Two and a Half Scenarios for Trump’s Endgame
There’s a famous story about Henry Kissinger when he was involved in the dramatic opening of diplomacy with China in the early 1970s. Maybe you’ve already heard it. Kissinger had learned that Chinese Prime Minister Zhou Enlai was a great student of French history. Armed with this intelligence, either Nixon or Kissinger himself (there are multiple variations on the story) subsequently tried to make small talk with Zhou by asking what he thought was the legacy of the French Revolution. Zhou reportedly thought for a moment, then answered: “Too soon to tell.”
The story—possibly apocryphal—is usually told to illustrate the patient, longview of the East versus the impatient, short attention span of the West. In that regard it traffics in a bit of racist Orientalism. But I am reminded of it in light of the explosive developments in US politics last week. Very welcome and cathartic developments to say the least, but their long term impact is yet to be revealed.
I am hopeful we will not have to wait 200 years.
MUELLER TIME (THERE, I SAID IT)
For opponents of our fake president, last Monday offered a long-awaited, deeply satisfying teaser of the yeoman’s work Robert Mueller and his team have been doing for the past five months. One could hardly have hoped for a more powerful first demonstration of Mueller’s prowess—and the existential threat he poses to Trump—than the thunderous one-two punch of the Manafort/Gates indictments (which included the unimprovably named “conspiracy against the United States”), timed anything but accidentally with the revelation of the guilty plea of foreign policy advisor George Papadopoulos for lying to the FBI about his connection to the Trump campaign while he conspired with Russian assets to put him in the White House. It was not only the first hint of the complex, meticulously prepared, ruthlessly strategic case Mueller’s team has been building against Trump and his myrmidons, but one that—as many former prosecutors predicted—looks like nothing so much as a RICO operation against a mob boss. How fitting.
These initial moves made clear that Mueller is very much including in his inquiry the dirty business of money laundering, fraud, tax evasion, and other malfeasance that for decades has been at the heart of the Trump empire. And if Mueller is looking into that sort of thing, Trump has every reason to be soiling his XXXL tighty-whiteys. It would be an irony worthy of O. Henry or Roald Dahl if Trump’s quixotic late-life political career—something that likely started as a lark, an exercise in self-promotion, and a crass attempt at brand enhancement—winds up destroying his business empire, his family, and his name for all eternity. Couldn’t happen to a nicer guy.
Many legal experts have also noted, inside baseball-style, the ingenuity of Mueller’s opening gambit. By not explicitly tying these first indictments to Trump himself, or even mentioning collusion with Russia, he has denied Trump his usual go-to claim that this is a partisan witchhunt focused on him. Not that the facts ever stop Trump from saying whatever he wants, but he did seem outflanked and left flailing last week. Of course, the converse is that this approach allowed Trump to claim “Nothing to do with me!” (as did all his reliable mouthpieces, in unison, especially the odious Sarah Huckabee Sanders). But no serious person believes that. Trump may believe it, but he is anything but a serious person. (Dahlia Lithwick and Mark Joseph Stern summarized all this very nicely in Slate.)
But the simultaneity of the revelation that Papadopoulos is a “proactive cooperator” was the truly astonishing coup. It was instantly clear to me that this development was potentially far more damaging to Trump than even the higher profile Manafort/Gates arrests…. to say nothing of what it shows about the efficiency, professionalism, and operational security of the Mueller operation. Papadopoulos was arrested in July and has been cooperating for three months without a peep leaking out, and under the most intense scrutiny and pressure imaginable, which is almost beyond belief.
But in truth the two threads here go hand in hand. We’ve all seen Law & Order. Mueller’s team is plainly climbing the ladder, as the saying goes, pressuring crucial insiders like Manafort by nailing them on other crimes, even if those crimes aren’t directly related to the Trump campaign. (Though in this case they actually are, contrary to what Manafort’s lawyer speciously claimed and Trump has parroted.) And when guys like Manafort and Gates do flip, which they undoubtedly will, it will be to bolster the kind of information Papadopoulos is spilling about, which is the very definition of collusion.
Papadopoulos was cultivating an illegal relationship with the Russian government to interfere in the election on behalf of the Trump campaign and lied to the FBI about it. It was yet another in a seemingly endless series of secret contacts between the Trump campaign and Russian assets, contacts which Trump & Co have repeatedly, furiously, sanctimoniously denied, yet continue to come to light with the tedious regularity of an NPR pledge drive. As the New York Times reported: “It is now clear, from Mr. Papadopoulos’s admission and emails related to a meeting at Trump Tower in June 2016, that the Russian government offered help to Mr. Trump’s candidacy and campaign officials were willing to take it.”
