RELEASE ME

RELEASE ME

For two years, Donald Trump has been vilifying Robert Mueller.

Using the presidential bully pulpit in ways never imagined by its creator, Theodore Roosevelt, the mouth from Manhattan called Mueller's investigation a "witch hunt",  a "hoax", "rigged" and "bullshit".  He asserted that Mueller's team -- which the ex-Marine, ex-head of the FBI, and ex-head of DOJ's Criminal Division personally selected --   were "angry" and "hardened Democrats" with "some big Crooked Hillary supporters" and  "Zero Republicans".  He said that some members of the team were themselves guilty of "fraudulent acts".

None of this was true, either because it was patently false (the claim the investigation was a "witch hunt", a "hoax", "bullshit" or manned by fraud) or because the adjectives attached to what was true (namely, that some of Mueller's team supported Clinton or were Democrats) were themselves false or, as Mueller undoubtedly knew, irrelevant to the Special Counsel's mission.  Indeed, if Democrats or Hillary supporters -- "hardened" or otherwise -- cannot serve as professional prosecutors, it is difficult to see how Republicans or "hardened" conservatives like Gorsuch, Kavanaugh, Alito or Thomas could professionally serve as Justices of the Supreme Court.

But, of course, they do.

In truth, Donald Trump never deserved Robert Mueller.

Mueller is everything Trump is not. 

Honest, forthright, fair, taciturn, careful, professional and hard working. 

There is a classiness in his buttoned-down, white shirt absence of bravado. 

In the two years of Mueller's investigation, there was not a single leak from his office, which must be a first in the history of Washington, D.C.  During that same period, while Trump worked the refs in his nightly twitter feed, brainwashing his base into believing the investigation should never have started despite a mountain of probable cause, neither Mueller nor any of his team responded to Trump's lies. 

They just did their job.

Which is now over.

Ours, however, isn't.

Twenty years ago, Kenneth Starr, a court-appointed Independent Counsel, completed his investigation of Bill Clinton.  He then messengered his multi-volume report to Capitol Hill, where it was immediately disclosed.  In it were all of the  numbing but prurient details of the then-President's liaison with a White House intern.

Armed with that report, the House impeached the President, essentially for lying about sex.  The Senate, however, refused to convict, deciding this did not remotely amount to a high crime and misdemeanor.  And, Kenneth Starr and his office having behaved nothing like Robert Mueller and his, everyone in Washington decided that (i) Independent Counsels were not such a good idea after all and (ii) the law authorizing them should lapse.  That law was then replaced by a statute allowing Attorneys General to appoint Special Counsels in the event a subsequent President had to be investigated.  Under that statute, the Special Counsel sends his final report to the Attorney General, who then decides whether to make it public.

Which is why we are . . .  where we are . . .  now.

Robert Mueller has completed his report.  The Department of Justice has admitted that the report is over 300 pages in length.  

But we do not have it.

Instead we have William Barr's four page letter purporting to summarize it.

For a number of reasons, the letter is a bit . . . 

Strange

Though Trump and his supporters are now claiming the report completely exonerates the President and his campaign of any collusion with the Russians, the letter itself creates confusion in reporting Mueller's conclusion on that subject. 

Barr asserts that "The Special Counsel's investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence" the election. He then quotes the actual Mueller report as stating: "[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities."  There is a critical difference, however,  between a finding of coordination, which is a factual matter, and establishing a conspiracy, which is a legal one, and Barr's letter at best elides it.  In addition, the actual quotation from the Mueller report, which Barr begins with a bracketed capital T, is necessarily preceded by language that has been omitted by Barr.

I have no idea what Mueller actually concluded or what is in the part of the quoted sentence that is omitted.  The actual quotation from the report suggests Mueller  concluded only that he could not establish a conspiracy beyond a reasonable doubt; the quotation could be consistent with the absence of any factual findings relevant to this issue, but it also could be consistent with the existence of such findings, albeit at level Mueller deemed insufficient to make out a legal case, and either of these possibilities could be informed by what has been omitted.  Or by any of the other material in the 300 plus page report. 

