafort 20 years or anything approaching that figure.
Second, 47 months nonetheless seems low to me. In justifying his sentence, Judge Ellis alluded to the fact that other defendants convicted of the same kinds of crime – tax evasion and fraud – have often gotten sentences in the range he imposed on Manafort. He’s not wrong about that. But where he seems markedly off base is in impliedly comparing Manafort to a defendant convicted of a single (even if highly lucrative) scheme, and then adding the gloss that Manafort has lived “an otherwise blameless life.”
As the world knows, Manafort’s life has been so far from blameless as to leave some doubt that the judge was referring to the man in front of him. Manafort is a conscienceless grifter who grew rich by burnishing the public images of the most rancid assortment of thugs, demagogues, and dictators on the planet. His career has been one long outrage against honesty, fair dealing, and commitment to democratic values.
Those are factors a judge is entitled to consider when imposing a sentence. That Judge Ellis either didn’t see the obvious or chose to ignore it is cause for dismay. But the eccentricities of judges in their sentencing role is, in the end, simply part of the price we pay for the benefits of a life-tenured federal judiciary.
Third, it is at least possible that Judge Ellis was being strategic. He knew that Manafort is facing a second sentencing before Judge Amy Berman Jackson next week. He may have thought Manafort deserved more than 47 months, but did not want him to receive too much more than the maximum of ten years he faces in the second case. By keeping his own sentence low, Ellis gave Judge Jackson room to impose additional punishment, but also effectively capped the aggregate of the two sentences at just shy of fourteen years (47 months plus a possible ten years consecutive).
Finally, although it seems counterintuitive, by holding Manafort’s sentence down, Judge Ellis may have increased the odds that Manafort will have to serve it. A huge sentence of the order of magnitude suggested by the guidelines, particularly if supplemented with consecutive time from Judge Jackson, would allow President Trump to invoke the near-universal criticisms of the over-harshness of the white collar guidelines as a justification for pardoning Manafort. As matters stand, that would be a hard sell.
Let’s see what Judge Jackson has to say…
By Frank Bowman
Jane Mayer recently reported in the New Yorker that in 2017 President Trump ordered Gary Cohn, former director of the National Economic Counsel, to pressure the Antitrust Division of the Department of Justice to block the pending merger of AT&T and Time/Warner. Trump’s opposition has been widely ascribed to the fact that the AT&T deal would insure the continuing competitiveness of the Time/Warner family of companies, including CNN, which Trump famously reviles. It is speculated that Trump hoped blocking the merger would damage CNN and its parent financially, or even force CNN’s sale, perhaps to a more Trump-friendly owner.
George Conway, indefatigable Trump critic and half of the oddest marriage in contemporary American politics, tweeted that, “If proven, such an attempt to use presidential authority to seek retribution for the exercise of First Amendment rights would unquestionably be grounds for impeachment.”
While I don’t disagree with the constitutional sentiment, obtaining the necessary proof seems to me unlikely.
Let’s start with the constitution. The American founders inherited impeachment from their British parliamentary forbears. In England and America, its most important function has been to protect the constitutional order against executive abuses of power. The phrase “high crimes and misdemeanors” includes serious indictable crimes, but also non-criminal abuses of authority that undercut bedrock principles such as neutral enforcement of national law.
For example, the second article of impeachment approved by the House Judiciary Committee against Richard Nixon encompassed all the many ways he sought to misuse federal agencies to protect his friends and harm his political enemies. It charged that Nixon’s partiality violated his oath to defend the constitution and breached his constitutional duty to take care that the laws be faithfully executed.
A presidential attempt to use the antitrust laws to punish a media company for its unfavorable coverage would violate two constitutional imperatives — the general obligation of impartial enforcement of law and the First Amendment’s particular command that the freedom of the press not be impaired by government action.
The problem would be proving that Trump actually influenced DOJ decisionmaking, or even came seriously close to doing so, for constitutionally impermissible reasons.
On the suspicious side of the ledger is the fact that Trump loudly opposed the merger during the presidential campaign, and that shortly after Trump’s alleged directive to Cohn, the Antitrust Division filed suit to stop the merger. In itself, this need not have been objectionable. Antitrust enforcement is what the Antitrust Division is for. And there is nothing wrong with presidents having strong opinions about antitrust and seeking to implement them. Much of Teddy Roosevelt’s presidential reputation was based on his crusade as a “trust buster.”