Next question: what did the President know and when did he know it?
To dig into this a little deeper, consider a few things about the Bank of Cyprus, through which Manafort was laundering money. (Rachel Maddow has reported extensively on this.) Its chairman had previously been chairman of Deutsche Bank, which this past January was fined $630 million by the Obama administration for laundering Russian money, including some connected to Putin himself. He was given the job by two of its biggest shareholders, both Russian billionaires. One was a close friend of Putin and vice chairman of the bank’s board. The other—a man named Dmitry Rybolovlev—had been in an ugly divorce that had prompted him to hide his assets in super-expensive real estate all over the world. One of his purchases, in 2008, was an enormous and garish house in Palm Beach, FL that he bought from (wait for it) Donald Trump. In a depressed housing market where buyers could virtually name their price, Rybolovlev inexplicably bought it for two and half times what Trump had paid just two years before. Rybolovlev never moved in, likely never even set foot in it, and it was eventually torn down.
At the time this sale happened, Trump owed Deutsche Bank $40 million in debt.
So a Russian oligarch with connections to DB, who needed to park assets offshore, essentially gave Trump $60 million dollars so Trump could pay off his debt. (That alone is an outrage that ought to have disqualified any US presidential candidate.) That oligarch was also a major shareholder in a shady Cypriot bank that was effectively a private piggy bank for Putin and his friends, whose single biggest shareholder and other vice chairman was an American named Wilbur Ross, an old friend of (wait for it) Donald Trump, whom Trump subsequently made his Secretary of Commerce.
This ploy was a triple winner for the Russians: it enabled Rybololvlev to hide more of his money, it enabled Russia’s friends at Deutsche Bank to collect on a huge debt, and it enabled the Kremlin to further get its hooks into Donald J. Trump. US intelligence officials believe that for years the Russians have been cultivating Trump as an asset by assisting him and implicating him in financial dealings that leave him vulnerable to manipulation if not outright blackmail—dealings just like this one. Our Insane Clown President may or may not have hired Russian hookers to piss on a bed for his erotic pleasure, and Putin may or may not have that on tape, but even without that lurid detail there are plenty of reasons he is such an obedient manservant to the Kremlin.
Oh, and by the by: the US Attorney in charge of the ongoing investigation into Trump’s involvement with Deutsche Bank was Preet Bharara, whom Trump fired.
THEY CALL HIM FLIPPER
So in light of all that, think about what Manafort can do to Trump if he flips.
1) Trump is tied up in the same dirty money laundering with the Russians and the Bank of Cyprus, for which Manafort can provide highly damaging details.
2) Manafort was present at the June 2016 meeting at Trump Tower with Natalia Veselnitskaya and other Russians (including a former Soviet counterintelligence agent) along with Don Jr and Kushner, both of whom are themselves at risk of indictment. Manafort can confirm that Don Sr was aware of the meeting and either approved it beforehand or condoned and concealed it afterward. The latter is already a matter of record, as we know that Trump personally dictated his son’s false statement trying to explain that meeting away, which both implies endorsement—if not foreknowledge—and constitutes obstruction of justice by way of coverup.
3) Manafort can corroborate and expand upon the complicity of campaign higher-ups—very likely including Trump himself—in Papadopoulos’s actions. Almost every week new revelations about previously undisclosed meetings between Russian assets and Trump officials emerge….does anyone really think this is the end of it? (Indeed, another Trump advisor, Carter Page, came forth late last week with admissions of his own regarding whom he met with in Russia during the campaign, reversing his story after months of denials.) And Manafort was at the center of it all.
Does anyone really think Paul Manafort is willing to go to federal prison for twenty years to protect Donald Trump, a man who humiliated and fired him?
It beggars the imagination that Trump did not know about these multiple contacts with Russia. More likely he knew about all of them, and blessed them.) The lie about the Veselnitskaya meeting that he ghost-wrote for his son—one of multiple ever-shifting explanations, all utterly transparent and false—alone is damning in that regard.
