SWIMMING IN POLLUTED WATERS
In June 1970, as I was about to graduate from elementary school, a group of us boys and girls hopped on a bus in Brooklyn and took it to Jamaica Bay. When we arrived, a big sign at the shoreline told us that swimming was prohibited because the water was too dirty.
We went in anyway.
Years later, after Congress passed the National Environmental Protection Act and President Nixon signed it -- bipartisanship was possible back then -- the government started to clean up Jamaica Bay. It eventually became part of the Gateway National Recreation Area that rings the southeastern edge of New York City in Brooklyn and Queens and then extends down through the Jersey Shore. Today, the blue fish are back in the Bay as bikers, birders and boaters flock to its shore.
There are two mottoes to this story.
The first is never swim in polluted waters. They are unpleasantly pungent and their toxic residue leaves the water with and on you. Put simply, you can get pretty sick. The second, however, is that they need not remain polluted forever. Movements can start, laws can change, progress can be made.
About two weeks ago, Attorney General William Barr released the now infamous Mueller report and last week he testified about it before the Senate Judiciary Committee. The report itself consists of 381 pages in two volumes and includes four appendices. Of the two volumes, the first reports the evidence Special Counsel Mueller assembled demonstrating Russian interference in the 2016 Presidential election and the contacts and communications between various Trump campaign personages -- officials, volunteers, associates, hangers on -- and the Russians. The second reports the evidence Mueller assembled on Trump's efforts to influence, derail or stop the investigation.
The top line conclusions in both volumes are now well-known.
As to the first, Mueller concluded that neither the President nor anyone in his campaign had violated federal law by conspiring with Russia's computer hacking and dissemination operation or its social media campaign against Clinton. In so doing, Mueller applied standard Justice Department protocols that govern decisions on whether to prosecute or decline to prosecute in any specific case. These protocols require that the attorneys believe they can prove any charge beyond a reasonable doubt and sustain any conviction on appeal. In this case, therefore, Mueller's conclusion was that the evidence did not establish the federal crime of conspiracy beyond a reasonable doubt.
This does not mean there were no contacts between Trump's campaign and the Russians, or that the campaign did not encourage the Russians, utilize what they had hacked, or fully embrace their anti-Clinton social media campaign.
The campaign did all three.
In one instance, that of Trump Jr. agreeing to meet with Russians who promised dirt on Clinton, they also appeared more than willing to cross the criminal line and did not do so only because the promise was not backed by substance. Ditto in another, when two named Trump campaign officials (Michael Flynn and Sam Clovis) sought Clinton emails they knew were stolen property from an individual who claimed to be able to (but ultimately could not) get the material from the Russians; indeed, on the Trump campaign's search for Clinton emails, there is a whole section of smoke where a rogue's gallery of actors (Papadopoulos, Miller and Clovis) do not deny but cannot recall ever hearing that the Russians had the emails or the campaign could get them, even though this is more or less what the Australians reported Papadopoulos had told them (and the reason the FBI investigation started in the first place) . Then, of course, there were Paul Manfort's regular contacts (which included months long sharing of internal campaign polling data) with pro-Russian Ukrainians bent on legitimizing Russia's seizure of Crimea.
On all of these contacts and communications, Trump himself has now been blessed by a remarkable inability to recall.
Appendix C to the report is a copy of Trump's written answers under oath to the Special Counsel's questions on Russia's hacking and social media campaign. In those answers, Trump states that he had "no recollection" of Trump Jr.'s meeting at the time it occurred or of anyone informing him at any time during the campaign that Russia wanted to assist the campaign. He also states that he did not "remember being aware of" any contacts between Manfort and the Ukrainians or about the sharing of any polling data with them. In his own evaluation of the President's answers, Mueller himself calls them "inadequate," noting that on thirty occasions the President did not recall or remember any of the information called for in the question; other responses are called "incomplete or imprecise".
Things get worse in Volume II.