What makes Trump’s position, and that of his Justice Department, peculiar is that Trump has no record of prior interest in antitrust policy and that the AT&T – Time/Warner merger was of a type that both modern antitrust law and conservative antitrust scholars have generally found unobjectionable.
To vastly oversimplify, the type of merger antitrust law finds most objectionable is a so-called “horizontal merger,” that is, a merger between companies that compete directly with other by selling the same type of good or service. Horizontal mergers are suspect because they are apt to reduce competition and harm consumers by reducing choice and increasing prices.
By contrast, a “vertical merger” joins companies that do not compete directly with one another, but operate at different points along the same supply chain. For example, an auto manufacturer might acquire a steel mill or an auto parts maker. Some observers believe that such mergers can be undesirable by concentrating too much economic power in a single entity, thus creating barriers to entry and other undesirable effects. Nonetheless, current orthodox antitrust law has generally looked benevolently on such mergers. More to the present point, tolerance of massive, vertically integrated corporate conglomerates is congenial to the generally corporatist position of the Republican Party.
The AT&T – Time/Warner deal is, at least predominantly, a vertical merger. Time/Warner provides media content. AT&T owns content delivery services like cable networks and DirectTV. The last time DOJ sued to stop a vertical merger was over forty years ago. Moreover, the head of the Antitrust Division at the time suit was filed, Makan Delrahim, was on record before Trump’s election as viewing the merger as unobjectionable. His views seemingly changed only after a stint as Deputy White House Counsel and his subsequent appointment to head Trump’s Antitrust Division.
All of this is certainly suspicious, particularly given Trump’s rabid hostility to CNN. But opposition to the AT&T – Time/Warner merger was not self-evidently wrong. Indeed, many voices on the left, including Bernie Sanders, Al Franken, and Elizabeth Warren urged DOJ to stop it. From the point of view of many Democrats, therefore, if Trump tried to get DOJ to block the merger, it would have been a case of doing the right thing for the wrong reasons. Moreover, the nub of the Mayer story about Trump’s order to Gary Cohn was that Cohn walked into the hallway with White House Chief of Staff John Kelly and said, “Don’t you f–ing dare call the Justice Department. We are not going to do business that way.”
It’s possible, of course, that someone made the call anyway, or that Makan Delrahim didn’t need a call to know what the president wanted and why. And that, knowing the president’s wishes, he pursued the case for political reasons and against his better legal judgment. But at this point, that’s all speculation. In any event, DOJ lost in both the trial and appellate court and the merger will now almost certainly proceed.
When a president tries to commit a constitutional wrong, the fact that he is thwarted doesn’t necessarily exonerate him from blame or even impeachment. The House Judiciary Committee pointedly observed that successful resistance by federal officials and agencies to Nixon’s improper commands was not a defense. Nonetheless, if all we have is a president raging around the White House demanding that DOJ do something, but no proof that those demands were ever conveyed to DOJ, still less that they formed a part of the motivation for the Antitrust Division’s actions, what we have is further confirmation of Trump’s authoritarian impulses, but not much in the way of solid evidence for an impeachment case.
There are a host of potentially impeachable behaviors those opposed to Mr. Trump should be pursuing. Absent stunning new revelations, this merger should probably sit low on the list.
By Frank Bowman
I tuned in and out of Michael Cohen’s testimony before the House Oversight Committee on Wednesday. By the end, my reactions were pretty much in tune with what has become the general consensus.
Cohen told us very little we didn’t already know. Mostly he confirmed from an insider’s perspective that Trump is the man he appears to be. A liar. A bigot. An adulterer. A cheat. A narcissist to the marrow who, unlike the mythical Greek who gave obsessive self-regard its name, will not pine quietly away staring at his own reflection in a sylvan pool, but has found in the modern media an endless river of print and digital pools in which he daily and desperately schemes to be reflected.
In his portrait of Trump, Cohen was entirely believable. Not because he is himself notably honest. Nor because his claimed epiphany about Trump’s flaws and his own foolishness in following such a man is particularly credible. To the contrary, what makes Cohen on Trump so obviously true is that he is just the kind of guy attracted to the Trumps of the world. A second-rater, endowed with only modest talents and unburdened by any noticeable moral code. But hungry for money and respect and happy to abase himself before a seeming bigshot and do his twisted bidding to swim in the bigshot’s wake.