Barr's letter also states that Mueller "determined . . . there were two main efforts to influence the 2016 election." According to Barr, the first was the social media and disinformation campaign conducted by Russia's Internet Research Agency and the second was Russia's "computer hacking operations designed to gather and disseminate information to influence the election".  As to each, Barr repeats that Mueller "did not find" that Trump or anyone in his campaign coordinated or conspired with the Russians. 

It is unclear, however, whether these "two main efforts" were the only efforts in which Mueller  thought Trump might have conspired, or whether other secondary efforts by the Russians either did not attract Trump's attention or were too small to matter (either to Mueller or, more likely, Barr). If the first, that might  explain how Trump, Jr., Kushner and Manaforte's June 2016 meeting with Vesilnitskaya (and theirs and Trump's lies about that meeting), or the GOP's change in its Ukrainian platform at the later party convention, could be deemed  irrelevant by Mueller, as neither related specifically to either Russia's computer hacking or the social media disinformation campaign per se.  If the second, which is more likely, we still need to know what Mueller investigated and what he found in those specific instances.  This is particularly important in connection with then NSA Director-designate Michael Flynn's secret conversations with Russian ambassador Kislyak on relaxing Obama's sanctions for Russia's seizure of Crimea.

One highlight of Barr's letter is its report that Mueller decided not to make a recommendation either way on whether Trump had obstructed justice.  In this section of his letter, however, Barr is also careful to quote the Mueller report's statement  that "while the report does not conclude that the President committed a crime, it also does not exonerate him."  

In an op-ed piece in yesterday's Washington Post, George Conway noted that this was "a stunning thing for a prosecutor to say", especially one unwilling to make a recommendation on the ultimate legal issue. Conway explains: "If [Mueller's] report doesn't exonerate the president, there must be something pretty damning in it about him, even if it might not suffice to prove a crime beyond a reasonable doubt." 

Finally, and most oddly, faced with the fact that Mueller decided not to recommend or decline prosecution on obstruction , Barr's letter reports that he decided to make the call in consultation with the Deputy Attorney General Rod Rosenstein (the latter of whom has also been vilified by Trump over the last two years; at one point, Trump even said Rosenstein should "be jailed" for having appointed Mueller).  And Barr's decision is that the evidence in the report was not sufficient to "establish that the President committed an obstruction-of-justice offense."

Barr's letter on this point takes on the character of a legal brief.   He begins by saying that Mueller's "decision to describe the facts of his obstruction investigation without reaching a legal conclusion leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime."  Really?  Who says?  The job was Mueller's; that he did not do it, or declined to do it, does not make it Barr's.  In fact, the whole purpose of the Special Counsel statute was to insulate such a decision from political bias by taking it away from a political appointee of the President.  Barr is such an appointee and his decision on obstruction  is thus at odds with the insularity created by the statute.  

In his letter, Barr explains that obstruction generally requires that the government prove beyond a reasonable doubt that "a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding."  He also asserts that the "absence of  . . . evidence" on collusion bore "upon the President's intent."  Finally he concludes that the Mueller report "identified no actions" that satisfied the legal requirement.

This is baffling.  

From public sources, we know that Trump fired FBI Director Comey after Comey had not complied with his demand to end the Flynn investigation,  that he admitted on national television that he did so thinking the Russian investigation was a big nothing, and that, as former Sen. Gary Hart put it, he has "trolled" the "possibility of pardons across the paths of several White House staff".  We also know that Trump has routinely denied that Russia tried to subvert the 2016 election, has accepted Putin's denials of interference, has regularly cozied-up to the Russian autocrat, and is in hock at some level to Russian oligarchs. In themselves, these facts would seem sufficient to demonstrate corrupt intent and at least one act related to the investigation.  And as to the absence of an underlying crime, obstruction is regularly prosecuted even where the underlying crime has not been deemed established. 