Per Don Jr’s own emails, that meeting had the undeniable objective of obtaining dirt on Hillary Clinton that Russia was offering. Even Junior’s pathetic claim that the Russians wanted only to talk about relaxing restrictions on adoptions of Russian children betrays his stupidity. As I’ve written before, whenever Russian officials assets talk about “adoptions” it’s code for repealing the Magnitsky Act, which sticks in Putin’s craw so badly that just this week he ginned up outrageously spurious charges against Bill Browder, the American-born hedge fund manager who spearheaded its passage. Incredibly, the Kremlin is now alleging that Browder himself conspired to have his own tax attorney, Sergei Magnitsky, murdered in a Russian prison by FSB goons. (Yes, and John Kennedy committed suicide in that convertible in Dallas.) You won’t be surprised to learn that on the basis of that fairy tale allegation, our esteemed Department of Homeland Security initially bowed to the Kremlin’s wishes and cravenly barred Browder—now a UK citizen—from entering the US. (Following massive public outcry the DHS has since reversed itself.)
Also on the topic of that June 2016 meeting at Trump Tower, it was also revealed this week that Veselnitskaya had coordinated her talking points with Yuri Chaika, the Russian prosecutor general, which is to say, Jeff Sessions’ Kremlin equivalent. Just in case anyone ever doubted that Veselnitskaya was a classic cutout for Russian intelligence, as were the folks who made approaches to Papadopoulos. That is Espionage 101, folks.
ANOTHER CONFEDERATE MONUMENT FALLS
Speaking our esteemed Attorney General, Marcy Wheeler of The Intercept was the first reporter I saw last week to make a very savvy observation about Jeff Sessions’ criminal exposure. Sessions of course has multiple times angrily denied any knowledge of contacts with the Russians by anyone in the Trump campaign…including a highly self-righteous and now especially sticky appearance under oath before the Senate Judiciary Committee, where he locked horns with Al Franken, among others. (And somewhere, John Mitchell is laughing.) Jeff has since been forced to cop to multiple contacts with the Russians, which is why he had to recuse himself from the Mueller inquiry in the first place. Now we learn that he attended a fateful meeting on March 31, 2016—documented in a photograph destined to go down in history—in which Papadopoulos openly pitched Russian entreaties to the Trump campaign. Also present at that meeting, at the head of the fucking table: Donald Trump himself.
The discussion over Papadopoulos’s pitch, which reportedly included admonitions to keep quiet about it, clearly indicates that at least some in the group (such as Sessions himself) knew that this was fraught, if not wholly illegal, ground on which they were recklessly treading. Trump probably didn’t understand that, but his mere presence at the meeting gives the lie to his repeated claims that he knows of no contacts—as in zero, zilch, nada—between anyone in his campaign and Russia. Though unlike his AG, he hasn’t yet—to our knowledge—lied about it under oath. (I’m sure that’s coming though.)
As the New York Times reports:
At a March 31, 2016, meeting between Mr. Trump and his foreign policy team, Mr. Papadopoulos introduced himself and said “that he had connections that could help arrange a meeting between then-candidate Trump and President Putin,” according to court records. “He went into the pitch right away,” said J. D. Gordon, a campaign adviser who attended the meeting. “He said he had a friend in London, the Russian ambassador, who could help set up a meeting with Putin.”
Mr. Trump listened with interest. Mr. Sessions vehemently opposed the idea, Mr. Gordon recalled. “And he said that no one should talk about it,” because Mr. Sessions thought it was a bad idea that he did not want associated with the campaign, he said.
…. (These) court documents represent the first concrete evidence that Mr. Trump was personally told about ties between a campaign adviser and Russian officials.
Pointedly, however, no one fired Papadopoulos after he floated that outrageous idea. On the contrary, he was encouraged by his supervisors—particularly Sam Clovis, who had brought him onto the Trump team—to continue to pursue the lead. It was even discussed that, rather than Trump himself, a “low-level” person be sent to Russia to meet with Putin, which further suggests that the Trump team knew this was not kosher. (Why they thought Vlad would ever agree to that I don’t know.)
Faced with having to explain this under oath to Franken, Feinstein, Flake, Blumenthal, et al, Jefferson Beauregard Sessions III now seems to have suddenly recovered his memory, like a soap opera character beset with suspiciously temporary amnesia. However, it may not be enough to save his elfish white ass.
