Trump and Pardon Power

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Tyler Brown’s article, “The Court Can’t Even Handle Me Right Now: The Arpaio Pardon and Its Effect on the Scope of Presidential Pardons,” published in the Pepperdine Law Review, examines the effect the President Trump’s pardon of Joe Arpaio will likely have on the law and Trump’s political standing:

The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the details of the Arpaio pardon and the public’s response. After comparing the Arpaio pardon to previous pardons, analyzing constitutional arguments, and laying out the legal and political impact the pardon may have on the Trump administration, this Comment ultimately concludes that the Arpaio pardon is constitutionally suspect, but the current Court is not likely to make any changes to the pardoning power’s broad interpretation.

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Tax Returns and a Legitimate Purpose

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The Ways and Means Committee of the United States House of Representatives has asked that the I.R.S. turn over President Trump’s tax returns and related information from the past six years. The Committee’s Chairman, Rep. Richard Neal, notes that the reason for his request is  to examine audit procedures for a president.

William S. Consovoy, retained by President Trump to represent him on this matter, responded to the request with a letter sent to the U.S. Treasury Department, advising the I.R.S. not to turn over the returns. He argues in that letter that President Trump has a privacy interest in his tax returns, which should be protected, and that the Ways and Means Committee has no legitimate reason for requesting  them. He claims that the reasons put forth by Neal are disingenuous and meant to hide his true motivation, which is purely political.

The congressional authority to request tax returns is codified in 26 U.S.C. section 6103(f), which reads in part:

“Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request . . . .”

Emphasis is added here to demonstrate that, generally, the I.R.S. does not have the discretion to refuse a request for tax records from Congress. However, as Ross Garber points out in a piece written for Politico, the Supreme Court has held that Congress exceeds its constitutional authority when requesting documents without a legitimate legislative purpose. He predicts a lengthy legal battle to determine whether such a legitimate reason actually exists, which Congress will ultimately  lose by reason of lack of legal authority or eventual mootness. Still, all is not lost. Garber points out that if the returns are not ultimately turned  over, then they could become a future article of  impeachment, for failure to turn over tax returns for improper reasons.

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Green to Continue the Push for Impeachment

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Representative Al Green has expressed his intention to resubmit articles of impeachment this year. He introduced articles twice last year, citing Trump’s bigotry and racism as evidence of his lack of integrity and unfitness for office, and, forcing a vote on the floor, summoned the support of 60 democrats. He is not dissuaded by Attorney General Barr’s summary of Mueller’s report, and the lack of evidence of conspiracy between the President and the Russian government. He maintains that Trump is unfit for office because of his discriminatory decisions and statements.

Green’s position is similar, if more narrow, to that which has been put forth by Professor Bowman who presents  “a view of impeachment as an essential tool in the case of a president who consistently violates legal and behavioral norms essential to the preservation of American constitutional order.”

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The Mueller Report

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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.

Barr Releases Summary of Mueller’s Report

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Attorney General William Barr has released a four-page summary of Special Counsel Robert Mueller’s report. In it he announced that Mueller did not find sufficient evidence to establish the President Trump’s campaign conspired with Russian groups to manipulate the results of the 2016 election. Additionally, he writes that Mueller did not make a recommendation as to whether the President should be charged with obstruction of justice, but rather presented evidence on both sides of the issue and deferred to the Attorney General. Bar and Deputy Attorney General Rod Rosenstein have decided not to pursue indictment of the President on that charge. Barr notes that he intends to release as much of the report as will not violate Federal Rule of Criminal Procedure 6(e), governing the release of grand jury information. After the release of Mueller’s findings, the House of Representatives will have to decide whether they believe the evidence is sufficient for impeachment.

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Documents Flooding the House

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A large number of the 81 individuals subject to the House Judiciary Committee’s “friendly subpoenas,” requests for documents sent to President Trump’s organization, campaign team, transition team, inaugural committee, and his personal associates for documents having to do with the committee’s probe into the allegations of Trump’s obstruction of justice, have already complied and sent documents. These documents could be used to lay the foundation for impeachment proceedings in the House; however, recent remarks by Speaker of the House Nancy Pelosi, seem to indicate that said impeachment proceedings my never occur.

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Criminal Prosecution of a President

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Can a sitting president be indicted? W. Burlette Carter approaches this question from a historical perspective in her forthcoming article Can a Sitting President be Federally Prosecuted? The Founders Answer. Carter asserts that the Founder’s answer would be one based on jurisdiction:

The Founders would have recognized that, before the formal issuance of Articles of Impeachment, courts of law have the power to stay their own proceedings against a President for good cause, just as English/British common law courts with concurrent jurisdiction always could. And they would have have accepted that courts of law can, in the first instance, decide evidentiary issues such as executive privilege for matters proceeding in their fora. Again, despite Parliamentary power over impeachment, common law courts had long done so in England and Great Britain, so long as they otherwise had jurisdiction.

For an in-depth examination of the British and early American view on jurisdiction to prosecute the president, follow the link above.

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The (first) Manafort sentencing

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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…

Trump, Antitrust and Impeachment

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.

Reflections on Michael Cohen’s testimony

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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.