Tag Archives: Jeff Sessions

Trump’s Escalating Assault on the Rule of Law: The True Ground for Impeachment

03 Monday Sep 2018

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By Frank Bowman

As many others have observed, the longer the Trump era continues, the more we become desensitized to almost-daily assaults on basic norms of republican government and the rule of law.

Today, the person in the White House issued a Tweet that, in any previous era, indeed even a year ago, would have summoned an avalanche of condemnation from every corner of the civic and political world.  He said:

Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff……

In short, Mr. Trump is saying — openly, plainly, overtly, with no tinge of embarrassment or shame — that the United States Department of Justice should not indict crooked politicians if they are of the same party as the president.

The fact that the two congressmen in question are, without serious question, as guilty as it is possible to be — Duncan Hunter stole at least $250,000 in campaign funds and spent it on himself and his wife, and in 2017 Chris Collins was photographed committing insider trading while on the White House lawn — cuts no ice with Trump.  The idea that the job of the Department of Justice is to prosecute the guilty regardless of party is as far beyond Trump’s comprehension as the particulars of Einstein’s theory of relativity.  Every component of the federal government exists only to serve him. The Justice Department exists to punish his enemies and sweep the sins of his sycophants under the rug.  And he no longer bothers even to pretend otherwise.

Let us be absolutely clear on one point — No other president in the history of these United States has ever publicly said anything remotely approximating Trump’s outburst today.  So far as we know, only one other president has privately entertained such views … and when they became public knowledge in the Watergate scandal, he was forced to resign to avoid impeachment.

But as sure as eggs is eggs, the response from Republicans to this historic repudiation of a bedrock principle of American governance will be … silence.

And even among Trump’s opponents, outrage will be muted.  Because one can sustain fury, even when fury is merited, only so long.  And the outrage will be fleeting.  Because, since Trump knows nothing he says or does will evoke even a muted whimper of protest from the organization formerly known as the Grand Old Party that now cringes at his feet, tomorrow will bring a new abomination that will supplant memory of today’s. He is slowly — no, not slowly, but with frightening speed — warping our collective sense of tolerable behavior in public office, indeed of right and wrong itself.

Should Democrats win control of Congress in November, and should they be disposed to consider impeachment, this is where their attention should focus.  Not, for heaven’s sake, on whether he paid off two women of doubtful virtue (and even more doubtful discrimination in their choice of personal companions) to keep them quiet.  Not on whether Trump did or didn’t know in advance about the dodgy Trump Tower meeting with the Russian envoys.  The central impeachable offense here is not personal immorality, or incidental violations of this or that statute, or even an obvious willingness to accept electoral assistance from a longstanding national foe.  All of these are evidence of Trump’s primary impeachable offense, but are not the offense itself. The core of any impeachment effort must rest on Trump’s daily destruction of the norms of behavior that make constitutional government possible.

Since 1640, when Parliament impeached the Earl of Strafford for his efforts to elevate royal prerogative over the common law and substitute the will of the monarch for the judgment of Parliament, it has been an impeachable offense “to subvert the ancient and well established form of government … and instead thereof to introduce an arbitrary and tyrannical way of government.”  That’s what we face in the United States in 2018.  And we need to be bold and honest enough to do something about it.

NOTE: Since I first posted this yesterday, the Republican response (with the single exception of Sen. Ben Sasse R-Neb., who is not running for reelection) has, as predicted, been … silence.

Playing “20 Questions” With Trump

01 Tuesday May 2018

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By Frank Bowman

The New York Times this morning released a series of questions which it says Special Counsel Robert Mueller’s team would like Mr. Trump to answer.  The provenance of this list is murky.

First, we don’t really know if it’s genuine.  Second, if the list is essentially genuine, it seems unclear whether the questions are actually those Mr. Mueller would like answered or are, instead, summaries in question form by Trump’s lawyers of broad topic areas Mueller’s people have said they’d like to discuss with Mr. Trump.  Third, the source of the list is uncertain.  According to the Times, the list did not come from Mueller’s team.  Which leaves people in the White House or others associated with Mr. Trump’s legal defense.

Although the question list is certainly a scoop for the Times, I’m not sure it adds much to our knowledge of the Mueller investigation.  All of the published questions concern issues or events that have been discussed ad nauseum in the public press.