So at the risk of gross understatement, all this looks very bad for Team Trump and is likely to get much much worse, which may be why Donald has reportedly—characteristically—been freaking out behind closed doors. And it seems very clear that Bobby Mueller is just gettin’ started, y’all. Flynn, Kushner, Sessions, Page, and Don Jr all look likely to be indicted, and when that happens, I think it is safe to say that Don Sr will totally lose his shit.
OK, I apologize for trudging over ground that has been well-trod by others. Let’s now turn to something new: reckless speculation.
Even the very limited information we have seen so far suggests that Bob Mueller is going to deliver devastating evidence implicating Donald Trump’s campaign and administration, and indeed Trump himself, in myriad types of highly illegal behavior that is more than enough to justify removal from office and further criminal prosecution. One might argue that even what we already know would, under any reasonable Congress, already be sufficient grounds to frogmarch Donald Trump out of the White House and off to Gitmo. Of course, we are not dealing with a reasonable Congress.
Therefore, in terms of how this all finally plays out, it seems to boil down to two basic scenarios:
- Mueller is allowed to complete his inquiry, which promises to obliterate the Trump administration, or….
2. Trump manages to fire Mueller, or otherwise derail him, either by going down the chain in the DOJ Saturday Night Massacre-style (starting with Rod Rosenstein), or by just ignoring all the rules and norms and trying to fire Mueller himself, or by managing to get Congress to defund the special counsel, or some other skullduggery—and this is the critical part—and the Republican Party lets him get away with it.
There is a third quasi-scenario, in which Mueller delivers his damning judgment but the GOP refuses to act….in other words, the premise of #1 with the response of #2. In many ways this is the most likely outcome, in fact, but I would lump it under Scenario #2 in that it amounts to the same utter cowardice by the Republican Congress and refusal to carry out its Constitutional duty.
Some might argue that there is a fourth possibility, which is that Mueller doesn’t deliver the goods. I am categorically discounting that, as it is clear from what we already know—let alone what the special counsel knows, or is still developing—that the Trump team has committed offenses that would have resulted in mass crucifixions for any previous administration of either party. So again, a situation in which Mueller delivers his report and the GOP and its amen corner in the Bizarro World right wing media and electorate refuse to acknowledge it would be really nothing but another variation on unconscionable Republican refusal to admit the truth and act with any semblance of integrity.
Already we are seeing Trump and the GOP laying track for the firing of Mueller with their absurd allegations that somehow it was the Clinton campaign that colluded with the Kremlin (yes, she colluded with Russia to defeat herself: very clever), and by attempting to generate an already pre-debunked fake non-scandal about uranium that through yogi-like contortions allows them to argue—ridiculously—that Mueller must recuse himself or even resign. Incredibly, the Wall Street Journal made that argument in a recent editorial, a reminder that it is owned by Rupert Murdoch, and maybe the low water mark in the history of that once-reputable newspaper. The Journal now proudly joins Fox, Breitbart, Infowars, WorldNetDaily, the National Enquirer, and the rest of tinfoil hat press.
I won’t dignify those transparent attempts at misdisrection by refuting them in detail— others have already effortlessly done so—except to say that these are howlers that make the Benghazi witchhunt look rational by comparison. It’s also worth noting how much they resemble similar attempts by the Nixon White House to tar the Democratic Party and the special prosecutor’s office during Watergate….efforts that today look pathetic and laughable. Trump’s claims have achieved that status already.
Will the GOP leadership go along with this bullshit, or will it man up up? Despite rampant cowardice on that side of the aisle over the past year, a not insignificant selection of Republican senators—Collins, Shelby, Corker—have said that any interference with Mueller would set off a riot even within their party. One can only imagine that McCain and Flake feel the same, and others as well (even as they continue to vote for things like the appalling GOP budget). I hope that proves to be true. On the other hand, there’s been a lot of bravado and empty rhetoric from the GOP throughout the Trump era, and absolute bupkes when it has mattered.
Some far right elements—notably, Steve Bannon—are reportedly even now trying to goad the easily riled and manipulated president into firing Mueller, presumably because they think he can get away with it. Sadly, they may be right. But they may be wrong, and in so doing might instead push Trump into a constitutional crisis that would hasten the destruction of his vile presidency, much as the terrible decision to fire Jim Comey got him in this special counsel mess in the first place. (Bannon, you’ll recall, was against that move for purely tactical reasons—not moral or legal ones, of course—while Kushner was stupidly for it. It’s not clear why Steve-o has now switched positions.) In any case, it’s possible that we ought to root for the lunatic right to prevail and nudge Donald into that self-destructive decision. The stress test for American democracy would be unnerving, of course, but if we pass it, the sooner we will be rid of the cancer that is Donald John Trump.
