OK, we clear now?
Bob Mueller just said that Justice Department policy that a sitting president cannot be indicted left him and his team without even the option of charging Donald J. Trump with a crime.
In other words, he wouldn’t—and couldn’t, according to his interpretation of the law—charge Trump with anything, no matter what he found.
He pointedly said that, under the Constitution, a president’s misdeeds—both ordinary criminal behavior and “high crimes and misdemeanors” as defined politically, not legally—are a matter for Congress, if it so decides.
He also explicitly said that his office would have exonerated Trump if they thought he was guiltless, but they didn’t do that because they didn’t think he was. I believe his exact words were that “if we had had confidence that the president clearly did not commit a crime, we would have said so,” a sound bite that ought to ring in America’s ears for years to come. Indeed, his written report lists in granular detail ten different instances in which Trump arguably did obstruct justice in ways that rise to the level of a federal crime…..and close to a thousand former federal prosecutors have signed a letter stating that, in their collective professional opinion, Trump would have been indicted on that charge if not for the office he holds. (The written report also specifically notes that Trump can be indicted once he leaves office.)
And lastly, at the very beginning and end of his remarks—which PS, storytelling-wise, is where the bottom line usually goes—Mr. Mueller reminded us that arching over and above all this is the fact that the government of Russia engaged in “a concerted attack on our political system” consisting of “multiple systemic efforts to interfere in our election,” all designed to benefit Donald Trump and damage Hillary Clinton. Unspoken was the implication that Moscow—and perhaps others—will surely will continue to do so, which ought to be of grave concern to each and every American. (Unless you’re the folks Russia is interfering to help.)
So all in all, that was a pretty instructive nine minutes, wouldn’t you say?
INDICTMENT IS NOT AN OPTION
In my own solipsistic world, that the sphinx should speak at last this very week was fitting, on the heels of a four-part series in these pages on the impact of the special counsel report and the prospects for Trump’s removal from office, either by impeachment, resignation, or defeat at the polls in 2020.
Mueller’s unexpected silence-breaking made for a resounding coda, and did several things to alter the landscape going forward.
It destroyed Bill Barr’s brazen lie that the OLC opinion wasn’t the pivotal issue in Mueller’s decision not to indict on obstruction.
It exploded the notion that Russian interference was a hoax—an idea propagated most prominently by two world leaders, Vladimir Putin and Donald Trump. Not a coincidence.
It obliterated Trump’s fiction that the SCO found “no collusion” between his campaign and Russian actors. Mueller very pointedly did NOT say there was no collusion. He did not even use the word “collusion,” as well he shouldn’t, as it is legally meaningless. What Mueller said, in fluent legalese, was that “there was insufficient evidence to charge a broader conspiracy,” which is far from the same thing. We know very well that there were many many illicit contacts between Trump associates and various foreign players, which the Trump team was desperate to keep hidden and about which it repeatedly lied. Whether those contacts rise to the level of a criminal conspiracy that is likely to lead to a conviction is a wholly different matter….but that in no way constitutes the clean bill of health that Trump ludicrously claims.
And lastly, it made it very clear that Mueller intended his report to be an impeachment referral, since he explicitly said that he did not believe that he and his team had the authority to indict NO MATTER WHAT THEY FOUND, and that under the Constitution, Congress is the proper venue to handle these issues.
As the British say, must I paint you a picture?
One can only hope that this press conference will encourage Congress to do its constitutional duty and hold this criminal president to account for his actions, or suffer the withering judgment of history for its unwillingness to do so. And I use the word “encourage” in its most literal sense:
To. Give. Courage.
THE VIEW FROM BIZARRO WORLD
To no one’s surprise, the White House immediately tried to spin Mueller’s remarks—like his report itself—as yet another demonstration of absolute exoneration. But by now we are hip to that game…..or at least 60 percent of us are.
The evidence that the White House really did not see Mueller’s statement as helpful to them was that within minutes Rudy Giuliani was attacking It on Fox News, and in his usual hysterical fashion, comparing Mueller’s press conference to something that would have occurred in the USSR. Mueller has “lost his notion of American fairness,” Giuliani added with no discernible irony, defending a president and administration who have been the greatest and most undeserving beneficiaries of the integrity and fairness of others since OJ.
And Team Trump is right to be unhappy, as even Fox anchor Bret Baier said that Mueller’s statement was the “exact opposite” of the spin Bill Barr put on the SCO report. Also on Fox, former judge Andrew Napolitano said it exposed Barr’s summary as a “whitewash.” Trump himself was reduced from crowing about “complete and total exoneration” two months ago to feebly mumbling about “insufficient evidence” today.