That said, I am struck by the prevalence of questions that seem to relate primarily to obstruction of justice.  There is a set relating to the firing of former National Security Adviser Michael Flynn, a long set about the firing of former FBI Director James Comey, and, quite interestingly, a set about threats to the continued tenure of Attorney General Jeff Sessions.  In addition, several of the questions relate to the activities and potential termination of the office of special counsel itself.

My first reaction to the questions about Sessions and the special counsel’s office is that they serve as a kind of brush-back pitch — a warning that Trump’s threats to Mueller and his efforts to influence Mueller’s investigation are themselves legally and politically dangerous.

Beyond that obvious point, I find the heavy emphasis on obstruction of justice a tad disturbing.  It is undoubtedly true that obstruction of justice is a crime (albeit one for which, under current DOJ policy, a sitting president will not be indicted) and potentially an impeachable offense.  And it is also true, contrary to the assertions of Mr. Trump, that one can be guilty of obstruction of justice for impeding investigation of matters that ultimately prove not to be criminal.

Nonetheless, those who ardently oppose Mr. Trump — particularly those who long for his impeachment — must remember that this is a political process.  By which I mean that changing the public mind matters as much or more than legal fine points.  Suppose that, at the end of his investigation, all Mr. Mueller comes up with is evidence that Mr. Trump obstructed an investigation that produces no proof of other significant wrongdoing by Trump or those closest to him.  In that case, those who already despise Trump will hail the obstruction finding as a victory.  But Trump and Trump supporters will claim exoneration because, they will say, a president is entirely within his rights to squelch a politically damaging investigation into non-existent crimes.

That the Trumpists would be wrong on the law won’t matter a fig in the court of public opinion, or in the Republican precincts of the House of Representatives if, post-midterms, the House were to begin an impeachment inquiry.  It is perfectly clear that the hard core of congressional Trump supporters just aren’t interested in abstractions like prosecutorial independence or even the rule of law itself. The only result from Mueller that might change the progressively hardening partisan positions on Trump would be solid evidence of serious substantive crime.

Of course, Mr. Trump’s own tweeted response to the leaked questions, in which he claims there are “No questions on Collusion,” is flatly wrong.  Many of the questions relate directly to possible cooperation between Russian entities and the Trump campaign.  Still, one hopes that Mueller’s inquiries are focused more heavily on that end of things than the leaked queries suggest.

In short, a Trump critic should hope that the Mueller folks will, in the end, be able to show that Mr. Trump’s obstructive behavior was intended to conceal real, and incontrovertibly serious, misconduct.

The McCabe Firing & Jeff Sessions

17 Saturday Mar 2018

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By Frank Bowman

Attorney General Jeff Sessions fired Former Deputy Director of the FBI Andrew McCabe late last night, barely a day before his pension would have vested.  This event tells us more about Mr. Sessions than Mr. McCabe.  And to me, whatever McCabe’s transgressions, the man who is leaving the Justice Department looks rather better than the man who, for now, continues to head it.

Let’s begin with a few obvious points:

  • The official reason for McCabe’s firing was a conclusion by the Justice Department’s Inspector General that McCabe had been less than candid about the circumstances under which he authorized the release of information to reporters from the Wall Street Journal about aspects of the Clinton investigation.  I am obviously not privy to the particulars of that IG report; however, I have some acquaintance with Michael Horowitz, DOJ’s Inspector General.  I know him as an excellent lawyer, an honest man, and a nonpartisan straight arrow.  He is an Obama appointee and certainly no Trump flunky.  Hence, it seems very likely that McCabe did cross some professional line.
  • That said, the decision about what penalty to impose for McCabe’s transgression did not rest with Michael Horowitz.  It has been reported that the FBI’s Office of Professional Responsibility recommended that McCabe be fired. If true, that lends further credence to the notion that McCabe’s transgression was fairly serious, or at least that reasonable professionals could view it as being so.
  • Nonetheless, the timing of the firing, after the business day on a Friday, and mere hours before McCabe qualified for a pension earned for more than 20 years of FBI service — which excepting whatever lapse of judgment got him fired, was by all accounts exemplary — can only be seen as small, vindictive, and mean spirited.  Which is to say that one would see Mr. Trump’s signature in the affair even if that master of pettiness and bile had not publicly complained that McCabe might be allowed to retire with his pension.
  • Jeff Sessions made this call.  He could have followed the advice of the FBI’s professional responsibility office and separated McCabe from government service, but a person of any class would either have allowed McCabe to retire or at worst ordered his termination sometime in the coming weeks.  Instead, he cravenly chose to do the bidding of his dark master and snatch pension benefits from a career public servant.