THE LOOMING CONSTITUTIONAL CRISIS
I can already hear voices out there saying that even Donald Trump knows better than to try to fire Robert Mueller. I’m not so sure.
Donald and his people are certainly behaving in a panicked manner that suggests that they are—justifiably—terrified that Mueller’s efforts may eventually bring them all down. (Even Ty Cobb, apparently the coolest head in that bunch, couldn’t succeed in keeping Donald off Twitter the morning of the first indictments. It took a departing Twitter employee to do that, if only briefly.) The paranoia within the West Wing—to include fears over who might be wearing a wire—has reportedly been pegged for weeks. The revelation that Papadopoulos has already been secretly working with Mueller for three months, and may well have been wired in conversations during that time, is surely creating full-blown anarchy.
Add to that Trump’s natural and well-documented affinity and admiration for authoritarianism and so-called “strongmen,” from his BFF Vladimir Putin, to monsters like Duterte, Erdogan, Assad, the Saudi royal family, and even Little Rocket Man himself.
Indeed, this past week was one where Trump’s appalling misunderstanding of—and contempt for—the rule of law was on full display on multiple fronts, from his rabid fulminating over the Mueller probe, to his hamhanded calls for the death penalty both for the West Side terrorist Sayfullo Saipov (who hadn’t even been charged yet) and for Sergeant Bowe Bergdahl, to his outrageous pleas for the DOJ to act as his personal Gestapo in persecuting his political rivals (or more accurately, vanquished ones that continue to serve as scapegoats for his theater of demagoguery). As many have pointed out, this behavior is precisely the stuff that got articles of impeachment drawn up against Nixon. Far worse, in fact.
Given those drivers, it’s hard to imagine that as Mueller tightens the vise there will not come a point at which Trump simply can’t stand it any more and lashes out by trying to fire him, or engaging in other efforts to neuter him. In fact it has already begun with the aforementioned propaganda campaign to discredit the special counsel, ludicrous as it is. If and when that happens, we will be squarely in the middle of the kind of constitutional crisis that many observers have been predicting from the very moment of Trump’s ascension to the White House. And if that happens, what will the citizens of the United States do?
Of course, no reasonable person expects Trump’s base—that 30% or so of the country that is in unforgivably blind thrall to him—to care. Hell, they’ll cheer it. David French of National Review is not my favorite Martian but he was totally right in his recent indictment of these dead-enders.
But what about the rest of us, that 70% of relatively sane Americans who know a crook and a con man and a traitor when we see one? Will we take to the streets in outrage, demanding removal of this cretin who presumes to call himself our leader? Will the Democratic Party stand up and fight? And most germane of all, will the Republican leadership at long last discover its testicles (sorry for the sexist metaphor), put country above party, and exercise its constitutional duty? These are men and women who undeniably know what a dangerously unfit troglodyte is in the White House and the extent of the damage he can do, whether it’s by starting a nuclear with the North Korea or by wantonly laying waste to treasured norms of American democracy, or by recklessly undoing the meticulously built accomplishments of seventy years of US diplomacy. They hold the power to stop this madness in its tracks, right now, never mind if it comes to a constitutional crisis. But thus far from the GOP leadership, with a few outlier exceptions, we have heard nothing but crickets. (This ad by billionaire progressive activist Tom Steyer captures the situation very succinctly.) If Trump moves against Mueller they will have their final chance to do so, or be forever damned as quislings and collaborators.
One worrying sign is the arcane arguments that some otherwise intelligent conservatives have made that could be used as cover by Trump and his apologists. To wit:
This week saw a remarkable and terrifying op-ed by John Yoo, who as Deputy Assistant US Attorney General under George W. Bush was one of the chief architects of the spurious legal opinions that justified the use of torture at Gitmo, Abu Ghraib, CIA black sites, and in the rendition program—some of the worst stains ever inflicted on the integrity of the United States. With characteristic admiration for despotism, Yoo—now a law professor at Boalt Hall, UC Berkeley of all places—argued that Trump has the godlike power to fire Mueller at will and pardon anyone he wishes including himself…..but he shouldn’t, because it would be bad for the country.