In it, Mueller lays out ten instances in which Trump himself may have obstructed justice. The word "may" in that last sentence is generous. To begin, Mueller decided at the outset that, since he could not indict the President for any crime given existing Justice Department policy, it would not be fair to accuse the President of a crime in the event Mueller concluded one had been committed. Instead, Mueller decided to lay out all the evidence on the issue and then warn us that, while he wasn't accusing the President of obstruction of justice, he wasn't exonerating the President on this issue either.
In the trade, for lack of a better term, this is what is known as a cluster f**k.
On the one hand, the evidence that Trump obstructed justice is pretty compelling. After trying to exact a loyalty pledge in one meeting, and more or less telling him to go easy on former NSA Michael Flynn (who had lied to the FBI when he denied discussing sanctions with Russia's ambassador to the United States in the period before Trump was inaugurated but during which sanctions had been imposed by President Obama) in another, Trump fired FBI Director Comey. He publicly denied Comey's accounts of both meetings. He also tried to promote the false story that he was firing Comey based solely on Deputy Attorney General Rosenstein's criticism of Comey's handling of the Clinton email matter during the election. The Special Counsel found that Comey's accounts of his meetings with the President were accurate and the President's public denials were not. The Special Counsel also reported Trump's public admissions that he, Trump, had fired Comey on account of the Russian investigation.
In June 2017, the President directed White House counsel Don McGahn to have the Special Counsel fired for conflicts of interest. When McGahn told him there were none and then did not comply with the order, Trump twice asked a former campaign aide, Corey Lewandowski, to tell Attorney General Sessions to curtail the Mueller investigation by restricting it to future elections (meanwhile, Trump was repeatedly telling Sessions to "unrecuse" himself and take over supervision of the Special Counsel's investigation). Lewandowski, hardly a profile in courage, passed the request onto Rick Dearborn, but Dearborn thought it "definitely raised an eyebrow" and wouldn't pass it on to Sessions.
Later that summer, Trump told aides not to disclose emails relating to Trump Jr.'s 2016 "dirt on Clinton" meeting with Russians and then edited a press release to lie about the purpose of the meeting.
In early 2018, Trump told McGahn to publicly deny that he, Trump, had told McGahn to have the Special Counsel fired. McGahn refused.
And throughout 2018, the President repeatedly suggested that a pardon of Paul Manfort was possible while openly claiming that the Special Counsel was not treating Manafort fairly. Manafort, of course, was later found guilty of multiple felonies and then pled to others.
In a similar vein, Trump sought to assure witnesses like Flynn and Michael Cohen of his support, praising them in general or congratulating them on their fortitude as others conveyed messages behind the scenes that the President admired them or had their back. In Cohen's case, as the report also notes, support turned to vitriol the moment Cohen turned on Trump
Mueller carefully sets out all of this evidence (and more) and then follows each factual section with an analysis of how those facts fit into the three elements of obstruction. In reading these analyses, it's pretty clear that a case of obstruction either exists or can easily be brought. On the bases of what is recounted above, it is apparent that Trump regularly sought to impede or derail the investigation by leaning on investigators and supervisors to act in his personal interest, by trolling witnesses with praise and suggested pardons, and by infecting any would be jury pool (which, in this case, is the electorate at large) with false public accounts. He also asked people to lie, openly in the case of McGahn, implicitly in the case of Manafort and Cohen.
Mueller, however, was hamstrung by the Justice Department's policy precluding the indictment of a sitting President.
So, he never pulled the trigger.
For reasons which have never really been explained, Attorney General William Barr did not think himself similarly constrained. Within days of receiving Mueller's report, and without having looked at the underlying evidence, Barr decided Trump had not obstructed justice and said so in a four page "summary" of the report. This, in turn, elicited a scathing rebuke from Mueller himself, who wrote that Barr's summary "did not fully capture the context, nature, and substance" of Mueller's "work and conclusions." Instead, said Mueller, Barr created "public confusion about critical aspects of the results of [the] investigation" that "threaten[ed] to undermine [its] central purpose . . . to assure public confidence in [its] outcome."
No kidding.
In fact, the litany of confusion is mind-bending.