The result is that Sessions looks far worse than McCabe.  He is exposed as a hypocrite, a weakling, and a fool.

Hypocrite: The idea that Donald Trump and Jeff Sessions combined to fire a career FBI agent for “lack of candor” reeks to heaven of hypocrisy.  Mr. Trump’s incorrigible dishonesty is by now so universally recognized that it no longer elicits much more than weary groans.  He lies to everyone, including foreign heads of state, and then brags about the lies.  But Sessions’ slate is hardly clean.  This is a man who has made repeated misstatements to the Senate about his Russian contacts. When called to account by former colleagues, he feigned outrage at the challenge to his honor, but the display rendered his strategic misrememberings no less incredible.  That this precious pair of dissemblers have the gall to discipline anyone else for lack of candor is very hard to stomach.

Weakling: The decision to fire McCabe when and how he was fired was a transparent bow to the wishes of Mr. Trump.  While the manner and timing of McCabe’s release may not have violated DOJ personnel rules (although that is a contestable point which McCabe may raise in court), it was, so far as I know, unprecedented.  I know of no case where a president publicly campaigned for the firing, humiliation, and financial punishment of a third-tier career public servant.  Still less am I aware of any case where a cabinet officer was so spineless as to acquiesce in such executive bullying.  To give him his due, Jeff Sessions has occasionally shown signs of  independence and a desire to protect the institutional integrity of the Justice Department, most recently his staged public dinner with Deputy AG Rod Rosenstein and Solicitor General Noel Francisco.  But the McCabe firing demonstrates, at least to my mind, Sessions’ essential hollowness.  Trump is a bully.  Sessions, who for all his well-documented flaws has led a life of far greater accomplishment than our erstwhile president, nonetheless lacks the moral core that moves persons of decency to stand up to bullies.

Fool: Perhaps the most remarkable thing about Sessions’ toadying to Trump by humiliating McCabe is not the meanness or the cowardice, but that, even as part of a selfish calculus of self-preservation, it surely will do Sessions no good.  Trump wants him out because, so long as Sessions is both AG and recused from overseeing Robert Mueller’s investigation, Trump can’t stop or cripple the investigation.  Therefore, Sessions is a dead man walking.  The only questions are when the axe will fall and how Sessions will be remembered once he’s gone.  Sessions is mad to think that the mad king will be sufficiently mollified by the manner of McCabe’s departure to preserve Sessions in office even a single day longer than would be the case had Sessions exhibited some magnanimity and grace.  And by yielding to the vicious whims of the plutocrat in the White House to gratuitously strike at the retirement security of a middle class career FBI agent, Sessions will earn the deserved contempt of all those who have ever been in federal service.

There is, or at least I hope there will prove to be, a sad moral in the tale of Jeff Sessions.  He hitched his wagon to the rising star of a man manifestly unfit for the high office of the presidency.  And he was rewarded beyond any reasonable expectation with his dream job — Attorney General, head of an agency that I think Sessions genuinely reveres.  But what Sessions is likely to find in the end is that his betrayal of principle in the pursuit of ambition will yield only ashes.  His lies to congress in the service of an unworthy boss have cost him the respect of many of his former senatorial colleagues.  His truckling to Trump, including the cruelty to McCabe, will cost him the respect he craves from the professionals of the Justice Department.

Jeff Sessions’ story is not yet ended.  He may yet redeem himself by some act of unexpected political courage.  But at the moment, he risks relegation to the small, sad club of ignominiously failed Attorneys General.  And his name will be spoken, when it is remembered at all, in company with Alberto Gonzales and John Mitchell, men too warped and small for the great office they ultimately sullied.