Just as guys like Cohen are drawn to Trump, so too does Trump instinctively surround himself with Cohens. He needs servility and moral bankruptcy and avarice in his servants. And he recognizes and draws those with these traits into his orbit. In this respect, Trump is like the mob bosses he obviously admires and seeks to emulate. There are no honest men or women in his circle, at least none who stay for long. Most either come to him bent or become so by association. Those who retain their ethical grounding either leave when resurgent self-respect compels them or are cast out when Trump realizes that they resist corruption.
Cohen’s testimony rings true in its essence to me in part because I’ve prosecuted and sometimes flipped (and occasionally defended) enough guys just like him. Most members of criminal enterprises are not comic book villains. They are customarily just greedy and weak and amoral. When caught, they often have precisely Michael Cohen’s sort of self-pitying charm. But their flawed humanity makes them no less blameworthy. Still less does it excuse the actions of the bigshots who use them.
All that said, Cohen’s testimony really doesn’t advance the ball very much for those who hunger for Trump’s political demise. The essential problem, often remarked upon, is that Trump’s base in the right-wing media echo chamber, in red state America, and, sadly, in the congressional Republican Party knows who he is and just doesn’t care.
The performance by Republican congressmen in the Cohen hearing cemented this point. With perhaps one exception, the Republican members of the Oversight Committee asked no questions about any of Cohen’s general or specific allegations. They were ostentatiously uninterested in discovering whatever the facts may be on any point. Indeed, they did not even attempt to challenge Cohen on the particulars of his testimony. Their entire effort was repeated variations of the playground taunt “Liar, liar, pants on fire” — which incredibly they put on a poster in the hearing room. The most astute thing Cohen said the whole day was that the Republicans on the committee had transformed themselves into publicly elected versions of himself.
This leads to two reflections:
First, if any doubt lingered, there will be no repetition of the Watergate experience in which, although there was partisan wrangling aplenty, members of Congress of both parties worked together most of the time to discover the facts about President Nixon’s behavior. At a bare minimum, in public hearings members of Nixon’s party (and their staff) felt it necessary to seem interested in the truth and thus asked questions aimed at acquiring information. For example, it was minority counsel for the Senate Watergate Committee who discovered and then publicly exposed the existence of Nixon’s White House taping system. In the Cohen hearing, with the possible exception of Cong. Justin Amash (R-MI), not a single Republican congressman asked a question aimed at discovering facts.
Second, if Democrats in Congress hope to get to whatever the truth may be about Trump’s various possible misbehaviors, they are going to have shoulder the responsibility themselves. And they are going to have to do a better job than they did on Wednesday. If Cohen’s testimony confirmed the existing sad portrait of Trump’s general character and modus operandi, it added little by way of detail or corroborating evidence.
On Russia, as Republicans gleefully noted, Cohen had little or nothing to add. Indeed, he denied the claim in the Steele dossier that he’d been to Prague doing something nefarious.
The check from Trump to Cohen reimbursing him for paying off the mistresses for their silence was a nice touch, but no one seriously doubts that Trump arranged those payoffs. And it’s pretty plain that Trump is not going to be indicted on that ground during his presidency or impeached for it either.
The Trump financial statements produced in tandem with Cohen’s allegation that Trump made false statements to Deutsche Bank in connection with an effort to obtain a loan to buy the Buffalo Bills are certainly suggestive. It may well prove that Trump committed bank fraud in various transactions predating his presidency, but Cohen’s testimony does nothing more than suggest avenues of further investigation.
If Republican members merely demonstrated their blind fealty to Trump, Democrats demonstrated their lack of preparedness to serve as serious investigators. There was precious little indication of a coordinated Democratic strategy for interrogating Cohen or of individual Member preparation to explore the evidentiary clues Cohen provided. It was political theatre and little more.
In my next post, I will consider whether the House Democrats’ allocation of investigative authority for matters Trumpian suggests a serious effort to build a case for impeachment, or a disposition to create a continuing series of spectacles like the Cohen hearing.
See this link to Professor Bowman’s discussion in Slate magazine of the Jeff Bezos extortion allegations, their effect on the non-prosecution agreement between the National Enquirer’s parent company, AMI, and the U.S. Attorney’s Office for the Southern District of New York, and how all this fits into the widening gyre around the White House.