First, the President is obviously confused. The report, notwithstanding Trump's repeated tweets to the contrary, did not find "No Collusion, No Obstruction". Rather, on the federal crime of conspiracy (there is no crime known as collusion), the report found only that there was not sufficient evidence to prove that crime beyond a reasonable doubt; and on the federal crime of obstruction of justice, it offered up a bevy of facts on which such a crime could be prosecuted were indictment of a sitting President not barred by Justice Department policy.
Second, the President's lawyers are confused. This week, one of them, Emmet Flood, claimed that once Mueller had declined to prosecute Trump for obstruction, he should have said no more. The basis for this claim is that prosecutors, in routinely declining to prosecute cases, never discuss the evidence underlying the case. That, of course, ignores the unique reason Mueller had for not prosecuting in this case -- it was not because he thought Trump had not committed the crime, it was because the Justice Department policy precludes indictment of a sitting President as an initial matter. It's hard under this circumstance to understand precisely what Flood thinks Mueller should have done. But presumably, once Mueller determined that no indictment of Trump was possible, Flood thinks he should have reported as much and closed shop. No doubt Trump would have liked that outcome. It, however, is not what the Special Counsel statute requires.
Third, the public is confused. Significant numbers now believe that, because Mueller did not establish that Trump committed the crime of conspiracy specifically in connection with Russia's interference in the 2016 election, Trump should not be impeached for any reason and the matter should simply die. This is also the almost universal opinion of the Republican party.
It is also wrong.
Impeachment does not require, nor is it limited to, criminal conduct. "High crimes" justify it but so do "high" "misdemeanors". And what is meant by the latter is not lower level criminal conduct. Rather, when the founders inserted the clause, which they borrowed from English common law, they were referring to any misbehavior by the chief magistrate so severe as to justify his or her removal. They then left the specific definition of that severe misbehavior to the actual participants in any later impeachment drama.
So, should Trump be impeached?
The answer is maybe.
Russia's interference in the 2016 election is no small matter. To the contrary, protecting against it (or, for that matter, against electoral interference by any foreign actor) is central to preserving the republic and the institutions that allow democracy to survive and thrive. Once elections can be rigged or manipulated, and especially once they can be rigged or manipulated by hostile foreign actors, this experiment we began in 1776 simply ends. Something remains. People will work and deal and finance and fight. But democracy will be a thing of the past.
Trump, however, gets none of this.
He openly discounts -- in fact, more or less denies -- any Russian interference in the 2016 election despite a mountain of indisputable evidence to the contrary. He does so because he fears that, in the close call that was his rise to the Presidency, any hint of Russian subterfuge carries with it the possibility that it, and not he himself, was the reason for his rise. So petrified, his fear has now metastasized into virulent and almost always false attacks on the free press, the judiciary, career attorneys in the Department of Justice, and political opponents of whatever stripe, Republicans included. In turn, this has created an executive branch in which sycophants thrive and anyone not so inclined struggles. There is a reason Rex Tillerson, James Mattis, Reince Priebus, Don McGahn, John Kelly and Jeff Sessions have departed -- they could no longer stomach the required ass kissing. That is also the reason Trump has been left with a growing posse of wanna be's and has-beens. I mean, all kidding aside, does anyone really believe anything Sarah Huckabee Sanders says these days on anything that matters?
I do not know whether Trump committed a high crime or misdemeanor in connection with Russia's 2016 interference in the Presidential election . But I also do not know that he did not and, at this point, I do not care whether the reasonable doubt standard can be met. I do care, however, that he cares more about himself and his own success in 2016 than he does about the integrity of our elections. I do care that he has repeatedly tried to subvert, demean and derail an investigation that was about the integrity of our elections. And I very much care that I now have a President who cannot remember whether he was told the Russians had dirt on his opponent, or her emails, or wanted to help him win in 2016.
These are not the sorts of things anyone forgets.
The House Judicary Committee should begin an impeachment inquiry. It should be thorough and methodical and should answer all the questions that remain. If it's done before the 2020 election, fine. If it's not done before the 2020 election and Trump loses, that's fine too. We can end it there. And if it's not done before the 2020 election and Trump wins, that too is fine. We can continue and finish it thereafter.
We are swimming in polluted waters here.
We have to clean them up.
But the first thing we have to do, one way or the other, is . . .
Get out of the water.
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