No shit, John—ya think?
Relying on Trump’s appreciation for the good of the country, let alone the spirit of the law, does not strike me as a great insurance policy for American democracy.
But what’s more worrying is that Yoo also mentions, almost casually, that among the overreach that he believes might justify shitcanning Mueller would be if Mueller began looking into Trump’s personal finances or those of his businesses instead of sticking strictly to the question of collusion with Russia. This, of course, is Trump’s position too; indeed, he has explicitly—albeit stupidly—called his finances a red line Mueller cannot cross. (“Sure, officer, you can search my car…..but don’t look in the glove box.”) But as the events of last week showed, Mueller has already clearly signaled that he intends to do just that. Moreover, he is absolutely within his purview in doing so, for at least two reasons.
Firstly, Mueller’s mandate as special counsel specifically allows—indeed, demands—that he investigate any other crimes he might uncover in the course of looking into the original issue. For the GOP to complain about that is rich indeed. Hillary’s email scandal—which arguably dealt her candidacy a lethal blow—grew out of the Benghazi inquiry, which originally had nothing to do with email servers, now did it? Likewise, and speaking of the Clintons, her husband’s impeachment (!) developed out of the Lewinsky affair, which was uncovered in the course of the Whitewater real estate investigation. So for the GOP to claim overreach is, uh, a reach to say the least.
Secondly, Trump’s personal finances and those of his various business are absolutely relevant to the Russia investigation, as is revealed by even a cursory look at the byzantine web of financial entanglements between the Trump Organization and various Russian interests, to include both Russian organized crime and the Kremlin itself (which might as well be the same thing).
Yoo of course is an originalist from the same school as Scalia, Thomas, and Gorsuch, a philosophy that features the twin perversions of deifying a bunch of old dead guys (many of them—cough cough—slaveholders) and requiring extrasensory perception of what those aforementioned dead guys “would have wanted” two hundred years after they shuffled off this mortal coil. Even if Yoo were correct about Alexander Hamilton’s intent with the section of the Federalist Papers that he cites, it’s not at all clear why 325 million Americans in the year 2017 should owe blind obeisance to some long dead adulterer in a powdered wig and capri pants, no matter how well he could rhyme.
It would be deeply ironic if a guy like John Yoo, who in the period immediately following 9/11 seemed to personify the coldblooded Republican willingness to abrogate cherished democratic norms, wound up trampled underfoot by a far cruder authoritarianism fifteen years later, left mumbling about the Federalist Papers while Trump’s red trucker-hatted shock troops plow over him as they cheer their hero’s evisceration of the Constitution that people like Yoo profess to hold dear.
STATES’ RIGHTS TO THE RESCUE (MAYBE)
Along with impeachment and the 25th Amendment, there has long been speculation that this nightmare might actually end with Trump resigning, particularly if faced with indictments against his children for which he could not issue pardons (if, for instance, such pardons were themselves deemed obstruction of justice), or withering inquiries into his business dealings that he is desperate to avoid, or allegations of tax evasion and so forth. Yes, Trump’s ego and pathological lust for the spotlight make it hard to imagine that he would willingly give up the Presidency. But if confronted with that kind of pressure, and offered a deal by his opponents, he could readily be imagined raising his arms Nixon-like, and with characteristic self-delusion and Orwellian logic, declaring victory and riding off into early retirement. “I made America great again—you’re welcome! G’bye!” Indeed, that sort of absurdist charade in which abject defeat is portrayed as glorious victory is a hallmark of Trump’s ignominious and bankruptcy-studded business career.
But here’s another, weirder scenario.
It was reported some time ago that Mueller has partnered with New York State Attorney General Eric Schneiderman, which is a stroke of genius that ought to keep Trump’s attorneys up at night in a cold sweat. The limited scope of the crimes with which Manafort and Gates were charged last week—off a menu that offered, and still offers, many many more options—suggests that Mueller and Schneiderman are carefully coordinating their efforts, and leaving open a whole raft of possibilities for prosecuting Trump associates and even Trump himself at the state level should the President decide to go on a pardoning spree and toss around get-out-of-jail-free cards like they are confetti (saving one for himself, of course).