Trump Claims Obama Acquiesced in Face of Russian Interference

21 Wednesday Feb 2018

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In response to the indictment of a group of Russians for meddling with the 2016 presidential election, Trump seems to have asked why Attorney General Jeff Sessions has not investigated the crimes of President Obama, because the meddling happened during the Obama administration, and “. . . . [he] [didn’t] do something about [it].” The allegation came in the form of a tweet, which read:

Question: If all of the Russian meddling took place during the Obama Administration, right up to January 20th, why aren’t they the subject of the investigation? Why didn’t Obama do something about the meddling? Why aren’t Dem crimes under investigation? Ask Jeff Sessions!

Trump’s question as to why Jeff Sessions, the Attorney General, is not investigating the Obama Administration and the the crimes of the Democrats, reads as an allegation of criminal conduct. The fact that he sandwiched Obama’s lack of action in the middle of his question further suggests that President Obama, by virtue of his inaction, is guilty of a crime. If that analysis is correct, the President is suggesting that acquiescence in the face of a complete conspiracy is criminal conduct. There is some argument to made here (though a very poor one). Section 3 of Title 18 of the United States Code says that “whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” This crime, though arguably the most relevant to Trump’s allegation, is a very bad fit. One would have to believe that Obama, in not speaking out harshly enough against the Russian meddlers, relieved, comforted, or assisted them to prevent their prosecution. One might argue that if Obama were to impose no sanctions on Russia he may in some way be preventing its “punishment.” Still, that would be a very abstract argument, because if President Obama had decided not to sanction the Russians, there would be no punishment to prevent. This argument is still more outrageous, in light of the fact that Obama DID sanction Russia for election meddling in the last two years of his administration.

All that being said, I think it is far from accurate to suggest that a less-than-fierce reaction to Russian election interference could be considered criminal. However, if it could, Trump would have something far worse to fear than President Obama — President Trump himself has yet to impose the Russian sanctions passed by Congress last year. Despite all this analysis, I doubt Trump meant to make a serious accusation. Rather he continues to try and distract the American people by pointing fingers away from himself.

f63d3fa9e9b34571ca1b4b11f5a8598b.jpgJim Watson/AFP/Getty Images

 

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

06 Saturday Jan 2018

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By Frank Bowman

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

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

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

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

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

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

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

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

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

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

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

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

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

Frank Bowman

A Pillar of the Temple Trembles: The Trumpist Assault on the Department of Justice

17 Friday Nov 2017

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In the fall of 1979, I took my first legal job. By astounding good fortune, I was hired fresh out of law school as a Trial Attorney in the Criminal Division of the U.S. Department of Justice in Washington, D.C. From the moment I first walked into the monumental neoclassical Main Justice Building on Pennsylvania Avenue, I knew that I’d come to a unique place.  The marble, the statuary, the New Deal-era murals, the glorious main library’s vaulted ceilings, gleaming oak, and book-laden shelves, and the pervasive air of deliberative rectitude and high seriousness enthralled me.

To be honest, I wasn’t a particularly good prosecutor to start with.  I was too young, too immature, too undisciplined.  But if I didn’t give the Justice Department all it deserved at the beginning of my career, it placed an indelible stamp on me.  During two tours with the Department, in which I served under Presidents Carter, Reagan, Bush Sr., and Clinton, I shed most of my initial gauzily romantic infatuation.  But in its place grew a deep appreciation of the central role the Justice Department plays in maintaining the rule of law in a democratic state and a hardnosed set of convictions about the values that must inform the Department’s work if republican government is to survive in America.

Mr. Trump and the congressional Republican Party are on the brink of grievously wounding the Department of Justice. If they succeed, they will have weakened, perhaps permanently, a pillar of American constitutionalism and one of its most important bulwarks against creeping autocracy.  Let me explain:

The U.S. Department of Justice is immensely powerful.  Neither its reach nor its resources are infinite.  But as to any individual, group, or corporation it elects to pursue, it can bring to bear nearly unlimited money, dedicated staff, and first-rank legal talent. Those lawyers are empowered to direct the immense resources of multiple federal law enforcement agencies — FBI, DEA, ATF, Secret Service, Customs, ICE, postal inspectors, and more. In appropriate cases, they can deploy investigators and experts from federal regulatory agencies like the SEC, the EPA, OSHA, and the FDA, and even in certain circumstances, military and intelligence assets.  Only Justice Department prosecutors can command the unmatched coercive powers of a federal grand jury.  Only federal prosecutors have the luxury of selecting criminal charges from the sprawling federal code, a body of law so all-encompassing that it is only slightly facetious to suggest that it criminalizes some aspect of virtually every human activity.  And the Department’s long arm can reach into every state and across oceans.