Abraham Lincoln, Andrew Jackson, Brian Morris, bruce ohr, case for impeachment, Chief Justice John Roberts, Franklin D. Roosevelt, George Mason, Gonzalo Curiel, hillary clinton, James Robart, Jay Bybee, John Marshall, Obstruction of Justice, Richard Nixon, Roy Cohn, subversion of constitution, subversion of justice system, Thomas Jefferson, William Orrick
By Frank Bowman
Much of the public conversation about possible impeachable conduct by Mr. Trump has centered on obstruction of justice in the narrow sense of a violation of criminal statutes defining obstruction. I have discussed the legal issues surrounding the application of those statutes to Mr. Trump at length on this blog (see this link for a list of those posts). I will do so again once the Mueller investigation is complete. Until then, I am reluctant to offer a definitive view on whether Mr. Trump’s conduct constitutes obstruction in the legal sense or on whether such legal violations are of the type that constituted so large a part of the impeachment case against Richard Nixon.
Nonetheless, if the case for technical obstruction of justice remains uncertain, the conclusion that Mr. Trump has systematically sought to corrupt and subvert the justice system as a whole is ironclad. Inasmuch as the health of the justice system is essential to the health of constitutional order, a presidential effort to undermine it deserves consideration as impeachable conduct.
Throughout his pre-presidential career in business, Mr. Trump viewed the law from two perspectives. As the operator of multiple businesses some aspects of which, at best, skirted the edges of legality, Mr. Trump viewed the government’s civil and criminal enforcement agencies as opponents to be thwarted or circumvented. Conversely, he learned early to use his money to employ private civil litigation as a weapon against personal and business adversaries. As of 2016, he and his businesses had been involved in more 3,500 lawsuits.
Mr. Trump has carried his prior attitude toward the law into the White House. Early in his presidency, exasperated by the pertinacious refusal of James Comey to back off the Russia investigation and by Attorney General Sessions’ decision to recuse himself from that investigation, Trump famously asked, “Where is my Roy Cohn?” The reference being to the notoriously hard-nosed and questionably ethical lawyer who acted as Trump’s legal fixer and attack dog early in his career. More disturbing than the desire for a personal legal heavy is the fact that Mr. Trump plainly imagines the role of the Department of Justice and the rest of the federal law enforcement establishment as defending him against legal inquiries and standing ready to use the law to discredit or even imprison his critics and opponents.
The essence of Mr. Trump’s defensive approach has been to appoint justice officials chosen for personal loyalty (e.g., Jeff Sessions and Matthew Whitaker) and simultaneously to attack any official, whether political appointee or career civil servant, who pursues matters that might implicate Trump, his family, or his supporters. When Sessions disappointed Trump’s expectations of servility by recusing himself from the Russia investigation, Trump turned on him, calling him “weak,” “disgraceful,” and an “idiot” before finally firing him. He has characterized the FBI as “in tatters” and the Justice Department itself as “an embarrassment to our country.” His personal assaults have even reached down into the middle levels of the Justice Department bureaucracy, as exemplified by his baseless demonization of career DOJ official Bruce Ohr. The unifying theme of Trump’s assaults on all the men and women doing their duty by investigating matters that might implicate or inconvenience him is that they are corrupt members of the “Criminal Deep State.”
Trump’s denigration of the integrity of anyone who stands in his way is not restricted to officials and employees of the executive branch he heads, but notoriously extends to the federal judiciary. Trump routinely attacks any judge or judicial panel that rules against him or any administration initiative. The examples are too numerous to mention them all, but include:
During his 2016 candidacy, Trump said of U.S. District Judge Gonzalo Curiel, then presiding over suits against Trump University, that he should be disqualified because, as a person of Mexican heritage, he would necessarily be biased against Trump. When U.S. District James Robart enjoined Trump’s travel ban on persons from certain Muslim countries, Trump tweeted, “The opinion of this so-called judge, which essentially takes away law enforcement away from our country, is ridiculous and will be overturned.” When U.S. District Judge William H. Orrick enjoined Trump’s executive order attempting to punish so-called “sanctuary cities,” Trump called the order “ridiculous,” and the White House put out a statement declaring, “The San Francisco judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk. This case is yet one more example of egregious overreach by a single, unelected district judge.” When U.S. District Judge Brian Morris of Montana enjoined implementation of President Trump’s order to proceed on the Keystone XL oil pipeline, Trump said, “It was a political decision made by a judge. I think it’s a disgrace.” In response to a pointed rebuke of this kind of rhetoric from Chief Justice Roberts, Trump attacked the Ninth Circuit, asserted that “Obama judges” differ from persons “charged with the safety of our country,” and claimed that judicial restrictions on law enforcement will lead to “bedlam, chaos, injury, and death.”