So if a sitting president can’t be charged with ordinary crimes (not a settled legal matter by any means, by the by) we may find ourselves in a situation where Donald Trump knows that the moment he leaves office he will face criminal prosecution by the state of New York for an enormous array of crimes related to the jawdroppingly sleazy way he has run his family business for more than forty years. In that case, he’d better hope he dies in office (always possible, given the crippling stress of the job and his notoriously shitty diet). But it won’t be a pretty picture if Trump is incentivized to stay in office at all costs. Judging from his history, he will surely fight like a rabid, cornered weasel in order to stay in power and delay the inevitable, and I wouldn’t even rule out moves as desperate as declaring a national state of emergency, instituting martial law, mounting a Reichstag fire false flag operation, or any other ploy he can think of to try to suspend the next presidential election and his removal from the White House.
Absurd, you say? Beyond the pale? Really? Do you put anything past Donald Trump?
Short of a Democratic landslide in the 2018 midterms that gives them control of the House (which can impeach the President with a simply majority vote), and a supermajority in the Senate in order to convict him along strict party lines, Republican cooperation will be necessary to bring Trump down, whether it’s by legal procedure or sheer political pressure. That is not a fact that warms the cockles of my heart or makes me very optimistic about how this is going to end.
Trump and Mueller are on a collision course. The day may come when they do collide, and the American people may have no choice but to take to the streets to demand the removal of this illegitimate, criminal president. (Or meekly acquiesce, in which case we would deserve our fate.) Even now we might consider a peaceful but vigorous public show of displeasure to make our elected representatives feel the pressure. But at the moment those representatives still have the power to make this right. As the New York Times wrote in its own editorial (a welcome antidote to the WSJ’s insane right wing pandering):
If Mr. Trump gives in to an impulse to fire Mr. Mueller…three Republican senators (looking at you, Mr. McCain, Mr. Corker and Mr. Flake), joining with 48 Democrats, could bring the Senate to a halt until Mr. Mueller was reinstated — no tax cuts, no more judges confirmed. The scenario in which Mr. Mueller loses his job, or Mr. Trump further abuses his pardon power, is hypothetical — and may it remain so — but if it materializes, it will fall to Congress to defend the foundations of American democracy, the separation of powers and the rule of law.
And if Congress continues its shameful pattern of abdication of duty and collaboration with this slow slide into authoritarianism, that task of saving American democracy will fall to us.
8 thoughts on “A Hard Rain Is Gonna Fall (But on Whom?)”
Bob, great analysis, tying together a lot of angles and scenarios. Here’s an additional one: What happens if Manafort communicates to DT at some point before or during his trial that he’s going to squeal if he doesn’t get pre-emptively pardoned? DT has the authority to do that, and it seems the political blowback of a pardon would be much smaller than if he were to fire Mueller. He’d obviously claim he was just rescuing an innocent man from a politically motivated witch hunt (“Hey, Clinton pardoned the already convicted felon Marc Rich as a quid pro quo for his prior funding of the Bill and Hilary empire, and no one even investigated that, much less discussed impeaching him for it. NOW *THAT* WAS AN OUTRAGE, and crooked Hilary engineered the whole thing!). The current allegations against Manafort are sufficiently tangential to Trump that he could spin away the notion that he was effectively pardoning himself. Faced with the choice of spinning along with Trump on that or impeaching him, the republican congress might well go with the former. Could a pardon of Manafort, and the implication that any others close to Trump who were put in a similar situation by Mueller would also be rescued from such a gross miscarriage or justice, effectively torpedo the “climb the ladder” strategy…?
Thanks Walter. That is certainly a possibility, and a worrying one. And of course I completely agree that the GOP has not yet shown any backbone for turning on Trump, no matter what he does. But one take I’ve heard is that the legality of such a pre-emptive pardon would almost certainly be challenged. (I’m not a lawyer, you know, though I did stay in a Holiday inn last night.) My understanding is that even the president does not have the power to issue a pardon that itself constitutes an obstruction of justice, which a pardon of Manafort arguably would, especially if the timing of it was such that it derailed–or attempted to derail–Mueller’s probe. Trump acted that precipitously with the Arpaio pardon, which came even before sentencing, and I think if he tried to do that with Manafort there would be some serious legal attacks on it.