Some observers are understandably leery of DOJ’s immense power. But in the modern world, this power is essential. Without it, there would be no authority capable of combating organized crime, international criminal cartels, domestic terrorism, entrenched federal, state, and local political corruption, or complex financial fraud.  Without the Department of Justice, there would be no effective public counterweight to the staggering wealth and sometimes pernicious influence of modern multinational corporations.  The private centers of power Teddy Roosevelt labeled “malefactors of great wealth” have in our day metastasized to a degree T.R. could not have imagined.  Without DOJ, they would be unchecked.

With the power to combat great evil necessarily comes the power to inflict great harm. Conviction of a federal crime can mean imprisonment, impoverishment, even death.  Its collateral consequences can include public stigma, loss of livelihood, and destruction of family.  Even the wealthiest corporations – Enron and Arthur Andersen, to name but two – can be destroyed.  Just being investigated by DOJ can inflict a steep price in time, money, and sullied reputation.

Power this crushing is only tolerable in a free society if it is exercised — and generally believed to be exercised — impartially, humanely, and in the interests of justice in the broadest and best sense. My youthful infatuation with the Department, and my lifelong affection for it, rests on the conviction that, with occasional exceptions inevitable in any human institution, the men and women of the Department, both career public servants and political appointees, are conscious of their grave responsibility and strive to wield their power impartially and with honor.  Critically, the Department’s people have fiercely resisted pressure to ignore the crimes of officeholders and their friends, or to transform the sword of criminal justice into a weapon against the political opponents of the sitting president.  Because of this tradition long upheld, the Department’s prosecutors enjoy a reputation for professional probity every bit as central to their success as the raw institutional power at their disposal.

It is by now obvious that Mr. Trump cares nothing about the institutional integrity of the Justice Department, and has actively tried to corrupt it.  He tried to convince FBI Director James Comey not to investigate presidential adviser Michael Flynn, and then fired Comey when the Director wouldn’t take the hint. He fulminates nearly daily about Robert Mueller’s investigation of Russian election interference and flirts publicly with obstructive maneuvers like firing Mueller, firing Attorney General Sessions, or pardoning everyone involved in the case. And recently he has tried to pressure the Department into investigating a series of long-resolved or self-evidently bogus allegations against his former opponent Hillary Clinton and other Democrats.

Trump’s effort to strong-arm the Department into abandoning its most basic values by initiating baseless, politically motivated investigations is distressing enough.  I have argued previously that it constitutes an impeachable offense. But one could (almost) dismiss Trump’s tweets and barks on this subject as yet another instance of his singular misunderstanding of American government.  And one could be comforted by the likelihood that his outbursts would be rendered ineffectual by the resistance they would surely encounter from others in government with a better sense of constitutional norms.

The Republicans on the House Judiciary Committee have now stripped away that comfort.  In late July, seventeen Republican committee members sent a letter to Jeff Sessions demanding that the Justice Department investigate a grab-bag of spurious charges against Secretary Clinton and others.  During Attorney General Sessions’ appearance before the committee earlier this week, Republican members hammered ceaselessly on their demand for a new special prosecutor to investigate Secretary Clinton, with special emphasis on long-since debunked claims about the so-called “Uranium One” affair.  Sessions has yielded at least so far as to assign “senior federal prosecutors” to assess the Republicans’ requests.

I am not sure people understand how shatteringly consequential this is.  It is bad enough to have Mr. Trump – whom, sadly, no one now expects to understand democratic norms — seek to weaponize the Department of Justice.  But what we have witnessed in the months leading up to the Sessions hearing is the utter moral degradation of House Republicans. Seventeen Republican congressmen, virtually all lawyers, many of them former prosecutors, specially selected by their party to sit on a Committee dedicated to ensuring the integrity of the American justice system, are demanding that the Justice Department investigate a list of allegations almost every one of which is obviously either legally or factually baseless. And the Republicans know it.  No sentient lawyer could think otherwise.