Some have said that Mueller did throw cold water on the left’s scathing attacks on Barr’s integrity, in which I have been a very eager participant. But the fact is, he did not really defend Barr. He did not, for instance, say “I don’t question the attorney general’s good faith,” as some have reported. Speaking very narrowly of Barr’s decision to release the redacted report rather than the summaries the SCO team had prepared, Mueller said, “I certainly do not question the attorney general’s good faith in that decision” (italics mine). It was that action and that action only that Mueller was referring to. Left open: whether the AG acted in good faith in his other actions. Mueller’s personal letter to Barr of March 27 complaining that Barr was misrepresenting the SCO’s conclusions to the public suggests otherwise.
In short, what we saw today, after two years of silence, was an astounding rebuke of how the president and his minions—including the man who is allegedly the country’s chief law enforcement officer—have tried to distort the results of the SCO investigation. It was a blunt explanation that the special counsel was never going to bring any charges of any kind, as he considered that beyond his purview, giving the lie to Trump’s bluff assertion that no charges meant no wrongdoing, and a stark clarification that the vast array of damning evidence in the 448 page report was intended as a roadmap for Congressional action.
If Mueller’s remarks did not go as far as some would have liked, or in sufficiently dramatic fashion, they were nonetheless a serious body blow to the administration, no matter how much it wants to deny it.
I’d like to turn now to a related matter, which is the next phase of the campaign by Trump/Barr to obfuscate and cover up Donald’s misdeeds, because it’s ramping up, and in the most alarming way.
From the very beginning of Russiagate, and particularly since the release of the special counsel report put him out of immediate legal jeopardy, Trump has promised to “investigate the investigators,” and punish those who had the unmitigated gall to dare look into whether or not he had done anything wrong in the 2016 campaign. Because, ya know, he’s above the law……we all agree on that, right?
Trump has long been throwing around accusations of treason, promising prison terms, and generally behaving like the tinhorn despot of a Third World backwater banana republic. Now he is making good on his threats, and putting teeth in them by giving his shameless lackey Bill Barr the authority to declassify intelligence—including sources and methods—in order to cherrypick info that can be used to craft their disinformation narrative. Barr’s spin on the SCO report offered a preview of how he will do this; the coming effort promises to be infinitely greater in scope and utter dishonesty, and in the potential threat it poses to the republic.
Evidence of Trump’s crimes—obstruction, acts of conspiracy with Russia, financial misdeeds, fraud, etc etc—will be omitted. Random bits of information will be plucked out of context to bolster a mythical plotline in which the Deep State conspired to overthrow him. It is an article of faith in MAGA Nation that indictments are coming down any day now, and Hillary, Comey, Strzok, et al are all getting fitted for orange jumpsuits. Maybe Barack too!
In other words, Trump is weaponizing the DOJ and the investigative process as a cannon he can fire at his political enemies. That process is already underway, with the revocation of security clearances as a personal vendetta (against John Brennan, for example), and with Barr’s unconscionably blithe and dangerous use of the term “spying” to describe FISA-authorized government surveillance, which he has already pre-judged.
It should not surprise anyone that this is the very thing that he and Barr have howled in faux outrage that others are doing: politicizing the investigative apparatus to persecute and punish one’s foes. That, as we all know, is Fascism 101: accuse others of your own crimes.
Shall we discuss just how dangerous and alarming this development is?
There are of course grave national security considerations in this move to give Barr power over the intelligence community. As the Washington Post’s Max Boot pithily observed: “So Trump’s position is that his tax returns should remain private but the CIA’s ‘sources and methods’ should become public.” In terms of the venal, indefensible compromise and exposure of US intelligence officers and assets for partisan political gain—literally putting lives at risk in some cases—the outing of Valerie Plame pales in comparison.
Jeremy Bash, a former chief of staff for both the DOD and CIA, has noted that such actions also make it harder for the US to recruit agents going forward and to get foreign intelligence services to share intel with us….and with good reason. Why should anyone trust us, knowing that at some unknown future date the American president might casually decide to betray their secrets for his own ends?
All true. But it is the domestic impact that is more chilling to me.
When Trump said Hillary Clinton should be locked up, he meant it; the Mueller report documents Trump’s repeated demands that the Justice Department investigate his 2016 opponent. Having paid no price for what should be an impeachable offense, Trump let it be known this week that former FBI director James B. Comey and Deputy Director Andrew McCabe—along with “people probably higher than that”— deserved to be executed for treason. Is Trump insinuating that President Barack Obama and Attorney General Loretta E. Lynch, to whom the FBI reported in 2016, were guilty of treason? Sure sounds like it.