I certainly agree that Trump (or his lawyers) would argue that it wasn’t obstruction, but that’s specious and the Mueller side would surely have a strong counter. (What side the courts would come down on, I don’t know.) But let’s say that he does pardon Manafort and gets away with it. I’m confident that Mueller is building multiple cases against the administration, with more indictments to come. If Trump pardons Manafort, is he then gonna pardon Flynn too? And Page? And Kushner? And Sessions? And Don Jr? At some point I have to believe that the courts are going to say, “Hang on: it’s clear what you’re doing and we’re not going to let you do it.” I would also like to believe that if it comes to that pass, the American people would be out in the streets. One hopes….
Yes, it could sure get legally sticky. Isn’t pardoning someone who’s been indicted but not yet tried *by definition* an obstruction of justice? Yet the president apparently (or at least arguably) has the power to do that, from what I’ve read. I can see the courts going round and round on that seeming contradiction for a while, but I can also see a strict constructionist (or maybe even a moderate justice) deferring to the letter of the constitution in the end…
Btw, here’s an interesting read on presidential powers to Pardon in the Constitution: http://www.heritage.org/constitution/articles/2/essays/89/pardon-power
At the Constitutional Convention, some apparently argued that power of pardon not be granted to the president because the power “may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime and thereby prevent a discovery of his own guilt.” Wow!
I think it’s all a very gray area. Which, in my understanding, is why pardons are usually issued to people who have been convicted and sentenced (and frequently begun serving time, or even served many years). The Arpaio pardon—before sentencing—was unusual, as well as outrageous for other reasons, and a pardon of Manafort or anyone else even before they have been tried would be a major breach. Which is not to say Trump wouldn’t try it, of course! On the contrary. And like you, I can see strict constructionists/originalists like at least three (maybe four or five) of the SCOTUS justices siding with him. But again, if he were to do so not only with Manafort but with a whole slew of his associates and family members in a clear effort to derail the Russia investigation, that would be a sweeping violation of the duties of the presidency and an unprecedented abuse of power that would open him up to impeachment or removal by other means. (Just as that Heritage essay noted; i.e, using legal powers to commit an illegal act). The naïf in me HAS to believe that in that case, responsible adults in the US government—not to mention the public—would stand up and say, “No.” If not, we will have truly surrendered to despotism.
As I’m sure you’re read, there is also the paradox that pardoning any of these guys would strip them of their Fifth Amendment options, as they would no longer be in danger of self-incrimination so that—ironically—they could be compelled to testify about Trump’s own involvement and that of anyone else around him under penalty of contempt of Congress. Then the big issue becomes perjury, but I can’t imagine that every one of these bastards would hew to the vow of omerta and defend Donald in lockstep, with no one cutting a deal and breaking ranks.
To that end, there is also the wrinkle of Mueller’s cooperation with Eric Schneiderman, the NY State AG. It appears that Mueller is withholding federal charges that could readily be leveled so that Schneiderman has the option of prosecuting at the state level, to include Trump himself, if only after he is out of office. Trump can’t pardon anyone for state crimes, which leaves that whole rogues’ gallery subject to leverage to cooperate or go to prison.
And again, it boggles my mind that we even have to have these discussions not about a proper villain, a Putin or a Pinochet, but about a brick-stupid, D-list reality TV clown that various forces saw fit to make President of the United States.
I certainly hope you’re right. I think the best hope may lie in the election results of this week. If support for Trump becomes a net political liability for Republican Congressmen, even in gerrymandered Republican districts, then things could change fast and we might yet see a president Pence…
Agreed: this week was perhaps more encouraging even than Mueller Monday last week. The ballot box, rather than the courthouse, is the more likely battleground where we can halt the tide of Trumpism and turn it back. (But I’m all for a fight on two fronts. In fact, let’s make it three and add the streets.) I’m not convinced that the GOP yet sees Trump as a liability, however, and maybe never will. There’s been a lot of disturbing reporting and polling–born out by the results in VA and elsewhere–that his hardcore “base” of dead-enders will stick by him NO MATTER WHAT, which I’m sure the GOP has taken note of. They will be unlikely to abandon a solid 30% of the electorate that will come out and support him/them regardless of what terrible things he or they do, or promises they fail to keep. That’s a rare and valuable political commodity. But what Tuesday showed was that we can overwhelm that solid 30% by means of a massive turnout from the remaining sane 70%. I think that’s the key going forward. (Oh, and I’m optimistic that we can bring Mr. Pence down too, either by implicating in the Russiagate probe or by attacking him with the weapons we have always used against conventional politicians. He’s a monster of his own sort, but one who doesn’t have the unique, bizarro world arsenal that his current boss does.)