The game here is obvious.  The Mueller investigation into the real effort, attested to by every U.S. intelligence agency, of the Russians to rig an American presidential election is hurting Mr. Trump and the Republicans politically. It hurts so much precisely because it is being conducted by the Department of Justice under the direction of a Republican prosecutor of impeccable credentials.  Republican members of the Judiciary Committee desperately want to create a diversion, a means of planting in the public mind the impression that, whatever Trump did, Democrats did something as bad or worse.  It doesn’t matter if any real crime is uncovered, only that an investigation, with all the inevitable publicity, be commenced.  Of course, the House could investigate all these matters itself.   But the Republicans know that such investigations are easily dismissed as partisan.  Thus, only an investigation that bears the trusted stamp of the Justice Department will serve their political ends.

In short, the congressional Republican Party is consciously attempting to use the Justice Department’s hard-won, carefully guarded reputation for fairness and integrity to create a diversion from the real issues being investigated by Robert Mueller and the political damage that investigation is causing Mr. Trump and his allies.

Whether Jeff Sessions will crumple under the mutually reinforcing pressures from Mr. Trump, congressional Republicans, and his own self-interest remains to be seen.  If he does, the long-term damage to both American electoral democracy and the rule of law could be profound.

Several commentators, including Republican stalwarts like former Attorney General Michael Mukasey, have observed that launching criminal investigations of defeated presidential candidates is contrary to American norms and akin to the practices of “banana republics.”  This is profoundly true, but I suspect many do not fully appreciate the reference.

An indispensable feature 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 loser of an election knows that the sole consequence of losing is a return to private life. But if the predictable consequence of losing is criminal prosecution by the winner, then losing becomes unthinkable and the contestants are tempted to ever more extreme measures to prevent it.  Vicious propaganda, overt corruption, strong-arm tactics, ethnic incitement, all can be rationalized. All are soon normalized.  And democracy dies.  This is the all-too-common story in the developing world.  But regression is perfectly possible among mature democracies like our own.

Even if nothing quite so dramatic occurs and the Republican push for a Potemkin special prosecutor produces only a long, distracting, but ultimately unsuccessful investigation of Mr. Trump’s opponents, the damage to the Justice Department and thus to the rule of law would be lasting.  The best reading of the Department’s enigmatic Latin motto, Qui Pro Domina Justitia Sequitur, is that the Department’s lawyers are those “who prosecute on behalf of justice.” We trust the Justice Department with its immense powers because we trust it to wield those powers in pursuit of justice – to be honest, to be fair, to be apolitical.  And the Justice Department owes its effectiveness before courts and juries to our confidence in its probity.  If the public ever surrenders that confidence in favor of enduring suspicion that the Department is merely a tool of the party occupying the White House, then federal law enforcement will be irremediably crippled.  Every corrupt politician, slimy fraudster, and predatory corporation will scream “Politics!” at the first hint of a federal indictment.  Some will be believed.  And all of us will be less secure.

Not too long after the last election, I was on Capitol Hill talking with an aide to a Republican senator.  The probable appointment of Jeff Sessions as attorney general came up. When I wrinkled my nose a bit, my companion said, “At least with Jeff Sessions, you get a guy who knows the Justice Department and is committed to the rule of law.”

We will soon see if he was right.  Or whether Mr. Sessions will set in motion a train of events that could fracture an institution central to American democracy.

Frank Bowman

 

 

 

The Russian collusion investigation: Bumbling grifters & the risks of keeping it all in the family

12 Sunday Nov 2017

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Earlier this week, I had the pleasure of doing an interview with Canada’s CTV network on developments in, and speculations about, the progress of the Mueller investigation.  The anchor wanted to talk about the testimony of  former Trump campaign foreign policy advisor, Carter Page, to the House Select Committee on Intelligence, Attorney General Session’s upcoming appearance before the House Judiciary Committee, and the rumor that an indictment of former Trump National Security Advisor Michael Flynn (and possibly his son) will soon be forthcoming.

I can’t say that I had anything particularly novel to tell Canada’s TV audience about any of these subjects, but reflecting on the interview has provoked a couple of observations.