I don’t expect Jim Comey to be clapped in irons. I’m not saying it COULDN’T happen—who knows how far Trump will go, and the GOP-controlled Senate will let him go? But for now the mere idea that a Roy Cohn-like AG has been let off the leash to pursue politically motivated prosecutions is worrying enough. It is precisely the sort of imperial behavior that the Founders feared and the system they constructed was designed to prevent. But that system only works when its players act in good faith.
Michael Steele, the former RNC chairman turned Trump critic, has said that this is the realization of the dream that Trump and Bannon announced when they arrived in Washington: the destruction of the administrative state. And as Steele as says, it is happening without consequences, and will continue to do so until Congress reaches down and discovers its testicles (to traffic in a sexist trope).
For Trump, of course, it’s a three-fer: he is at once indulging his innate sadism and desire for revenge, while creating a circus that assists him in the coming presidential campaign, and suppressing any meaningful further investigation of his crimes.
People wonder guilelessly how William Barr could become a bagman for this regime and active accomplice in this travesty. I have written about that at length, but it’s easy to understand, even without looking at his sordid history in Iran/contra. Like many plutocrats, Barr believes in the unitary executive theory, and he believes in that because an autocracy with no parliamentary or judicial or any other kind of oversight offers him and his kind the most freedom and impunity from justice as they pursue their hateful agenda.
For his part, Comey himself has pooh poohed these investigations, arguing that they are bad theater and will come up with nothing. He may be right on both counts, but the charade is still deeply worrying, as the investigations will form a false, toxic narrative that Trump and the GOP will relentlessly promote and many gullible Americans will accept. And the underlying danger of the precedent set by such a shameless perversion of the justice system of course remains.
Writing recently in Salon, Chauncey DeVega gave a bravura survey of the state of authoritarianism in America today, all pegged to the events of a single day last week, May 23. It bears quoting at length:
During a press conference (that day), Trump was asked by NBC reporter Peter Alexander to name the people he believes are guilty of “treason.” Trump responded by mentioning former FBI director James Comey, former acting director Andrew McCabe, former FBI agent Peter Strzok and former Justice Department official Lisa Page. Treason is a high crime punishable by execution. In essence, President Trump publicly threatened to have those four former public servants executed.
What did the four do to warrant a potential death penalty? Comey, McCabe, Strzok and Page followed through on their professional responsibilities to hold a president and his inner circle accountable for their behavior in accordance with the nation’s laws. Their other “crime” in the eyes of Trump and his regime? Protecting the United States from a hostile foreign power that successfully subverted American democracy in 2016 (and continues to do so). It would seem that Donald Trump’s foreign patrons are not to be interfered with.
Also on May 23, Trump gave Attorney General William Barr, his handpicked insurance policy, the power to unilaterally declassify secret intelligence information in his search for evidence that the Mueller investigation was an attempted “coup” and an effort to overthrow his presidency…..
On Thursday evening, both the president and his personal attorney, Rudy Giuliani, circulated a heavily edited video of House Speaker Nancy Pelosi, purporting to show that she was “drunk” or “not of her right mind”….
In total, Thursday’s events were a grand tour of the authoritarian’s playbook: The Leader is the State; the Leader is above the rule of law; the Leader is the law; reality is to be twisted and bent to serve the Leader; there is no accountability or transparency in government; fealty and loyalty to the Leader and his Party are all that matters; violence, threats and intimidation replace democratic norms, principles, consensus and accountability.
DeVega also notes that this trifecta comes atop an already appalling pattern: the threats not to respect the outcome of elections; the encouragement of politically and racially motivated violence; the concerted effort to usurp women’s rights to control their own bodies; the emboldening of foreign dictators; the disregard for democratic norms; and the denial of civil rights to those “who are not white, male, Christian, rich and heterosexual.”
The authoritarian’s playbook indeed.
Mr. Boot one more time:
I refrain from saying that Trump has hit a “new low” because the phrase is meaningless; next week he is practically guaranteed to bore even deeper into substrata of immorality and vileness that no previous president has ever penetrated. The only thing that can stop him before November 2020 is impeachment. But Pelosi’s caution is understandable: The House can impeach, but the Senate will never convict, allowing Trump to claim unearned exoneration. The result is that Trump’s abuses of power are practically guaranteed to get worse as he fights for his political survival.