None of this is to say that Barr's letter is ultimately misleading or inaccurate.  Nor is it to say that the underlying evidence won't eliminate some questions that now exist.  It is entirely possible, for example, that the June 2016 meeting with Vesilnitskaya had nothing to do with "dirt on Hillary." The PR hack who set it up says that this was all false hype common in his line of work and was only  designed to get Trump or his people to take a meeting.  With Trump, this certainly makes sense, and  Mueller may well have concluded as much.

We just do not know.

The President and his supporters have been taking victory laps this week in the wake of the Barr letter and this is worse than strange. The best that can be said of the Barr letter (and, as of now, what we know of the actual Mueller report) is that the President cannot be charged with the crime of conspiracy.  This is hardly something to brag about.  Put differently, "unless it's a crime, it's fine" is not the standard to which Presidents should be held accountable.    

Even if this one thinks or acts like it is.

The fact that he does, as with all the many other degradations to which Donald Trump has subject the office of the Presidency, is no longer news.

But what is in those 300 pages almost certainly is.

Bottom line?

Somewhere in Washington, D.C. today, a buttoned-down Robert Mueller is yelling (OK, it's Mueller, so he's saying it softly) . . .

Release me.

JEFFERSON REPRISED -- HOW THE FEW CAN STOP ALIENATING THE MANY AND PERHAPS SAVE THE COUNTRY

JEFFERSON REPRISED -- HOW THE FEW CAN STOP ALIENATING THE MANY AND PERHAPS SAVE THE COUNTRY

"Great innovations should not be forced on slender majorities."

So said Thomas Jefferson in 1808.  

He did so in a letter to General Kosciusko, the Polish-Lithuanian military leader who had joined and then become an engineering hero in the Continental army during the Revolution.  Kosciusko was  responsible for designing American fortifications at Sarotoga, strengthening West Point, and building  the famous swamp boats that allowed America's Southern Army to flee Cornwallis in the years before Yorktown.   All were seminal contributions to the Revolution's  ultimate success.  By 1808, however,  he had returned to Europe.  

In his letter, Jefferson explained that he was delaying the submission to Congress of his own proposal to impose new federal conscription laws on state militias.  Versions of his plan had twice failed to pass given the various states' jealous regard for the longstanding practice of local militia recruitment and control, and though Jefferson thought he could get the measure passed by a small margin, he did not want that. He understood that his proposal was a major undertaking, the acceptance of which required widespread public support.  He knew that such support did not yet exist and that, without it, the plan would either be undermined or seed embittered dissent.  Having become President after the vicious campaign of 1800, he  also knew how embittered dissent could become.

So he pulled the plan and shelved it for another day.

For many reasons too long to list, Donald Trump is no Thomas Jefferson.  One, however, is that he does not follow the "slender majorities" rule.  In fact, he and the current Republican party have replaced it with a more dangerous approach.

Call it their "large pluralities" or "substantial minority" rule.

One of the hallmarks of the last two Republican presidencies is that neither was birthed by a majority vote. George W. Bush received around 500,000 fewer votes than Al Gore in 2000 and Trump received three million fewer votes than Hillary Clinton in 2016.  Under those circumstances, adherents to Jefferson's slender majorities rule would have been circumspect in their use of executive power.  They would not have forced big changes on electorates that had not supported them.

Neither, however,  did so.

For his part, Bush was the lesser villain.  Though his tax cuts and Iraq War lacked majority support and his appointment of Sam Alito put a hardened conservative on the Supreme Court, his education bill was bi-partisan and the Roberts appointment to the Court less extreme than Alito's.  

Trump, however, has thrown Jefferson under the bus.  