First, as I have had occasion to observe before, passionate opponents of Mr. Trump who confidently expect (or even fervently hope) that the Mueller investigation of Russia-Trump campaign collusion in the recent election will produce some smoking gun that will lead naturally to articles of impeachment should moderate their expectations.  So far, at least, the picture is not one of sophisticated, nefarious, high-level Trump operatives working hand-in-glove with agents of the Russian government, but of something altogether murkier and more ambiguous.

To be sure, there exists nearly irrefutable evidence that the Kremlin was working hard through every means at its disposal to harm the Clinton campaign and help Mr. Trump. Mr. Putin’s repeated denials that Russia was meddling and Mr. Trump’s on-again–off-again acceptance of those denials may convince his endlessly credulous base, but outside those blinkered precincts it merely prolongs the bizarre spectacle of an American president siding with the dictator of a hostile foreign power against the conclusions of his own intelligence agencies.

(As an aside, when I began drafting this post, Mr. Trump had just said that he accepted as sincere Putin’s denial of meddling.  Mere hours later, Trump straddled the question, saying that he accepts both the findings of U.S. intelligence and Putin’s sincerity.  This waffling is either: (a) Yet another example of Mr. Trump’s persistent tendency to say whatever he thinks will please the audience immediately in front of him, with no thought for either truth or how today’s effort to ingratiate will affect his own or the country’s interests tomorrow; (b) Yet another example of Mr. Trump’s seeming inability to engage in rudimentary critical thinking — the idea that the Russian government could engage in a wide-ranging effort to influence the American presidential election without the knowledge or approval of Vladimir Putin is laughable, and thus it is impossible for U.S. intelligence to be right and for Putin to be sincere; or (c) Just another manifestation of Mr. Trump’s knee-jerk rejection of any fact, however firmly established, that might suggest his election victory was due to anything other than his own personal merits. My best guess is that all three factors were at work.)

But it is not a crime or an impeachable offense merely to be the unwitting beneficiary of foreign efforts to damage one’s political adversaries.  What must be shown to prove a crime is that affiliates of the Trump campaign consciously aided or sought to aid the Russians’ subversion and violated some statute in the process.  What must be shown for any of this to amount to an impeachable offense is that Mr. Trump himself approved, was aware of and failed to stop, or later tried to cover up culpable conduct by his subordinates.

It is too early to assess the ultimate question about whether culpable collusion occurred.  But the emerging (though far from complete) evidence suggests at least three points about the Trump campaign’s Russian contacts:

  • Repeated claims by Mr. Trump and his subordinates that there were no contacts between persons associated with the Trump campaign and Russian officials or agents were simply untrue.  As the Chicago Tribune summarizes, at least nine people in the Trump orbit had Russian contacts during the campaign or transition.
  • At least some of those contacts involved persons high up in the campaign hierarchy or personally close to Mr. Trump, people like Donald Trump, Jr., Jared Kushner, Paul Manafort, and Jeff Sessions.  Others, like George Papadopoulos and Carter Page, had impressive-sounding titles like “foreign policy adviser,” but  were in reality on the fringes of what was always a barely coherent campaign organization. Nonetheless, it is now clear that campaign higher-ups, like Senator Sessions, Stephen Miller, Hope Hicks, J.D. Gordon, campaign manager Cory Lewandowski, and national campaign co-chair Sam Clovis, knew about the Page and/or Papadopolous contacts.
  • Whether contacts between Trump surrogates and Russian actors ever produced concrete results, such as the direct transfer to the Trump campaign of negative information about Secretary Clinton or her team, remains unclear … and frankly seems doubtful.  What is clear is that multiple members of the Trump entourage were willing and eager to receive that kind of material — even when it was plain that the source would have to have been Russian intelligence services, and that the means employed to obtain the material would likely have involved violations of American law. The first proof of their eagerness was the now-famous Donald Trump Jr. – Kushner – Manafort meeting with the Russian lawyer.  Now Mr. Papodopoulos admits to having received a purported Russian offer of “dirt” on Secretary Clinton in the form of emails, and to have passed the offer along to Trump campaign officials.
  • If, in the end, Trumpists and Russian emissaries never quite did a deal that produced active cooperation or transmission of opposition research “deliverables,” efforts to cover up all the active flirtation could nonetheless amount to criminal obstruction of justice and even impeachable conduct.  That’s the thing to watch for in coming months.