Of course, throughout American history presidents have disagreed with particular decisions of federal courts and sometimes said so. Both Thomas Jefferson and Andrew Jackson disagreed heartily with important opinions of Chief Justice John Marshall, with Jefferson swallowing them graciously except in private correspondence and Jackson being more outspoken. At the outset of the Civil War, Abraham Lincoln simply ignored an opinion by Chief Justice Taney purporting to void Lincoln’s suspension of habeas corpus near vital rail lines Maryland. When the Supreme Court persistently voided New Deal legislation, Franklin D. Roosevelt fumed and mooted the possibility of inflating the number of justices — his famous “Court Packing Plan” — but never acted on the idea.
Trump’s defenders have attempted to analogize his routine denigration of the judicial branch to prior expressions of presidential unhappiness with legal outcomes. But the effort is strained and unconvincing. No president before Trump has ever made a staple of his ordinary public statements attacks on the integrity of individual judges or the legitimacy of the judiciary as a whole as arbiter of the meaning of the law.
This persistent pattern of questioning the integrity and legitimacy of the courts is not merely distasteful, or, as Trump’s defenders are apt to say, simply a matter of his personal “style.” It is instead overtly dangerous. Court of Appeals judge Jay Bybee (a Republican appointee of impeccable conservative credentials) wrote in his dissent from the Ninth Circuit’s order upholding the injunction against Trump’s so-called “Muslim ban”:
Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
— Washington v. Trump, 858 F.3d 1168, 1185 (9th Cir. 2017) (en banc) (Bybee, J., dissenting).
Moreover, Mr. Trump’s abandonment of critical norms of presidential behavior in relation to the law have not been limited to questionable appointments decisions or ceaseless rhetorical denigration of legal officers, but has extended to placing pressure on the Justice Department and law enforcement agencies to open criminal investigations into his critics and opponents. He has apparently been dissuaded from issuing direct orders for such investigations, but has made repeated calls for them in public declarations, most recently in response to the Roger Stone indictment.
Perhaps the most disturbing of Mr. Trump’s demands has been the endless harping that Hillary Clinton, his defeated 2016 rival, should be both investigated and jailed. The famous staple of his political rallies before and after the election — “Lock her up!” — can mean nothing else.
Even Republican stalwarts like former Attorney General Michael Mukasey have said that launching criminal investigations of defeated political candidates is un-American and akin to the practices of “banana republics.” He is right. The hallmark of successful democracies is the peaceful transfer of power from one elected administration to its popularly chosen successor. Such transfers reliably occur only if the electoral losers know that the sole consequence of the loss is return to private life. If a possible consequence of of losing is criminal prosecution by the winner, then losing becomes unthinkable and the contestants will be tempted to ever-more-extreme measures to prevent it. This is the all-too-common precursor to the death of democracy in the developing world. But regression is perfectly possible among mature democracies like our own.
In short, systematic public assault on the executive and judicial branch employees of the justice system is bad enough because it risks creeping corrosion of the public trust essential to the rule of law. Far more troubling is employing, or even threatening to employ, the vast powers of the federal criminal apparatus against opponents because it places this or any country on a straight road to autocratic rule.
The facts that the Justice Department has, so far, ignored Trump’s efforts at jawboning and forged ahead with investigation of the president and his associates; that judges have, so far, continued to rule against the administration when moved to do so by their reading of the law; and that the federal law enforcement apparatus has, so far, largely resisted Trump’s calls for retaliatory investigations of his critics does not materially diminish the seriousness of Mr. Trump’s deviation from American constitutional norms. Nor does it materially alter the impeachment calculus. Federal agencies for the most part resisted Richard Nixon’s efforts to enlist them in efforts to obstruct justice or punish his enemies, but the House Judiciary Committee included Nixon’s unsuccessful efforts along with his more successful ones as grounds for his impeachment.
The Framers inserted the impeachment remedy into the Constitution precisely in order to deal with an executive whose conduct, in George Mason’s words, “subvert[ed] the constitution.” By “constitution,” Mason and his colleagues meant not merely the document they were drafting. They understood that their brief composition could only be the skeleton to which later generations would add the flesh and sinew of statutes, judicial decisions, customs, and behavioral norms that make up the true constitution of any mature state. A president who would subvert that constitution may be impeached.
Trump’s persistent shamelessness has dulled all our senses to the point that he has normalized behavior that would only two years ago have seemed unthinkable. Unthinkable because it strikes so deeply at the unwritten norms — here the impartial, apolitical, administration of the law — that sustain American constitutionalism. It behooves us to shake ourselves free of his narcotic influence to at least consider whether he presents a danger great enough to merit his removal.