From his Cabinet to the assault on Obamacare; from the tax bill to his Court appointments; from killing the climate change convention  to his recent "national emergency" build-the-wall executive order, the Administration has embraced and pursued the agenda of the far right. It is an agenda the majority of the country does not share. In declaring a (false) national emergency at the southern border, he also has flouted the will of Congress and more likely than not violated the Constitution's separation of powers.  

Somewhere between 35 and 42% of America supports him and about 25 to 30% does so enthusiastically.  To retain their loyalty, Trump holds regular campaign-style rallies in which he reprises his in-your-face insults cum mendacity style of persuasion.  In that arena, opponents -- indeed, entire arms of the governmental "deep state" -- are engaged in "witch hunts"; the free press is the "enemy of the people"; "lock her up" is still a bellowed response; and violence often breaks out.  In one of Trump's recent rallies, a reporter was actually assaulted.  In his two hours stream of consciousness appearance at CPAC earlier this month, he called the Mueller investigation "bullshit".  It is a view he has cultivated for two years, sparing no lie or f-bomb.  The people who love him buy it, even though the country as a whole doesn't.

Prior to the second Bush Administration taking office in 2001, Vice-President (then elect) Cheney was worried that any hesitancy, any uncertainty or circumspection in the pursuit of their plans, would create an appearance that the new administration doubted its own legitimacy. He therefore counseled an unapologetic assertion of power in the service of their announced plans.  Bush II, however,  was not always on board.  Somewhere in the recesses of familial lineage, the voice if not of Jefferson than of his father or grandfather counseled moderation; hence, No Child Left Behind and (perhaps) John Roberts.

But Trump is no Bush (pere or fils) either.

He does not court moderates or moderation.  

This is dangerous.

The Constitution makes minority government legal and therefore possible. Five Presidents have failed to win the popular vote, two within the last twenty years.  The regional separation of our political parties is now stark.  Democratic office holders are largely coastal and metropolitan. Republicans win in the south, the plains and in rural areas.  

If this continues, or if Presidencies birthed in popular vote defeats become the new normal, we will face a choice.  

We can either drive Americans further apart in a winner take all exercise of power that ignores the will of the majority.

Or the "winner" can court and accomodate the actual majority.

The last time parties were so polarized and regions so dominated by one or the other was in the first half of the nineteenth century. It took a  Civil War to lance that boil.  And given that the issue then was slavery, on which compromise was never really possible and the end to which was not going to come voluntarily despite the protestations of latter day revisionists, perhaps war was the only possibility.

There is no equivalent issue today.

But there is a similar, stark division of loyalty.  And there also is a similar resentment of opponents that is growing and that threatens to undermine the whole republican project.  Trump -- our divider in chief -- fuels that resentment with abandon.  His followers love him. His opponents hate his utterly aberrant lack of civility. There are few in the middle.

Prior to the Civil War,  Abraham Lincoln embraced Thomas Jefferson.  In a letter in 1859, Lincoln wrote: "All honor to Jefferson, to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so embalm it there, that today, and in all coming days, it shall be a rebuke and stumbling block to the very harbingers of re-appearing tyranny and oppression."  The "document" was the Declaration of Independence.  The abstract principle was that "all men are created equal."

Embracing that principle was the solution to that era's bloody divisions.

So perhaps embracing his less abstract principle -- written thirty-two years, one Revolution, three Presidencies,  and one fraught transition (in 1800) later -- can be today's solution.

For self-government to survive and thrive, those who lose elections must retain the belief that the system is fair and legitimate.  This is especially the case where, as here, electoral victory does not require a majority vote.  In that case,  the "losers" -- who in at least one respect were actually the "winners" --  cannot be ignored. They have to be cultivated.  Insulting them is worse than demeaning.  It is stupid.  Power at some level has to be shared.  The loyal opposition must remain . . .

Loyal.

"Great innovations should not be forced on slender majorities."

And they should not be enforced at all by bare pluralities or substantial minorities.

The alternative is not pretty.