Second, the overriding impression, reinforced by each new revelation, is that both the inner circle of the Trump campaign and the outer rings of staff, consultants, and advisers consisted primarily of pathetically ill-informed amateurs like the Trump children and in-laws, eccentrics like Carter Page, desperate wanna-be‘s like George Papodopoulos, or outright scoundrels like Paul Manafort.  Even those with long government resumes and conventional credentials, like Trump’s short-tenured National Security Adviser Michael Flynn and Senator Jeff Sessions, gravitated to Trump because, in Flynn’s case, he had been expelled from the circles of power for persistent bad judgment, and in Sessions’ case, he was a fringe player in the Senate, with views on many subjects too extreme even for for a caucus edging steadily to the right, and no path to any meaningful leadership role.

Moreover, the one character trait common to virtually all of this ill-assorted crew is greedy opportunism. The Trump family, from the paterfamilias on down, has profited by skating on or over the edge of legality for decades and has been monetizing its connection to the presidency ever since the election.  Manafort’s long career as apologist for thugs and dictators should have disqualified him from a role in any American presidential campaign, and predictably has both embroiled Trump in controversy and produced an indictment founded in part on money laundering and tax evasion. Page reportedly combined his Russian overtures for Trump with efforts to secure private deals for himself.  Michael Flynn is under investigation for an array of dodgy, but potentially lucrative, deals, as well as illegal failures to report work on behalf of authoritarian regimes like that of ascendant Turkish dictator Recip Erdogan.

The mix of incompetence, bad judgment, blithe disregard of normal legal and ethical boundaries, and personal greed in the Trump campaign is both a gift and an impediment to any effort to impeach Mr. Trump.

On the one hand, it is increasingly obvious that people high and low in the Trump campaign were trying quite hard to collude with a hostile foreign power to win a presidential election.  On the other hand, it may prove that the Russians simply didn’t trust these escapees from the Island of Misfit Toys enough to enter into any active collaboration, preferring to feed toxic misinformation to the American electorate indirectly through Wikileaks and directly through social media.  Now that Mr. Trump has shed virtually all of the primary actors in the Russian contacts — with the notable exceptions of his family members — he can disavow former staffers’ conduct as the inconsequential bumbling of fringe nobodies.

BUT — having foolishly chosen to ignore settled norms against nepotism in the White House, Mr. Trump is probably stuck with whatever the kids have done or may yet do. Even an ordinary father would shrink from throwing his children overboard and into the clutches of waiting prosecutors, but in Mr. Trump’s case, ordinary considerations of paternal affection are infinitely complicated by the fact that the Trump campaign was, and the Trump Organization remains, a family business … and the kids, notably including son-in-law Jared Kushner, are privy to their secrets.  Perhaps Ivanka or Don Jr. might be willing to take a fall for dear old dad.  Were I Mr. Trump, I would not bet that, at the last extremity, young Mr. Kushner would do the same.

Thus, Mr. Trump will never be able to make a clean break from the Russian meddling investigation. Some of its central figures will remain close to him.  He will continue defending them.  And as in Watergate, it may prove that the cover-up, rather than the original wrong, will be his undoing.

Finally, it would be easy to dismiss the near-universal obsession of those around the Trumps with self-enrichment through politics as a side issue.  For two reasons, it’s not.

First, as Mr. Manafort recently discovered, the United States has a web of laws that regulate, and often criminalize, aspects of the “deals” he and his ilk are so eager to make.  Those laws are a tool box for Robert Mueller’s prosecutors, and the questionable financial motives and maneuvers of those involved in contacts with Russian representatives will provide legitimate grounds for inquiring deeply into financial matters the Trumps would surely prefer remain hidden.

Second, to the extent Mr. Mueller’s investigation or other sources reveal that Mr. Trump and family have used the presidency for personal profit, such disclosures implicate at least two grounds for impeachment.  The most obvious of these is violation of the emoluments clauses.  But I would go a bit further.  I do not believe that a technical violation of, for example, the foreign emoluments clause of Article I, Section 9, is required to make out an impeachable offense if it could be shown that, as James Madison put it, the president “pervert[s] his administration into a scheme of peculation.”

I will expand on this latter point in later posts.  Stay tuned.

Frank Bowman