LET MUELLER BE MUELLER
Here is the ultimate irony of the twinned events of Trump’s weaponization of the DOJ and Mueller’s startling press conference.
Trump’s willingness—eagerness even—to pervert the justice system and intelligence community for the most despicable, venal, anti-democratic, and self-aggrandizing ends stands in stark contrast to the meticulous, principled, painstaking-almost-to-a-fault integrity of Robert Swan Mueller III. Jesus, even a Marvel superhero movie doesn’t offer such a blunt dichotomy between good and evil. (DC maybe.)
Indeed, some have suggested that Mueller’s commitment to principle is actually hurting us in this steel cage match, that he should have spoken up sooner, or been more aggressive in his interpretation of his remit. On MSNBC, former DOJ spokesman Matt Miller mused how different things would be if this press conference, rather than Barr’s smoke-and-mirrors display, had been the way the American people were introduced to the SCO report. Many others noted that Mueller, for better or worse, appears to be a creature of a different media age, and did not think in those terms. Given how many people (even on the left) initially presumed that Bill Barr would behave in a principled manner, perhaps it was too much to expect that Mueller—his longtime friend and associate, and fellow Republican—could have anticipated his antics.
I am sympathetic to these arguments. But those who are frustrated with Bob Mueller for not being Tom Steyer have not been paying attention to who Bob Mueller is. I say this with love, because many of those people are my dear friends, and I could not feel their pain any more if I tried. But that is asking a bird to be a fish.
As with Nancy Pelosi, who gives the Democratic Party camouflage and cover by representing the slow-and–cautious approach on impeachment, even if it’s only tactical (see Who’s Afraid of the Big I?, May 15, 2019), Mueller has had an important role to play in this drama too…..a starring one, in fact. But it is not the role of Javert pointing his finger and shouting “J’accuse!”
Mueller is perfectly cast as a sober, by-the-book, honest broker. He provided a towering public service with the SCO inquiry and the report it produced. Only a non-partisan figure of immense credibility who commanded deep respect across the ideological divide could fill that role (at least until Fox News’s poison did its work—see the turnabouts by Graham, Gingrich, et al). For him to turn into a firebrand now would undo all that good.
Would I have liked to have see Bob Mueller stand up there and proclaim that Donald Trump is a lying sack of shit who ought to go to the Supermax federal pen in Florence, Colorado along with Ted Kaczynski, Robert Hanssen, and Zacarias Moussaoui? Sure. But I would also like it if I could get in a time machine and emerge in 1973 for a dream date with Pam Grier, and I don’t expect that either. (Don’t worry, it’s cool—Ferne is onboard, and might come along, although she also has her sights set on 1951-vintage Marlon Brando.)
Mueller likewise provided another valuable service with his nine-minute statement of May 29th. If it was not the mic drop that some would have liked, that expectation was always unrealistic. What Mueller did, very clearly, was say to the American people, “There was never going to be a criminal indictment no matter what I found, so stop buying Trump’s bullshit that no indictment equals exoneration,” and to Congress: “Hey dummies: Read the report. It is an impeachment referral. Now do your job.”
Mueller put the tennis ball squarely in Congress’s court. Far from “penning Democrats in,” as some pundits claim, he actually bolstered the case for impeachment. In direct contravention of the conventional wisdom, some have even begun to say that not impeaching will actually hurt the Democrats in 2020 and hand a second term to Donald J. Trump, to say nothing of the damage such inaction would do to the integrity of the republic. I suspect they are right. Ignoring Trump’s wrongdoing is the far greater danger than holding him to account for it, regardless of the political costs.
I do believe that if we survive this administration, Mueller’s commitment to fairness will be a great gift to America. If he had been more aggressive in his inquiry and his statement—much as I would have liked that on a visceral level—I fear the precedent for a less scrupulous special counsel working for the other side in the future. One has only to look at how Trump and Barr are abusing their power to see how that might play out. It is precisely this kind of integrity that we are fighting for, and that we can’t sacrifice.
Mueller’s presser provided yet another study in contrasts—perhaps the starkest yet—between this man and the one he was investigating. Bob Mueller earned his golden years well before he came out of retirement to become the special counsel: in Vietnam, as a US Attorney and acting US Deputy Attorney General, as a homicide prosecutor, and as director of the FBI during one of the most trying times in modern American history. When the smoke clears from the current battle, I suspect that posterity will look back and recall that, in the twilight of his lifetime of public service, he once again answered the call.